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America's Short Memory For Indian Justice

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  • America's Short Memory For Indian Justice

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    America's Short Memory For Indian Justice

    (javascript:PrintWindow();) Posted: May 19, 2006 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,

    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

    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.
    Don't worry that it's not good enough for anyone else to hear... just sing, sing a song.sigpic

  • #2
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    Supreme Court Drops Cayuga Land Claim Case

    (javascript:PrintWindow();) Posted: May 19, 2006 by: _Jim Adams_
    ( / Indian Country Today

    _Click to Enlarge_ (
    ( AP
    photo/Manuel Balce Ceneta -- The U.S. Supreme Court, under Chief Justice John Roberts
    and Justice John Paul Stevens, declined on May 15 to add the case of the Cayuga
    Indian Nation's generation-old land claim to its fall docket. That decision
    lets stand a 2nd Circuit Court of Appeals panel ruling dismissing the Cayuga
    case; it also endangers existing land claim lawsuits. Decision jeopardizes
    historic claims suits

    CAYUGA HOMELANDS, N.Y. - Slamming the door on the Cayuga Indian Nation's
    generation-old land claim in central New York and threatening an end to similar
    lawsuits across the country, the U.S. Supreme Court declined on May 15 to add
    the case to its fall docket.

    The decision, announced without explanation, lets stand a ruling by a
    sharply divided 2nd Circuit Court of Appeals panel dismissing the Cayuga case out
    of hand. The 26-year-old federal lawsuit had generated some 18 lower court
    decisions, a District Court judge's ruling upholding the Cayuga claims and a
    jury trial monetary award raised by the judge to nearly $248 million.

    The 2nd Circuit Court reversal by Judge Jose Cabranes was so sweeping and,
    according to some critics, so filled with ''legal errors'' that it seemed a
    strong candidate for the rarely granted Supreme Court review. The one dissenter
    on the three-judge panel filed a long, closely argued opinion strongly
    critical of Cabranes' ''novel'' reworking of the law.

    The court's inaction surprised and shocked veterans of the Indian law field.
    ''I think it's disgraceful,'' said Robert ''Tim'' Coulter, counsel for the
    Indian Law Resource Center. Richard Guest, attorney with the Native American
    Rights Fund, said the court had become ''result-driven,'' bending legal
    principles or making them up to frustrate Indian claims based on solid precedent.

    Tribal leaders were less diplomatic.

    ''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.''

    Tribal frustration was mirrored by jubilation from upstate New York
    politicians and activists who have fought bitterly against the revival of the nations
    of the Haudenosaunee (Iroquois) Confederacy. Some called for an end to all
    land claims negotiations with the state's Indians and an immediate effort by
    the state to dismiss the half-dozen other ongoing suits.

    A lawyer for the Cayugas said that now that its land claim suit was dead,
    the nation would concentrate on a land-into-trust application now pending with
    the Interior Department.

    The Cayuga Nation recently operated two small Class II

    gaming rooms on land they claimed as sovereign until a federal court
    reversed that status.

    Other Haudenosaunee nations argued that their land suits differed in crucial
    respects from the Cayuga's and would carry on.

    Immediately after the Supreme Court announcement, the Onondaga Nation said
    of their case, ''While it differs from the Cayuga suit in that it does not
    seek 'disruptive' remedies, the underlying crimes and injustices are virtually
    identical. The historical facts that the Cayugas did everything they could,
    that they did not wait too long and that New York knowingly and repeatedly
    violated federal law and treaties were not contested by the Court of Appeals. The
    Onondaga will continue their suit regardless of today's grave injustice.''

    The St. Regis Mohawk Tribal Council released a point-by-point comparison
    highlighting differences from the Cayuga complaint. Their negotiations also
    involve the Federal Energy Regulatory Commission's re-licensing of the New York
    Power Authority's St. Lawrence FDR Power Project.

    Since Interior has taken jurisdiction over islands within the power project
    claimed by the Mohawks, the St. Regis council said it still had leverage in
    its negotiations with the New York state government. It called for the state
    to honor a land settlement that Gov. George Pataki and tribal leaders signed
    last year.

