Commentary on the Final Dismissal of the Onondaga Nation’s Land Claims: “Tribal Disruption and Indian Claims”

Today, the Court surprised no one by denying the cert petition in Onondaga Nation v. New York. The Court did the same thing twice before, in the claims of the Cayuga and Oneida Nations. You may recall that the Second Circuit affirmed the dismissal of the Onondaga land claims using this language: “The disruptive nature of the claims is indisputable as a matter of law.” According to the Second Circuit, all Indian land claims are too disruptive to be heard on the merits, as a matter of law.

Later this year, Kate Fort, Nick Reo, and myself will publish a short paper in the Michigan Law Review’s online supplement, First Impressions, titled “Tribal Disruption and Indian Claims.” It is our intention to demonstrate that even the most disruptive tribal claims are beneficial to the governance of Indians and non-Indians alike on or near Indian country. We will expand this nub of an idea in a full-scale paper next year. We also thank Wenona Singel for her significant intellectual contributions to this idea.

Here is an excerpt:

We agree that Indian claims are inherently disruptive, and may implicate the settled expectations of state and local governments and non-Indians going back centuries, but it is empirically and categorically false that the remedies sought by tribal interests are impossible to enforce or implement in a fair or equitable manner. Every year Indian tribes settle long-standing claims against state governments and their political subdivisions that at their outset often appear intractable, if not downright impossible to remedy. The recent settlement of claims by the Oneida Indian Nation of New York,[1] the Saginaw Chippewa Indian Tribe,[2] and five Michigan Anishinaabe tribes[3] demonstrates the falsehood that Indian claims are too disruptive to be remedied. These negotiated settlements powerfully illustrate that the disruption produced by Indian claims has an important function, forcing federal, state, and tribal governments to creatively seek solutions to difficult governance issues in Indian country.

We argue that ecological disruption theory offers a useful analog to the disruptive nature of Indian claims. These claims can be compared to disturbances in rivers, forests or other ecosystems. Floods, forest fire, and windstorms break down existing structures, allowing space for reorganization, diversification and new growth. Tribal claims similarly clear out a legal space for creative and improved governance institutions.


[1] See Settlement Agreement by the Oneida Nation, the State of New York, the County of Madison, and the County of Oneida (May 2013), available at https://turtletalk.files.wordpress.com/2013/05/142783486-oneida-indian-nation-settlement-agreement.pdf.

[2] See Joint Motion to Enter Order for Judgment Upon Completion of a Public Comment Period and Opportunity For the Parties To Respond, Saginaw Chippewa Indian Tribe of Michigan v. Granholm, No. 05-10296-BC (E.D. Mich., Nov. 9, 2010), available at https://turtletalk.wordpress.com/2010/11/10/saginaw-chippewa-reservation-boundaries-settlement-materials/.

[3] See Consent Decree, United States v. Michigan, No. 2:73-cv-00026-RAE (W.D. Mich., Nov. 2, 2007), available at https://turtletalk.wordpress.com/2007/11/07/inland-settlement-consent-decree-materials/.

Federal Court Issues Clarified Order in St. Regis Mohawk Land Claims (Fort Covington Area Claim)

In short, no dice. Here are the updated materials:

St. Regis Mohawk Motion for Clarification

US Motion for Clarification

USDC NDNY Canadian St. Regis v. New York – Corrected & Clarified Memorandum Decision & Order 7-23-2013

Prior order here.

Federal Court Dismisses Most St. Regis Mohawk Land Claims; Hogansburg Triangle Claims Survive

Here is the opinion in the case captioned Canadian St. Regis Band Mohawk Indians v. State of New York (N.D. N.Y.):

DCT Order July 9, 2013

News coverage here.

Magistrate report and recommendation here.

Objections and responses here:

St. Regis Mohawk Opening Brief

Akwesasne Mohawk Opening Brief

United States Opening Brief

Defendants’ Opening Brief

US Response

Canadian St. Regis Mohawk Response

NY Power Authority Response

St. Regis Mohawk Response

State and Municipal Defendants Response

NY Power Authority Reply

St. Regis Mohawk Reply

Canadian St. Regis Mohawk Reply

Municipal Defendants Surreply

NY Power Authority & State Surreply

 

Second Circuit Hears Onondaga Land Claims Oral Arguments Today at New York Law School

Here is the NYLS website with the description of the appellate panel. [not sure why the link says moot court, because it seems all too real]

Here are the briefs:

Opening Brief

Appendix

Amicus Brief [drafted by MSU ILPC]

State’s Brief

City of Syracuse and Corporate Appellee’s Brief

Tribal Reply

Briefs are also here.

Kate Fort on The New Laches and the Iroquois Land Claims

Kathryn Fort has posted a draft of her paper, Disruption and Impossibility: New Laches and the Unfortunate Resolution of the Iroquois Land Claims in Federal Court, forthcoming in the Wyoming Law Review as part of an Indian law symposium, on SSRN.

Here is the abstract:

That the law changes over time is no secret. That the law changes based on the parties involved is less obvious, but still no secret. In the case of the Haudenosaunee land claims cases, however, the law shifted dramatically and quickly based entirely on the identity of the parties. In less than five years, the federal appellate courts changed the law so drastically to all but end more than thirty years of modern litigation, reversing years of relative fairness at the district court level. These actions required a fundamental shift in the law of equity: the creation of a new equitable defense for governments against Indian land claims. How the courts accomplished so much in such a short amount of time requires a close reading of the cases and a few logical leaps.

The first part of this article will give a brief history of the New York land claims, focusing on the Oneida Indian Nation and the Cayuga Indian Nation of New York. While the tribes have been fighting the status of this land since the original agreements were signed in the late eighteenth and early nineteenth century, this article looks to the modern era of land claims in the federal courts. The second part of this article will review how a decision in the Oneida claims case directly informed City of Sherrill v. Oneida Indian Nation. The third part will focus on the Cayuga Nation line of cases and how Cayuga Indian Nation of New York v. Pataki changed the fundamental understanding of the equitable defense of laches into a new defense used to defeat tribal land claims. Finally, the fourth part of this article will look closely at the most recent loss, Oneida Indian Nation v. County of Oneida, where the court admits the creation of a new equitable defense. This defense, identified as “new laches” or “Indian law laches” is a defense that can prevent even the bringing of a land claim in the courts. The defense is no longer traditional laches, but rather an equitable defense that follows none of the rules of equity, and exists only in federal Indian law.