Thursday, August 12, 2010



Justice as it applies to American Indians is a strange creature. One would think if a court agreed that yor land had been stolen from you they might rule that you could have it back, maybe compensated for your troubles, maybe the thief would be punished. Apparently that isn't the case if you are American Indian.

Are w
e surprised?

The following is from Indian Country Today.

Oneida Nation dispossessed of right to reclaim land or compensation
By [Gale Courey

NEW YORK – If an appeals court ruling stands, Indian nations may not be able to reclaim their illegally taken ancestral lands or receive compensation for their loss, because it would be too disruptive to those who are currently occupying and benefitting from the land.

A panel of the 2nd Circuit Court of Appeals ruled in a 2-1 decision Aug. 10 that the Oneida Indian Nation has no “possessory right” to reclaim the 250,000 acres that were illegally taken by the state of New York in the 18th and 19th centuries and sold for profit, nor does it have a “non-possessory right” to claim restitution from the state for the loss of its land. The nation estimated it is owed at least $500 million.

The appeals panel also said the state has sovereign immunity and cannot be sued.

The Oneida Tribe of Indians of Wisconsin and the Oneida of the Thames are also named as plaintiffs in the case.

Second Circuit Judges Joseph McLaughlin and Debra Ann Livingston ruled in the majority. District Judge Nina Gershon wrote the dissenting opinion.

“With this decision, the majority forecloses (the Oneida Nation) from bringing any claims seeking any remedy for their treatment at the hands of the state,” Gershon wrote.

She agreed that the Oneidas could not reclaim their land, but she said the tribes had a right to be paid for their losses.

The appeals panel ruling upheld a federal court’s 2007 dismissal of the Oneidas’ possessory claim and reversed the lower court’s ruling that the nation could pursue a non-possessory claim for compensation.

The current case was filed in 1974 but lay dormant for almost 25 years while the Oneidas pursued a “test case” seeking fair rental value from Madison and Oneida counties for occupying a small portion of their ancestral lands. The case reached the U.S. Supreme Court twice.

The high court said the nation had a common law right to pursue the action, but questioned whether “equitable considerations” – a set of legal principles under which people cannot assert their legal rights if it would be “unconscionable” for them to do so – “should limit the relief available to the present day Oneida Indians.”

In the 1974 filing, the Oneida Nation claimed the 250,000 acres of ancestral lands and relief going back more than 200 years to the period between 1795 and 1846 when the lands were conveyed in multiple transactions to the state of New York.

The 2nd Circuit ruling relied heavily on the U.S. Supreme Court’s 2005 ruling in City of Sherrill v. Oneida Indian Nation of New York.

Sherrill cited the 1794 Treaty of Canandaigua, which acknowledges the Oneidas’ 300,000-acre reservation and guarantees their “free use and enjoyment” of the land, and it noted that New York state continued to purchase Oneida land in violation of the 1790 Non-Intercourse Act, prohibiting the sale of tribal lands without the permission of the federal government, but it used the Doctrine of Laches to conclude that – treaty or no treaty – it was just too late for the nation to claim the land.

The “standards of federal Indian law and federal equity practice precluded the tribe from rekindling embers of sovereignty that long ago grew cold,” the majority in Sherrill wrote.

Justice John Paul Stevens, who wrote the dissenting opinion, said the majority’s action failed to fully protect the interests of Indians and, therefore, breached its responsibilities to the Oneida Nation under the Indian Trust Doctrine.

The controversial Sherrill decision generated much comment and debate among legal scholars. Sarah Krakoff, an associate professor at Colorado University School of Law at the time, said the high court’s “odd and cowardly” ruling avoided substantive legal questions.

The ruling “obscures the historical record, and makes unwarranted assumptions about the future. City of Sherrill appears in many ways to revive the underlying assumptions of some federal and state courts at mid-20th century – that tribal sovereignty is a waning concept, a historical relic that has outlived its usefulness, and has little, if any, legal force. As many commentators have noted, this assumption is directly at odds with the federal policies of the last three decades, which promote tribal independence and self-determination. In applying equitable defenses to the Oneida Indian Nation, the court is embracing an apologist stand toward the many instances of immoral and illegal governmental actions against the tribe, and ultimately suggesting that the passage of time renders that history irrelevant, indeed even unmentionable,” Krakoff wrote in the Tulsa Law Review in 2006.

The 2nd Circuit ruling echoes Sherrill’s assertion that time erases the nation’s claims for justice regarding the “many instances of immoral and illegal governmental action.”

“A tremendous expanse of time separates the events forming the predicate of the ejectment and trespass-based claims and their eventual assertion,” Judge Livingston wrote for the 2-1 majority.

“In that time, most of the Oneidas have moved elsewhere, the subject lands have passed into the hands of a multitude of entities and individuals, most of whom have no connection to the historical injustice the Oneidas assert, and these parties have themselves both bought and sold the lands, and also developed them to an enormous extent.

“These developments have given rise to justified societal expectations. ... under a scheme of ‘settled land ownership’ that would be disrupted by an award pursuant to the Oneidas’ possessory claims,” Livingstone wrote.

Oneida Indian Nation Spokesman Mark Emery issued the following statement on the ruling: “This was a claim for money damages, and the court decided that money damages are not available to compensate the Oneidas for the illegal taking of their aboriginal lands.”

The ruling does not affect the status of nation lands, he said.

“The nation continues to pursue federal trust to protect these lands, as indicated by the Supreme Court in the Sherrill case, and this decision does not affect the trust land process. Nor does this decision affect any of the earlier decisions from the federal courts, including the same Court of Appeals, that Oneida reservation remains intact and has not been disestablished, and that the counties cannot foreclose on nation lands.”

The nation can seek a rehearing by an en banc panel of the 2nd Circuit or file a petition for review with the U.S. Supreme Court.

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