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A Deadbolt on the ‘Doors of Justice’?

Steven Newcomb
12/26/11

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.

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curtj's picture
So when are the Indigenous going to go to the UN and the Indigenous Peoples Forum of the United Nations and present their claims that our resources and lands are being stolen by the parasites who run the American government on behalf of their neo conservative masters? Even at the NCAI, the leaders refuse to talk of that possibility. Even at Alaska's AFN, the leaders refuse to discuss it. They're too busy giving each others pats on the back, gifts and making it a career to be on the losing end. While that the so called leaders are busy hobnobbing and sucking up to the thieves and bought off Republican and Democratic politicians and embedded and burrowed operatives and officials.
curtj
curtj's picture
If the United Nations are made up of European countries already guilty of the policies of colonialism foisted on weaker countries, what chance do the Indigenous have in presenting their cases against colonialism?
curtj
sierra's picture
Greetings Mr. Newcomb, and nia:wen for another engaging article and one in support of Professor Garrow's viewpoint of the colonizers' courts and judicial system, basically being closed to the First PeopleS. I believe as a Kanienkeha'ka, Professor Garrow knows AND feels firsthand the colonizers' acts of genocide and oppression especially in regards to the more recent "Mohawk Oka Crisis of 1990; (and which pretty much experienced a media blackout among the mainstream media corporations then), as well as the protesters' occupation at Caledonia in Six Nations as recently as 2005 which seen a form of public opinion management somewhat subliminal in nature and which seen instigators (likely paid) sent in to rile up the non-native Caledonia residents. Something quite funny among the maneuvers against our interests and as pointed out by Kahentinetha Horn was what she jokingly termed "The Million Man March" (of non-natives) that was supposed to occur against the Haudenosaunee protesters and was to be led by this married couple who did not quite achieve the dynamic duo status for being the hosts with the most. Reminds one of the authors of "Disrobing the Aboriginal Industry" who Gerald Taiaiake Alfred exposed as basically a couple enraged by not making it on the selling of Indians gravy train and took their frustrations out on us. Small wonder why their book got glowing reviews then from the National Post newspaper in Canada. Your highlighting the critical elements of Professor Kathryn E. Fort's legal reasoning likely very similar or underlying Professor Garrows view, here: 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.)" seems the core issue which is quite possibly next to impossible to refute; especially in light of other land questions/cases mentioned in a previous ICT commentary entitled "Supremely Bad Trend Continues." So what justice can be garnered when the guilty party is the one delivering the judgements and historical redress? Considering the "Gathering Strength" lip serviced Canadian government response to the $58 million dollar R.C.A.P., and its five volumes, when Harper got in he ensured the immediate slashing of funding AND the monitoring of political unrest among us (to ensure national public safety and security). Playing alongside was big brother's book throwing response to the UNDRIP. In the larger political arena, both responses were par for the course, excuse the pun, and were submitted by the colonial governments to acknowledge/redress the historical (and continuing) injustices against the First PeopleS as a whole? Because these are not new nor adapted/reconciliatory in nature even when there were favorable judgements for us, as in Andrew Jackson's outright dismissal of Marshall's judgement, when he forced the Cherokee onto what came to be known as the "Trail of Tears" but also in light of modern heightened public awareness and knowledge of its government representatives, High Court Justices, and the real interests of whom they serve. You brought forward on another occasion an important element not revisited by the U.S. Supreme Court Justices. You pointed out from the 1823 Johnson v. McIntosh decision - "Chief Justice John Marshall actually makes an admission, a confession - so to speak," you said, "within the decision.." .."John Marshall wrote": "however extravagant the pretension of converting the discovery of an inhabited country into conquest may appear..but if it has been asserted in the first instance, and afterwards sustained, and if it is necessary to the economics of the great mass of the community, it may perhaps be supported by reason and cannot be controverted by courts of justice..." And your discussion went onto international issues today. Some of those include the identified Cdn "Hot Spots" for indigenous political unrest, and where big brother has indeed been watching. And why not? the Arctic gold rush and the satellites as benign and helpful as they seem for navigating new waters, er, new navigational devices like "On Star," for the privileged, can and have been used for further public containment and control. That's what happens with absolute power. Absolute power corrupts absolutely. Important to reference here and to add in, is President Barrack Obama's latest signing. My basic understanding of it is that he has outlined the conflict that was perhaps previously capable of being overidden by Congress when a conflict of interest occurs within the White House. He seen that, as educated as he is, yet the Justices of the U.S. Supreme Court - with all their brilliant scales of justice imparting minds put together, have opted to look away from more than once - from that original "extravagant pretension" that Marshall seen fit to put in, even in 1823, of how the land was taken. But yet today the Justices still routinely ignore the Six Nations Two Row Wampum and the treaties - the latter of which are only decades old. Maybe we don't own the land, but apparently the landholders now own us. But maybe more pressing yet, is that the land owns us all - as humandkind is not above natural law. But if a 'vintage leader' like McCain gets elected in as president, there is little doubt that since he was behind the 'any future protests by anybuddy (anywhere' was