UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT Oneida Indian Nation v.

Madison County

05-6408-cv (L)

Docket Nos. 05-6408-cv (L); 06-5168-cv (CON); 06-5515-cv (CON) Motion to intervene jus tertii for the US, 25 USC 194, 25 USC 175, and for reconsideration by the panel and or en banc by the full Circuit The Circuit panel decision is reported on remand at http://www.ca2.uscourts.gov/decisions/isysquery/c733894cd56c-4250-8441-50c80e1b2033/2/doc/056408_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/is ysquery/c733894c-d56c-4250-8441-50c80e1b2033/2/hilite/ .

The Constitution provides that the US abides by the law of belligerent occupation, recognizing the captured peoples, as Indians not taxed (US ex rel Standing Bear v Crooker, Rubi v Mindoro). In this character, the Oneida Nation, remains not subject to any taxation authority exercised under the authority of the United States or their New York authorities and counties thereof. The Congress, and US, by the law of war, lack authority to have pretended to have in any way impaired, impaled, or genocidally affected the national character of the Oneida Nations peoples, by either the fifteenth amendment or the sixteenth amendment. The fourteenth amendment expressly excluded Indians not taxed, as not subject to the jurisdiction of the US at birth (8 USC 1401(b)). The fifteenth amendment only forbids discrimination against citizens, but not the domestic subjects or nationals, as wards of the nation, in a condition of alienage (Hodges v US, 203 US 1). The Oneida Nation are domestic because this is their land, and dependent because

occupied, and that is the sole sense of the Worcester decision opining the Indians not taxed to be domestic dependent nations, that is, occupied Indian nations. The sixteenth amendment affects only a releasing of the prior bonds of taxation and representation as dependent on allocative enumerations, and does not affect the exclusion of the Indians not taxed. Minor v Happerssett holds that the expressly excluded (ie Indians not taxed, as not born, subject to the jurisdiction) remain without the national citizenship, though holding, by the law of war, and necessity, the nationality protections, of the law of belligerent occupation, following conquest, etc. The original alloidal aboriginal title of the Oneida Nation (Carino v Insular Government), remains, occupied (US v Fullard-Leo, Duncan v Kahanamoku). There are no means for the US to rewrite history and make it legally appear otherwise, as if the Indians conquered, were yet free to relinquish their territories, voluntarily. The panels averred fee title refers merely to usufructuary freehold rights in an estate deemed to run with allotted lands, and does not affect the de jure continuing sovereignty of the Oneida Nation to their lands occupied by the United States and their New York authorities and counties thereof. During the long occupation, the Oneida Nation remains the Sovereign de jure, for which the United States, act as Trustee, and Administering Authority, superintending in situ, the Oneida lands, under the delegated elected forms of military government (Duarte v Dade, elections may be authorized by a Military Governor, the Commander in Chief or Congress). There are no means by which the US can become the Oneida Nation, nor the authorities known as New York or the counties thereof. The apparent exercise of sovereignty by those entities, however styled, are the de jure sovereign rights of the Oneida Nation, as occupied, and cannot affect an extinguishment or diminution of the Oneida Nation, which does not exist at the pleasure of the United States or New York, but antecedent thereto. The existence of the Oneida is not dependent on the US, dependent means merely occupied. The Oneida are domestic, because, not dependent on the US, but occupied in their own lands, their own

domestic place, and thus domestic. That the Supreme Court of the US had to resort to tremendously clever prevarications of nomenclature to obfuscate these obvious and apparent facts, merely serves to remind white America (Wilson v Omaha Tribe, 25 USC 194) of the humility that ought to prevail when courts act to affect the natural rights of the Oneida peoples during our long occupation. There is no act of surrender, cession, or other means by which the United States can change these historical legal facts and the operation of the law of belligerent occupation on these facts. The President is a Commander in Chief, though a civilian commander could have been otherwise appointed, to reflect these high legal principles. The Indians not taxed, are not aliens, (Cherokee v Georgia, Elk v Wilkins, Rubi v Mindoro), to their own lands, though not citizens of our republican administration of the occupancy affecting their native lands, until extended involuntarily the political and civil rights attached to 8 USC 1401(b) without prejudice to their tribal allegiance and tribal property and other rights. As long as the Oneida Nation exists in fact, their peoples remain Indians not taxed. This status does not arise from the United States, but from the Oneida Nation, and in light of the actual conquest made by the United States in occupation of the Oneida Nation. http://digicoll.library.wisc.edu/cgi-bin/FRUS/FRUS-idx? type=turn&id=FRUS.FRUS1902ap2&entity=FRUS.FRUS1902ap2.p04 33&q1=christian&q2=california&q3=indians

http://digicoll.library.wisc.edu/cgi-bin/FRUS/FRUS-idx? type=turn&entity=FRUS.FRUS1902.p0871&id=FRUS.FRUS1902&isiz e=M&q1=cuero&q2=citizen