    The Mohawk agreement came within a day of ratification by the New York
    Legislature last summer, but was blocked at the last minute by state Senate
    Republican leader Joseph Bruno, whose son at the time held a lobbying

    contract with an out-of-state Haudenosaunee tribe also seeking a land

    The Oneida Indian Nation of New York said May 15 through spokesman Mark
    Emery, ''This decision does not affect the Oneida's case, which has additional
    claims not at issue in the Cayuga case. The Oneida land claim is valid and
    continues to move forward.'' (The OIN owns Four Directions Media, publisher of
    Indian Country Today.)

    Don't worry that it's not good enough for anyone else to hear... just sing, sing a song.sigpic


    • #3
      Guest, 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 Cabranes' dismissal of the Cayuga case could be used across
      the country to defeat Indian claims on a range of historic issues. He said
      that the Supreme Court Project of NARF and the National Congress of American
      Indians had already scheduled a conference call May 21 to strategize with its
      panel of legal advisers on dealing with an expected wave of dismissal motions.

      The legal trail to dismissal of the Cayuga case began with a separate
      federal lawsuit between the Oneida Nation and the city of Sherrill, N.Y., in which
      the OIN owned several parcels of property.

      The Oneidas maintained that when they reacquired land in their original
      reservation boundaries, they also re-established tribal sovereignty; hence, the
      land was no longer subject to city property taxes. Although their argument
      prevailed through the 2nd Circuit Court of Appeals, the Supreme Court took up
      the case in City of Sherrill v. the Oneida Indian Nation of New York.

      Apparently alarmed by the spread of tribal jurisdiction, the court held, by
      an 8 - 1 decision on March 29, 2005, that the nation could not unilaterally
      reassert sovereignty.

      In writing that opinion, Justice Ruth Bader Ginsburg used three obscure
      legal doctrines to conclude that the OIN's remedy for past illegal expropriation
      of its land would cause too much disruption to the non-Indian civilization
      that had grown up there. One of these doctrines was ''laches,'' almost
      invariably but inaccurately described in the press as meaning that a party ''had
      waited too long'' to assert its rights. But Ginsburg said she was not overruling
      two previous Supreme Court decisions allowing the Oneidas to bring their land
      claims suit.

      Nonetheless, Cabranes seized on Sherrill to throw out the Cayuga award
      completely and dismiss it without referring it back to District Court. He said
      that Sherrill had ''completely changed the legal landscape'' on Indian claims.
      Disagreeing with Cabranes, Connecticut Federal District Court Judge Judith
      Hall filed a dissent saying that even the changed landscape didn't justify his
      drastic revisions of old legal doctrines.

      Solicitor General of the United States Paul D. Clement, the chief lawyer for
      the executive branch, went even further in a brief

      urging the Supreme Court to overturn Cabranes. The brief, co-authored by
      Assistant Attorney General Sue Ellen Wooldridge, formerly chief legal office at
      Interior, said that Cabranes' analysis was ''deeply flawed,'' ''fundamentally
      misguided'' and marked by ''serious legal errors.''

      In a brief, N.Y. Attorney General Eliot Spitzer argued that Cabranes was
      well within the guidelines of Sherrill and that he raised no federal issues

      warranting Supreme Court review. Echoing a historic argument for
      dispossessing Indians, he said that ''subsequent landowners developed the land from an
      empty wilderness to the many towns, villages and improv-ements in the region,
      and the lands are worth incalculably more than they were when the Cayugas
      sold them over 200 years ago.''

      Cabranes' decision may be tainted by a possible conflict of interest.
      Cabranes lives in a suburb of New Haven, Conn., which falls within the aboriginal
      territory of the state-recognized Golden Hill Paugussett tribe, which filed a
      highly inflammatory series of land claims against individual land owners a
      decade ago and in recent years has threatened to bring even more.
      Don't worry that it's not good enough for anyone else to hear... just sing, sing a song.sigpic


      • #4
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        Beyond Land Claims, Still A Future

        (javascript:PrintWindow();) Posted: May 19, 2006 by: _Editors Report_
        ( / Indian Country Today

        The U.S. Supreme Court may effectively have signaled the end of a
        generation of large Indian land claims May 15 when it refused to review Judge Jose
        Cabranes' ''deeply flawed'' rejection of the Cayuga suit in New York state.
        Without detracting from the outrage at the court's abandonment of Indian
        rights, we suggest that this period might have actually outlived its strategic
        moment. The land claims date to an earlier period of Native activism in a wholly
        different context of American political life, and that even the successes
        have had decidedly mixed consequences.

