City of Sherrill v. Oneida Indian Nation of New York

OPINION OF THE COURT CITY OF SHERRILL V. ONEIDA INDIAN NATION OF N.&NBSP;Y. 544 U. S. ____ (2005) SUPREME COURT OF THE UNITED STATES NO. 03-855 CITY OF SHERRILL, NEW YORK, PETITIONER v. ONEIDA INDIAN NATION OF NEW YORK et al.

															on writ of certiorari to the united states court of
appeals for the second circuit

															[March 29, 2005]

															   Justice Ginsburg delivered the
opinion of the Court.

															   This case concerns properties in
the city of Sherrill, New York, purchased by the Oneida Indian
Nation of New York (OIN or Tribe) in 1997 and 1998. The separate
parcels of land in question, once contained within the Oneidas’
300,000-acre reservation, were last possessed by the Oneidas as a
tribal entity in 1805. For two centuries, governance of the area in
which the properties are located has been provided by the State of
New York and its county and municipal units. In County of
Oneida v. Oneida Indian Nation of N. Y., 470 U. S. 226 (1985) (Oneida
II) , this Court held that the Oneidas stated a triable claim
for damages against the County of Oneida for wrongful possession of
lands they conveyed to New York State in 1795 in violation of
federal law. In the instant action, OIN resists the payment of
property taxes to Sherrill on the ground that OIN’s acquisition of
fee title to discrete parcels of historic reservation land revived
the Oneidas’ ancient sovereignty piecemeal over each parcel.
Consequently, the Tribe maintains, regulatory authority over OIN’s
newly purchased properties no longer resides in Sherrill.

															   Our 1985 decision recognized that the Oneidas
could maintain a federal common-law claim for damages for ancient
wrongdoing in which both national and state governments were
complicit. Today, we decline to project redress for the Tribe into
the present and future, thereby disrupting the governance of
central New York’s counties and towns. Generations have passed
during which non-Indians have owned and developed the area that
once composed the Tribe’s historic reservation. And at least since
the middle years of the 19th century, most of the Oneidas have
resided elsewhere. Given the longstanding, distinctly non-Indian
character of the area and its inhabitants, the regulatory authority
constantly exercised by New York State and its counties and towns,
and the Oneidas’ long delay in seeking judicial relief against
parties other than the United States, we hold that the Tribe cannot
unilaterally revive its ancient sovereignty, in whole or in part,
over the parcels at issue. The Oneidas long ago relinquished the
reins of government and cannot regain them through open-market
purchases from current titleholders.

															I

															A

															   OIN is a federally recognized
Indian Tribe and a direct descendant of the Oneida Indian Nation
(Oneida Nation), “one of the six nations of the Iroquois, the most
powerful Indian Tribe in the Northeast at the time of the American
Revolution.” Id. , at 230. At the birth of the United
States, the Oneida Nation’s aboriginal homeland comprised some six
million acres in what is now central New York. Ibid.; Oneida Indian Nation of N. Y. v. County of
Oneida, 414 U. S. 661 , 664 (1974) (Oneida
I) .

															   In the years after the
Revolutionary War, “the State of New York came under increasingly
heavy pressure to open the Oneidas’ land for settlement.” Oneida II , 470 U. S., at 231. Reflective of that pressure,
in 1788, New York State and the Oneida Nation entered into the
Treaty of Fort Schuyler. For payments in money and kind, the
Oneidas ceded to New York “all their lands.” App. to Pet. for Cert.
A136. Of the vast area conveyed, “[t]he Oneidas retained a
reservation of about 300,000 acres,” Oneida II , 470 U. S.,
at 231, “for their own use and cultivation,” App. to Pet. for Cert.
A137 (internal quotation marks omitted).[ Footnote 1 ] OIN does not here contest the legitimacy of
the Fort Schuyler conveyance or the boundaries of the reserved
area.

															   The Federal Government initially pursued a
policy protective of the New York Indians, undertaking to secure
the Tribes’ rights to reserved lands. See Oneida II , 470
U. S., at 231–232; Oneida I , 414 U. S., at 667; F. Cohen,
Handbook of Federal Indian Law 418–419 (1942 ed.); F. Cohen,
Handbook of Federal Indian Law 73–74 (1982 ed.) (hereinafter
Handbook). In 1790, Congress passed the first Indian Trade and
Intercourse Act, commonly known as the Nonintercourse Act. Act of
July 22, 1790, ch. 33, 1 Stat. 137. Periodically renewed, see Oneida I , 414 U. S., at 667–668, and n. 4, and
remaining substantially in force today, see Rev. Stat. §2116, 25 U.
S. C. §177, the Act bars sales of tribal land without the
acquiescence of the Federal Government.[ Footnote 2 ] In 1794, in further pursuit of its protective
policy, the United States entered into the Treaty of Canandaigua
with the Six (Iroquois) Nations. Act of Nov. 11, 1794, 7 Stat. 44.
That treaty both “acknowledge[d]” the Oneida Reservation as
established by the Treaty of Fort Schuyler and guaranteed the
Oneidas’ “free use and enjoyment” of the reserved territory. Id. , at 45, Art. II. The Oneidas in turn agreed they would
“never claim any other lands within the boundaries of the United
States.” Id., at 45, Art. IV.

															   New York State nonetheless continued to
purchase reservation land from the Oneidas. The Washington
administration objected to New York’s 1795 negotiations to buy
100,000 acres of the Oneidas’ Reservation without federal
supervision. Oneida II , 470 U. S., at 229, 232. Later
administrations, however, “[made not] even a pretense of
interfer[ing] with [the] State’s attempts to negotiate treaties
[with the Oneidas] for land cessions.” Oneida Nation of
N. Y. v. United States , 43 Ind. Cl. Comm’n 373,
385 (1978); see also id. , at 390; Campisi, The Oneida
Treaty Period, 1783–1838, in The Oneida Indian Experience: Two
Perspectives 48, 59 (J. Campisi & L. Hauptman eds. 1988)
(hereinafter Campisi). See generally Gunther 6 (“New York acquired
much land from Indians through treaties—perhaps as many as 200—not
participated in, though apparently known and not objected to, by
the national government.” (footnote omitted)).

