Attorney William W. Taylor, III, discussed "Legal Issues in the Native-American Land Claim Cases" in a November 15 lecture sponsored by the Hamilton College Levitt Center. In his talk, Taylor used the example of the Oneida land claim case to explore what it means to be a judicial activist and also to consider the presumption that activist judges lean toward the political left. Taylor is the lead attorney for the Oneida Indian Nation of New York.
Taylor noted judicial activists are often conceptualized as those judges who are result-oriented; who do not follow precedent; and who are accused of disregarding or interfering with legislature. Judicial activists, according to Taylor, "decide the law as they think it ought to be," compared to other judges who follow precedent and apply the law the way it is written. Those who criticize judicial activists assert that judges should interpret the law, not make it. As Taylor explained, though, this critique, often wielded by conservatives, assumes that a specific law already exists to regulate everything.
Taylor also explained that activist judges are traditionally assumed to be situated on the political left. In some court cases, the dissenters may accuse the majority of being activist judges. These accusations, Taylor said, are particularly true of the Oneida Land Claim cases. Justice Stevens, in the 2005 Supreme Court decision regarding the City of Sherrill, New York v. Oneida Indian Nation of New York, "blatantly accused" the eight-member majority of lawmaking that went against Congress. These judges, according to Stevens, blurred the functioning of the judicial and legislative branches of government.
To explain the origin of Stevens's position, Taylor detailed some background facts and circumstances that preceded the Sherrill v. Oneida decision. In 1985, the Supreme Court ruled 5-4 in favor of the Oneida Nation in a case (Oneida II) that ultimately granted them possessory rights over lands they had formerly possessed but which, they claimed, had been wrongfully acquired by the State of New York in 1795. This 1795 acquisition, they argued, was in violation of the Nonintercourse Act of 1790, which barred the sale of tribal land without approval from Congress. In the 1985 decision, the Court ruled that those municipalities wrongfully occupying Oneida territory must pay the Oneidas back rent on the property.
The major issue in this case, according to Taylor, was whether or not the passage of time can affect land sovereignty. In 1966, though, Congress had addressed this matter with regard to claims that had not yet been brought to Court. Essentially, Taylor explained, Congress maintained that new claims must be brought within six years from 1966; Congress made explicit that it did not intend to restrict the ability to bring claims, regardless of the passage of time. In the 1985 Oneida II decision, then, the Supreme Court followed this precedent that Congress had outlined.
In the years that followed the 1985 decision, the Oneida Nation continued to purchase lands that had been part of the Nation's territory and to which they had possessory right. The municipalities that existed on this territory sent the Oneida Nation bills for taxes, but the Nation felt that, because of its possessory rights, it should not be taxed. The District Court and the Court of Appeals held in favor of the Oneidas, but the Supreme Court, in opposition to these decisions and to the 1966 precedent set by Congress, ruled 8-1 against them. Justice Ginsberg, writing for the majority, said that "the passage of time is a bar to the Nation's reacquisition and assertion of sovereignty."
Taylor stressed the dramatic difference between this ruling and the 1985 Oneida II decision that had preceded it by 20 years. "How," he asked, "do we get such a different decision with such a different tone?" He explained that 4 of the 5 Justices who ruled in favor of the Oneidas in the Oneida II case were gone by the time of the 2005 decision. "These decisions are very difficult, if not impossible, to harmonize," Taylor said, and he stressed that "the only thing that's changed in 20 years has been the composition of the Court."
This change, Taylor noted, is significant for the question of judicial activism. "The interesting thing is that these questions [on which the decision was based] were not briefed" and were not argued in Court during the case; Taylor explained that, instead, the Court had based its decision on its own sentiment and issues of practicality. The fact that the decision did not respond to the issues addressed in the hearing was acknowledged only in a footnote of the majority position.
The Court ruled against the Oneidas "even though there was no evidence," as Taylor maintained. He also stated that the decision is criticized by many as going against Congress. Justice Stevens, one of the biggest critics of the decision and the one dissenting Justice in the case, argued that the ruling was a law making decision, as opposed to a law enforcing one, made by judicial activists.
These differing positions call into question the nature of the judicial activist. "Who is the judicial activist here?" Taylor asked. "Is it the majority in Oneida II? The majority in the Sherrill case? Or is it Justice Stevens?"
Taylor concluded by stating the importance of these issues to the current situation of the United States Senate as it grapples with questions surrounding the appointment of new Supreme Court Justices: "Should we look for judges with fundamental moral values who believe they're there to do the right thing?" he asked, "Or should we look for those who pledge to uphold Congress's decisions?"
-- by Sarah Lozo '06
