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Appeals court trio turns down Shenandoah eviction appeal
Posted: April 09, 2004 - 10:44am EST
by: Jim Adams / Associate Editor / Indian Country Today
ONEIDA NATION HOMELAND, N.Y. - A three-judge federal Court of Appeals panel has refused to intervene in the housing ordinance controversy on the Oneida Nation’s Territory Road, but a lawyer for residents fearing eviction said they would appeal to the full 2nd Circuit Court and possibly to the U.S. Supreme Court.
Donald Daines, attorney for the 19 residents suing to block condemnation of their houses under the ordinance, told Indian Country Today he would file for reconsideration of the decision by the three-judge panel or by the full 14 members of the 2nd Circuit Court of Appeals. If they failed to reverse, he said he would then apply to the U.S. Supreme Court to take the case.
In the meantime, Daines filed a motion to stay any Oneida Nation action on the housing, citing a December 2003 agreement by the Nation’s attorneys to wait for the outcome of the appeal. "The appeal is not completed yet," he said.
Although homes belonging to families bringing the suit have been condemned under the ordinance, spokesmen for the Oneida Indian Nation said that no date had been set for their demolition while appeals were under way. They said the nation "was not making any comments pending review of the decision." The Oneida Indian Nation has offered alternative housing to the families, who have refused it, contending that the Oneida Indian Nation does not represent them as a government.
The challenge to the ordinance has now gone through three layers of appeal. Oneida leaders have always maintained that the safety code was inspired by a traumatic house fire on Territory Road in 1976, which took two lives.
Under current leadership, the Oneida Nation opened the Turning Stone Casino in July 1993 and used its profits to build a new housing development for tribal members about half a mile north of Territory Road. (Another Oneida Nation enterprise, Four Directions Media, is the publisher of Indian Country Today.)
The April 2 decision by Senior Circuit Judge Ellsworth van Graafeiland upheld the District Court ruling that federal courts had no jurisdiction in the matter. The only grounds available under the Indian Civil Rights Act, said the ruling, was a writ of habeas corpus, to free a person from an unjust restraint on personal liberty.
Although van Graafeiland allowed that tribal banishment could fall under that jurisdiction, he said that the current case involved an "economic constraint," the potential destruction of housing failing to meet the Nation’s safety code, rather than "a restraint on liberty."
"In the instant case, [the Oneida Indian Nation’s] enforcement of their housing ordinance did not constitute a sufficiently severe restraint on liberty to invoke this Court’s habeas corpus jurisdiction," he wrote.
This drawn-out case involves an Oneida Nation housing safety ordinance requiring inspection of homes on Territory Road, the original 32 acres of the recovered Oneida homeland, and renovations to bring them up to code. The ordinance also provides for demolition of structures deemed unable to meet the code.
Some of the oldest structures on the road belong to families who reject the legitimacy of the current Oneida government. Some individuals from these families were declared to have "lost their voice" in Oneida Indian Nation affairs as the result of earlier disputes. They argue that because they are ineligible for a Nation program to fund rebuilding of their homes on their original site, the ordinance is a disguised means of evicting them.
Inspections under the ordinance have led to the demolitions of about a dozen structures, including one belonging to a member of the Oneida Men’s Council, and at least three new homes have replaced them. OIN spokesman Mark Emery also noted that two homes belonging to opponents of the government had passed the inspection.
In perhaps the most emotional moment of the controversy, a trailer belonging to Danielle Patterson was demolished on Oct. 23, 2002, shortly after she was arrested and briefly jailed out of state after failing to appear in tribal court on a charge of assaulting a tribal police officer.
The case reflects an ongoing dispute within the Oneida Nation, and the most bitter dissension comes within the Wolf Clan and close relatives of the same family. The matriarch of the plaintiffs, Maisie Shenandoah, 72, is described in a release from her group as a Traditional Wolf Clan Mother and 11 of her co-plaintiffs are her daughters or grandchildren. She is also sister to Gloria Halbritter, mother of Nation Representative Arthur Raymond Halbritter, whom they accuse of usurping power in a 1993 BIA "coup d’état."
According to a statement they released after the decision, "The plaintiffs remain steadfast in their rejection of the 1993 action of the U.S. Bureau of Indian Affairs to force Halbritter into power over the objection of the 1,000-year-old traditional Haudenosaunee Confederacy that signed the Treaty of Canandaigua in 1794."
