Mike Myers

The Supreme Court’s ‘Just Cuz’ Doctrine for Cheating Natives

Way back when the City of Sherrill case was headed to the U.S. Supreme Court I had a conversation with a non-Indigenous lawyer friend of mine about it. He concluded that it was an excellent case and “theoretically” it should be won if it were a case involving just white folks. But since it involved the Oneidas his comment was, “This is going to be a case where the Supreme Court just makes sh%& up and the Oneidas are going to lose just cuz.”

I asked him, “What do you mean ‘just cuz’?” He smiled and said, “Just cuz you’re Indians. Do you really think these guys are going to allow you to get land back – even if it’s the right thing to do?”

And now we have Nebraska, et al. v. Mitch Parker, et al. sitting in the Supreme Court. And once again we’re in a situation where the Justices can just go ahead and make #@%& up and there’s not much that can be done about since they are the end of the line for U.S. justice.

One of the intervening parties in support of Nebraska is the Village of Hobart Wisconsin who has been fighting against Oneida sovereignty and jurisdiction for decades. In their Amicus Curiae brief they make the following arguments, which is very illustrative of just how the Supreme Court Justices can just make sh%& up.

The Village argues:

City of Sherrill held ‘this long lapse of time, during which the Oneidas did not seek to revive their sovereign control through equitable relief in court, and the attendant dramatic changes in the character of the properties, preclude [the Oneidas] from gaining the disruptive remedy it now seeks.’ City of Sherrill, 544 U.S. at 216-17. The Court came to this conclusion despite the absence of any Congressional Act diminishing the Tribe’s original reservation, or otherwise removing or limiting the Tribe’s historic sovereign control over the land.

The informative wording here is the phrase: “..despite the absence of any Congressional Act diminishing the Tribe’s original reservation, or otherwise removing or limiting the Tribe’s historic sovereign control over the land.” In other words, just cuz Congress didn’t do anything about it, we will.

The Village then goes on to argue:

Invoking traditional theories of equity, the Court found ‘the distance from 1805 to the present day, the Oneida’s long delay in seeking equitable relief against New York or its local units, and developments in the city of Sherrill spanning several generations, evoke the doctrines of laches, acquiescence, and impossibility, and render inequitable the piecemeal shift in governance this suit seeks unilaterally to initiate.’ Id. at 221. Accordingly, this Court held ‘‘standards of federal Indian law and federal equity practice’ preclude the Tribe from rekindling embers of sovereignty that long ago grew cold.’ Id. at 214.

This analysis has subsequently been examined and accepted by other courts: ‘[I]n the wake of this trilogy – Sherrill, Cayuga, and Oneida – it is now well-established that Indian land claims asserted generations after an alleged dispossession are inherently disruptive of state and local governance and the settled expectations of current landowners, and are subject to dismissal on the basis of laches, acquiescence, and impossibility.’ Stockbridge Munsee Cmty. v. State of New York, et al., 756 F.3d 163, 165 (2d. Cir. 2014)

This is the crux of the land rights battles we have in our territories that are now occupied by the U.S. and New York. There is no treaty between the U.S. and the Haudenosaunee of land cession or surrender. All such treaties were contrived by land speculators in collusion with the State of New York and have been proven by the same Supreme Court to be fraudulent and of no validity because they lack Congressional authority and approval.

The other comment I find hilarious is the one in which it’s asserted that “..the Oneida’s long delay in seeking equitable relief against New York or its local units, and developments in the city of Sherrill spanning several generations..” Long delay? How quickly they forget that they made it impossible for any Indigenous nation to mount an argument in any American court.

It’s not until 1948, when Congress passes the Indian Land Claims Act and creates the Indian Land Claims Commission. The Act makes it abundantly clear that we are not to get any land back – only monetary compensation. If we want land back we have to use our compensation to buy land back and if we want it to become part of “Indian Country” then the Department of the Interior has to take it into trust on our behalf. Wow, that’s really fair and just. But what more can we expect from the settler? As my friend said, “Do you really think these guys are going to allow you to get land back…”

The other phrase that makes me laugh is their assertion, “after an alleged dispossession..” Let’s look at the historical record. In the early 1800’s the U.S. was under a lot of pressure to get rid of the Indigenous nations and peoples still in existence west of the Mississippi.

So the federal government went to what becomes Wisconsin and purchased some 6 million acres from the Menominee and Ho Chunk as a site for the removal of the Haudenosaunee. All six of our nations were to be removed to these lands but only a few Oneidas went there.

With the failure of the Wisconsin purchase the federal government then goes to the Indian Territory that was to become Oklahoma and purchases another tract in the hope of getting us to move there. Again, some Senecas and Cayugas from our territories in what becomes Pennsylvania and Ohio are removed to this spot.

The vast majority of us refuse to move and so the federal strategy was to then ignore the treaties between our governments and deem us to be “state Indians” under the jurisdiction of New York State. This was a quite common move by the feds affecting nearly every Indigenous nation in the East.

In their arguments to get around the issue of congressional intent we are now hearing a new argument wherein the Village states: “The lower courts erred by analyzing demographics and jurisdictional evidence…as it relates to evidence of congressional intent of diminishment and also as substantive proof of equitable diminishment…derived from demographic evidence such as land use, the Indian or non-Indian character of the area and populace and the evidence or duration of consistent and undisturbed state governance..”

This is the ultimate example of just cuz. What’s being said here is that the Indigenous nation and/or people have no claim or right just cuz we’re here and our presence automatically precludes any rights, interests or claims. It’s a pretty crude way of asserting the Doctrine of Discovery.

If this wasn’t so serious it would be funny. It sounds like the bratty kid who’s trying to set their own rules just cuz they believe they can. It’s a lot of words and carefully crafted phrases all focused on denial of justice, fairness and equitable resolution. It’s an argument that says if we can’t win by the established rule, well then doggone it we’ll make up new ones in our favor.

So along with Dollar General, 2016 promises to bring Indigenous nations and peoples some interesting decisions and ramifications.

Mike Myers is the founder and CEO of Network for Native Futures, a Native non-profit that works with Indigenous nations, communities and organizations internationally. The network’s mission is to support sustainable development and nation re-building through providing of technical assistance, training and consulting.

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