Tuesday, May 23, 2006


Tribal claims across the nation face an uncertain future after the U.S. Supreme Court recently refused to hear a critical case.

A federal judge had ordered the state to pay $248 million for taking the land without the approval of the United States. But the 2nd Circuit Court of Appeals, in a split decision that now stands, barred the tribes from seeking money damages for the stolen land. That court said such claims were to "disruptive" to non-Indians.

Apparently, the nation's highest court agrees.


Tribes elsewhere in the nation face similar fates. Land, water, hunting and other types of claims could be dismissed if unfavorable precedents set by the 2nd Circuit are adopted by more courts.

Without comment, the Supreme Court declined a petition filed by the Cayuga Nation of New York and the Seneca-Cayuga Tribe of Oklahoma. The tribes sought to revive their claim to 64,000 acres in New York.

Thus, the Haudenosaunee (Iroquois Confederacy) which includes the Seneca, Cayuga,Onondaga,Oneida,Mohawk, and Tuscarora were handed what some of its chiefs called a "grave injustice" by the U.S. Supreme Court.

The suit by the Cayugas said New York violated the U.S. Constitution and other federal and state laws when it obtained about 4,000 square miles from them in a series of treaties between 1788 and 1822. It had asked the court to declare the Onondagas have legal title to the territory, which includes the cities of Syracuse, Oswego, Fulton, Watertown, Cortland and Binghamton. The Supremes refused to listen.

''The Supreme Court, in refusing to accept the Cayuga appeal, has established itself as the most anti-Indian court in the history of the United States,'' said St. Regis Mohawk Tribal Chief James W. Ransom.

St. Regis Tribal Chief Lorraine M. White added, ''It continues to amaze me at how biased courts have become toward Natives. The latest decision by the Supreme Court sounds an alarm to all tribes that it's open hunting season on them in the judicial system and that Indian issues have no chance in being fairly resolved if they are taken into the courts.'' A statement from the Onondaga Nation Council of Chiefs said, ''Ignoring these historic wrongs and injustices is just another chapter in this shameful history of the genocide against Native peoples in this country.''

In a statement, Clint Halftown, the federally recognized chief of the deeply divided Cayuga Nation, said, ''Our history has taught us to expect little and today's decision confirms what we always suspected - that we can't and should never have trusted this process.''

Some of the other tribes argued that the decision which specified primarily the Cayuga might not directly affect them.

That hope seemed unlikely.

Nell Jessup Newton, a University of Connecticut law school dean and editor of Cohen's Handbook of Federal Indian Law, said the Supreme Court's refusal to hear an appeal on the 2nd U.S. Circuit Court of Appeals dismissal of the Cayuga land claim "could have a fairly devastating impact" on similar suits by other Native American nations from New York.

Richard Guest, attorney with the Native American Rights Fund, who wrote one Supreme Court brief in the Cayuga appeal, said there was ''a glimmer of hope'' that the Supreme Court might limit the damage if one of these suits came before it.

He said the court might not necessarily have agreed with the 2nd Circuit ruling and might have wanted to wait for the issues to be developed further before making a ruling. (Technically, the court takes up a case by issuing a writ of certiorari, and it grants ''cert'' in roughly one of a hundred appeals. The denial in the Cayuga case - actually two paired cases - appeared without comment in a list of more than 240 rejected appeals.)

Guest said the issues could continue coming up to the court in different variations. But he wasn't overly optimistic that the outcome would change. ''If that's the result they want to achieve,'' he said, ''they'll find something else to hang their hat on.''

He warned that the dismissal of the Cayuga case could be used across the country to defeat Indian claims on a range of historic issues.

A state assemblyman has already called on Gov. George Pataki to ask the courts to dismiss all the Indian land claims now.

"I urge you to seek immediate dismissal of any and all Indian land claims brought against New York state in light of the landmark decisions of the U.S. Supreme Court," Assemblyman David Townsend, R-Kirkland, wrote Monday. Townsend's district includes the Oneida Indian Nation's Turning Stone Resort and Casino.

What follows is an editorial comment from Indian Country Today.

America's short memory for Indian justice
by: Editors Report / Indian Country Today

On May 15, America - via its Supreme Court - told the Indian people of New York state, principally the Haudenosaunee, that they don't count. The high court shrugged off a petition to review the apparent destruction of the Cayuga land claim settlement by a New York court decision. That Cayuga decision came on the heels of the now infamous City of Sherrill v. Oneida Indian Nation of New York case of 2005, when the Oneida attempt to buy and restore ancestral reservation land back into tribal jurisdiction was dashed against a wall of manipulated intolerance that reached the ears and eyes of the Supreme Court and allowed it to deny a true day of reckoning for the Indian peoples. The Supreme Court had previously ruled the lands in question were, in fact, stolen.

