There was a U.S. appeals court decision today of gigantic significance and negative impact on potentially all U.S. Indian tribes who are seeking legal settlement for lands illegally appropriated from them.
This one, sadly, is going to be huge, and may very well touch off perhaps the most serious anti-Indian land rights backlash the United States has yet seen. It is an alarming warning sign about the orientation of the U.S. courts toward American property owners, not just Indians and their ancient lands.
The case centers on the land claim of the Cayuga Nation, a now-landless member of the once-powerful Iroquois Confederacy (today known as the Haudenosaunee) in upstate New York. All of the original five Haudenosaunee nations in New York — Seneca, Mohawk, Cayuga, Onondaga, Oneida — have filed land claims since the early 1970s which have spent years in litigation and settlement. The Oneida Nation were the first to file, with a landmark decision being handed down in 1985 that yes, their lands were illegally appropriated in the late 18th and early 19th centuries. Just this past March, the Onondaga Nation was the last of these nations to file suit.
This past spring, the U.S. Supreme Court dealt a severe blow to the principle of Indian sovereignty when it ruled in the case Sherrill v. Oneida Indian Nation, Inc. that although the earlier decision found that the Oneidas’ lands were illegally taken, the Oneidas could not repurchase this land and call it their sovereign territory, because they had “waited too long” to file suit. (Never mind that the Oneidas and other tribes, who had attempted to petition the U.S. government over this matter since the early 19th century, were not allowed to have their suits heard in federal court until 1969.) The decision – authored by Ruth Bader Ginsburg, no less – also invoked the odious Doctrine of Discovery.
This decision has started the backlash, furthered today with the complete overturning of a multi-million dollar decision in favor of the now-landless Cayugas in western New York. The reason? The doctrine of “laches” – prompted by Sherrill: “Too bad! You waited too long (even though we prevented you from approaching us)!” Every pending Haudenosaunee land claim and settlement is now in grave danger — but that’s not all: every Indian nation in the United States is now facing the same threat to long-fought land claims, with devastating implications for native businesses, even the non-Indian employees of those businesses, and needless to say, for Indian sovereignty and self-determination.
As many people know, the Haudenosaunee’s Great Law and form of democratic government was influential upon the devising of American-style democracy, as Benjamin Franklin, in particular, admired and studied the Haudenosaunee system of government. The Haudenosaunee, who were intimately involved with the founding of this nation (and, in the case of the Oneida, who fought on our side, its independence) have fought long and hard to have their claims heard in court.
These claims are largely based on the 1794 Treaty of Canandaigua, one of the few fairly negotiated Indian treaties in America’s sorry history, and one of the oldest extant diplomatic agreements entered into under the U.S. Constitution. Today’s decision demonstrates that the United States is intent upon eventually completely abrogating this treaty, and on extinguishing any meaningful form of Indian sovereignty throughout the nation. This is an alarming development; if the Treaty of Canandaigua is definitively abrogated, our other, dearer and older documents of law cannot be far behind.
Those of us who reacted with dismay over Kelo v. New London’s tacit approval of land grabs by private developers, should understand that this Court already laid the groundwork for the final seal of approval on old land grabs against America’s native population – with Sherrill v. OIN, earlier this spring.
The message is clear. America’s Indians are but the canaries in the coal mine; with the U.S. courts moving swiftly today to definitively extinguish claims arising from their sovereignty, great danger to sovereignty of the American people – in the face of corporate greed — cannot be far behind. It’s all part of the same impulse toward turning a blind eye toward theft.
Thanks for this interesting and disturbing diary. Unfortunately, Native Americans continue to be treated poorly. There was an ongoing investigation into missing funds from some of the western Indian nations, unaccounted millions of dollars that were to be held in trust. Meanwhile so many continue to live in poverty. I’ve had an opportunity to see this up close during my many visits to the four corners region. Nothing changes.
Rulings like these have a domino effect (the domino started with Sherrill and will continue on over to the pending lawsuit over misused Indian funds from trust lands). Not only will that lawsuit be stonewalled, but a green light will be given for more rape of Indian lands out west. Just watch.
The very interesting thing about this decision, though, is that it was a hugely sweeping ruling made by two pipsqueaks (including a “liberal” justice, Rosemary Pooler). Not only does the ruling itself flout decades-long precedent in U.S. dealings with Indians, it also flouts American historical precedent. The only reason we occupy this continent so completely is because we embarked on a gradual strategy of divide-and-conquer, where each individual tribe was harrassed and ignored and/or pogrommed within an inch of their existence, one by one. The tribes never really had a chance to unite, or interact strategically with America’s rivals.
But with this decision, suddenly the U.S. has laid all these Indian nations together on the legal chopping block at once, in a radical departure from the U.S.’ usual strategy. Times have changed, and Indians all over the country are in a much better position to compare notes.
