The U.S. Supreme Court did not grant review of any Indian law cases during its “long conference” on October 1, but it didn’t deny them either. Among the cases waiting for a decision is the Onondaga Nation’s land rights lawsuit against the State of New York.
“They haven’t looked at it yet,” Onondaga attorney Joe Heath told Indian Country Today Media Network. The long-time Nation attorney said he thinks that chances are slim that the Supreme Court will grant a review of the Onondaga Nation’s lawsuit seeking 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.
In the down-the-rabbit-hole world of Indian law, the Onondaga land rights case was dismissed by a federal court judge in 2010, who didn’t rule on whether the land had been unlawfully taken, but said the Nation’s claims would be “profoundly disruptive” to those who are currently occupying and benefitting from the developed land and that the Nation had failed “to state a claim for which relief may be granted.” The judge’s “mandatory basis” for his decision was the U.S. Supreme Court’s 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 the Sherrill case 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 the Sherrill case, that the Oneida claim would be too “disruptive” of the people now living on the stolen Indian land.
The next stop for the Onondaga land rights case was the 2nd Circuit Court of Appeals in New York just about a year ago – on October 12, 2012 – when Denise Hartmann, the Deputy Solicitor General for the State of New York, presented a classic circular argument that the Nation would have to prove that its lands were illegally taken before its lawsuit could go forward, but argued against returning the case to a federal district court where the Nation would have the opportunity to prove its claim. The appeals panel agreed with Hartmann and tossed out the case a week later. The Onondaga’s request for a review by the full panel of judges was also denied.
So that’s why Heath says, “The chances of the Supreme Court doing anything other than denying our cert [petition for certiorari or review] is very, very, slim. Oneida and Cayuga asked for cert following their dismissals and theirs were summarily denied. Usually we hear the bad news on Columbus Day,” he joked.
The Onondaga’s land rights lawsuit is framed differently from the Oneida and Cayuga cases. It brings environmental issues to the forefront for the first time, naming as defendants various corporations because of the destruction they caused to the land and water. The Onondaga claim crucially 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.
Also critical is the inclusion of a section on international law, “because that’s where we’re going next. We’re ready to ask the Council of Chiefs to authorize us to file a petition with the Organization of American States Commission on Human Rights.
It would be a tremendous advancement of the Nation’s efforts to achieve justice for this historic land theft,” Heath said.
Matthew L.M. Fletcher, Professor of Law & Director of the Indigenous Law & Policy Center at Michigan State University, and his colleagues filed an amicus brief supporting the Nation at the 2nd Circuit, but he’s not optimistic that the high court will grant review. “By the time the Onondaga land claims went to the [appeals court], Haudenosaunee land claims were being summarily dismissed as a matter of law. In spite of a whole class of claims being dismissed without any attention to the arguments about whether the state’s defenses were sufficient to justify dismissal, it seems pretty clear the Court will deny this one as well,” Fletcher said. But hope abides. The ILPC is ready to intervene in the case again, Fletcher told Indian Country Today Media Network. “Assuming the court grants cert, we'd be happy to stand up with the Onondaga.”