CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

No. 03-855.Argued January 11, 2005--Decided March 29, 2005

Respondent Oneida Indian Nation of New York (OIN or Tribe) is a direct descendant of the Oneida Indian Nation (Oneida Nation), whose aboriginal homeland, at the Nation's birth, comprised some six million acres in what is now central New York State (State). See, e.g., Oneida Indian Nation of N. Y. v. County of Oneida, 414 U. S. 661, 664 (Oneida I). In 1788, the State and the Oneida Nation entered into a treaty whereby the Oneidas ceded all their lands to the State, but retained a reservation of about 300,000 acres for their own use. See County of Oneida v. Oneida Indian Nation of N. Y., 470 U. S. 226, 231 (Oneida II). The Federal Government initially pursued a policy protective of the New York Indians. In 1790, Congress passed the first Indian Trade and Intercourse Act (Nonintercourse Act), barring sales of tribal land without the Government's acquiescence. And in the 1794 Treaty of Canandaigua, the United States "acknowledge[d]" the Oneidas' 300,000-acre reservation and guaranteed their "free use and enjoyment" of the reserved territory. Act of Nov. 11, 1794, 7 Stat. 44, 45, Art. III. Nevertheless, New York continued to purchase reservation land from the Oneidas. Although the Washington administration objected, later administrations made not even a pretense of interfering with New York's purchases, and ultimately pursued a policy designed to open reservation lands to white settlers and to remove tribes westward. Pressured by the removal policy, many Oneidas left the State. Those who stayed continued to diminish in number and, during the 1840's, sold most of their remaining lands to New York. By 1920, the New York Oneidas retained only 32 acres in the State.

Although early litigation over Oneida land claims trained on monetary recompense from the United States for past deprivations, the Oneidas ultimately shifted to suits against local governments. In 1970, they filed a federal "test case" against two New York counties, alleging that the cession of 100,000 acres to the State in 1795 violated the Nonintercourse Act and thus did not terminate the Oneidas' right to possession. They sought damages measured by the fair rental value, for the years 1968 and 1969, of 872 acres of their ancestral land owned and occupied by the two counties. The District Court, affirmed by the Court of Appeals, dismissed the complaint for failure to state a federal claim. This Court reversed in Oneida I, 414 U. S., at 675, 682, holding that federal jurisdiction was properly invoked. After the Oneidas prevailed in the lower courts, this Court held, inter alia, that the Oneidas could maintain their claim to be compensated "for violation of their possessory rights based on federal common law," Oneida II, 470 U. S., at 236, but reserved "[t]he question whether equitable considerations should limit the relief available to present day Oneida Indians," id., at 253, n. 27.

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