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'Dark days' for New York land claims

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WORLEY, Idaho -- These are dark days for American Indian land claims,
according to a leading attorney in this area.

Robert "Tim" Coulter, executive director of the Indian Law Resource Center
in Helena, Mont., pointed to two recent adverse legal rulings in land
claims by two separate New York state tribes.

He told the annual land consolidation meeting of the Indian Land Working
Group that the Oneida and Cayuga nations of New York have both weathered
setbacks in their long-running claims recently.

The Supreme Court in March of this year held that the concept of "laches"
applied to state and local taxation claims on land the Oneidas have bought
back in an attempt to regain their traditional land base, meaning they will
be required to pay them.

The Oneida Nation (owner of Four Directions Media, publisher of Indian
Country Today) claimed its sovereignty and the fact that the land parcels
were within the boundaries of its original 1794 treaty area meant it did
not have to pay taxes to state and local governments. The city of Sherrill,
N.Y., disputed it.

The highest court said, in effect, the nation had delayed too long in
trying to assert its sovereign rights. Coulter told the meeting that this
was a specious argument, since the nation had been legally barred from
asserting its land rights for almost 200 years, until 1974.

Under laches, the court held the nation had in effect acquiesced to state
sovereignty over the areas, a notion patently absurd in Indian country.

Coulter said the justices acted on a "mistaken belief" and held no
evidentiary hearings on the history of the case. "The Supreme Court just
made it up," he said. "It was wrong."

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Unfortunately, he said, "when the Supreme Court is wrong, essentially there
is nothing you can do about it."

He called the ruling "a huge blow" and the other, against the Cayugas,
"shameful."

There, a Court of Appeals used the City of Sherrill v. Oneida Indian Nation
of New York ruling to throw out the nation's land claim altogether, saying
too much time had passed before it asserted its rights.

In that case, no land was at stake. A lower court had awarded the Cayugas
$248 million to settle their claims against the state of New York. This is
"a stunning turn of events," Coulter said.

It was an unjust decision, he said. "They didn't know the facts. They
didn't follow the law."

Ironically, the federal government, a party to the case, is trying to get
it reversed, since the concept of laches can be applied back at them, as
well.

But the chance of that happening "is very remote," he said. And, he said,
there is now the possibility that laches will be exported around the
country to be used in other Indian land claims.

What to do? Coulter advocated using strategic communications to educate the
courts on matters they seem to think are not important enough to
investigate fully. "Judges don't know the facts and the history," he said.
"We need to crack through that."