One of the weekly newspapers in central New York recently published an op-ed piece written by state Assemblyman Brian Kolb. Kolb, a Republican, represents New York’s oddly shaped 129th Assembly district, which snakes through the Finger Lakes region. Part of this area includes the ancestral territory of the Cayuga Indian Nation. In his haste to demonize the Cayugas for exercising their legal right to apply to place land into federal trust, Kolb demonstrated a lack of understanding of important facts regarding Indian tribes in general and the Cayugas in particular.
In his second sentence, Kolb erred when he wrote, “For several years, homeowners and businesses have faced the possibility of losing their hard-earned, privately owned property to the Cayuga Nation.” This statement is completely untrue. During the land claim litigation, a federal judge ruled that the nation could not sue to eject current landowners. The nation’s few small parcels of land were all acquired on the open market from willing sellers, which is the tribe’s strategy going forward. Just how the nation is going to unilaterally take people’s land, Kolb failed to explain or even address.
In his third paragraph, Kolb wrote, “The Cayuga Nation’s land-trust application negatively impacts the lives of law-abiding property owners and taxpayers.” Nowhere did the assemblyman say exactly what the supposed “negative impact” is, but he insinuated, without basis, that tribal members are not “law-abiding.”
Kolb fails to understand the nature of tribally owned businesses. Tribal governments go into businesses to fund governmental programs. In 1988, Congress passed the Indian Gaming Regulatory Act, which permits tribal governments to conduct gambling operations on their territory. Monies taken in by tribal gaming are by law earmarked for specific purposes like health care, housing and education – all of which are legitimate services to be provided for by any government, tribal or not. Because tribes generally hold land in common, they cannot levy property taxes. Likewise, they do not tax their members’ incomes. Earnings from gaming and other business ventures thus act as a tribal tax base.
Kolb also misrepresented the federal land-into-trust process administered by the BIA. This is not a tax shield to protect “for-profit” operations (which the Cayuga businesses are not), but rather an exercise in recognizing tribal sovereignty. The federal government holds tribal land in trust to protect tribal governments from illegal taxation and harassment by states. There is no basis, in fact, for Kolb’s assertion that “the whole idea of a national trust was not designed for densely populated areas, but rather for the western regions of the United States.” Says who?
First of all, the area in which the Cayugas have reacquired land, around the northern end of Cayuga Lake, cannot accurately be described as “densely populated”; it is in fact rural farmland – just the opposite. Second, by the time the trust process came into being, New York’s tribes had either been confined to small reservations like the Onondagas and Oneidas, rendered landless like the Cayugas or herded onto reservations in Wisconsin, Oklahoma and other places. Indian trust land is quite common in the western United States, but this fact provides no logical basis for the assertion that the trust process was somehow “designed” for the West.
Kolb decried “checkerboarding,” the concept of alternating political jurisdiction over non-contiguous lands. Here’s a bit of history: the Dawes Act of 1887 forcibly divided up Western reservation lands among individual Indians. The remaining lands were seized and sold to non-Indians, resulting in a checkerboard of Indian and non-Indian jurisdictions that are indeed quite common out West. If Kolb were interested in just one example of how checkerboarding actually works, he might look at the relationship between the city of Palm Springs, Calif., and the Agua Caliente Band of Cahuilla Indians. These tribal and municipal governments respect each other’s sovereignty and have formed what is, by all accounts, a positive working relationship that overcomes whatever alleged and imaginary problems that checkerboarding supposedly creates.
In his final sentence, Kolb went for the jugular; he wrote, “There are no legal, constitutional or rational justifications to allow this petition to move forward.” Perhaps the assemblyman should read the text of the Supreme Court’s decision in last year’s City of Sherrill v. Oneida Indian Nation of New York case. On pages 20 and 21 of the majority decision, Justice Ruth Bader Ginsburg directed the Oneida Nation to apply for trust status, specifically citing Title 25, Section 465 of the U.S. Code, which is in fact the federal legal basis for the land-trust process. The Cayugas are simply exercising their right to do the same.
On his Web site, Kolb claims to be a “strict constructionist” regarding the U.S. Constitution. If so, then he’s surely read its commerce clause (Article I, Section 8), which gives the federal government the exclusive right to regulate all dealings with tribal governments. The U.S. government has a treaty relationship with the Cayugas extending back to the 1794 Treaty of Canandaigua, where Kolb happens to live. This puts the federal/tribal relationship on par with international accords, a level above tribal/state relations. Indeed, state politicians and bureaucrats are generally prohibited from interfering in tribal affairs, even though IGRA and the BIA land-trust process do allow for local input.
Kolb, have you ever heard of the Sullivan Campaign of 1779? Under orders from George Washington, Gen. John Sullivan led an army of several hundred troops north from eastern Pennsylvania into the lands around Cayuga Lake, then the ancestral homeland of the Cayuga Nation (remember – this territory had not yet been taken by New York state). Sullivan’s troops rampaged on both sides of the lake, destroying the villages, farms and orchards of unarmed Cayuga elders and children, who fled in terror. Dozens of them hid in the “great gully” south of Union Springs; a 70-acre farm adjacent to that gully, a site still sacred to the tribe, was recently reacquired with help from an Ithaca non-profit group. To the best of my knowledge, the nation will allow this farm to remain on the tax rolls.
So, there are indeed legal (U.S. Code), constitutional (commerce clause) and rational (redemption for Sullivan’s depredations) justifications to allow the Cayuga Nation to get back a small piece of what was wrongfully taken from it.
One of the greatest things about the United States is that we all enjoy the freedom to express our opinions. It is troubling, however, to see an elected official who apparently fails to comprehend that which he criticizes. Our governmental representatives owe it to their constituents to stay on top of things and consider all sides of an issue before passing judgment. Kolb’s March 15 diatribe suggests that he has neglected to do this with regard to the Cayuga Nation.
I respectfully challenge Kolb and anyone else who thought “yeah, this makes sense” after reading his rant to better educate themselves on contemporary American Indian issues. Ask yourself: “Why do tribes have a government-to-government relationship with Washington?” “What is the historical basis for Indian land claims?” “How do casinos benefit tribal governments?”
Go to the library or log on to the Internet and see what you can learn – you may be surprised. It is possible for tribes and their non-Indian neighbors to work together for the common good; that is, if vitriolic rhetoric does not get in the way.
We don’t all have to agree; but if we don’t understand the issues, we have no basis for rational debate – in which case, everybody loses.