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Mohawk: New York's tax law has shaky foundation

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It was 1971 and New York state had decided to widen Route 81 to make way for an access lane at a point the highway crossed the Onondaga Territory near Syracuse, N.Y. The Onondaga objected to what they deemed another taking of Indian land by the state and launched a protest to block the construction. Hundreds of demonstrators took part, including some from other Haudenosaunee (Iroquois) communities.

The Indians countered with a publicity campaign, part of which aired on local television. Rather than sending warriors or people threatening violence, the Onondaga sent elders in the form, mostly, of chiefs and clan mothers. Some of the clan mothers were especially impressive, dressed in traditional clothing and speaking softly but firmly about their unwillingness to give up another inch of land. The state, meanwhile, sent men in suits to argue that they had a legal right to do what they wanted to do. They waved a piece of paper that had been signed by a previous generation of Onondaga chiefs during the 1950s at the height of the Termination era when Indian nations were being exterminated in a fit of legal genocide. The papers, they said, proved the Onondaga had already agreed to allow them to widen the road.

The Onondaga clan mothers stood their ground. They understood that New York state had used fraud and coercion to wrest most of the Onondaga land from their ancestors in 1780. Onondaga was one of the earliest communities to experience the threat of removal combined with trickery. When white settlers squatted on Onondaga land and the Onondagas complained to the state, the state told them they could do nothing to remove these people because they were not on state land. Sign your land over to us, they said, and then we'll be able to expel the squatters. But if you try to expel them, we'll be forced to arrest you for crimes against them. The Onondaga finally acceded to this demand, believing at the time they were making an agreement with the state to protect their lands. But when the papers were signed, the state announced it as a land cession, and the Onondaga lost their lands. It was only one of several swindles at the hands of the state, long ago but not forgotten. The same kind of thing happened to many Native nations in the century that followed.

The Onondaga clan mothers told their story. They were not willing to lose one more inch of land. They were very consistent with this stand. At another point, when the power company wanted to build a power line through Onondaga Territory, the company offered every Onondaga household free electricity forever for the right of way. The Onondaga refused. One of a few traditional governments left in North America, they can be very principled. The power company was forced to build its transmission grid around the Territory. The Onondaga used a moral argument effectively, but they also put forward people of high integrity to represent the argument. Not every Indian group could have pulled it off.

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Shortly after their appearance on television, and following the state's appearance on the same station, a Syracuse newspaper took a poll of non-Indian residents of the area. The results were amazing. An overwhelming majority wanted the state to leave the Indians alone. But this was the Rockefeller time, and the state was determined to have its acceleration lane and hundreds of troopers soon faced off against hundreds of Indians on the highway. The troopers were dressed in riot gear and carrying shields and nightclubs, and the Indians came in old clothing, fully expecting a battle. By mid-day, things were very tense. No one who was there that day doubted that the state was willing to do damage to some Indians. The troopers advanced, the Indians stood their ground, the clash seemed moments away. Then something happened. A whistle was heard, and suddenly all the troopers retreated to their cars, put their riot gear in the trunks, and hurriedly left the scene. Some thought that perhaps the state had a change of heart. Others countered that the state didn't have a heart. It was mystifying. At first.

A few days later, beginning Sept. 9, 500 troopers opened fire to quell a riot at Attica State Prison, killing 39 unarmed people, including 10 prison guards and some inmates who were photographed retreating. Attica changed things in New York, and its impact is still felt 32 years later. New York troopers were accused of everything from unnecessary use of deadly force to racism. The prison system, which was 60 percent black and Latino, had a 100 percent white guard population. Whether the troopers would have done something like that to the Indians on Route 81 is unknown, but it is pretty clear they were capable of it. In the end, New York never built the acceleration lane they wanted and were apparently willing to injure or possibly kill people for and no one has ever missed it.

What gives New York state the right to take Indian land whenever it wants, or to tax sales of cigarettes and/or motor fuels to non-Indians in Indian territory? The short answer is that the law does. The U.S. Supreme Court has long held to the doctrines outlined in an 1823 case (McIntosh) in which Justice Marshall, among other things, found that the U.S. government inherited its unlimited powers to deal with Indian tribes from Britain at the end of the American Revolution. And how did Britain get power over Indian nations? From the Christian Doctrine of Discovery, issued by a Pope in the middle of the 15th century during the endless war of the Crusades with Islam. Pope Nicholas V, in a classic statement of religious intolerance called the Romanus Pontifex, advised the crowned heads of Europe that it was OK to enslave Moslems and to appropriate their property. Slavery and land theft were popular at the time. It would be another forty years before Europeans learned about Indians, but the doctrine was quickly applied in the so-called New World. Thus the answer to where does New York get the right to tax sales in Indian country is simple: from God in a message to the Pope in 1452.

The Indian nations have spent considerable sums hiring back-room lobbyists and courtroom lawyers to spin a delaying action on the tax issue, but they might be well advised to saturate down-state New York with ads carrying the message, a message ultimately aimed at the New York Court of Appeals, that there's no evidence that God ever intended to give New York the power to tax Indian nations. It's an argument that might not work with the U.S. Supreme Court, but the people of New York are likely to understand the point. The courts often follow public opinion and in New York state it is time to challenge this long-standing fountain of injustice and bad law.

John C. Mohawk, Ph.D., columnist for Indian Country Today, is an author and professor in the Center for the Americas at the State University of New York at Buffalo.