A New York State attorney opposing the Onondaga Nation’s land rights lawsuit told the 2nd Circuit Court of Appeals that the Nation would have to prove that its lands were illegally taken before its lawsuit could go forward. But, in a Catch-22 line of reasoning, she argued against returning the case to a federal district court where the Nation would have the opportunity to prove its claim.
This classic circular argument was presented to the 2nd Circuit Court of Appeals on October 12 by Denise Hartman, the Deputy Solicitor General for the State of New York during oral arguments in the Onondaga Nation’s appeal of a September 2010 decision to dismiss the case by Judge Lawrence Kahn of the U.S. District Court for the Northern District of New York. Kahn said that the “profoundly disruptive nature” of the Nation’s claims – meaning disruptive to those who are currently occupying and benefitting from the developed land – “fails to state a claim for which relief may be granted.”
Kahn said the “mandatory basis” for his decision was the U.S. Supreme Court in its controversial 2005 ruling in City of Sherrill v. Oneida Indian Nation of New York, which was also used by the 2nd Circuit to dismiss Cayuga Indian Nation v. Pataki. The justices in Sherrill, New York invoked the Doctrine of Laches – the idea that the Nation had waited too long to claim the land. They also used an “equitable considerations” argument – a set of legal principles prohibiting people from asserting their legal rights if it would be “unconscionable” for them to do so – meaning, in this case, that the Oneida claim would be too “disruptive” of the people now living on the stolen Indian land. And perhaps most provocatively, the justices used the discredited Christian Doctrine of Discovery – the 15th century European Christian claim that the first nation to “discover’ land that was not populated by Christians could enslave or kill the non-Christian inhabitants and take their land and resources.
Hartman argued that the previous cases should determine the Onondaga action. “This court firmly established in Cayuga and Oneida that these 200-year-old land claims are both inherently and indisputably disruptive.” Hartman said. “Most importantly, at [the lawsuit’s] heart [the Onondaga Nation] must prove their claim that these 200-year-old transactions were unlawful. That proof necessarily calls into question title and sovereignty to the land in question.”
But that’s exactly what the Onondaga Nation wants to do – prove its claim, Onondaga attorney Joseph Heath told the three-judge panel. “We bring this appeal to ask you to reverse the district court and give us a chance to prove the facts about these historic problems,” Heath said. If the judges remand the case, the lawsuit will return to the lower court for a trial on its merits.
Onondaga’s lawsuit seeks a declaratory ruling that various lands situated in present-day central New York were unlawfully taken by the State of New York in violation of the federal Indian Trade and Intercourse Act, the U.S. Constitution, and various treaties, and that the Nation still owns them.
While Hartman insisted that the Onondaga lawsuit was the same at the Cayuga and Oneida actions, Heath pointed out the crucial difference that Onondaga does not seek possession of the lands, taxing authority, eviction of the people who live on the land or any action other than acknowledgment that the lands were unlawfully taken from the Nation. The lawsuit “calls for a healing,” Heath said.
The judges asked some probing questions. “The judicial notice is that the City of Syracuse [which is located within the land rights area] and its environs have developed. It may not be a big city but there are those who love it and it’s there. Why shouldn’t the court take notice of the fact that a city had grown up, that it has suburbs and everything else?” one judge asked. Heath argued that the lower court should not have taken judicial notice of disputed facts. Although the Onondaga lawsuit seeks a declaratory judgment on 2.5 million acres of the Nation’s aboriginal lands that were illegally taken by the state in five transactions, Heath asked the court to focus on one transaction – the taking of Onondaga Lake which is owned by only two entities – the county of Onondaga and Honeywell International Inc., formerly known as Allied Chemical, is a Fortune 100 company that manufactures technologies to address issues surrounding safety, security, and energy. In 1946 the company began discharging mercury and heavy metals from its facilities into Onondaga Lake, according to U.S. Environmental Protection Agency. The lake was officially listed as a superfund site in 1994, and is essentially unpopulated. “In 1795 New York took Onondaga Lake and a mile around the lake. The lake is sacred to the Onondaga. Their cultural, historical and spiritual connection to the lake is recognized by everybody,” Heath said.
In addition to the fact that Onondaga Lake is largely unpopulated, Heath also disputed that Honeywell had “developed’ the land. “Honeywell did not develop this land. It turned it from a pristine lake where the fish in the 1880s were a delicacy served in New York restaurants into a Superfund site. That is not development and I think we have a right to prove those facts [in the district court],” Heath said.
Probing whether the state was immune from a lawsuit under the Constitution’s 11th Amendment, another judge asked Heath if he thought that Congress had exercised its constitutional war powers authority when it enacted the Indian Trade and Intercourse Act. “The first Indian Trade and Intercourse Act was passed in 1790 and re-enacted in 1793,” Heath said. “This was before the state had immunity under the 11th Amendment. The 11th Amendment was not adopted until 1795. We think we should be able to go back to district court and see whether or not this set of factors and the equity surrounding it pierces the state’s sovereign immunity.”
The two sides had only 10 minutes each to argue their cases. When the oral arguments ended, around 50 people stood up and left, almost emptying the room at the New York Law School where the 2nd Circuit brought its cases that day so that law students could observe the proceedings.
The 50 people included Onondaga citizens and the supporters from Neighbors of the Onondaga Nation, who had traveled from central New York for the hearing, and also several supporters from New York City. They held a demonstration outside of the law school, holding signs that said, “Treaties don’t have laches” and “We share Onondaga’s call for healing” while Heath and other Onondaga leaders held a press conference.
“Today is a test of whether or not there is any justice in U.S. courts for the Onondaga Nation for the undenied illegal taking of their homelands by New York state in knowing violation of the treaties, the Constitution and federal law,” Heath said. “Or will this just be another shameful broken promise, more broken treaties? Now New York comes into this court and says, ‘None of this matters – the fact that they took the land knowingly in violation of federal law doesn’t matter, the fact that the federal government told us at the time that we were violating federal law doesn’t matter. It’s not fair of you to raise these things at this time.’”
Heath said the Onondaga Nation was not asking for special treatment. “All we’re asking of the U.S. court is to apply the same rules and principles to Indians as everyone else gets.”