The New Laches in U.S. Law: My Response to Phillip 'Sam' Deloria

Steven Newcomb

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.

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andre's picture
You can forget about an intelligent well reasoned response. The truth is rather hard to refute. You were met by the typical obscuring of material facts, practice it long enough, you can dumb them down. To lessen it's impact, they would attempt to downplay the evident and focus on generalities that have little or no basis in fact and pull attention completely away from the issue. It's called sleight of hand and it's very effective. In America's case, this has worked very well for 236 years now. All the rough edges have been smoothed over, generic cliches like BIA are offered as save all and Treaty's however underfunded and supported, are offered as items of reparation. Same was used to explain slavery of Blacks and Chinese and the interment of Japanese during W.W.II The biggest advent and shaper of history the past 50 years has been the television. The media has done more to distort the truth. Discerning minds will have to do there own research. For the vast majority, if it was told in the media, it's the unvarnished truth. The fact that the person telling it looks nothing like them, lives in a world economically and socially apart, is accepted and lends itself to the conditioning it being truth. Yes, they are well on target to brand you as a public intellectual. It's the only way to minimize the truth and keep the distortions status-quo. In the end you have done a good job Steve, stay the course. When all else fails, they will brand you as a radical and resort to character assassination. Count it all joy when they accuse you of being an agitator of Indian leaders.
soundstep's picture
Is Sam Deloria is a genuine journalist? Or is he on "someone else's" payroll, paid to hide the truth and fool the masses. I mean, how dumb can he be? I say that because a true proponent of the Declaration on the Rights of Indigenous Peoples doesn't write propganda and that is exactly, in my opinion, what Deloria is doing. He also is very paternalistic. I quite naturally have other busy things to do in my every day life, so I skim his articles and Trimble’s, but I do take time-out to read Mr. Newcomb’s.
rezzdog's picture
I have to agree with most of what you say. I have to constantly remind myself, while talking with academic and political types (the old guys), they believe that Tribal Gov's are real governments. They are not. They are little more than Non-Profit Orgs. The real NDN govt's, that Treaty's were signed with, were obliterated a long time ago and sent underground. Can a Tribal Government (today's version) sign a Treaty? Absolutely not, they are not full sovereigns. They need BIA approval for that sort of thing. Heck, they need BIA approval just to add an amendment to their IRA constitutions.
azpark's picture
I have always liked Vine Deloria's (may God rest his soul) comment a decade ago in a piece on native American Studies: "..this generation is doing nothing for the people that come. They keep themselves in a little intellectual gheto and throw around big words like "sovereignty" and think they are doing something. Not likely. If Clyde Warrior were alive today he would puke at what is happening." Are the Deloria brothers the only ones that get it? I think I know exactly who Vine was talking about.
pechangami's picture
"Yes, they are well on target to brand you as a public intellectual. It’s the only way to minimize the truth and keep the distortions status-quo. In the end you have done a good job Steve, stay the course. When all else fails, they will brand you as a radical and resort to character assassination. Count it all joy when they accuse you of being an agitator of Indian leaders." What has frustrated and saddened me for many years has been..... Why haven't Echohawks confronted America's lawlessness? Books have been written....I was sad to see and hear Echohawk more or less present a synopsis of his book "In the Courts of the...." Mr. Echohawk was a guest of the University of Hawaii law school. He was beautifully dressed...his silken braids beautifully groomed..his voiced beautifully moderated... What was missing? Passion for justice was missing! No speaking of injustice. Echohawk, in all his loveliness, was presenting the way one of my professors presented his lectures many years ago. Professor could have been stuffed and wheeled out on a hand-truck to present his 'lectures.' He was cool;no emotion...he recited..he was flawless..Was Echohawk just on an appearance tour for his book? Why haven't the Echohawks ever speak against the United States'lawlessness? Why haven't the Congress of Indians? Indian media? Well, some humans such as the above do manage to slip through the barricades of media watchdogs....with targets on their backs! Sardonic Ha!
rezzdog's picture
"Why haven’t the Echohawks ever speak against the United States’lawlessness? Why haven’t the Congress of Indians? Indian media?" Well, for the same reason NCAI and NIGA are promoting Tribal Governments to house American voting machines on sovereign tribal soil. Cha Ching. But, that is a crude interpretation, true as it is. Should tribal governments and national tribal representative organizations be promoting voting in American elections? The sovereignty question has not been more focused if not for that one question. Does America promote its citizens to vote in Mexico's, Russia's, Canadian elections? Of course not. So, the obvious question presents itself....why then does our Tribal leaders and representative organization do? Cha ching.
rezzdog's picture
Well, what ever you believe Sam D to be, I know him as a man who thinks deeply before he speaks. No matter what his view, one can learn from his deliberations.
sierra's picture
In retrospect, I think Mr. Deloria was playing Devil's Advocate to Mr. Newcomb.
soundstep's picture
As far as I'm concerned, people appear shallow when they avoid addressing key points (i.e. Deloria), it's that plain and simple. A big shout out to Professor Carrie Garrow and Steven Newcomb for shinning the light on important issues. We can certainly thank the courts for their newly created laches doctrine that has slammed the door shut on all ancient land claims, yet Deloria says I should consider myself "lucky" that I don't live in another country. He reminds me of the song, "I've been down so g@dd@m long" - the song implies it's the fate of people who've been wronged. Deloria thinks tribal nations should stop going to the courts, accept the land loss, keep suffering along with all the other injustices and accept it. Well, that's being shallow.
piqua's picture
To Soundstep: Thanks for your words of support. However, I did not write the column to provide a basis for going after Mr. Deloria, which is counter productive. You wrote:"Deloria thinks tribal nations should stop going to the courts, accept the land loss, keep suffering along with all the other injustices and accept it. Well, that’s being shallow." I don't find that he has expressed any of those ideas in his column. Not presuming to know that someone "thinks" is a good rule of thumb. It could be posed in the form of a question, I suppose, thereby providing the person with the opportunity to explain whether or not such ideas are in line with their thinking. Also, in your previous post of July 31st, you wonder whether Deloria is a journalist. To my knowledge he is currently the director of the American Indian Graduate Center in Albuquerque, New Mexico, and not a journalist.