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.