															   The Federal Government’s policy soon veered
away from protection of New York and other east coast reservations.
In lieu of the commitment made in the Treaty of Canandaigua, the
United States pursued a policy designed to open reservation lands
to white settlers and to remove tribes westward. D. Getches, C.
Wilkinson, & R. Williams, Cases and Materials on Federal Indian
Law 94 (4th ed. 1998) (After the Louisiana Purchase in 1803,
federal policymakers “began to debate the tactics of inducing
[eastern Indians] to exchange their remaining ancestral lands for a
permanent territory in the West.”). As recounted by the Indian
Claims Commission in 1978, early 19th-century federal Indian agents
in New York State did not simply fail to check New York’s land
purchases, they “took an active role … in encouraging the removal
of the Oneidas … to the west.” Oneida Nation of
N. Y. , 43 Ind. Cl. Comm’n, at 390; see id. , at
391 (noting that some federal agents were “deeply involved” in
“plans … to bring about removal of the [Oneidas]” and in the
State’s acquisition of Oneida land). Beginning in 1817, the Federal
Government accelerated its efforts to remove Indian tribes from
their east coast homelands. Handbook 78–79, and n. 142.

															   Pressured by the removal policy to leave their
ancestral lands in New York, some 150 Oneidas, by 1825, had moved
to Wisconsin. Horsman, The Wisconsin Oneidas in the Preallotment
Years, in The Oneida Indian Experience, supra , at 65, 67.
In 1838, the Oneidas and the United States entered into the Treaty
of Buffalo Creek, which envisioned removal of all remaining New
York Indians, including the Oneidas, to Kansas. Act of Jan. 15,
1838, 7 Stat. 550. By this time, the Oneidas had sold all but 5,000
acres of their original reservation. 337 F. 3d 139, 149 (CA2
2003). Six hundred of their members resided in Wisconsin, while 620
remained in New York State. 7 Stat. 556 (Sched. A).

															   In Article 13 of the Buffalo Creek Treaty, the
Oneidas agreed to remove to the Kansas lands the United States had
set aside for them “as soon as they c[ould] make satisfactory
arrangements” for New York State’s “purchase of their lands at
Oneida.” Id. , at 554. As a condition of the treaty’s
ratification, the Senate directed that a federal commissioner
“fully and fairly explai[n]” the terms to each signatory tribe and
band. New York Indians v. United States , 170 U. S. 1 , 21–22 (1898). Commissioner
Ransom H. Gillet, who had originally negotiated the treaty terms
with the Oneidas, met with them again and assured them they would
not be forced to move but could remain on “their lands where
they reside ,” i.e. , they could “if they ch[ose] to do
so remain where they are forever.” App. 146 (emphases
added).

															   The Oneidas who stayed on in New York after
the proclamation of the Buffalo Creek Treaty continued to diminish
in number and, during the 1840’s, sold most of their remaining
lands to the State. New York Indians v. United
States , 40 Ct. Cl. 448, 458, 469–471 (1905). A few hundred
Oneidas moved to Canada in 1842, id. , at 458, and “by the
mid-1840s, only about 200 Oneidas remained in New York State,”
Introduction to Part I, The Oneida Indian Journey: From New York to
Wisconsin, 1784–1860, pp. 9, 13 (L. Hauptman & L. McLester
eds. 1999). By 1843, the New York Oneidas retained less than 1,000
acres in the State. Campisi 61. That acreage dwindled to 350 in
1890; ultimately, by 1920, only 32 acres continued to be held by
the Oneidas. Ibid. The United States eventually abandoned its
efforts to remove the New York Indians to Kansas. In 1860, the
Federal Government restored the Kansas lands to the public domain,
and sold them thereafter. New York Indians , 170 U. S., at
24, 28–29, 31.

