Oneida Reconsideration Motion en Banc Jus Tertii Pro Se

8/3/2019 Oneida Reconsideration Motion en Banc Jus Tertii Pro Se

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UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

Oneida Indian Nation

v. 05-6408-cv (L)

Madison County

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/c733894c-

d56c-4250-8441-50c80e1b2033/2/doc/05-

6408_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 havein 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 aredomestic because this is their land, and dependent because
http://www.ca2.uscourts.gov/decisions/isysquery/c733894c-d56c-4250-8441-50c80e1b2033/2/doc/05-6408_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/c733894c-d56c-4250-8441-50c80e1b2033/2/hilite/http://www.ca2.uscourts.gov/decisions/isysquery/c733894c-d56c-4250-8441-50c80e1b2033/2/doc/05-6408_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/c733894c-d56c-4250-8441-50c80e1b2033/2/hilite/http://www.ca2.uscourts.gov/decisions/isysquery/c733894c-d56c-4250-8441-50c80e1b2033/2/doc/05-6408_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/c733894c-d56c-4250-8441-50c80e1b2033/2/hilite/http://www.ca2.uscourts.gov/decisions/isysquery/c733894c-d56c-4250-8441-50c80e1b2033/2/doc/05-6408_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/c733894c-d56c-4250-8441-50c80e1b2033/2/hilite/http://www.ca2.uscourts.gov/decisions/isysquery/c733894c-d56c-4250-8441-50c80e1b2033/2/doc/05-6408_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/c733894c-d56c-4250-8441-50c80e1b2033/2/hilite/http://www.ca2.uscourts.gov/decisions/isysquery/c733894c-d56c-4250-8441-50c80e1b2033/2/doc/05-6408_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/c733894c-d56c-4250-8441-50c80e1b2033/2/hilite/http://www.ca2.uscourts.gov/decisions/isysquery/c733894c-d56c-4250-8441-50c80e1b2033/2/doc/05-6408_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/c733894c-d56c-4250-8441-50c80e1b2033/2/hilite/


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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 asdependent 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 OneidaNation 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 theOneida 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, notdependent on the US, but occupied in their own lands, their own


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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, 25USC 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.p0433&q1=christian&q2=california&q3=indians
http://digicoll.library.wisc.edu/cgi-bin/FRUS/FRUS-idx?type=turn&id=FRUS.FRUS1902ap2&entity=FRUS.FRUS1902ap2.p0433&q1=christian&q2=california&q3=indianshttp://digicoll.library.wisc.edu/cgi-bin/FRUS/FRUS-idx?type=turn&id=FRUS.FRUS1902ap2&entity=FRUS.FRUS1902ap2.p0433&q1=christian&q2=california&q3=indianshttp://digicoll.library.wisc.edu/cgi-bin/FRUS/FRUS-idx?type=turn&id=FRUS.FRUS1902ap2&entity=FRUS.FRUS1902ap2.p0433&q1=christian&q2=california&q3=indianshttp://digicoll.library.wisc.edu/cgi-bin/FRUS/FRUS-idx?type=turn&id=FRUS.FRUS1902ap2&entity=FRUS.FRUS1902ap2.p0433&q1=christian&q2=california&q3=indianshttp://digicoll.library.wisc.edu/cgi-bin/FRUS/FRUS-idx?type=turn&id=FRUS.FRUS1902ap2&entity=FRUS.FRUS1902ap2.p0433&q1=christian&q2=california&q3=indianshttp://digicoll.library.wisc.edu/cgi-bin/FRUS/FRUS-idx?type=turn&id=FRUS.FRUS1902ap2&entity=FRUS.FRUS1902ap2.p0433&q1=christian&q2=california&q3=indians


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type=turn&entity=FRUS.FRUS1902.p0871&id=FRUS.FRUS1902&isiz

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


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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 expresslywithout 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,


