Federal judge rejects Shenandoah complaints

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ONEIDA NATION HOMELAND, N.Y. - U.S. District Court Judge Norman A. Mordue in Syracuse, N.Y. has refused to issue an injunction against eviction and demolition orders to four homes on Territory Road, but according to spokesmen on both sides of the dispute, an Aug. 20 deadline for demolition of the condemned trailers will almost certainly not be enforced.

Lawyers for the occupants of the condemned trailers have prepared appeals in both the U.S. and Oneida Nation courts, moves which would forestall enforcement of the order. Oneida Nation attorneys stated in a recent letter to the federal court that the Oneida Public Safety Department would not act while the order was being contested in the appellate level of the Nation Court.

The long-silent U.S. District Court issued a 15-page ruling Aug. 8 which answered Judge Mordue's previous question whether the court had "subject matter jurisdiction" in the case. The decision in the case styled Maisie Shenandoah, et al. v. Arthur Raymond Halbritter, et al. said that none of the actions against the Shenandoahs, long-time critics of the Oneida government, amounted to the restraints on personal liberty that would trigger the writ of habeus corpus, the one remedy that federal courts can exercise under the Indian Civil Rights Act.

Wrote Judge Mordue, "plaintiffs in the instant case have not alleged that they were banished from the Nation, deprived of tribal membership, formally convicted of any crime, or that defendants attempted in any way to remove them from Oneida territory."

The eviction and demolition orders were issued at the end of July under an Oneida Nation housing safety ordinance that has sanctioned the removal of more than a dozen condemned structures on Territory Road, the focus of the once only remaining 32 acres of the Oneida homeland. (The Oneida Indian Nation has since reacquired some 16,000 acres of the original reservation.) Many of these owners have rebuilt on the original 32-acre site, using a $50,000 housing grant provided by the Oneida Nation to its members.

But the four orders in dispute, and one previously executed, involve families who were deemed to have "lost their voice" in the Oneida Nation in a mid-90s leadership dispute. These families are considered ineligible for the housing grant, although other forms of relocation assistance were offered in an earlier case. Three of the trailers belong to Maisie Shenandoah, 71, and two of her daughters, Diane Shenandoah and Vicky Shenandoah-Halsey.

A third daughter, Danielle Shenandoah-Patterson, agreed to vacate her trailer last October after she was arrested by Oneida Nation police and held over a weekend in jail in western Pennsylvania on charges of assaulting an officer and contempt of court. The charges arose from a confrontation when Oneida safety officials inspected her trailer. They were dropped or reduced to time served as part of the agreement.

Judge Mordue noted in his decision that the Oneida Nation Housing Director had offered Patterson a home "in the Nation's Village of the White Pines Development less than half a mile from the location of her condemned trailer." Patterson rejected the offer.

Maisie Shenandoah, a clan mother of the Wolf Clan who no longer sits in council, is the aunt of Ray Halbritter, Oneida Nation Representative, who leads the government established by the Oneida Men's Council and Clan Mothers and is chief executive of Oneida Nation Enterprises, including its profitable Turning Stone Casino Resort.

The fourth trailer under the current condemnation belongs to members of the Thomas family; Larry, Arnold, Curtis and Danny. According to an Oneida Nation spokesman, the Thomases are members of the Onondaga Nation. A fifth home belonging to Kirby Watson was deemed "habitable" after correction of several hazardous conditions.

The four condemnation orders cited the lack of safe foundations, absence of tie-downs or anchors, faulty electrical wiring, inadequate heating, improperly installed wood stoves, poor condition of exterior doors, holes in the roof and leaking sanitary lines. These are deemed violations within the Oneida Nation's housing code.

Judge Mordue rejected the plaintiff's argument that the housing ordinance constituted a "Bill of Attainder." The motion filed in late July said the program "has nothing to do with improving plaintiff's homes, but has everything to do with inflicting only upon the plaintiffs the additional punishment of being made truly homeless as well as being forcibly ejected from and rendered unable to live on the 32-acre sovereign territory, which is the plaintiff's homeland and sovereign nation and birthright."

Judge Mordue called this argument "unavailing," saying that the ordinance "does not target individuals nor does it 'punish' persons in the traditional prohibitive sense."

The Nation made only this brief formal statement on the eviction notices: "The Oneida Indian Nation based its decision on safety and health concerns and as always acted in the best interests of all involved, especially the children." Oneida leaders have long maintained that the housing ordinance was a response to the traumatic memory of a fire in a trailer on Territory Road similar to those condemned that killed an elderly couple in 1975.

The Shenandoahs' lawyer, Donald Daines of Princeton, N.J., argued that the Oneida government "purposely and intentionally designed" the housing program "in order to remove the plaintiffs FROM their homes AND the 32-acre Sovereign Territory AS ADDITIONAL PUNISHMENT for the plaintiffs daring to exercise their right of free speech and express their continued opposition to the defendants' seizure and exercise of control over the Oneida Indian Nation." (Emphasis in original.)

The appellate argument might well center on how expansive an understanding of habeus corpus the federal courts are willing to apply to Indian law.

Daines told Indian Country Today he volunteered to act as pro bono attorney in federal court for the 10 people now covered by the eviction notice after the demolition of Danielle Patterson's trailer last October. He said he first filed the case with U.S. Judge Norman A. Mordue 10 months ago and asked for an injunction to prevent enforcement of the housing ordinance five months ago.

Judge Mordue declined to rule on Nov. 13, questioning "whether there is any basis for district court jurisdiction." He cited the principle that courts will not act on hypothetical circumstances. The issuance of the eviction order, however, gave the court specific grounds for action. Mordue did add, however, that some charges about future actions of the Oneida government were still speculative "since the inspection, condemnation and demolition process has been stayed pending disposition of plaintiff's appeals in the Oneida Nation Appellate Court."

Daines argued that the housing ordinance did not cover homes similar in condition to those condemned but owned by Oneidas in good standing in other parts of the homeland.

However, a spokesman for the Oneida Nation said the ordinance was meant to upgrade Territory Road. It is not clear what rights the occupants of the condemned structures have to further use of the lots, although several other Territory Road residents have rebuilt on their original sites.

The plaintiffs in the federal suit have also filed appeals to the eviction notices in the Oneida Tribal Court. Their attorney is Barbara Olshansky of the New York City-based Center for Constitutional Rights.

The OIN communications department declined to discuss the federal motion, saying "We cannot comment on pending litigation."