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Fundamental justice shaken in Iroquois land cases

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It sure seems a recurrent theme these days that America is returning to its
worst practices when it comes to Indian relations. The fundamental justice
once envisioned on the New York state Indian land claims now clouds over in
America's recurring amnesia about its legitimate debts to Native peoples,
whose real property was stolen.

Particularly since 1974, when the Oneida land claims case opened the doors
for tribes to finally gain standing in court to sue New York state over
fraudulent transactions, a very substantial load of cases has been heard
and adjudicated, while political deals have been struck and broken too many
times to count.

One reality is that New York state, despite that fateful 1974 decision by
the U.S. Supreme Court (and a subsequent companion decision in 1985), has
stalled, threatened, cajoled and tried to buy out tribal leadership from
among the various governments and communities involved in New York,
Oklahoma, Wisconsin and Ontario - the Oneida, Cayuga, Seneca,
Seneca-Cayuga, Stockbridge-Munsee and Mohawk.

Divide and conquer has been the name of the game. As the land claims cases
have dragged out, anyone peeved by Indians, racist against Indians, or who
has in any way - economically or psychologically - been adversely affected
by the tribal assertion of self-governmental jurisdiction has come after
Indians with a passion.

In central New York, the anti-Indian organization Upstate Citizens for
Equality, coalesced with non-Native convenience store operators, has led a
willing press into making a huge ruckus about the supposed tax revenue
losses to the state and about the "social disruption" of tax-protected
Indian jurisdictions in their region. These organized groups talk and
influence media regularly and become visible far beyond their numbers.
Thus, their issues are the ones that get discussed as primary in media and
by policymakers. Thus, their points of view are most likely to resonate
with high judges and their clerks as well.

A second reality is that the collective leadership of each and every Native
nation in New York has failed miserably at strengthening its collective
hand versus the state, choosing mostly to go it alone, to pursue
self-interest primarily, to fight each other constantly for positioning and
turf and to decimate each other's political moves and personal reputations
at every opportunity. Indian disunity in New York is presently so pervasive
that even the bitter enemies of Indian sovereignty are perplexed by it all.

The Supreme Court led the way recently by making political decisions on
these important Indian law cases, rather than sustain principles by which
justice, at last, appeared to be revealed on the horizon of tribal futures.
The court's trail of decisions on Indian self-government and tribal rights
to land needs serious academic and international scrutiny. It went out of
its way recently in the case of City of Sherrill v. Oneida Indian Nation of
New York, and denied an Indian nation's right to even buy back its
historical and illegally taken (stolen) reservation lands.

The doctrine invoked was "laches," which dictates that cases can be
disallowed if victims take too long to bring their case to court. The
Eastern Indian land cases nearly all hark back to the pre-and
post-Revolutionary War years, give or take a decade or two. Laches had not
been an issue in the case. The high court picked it out of references in
earlier cases and applied it, reasoning that: 1. The crime occurred so long
ago, and the tribes had waited too long to bring the matter to court; and
2. The remedy would be too "disruptive" to the majority, mostly non-Indian
population, so the Indians must think of something else.

Four months after the Sherrill reversal, and quickly based on its logic,
came a second damaging decision - this one by the U.S. 2nd Circuit Court of
Appeals - to deny the previously decided $248 million award to the Cayuga
Nation of New York. The reasoning in this opinion (written by a judge who
lives near a land claims area) also follows the high court's Sherrill
doctrine of laches - again, blaming the Indians for taking too long to get
their case to court.

This is, of course, a rather corrupt and disingenuous rendering of history.
The state places huge burdens upon those Indian peoples who were fortunate
enough to survive the Revolutionary War and its aftermath. Reduced to
poverty and the daily struggle to survive, Indian lands are taken without
federal approval. Finally, once the Indian nations gain the resources and
capacities to pursue justice, the courts say Sorry, you've waited too long.

This isn't justice: it's a cynical excuse.

