Aerial view of Onondaga Lake, Syracuse, New York

Onondaga to Argue its Land Rights Appeal at 2nd Circuit Court

Gale Courey Toensing
10/2/12

How equitable is a solution that favors only one side of a dispute? That question will be one of the arguments at the heart of the Onondaga Nation’s appeal against a district court’s dismissal of its land rights lawsuit.

A three-judge panel of the 2nd Circuit Court of Appeals in New York city will hear oral arguments October 12 from the Onondaga Nation – the plaintiff – and the state of New York, the county of Onondaga, the city of Syracuse and five corporations, including Honeywell International, that collectively comprise the defendants and are referred to as “the State.”

The appeal challenges a September 2010 decision by the U.S. District Court for the Northern District of New York dismissing Onondaga’s land rights lawsuit, which sought a declaratory ruling that various lands situated in present-day central New York that were unlawfully acquired by the State of New York in violation of the federal Indian Trade and Intercourse Act, the U.S. Constitution, the Treaty of Stanwix of 1784 and the Treaty of Canandaigua of 1794, and the nation still owns them.

In dismissing the claim, U.S. District Judge Lawrence Kahn said that the “mandatory basis” for his decision was set by the U.S. Supreme Court in its notorious 2005 ruling in City of Sherrill vs. Oneida Indian Nation of New York, an 8-1 ruling that invoked the Doctrine of Laches – the idea that the Oneida Nation had waited too long to claim the land. The “standards of federal Indian law and federal equity practice precluded the tribe from rekindling embers of sovereignty that long ago grew cold,” the majority in Sherrill wrote.

Kahn said that to rule in the Onondaga Nation’s favor would be “profoundly disruptive” of “long-settled expectations” of those who currently occupy and benefit from the developed land.

Roots of Peacemaking - Onondaga Lake, Syracuse, New York

“The question is, are those expectations reasonable under the historical fractured record?” asked attorney Joe Heath, who will argue the Onondaga case before the 2nd Circuit panel. “If you’re going to apply equity, one of the fundamental rules is a balance of equity. Where do we begin to track the disruption to Onondaga – the loss of their land, their heritage, their ability to protect their sacred sites and sacred ways, their removal and the genocide? The irony is the ultimate disruption is the violation of the Indian Trade and Intercourse Act that says you can’t take the land without the approval of Congress.”

The appeal will be heard more than seven years after Onondaga filed its original action in the federal district court in March 2005 on behalf of itself and the Haudenosaunee against the state.

In addition to citing Sherrill’s use of an “equitable considerations” argument – a set of legal principles under which people cannot assert their legal rights if it would be “unconscionable” for them to do so – Kahn also cited the 2nd Circuit’s June 2005 ruling in Cayuga Indian Nation v. Pataki and the Oneida Indian Nation v. County of Oneida decision in 2010,  which interpreted the Supreme Court’s Sherrill ruling to hold that the equitable doctrine of laches bars all tribal lawsuits involving possessory land and trespass claims for tribal plaintiffs and the federal government.

But the Onondaga lawsuit is not a possessory claim, which is a major difference between the Onondaga land rights action and the Sherrill, Oneida and Cayuga cases, Heath said. “We’ve stated categorically that we will not sue individuals; we will not drive people off the land. That happened to us so we know what that’s like,” Heath said. “The declaratory statement we seek is just a statement by the court of how the law applies. You can’t go out and enforce it. This has always been about how we can reach some truth and healing about this historic taking of the land. Eventually, this has to be a negotiated settlement,” Heath said. He cites the opening paragraph of the nation’s original complaint: “The Onondaga people wish to bring about a healing between themselves and all others who live in this region that has been the homeland of the Onondaga Nation since the dawn of time. The Nation and its people have a unique spiritual, cultural, and historic relationship with the land, which is embodied in Gayanashagowa, the Great Law of Peace. This relationship goes far beyond federal and state legal concepts of ownership, possession, or other legal rights. The people are one with the land and consider themselves stewards of it. It is the duty of the Nation’s leaders to work for a healing of this land, to protect it, and to pass it on to future generations. The Onondaga Nation brings this action on behalf of its people in the hope that it may hasten the process of reconciliation and bring lasting justice, peace, and respect among all who inhabit this area.”

Matthew L.N. Fletcher and Kathryn E. Fort, director and assistant director of the Indigenous Law and Policy Center at Michigan State University College of Law, and Carrie Garrow, director of the Indigenous law, Governance & Citizenship Center at Syracuse University College of law, filed a friends of the court brief on behalf of the nation to highlight the extent to which the dismissal of the Onondaga case based on the “disruption” associated with the passage of time “contravenes the considered judgment of the legislative branch of the government, departs from basic principles of equity, both historic and modern; and threatens unwarranted adverse consequences for the ability of New York Indian tribes to vindicate their legal rights.”

Among their arguments, the friends group cited the Indian land Claims Limitations Act of 1982, a statute that preserves the right of Indian tribes’ to bring land claims actions “without a limitations period.” The federal court ruling “ignored the cardinal principle” that bars federal courts from “fashioning equitable rules” when Congress has already taken account of “weighty” considerations such as, in this case, the passage of time and potential effect on “societal expectations.” They argue that the federal court does not have the power to prevent any possible relief without the nation having an opportunity to develop “a full factual record and findings of fact by the trial court.” The district court’s dismissal based on equity and prior precedents “is, in the many different senses of that term, inequitable,” the group said. It takes no account of the potential wrongdoing on the part of the defendants, and “eliminates an entire claim (one specifically authorized by Congress) without considering the inequity of denying relief, without even considering the type of relief requested [and] turns equity into a ‘nuclear weapon of the law,’” the group said.

Heath said the Onondaga will pursue every legal remedy in its struggle for its land rights. “The Onondaga will never give up on the loss of their land. Assuming we don’t win (in front of the three-judge panel), we have the right to ask for an en banc (full court) hearing. Those are very, very rarely granted,” Heath said. “If that doesn’t happen, we have the right to petition the Superior Court. We have the right to exhaust all remedies because then we can take it to an international forum. Absolutely, we will take it to an international forum.”

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