Volume 39 Issue 3 Article 1 1994 Resolving Native American Land Claims and the Eleventh Amendment: Changing the Balance of Power Katharine F. Nelson Follow this and additional works at: https://digitalcommons.law.villanova.edu/vlr Part of the Constitutional Law Commons Recommended Citation Katharine F. Nelson, Resolving Native American Land Claims and the Eleventh Amendment: Changing the Balance of Power, 39 Vill. L. Rev. 525 (1994). Available at: https://digitalcommons.law.villanova.edu/vlr/vol39/iss3/1 This Article is brought to you for free and open access by Villanova University Charles Widger School of Law Digital Repository. It has been accepted for inclusion in Villanova Law Review by an authorized editor of Villanova University Charles Widger School of Law Digital Repository. Nelson: Resolving Native American Land Claims and the Eleventh Amendment: VILLANOVA LAW REVIEW VOLUME 39 1994 NUMBER 3 RESOLVING NATIVE AMERICAN LAND CLAIMS AND THE ELEVENTH AMENDMENT: CHANGING THE BALANCE OF POWER KATHARINE F. NELSON* TABLE OF CONTENTS I. INTRODUCTION ........................................... 526 II. INDIAN TITLE AND THE NONINTERCOURSE ACT ........... 530 III. THE HISTORY OF TRIBAL ACCESS TO THE FEDERAL COURTS ................................................... 533 A. Before Oneida I and II. ....................... 533 B. O neida I .......................................... 542 C. O neida II ......................................... 543 IV. NEGOTIATED SETTLEMENTS ............................... 546 A. Land Claims ....................................... 546 B. Defenses in Land Claim Actions ..................... 552 C. Negotiated Settlements ............................... 556 D. Examples of Negotiated Land Claim Settlements ....... 563 1. Rhode Island Indian Land Claims Settlement ...... 563 a. Background ................................ 563 b. Settlement Terms .......................... 565 c. Evaluation ................................. 568 2. Puyallup Land Claims Settlement ................. 570 a. Background ................................ 570 b. Settlement Terms ........................... 572 c. An Example of Mutually Beneficial N egotiations ................................ 575 3. Seneca-Salamanca Lease Settlement ................ 578 a. Background ................................ 578 * Associate Professor, Widener University School of Law; B.A., University of Rochester; MA., Columbia University Teachers College; J.D., Syracuse University College of Law. Copyright 1994. I would like to thank Elizabeth Paige Spencer and John Doncevic, my student research assistants, for their help in researching and editing this article. (525) Published by Villanova University Charles Widger School of Law Digital Repository, 1994 1 Villanova Law Review, Vol. 39, Iss. 3 [1994], Art. 1 526 VILLANOVA LAW REVIEW [Vol. 39: p. 525 b. Settlement Terms .......................... 582 c. Afterm ath .................................. 585 E. The State's Role in Settlement Negotiations ............ 588 V. THE ELEVENTH AMENDMENT ............................. 589 A. Eleventh Amendment Protection ...................... 590 B. Exceptions to Eleventh Amendment Immunity .......... 593 1. Consent ........................................ 593 2. The Ex ParteYoung Fiction and Prospective Injunctive Relief ................................ 594 3. Abrogation Under the Fourteenth Amendment ...... 597 4. Abrogation Under Article I ................... 598 a. Pennsylvania v. Union Gas Co................ 599 b. Blatchford v. Native Village of Noatak ......... 605 c. Abrogation Under the Indian Commerce Clause ... ................................. 609 VI. THE IMPACT OF THE STATES' ELEVENTH AMENDMENT IMMUNITY ON RESOLVING INDIAN LAND CLAIMS .......... 612 A. Land Claim Actions Against the State ................ 612 B. Actions Against State Officials to Enforce Property Rights ............................................. 615 C. Land Claim Actions Against Non-State Landholders ... 617 D. Impact on Land Claim Settlements .................... 619 VII. CONCLUSION .......................................... 623 I. INTRODUCTION It can be argued that the Indian right to aboriginal land is fundamental because land is the basis of all things Indian. The relationship of a tribe to its land defines the tribe: its identity, its culture, its way of life, and its methods of adap- tation. Since tribal existence is central to personal Indian selfhood, the very existence of an Indian people is largely dependent on the recognition and protection of Indian property rights.1 You are not hostages in our house. We don't hold you here. But we do recognize the fact that you are in our house. We have people who are working on settling the dispute as to how you should live in our house.2 1. Nell Jessup Newton, FederalPower over Indians: Its Sources, Scope, and Limita- tions, 132 U. PA. L. REiv. 195, 252 (1984). 