The land cases themselves are foolproof. New York, like all states always intent on diminishing Indian holdings, coerced the lands from the Indian nations against federal law that prohibited such transactions. These Indian lands were guaranteed, after major concessions and treaty agreements, and in the case of the Oneida Nation, after loyal and valiant service to the new Americans in their revolution against England.

What happened? Why did a Supreme Court that only a generation ago fully affirmed the just cause claims of the New York nations now gut the right to remedy on such claims? Why did the high court thwart the final possibility of justice from the most dispossessed people in the country?

The Ancient Indian Land claims, as they were called for a long time, have been the stuff of legend for generations of Haudenosaunee (Iroquois or Six Nations). The tribes and, often, particular clans or families have invested heavily in historical and legal research and action, driven by the strong cultural pressure among the people to not lose track of ancestral lands. This is about deep tribal memory, a sense of betrayal and injustice transmitted over the generations.

In Sherrill, the high court quashed the enforcement of the claims on the basis of the ''laches doctrine,'' which can assume the aggrieved party as ''negligent'' if too much time has elapsed from the date of the injustice before the case is brought to court.

In this risky case that will be analyzed for a generation, the court decided that the Indian nations had waited too long. This response to the Indian claim was a classic ''Catch-22'' loop, as the nations involved had been denied standing in American courts for virtually the entire time in question. American Indians were not considered capable in court to sue white people, much less the government. They were kept out of the courts over many decades; and then, after finally gaining standing for their tribe in the legal system, the high court tells them they took too long to bring their case to court. The laches doctrine in fact may be ''excused'' for a number of reasons, including ''ignorance of the party's rights or where the party labors under a legal disability, such as insanity, infancy and the like.'' (Black's Law Dictionary).

But the court did not do so in the case of the Haudenosaunee land claims because laches was just the cited reason, a doctrine to be applied or not applied at the political will of the court.

This reality is not lost on Indian observers; it becomes another and rather deep notch in the recording stick of such injustices of the tribal memory. Once again, American justice toward Indian peoples was reversed in a predictable cycle of confusing and untrustworthy reversals of social policy that never seem to end.

But we submit that the real reason for the court's brazen rejection of justice, cited by the court, is that the remedy sought was seen as ''too disruptive'' to the non-Natives now on the formerly treaty and federally guaranteed reservations. Never mind that the state had, over the decades, allowed and encouraged its own citizens to encroach and gain private and institutional land titles upon these guaranteed reservation boundaries.

Never mind, most interestingly, that nearly 80 percent of New Yorkers across the board believe Indian people got a raw deal and deserve to have their territories free of state jurisdiction. This is from a recent Zogby International survey that gives highly enlightening evidence of just how strong the sympathy and support for Indian nations is in New York, while economic analysis consistently shows just how important Indian enterprises are to their areas.

Buffalo State College media research adds indications that the more business or personal interaction the public has with tribal bases, the more sympathetic it becomes. This hugely useful information adds insult to injury, that in fact there is widespread public empathy with the tribal positions, yet the shrillness of the opposition and the willingness of the press clearly guided the Supreme Court as it dropped a doctrine-seeking bomb on a 30-year-old justice-seeking legal process.

The positions taken by the Supreme Court appear largely manipulated by the coalescing of special business interests and alarmed flag- waving supranationalists who make a lot of noise in the media. No doubt that the Indian leadership has made its share of serious mistakes in the land claims process, but the anti-Indian argument that allowing the tribal jurisdiction to grow and expand (with agreed upon limits) is widely unpopular among New Yorkers is not true. Nor is it true that expanded tribal jurisdictions would be particularly disruptive - as opposed to stimulating and economically rewarding - for those tribal localities and regions.

What is true is that a small, agitated constituency of convenience store operators, backed by some other powerful interests, carried their loud arguments to convince the regional media and the Supreme Court of the opposite.

How could this happen? Or perhaps, a better question: Why would it not, at this time in history? Why would it not, if the significant Indian leadership appears dysfunctional in its inability to take unified approaches to the state and federal governments? Why would it not, if the Indian leadership remains mired in purely legalistic strategies of sovereignty protection, when government-to-government relations require other approaches that include drawing attention to the support of broad public opinion, where there are actual possibilities for the truth to emerge? But most importantly, why would it not, when the Supreme Court continues to advance this nation's lingering foundational sin - the doctrine of discovery?

Get used to it. The Supreme Court is a ghost to the cause of justice over Indian lands for at least a generation. Without the American public or the citizens of states and regions on our side, American Indians and Natives, tribal sovereignties and jurisdictions, are imperiled in America.

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