In a recent column, Charles Trimble found fault with an adjunct professor in the Syracuse University College of Law, who also happens to be a Mohawk from Akwesasne. Mr. Trimble took issue with Professor Carrie E. Garrow’s view, recently expressed in an opinion piece, that Indian students in the first year of law school, “know the truth about the U.S. legal system—that the doors of justice are closed to Indian nations.” She was upset with the fact that the U.S. Supreme Court recently let stand a lower-court ruling that the Oneida Nation has no remedy whatsoever to the Oneida land claims.
Mr. Trimble turned to his good friend Sam (Phillip) Deloria in New Mexico for a comment. Deloria said that his long-running pre-law program at the University of New Mexico has acknowledged “the flaws in the American legal system, which are many, but it is no favor to future law students or their future clients to see only the flaws and to assert manifest untruths, such as that “the doors of justice are closed to Indian nations,” or that “justice is never on our side.”
Mr. Deloria then turned to an analogy to hammer home his point: “This reminds one of a teenager, complaining that ‘you NEVER let me do anything’ on the occasion of being denied permission to do something that he or she does regularly. It is neither mature nor helpful.”
Mr. Deloria’s analogy only works (or doesn’t) in terms of the cultural background of a complaining teen-ager in relation to an idealized parent (historically, think “Great White Father”). Thus, Deloria has likened Ms. Garrow to a petulant teen-ager who is disgruntled with her “parent” (think, U.S. Supreme Court).
Of the non-Indian U.S. legal system that handed the Oneida Nation such a terrible defeat, Mr. Deloria wrote to Mr. Trimble: “Sometimes we find justice, sometimes we will not. When we despair of the American system, we need only look at the status of our fellow indigenous peoples throughout the world to realize how relatively lucky we are.” So the Oneida Nation may have gotten slammed by the U.S. Supreme Court, and denied any due process remedy for their land rights, but they are still “lucky” when compared to other areas of the world where Indigenous nations and peoples are also denied any due process remedy for their land rights.
In October of this year, the Supreme Court turned down an appeal from the Oneida Indian Nation, which claimed that the Nation was underpaid for over 250,000 acres of Oneida lands in upstate New York. The Court left in place a Second Circuit Court of Appeals ruling against the Oneidas’ land claims. The important point, however, is that the appeals court ruled that the Oneidas had no remedy because of what Professor Kathryn E. Fort identifies as a brand “new laches” doctrine only used for Indians. Typically, laches refers to what a court considers to be too long of a delay in bringing a case or complaint to a court.
As Professor Fort states: “The court found that new laches is ‘properly applied to bar any ancient land claims that are disruptive of significant and justified societal expectations that have arisen as a result of a lapse of time during which the plaintiffs did not seek relief.’” More troubling for Indian nations, is that this “is potentially applicable to all ancient land claims that are disruptive of justified societal interests that have developed over a long period of time…” (Emphasis added.)
Professor Fort points out that this new doctrine “does not provide any way for Indian tribes to combat it.” She says that this new laches created by the courts “denies all relief for any claim,” and this puts “a court solution out of the hands of the tribes for now.” This may have been what Professor Garrow had in mind when alluding to “the doors of justice” being “closed to Indian nations.”
Despite the Oneida and other Indian nations being presented by the U.S. courts with an entirely new doctrine that seeks to deny any and all relief for any Indian land claims, Mr. Deloria is evidently of the view that we ought to still consider ourselves “lucky” to be oppressed by the United States rather than some other country in the world.
Steven Newcomb (Shawnee/Lenape) is co-founder and co-director of the Indigenous Law Institute, author of “Pagans in the Promised Land: Decoding the Doctrine of Christian Discovery” (2008), and a columnist for Indian Country Today Media Network.