Why did RBG regret her 2005 opinion in Sherrill, NY v. Oneida? PS I’m glad she did.

According to The Buffalo Chronicle published on May 5, 2020, “More than any other case, Ginsberg [sic] regrets her decision in Oneida vs Sherill (2005) — a case in which she drafted a majority 8-to-1 opinion that Native Americans have viewed as a callously racist denial of justice ever since.” I think it would be extremely helpful to know the whys and wherefores of her regret. Perhaps the “close legal colleagues” mentioned in the article will be forthcoming, sooner rather than later.

The good news is that I am not alone in being a non-Native American who is still bothered by this opinion and who is seeking justice from this ill-considered opinion. Thanks to a Twitter correspondent, I recently learned about Prof. Michael Oberg’s work as a history professor at SUNY-Geneseo and an advocate for justice for living Native Americans. In 2017, on the anniversary of the 2005 Sherrill v. Oneida opinion, Prof. Oberg posted a blog that ended with these three paragraphs:

On the Notorious RBG and Sherrill
by Michael Oberg

“In Sherrill, the issue was whether the Oneida Indian Nation would pay taxes to the City of Sherrill on lands the Nation owned, that stood within the bounds of its historic reservation, and that they originally had lost through illegal transactions.  Where is the disruption?  The Oneidas were dispossessing nobody.  They were imposing their authority over no one.  They were merely buying back lands that had been illegally acquired from them two centuries before.  And Ginsburg thought this was too disruptive.  That it was not fair.  The Oneidas sought not redress for waves of epidemic disease, or the military invasions of their homeland, or dispossession, or diaspora, but merely the chance to purchase the land and rebuild their nation.

“Ginsburg accepted the premise that New York had acquired these lands in a manner that violated the law.  She refused to allow any remedy.  And with lower courts applying her ruling even more broadly to dismiss all Iroquois land claims, Ginsburg essentially validated illegal acts and excused the state’s misdeeds.

“Ginsburg has written some helpful and valuable opinions in my view, but not in this case.  The Supreme Court is not a promising arena for native peoples to look to for the resolution of their claims.  And Sherrill, it was among the worst. It was a cowardly and cynical decision. Yeah, Justice Ginsburg seemed to say, your lands were taken from you illegally.  But even if the law says those sales are of no effect, there is nothing we can do for you now. It would not be fair.  Not to the white people who make up the majority of the population in the claim area.  History, and the law, are written by the winners.  You are out of luck.”

After Justice Ginsburg died in Sept. 2020, Prof. Oberg re-posted his blog. On Jan. 2, 2021, I posted a comment to his blog. As it was a fairly long comment and the software doesn’t maintain paragraphing, I am re-posting my comment here.

Comment by Debbie Hillman
Posted Jan. 2, 2021
re On the Notorious RBG and Sherrill
a blogpost by Prof. Michael Oberg

Thanks for posting & reposting and for the discussion. I would like to focus on two problems with the Oneida-Sherrill opinion as written by Ruth Bader Ginsburg. Both problems derive from her citation in Footnote #1 — the Doctrine of Discovery.

As a Jew and a lifelong lover of the U.S. ideals that I learned in 7th grade (1963) and of the Constitution that was supposed to embody those ideals, I see these two problems:

1. Ruth Bader Ginsburg was a practicing Jew and a strong advocate for civil rights as broadly understood and exemplified by the ACLU. Surely this must have included the clear separation of organized religion (“church”) from the state. How could she even consider citing Catholic doctrine in a Supreme Court opinion? (Yes, it was already a SCOTUS precedent.) Did she ever discuss this with other Jews?

2. The Doctrine of Discovery was a series of papal edicts written in the 1400s, well before 1776, when the U.S. was founded, and before 1789 when the U.S. Constitution was adopted. How do law schools rationalize this? 

Yes, I believe that English common law is often cited in SCOTUS decisions. Now, at the age of 69, I have the same question. If the U.S. was such a “new” idea, why not a clean break with all human history? 

(Tangentially, I wonder if SCOTUS has ever cited the Great Law of Peace as a precedent in an opinion.)