        The suits first became possible in 1974, when the Supreme Court decision in
        County of Oneida v. Oneida Indian Nation (later known as Oneida I) opened
        the federal courts to cases based on violations of the Trade and Intercourse
        Act. They were previously barred by a jurisdictional runaround, not for lack of
        trying. A wave of suits in the late 1970s brought a wave of congressional
        settlement acts in the early 1980s, conveying federal recognition, some land
        returns and cash. The situation in New York state is unique. That enlightened
        government refused to negotiate decades after Maine, Massachusetts, Rhode
        Island and Connecticut, among others, had struck their deals.

        It could well turn out that the New York tribes were lucky. As bold as the
        initial claims might have been, some of the New England tribes accepted terms
        that they came to regret bitterly. The state and federal act for the
        Penobscot and Passamaquoddy in Maine placed them on a par with state municipalities.
        They struggled to assert tribal sovereignty earlier this decade when large
        paper companies sued them for access to tribal records. The result was a
        contempt of court citation threatening the heads of three tribal governments with
        jail terms.

        The Maine Indian Claims Settlement Act was the low point. The Aroostook Band
        of Micmac Indians in Maine won recognition later and managed to escape its

        Other states were less clever in compromising tribal sovereignty, but some
        state courts came along later to do the job. The Supreme Judicial Court of
        Massachusetts simply disregarded Aquinnah Wampanoag sovereignty last year in a
        bizarre decision on a zoning dispute. When the courts upheld tribal rights, a
        strategically placed senator stepped in.

        The late U.S. Sen. John H. Chafee, R-R.I., overrode a federal court
        affirmation of the Narragansett Indians' gaming rights in the mid-1990s by attaching
        a ''midnight rider'' to an appropriation bill excluding the tribe from the
        Indian Gaming Regulatory Act. The tribe is still struggling to win a casino.

        These early settlements predated the boom in Indian gaming. Deals in Maine
        and Texas even placed those tribes under state gaming regulation, another
        cause of bitter regret later on. But the phenomenal success of the casinos in
        Connecticut vastly changed the stakes.

        Negotiations in New York as the land suits entered the new millenium came to
        focus on a global deal in which the tribes would receive their compensation
        through casinos in the Catskills.

        This ploy poisoned the already tenuous relations among the members of the
        Haudenosaunee (Iroquois) Confederacy as they jostled for the limited gaming
        allotments. And it led some to further abandon their sovereign rights.

        In a brazen display of bad faith, negotiators for Gov. George Pataki
        insisted that the Indian nations accept the collection of state sales taxes as the
        price for a casino. Only the Senecas stoutly resisted. Not coincidentally,
        they are the only ones who have opened new casinos under Pataki's gaming law.
        The St. Regis Mohawks held out for an ambiguous recognition of tax sovereignty
        on their reservation but accepted the principle of state collections at the
        putative Catskills casino, which would still, if and when it materializes, be
        their sovereign territory.

        The Cayugas splintered. Sadly, the Seneca-Cayuga government in Oklahoma
        completely collapsed on the tax issue. The Cayuga Nation leader in New York,
        Clint Halftown, signed a tax concession with the state and then repudiated it. A
        faction of the tribal council canoodled with their gaming backer. Traditional
        leaders found the whole thing repugnant but factionalized as well.

        The Supreme Court might have done them all a favor. It might be hard to say
        goodbye to a quarter of a billion dollars, but generations from now that will
        not seem too high a price to pay to uphold the principle of tribal

        And as the Maine tribes learned, it doesn't take seven generations for the
        consequences of a sellout to slap you in the face. With land claims at a dead
        end, or at the very least, a very steep uphill climb, it's time for the
        tribes to take stock of the new strategies, which have risen in the last
        generation and which are working.

        Sovereignty is the key, not a court settlement. Purely legalistic arguments
        can be defeatingly tunnel-visioned. The real gains are coming through
        self-government and self-reliance. A court-ordered trust fund can be squandered.
        Regained land under state restrictions can be a bitter prize. But even 200 acres
        under true sovereign control can be the nucleus for a tribal rejuvenation.
        The Cayuga have announced they are now focused on that path, which will take
        them through another set of bureaucratic and legal brambles. But it will
        leave their future generations with a much firmer foundation. We wish them well.
        Don't worry that it's not good enough for anyone else to hear... just sing, sing a song.sigpic


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