The Iraq War caused many in the world to question whether the United States
is simply an imperial nation intent upon consuming other nations and
peoples for its own purposes. In explaining America's role in the world,
former Secretary of State Colin Powell said that America is a "great
protector" that has "sent men and women from the armed forces of the United
States to other parts of the world throughout the past century to put down
oppression ... [a]ll in the interest of preserving the rights of people."
In concluding this, Powell expressly rejected the notion of America as
colonizer and occupier: "And when all those conflicts were over, what did
we do? Did we stay and conquer? Did we say, 'Okay, we defeated Germany. Now
Germany belongs to us? We defeated Japan, so Japan belongs to us?' No. What
did we do? We built them up. We gave them democratic systems which they
have embraced totally to their soul. And did we ask for any land? No, the
only land we ever asked for was enough land to bury our dead. And that is
the kind of nation we are."
Indeed. Apparently, Powell completely forgot what the United States did to
wrest control of this land from American Indians.
Which is why the Supreme Court's recent decision in the case of City of
Sherrill v. Oneida Indian Nation of N.Y. is so ironic. At a time when the
United States is engaged in a global war to promote freedom, democracy and
justice, its very own Supreme Court is denying the right of a Native people
to re-establish its own homeland.
The Sherrill case arises out of a challenge to the efforts by the Oneida
Nation in New York to regain control over 300,000 acres of their aboriginal
territory. Through a series of illegal treaties with the state after 1790,
the Oneidas lost all but 32 acres of their land. On two occasions - in 1974
and 1985 - the Supreme Court upheld the right of the Oneidas to bring legal
action to recover their land. The theory advanced by the Oneidas, and
accepted by the Supreme Court, was that the 1790 Trade and Intercourse Act
was violated because Congress had never approved the treaties with the
Despite these decisions, no action was taken by the United States to
restore Oneida possession to the land. Years of negotiations dragged on
with no results. The parties all agreed that the state was liable for
illegally taking the Oneida land. The problem was what to do about it.
In 1980, the Cayuga Nation brought a similar action against the state,
seeking restoration of 64,000 acres of land wrongfully taken in 1795.
Unlike the Oneida case, the Cayuga case eventually resulted in a jury
verdict. But instead of being awarded title to the land, the jury only
awarded money damages. While the monetary award of $247.9 million was
certainly significant, it was not the same as receiving actual title to the
Why not? Under American trespass law, ejectment of illegal occupants and
restoration of title is the historic remedy for the wrongful taking of
another's land. Why doesn't this rule apply to cases brought by Indians?
Doesn't justice demand that the Indians be restored to title if the land
has already been adjudged to be owned by them?
Apparently, the law of trespass only works for non-Indians. The reason is
purely political. To eject the illegal occupiers of Cayuga and Oneida land
would be to remove thousands of non-Indians, primarily white people, from
land they have illegally been living on for over 200 years. Given this
scenario, it is easy to see the reluctance of federal and state officials
to do what is both legal and just.
In this way, what the Oneida and Cayuga land claims represent is a
breakdown of the American legal system. It was not too long ago in
America's history that tremendous efforts were taken to protect the rights
of blacks. The Supreme Court ruled that racial segregation was illegal. The
president ordered the National Guard to enforce the desegregation orders.
Congress enacted civil rights laws to protect minority rights.
But when it comes to defending the inherent, treaty-protected rights of
Native peoples, the laws and legal institutions of the United States look
more like a house of cards than a foundation of liberty. Oh sure, there are
cases from time to time that purport to uphold Indian rights in the face of
opposition from non-Indians and their governments. These cases, however,
are few and far between. This has been especially so in recent years with a
Supreme Court that is extremely hostile to Native rights.
The Sherrill case is a prime example of this failure. Because no remedy
from the government was forthcoming, the Oneidas took matters into their
own hands and simply began to use their own money to buy back their own
land. In a 10-year period, the Oneida Nation was able to repurchase
approximately 17,000 acres of its original 300,000-acre reservation.
The Oneidas reasoned that this repurchased land was aboriginal territory
immune from taxation and regulation. One of the fundamental principles of
American law is that only Congress has the authority to extinguish Indian
land titles. Accordingly, because Congress had never extinguished their
title, the Oneidas concluded that their aboriginal possession was restored
the minute they bought out the non-Indian occupant.
But they thought wrong. In Sherrill, the Supreme Court rejected the Oneida
position. It held that the Oneidas could not unilaterally reassert control
over their own land because the land claimed was populated predominately by
non-Indians, the state and local governments have long exercised
jurisdiction over it, and the Oneidas simply waited too long to remedy the
situation. In short, the court actually held that "equity" under these
circumstances favored the non-Indians, not the Oneidas.
In the weeks following the decision, the local whites have been attacking
the Oneidas like buzzards feeding on fresh road kill. The local town
assessed the Oneida casino at $399 million and has sought to shut it down
for non-payment of taxes. If shutting down the only thriving business in an
economically depressed region and throwing 4,000 people out of work is not
evidence of irrational hatred, I don't know what is.
Billions and billions of dollars are now being spent to wage wars and
spread the American way of life all over the world. But here at home, it is
a dirty little secret how America treats indigenous peoples.
Powell was dead wrong about America's ambitions towards other countries.
For the United States, it has always been about accumulating land, money
and power. The Indian nations were the first victims of America's voracious
appetite. But unlike the Iraqis, the United States does not need the
military to carry out its agenda on the domestic front. It has the Supreme
Court to do that for it.
Robert Odawi Porter, J.D., Seneca, is a professor of Law, senior associate
dean for research and Dean's Research Scholar for Indigenous Nations Law at
Syracuse University. He is the founding director of the Syracuse University
Center for Indigenous Law, Governance and Citizenship. Previously he was an
attorney general for the Seneca Nation of Indians and a chief justice of
the Sac and Fox Nation Supreme Court.