it?) so to speak "'that are disruptive of significant and justified societal [read ruling elites'] expectations that have arisen as a result of a lapse of time during which the plaintiffs did not seek relief’" against - well - "the 1/10th of the 1% of the population" - (unless Noam Chomsky was wrong)then we're all going to hell in the Tar Sands in a hurry, as maybe not all have been edutained enough as to what our future generations are really up against. Because that fraction is most likely the landholders since land/real estate and its resources are the greatest assets to them. Then again, maybe this writer's been too pessimistic and there's a need for a joke told to me by a middle eastern elderly man but adapted here: There were three men of different origins/nationalities who were found guilty of certain crimes and who were to be sentenced to death by guillotine. Their religious beliefs known, they were asked which way they preferred to lie under the guillotine so that their spirits would go to Heaven. The first one (of undisclosed origin) said he preferred to lay on his stomach. Almighty then, the guillotine came down & stopped by 1 inch. He was then let go. The second one (again of undisclosed origin) said he preferred to lie on on his back. Alrighty then, the guillotine came down & stopped again by one inch and he too was let go. The third fellow was a tried, tested and true American and when asked of his preference, he retorted: "hey naw I KNOW that thing is broken! Y'all better fix it if I'm gonna go to heaven!" Nia:wen.
sierra
jimdelduca's picture
Friends, I think it should be noted that the "door is shut and bolted" for every group of working class people seeking justice. Right and wrong, legal and illegal do not matter. Only money matters in the capitalist-controlled courts and government. Direct action is the only possibility left for common people.
jimdelduca
duwaynesmith's picture
Steven, you or anyone else, cannot convince me that young Native people enter law school believing that "justice is never on our side." This is absolutely contrary to common sense. To believe that justice is never achieved or will never be achieved is the result of the most negativistic thinking I can imagine. It also flies in the face of all that has been accomplished, primarily by Indian attorneys, over the past thirty or forty years in terms of fighting for sovereignty. Some of us are "arm-chair philosophers" and others simply get out there and give it the good fight. Idealism is fine for providing vision to a cause, but it is the pragmatists who accomplish things. To think otherwise is to discount the life work of Mahatma Gandhi and Martin Luther King, Jr. Finally, for you to believe that Mr. Deloria is satisfied with anyone being oppressed is an insult to Mr. Deloria and the work he has accomplished over the years
duwaynesmith
piqua's picture
Mr. Smith. I'll bet you are right. I'll bet young American Indian law students probably do not think the exact thought, 'justice is never on our side.' But Mr. Trimble viz-a-viz Sam Deloria did not simply take issue with this one point regarding an overgeneralization on Professor Garrow's part. The effect of Mr. Deloria's comments as published in Mr. Trimble's column was to publicly ridicule an Indigenous woman, by analogizing her to a teen-ager (i.e., someone who is immmature) complaining to a parent, and the parent in the analogy being the United States, historically known through the patriarchal image of the 'Great White Father'. As you know, in rhetoric this is called an ad hominem argument because it goes after the character of the person rather than the argument being made by the person. The teenager analogy was a gratuitous an unnecessary swipe at Professsor Garrow. I notice that you do not once speak to how the courts are now dealing with the Haudenosaunee land rights cases, which is the substance of my column. Think about this for a moment: The federal court has said (and the Supreme Court has let stand) that a Haudenosanee land rights case, whether possessory or non-possessory (monetary compenstion), will not be allowed because to allow it might be "disruptive" to the non-Indian society. As Professor Fort has pointed out, this is the court-creation of a brand new doctrine of laches ONLY for American Indians. It is a doctrine I might add that has not previously existed. So in that context, are what we are calling the 'doors of justice' open or closed? (By the way, to symbolize 'justice' Columbus erected gallows with thirteen nooses to hang Indians in the number corresponding to Jesus and the twelve apostles, so its always important to answer the question, 'justice from whose perspective?') As Professor Fort has said: “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..." And, as she has pointed out, it is "potentially applicable to all ancient land claims that are disruptive of justified societal interests that have developed over a long period of time." So, let's look at one comment Mr. Deloria in light of the above information: “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.” Now let's rephrase in light of the above information: When we despair over the fact that the U.S. court system has now developed a brand new doctrine of laches that is only applied to American Indian nations, and oover the fact that the U.S. courts are evidently of the opinion that the Haudenosaunee land rights cases, whether for land or for monetary compensation for lands wrongfully taken,will not be allowed to go forward because they might prove disruptive to the dominating society's 'justified expectations,' "we need only look at the status of our fellow indigenous peoples throughout the world to realize how relatively lucky we are." I did not say in my column that Mr. Deloria is "satisfied" with anyone being oppressed,nor did I imply that. I assume that he knows about the new laches, and 'justified expectations' doctrine that the court has developed regarding Indian land rights cases. (If he does not know, then he is woefully uninformed). I happen to believe, based on several decades of research, that federal Indian law and policy is a context of oppression, and in that context his comment about us being 'relatively lucky' makes no sense. I should be able to say so without being accused of insulting him personally, or his decades of dedicated work in his pre-law program at the University of New Mexico.
piqua