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

[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

[3] See Consent Decree, United States v. Michigan, No. 2:73-cv-00026-RAE (W.D. Mich., Nov. 2, 2007), available at

Marcia Zug on the Adoptive Couple Case

Marcia Zug has published “Adoptive Couple v. Baby Girl: Two-and-a-Half-Ways to Destroy Indian Law” in Michigan Law Review’s First Impressions.

The synopsis:

In December 2011, Judge Malphrus of the South Carolina family court ordered Matt and Melanie Capobianco to relinquish custody of Veronica, their two-year-old, adopted daughter, to her biological father, Dusten Brown. A federal statute known as the Indian Child Welfare Act (“ICWA”) mandated Veronica’s return.  However, the court’s decision to return Veronica pursuant to this law incited national outrage and strident calls for the Act’s repeal. While this outrage was misplaced, it may nonetheless have influenced the U.S. Supreme Court’s decision to hear the appeal. The case of Adoptive Couple v. Baby Girl is emotionally complicated, but it is not legally complex. Therefore, the Court’s interest is surprising and likely means that this case will determine more than the fate of a single child.

The court returned Veronica Capobianco to her biological father because the termination of his parental rights and the subsequent adoption attempt did not comply with the requirements of ICWA. South Carolina law would have permitted the involuntary termination of Brown’s parental rights, but ICWA supersedes state law and forbids such involuntary terminations. Consequently, because Brown never relinquished his rights, the family court held that Veronica was not eligible for adoption and that she must be returned to Brown. The South Carolina Supreme Court subsequently affirmed this decision. The court agreed that under the clear language of the Act, Brown qualified as a “parent” and that the termination of his parental rights must comply with ICWA.