Like other observers of recent court decisions, I don’t see much philosophical orientation to them. I do see very fuzzy thinking that is neither here nor there. The Supreme Court itself refrained from applying the doctrine of laches to Indian claims themselves in Sherrill, and I think for very good reason: they were unwilling to screw with the dynamic of Indian law too much. However, now some minor minds on the U.S. Appeals Court have now decided to throw all caution to the wind.
Times have changed, and America also no longer has the economic, military and moral standing in the world it once did (or, at the rate Iraq is going, it soon will be depleted). It used to be that Indians in America couldn’t get anyone in the international community to pay attention to the wrongs and treaty breaking; in decades to come, that may change. They may get a better hearing at the U.N. Perhaps this will be a part of the end of the “pass” America has always gotten from the world community on human rights and international law. (In fact, some American tribes have already laid preliminary groundwork by becoming involved in the movement to have indigenous peoples have a bigger voice at the UN; traveling internationally on their own passports, etc)
on judicial nominees.
And btw, how did that come out? Six of the original rejected extremists confirmed without incident. This was hailed as a victory by Democrats. Why?
It is about greed, land is something that no more can be made, so it’s value holds.
Greed has this country where it is, from both sides of the isles. It is the only true bi-partisan theivery that has cost us ALL.
As for the Human Beings, they have never been justly treated, and I fear it will be a long time coming, but come it will, and it will not be the courts decision.
This ruling is another example of the twisted, immoral and illegal subversion of 2 centuries of Indian law and treatise, that clearly started the destabilization and ultimate demise of all legal claims to land previously held in trust by the Native American populations of this continent.
I use the words “held in trust” because Native cultures have never owned the land, they accepted that Great Spirit laid the land in trust to them, to live in spiritual continutiy with the land, not to exploit and destroy the land.
Native Americans have been marginalized, demonized and demoralized consistently throughout the history of the USA and this ruling just continues that attack upon the culture, rights and Nations of the Native peoples. That this is percursor of what is coming up, in the Native lawsuit to find out what happened to the billions of dollars that “supposedly” are held in trust by the BIA and the Interior department, is readily apparent.
I for one can only hope that the Native peoples will one day gain full recognition from the UN as sovereign nations and then maybe, just maybe the US congress and the president of the US will be made accountable for the many injustices perpetuated upon the Nations.
I for one can only hope that the Native peoples will one day gain full recognition from the UN as sovereign nations and then maybe, just maybe the US congress and the president of the US will be made accountable for the many injustices perpetuated upon the Nations.
This makes me quite sad, because I live on land claimed by an Indian nation and some people wanted to settle reasonably with them, focusing on the environment instead of on casinos.
Now that vision for settlement is threatened. I’m afraid things are just going to deteriorate to the strained, ugly times of the early 70s when the state was trying to muscle its way onto the reservations. I hope not.
And the international community won’t care that some of us wanted to be good neighbors and do the right thing. They’ll just see us all as ugly Americans to punish.
NYCO,
I hope that you are wrong, I believe that many in the Native communties will see those who actually were willing to help as Human beings, even if you are not Native American.
That others will view all Americans, to be like our current Administration and those who support his illegalities will be unfortunate. Yet I believe that when the course of Human endeavors changes the current climate of intolerance and criminal activity within the Government of the United States of America, many will come to know the bright spirit of hope, honor and respect that most Americans subscibe too in their dealings with other cultures and nations.
You know what I think unnerves people about land claims? It’s the notion that they’ve got to actually negotiate with people who are not like them, learn to be deal makers and peacemakers. Americans are so spoiled rotten in this regard. They have no foreign neighbors they ever have to get along with (as in Europe), no foreign languages to learn, no cultural differences to deal with — I mean REAL ones, not “diversity” bound together by American values. And knowledge of history is needed too. And Americans HATE history. It’s America’s least favorite subject.
Suddenly a land claim is filed, and they have to do and know all that stuff. And they run away screaming, hiding behind past wrongs, trying to legitimize them.
I really do hope that indigenous peoples in America join the international community in years to come. It would be such poetic justice, as America became an international pariah (sadly it shows no signs of turning back from that path).
Readers here may be interested in the contrast between the approach of the US courts to native land claims versus the Canadian courts’ approach.
It seems that the settlers of British Columbia, Canada, never bothered to sign any kind of treaty with BC natives – they just moved in and took over. Actually, the history is much more sordid than that, but that’s another issue. The Canadian courts have upheld the rights of natives and ordered both the federal and provincial governments to negotiate treaties with the bands. The current situation is that the native bands are lawyered up and pressing their claims both at the negotiating table and in the courts. These outstanding claims are a source of much anxiety in real estate development circles because of the uncertainty of ownership. Hopefully, fair treaties will be negotiated and the native bands here can begin to prosper and enter the mainstream of society after over one hundred years of abuse.
I am stunned that the NYT has not even reported on this. At least, it doesn’t seem to be on their website.