2. Irving Powless, Jr., The Sovereignty and Land Rights of the Houdenosaunee, in https://digitalcommons.law.villanova.edu/vlr/vol39/iss3/1 2 Nelson: Resolving Native American Land Claims and the Eleventh Amendment: 1994] CHANGING THE BALANCE OF POWER S the United States looks forward to the twenty-first century, any localities still face Native American land claims. Some of these claims are over 200 years old. The United States Supreme Court's 1991 holding in Blatchford v. Native Village of Noatak3 -that the states enjoy Eleventh Amendment immunity from suits by In- dian tribes 4-may further hinder settlement of these disputes be- cause it alters the balance of power between the states and Native claimants. Federal common law, statutes and treaties recognize and pro- tect Native American rights to occupy and use tribal lands.5 These are among the most important interests that Native Americans hold and still form the basis for much of today's Indian policy. Unfortu- nately, the sorry history of Indian relations in this country has too often been, and continues to be, marred by government and pri- 6 vate exploitation of Native American property rights. Native Americans have a unique status in the United States that is unlike other ethnic and racial minorities. They are neither assim- ilated nor independent sovereigns. Instead, Indian tribes are con- sidered "dependent domestic nations."7 As such, their ability to IROQUOIS LAND CLAIMS 155, 160-61 (Christopher Vecsey & William A. Stama eds., 1988) (The author is a chief of the Houdenosaunee [Iroquois Confederacy] Grand Council). 3. 501 U.S. 775 (1991). 4. Id. at 782-88. 5. See, e.g., Indian Trade and Intercourse Act, 25 U.S.C. § 177 (1988) [herein- after Nonintercourse Act] (barring alienation of Native American lands without federal government's consent); Treaty at Canandaigua, Nov. 11, 1794, U.S.-Six Na- tions, art. II, III, 7 Stat. 44 (acknowledging lands reserved to Oneida, Onondaga, Cayuga and Seneca Nations in New York State); Treaty of Fort Stanwix, Oct. 22, 1784, U.S.-Six Nations, art. II, III, 7 Stat. 15 (securing Iroquois Confederacy Na- tions' possession of their lands within what is now New York State); County of Oneida v. Oneida Indian Nation, 470 U.S. 226, 233-40 (1985) [hereinafter Oneida II] (recognizing cause of action under federal common law); Oneida Indian Na- tion v. County of Oneida, 414 U.S. 661, 669-70 (1974) [hereinafter Oneida 1] (find- ing federal question jurisdiction). 6. Modem' day examples include usurping reservation water rights, deposit- ing hazardous wastes on tribal lands and taking tribal land by eminent domain for public works projects. 7. Chief Justice John Marshall described Indian tribes as follows: Though the Indians are acknowledged to have an unquestionable, and heretofore unquestioned, right to the lands they occupy, until that right shall be extinguished by a voluntary cession to our government; yet it may well be doubted, whether those tribes which reside within the ac- knowledged boundaries of the United States can, with strict accuracy, be denominated foreign nations. They may, more correctly, perhaps, be de- nominated domestic dependent nations. They occupy a territory to which we assert a title independent of their will, which must take effect in point of possession, when their right of possession ceases. Meanwhile, Published by Villanova University Charles Widger School of Law Digital Repository, 1994 3 Villanova Law Review, Vol. 39, Iss. 3 [1994], Art. 1 VILLANOVA LAW REviEW [Vol. 39: p. 525 protect their rights has often been limited.8 Until relatively re- cently, tribal access to the federal judicial system was restricted or nonexistent. Indian tribes were often forced to rely on the federal government to assert their rights under the Indian/government trust doctrine or resort to self-help. In 1966, Congress enacted the Indian jurisdiction statute. 9 This statute gave the federal district courts original jurisdiction over civil claims by recognized Indian tribes arising under the Constitu- tion, laws or treaties of the United States, without regard to the amount in controversy.10 In the 1970s, tribes began filing actions in federal court asserting possessory rights to millions of acres of an- cestral land long since acquired by the states and currently occu- pied by private citizens, businesses, municipalities, counties and the states.1 In a series of decisions culminating with County of Oneida v. Oneida Indian Nation (Oneida I1),12 the United States Supreme Court eliminated most of the procedural hurdles that had plagued Indian land claims. It soon became apparent that many of these