However, during the time of the 1993 incident cited, in which a group consisting largely of external participants requested then BIA chief Ada Deer to remove federal recognition from the Oneida Nation government, Maisie Shenandoah was a sitting member of that same government. Along with other council members she defended the legitimacy of the Oneida Nation under the leadership of Raymond Halbritter. In a September 15, 1993 letter to Ada Deer signed by various members of the Council, including Maisie Shenandoah, the Assistant Secretary was chastised for having "met with persons outside the Oneida Indian Nation of New York who told you that the Nation no longer wished Ray Halbitter to be the Nation’s Representative and leader."
The letter goes on to state that more than 90 percent of enrolled adult members of the Oneida Nation signed statements of support of "the Nation’s traditional government" and that "Ray Halbritter was selected through the legitimate governmental process."
What emerges from Shenandoah’s own letter and that of the Council is a picture, not of a BIA "coup d’état" that installed Halbritter against the wishes of his people, but of an effort by another Oneida member, Wilbur Homer Jr., Onondaga Chief Leon Shenandoah and others, to install Homer as Oneida Nation Representative. The letter states that Deer was told by Homer and others that the Grand Council of the Six Nations Confederacy had the right to remove and choose leaders of the Oneida Indian Nation of New York. "Such a ‘right’ is inconsistent with our sovereignty," the Oneida Nation letter states.
The Oneida Nation letter also states that Homer "avoided the traditional Nation process" of consensus because he had no support. Homer was also a fugitive at the time sought on warrants in New York’s Madison and Onondaga counties. He was later arrested in Syracuse.
Although the BIA had briefly complied with Homer’s request it quickly reversed itself when, among other things, it received a petition supporting the Oneida Nation government and Halbritter signed by the vast majority of the Oneida people. Along with other Oneida Nation council members Maisie Shenandoah also appeared at a meeting with BIA officials on Aug. 10, 1993, to argue against the BIA’s faulty recognition of Homer.
The dispute between the Shenandoah and other Oneida Nation families emerged later and dealt with matters not related to the BIA.
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This article can be found at http://IndianCountry.com/?1081522002
Posted: April 09, 2004 - 10:44am EST
by: Jim Adams / Associate Editor / Indian Country Today
ONEIDA NATION HOMELAND, N.Y. - A three-judge federal Court of Appeals panel has refused to intervene in the housing ordinance controversy on the Oneida Nation’s Territory Road, but a lawyer for residents fearing eviction said they would appeal to the full 2nd Circuit Court and possibly to the U.S. Supreme Court.
Donald Daines, attorney for the 19 residents suing to block condemnation of their houses under the ordinance, told Indian Country Today he would file for reconsideration of the decision by the three-judge panel or by the full 14 members of the 2nd Circuit Court of Appeals. If they failed to reverse, he said he would then apply to the U.S. Supreme Court to take the case.
In the meantime, Daines filed a motion to stay any Oneida Nation action on the housing, citing a December 2003 agreement by the Nation’s attorneys to wait for the outcome of the appeal. "The appeal is not completed yet," he said.
Although homes belonging to families bringing the suit have been condemned under the ordinance, spokesmen for the Oneida Indian Nation said that no date had been set for their demolition while appeals were under way. They said the nation "was not making any comments pending review of the decision." The Oneida Indian Nation has offered alternative housing to the families, who have refused it, contending that the Oneida Indian Nation does not represent them as a government.
The challenge to the ordinance has now gone through three layers of appeal. Oneida leaders have always maintained that the safety code was inspired by a traumatic house fire on Territory Road in 1976, which took two lives.
Under current leadership, the Oneida Nation opened the Turning Stone Casino in July 1993 and used its profits to build a new housing development for tribal members about half a mile north of Territory Road. (Another Oneida Nation enterprise, Four Directions Media, is the publisher of Indian Country Today.)
The April 2 decision by Senior Circuit Judge Ellsworth van Graafeiland upheld the District Court ruling that federal courts had no jurisdiction in the matter. The only grounds available under the Indian Civil Rights Act, said the ruling, was a writ of habeas corpus, to free a person from an unjust restraint on personal liberty.
Although van Graafeiland allowed that tribal banishment could fall under that jurisdiction, he said that the current case involved an "economic constraint," the potential destruction of housing failing to meet the Nation’s safety code, rather than "a restraint on liberty."