															B

															   Early litigation concerning the
Oneidas’ land claims trained on monetary recompense from the United
States for past deprivations. In 1893, the United States agreed to
be sued for disposing of the Kansas lands to settlers, and the
Oneidas in New York shared in the resulting award of
damages. See New York Indians , 170 U. S. 1 ; New York Indians ,
40 Ct. Cl. 448 (identifying the Tribes qualified to share in the
distribution of the sum recovered). Seeking further
compensation from the United States a half century later, the New
York and Wisconsin Oneidas initiated proceedings before the Indian
Claims Commission in 1951. Oneida Indian Nation of
N. Y. v. County of Oneida , 622 F. 2d 624,
626 (CA2 1980). They sought redress for lands New York had acquired
through 25 treaties of cession concluded between 1795 and 1846. The
Oneidas alleged, and the Claims Commission agreed, that under the
Nonintercourse Act of 1790 and successor statutes, the Federal
Government had a fiduciary duty to assure that the Oneidas received
from New York “conscionable consideration” for the lands in
question. Oneida Nation of N. Y. v. United
States , 26 Ind. Cl. Comm’n 138, 145 (1971). The Court of
Claims affirmed the Commission’s core determination, but held that
the United States’ duty extended only to land transactions of which
the Government had knowledge. United States v. Oneida
Nation of N. Y. , 201 Ct. Cl. 546, 554, 477 F. 2d
939, 944 (1973). Accordingly, the Court of Claims directed the
Commission to determine whether the Government actually or
constructively knew of the land transactions at issue. Id. , at 555, 477 F. 2d, at 945. On remand, the Commission found
that the Federal Government had actual or constructive knowledge of
all of the treaties and would be liable if the Oneidas had not
received conscionable consideration. Oneida Nation of
N. Y. , 43 Ind. Cl. Comm’n, at 375, 406–407. The
Commission anticipated further proceedings to determine the Federal
Government’s ultimate liability, but the Oneidas had by then
decided to pursue a different course. On the Oneidas’ request, the
Court of Claims dismissed the proceedings. See Oneida Nation of
N. Y. v. United States , 231 Ct. Cl. 990, 991
(1982) (per curiam) . In lieu of concentrating on
recovery from the United States, the Oneidas pursued suits against
local governments. In 1970, the Oneidas of New York and Wisconsin,
asserting federal-question jurisdiction under 28 U. S. C.
§1331 or §1362, instituted a “test case” against the New York
Counties of Oneida and Madison. They alleged that the cession of
100,000 acres to New York State in 1795, see supra , at 4,
violated the Nonintercourse Act and thus did not terminate the
Oneidas’ right to possession under the applicable federal treaties
and statutes. In this initial endeavor to gain compensation from
governmental units other than the United States, the Oneidas
confined their demand for relief. They sought only 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
Oneidas’ complaint for failure to state a claim arising under
federal law. We reversed that determination, holding that federal
jurisdiction was properly invoked. Oneida I, 414 U. S., at
675, 682. In the next round, the Oneidas
prevailed in the lower courts. On review in Oneida II , we
rejected various defenses the counties presented that might have
barred the action for damages, 470 U. S., at 240–250, and held that
the Oneidas could maintain their claim to be compensated “for
violation of their possessory rights based on federal common law,” id. , at 236. While upholding the judgment of the Court of
Appeals regarding the counties’ liability under federal common law,
we noted that “[t]he question whether equitable considerations
should limit the relief available to the present day Oneida Indians
was not addressed by the Court of Appeals or presented to this
Court.” Id. , at 253, n. 27. Accordingly, “we
express[ed] no opinion as to whether other considerations m[ight]
be relevant to the final disposition of this case.” Ibid. On remand, the District Court entered a final judgment which fixed
the amount of damages payable by the counties. Allowing setoffs for
the counties’ good-faith improvements to the land, the court
ordered recoveries of $15,994 from Oneida County and $18,970 from
Madison County, plus prejudgment interest. Oneida Indian Nation
of N. Y. v. County of Oneida , 217 F. Supp.
2d 292, 310 (NDNY 2002). In 2000, litigation resumed in an
action held in abeyance during the pendency of the test case. In
that revitalized action, the Oneidas sought damages from Oneida and
Madison Counties for a period spanning over 200 years. The amended
complaint alleged that, through a series of agreements concluded
during the years 1795 to 1846, approximately 250,000 acres of the
Oneidas’ ancestral land had been unlawfully conveyed to New York. Oneida Indian Nation of N. Y. v. County of
Oneida , 199 F. R. D. 61, 66–68 (NDNY
2000). The Oneidas further sought to
enlarge the action by demanding recovery of land they had not
occupied since the 1795–1846 conveyances.[ Footnote 3 ] They attempted to join as defendants, inter alia , approximately 20,000 private landowners, and
to obtain declaratory relief that would allow the Oneidas to eject
these landowners. Id. , at 67–68.[ Footnote 4 ] The District Court refused permission to
join the landowners so late in the day, resting in part on the
Oneidas’ bad faith and undue delay. Id. , at 79–85.
Further, the court found the proposed amendment “futile.” Id. , at 94. In this regard, the court emphasized the
“sharp distinction between the existence of a federal
common law right to Indian homelands,” a right this Court
recognized in Oneida II , “and how to vindicate that right.” 199 F. R. D., at 90. That distinction “must
be drawn,” the court stated, ibid. , for in the two
centuries since the alleged wrong, “development of every type
imaginable has been ongoing,” id. , at 92. Referring to the
“practical concerns” that blocked restoration of Indians to their
former lands, the court found it high time “to transcend the
theoretical.” Ibid. Cases of this genre, the court
observed, “cr[ied] out for a pragmatic approach.” Ibid. The District Court therefore excluded the imposition of any
liability against private landowners. Id. , at
93–95. This brings us to the present
case, which concerns parcels of land in the city of Sherrill,
located in Oneida County, New York. According to the 2000 census,
over 99% of the population in the area is non-Indian: American
Indians represent less than 1% of the city of Sherrill’s population
and less than 0.5% of Oneida County’s population. U. S. Dept. of
Commerce, Census Bureau, 2000 Census of Population and Housing,
Summary Population and Housing Characteristics: New York, 2000
PHC–1–34, Table 3, p. 124 (July 2002), available at http://
www.census.gov/prod/cen2000/phc-1-34.pdf (as visited Mar. 24, 2005,
and available in the Clerk of Court’s case file). OIN owns
approximately 17,000 acres of land scattered throughout the
Counties of Oneida and Madison, representing less than 1.5% of the
counties’ total area. OIN’s predecessor, the Oneida Nation, had
transferred the parcels at issue to one of its members in 1805, who
sold the land to a non-Indian in 1807. The properties thereafter
remained in non-Indian hands until OIN’s acquisitions in 1997 and
1998 in open-market transactions. See 337 F. 3d, at 144,
n. 3. OIN now operates commercial enterprises on these
parcels: a gasoline station, a convenience store, and a textile
facility. Id. , at 144. Because the parcels lie within the
boundaries of the reservation originally occupied by the Oneidas,
OIN maintained that the properties are exempt from taxation, and
accordingly refused to pay the assessed property taxes. The city of
Sherrill initiated eviction proceedings in state court, and OIN
sued Sherrill in federal court. In contrast to Oneida I and II , which involved demands for monetary compensation,
OIN sought equitable relief prohibiting, currently and in the
future, the imposition of property taxes. OIN also sued Madison
County, seeking a declaration that the Tribe’s properties in
