LEGALIZING, DECOLONIZING, AND MODERNIZING NEW YORK STATE'S INDIAN LAW Robert B. Porter* The Indian Law, although a part of the scheme of general laws, is but a collection of special statutes relating to the several tribes of Indians remaining in the state. Following this plan an examination has been· made of all statutes relating to Indians, and such as were found to be unrepealed but superceded or obsolete have been placed in the schedule for repeal, and those remaining have been added to the law under the article relating to the particular tribe to which they apply. I INTRODUCTION One of the most vexing problems in Federal Indian Control Law is how to regulate the relationship between the Indian nations and the states. In stark contrast to the federal government's role in Indian affairs, the Constitution makes no provision for the states to exercise authority inside the Indian territory located within their borders. As a result of having territory within a state that the state cannot control, there has long been conflict between the states and the Indian nations, usually revolving around state efforts to exert authority within the Indian territory.2 These state efforts have been * Associate Professor ofLaw and Director ofthe Tribal Law and Government Center at the University of Kansas. This article was first presented as a lecture at Albany Law School on April 20, 1999. I would like to acknowledge the support of the General Research Fund of the University ofKansas and the staffofAlbany Law Review which made this work possible. I Feb. 17, 1909, ch. 31, 1909 N.Y. Laws (Report of the Board of Statutory Consolidation, 1907). 2 This history is borne out in the facts of several cases. For example, in 1971 the Leech Lake Band ofthe Chippewa Indians secured their right to fish, hunt and harvest wild rice on the Leech Lake Indian Reservation free from Minnesota laws regulating such activity. See Leech Lake Band of Chippewa Indians v. Herbst, 334 F. Supp. 1001, 1002 (D. Minn. 1971). At trial, several Indians testified "that always in their dealings with the white man it was understood that they were to have unrestricted hunting and fishing rights on the Leech Lake Reservation." [d. at 1003. The court enjoined the enforcement ofMinnesota's fish and game laws by the defendant Commissioner of Natural Resources. See id. at 1006. Another case involved an adultery prosecution of an Indian for the commission of that crime on a Sioux 125 HeinOnline -- 63 Alb. L. Rev. 125 1999-2000 126 Albany Law Review [Vol. 63 justified primarily on the grounds that either the Indians or the non-Indians located within the Indian territory are engaging in conduct that contravenes state public policy and law. Not surprisingly, these disputes can be intense. But, because states are not burdened by the federal government's trust responsibility to safeguard Indian interests,3 these conflicts may even be violent and life threatening.4 As a result of this tortured relationship, the Supreme Court has recognized, that for the Indians, '''the people of the States ... are often their deadliest enemies.'''s Perhaps nowhere has this problem had more unique application than in the State of New York.6 For over 300 years, the colonial and American inhabitants of New York have waged an ongoing battle for control over the Indian lands originally adjacent to, and later located within, the State.? The Indian nations most subject to these reservation in South Dakota. See United States v. Quiver, 241 U.S. 602 (1916). In Ullited States v. Quiver, the Supreme Court precluded the application of a South Dakota adultery statute to the conduct of one Indian on the reservation towards another, noting, were it otherwise, the Indians "would [be] subject[ed] ... not only to the statute relating to adultery, but also to many others which it seems most reasonable to believe were not intended by Congress to be applied to them." Id. at 606. Finally, the seminal case Worcester v. Georgia, 31 U.S. 515 (1832) addressed whether Georgia law applied within Cherokee territory to prosecute a missionary who had been living there with the consent of the tribe and federal authorities but in violation of Georgia law. The Court held it did not, stating "[t]he Cherokee nation, ... is a distinct community occupying its own territory ... which the citizens of Georgia have no right to enter." Id. at 561. See infra notes 105-11 and accompanying text for !l discussion of Worcester and how the Supreme Court has since departed from its "bright·line" rule. J See Worcester v. Georgia, 31 U.S. (6 Pet.) 515, 573·76 (1832) (discussing the history of FederallIndian relations and explaining that by a series of treaties the Indian people have accepted the protection of the United States government in exchange for peace). See, e.g., FRANCIS PAUL PRUCHA, AMERICAN INDIAN TREATIES 61 (1994) (stating the Cherokees signed the Hopewell Treaty of 1785 to be under the protection of the United States government and no other). 