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 ofdispute 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 inhabi-

tants of the ceded territory shall be incorporated in the Union of the

United States, and admitted as soon as possible, according to the

prin-ciples of the Federal Constitution, to the enjoyment of all the rights,
http://digicoll.library.wisc.edu/cgi-bin/FRUS/FRUS-idx?type=turn&id=FRUS.FRUS188889v01p1&entity=FRUS.FRUS188889v01p1.p0902&q1=alaska&q2=guardian&q3=wardshttp://digicoll.library.wisc.edu/cgi-bin/FRUS/FRUS-idx?type=turn&id=FRUS.FRUS188889v01p1&entity=FRUS.FRUS188889v01p1.p0902&q1=alaska&q2=guardian&q3=wardshttp://digicoll.library.wisc.edu/cgi-bin/FRUS/FRUS-idx?type=turn&id=FRUS.FRUS188889v01p1&entity=FRUS.FRUS188889v01p1.p0902&q1=alaska&q2=guardian&q3=wardshttp://digicoll.library.wisc.edu/cgi-bin/FRUS/FRUS-idx?type=turn&id=FRUS.FRUS188889v01p1&entity=FRUS.FRUS188889v01p1.p0902&q1=alaska&q2=guardian&q3=wardshttp://digicoll.library.wisc.edu/cgi-bin/FRUS/FRUS-idx?type=turn&id=FRUS.FRUS188889v01p1&entity=FRUS.FRUS188889v01p1.p0902&q1=alaska&q2=guardian&q3=wardshttp://digicoll.library.wisc.edu/cgi-bin/FRUS/FRUS-idx?type=turn&id=FRUS.FRUS188889v01p1&entity=FRUS.FRUS188889v01p1.p0902&q1=alaska&q2=guardian&q3=wards


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advantages, and immunities of citizens of the United States and in

the

mean time they shall be maintained and protected in the free

enjoymentof their liberty, property, and the religion they profess." In the

treaty

with Spain of February 22, 1919, for the cession of Florida, it was

stip-

ulated 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 inthe

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 Govern-

ment has received assurances of the treatment to be accorded tothe

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,

butneither France nor Spain ever pretended that our treaty stipulations


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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

noware, unlike those governing the other Territories of the United

States.

But it must be apparent that were the Indians inhabiting those pos-

sessions 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

favor-

ably 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 thetreaty of Managua relative to the privileges to be accorded to the

Mos-

quito Indians were not for the benefit of Great Britain, and are not

en-

forceable by her, They were solely made for the benefit of those In-

dians, who were regarded by the express language of the treaty as

at

liberty to accept or reject its stipulations. Through their chief theydid

deliberately accept them, and on the withdrawal of British

protection

placed themselves under the sovereign power of the Republic of

Nica-

ragua, and agreed to accept her public pledges as a sufficient

guaranty

that the agreements therein contained touching their right of self-gov-


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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 asthe assertion of a British protectorate in another formi; more

especially

when'this effort is directed to prohibiting Nicaragua from exercising

766

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military jurisdiction in the immediate neighborhood of the Atlantic

mouth ot the projected canal.

The United States can never see with indifference the re-establish-

ment of such a protectorate.).

Certificate of Service by email to:

[email protected],

[email protected], [email protected],[email protected], [email protected],

[email protected], [email protected],



[email protected] , [email protected],

[email protected] , [email protected] ,

[email protected] ,

Samuel.Alexander @usdoj.gov , [email protected] ,[email protected] ,

Thomas [email protected] , "Communications, Civil (CIV)"

,



[email protected],

[email protected],

[email protected], [email protected],[email protected],
http://www.nixonpeabody.com/attorneys_contact.asp?ID=545http://www.nixonpeabody.com/attorneys_contact.asp?ID=552mailto:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]://www.nixonpeabody.com/attorneys_contact.asp?ID=545http://www.nixonpeabody.com/attorneys_contact.asp?ID=552mailto:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]


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[email protected],

[email protected],


[email protected], [email protected],[email protected], [email protected],

[email protected],

[email protected],

[email protected],

[email protected],

[email protected],



[email protected], jo-


[email protected],

[email protected],

[email protected], [email protected]

Oneida Reconsideration Motion en Banc Jus Tertii Pro Se

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