Madison are tax exempt. The litigation involved a welter of claims
and counterclaims. Relevant here, the District Court concluded that
parcels of land owned by the Tribe in Sherrill and Madison are not
taxable. See 145 F. Supp. 2d 226, 254–259 (NDNY 2001). A divided panel of the Second
Circuit affirmed. 337 F. 3d 139. Writing for the majority,
Judge Parker ruled that the parcels qualify as “Indian country,” as
that term is defined in 18 U. S. C. §1151,[ Footnote 5 ] because they fall within the
boundaries of a reservation set aside by the 1794 Canandaigua
Treaty for Indian use under federal supervision. 337 F. 3d, at
155–156; see supra , at 4. The court further held that the
Buffalo Creek Treaty did not demonstrate a clear congressional
purpose to disestablish or diminish the Oneida Reservation. 337
F. 3d, at 161, 165; see supra , at 5–6. Finally, the
court found no legal requirement “that a federally recognized tribe
demonstrate its continuous existence in order to assert a claim to
its reservation land.” 337 F. 3d, at 165. In any case, the
court held, the record demonstrated OIN’s continuous tribal
existence. Id. , at 166–167. Judge Van Graafeiland
dissented as to the majority’s primary holding. In his view, the
record raised a substantial question whether OIN had “forfeited”
its aboriginal rights to the land because it abandoned “its tribal
existence … for a discernable period of time.” Id. , at
171. We granted the city of Sherrill’s
petition for a writ of certiorari, 542 U. S. ___ (2004), and now
reverse the judgment of the Court of Appeals. II OIN and the United
States argue that because the Court in Oneida II recognized the Oneidas’ aboriginal title to their ancient
reservation land and because the Tribe has now acquired the
specific parcels involved in this suit in the open market, it has
unified fee and aboriginal title and may now assert sovereign
dominion over the parcels. Brief for Respondents 1, 12–19; Brief
for United States as Amicus Curiae 9–10. When the Oneidas
came before this Court 20 years ago in Oneida II , they
sought money damages only. 470 U. S., at 229; see also id., at 244, n. 16 (recognizing that the suit was an
“action at law”). The Court reserved for another day the question
whether “equitable considerations” should limit the relief
available to the present-day Oneidas. Id., at 253,
n. 27; supra , at 9.[ Footnote 6 ] “The substantive
questions whether the plaintiff has any right or the defendant any
duty, and if so what it is, are very different questions from the
remedial questions whether this remedy or that is preferred, and
what the measure of the remedy is.” D. Dobbs, Law of Remedies §1.2,
p. 3 (1973); see also Navajo Tribe of Indians v. New Mexico , 809 F. 2d 1455, 1467 (CA10 1987) (“The
distinction between a claim or substantive right and a remedy is
fundamental.”). “[S]tandards of federal Indian law and federal
equity practice” led the District Court, in the litigation revived
after Oneida II , see supra , at 9–10, to reject
OIN’s plea for ejectment of 20,000 private landowners. Oneida
Indian Nation of N. Y. , 199 F. R. D., at 90
(internal quotation marks omitted); ibid. (“[T]here is a
sharp distinction between the existence of a federal
common law right to Indian homelands and how to vindicate that right … .”). In this action, OIN seeks declaratory and
injunctive relief recognizing its present and future sovereign
immunity from local taxation on parcels of land the Tribe purchased
in the open market, properties that had been subject to state and
local taxation for generations.[ Footnote 7 ] We now reject the unification theory of OIN
and the United States and hold that “standards of federal Indian
law and federal equity practice” preclude the Tribe from rekindling
embers of sovereignty that long ago grew cold.[ Footnote 8 ] The appropriateness of the relief
OIN here seeks must be evaluated in light of the long history of
state sovereign control over the territory. From the early 1800’s
into the 1970’s, the United States largely accepted, or was
indifferent to, New York’s governance of the land in question and
the validity vel non of the Oneidas’ sales to the State.
See generally Gunther 23–25 (attributing much of the confusion and
conflict in the history of New York Indian affairs to “Federal
inattention and ambivalence”). In fact, the United States’ policy
and practice through much of the early 19th century was designed to
dislodge east coast lands from Indian possession. See supra , at 5–6. Moreover, the properties here involved have
greatly increased in value since the Oneidas sold them 200 years
ago. Notably, it was not until lately that the Oneidas sought to
regain ancient sovereignty over land converted from wilderness to
become part of cities like Sherrill. See supra , at 9–12; Oneida II , 470 U. S., at 264–265 (Stevens, J., dissenting
in part). This Court has observed in the
different, but related, context of the diminishment of an Indian
reservation that “[t]he longstanding assumption of jurisdiction by
the State over an area that is over 90% non-Indian, both in
population and in land use,” may create “justifiable expectations.” Rosebud Sioux Tribe v. Kneip, 430 U. S. 584 , 604–605
(1977); accord Hagen v. Utah, 510 U. S. 399 , 421
(1994) (“jurisdictional history” and “the current population
situation … demonstrat[e] a practical acknowledgment” of
reservation diminishment; “a contrary conclusion would seriously
disrupt the justifiable expectations of the people living in the
area” (some internal quotation marks omitted)).[ Footnote 9 ] Similar justifiable expectations,
grounded in two centuries of New York’s exercise of regulatory
jurisdiction, until recently uncontested by OIN, merit heavy weight
here.[ Footnote
10 ] The wrongs of which OIN complains
in this action occurred during the early years of the Republic. For
the past two centuries, New York and its county and municipal units
have continuously governed the territory. The Oneidas did not seek
to regain possession of their aboriginal lands by court decree
until the 1970’s. See, supra , at 10, n. 4. And not
until the 1990’s did OIN acquire the properties in question and
assert its unification theory to ground its demand for exemption of
the parcels from local taxation. 337 F. 3d, at 144.[ Footnote 11 ] This long lapse of
time, during which the Oneidas did not seek to revive their
sovereign control through equitable relief in court, and the
attendant dramatic changes in the character of the properties,
preclude OIN from gaining the disruptive remedy it now
seeks. The principle that the passage of
time can preclude relief has deep roots in our law, and this Court
has recognized this prescription in various guises. It is well
established that laches, a doctrine focused on one side’s inaction
and the other’s legitimate reliance, may bar long-dormant claims
for equitable relief. See, e.g., Badger v. Badger, 2 Wall. 87, 94 (1865) (“[C]ourts of equity act
upon their own inherent doctrine of discouraging, for the peace of
society, antiquated demands, refuse to interfere where there has
been gross laches in prosecuting the claim, or long acquiescence in
the assertion of adverse rights.” (internal quotation marks
omitted)); Wagner v. Baird, 7 How. 234, 258
(1849) (same); Bowman v. Wathen, 1 How. 189, 194
(1843) (“[The] doctrine of an equitable bar by lapse of time, so
distinctly announced by the chancellors of England and Ireland, …
should now be regarded as settled law in this court.”). This Court applied the doctrine of
laches in Felix v. Patrick, 145 U. S. 317 (1892), to
bar the heirs of an Indian from establishing a constructive trust
over land their Indian ancestor had conveyed in violation of a
statutory restriction. In the nearly three decades between the
conveyance and the lawsuit, “[a] large part of the tract ha[d] been
platted and recorded as an addition to the city of Omaha, and …
sold to purchasers.” Id., at 326. “[A]s the case stands at
present,” the Court observed, “justice requires only what the law …
would demand—the repayment of the value of the [illegally conveyed]
scrip.” Id., at 334. The Court also recognized the
disproportion between the value of the scrip issued to the Indian
