Make the Case For Their "Day in Court"
by Ellen Edgerton
|Chief Irving Powless Jr., a longtime leader of the Onondaga Nation, spoke about the significance of the Two Row Wampum (over his arm) at their November 20 press conference. Photo: Paul Pearce|
On August 15, 2006, New York State filed a motion to dismiss
the Onondaga Nation's Land Rights Action, labeling it a "disruptive, possessory
action" and citing the US Circuit Court of Appeals' use of the concept
of "laches" against the Cayuga Nation's land reclamation lawsuit earlier
this year. (Laches is a legal term meaning that there was too long a delay in
seeking a remedy.)
The Onondaga Nation has prepared a strong and meticulously researched rebuttal to New York State's claims, announcing their response at a November 20 press conference. Tadodaho Sid Hill (spiritual leader of the Haudenosaunee), Chiefs Irving and Bradley Powless, Faithkeeper Oren Lyons and Onondaga Nation counsel Joe Heath presented over 200 pages of documents and answered questions from the media.
Challenges Facing the
Land Rights Action
Over a year and a half ago, the Onondaga Nation approached the Federal court in one of the most significant Native American lawsuits ever filed in the US. Their Land Rights Action seeks acknowledgement of their title to and environmental healing of 3,000 square miles of land in northern, central and southern New York, and acknowledgment that New York State violated both Federal laws and treaties in "acquiring" this land over a 30-year-period from people who were not authorized representatives of the lawful Onondaga government.
But two court decisions against other Haudenosaunee nations over the past year and a half have shown the difficulties that remain for Native Americans seeking justice through the US legal system. In a 2005 decision concerning the Oneida Nation, the Supreme Court invoked the concept of "laches" to deny Oneida claims over taxation and land rights. Later that year, using the same concept, the US District Court denied the Cayuga Nation any compensation for the illegal taking of their lands. New York State now claims that "laches" also applies to the Onondagas' case.
History on Their Side
At the center of the dispute are New York State's violations of the 1790 Federal Trade and Intercourse Act, and federal treaties signed both during and after the Revolutionary War, including the 1794 Treaty of Canandaigua. The Trade and Intercourse Act prohibited states from buying Native American land without federal approval.
At the press conference, Chief Lyons spoke about why the US, which found itself at a military disadvantage in Ohio Indian wars following the Revolutionary War, found it necessary to make treaties with the Haudenosaunee affirming their land rights. "You [the US] were at a tipping point, fighting for survival as a nation," Lyons said of the treaties' historical importance.
In the Nation's latest filing, several prominent historians have provided documentation attesting to the fact that the Onondagas did, in fact, appeal to state and federal officials about illegal land transactions as early as 1788. Researchers located written accounts of protests made by Onondaga Chiefs to George Clinton, New York's first governor, about land sales, and census records showing that these transactions were negotiated with a very small group of Onondagas who were not authorized to speak for their people. The researchers also found evidence that New York State had in 1806 appointed Medad Curtis, an early settler of the Town of Onondaga, to be a lawyer for the Onondagas, but found no record of Curtis filing any lawsuits on their behalf. Also included in the historical evidence is an 1802 letter to the Haudenosaunee prophet Handsome Lake from President Thomas Jefferson's Secretary of War which promised the Onondagas federal aid in preventing illegal purchases of their lands.
According to historian J. David Lehman, "It is apparent from the historical record that the Onondaga Nation and the Six Nations Confederacy repeatedly protested against and denied the validity of the three treaties - the Treaty of Fort Schuyler, 1788-1790, the Treaty of Onondaga, 1793, and the Treaty of Cayuga Ferry, 1795 - by which the State of New York gained control of more than 99% of their lands. They repeatedly sought the assistance and intervention of the United States in their behalf to protect their lands. When these protests proved ineffectual in preventing the State of New York from acquiring their lands, the Onondaga Nation would focus increasingly in the 19th and 20th centuries on protecting their remaining territory and maintaining their cultural autonomy and independence."
Because of the legal obstacles that Native nations faced in bringing their grievances into the US court system, attorney Joe Heath says, applying the concept of "laches" to the Onondagas' suit is insupportable.
"New York is not even denying that they broke the law," Heath said. "[The Onondagas] told us what the history was, and we have found the documents that support their version. We would very much like to get this into a court and have a judge rule on it fairly."
He denied the contention, expressed in the earlier court decisions against the Oneida and Cayuga Nations, that their lands had since been "positively developed" (improved by clearing and building) by non-Indian settlers.
Heath pointed out that the pollution of Onondaga Lake and the headwaters of Onondaga Creek demonstrate that the land has actually been damaged.
Onondaga Suit "not disruptive"
Heath strongly challenged the state's contention that the Onondaga Land Rights Action has been "disruptive" to the Central New York community, pointing out the overwhelmingly positive local media attention that the Land Rights Action has attracted over the past year and a half, particularly from the Syracuse Post-Standard. He also noted that the longtime presence of the Onondaga Nation is acknowledged and welcomed by local citizens and governments.
Neighbors of the Onondaga Nation (NOON) has over the past 18 months made 20 presentations about the Onondagas and their Land Rights Action to a wide variety of community groups in the Syracuse area. Sue Eiholzer, who has coordinated much of that work, notes, "I have not run into anybody that has expressed fear or concern about property issues.... People seem to understand there's something here to learn about. And we are getting more requests for presentations all the time."
New York State has until December 15 to respond to the Nation's latest rebuttal. After that date, it is expected that US District Judge Lawrence Kahn will rule on whether or not the Onondaga Nation at long last will have its day in federal court.
At the November press conference Tadodaho Sid Hill challenged New York's historically unjust and dismissive approach and expressed his enduring hope that the Land Rights Action would go forward in court and that justice would be served.
Referring to laches, he said, "Are you saying it's 'too late' for healing between our people? Too late to clean up the waters, lands and air? Too late to save the birds and animals that are dying?" he asked. "I hope that's not what you're saying, because we've always believed that we can heal. It takes a lot of time, a lot of understanding and a lot of forgiving. We've tried to do this in the most civil way that we could . It's time to let the history be known and acknowledge what happened between our people."