Onondaga Nation Files En Banc Petition in Land Rights Case

Gale Courey Toensing
11/16/12

The Onondaga Nation has asked a federal appeals court for an en banc—or full panel—review of a decision by a three-judge panel that who affirmed a lower court’s dismissal of the Nation’s land rights lawsuit.

The petition for a hearing by the full 13-judge court was filed on November 2 with the U.S. Court of Appeals for the 2nd Circuit in New York City. Onondaga’s lawsuit against the State of New York; the City of Syracuse; Honeywell International, Indiana; Trigen Syracuse Energy Corporation; Clark Concrete Company Inc.; Valley Realty Development Company Inc., and Handson Aggregates North seeks a declaratory ruling that various lands situated in present-day central New York were unlawfully taken by the State of New York in the 1800s in violation of the federal Indian Trade and Intercourse Act, the U.S. Constitution, and various treaties, and alleges that the Nation still owns them. Onondaga does not seek possession of the lands, taxing authority, eviction of the people who live there or any action other than acknowledgment that the lands were unlawfully taken. The lawsuit “calls for a healing,” Onondaga attorney Joe Heath said.

The three-judge panel upheld a federal district court’s dismissal of the nation’s case on October 19, only a week after hearing oral arguments. The three judges based their decision on what is called the “new laches” defense, which has been developed in New York State courts in awarding decisions favoring the state in other Indian land-rights cases.

“This new defense, which only applies to indigenous nations’ land rights cases, has radically changed the rules since our case was filed [in 2005], and is patently unfair and unequal,” Heath said in a statement. The case is important to Indian country beyond the specifics of the Onondaga land rights because it raises “important systematic consequences for the development of the law” related to the application of equitable principles to legal claims, Heath said.

The three judges said they had decided the case “based on the equitable bar on recovery of ancestral land” in City of Sherrill v. Oneida Indian Nation of New York, as well as that court’s cases of Cayuga Indian Nation v. Pataki and Oneida Indian Nation v. County of Oneida. Three factors determine when ancestral land claims are foreclosed on equitable grounds, the court said: “The length of time at issue between an historical injustice and the present day,” “the disruptive nature of claims long delayed” and “the degree to which these claims upset the justifiable expectations of individuals and entities far removed from the events giving rise to the plaintiffs’ injury,’ ” the judges wrote in their decision.

Heath raised several legal arguments for an en banc in the petition, which was filed within the 15-day window following the three judges’ order. He argued that the circuit court’s narrow application of their previous dismissals in the Cayuga and Oneida cases violates prior rulings by the U. S. Supreme Court; that those prior dismissals violate a law that says there are no statutes of limitation on American Indian land rights actions, and that these dismissals under the guise of equity violate a long line of previous Supreme Court rulings and centuries-old principles of equity and fairness.

The new laches reasoning makes it difficult for an Indian nation because the legal doctrine has been watered down in the previous Oneida and Cayuga cases, Heath said.

“It’s not really laches anymore,” Heath told ICTMN. “If you have something as old as these land takings, these treaty violations, the only thing they can say is, ‘It disrupts expectations’ [of the current ‘landowners’]. But are those expectations reasonable?”

Heath said the State of New York knew very well that these takings would be challenged, because Onondaga and the federal government had challenged every one of them.

“There are letters from the War Department from 1790 to the government of New York in both Cayuga and Oneida [cases],” Heath said. “They always knew they were in violation of federal law. They never denied it and yet those factors were not brought into the formulation of whether or not they had reasonable expectations. That’s what we want to prove. That’s why we want to go back to federal court.”

He added that if the 2nd Circuit Court denies an en banc hearing, the Onondaga Nation will appeal to the U.S. Supreme Court. If denied there, the Nation will have exhausted all possible judicial avenues in the U.S. court system, which is a requirement before going to an international court, Heath said. He said the nation will continue to seek a fair and honest resolution to its land rights.

“I think what’s disruptive is the failure of our government to live up to its promises and to deal with this issues until it’s resolved, because it won’t be resolves if they dismiss this case,” Heath said. “The Onondagas have talked about this land for 220 years. They will continue to talk about it until there’s some justice.”

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