Judge Jose A. Cabranes penned the 2nd Circuit decision against the Cayuga.
He cited the Sherrill decision as backup to reverse Northern District of
New York Judge Neil P. McCurn, who after many years of study had found that
treaties signed in 1795 and 1807 between the Cayuga Nation and the state
were invalid under the Trade and Intercourse Act, 25 U.S.C. 177.
Consequently, Cayugas were awarded their $248 million settlement. But
Cabranes claimed Sherrill "has dramatically altered the legal landscape
against which we consider plaintiffs' claims."

In his decision, Cabranes interpreted Sherrill to say "doctrines, such as
laches, acquiescence, and impossibility, can, in appropriate circumstances,
be applied to Indian land claims, even when such a claim is legally viable
and within the statute of limitations." A key argument was that "these
equitable defenses apply to 'disruptive' Indian land claims more
generally."

The 2 - 1 ruling by the U.S. 2nd Circuit Court of Appeals June 28 throws
"out 25 years of litigation, a jury trial verdict and a District Court
judge's award of nearly a quarter of a billion dollars in favor of the
Cayugas," wrote Indian Country Today Associate Editor Jim Adams.

Both decisions were completely outside normal legal precedents. The judges
in both cases relied on overarching theories applied at random and by
collective but personal fiat upon highly complex cases that cry out for
justice and not to be shut out again after 30 years of hope that truth
would prevail in the American system.

Thus the wall of injustice grows. To cite the doctrine of laches in these
cases is a farce. Either an injustice, based on greed and crime, was
committed, or it was not. The courts have said that such a crime was indeed
committed; and furthermore, they have established that these tribal
entities, governments and communities are direct descendents of the owners
of the real properties whose theft was approved by the state.

Substantial documentation and tribal memory of the loss of the lands
remains in the Indian communities and in the record of these cases. It took
until 1974 - after 200 years of public, if not "court recognized,"
complaints - for the Haudenosaunee nations to gain standing to sue the
culprits of their dispossession. If rendering justice was the intent,
rather than making new policy the high court judges would recognize that
the Indian nations did not "take too long" to bring their cases to court:
the courts themselves denied and thus delayed the Indian nations' efforts
to have their cases heard properly and fairly. The Indian nations have
consistently complained about these fraudulent land losses.

Seneca historian Dr. John Mohawk (Native Americas Journal, Spring 2000)
traced some of the trajectory of continuous complaints, the earliest being
by Iroquois fighters and refugees from the Revolutionary War who returned
to their villages and farms in the Mohawk Valley to find them given over
"legally" and taken over physically by decommissioned colonial soldiers and
others being repaid by the early American government.

The nations, clans and families of these complainants, many of whom fought
for the American side of the Revolution, still exist. Over generations they
tried to take their cases to court and petitioned the legislatures, but
were denied access as non-citizens. "Indians were not permitted to bring
suit or even to give testimony against an Englishman," wrote Mohawk.

Many are the interventions and complaints by Indians through several
decades, requesting from Albany and Washington "a way to expel squatters
and other intruders without resorting to violence or war." As early as
1790, it was only after an Iroquois delegation complained bitterly to
President George Washington about fraudulent land thefts approved by New
York state that Congress passed the 1790 Trade and Intercourse Act, which
barred the states from such transactions and upon which so many of the
Iroquois cases are based.

As we go to press, a decision by federal District Court Judge David Hurd
has granted the Oneida Nation a preliminary injunction, requesting that
Madison County stop foreclosure proceedings against the tribe based on the
Sherrill case. Hurd, who has studied these cases longer than most people,
pointed out the complexity of the longstanding dispute and reiterated that
the property tax case should proceed slowly so every important federal
issue can be resolved. We applaud Hurd's wise intervention which, at least
temporarily and, we hope in the final analysis, more permanently, will
bring just closure to the case.

As the federal courts have begun their push of the tribes down the slippery
slope to judicial termination, there is a pressing need to elaborate the
legal, historical and cultural basis of American Indian rights.
Economically powerful tribes and alert American foundations must pay
serious attention to the support of productive and effective materials,
both legal and media articles, that can be generated and widely circulated.
It is completely crucial that Native peoples take their most intelligent
and compelling case to the American public and to their own people. Only
substantial and proliferous trenches of allies and concerned members of the
public will provide anchor against the swift avalanche of lies, slander and
negativity that now threatens to wipe away tribal freedoms.