4 See, e.g., Karen L. FoIster, Comment, Just Cheap Butts, or an Equal Protectioll Violation?: New York's Failure to Tax Reservation Sales to Non-Indians, 62 ALB. L. REV. 697, 707·08 (1998) (describing a massive resistence by Senecas over New York's attempts to enforce an agreement entered into with five of the nine Indian nations in New York through which reservation merchants would charge less tax than off·reservation merchants for gasoline and cigarettes, but would be a greater tax than previously imposed); Kevin Collison, Firm Laying Cable Detours 26 Miles to Bypass Indian Land, BUFFALO NEWS (N.Y.), Sept. 21, 1997, at 1~ (describing the same violent confrontation between the State and the Seneca Nation during which a 30·mile stretch of the New York State Thruway was closed for 24 hours). , United States v. Kagama, 118 U.S. 375, 384 (1886). 6 See generally HELEN M. UPTON, The Everett Report in HISTORICAL PERSPECTIVES: THE INDIANS OF NEW YORK (1980) (discussing the struggles of the New York Indians with the State). 7 Throughout this essay, the word "State," when capitalized, will refer exclusively to the State ofNew York. HeinOnline -- 63 Alb. L. Rev. 126 1999-2000 1999] New York's Indian Law 127 State assertions of power have been the Haudenosaunee, often referred to as the "People of the Longhouse" or Six Nations Iroquois Confederacy,S who are comprised of people from the Mohawk,9 14 Oneida, 10 Onondaga, 11 Cayuga, 12 Seneca,13 and Tuscarora 8 See ROBERT W. VENABLES, Introduction to THE SIX NATIONS OF NEW YORK: THE 1892 UNITED STATES EXTRA CENSUS BULLETIN, viii (photo. reprint 1995) (1892) (noting the term "Six Nations" was commonly used by the United States government in treaties and other agreements with the nations, but that the nations themselves prefer "Haudenosaunee" or "Iroquois"); see id. at vii (providing a historical explanation of the Extra Census Bulletin). The Haudell.osaunee also refer to themselves as "Ongwehonweh," or the "Original People" of the land they inhabit. See Haudenosaunee Homepage, (visited Oct.. 19, 1999) <http: /Isixnations.buffet.netiCulturelWelcome.html?article=who_we_are>. 9 The Mohawks refer to themselves as the "Kanienkahagen," which means "The People of the Flint."- See Haudenosaunee Homepage, (visited Oct. 19, 1999) <http://sixnations .buffet.netiCulturelWelcome.html?article=who_we_are>. Where the name Haudenosaunee means "People ofthe Longhouse," the Mohawks are the keepers ofthe "Eastern Door" of that house. See VENABLES, supra note 8, at viii (providing a brief overview of Haudenosaunee culture). The enemies of the Mohawks called them '''man eaters,''' and the warriors had a reputation for being overpowering in battle. 1 THE GALE ENCYCLOPEDIA OF NATIVE AMERICAN TRIBES 76 (Sharon Malinowski & Anna Sheets, eds., 1998) (hereinafter "GALE ENCYCLOPEDIA'']. 10 The Oneida refer to themselves as "Onayotekaono," which means "The People of the Upright Stone," or the "standing stone." See Haudelwsaunee Homepage, (visited Oct. 19, 1999) <http://sixnations.buffet.netiCulturelWelcome.html?article=who_we_are>.This is in reference to a rock which, as legend holds, moves with the people and provides direction wherever they go. See GALE ENCYCLOPEDIA, supra note 9, at 76; DANIEL K. RICHTER, THE ORDEAL OF THE LoNGHOUSE: THE PEOPLES OF THE IROQUOIS LEAGUE IN THE ERA OF EUROPEAN COLONIZATION, I (1992). The Oneida Nation of New York is located on approximately 7000 acres, with a total enrollment of approximately 620 people. See Paul Lipkowitz, Oneida Nation's Holdings Grow; The Tribe Buys 1000 Acres Across Route 46 from the 32-Acre Territory the Oneidas Have Lived on for Centuries, POST-STANDARD (Syracuse, N.Y.), Sept. 4, 1998, at B3; LAURENCE M. HAUPTMAN, FORMULATING INDIAN POLICY IN NEW YORK STATE, 1970-1986, 165 (1998) (setting forth census statistics of the several tribes of the Six Nations). II The Onondaga refer to themselves as "Onunndagaono," which means "The People of the Hills." See Haudelwsaunee Homepage, (visited Oct. 19, 1999) <http://sixnations.buffet. netiCulturelWelcome.html?article=who_we_are>. The Onondaga Nation is the "central hearth and fire" of the Haudenosaunee longhouse. See VENABLES, supra note 8, at viii. Onondaga warriors were considered ruthless and in the mid-1600s extinguished the Huron, Erie, Neutral and Susquehannock tribes. See GALE ENCYCLOPEDIA, supra note 9, at 205. The Onondaga Nation lies near Syracuse, New York, on nearly 7300 acres. See HAUPTMAN, supra note 10, at 165. 12 The Cayugas refer to themselves as "Guyohkohnyoh," which means "The People of the Great Swamp." See Haudelwsaunee Homepage, (visited Oct. 19, 1999) <http://sixnations. buffet.netiCulturelWelcome.html?article=who_we_are>. They are also referred to as "'the people at the landing.''' RICHTER, supra note 10, at I.