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Onondaga seek voice in lake cleanup; Nation wants 'principled negotiations'

SYRACUSE, N.Y. - The Onondaga Indian Nation filed an ambitious and unique
land claim lawsuit in federal court on March 11. It is ambitious in that
the nation seeks recognition of title to a large portion of central New
York, a roughly 250-mile by 40-mile chunk of land, including Syracuse. The
claim is unique in that, rather than pushing for a casino, the Onondagas
instead want a prominent role in efforts to clean up Onondaga Lake.

"The Onondaga claim is unique in its request for remedy," said Robert Odawi
Porter, Seneca, director of the Center for Indigenous Law at Syracuse
University. He could cite no other land claim case in which an Indian tribe
sought environmental stewardship in this manner.

Likewise, David Selden of the National Indian Law Library in Boulder,
Colo., was unable to locate "any other cases similar to the Onondaga case
where a tribe sues a government relating to pollution on ancestral lands or
waters."

The lawsuit names New York state, Onondaga County and the city of Syracuse
as defendants. The action also includes five industrial companies deemed
responsible for polluting the lake and creating other environmental
hazards.

"My client refers to this as a 'land rights action,' rather than a 'land
claim,'" said Joseph Heath, a Syracuse attorney representing the nation.
Heath said the Onondagas want to heal the lake and their relations with
their non-Indian neighbors.

In early August, the nation amended its lawsuit as a response to the
dismissal of the Cayuga land claim case by the 2nd Circuit Court of
Appeals, which said the Cayugas had "waited too long" to file their
lawsuit.

In its amended claim, the Onondaga Nation says that it faced a number of
barriers preventing it from pursuing legal action until recently. These
include a lack of money and the fact that until recently, federal courts
would not hear Indian land claim cases. The new claim also asserts that the
nation has, over the years, complained repeatedly to the federal government
about what it asserts is the theft of its aboriginal territory.

The Haudenosaunee (or Iroquois) Confederacy, of which the Onondaga are one
of six member nations, believe that on the shores of Onondaga Lake, a
prophetic figure called the Peacemaker gathered their ancestors together
centuries ago to halt decades of warfare between them and created the
world's first democratic government.

"The lake is sacred," Heath said, adding that the Onondaga people harvested
fish and medicinal plants from it for centuries. "The Onondaga lived next
to the water and interacted with it as part of the Creator's blessing. It's
a central part of the land claim."

As recently as the 1880s, resort hotels and amusement parks thrived as
vacationers came in droves to Onondaga Lake's shores. Today, it is one of
the most polluted bodies of water in the United States.

During the latter years of the 19th century, the lake became an industrial
waste and raw sewage dump; water quality declined markedly. In 1901,
harvesting ice from Onondaga Lake was banned. Swimming was prohibited in
1940 and by 1970 fishing was illegal.

Mercury and at least two dozen other toxic chemicals have been identified
in the lakebed. Additionally, sewage and runoff have created an oversupply
of phosphorous, which leads to rapid algae growth, in turn depleting oxygen
in the water, making it even more difficult for fish to survive.

In late November 2004, the New York State Department of Environmental
Conservation and the federal Environmental Protection Agency released a
Record of Decision describing its plan to clean up the lakebed. The ROD
calls for the dredging and removal of 2.65 million cubic yards of
contaminated soil from limited portions of the lakebed, with a cap of sand
layered over a 425-acre area to prevent further chemical release.

The plan carries a $451-million price tag and focuses only on the lakebed.
It does not address the cleanup of 12 other toxic sites surrounding the
lake.

The nation claims that this plan is deficient. In a Feb. 8 statement
submitted to EPA, the nation expressed concern that the plan "will result
in permanent, long-term contamination and degradation of the lake due to
continuing releases of mercury and other pollutants." The nation stated
that the plan "does not adequately incorporate the proper and complete
clean up of numerous upland toxic dump sites which continue to release
pollutants into the lake."

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"In several places, the state made risk calculations that under-estimate
risks," said P. David Allen II, principal at Stratus Consulting, a Colorado
firm that studied the ROD for the nation. "If the other operating units
don't get cleaned up, it's another compounding problem for Onondaga Lake."

"It's hard to know how effective the ROD will be," said Ed Michalenko,
president of the Onondaga Lake Cleanup Corp. "With such a short comment
period, it's hard to respond to 15 years of analysis and evaluations by the
state."

In a 2001 report, OLCC estimated that 7 million cubic yards of the lakebed
are contaminated with mercury at depths sometimes exceeding four feet.

The nation further claims that under the Comprehensive Environmental
Response, Compensation and Liability Act of 1980, it should have been
consulted prior to the plan's formulation.

"Federal law is very clear about the need to engage in consultation with
Indian nations in matters that affect them," said Porter. "This seems
especially true regarding expansive tracts of land under claim, which
involve potential ownership rights."

Ken Lynch, director of DEC's Region 7, cited a January notice of intent to
sue filed by the nation over the alleged lack of consultation before
declining comment on DEC's contacts with the nation during the ROD's
development phase, which ended in November.

Citing the same notice, Robert Nunes, EPA's Remedial Project Manager for
the Onondaga Lake bottom also did not comment on the alleged lack of
consultation prior to the ROD's release.

"EPA and NYSDEC have participated in a number of technical discussions
concerning the [ROD] with the Onondaga Nation since November 2004 and ...
additional technical meetings are anticipated," Nunes said.

"We would still be open to continuing a dialogue with the nation on their
concerns and interest," Lynch said. "In general, we have responded to their
requests for consultation."

Lynch added that as the plan is further refined over the next three years,
the nation may have the opportunity to weigh in before actual
implementation.

For the ROD process to proceed, DEC and Honeywell International must agree
on implementation. In 1999, Honeywell inherited cleanup responsibility
after acquiring Allied Signal Corp., which dumped 22 pounds of mercury into
the lake daily between 1946 and 1970, according to a study by the OLCC.

Spokesman Victoria Streitfeld did not respond directly to requests for
comment, but did write in an e-mail that "Honeywell will work with DEC to
reach agreement ... [and] is continuing remediation of the former Allied
sites."

Of the nation's intent to sue, Heath said, "More court action is not the
nation's way. We prefer principled negotiations to resolve this historic
wrong."

Heath said that over the years the nation has been involved in actions of
environmental stewardship in Tully, Sandy Creek and Fulton. The land rights
action is the latest and largest of these efforts.

"It's meant to be part of a healing process," Heath said. "It may show that
we've found a positive way to interact -- something that we share."