As Justice Torruella has rightly opined in numerous extraterritoriality cases of recent disposition, the Congress is without authority to act as the occupier of the world. So too, the assertion by the legislatures permitted in New York and the counties thereof, during the long occupation of the Oneida Nation, are without authority to affect the natural, inevitable, factual, historical, belligerent occupation, of these Indians not taxed. As long as the Oneida Nation and her peoples exist, they remain Indians not taxed, even if enjoying the privileges and immunities of naturalized statutory US citizenship in addition to their nationality protection under the Fourteenth Amendment, without prejudice to their actual de jure Oneida nationality status and tribal property and other rights, 8 USC 1401(b). The counties of New York, naturally lack any authority to legislate in respect of the Oneida Nation, and to tax the same, in any respect, in relation to lands or any other matter. In their character of citizens of the United States, 8 USC 1401(b), the Indians may be citizens of a state, for enjoyment of equal protection, but this is expressly without prejudice to their ultimate, plenary, primary, inalienable (Elk v Wilkins, US ex rel Standing v Crooker) allegiance (during occupation voluntary expatriation cannot operate consonant the law of war, http://digicoll.library.wisc.edu/cgi-bin/FRUS/FRUS-idx? type=turn&id=FRUS.FRUS188889v01p1&entity=FRUS.FRUS188889 v01p1.p0902&q1=alaska&q2=guardian&q3=wards of the treaty of Managua can afford no criterion, for in every case of dispute it may be argued that the rights of self-government on the one hand, or of sovereignty on the other, are invaded. The case is not without analogies. In the treaty with France of April 30, 1803, for the cession of Louisiana it is provided that "the inhabitants of the ceded territory shall be incorporated in the Union of the United States, and admitted as soon as possible, according to the principles of the Federal Constitution, to the enjoyment of all the rights,

advantages, and immunities of citizens of the United States and in the mean time they shall be maintained and protected in the free enjoyment of their liberty, property, and the religion they profess." In the treaty with Spain of February 22, 1919, for the cession of Florida, it was stipulated that "4the inhabitants of the ceded territories shall be secured in the free exercise of their religion, without any restriction," and that they should be "admitted to the enjoyment of all the privileges, rights, and immunities of the citizens of the United States." By the terms of the treaty with Russia of March 30, 1867, for the cession of Alaska, the inhabitants, with the exception of uncivilized native tribes, are to be admitted to citizenship, "and shall be maintained and protected in the free enjoyment of their liberty, property, and religion. The uncivilized tribes will be subject to such laws and regulations as the United States may from time to time adopt in regard to aboriginal tribes of that country." In all these cases, as will be observed, the ceding Government has received assurances of the treatment to be accorded to the inhabitants of the ceded territory; but in no case in our diplomatic history ha' any one of these Governments asserted a right to intervene in our domestic affairs. Difficulties have at times arisen between the FederalGovernment and the inhabitants of Louisiana and Florida, but neither France nor Spain ever pretended that our treaty stipulations

gave them a right to take part in the settlement of such disputes. The laws affecting the Territory of Alaska may be, and in some respects now are, unlike those governing the other Territories of the United States. But it must be apparent that were the Indians inhabiting those possessions to protest against alleged discriminations to the Czar of Russia, the treaty of 1867 would not authorize His Imperial Majesty to demand of the United States a different treatment of our Indian wards; and that such interposition, if-made, would certainly not be regarded favorably by this Government. The ceding government in such cases retains, and can retain, no right of control or supervision over the conduct of the guardian to whom it commits the inhabitants whose allegiance is changed. And so in the case under consideration. The stipulations of the treaty of Managua relative to the privileges to be accorded to the Mosquito Indians were not for the benefit of Great Britain, and are not enforceable by her, They were solely made for the benefit of those Indians, who were regarded by the express language of the treaty as at liberty to accept or reject its stipulations. Through their chief they did deliberately accept them, and on the withdrawal of British protection placed themselves under the sovereign power of the Republic of Nicaragua, and agreed to accept her public pledges as a sufficient guaranty that the agreements therein contained touching their right of selfgov-

ernment would be carried out in good faith. The President can not but regard the continued exercise of the claim on the part of Great Britain to interfere on behalf of these Indians as the assertion of a British protectorate in another formi; more especially when'this effort is directed to prohibiting Nicaragua from exercising 766

-------------------------------------------------------------------------------military jurisdiction in the immediate neighborhood of the Atlantic mouth ot the projected canal. The United States can never see with indifference the re-establishment of such a protectorate.).

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