The New Laches in U.S. Law: My Response to Phillip 'Sam' Deloria
In a column published in December 2011, I criticized Charles Trimble and “Sam” Deloria, Jr., for what I considered to be personalized remarks directed at a Mohawk law professor, Carrie E. Garrow. She had made a comment about first year law students believing “the doors of justice are closed to Indian nations.” I did not care for Mr. Deloria likening Ms. Garrow to a complaining teenager, and I expressed my view in that column.
I called attention to a “new laches” doctrine used by the Second Circuit Court of Appeals to reject an appeal by the Oneida Indian Nation, regarding a land claim and monetary compensation. I quoted Professor Katheryn E. Fort’s explanation that, in the court’s view, the “new laches is ‘properly applied to bar any ancient land claims that are disruptive of significant and justified [non-Indian] societal expectations that have arisen as a result of a lapse of time’.”
According to Ms. Fort, this new laches doctrine has been devised to prevent Indian nations from being able to successfully bring any further land claims cases forward, and, as she explained, it “is potentially applicable to all ancient [Indian] land claims that are disruptive of justified [non-Indian] societal interests that have developed over a long period of time.” The U.S. Supreme Court later refused to review the Second Circuit Court of Appeals’ use of the “new laches” doctrine.
In a 1,400-plus-word response to my piece, Mr. Deloria devoted exactly zero words to my point about the “new laches,” and the evident effort by the U.S. courts to derail further Indian land rights cases against the United States. Instead, he elaborated on his view that Indian people are not oppressed by the United States. He focused in particular on the word “lucky” in light of the billions of dollars in casino generated revenues in Indian country, and the federal dollars spent on federal Indian programs.
It is Mr. Deloria opinion that given such a monetary context the word “oppressed” may not be applied to Indian nations, despite the entire history of federal anti-Indian law and policy being founded on oppression. Money apparently made the oppressive foundation, history, and operation of U.S. law and policy disappear.
In my column, I wrote: “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 still ought to consider ourselves ‘lucky’ to be oppressed by the United States rather than some other country in the world.” This comment was inspired by Mr. Deloria’s statement that “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.”
Mr. Deloria reframed my argument in order to escape my point: “Mr. Newcomb criticizes my use of the word ‘lucky’ in reference to our status in the United States as compared with the conditions in which many Indigenous Peoples of the world live…” But this was not the basis of my critique.
I said that according to Deloria’s logic, the Oneidas “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.” (emphasis added) He decided to disregard my quite specific mention of “due process” and to focus instead on a generalized comparison of the treatment of Indigenous peoples in the U.S. and other parts of the world.
For Deloria, however, this is all irrelevant because the denial of due process in U.S. courts by a “new laches” cannot be “oppression” because the Oneidas are “one of the wealthiest and self-sufficient tribes in the country…” In rhetoric, such illogic is called a non sequitur (‘it does not follow’).
Mr. Deloria charges that, by bringing up the “new laches,” I am a “public intellectual” who is “encouraging Indian leaders and young people to feel sorry for themselves and feel hopeless rather than strong, confident, and self-sufficient.” Yet, interestingly, Mr. Deloria did not quote anything from my column that could be construed as me attempting to have such an effect on Indian leaders and young people. I can only surmise that this is because he found nothing in my column that could be used to make his point.
The “new laches” is an emerging trend which serves to undermine the ability of Indian nations to find due process in the U.S. legal system, and is therefore a real and present danger to Indian nations and peoples. Those of us who write about such matters, or what I call federal anti-Indian law, ought to be able to inform people without being criticized for it. Anyone who has read my columns over the years knows about my foundational challenge to federal Indian law and policy, which is my best model for Indian leaders and young Indian people.
Given his longevity in the field of federal Indian law, it would be great to see Mr. Deloria use his leadership role to provide a vision of how Indian Country can remedy the emerging trend of the “new laches” and other problematic areas of U.S. federal Indian law.
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 the Indigenous and Kumeyaay Research Coordinator for the Sycuan Band of the Kumeyaaay Nation.