($150) and the value of the property the heirs sought to acquire
(over $1 million). Id., at 333. The sort of changes to the
value and character of the land noted by the Felix Court
are present in even greater magnitude in this suit. Cf. Galliher v. Cadwell, 145 U. S. 368 , 373
(1892) (“[L]aches is not … a mere matter of time; but principally a
question of the inequity of permitting the claim to be enforced—an
inequity founded upon some change in the condition or relations of
the property or the parties.”). As between States, long
acquiescence may have controlling effect on the exercise of
dominion and sovereignty over territory. Ohio v. Kentucky, 410 U. S. 641 , 651
(1973) (“The rule, long-settled and never doubted by this court, is
that long acquiescence by one state in the possession of territory
by another and in the exercise of sovereignty and dominion over it
is conclusive of the latter’s title and rightful authority.”
(quoting Michigan v. Wisconsin, 270 U. S. 295 , 308
(1926))); Massachusetts v. New York, 271 U. S. 65 , 95 (1926)
(“Long acquiescence in the possession of territory and the exercise
of dominion and sovereignty over it may have a controlling effect
in the determination of a disputed boundary.”). The acquiescence
doctrine does not depend on the original validity of a boundary
line; rather, it attaches legal consequences to acquiescence in the
observance of the boundary. California v. Nevada, 447 U. S. 125 ,
131 (1980) (No relationship need exist “between the origins of a boundary and the legal consequences of acquiescence in that boundary… . Longstanding acquiescence
by California and Nevada can give [the boundary lines] the force of
law whether or not federal authorities had the power to draw
them.”). This Court’s original-jurisdiction
state-sovereignty cases do not dictate a result here, but they
provide a helpful point of reference: When a party belatedly
asserts a right to present and future sovereign control over
territory,[ Footnote 12 ]
longstanding observances and settled expectations are prime
considerations. There is no dispute that it has been two centuries
since the Oneidas last exercised regulatory control over the
properties here or held them free from local taxation.
Parcel-by-parcel revival of their sovereign status, given the
extraordinary passage of time, would dishonor “the historic wisdom
in the value of repose.” Oneida II , 470 U. S., at 262
(Stevens, J., dissenting in part). Finally, this Court has recognized
the impracticability of returning to Indian control land that
generations earlier passed into numerous private hands. See Yankton Sioux Tribe v. United States, 272 U. S. 351 , 357
(1926) (“It is impossible … to rescind the cession and restore the
Indians to their former rights because the lands have been opened
to settlement and large portions of them are now in the possession
of innumerable innocent purchasers … .”); Felix, 145
U. S., at 334 (observing, in declining to award equitable relief,
“[t]hat which was wild land thirty years ago is now intersected by
streets, subdivided into blocks and lots, and largely occupied by
persons who have bought upon the strength of Patrick’s title, and
have erected buildings of a permanent character”). The District
Court, in the litigation dormant during the pendency of Oneida
II , see supra , at 9–10, rightly found these pragmatic
concerns about restoring Indian sovereign control over land
“magnified exponentially here, where development of every type
imaginable has been ongoing for more than two centuries.” Oneida Indian Nation of N. Y. , 199
F. R. D., at 92. In this case, the Court of Appeals
concluded that the “impossibility” doctrine had no application
because OIN acquired the land in the open market and does not seek
to uproot current property owners. 337 F. 3d, at 157. But the
unilateral reestablishment of present and future Indian sovereign
control, even over land purchased at the market price, would have
disruptive practical consequences similar to those that led this
Court in Yankton Sioux to initiate the impossibility
doctrine. The city of Sherrill and Oneida County are today
overwhelmingly populated by non-Indians. See supra , at 11.
A checkerboard of alternating state and tribal jurisdiction in New
York State—created unilaterally at OIN’s behest—would “seriously
burde[n] the administration of state and local governments” and
would adversely affect landowners neighboring the tribal patches. Hagen, 510 U. S., at 421 (quoting Solem v. Bartlett, 465 U. S. 463 , 471–472, n. 12
(1984)). If OIN may unilaterally reassert sovereign control and
remove these parcels from the local tax rolls, little would prevent
the Tribe from initiating a new generation of litigation to free
the parcels from local zoning or other regulatory controls that
protect all landowners in the area. See Felix , 145 U. S.,
at 335 (“decree prayed for in this case, if granted, would offer a
distinct encouragement to … similar claims”); cf. Brendale v. Confederated Tribes and Bands of Yakima Nation, 492 U. S. 408 ,
433–437 (1989) (opinion of Stevens, J.) (discussing tribal land-use
controls); post , at 5, n. 6 (Stevens, J., dissenting)
(noting that “the balance of interests” supports continued state
zoning jurisdiction).[ Footnote
13 ] Recognizing these practical
concerns, Congress has provided a mechanism for the acquisition of
lands for tribal communities that takes account of the interests of
others with stakes in the area’s governance and well being. Title
25 U. S. C. §465 authorizes the Secretary of the Interior to
acquire land in trust for Indians and provides that the land “shall
be exempt from State and local taxation.” See Cass County v. Leech Lake Band of Chippewa Indians, 524 U. S. 103 , 114–115 (1998). The
regulations implementing §465 are sensitive to the complex
interjurisdictional concerns that arise when a tribe seeks to
regain sovereign control over territory. Before approving an
acquisition, the Secretary must consider, among other things, the
tribe’s need for additional land; “[t]he purposes for which the
land will be used”; “the impact on the State and its political
subdivisions resulting from the removal of the land from the tax
rolls”; and “[j]urisdictional problems and potential conflicts of
land use which may arise.” 25 CFR §151.10 (2004). Section 465
provides the proper avenue for OIN to reestablish sovereign
authority over territory last held by the Oneidas 200 years
ago. In sum, the question of damages
for the Tribe’s ancient dispossession is not at issue in this case,
and we therefore do not disturb our holding in Oneida II .
However, the distance from 1805 to the present day, the Oneidas’
long delay in seeking equitable relief against New York or its
local units, and developments in the city of Sherrill spanning
several generations, evoke the doctrines of laches, acquiescence,
and impossibility, and render inequitable the piecemeal shift in
governance this suit seeks unilaterally to initiate.[ Footnote 14 ] *** For the reasons
stated, the judgment of the Court of Appeals for the Second Circuit
is reversed, and the case is remanded for further proceedings
consistent with this opinion. It is so ordered. Footnote 1 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). Footnote 2 By its terms, the 1790
Nonintercourse Act governed Indian lands within the boundaries of
the original 13 States. The Act provided “[t]hat no sale of lands
made by any Indians, or any nation or tribe of Indians within the
United States, shall be valid to any person or persons, or to
any state, whether having the right of pre-emption to such lands or
not , unless the same shall be made and duly executed at some
public treaty, held under the authority of the United States.” Act
of July 22, 1790, ch. 33, §4, 1 Stat. 138 (emphasis added). Our
prior decisions state in this regard that, “[w]ith the adoption of
the Constitution, Indian relations became the exclusive province of
federal law.” Oneida II , 470 U. S., at 234 (citing Oneida I , 414 U. S., at 670). See generally Clinton &
Hotopp, Judicial Enforcement of the Federal Restraints on
Alienation of Indian Land: The Origins of the Eastern Land Claims,
31 Me. L. Rev. 17, 23–38 (1979) (discussing Indian relations