As Prof. Oberg notes, there is evidence that RBG regretted her 2005 Oneida decision. So far as I can tell, no specifics have been released by anyone who might know the details. I personally think that two events in late 2016 might have had a direct influence on causing her to rethink the 2005 opinion:
—The protests at Standing Rock, which opened many U.S. people’s eyes about indigenous sovereignty.
—The Nov. 3, 2016 article by Steven Newcomb (Shawnee, Lenape), Jews & Doctrine of Discovery.

As a grassroots activist supporting recent proposals for a U.S. “truth & healing” commission, I would include the Doctrine of Discovery as an important topic to be discussed by any such commission.

(Of note, there seems to be a growing worldwide movement to address the Doctrine of Discovery as it has affected many indigenous peoples and lands. I certainly support that movement.)
END OF COMMENT

NEXT STEPS?
Why did RBG regret the Sherrill v. Oneida decision?
How can we rectify the decision?

Are there any “close legal colleagues” of Justice Ginsburg who can share any details about her regret for the 2005 decision? Could those details inform future policy-making, through:
–a law passed by Congress
–a rule by the U.S. Dept. of the Interior (especially if the department will be led by U.S. Rep. Deb Haaland)
–state, county, or municipal legislative action
–court cases
–the goodwill of the U.S. people, as expressed through a U.S. “truth & healing” commission (for example, as proposed by U.S. Rep. Barbara Lee in June 2020 Are truth, racial healing and transformation in this country’s future?)

RESOURCES re
—SCOTUS CASE Sherrill v. Oneida
—SCOTUS JUSTICE Ruth Bader Ginsburg & Indigenous Americans

For those who want to learn more about the 2005 case.
City of Sherrill v. Oneida Indian Nation of New York
Summary: Facts of the case, Question, Conclusion

Footnote #1 of Sherrill v. Oneida re Doctrine of Discovery (page 3)
Under the “doctrine of discovery,” County of Oneida v. Oneida Indian Nation of N. Y., 470 U.S. 226, 234 (1985) (Oneida II), “fee title to the lands occupied by Indians when the colonists arrived became vested in the sovereign–first the discovering European nation and later the original States and the United States,” Oneida Indian Nation of N. Y. v. County of Oneida, 414 U.S. 661, 667 (1974) (Oneida I). In the original 13 States, “fee title to Indian lands,” or “the pre-emptive right to purchase from the Indians, was in the State.” Id., at 670; see Oneida Indian Nation of N. Y. v. New York, 860 F.2d 1145, 1159—1167 (CA2 1988). Both before and after the adoption of the Constitution, New York State acquired vast tracts of land from Indian tribes through treaties it independently negotiated, without National Government participation. See Gunther, Governmental Power and New York Indian Lands–A Reassessment of a Persistent Problem of Federal-State Relations, 8 Buffalo L. Rev. 1, 4—6 (1959) (hereinafter Gunther).

Jews & Doctrine of Discovery: On Justice Ruth Bader Ginsburg’s Book, My Own Words
by Steven Newcomb
Nov. 3, 2016, Indian Country Today
Steven Newcomb (Shawnee, Lenape) is co-founder and co-director of the Indigenous Law Institute, and author of Pagans in the Promised Land: Decoding the Doctrine of Christian Discovery (Fulcrum, 2008). He is a producer of the documentary movie, The Doctrine of Discovery: Unmasking the Domination Code.

Ruth Bader Ginburg wants Trump to point a Native American woman to the Supreme Court
Buffalo Chronicle, May 5, 2020

Fact check: Ruth Bader Ginsburg had “mixed” record on tribal law, Native American sovereignty
by Camille Caldera
USA Today Sept. 22, 2020
Very good overview.

RBG: Even in death Ruth Bader Ginsburg outs misogyny — in a candidate for U.S. president
by Debbie Hillman
Food, Farms, Democracy — Sept. 2020

Awareness and call to action on the negative implications of the Doctrine of Discovery on humanity and planet Earth
A petition initiated by 2020 Green Party candidate for president, Sedinam Kinamo Christin Moyowasifza-Curry addressed to:
–Catholic Church
–all European monarchies
–the United States
–Donald Trump
–Queen of England
To promote a “Global Day of Rejection and Repudiation of the Doctrine of Discovery”.