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Beyond Land Claims, Still a Future

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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 toils.

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 sovereignty.

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.