Onondaga case disrupts proposed N.Y. settlement

Posted: March 18, 2005
by: Jim Adams / Indian Country Today

Latest Iroquois land suit filed

ONONDAGA HOMELAND, N.Y. - The Onondaga Nation's traditionalist government is filing a ''land rights'' suit against New York state, the last of the Haudenosaunee (Iroquois) Confederation nations to start the potentially-protracted process.

The suit asserts ownership of nearly 4,000 square miles in a band from Pennsylvania to Canada, including most of two major upstate cities, Syracuse and Binghamton. But it will not seek eviction of individual homeowners, said Sid Hill, the Tadodaho, or spiritual head, of the traditional Onondaga government. Nor will the anti-gaming Onondaga ask for a casino, he said.

To underscore the difference from other Iroquois land claims, now in various stages of negotiation, the suit also names five corporations as defendants for allegedly polluting or desecrating Onondaga land. The corporations take the place on the list of defendants that has been occupied by individual property owners in other tribal suits.

By taking a casino off the table, the Onondaga have eliminated the bargaining chip New York state Gov. George Pataki has used effectively to make settlement deals in five such suits and to splinter resistance against state taxation. But it is not clear what impact their suit will have on his efforts to pass bills in the state Legislature and Congress to ratify his deals.

(A movement in Congress to limit off-reservation casinos could kill Pataki's settlement bill before it even gets going. U.S. Rep. Richard Pombo, R.-Calif., chairman of the House Resources Committee, held a discussion March 17 on a draft bill he released which intends to limit ''reservation shopping.''

The Onondaga suit, filed March 11 in federal court in Syracuse, could take years just to get through its preliminary stages. Similar suits by the neighboring Cayuga and Oneida Nations have been in federal court for a generation.

Onondaga elders crafted the suit to minimize the inflammatory impact of earlier actions. The preamble of the complaint, and an official Nation statement, call it an attempt ''to bring about a healing.''

''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,'' said the complaint. ''This relationship goes far beyond federal and state legal concepts of ownership, possession, or other legal rights. The people are at 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.''

Lead Attorney Robert ''Tim'' Coulter of the Indian Law Resource Center in Helena, Mont. said the pleading asked the federal court only to declare that the conveyances of Onondaga land in a series of ''treaties'' from 1788 to 1822 were null and void and that the Onondaga Nation and the Haudenosaunee Confederacy continued to hold title to it. He said the elders preferred the term ''land rights'' for the suit, instead of ''land claims.''

But, Coulter added, the case wouldn't end with that goal. ''Under federal law, the request for declaratory judgment does not stop us from requesting other things at a later time,'' he said.

He indicated that the 1,500-strong nation wanted to increase its 7,000-acre land area to accommodate population pressures. He also said it wanted to foster economic development for the entire depressed region, possibly by leveraging the tax advantages of its sovereign territory.

Other land negotiations, notably the recently-signed agreement with the St. Regis (Akwesasne) Mohawks, have proposed multi-million dollar funds to purchase additional reservation land from ''willing sellers.''

Coulter emphasized that any land acquisitions would be voluntary. ''There are a lot of willing sellers here,'' he said.

He also indicated that the Onondaga Council, which asserts collective control of the reservation economy, would be open to sales tax negotiations with the state. Its position over the past decade has been less hard-line than that of governments like the Seneca, which reflect an active private business community.

Before negotiations reach that stage, however, the land rights suit has to pass several hurdles. It must overcome the sovereign immunity of a state government to being sued without its consent. Coulter wrote Gov. Pataki on March 9 asking him to waive sovereign immunity, with legislative action if necessary. Although such a move wouldn't admit wrong-doing, he said, it would ''substantially relieve the burden of the suit on other title holders.''

Pataki has not yet replied, Coulter said, but the suit would go forward anyway, since it names other defendants - the city of Syracuse, Onondaga County and five corporations - who do not have sovereign immunity. It also sues Pataki as an individual, under the legal argument that in asserting title to Onondaga land he is exceeding his legal powers.

The Onondagas also seek participation from the U.S. government, which would breach the state's immunity. The U.S. has joined the other Haudenosaunee land suits. The nation has requested help from the Department of Interior, which would bring in the Department of Justice to represent it.

In arguing the case, the Onondagas also have to counter a defense not present in the other New York cases. Those suits have all been based on New York's total disregard of the federal Nonintercourse Act of 1790, requiring federal approval on all Indian land transfers. But the first Onondaga conveyance came through a 1788 deal, before the first U.S. Congress passed the Nonintercourse Act. The suit argues that the 1788 deal was not signed by valid representatives of the nation and that it wasn't ratified until after the federal law had gone into effect.

The claim might not necessarily unroll in the courtroom. In the letter to Pataki, Coulter called for a ''fair and just out-of-court resolution of this case.''

''We wish to vigorously pursue talks with the state and the federal government and other interested parties with the goal of reaching a fair and just resolution,'' he wrote. ''We believe that a resolution of the case can be tailored so that it benefits the entire region.''

Coulter gave mixed reviews to Pataki's other proposed settlements, incorporated in his omnibus Program Bill 06. The deal with the St. Regis Mohawks, he said, ''was a good, honest settlement. That part of the bill is totally good. That deserves to be saved.