under the Articles of Confederation and the
Constitution). Footnote 3 In contrast, United
States v. Boylan , 265 F. 165 (CA2 1920), involved
land the Oneidas never left. Boylan concerned the 1885
conveyances by individual Oneida Indians of a 32-acre tract of
reservation land to non-Indians. Despite the conveyances, a band of
Oneidas continued to live on the land. After a non-Indian gained a
state-court order ejecting the remaining Oneidas, the United States
brought suit on behalf of the Oneidas to reclaim the land. The
Second Circuit observed that the Oneidas were “actually in
possession” of the 32 acres in question, id. , at 167, and
had occupied the land continuously for over a century, id. , at 171. Given that occupation and the absence of
Federal Government approval for the individual Oneidas’
conveyances, the Second Circuit upheld the District Court’s “decree
restoring the ejected Indians to possession.” Id. , at
173–174. Footnote 4 In another lawsuit, commenced in
1978, the Oneidas sought from the State of New York and others both
damages and recovery of land New York had purchased from the
Oneidas in 1785 and 1788. Oneida Indian Nation of
N. Y. , 860 F. 2d, at 1148. The Second Circuit
affirmed the District Court’s dismissal of that action, holding
that treaties between New York and the Oneidas during the years in
which the Articles of Confederation were operative did not require
the assent of Congress. Id. , at 1167; see supra ,
at 3, n. 1. Footnote 5 Titled “Indian country
defined,”18 U. S. C. §1151 provides, in relevant part, that
“the term ‘Indian Country’ . . . means (a) all land within the
limits of any Indian reservation under the jurisdiction of the
United States Government.” Footnote 6 The United States acknowledged in
its brief to the Court in Oneida II that equitable
considerations unaddressed by the Court of Appeals in that suit
might limit the relief available to the present-day Oneidas. Brief
for United States as Amicus Curiae in County of
Oneida v. Oneida Indian Nation of N. Y., O. T. 1984, No. 83–1065 etc., pp. 33–40. Footnote 7 The dissent suggests that,
compatibly with today’s decision, the Tribe may assert tax immunity
defensively in the eviction proceeding initiated by Sherrill. Post , at 4. We disagree. The equitable cast of the relief
sought remains the same whether asserted affirmatively or
defensively. Footnote 8 We resolve this case on
considerations not discretely identified in the parties’ briefs.
But the question of equitable considerations limiting the relief
available to OIN, which we reserved in Oneida II , is
inextricably linked to, and is thus “fairly included” within, the
questions presented. See this Court’s Rule 14.1(a) (“The statement
of any question presented is deemed to comprise every subsidiary
question fairly included therein.”); Ballard v. Commissioner , 544 U. S. ____, ____, n. 2 (2005) (slip
op., at 4, n. 2); R. A. V. v. St.
Paul , 505 U. S.
377 , 381, n. 3 (1992). See generally R. Stern, E. Gressman, S.
Shapiro, & K. Geller, Supreme Court Practice 414 (8th ed. 2002)
(“Questions not explicitly mentioned but essential to analysis of
the decisions below or to the correct disposition of the other
issues have been treated as subsidiary issues fairly comprised by
the question presented.” (internal quotation marks
omitted)). Footnote 9 The Court has recognized that
“only Congress can divest a reservation of its land and diminish
its boundaries.” Solem v. Bartlett, 465 U. S. 463 , 470 (1984); see also 18
U. S. C. §1151 (defining Indian country); South
Dakota v. Yankton Sioux Tribe, 522 U. S. 329 , 343
(1998) (“[O]nly Congress can alter the terms of an Indian treaty by
diminishing a reservation.”). The Court need not decide today
whether, contrary to the Second Circuit’s determination, the 1838
Treaty of Buffalo Creek disestablished the Oneidas’ Reservation, as
Sherrill argues. See Brief for Petitioner 31–39; Oneida
II , 470 U. S., at 269, n. 24 (Stevens, J., dissenting in
part) (“There is … a serious question whether the Oneida did not
abandon their claim to the aboriginal lands in New York when they
accepted the Treaty of Buffalo Creek of 1838 … .”). The relief
OIN seeks—recognition of present and future sovereign authority to
remove the land from local taxation—is unavailable because of the
long lapse of time, during which New York’s governance remained
undisturbed, and the present-day and future disruption such relief
would engender. Footnote
10 Citing Montana v. Blackfeet Tribe, 471 U. S. 759 (1985), The Kansas Indians, 5 Wall. 737 (1867), and The New
York Indians, 5 Wall. 761 (1867), the dissent notes that only
Congress may revoke the tax-exempt status of Indian reservation
land. Post , at 2–3, and n. 3. Those cases, however,
concerned land the Indians had continuously occupied. See Brief for
Respondents in Montana v. Blackfeet Tribe, O. T. 1984, No. 83–2161, p. 3, and n. 1 (noting
Indians’ occupation of reservation); Kansas Indians , 5
Wall., at 738–742 (concerning Indians removed to and residing on
Kansas lands before statehood); New York Indians , 5 Wall.,
at 768 (taxation by State would “interfer[e] with the possession,
and occupation, and exercise of authority” by the Indians residing
on the reservation). The Oneidas last occupied the parcels here at
issue in 1805. See supra , at 11. The dissent additionally
refers to Cass County v. Leech Lake Band of Chippewa
Indians, 524 U. S. 103 (1998). Post ,
at 3, n. 3. But in that case, the Court held that an Indian
tribe could not revive the tax-exempt status of its former
reservation lands—which Congress had expressly removed from federal
protection—by reacquiring the lands in the open market. 524 U. S.,
at 113–114. Footnote
11 The fact that OIN brought this
action promptly after acquiring the properties does not overcome
the Oneidas’ failure to reclaim ancient prerogatives earlier or
lessen the problems associated with upsetting New York’s
long-exercised sovereignty over the area. OIN’s claim concerns
grave, but ancient, wrongs, and the relief available must be
commensurate with that historical reality. Footnote
12 It bears repetition that for
generations, the Oneidas dominantly complained, not against New
York or its local units, but about “[mis]treatment at the hands of
the United States Government.” Oneida II , 470 U. S., at
269 (Stevens, J., dissenting in part); see supra , at
7–8. Footnote
13 Other tribal entities have
already sought to free historic reservation lands purchased in the
open market from local regulatory controls. See Seneca-Cayuga
Tribe of Okla. v. Town of Aurelius, New York , No.
5:03–CV–00690 (NPM), 2004 WL 1945359, *1–3 (NDNY, Sept. 1, 2004)
(tribe seeks declaratory and injunctive relief to avoid application
of municipal zoning and land use laws to 229 acres); Cayuga
Indian Nation of N. Y. v. Village of Union
Springs , 317 F. Supp. 2d 128, 131–134, 147–148 (NDNY
2004) (granting declaratory and injunctive relief to tribe, to
block application of zoning regulations to property—“located within
300 yards” of a school—under renovation by the tribe for use as a
gaming facility). Footnote
14 Justice Stevens, after vigorously
urging the application of laches to block further proceedings in Oneida II , 470 U. S., at 255, now faults the Court for
rejecting the claim presented here, post , at 1. The
majority indicated in Oneida II that application of a
nonstatutory time limitation in an action for damages would be
“novel.” 470 U. S., at 244, n. 16; cf. id. , at
261–262 (Stevens, J., dissenting in part) (acknowledging “the
application of a traditional equitable defense in an action at law
is something of a novelty”). No similar novelty exists when the
specific relief OIN now seeks would project redress for the Tribe
into the present and future. The claim to a sovereign’s prerogative
asserted by OIN, we hold, does “not survive eternally,” id. , at 272 (Stevens, J., dissenting in part); rather, it
is a claim “best left in repose.” Id. , at 273
(same). 544 U. S. ____ (2005) 544 U. S. ____ (2005) 544 U. S. ____ (2005) SUPREME COURT OF THE UNITED STATES NO. 03-855 CITY OF SHERRILL, NEW YORK, PETITIONER v. ONEIDA INDIAN NATION OF NEW YORK et al.