"In the instant case, [the Oneida Indian Nation’s] enforcement of their housing ordinance did not constitute a sufficiently severe restraint on liberty to invoke this Court’s habeas corpus jurisdiction," he wrote.
This drawn-out case involves an Oneida Nation housing safety ordinance requiring inspection of homes on Territory Road, the original 32 acres of the recovered Oneida homeland, and renovations to bring them up to code. The ordinance also provides for demolition of structures deemed unable to meet the code.
Some of the oldest structures on the road belong to families who reject the legitimacy of the current Oneida government. Some individuals from these families were declared to have "lost their voice" in Oneida Indian Nation affairs as the result of earlier disputes. They argue that because they are ineligible for a Nation program to fund rebuilding of their homes on their original site, the ordinance is a disguised means of evicting them.
Inspections under the ordinance have led to the demolitions of about a dozen structures, including one belonging to a member of the Oneida Men’s Council, and at least three new homes have replaced them. OIN spokesman Mark Emery also noted that two homes belonging to opponents of the government had passed the inspection.
In perhaps the most emotional moment of the controversy, a trailer belonging to Danielle Patterson was demolished on Oct. 23, 2002, shortly after she was arrested and briefly jailed out of state after failing to appear in tribal court on a charge of assaulting a tribal police officer.
The case reflects an ongoing dispute within the Oneida Nation, and the most bitter dissension comes within the Wolf Clan and close relatives of the same family. The matriarch of the plaintiffs, Maisie Shenandoah, 72, is described in a release from her group as a Traditional Wolf Clan Mother and 11 of her co-plaintiffs are her daughters or grandchildren. She is also sister to Gloria Halbritter, mother of Nation Representative Arthur Raymond Halbritter, whom they accuse of usurping power in a 1993 BIA "coup d’état."
According to a statement they released after the decision, "The plaintiffs remain steadfast in their rejection of the 1993 action of the U.S. Bureau of Indian Affairs to force Halbritter into power over the objection of the 1,000-year-old traditional Haudenosaunee Confederacy that signed the Treaty of Canandaigua in 1794."
However, during the time of the 1993 incident cited, in which a group consisting largely of external participants requested then BIA chief Ada Deer to remove federal recognition from the Oneida Nation government, Maisie Shenandoah was a sitting member of that same government. Along with other council members she defended the legitimacy of the Oneida Nation under the leadership of Raymond Halbritter. In a September 15, 1993 letter to Ada Deer signed by various members of the Council, including Maisie Shenandoah, the Assistant Secretary was chastised for having "met with persons outside the Oneida Indian Nation of New York who told you that the Nation no longer wished Ray Halbitter to be the Nation’s Representative and leader."
The letter goes on to state that more than 90 percent of enrolled adult members of the Oneida Nation signed statements of support of "the Nation’s traditional government" and that "Ray Halbritter was selected through the legitimate governmental process."
What emerges from Shenandoah’s own letter and that of the Council is a picture, not of a BIA "coup d’état" that installed Halbritter against the wishes of his people, but of an effort by another Oneida member, Wilbur Homer Jr., Onondaga Chief Leon Shenandoah and others, to install Homer as Oneida Nation Representative. The letter states that Deer was told by Homer and others that the Grand Council of the Six Nations Confederacy had the right to remove and choose leaders of the Oneida Indian Nation of New York. "Such a ‘right’ is inconsistent with our sovereignty," the Oneida Nation letter states.
The Oneida Nation letter also states that Homer "avoided the traditional Nation process" of consensus because he had no support. Homer was also a fugitive at the time sought on warrants in New York’s Madison and Onondaga counties. He was later arrested in Syracuse.
Although the BIA had briefly complied with Homer’s request it quickly reversed itself when, among other things, it received a petition supporting the Oneida Nation government and Halbritter signed by the vast majority of the Oneida people. Along with other Oneida Nation council members Maisie Shenandoah also appeared at a meeting with BIA officials on Aug. 10, 1993, to argue against the BIA’s faulty recognition of Homer.
The dispute between the Shenandoah and other Oneida Nation families emerged later and dealt with matters not related to the BIA.
--------------------------------------------------------------------------------
This article can be found at http://IndianCountry.com/?1081522002
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