What’s in a (Tribal) Name?

Posted on January 16, 2020 by Tom Sansonetti

At the time of the American Revolution in what is now upstate New York, there lived a branch of the Iroquois Nation known as the Oneida Indians.  As the 18th Century came to a close, two groups of Oneidas left the area to seek a better homeland.  One group moved to Canada and the other to Wisconsin.  Approximately one thousand Oneida remained behind.

In the ensuing two hundred years, the Wisconsin Oneidas and New York Oneidas each overcame many hardships.  Despite their shared original heritage, the two tribes have had little to do with one another, until more recently.

The Department of the Interior (“DOI”) through its Bureau of Indian Affairs (“BIA”), is required by law to publish annually an official list of federally recognized tribes.  There are many economic benefits for tribes included on the list.  At the present time, there are 562 federally recognized tribes. 

In 2010, the tribe then known as the “Oneida Tribe of Indians of Wisconsin” (the “Wisconsin Oneidas”) passed a resolution requesting that DOI conduct a special election on its reservation to amend the tribe’s constitution by, among other things, changing the tribe’s name to the “Oneida Nation.”  In 2011, the DOI notified the Wisconsin Oneidas that the proposed election could proceed but noted that the Wisconsin Oneidas should consider the potential that the name change may cause confusion with the New York Oneidas, who then called themselves the “Oneida Nation of New York.”  The Wisconsin Oneidas thereafter voted to adopt the proposed name change and received approval from DOI in a June 2015 document signed by the Acting Assistant Secretary for Indian Affairs, who happened to be an enrolled member of the Wisconsin Oneidas.

In 2016, the revised list of federally recognized tribes published in the Federal Register referred to the Wisconsin Oneidas as “Oneida Nation.”  The Oneida Nation of New York was never consulted or conferred with by DOI about the Wisconsin Oneidas’ name change ambitions.  The New York Oneidas’ realization as to what had happened came only with the publication of the revised list.

The Wisconsin Oneidas wasted no time thereafter by petitioning the Trademark Trial and Appeal Board of the United States Patent and Trademark Office (“TTAB”) to cancel the New York Oneidas’ registration of the marks “Oneida” and “Oneida Indian Nation.”  The Wisconsin Oneidas touted their new federally recognized name “Oneida Nation” – in arguing that the New York Oneidas should not be allowed to limit the Wisconsin Oneidas use of that name.

The New York Oneidas then brought an action against DOI in federal district court in Albany, New York, asserting claims under the Administrative Procedure Act.  The New York Oneidas asserted a lack of due process, and injury due to the confusion caused by DOI’s approval of the Wisconsin Oneidas’ name change.  In addition, the New York Oneidas alleged a conflict of interest considering that a member of the Wisconsin Oneida served as the DOI official that approved the name change.

The federal district court granted the government’s motion to dismiss the case against DOI for lack of subject matter jurisdiction because it determined that the New York Oneida lacked standing. On appeal, the Second Circuit Court of Appeals affirmed the district court ruling on October 21, 2019. Oneida Indian Nation v. United States Department of the Interior, Case No. 18-2607.

The key issue in the New York Oneidas not having standing centered on the redressability of the alleged wrongs.  Because the DOI’s present policy is to allow tribes to call themselves what they want pursuant to a duly called election, remanding the case back to DOI made no sense in the courts’ view.  Both the district and appellate courts noted the lack of notice to the New York Oneidas and the possibility of future confusion by outside entities as to which of the tribes is the “real” Oneida Indian Nation.  Efforts between the tribes to resolve the dispute have proven unsuccessful.

Given the DOI’s policy of allowing tribes to self-name and BIA’s lack of intervention in the Wisconsin Oneidas administrative name change, the New York Oneidas have since decided to change their name to the “Oneida Indian Nation,” leaving out any geographical reference.  It is expected that the 2020 Federal Register will list both tribes preferred monikers. 

In the meantime, the TTAB trademark litigation rages on, and unless and until DOI changes its tribal names policy, any outside entity doing business with one of the Oneida tribes had best determine which tribal nation is which!