															on writ of certiorari to the united states court of
appeals for the second circuit

															[March 29, 2005]

															   Justice Souter, concurring.

															   I join the opinion of the Court
with one qualification that goes to the appropriateness of
considering the long dormancy of any claim to tribal authority over
the parcels in question, as a basis to hold that the Oneida Indian
Nation is not now immune from the taxing authority of local
government. The Tribe’s claim, whether affirmative or defensive,
see ante , at 14, n. 7, is one of territorial
sovereign status entitled to recognition by the territorial state
sovereign and its subdivisions. The claim of present sovereign
status turns not only on background law and the provisions of
treaties, but also on the Tribe’s behavior over a long period of
time: the absence of the Tribe and tribal members from the
particular lots of land, and the Tribe’s failure to assert
sovereignty over them. The Tribe’s inaction cannot, therefore, be
ignored here as affecting only a remedy to be considered later; it
is, rather, central to the very claims of right made by the
contending parties. Since the subject of inaction was not expressly
raised as a separate question presented for review, see ante , at 14, n. 8, there is some question whether we
should order reargument before dealing with it. I think that is
unnecessary; the issue was addressed by each side in the argument
prior to submission of the case, notwithstanding the terms of the
questions on which review was granted. STEVENS, J., DISSENTING CITY OF SHERRILL V. ONEIDA INDIAN NATION OF N.&NBSP;Y. 544 U. S. ____ (2005) SUPREME COURT OF THE UNITED STATES NO. 03-855 CITY OF SHERRILL, NEW YORK, PETITIONER v. ONEIDA INDIAN NATION OF NEW YORK et al.

															on writ of certiorari to the united states court of
appeals for the second circuit

															[March 29, 2005]

															   Justice Stevens, dissenting.

															   This case involves an Indian
tribe’s claim to tax immunity on its own property located within
its reservation. It does not implicate the tribe’s immunity from
other forms of state jurisdiction, nor does it concern the tribe’s
regulatory authority over property owned by non-Indians within the
reservation.

															   For the purposes of its decision the Court
assumes that the District Court and the Court of Appeals correctly
resolved the major issues of fact and law that the parties debated
in those courts and that the City of Sherrill (City) presented to
us in its petition for certiorari. Thus, we accept those courts’
conclusions that the Oneida Indian Nation of New York (Tribe) is a
federally recognized Indian Tribe; that it is the
successor-in-interest to the original Oneida Nation; that in 1788
the Treaty of Fort Schuyler created a 300,000 acre reservation for
the Oneida; that in 1794 the Treaty of Canandaigua established that
tract as a federally protected reservation; and that the
reservation was not disestablished or diminished by the Treaty of
Buffalo Creek in 1838. It is undisputed that the City seeks to
collect property taxes on parcels of land that are owned by the
Tribe and located within the historic boundaries of its
reservation.

															   Since the outset of this litigation it has
been common ground that if the Tribe’s properties are “Indian
Country,” the City has no jurisdiction to tax them without express
congressional consent.[ Footnote
1 ] For the reasons set forth at length in the opinions of the
District Court and the Court of Appeals, it is abundantly clear
that all of the land owned by the Tribe within the boundaries of
its reservation qualifies as Indian country. Without questioning
the accuracy of that conclusion, the Court today nevertheless
decides that the fact that most of the reservation has been
occupied and governed by non-Indians for a long period of time
precludes the Tribe “from rekindling embers of sovereignty that
long ago grew cold.” Ante , at 14. This is a novel holding,
and in my judgment even more unwise than the Court’s holding in County of Oneida v. Oneida Indian Nation of N.
Y., 470 U. S.
226 (1985), that the Tribe may recover damages for the alleged
illegal conveyance of its lands that occurred in 1795. In that
case, I argued that the “remedy for the ancient wrong established
at trial should be provided by Congress, not by judges seeking to
rewrite history at this late date,” id. , at 270 (opinion
dissenting in part). In the present case, the Tribe is not
attempting to collect damages or eject landowners as a remedy for a
wrong that occurred centuries ago; rather, it is invoking an
ancient immunity against a city’s present-day attempts to tax its
reservation lands.

															   Without the benefit of relevant briefing from
the parties, the Court has ventured into legal territory that
belongs to Congress. Its decision today is at war with at least two
bedrock principles of Indian law. First, only Congress has the
power to diminish or disestablish a tribe’s reservation.[ Footnote 2 ] Second, as a core incident
of tribal sovereignty, a tribe enjoys immunity from state and local
taxation of its reservation lands, until that immunity is
explicitly revoked by Congress.[ Footnote 3 ] Far from revoking this immunity, Congress has
specifically reconfirmed it with respect to the reservation lands
of the New York Indians.[ Footnote
4 ] Ignoring these principles, the Court has done what only
Congress may do—it has effectively proclaimed a diminishment of the
Tribe’s reservation and an abrogation of its elemental right to tax
immunity. Under our precedents, whether it is wise policy to honor
the Tribe’s tax immunity is a question for Congress, not this
Court, to decide.

															   As a justification for its lawmaking decision,
the Court relies heavily on the fact that the Tribe is seeking equitable relief in the form of an injunction. The
distinction between law and equity is unpersuasive because the
outcome of the case turns on a narrow legal issue that could just
as easily, if not most naturally, be raised by a tribe as a defense against a state collection proceeding. In fact,
that scenario actually occurred in this case: The City brought an
eviction proceeding against the Tribe based on its refusal to pay
property taxes; that proceeding was removed to federal court and
consolidated with the present action; the District Court granted
summary judgment for the Tribe; and the Court of Appeals affirmed
on the basis of tribal tax immunity.[ Footnote 5 ] Either this defensive use of tax immunity
should still be available to the Tribe on remand, but see ante , at 14, n. 7, or the Court’s reliance on the
distinctions between law and equity and between substantive rights
and remedies, see ante , at 13, is indefensible.

															   In any event, as a matter of equity I believe
that the “principle that the passage of time can preclude relief,” ante, at 16, should be applied sensibly and with an even
hand. It seems perverse to hold that the reliance interests of
non-Indian New Yorkers that are predicated on almost two centuries
of inaction by the Tribe do not foreclose the Tribe’s enforcement
of judicially created damages remedies for ancient wrongs, but do
somehow mandate a forfeiture of a tribal immunity that has been
consistently and uniformly protected throughout our history. In
this case, the Tribe reacquired reservation land in a peaceful and
lawful manner that fully respected the interests of innocent
landowners—it purchased the land on the open market. To now deny
the Tribe its right to tax immunity—at once the most fundamental of
tribal rights and the least disruptive to other sovereigns—is not
only inequitable, but also irreconcilable with the principle that
only Congress may abrogate or extinguish tribal sovereignty. I
would not decide this case on the basis of speculation about what
may happen in future litigation over other regulatory
issues.[ Footnote 6 ] For the
answer to the question whether the City may require the Tribe to
pay taxes on its own property within its own reservation is
pellucidly clear. Under settled law, it may not.

															   Accordingly, I respectfully dissent. Footnote 1 The District Court noted that “[n]o argument
is made that should a finding be made that the properties in
question are Indian Country, they are nonetheless taxable.” 145
F. Supp. 2d 226, 241, n. 7 (NDNY 2001). Footnote 2 See South Dakota v. Yankton
Sioux Tribe , 522 U. S. 329 , 343
(1998) (“Congress possesses plenary power over Indian affairs,
including the power to modify or eliminate tribal rights.
Accordingly, only Congress can alter the terms of an Indian treaty
by diminishing a reservation, and its intent to do so must be
‘clear and plain’ ” (citations omitted)); Solem v. Bartlett , 465 U. S. 463 , 470
(1984) (“Once a block of land is set aside for an Indian
reservation and no matter what happens to the title of individual
plots within the area, the entire block retains its reservation
status until Congress explicitly indicates otherwise”). Footnote 3 See Montana v . Blackfeet
Tribe , 471 U.
S. 759 , 764–765 (1985) (noting that the Court has “never
wavered” from the view that a State’s attempt to tax Indian
reservation land is illegal and inconsistent with Indian title)
(citing The Kansas Indians, 5 Wall. 737 (1867), and The New York Indians , 5 Wall. 761 (1867)); Cass
County v. Leech Lake Band of Chippewa Indians , 524 U. S. 103 ,
110 (1998) (“We have consistently declined to find that Congress
has authorized such taxation unless it has ‘ “made its
intention to do so unmistakably clear” ’ ”). Footnote 4 In providing New York state courts with
jurisdiction over civil actions between Indians, Congress
emphasized that the statute was not to be “construed as subjecting
the lands within any Indian reservation in the State of New York to
taxation for State or local purposes.” 25 U. S. C. §233. See Oneida Indian Nation of N. Y. v. County of
Oneida, 414 U.
S. 661 , 680–681, n. 15 (1974) (“ ‘The text and history of
the new legislation are replete with indications that congressional
consent is necessary to validate the exercise of state power over
tribal Indians and, most significantly, that New York cannot
unilaterally deprive Indians of their tribal lands or authorize
such deprivations. The civil jurisdiction law, to make assurance
doubly sure, contains a proviso that explicitly exempts
reservations from state and local taxation … . Moreover, both
federal and state officials agreed that the bills would retain
ultimate federal power over the Indians and that federal
guardianship, particularly with respect to property rights, would
continue’ ” (quoting Gunther, Governmental Power and New York
Indian Lands—A Reassessment of a Persistent Problem of
Federal-State Relations, 8 Buffalo L. Rev. 1, 16 (1958))). Footnote 5 See 337 F. 3d 139, 167 (CA2 2003).
Additionally, to the extent that we are dealing with genuine
equitable defenses, these defenses are subject to waiver. Here, the
City sought to add the defense of laches to its answer; the
District Court refused on the ground of futility, 145 F. Supp.
2d, at 259; the Court of Appeals upheld this determination, 337
F. 3d, at 168–169; and the City failed to preserve this point
in its petition for certiorari or brief on the merits. The City
similarly failed to preserve its impossibility defense in its
submissions to this Court, and there is no indication that the City
ever raised an acquiescence defense in the proceedings below. Footnote 6 It is not necessary to engage in any
speculation to recognize that the majority’s fear of opening a
Pandora’s box of tribal powers is greatly exaggerated. Given the
State’s strong interest in zoning its land without exception for a
small number of Indian-held properties arranged in checkerboard
fashion, the balance of interests obviously supports the retention
of state jurisdiction in this sphere. See California v. Cabazon Band of Mission Indians , 480 U. S. 202 , 215
(1987) (“ ‘[I]n exceptional circumstances a State may assert
jurisdiction over the on-reservation activities of tribal
members’ ”). Nor, as the Tribe acknowledges, Brief for
Respondents 19, n. 4, could it credibly assert the right to tax or
exercise other regulatory authority over reservation land owned by
non-Indians. See Atkinson Trading Co. v. Shirley , 532 U. S. 645 (2001); Strate v. A–1 Contractors , 520 U. S. 438 , 456
(1997) (denying tribal jurisdiction in part because the Tribe could
not “assert a landowner’s right to occupy and exclude” over the
land in question); see also Brendale v. Confederated
Tribes and Bands of Yakima Nation , 492 U. S. 408 , 444–445
(1989) (opinion of Stevens, J.) (“Because the Tribe no longer has
the power to exclude nonmembers from a large portion of this area,
it also lacks the power to define the essential character of the
territory [through zoning]”).

Summary: The case concerns a dispute over land purchased by the Oneida Indian Nation in New York, which was once part of their 300,000-acre reservation but had not been possessed by the tribe since 1805. The Supreme Court held that the tribe could not unilaterally revive its ancient sovereignty over the land, as generations had passed with non-Indians owning and developing the area, and the tribe had long relinquished governance of the region to New York State and local authorities. The court declined to disrupt the current governance structure of central New York, and the tribe's attempt to regain sovereignty through open-market purchases was rejected.