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/.

Onondaga Nation Press Release on Denial of Cert

Here (pdf).

The Onondaga Nation’s struggle for justice will not end with today’s denial; and the Nation is working with its attorneys to file a challenge in an international arena–either the United Nation or the Organization of American States Commission on Human Rights.
“We have recognized for years, that no justice would come to the Nation in US courts,” said Onondaga Nation General Counsel, Joe Heath. “The struggle for healing and justice will continue; and this is no longer a land rights case–it is a land rights movement. It is time to admit these historic harms; and it is time for justice, time for healing.”
Contact: Joe Heath, (315) 447-4851; jheath@atsny.com

Previous coverage here.

Supreme Court Denies Cert in All Indian Law Cases (No News on Onondaga)

Here.

The denial in Nebraska v. Elise M. is a big deal. The hold on Onondaga is interesting….

See our preview of the long conference here.

 

Supreme Court Issues Call for Response in Onondaga Land Claims Cert Petition

Here is the docket sheet. The request is dated July 3, 2013. The petition is scheduled for the September 30 “long Conference.” New York has asked for additional time, until September 3, to respond.

Here is the cert petition.

Onondaga Nation v. New York Petition for Cert

Here:

Onondaga Petition for a Writ of Certiorari

Question Presented: Whether the court of appeals’ ruling that equitable considerations bar the Onondaga Nation’s claim for a declaratory judgment for violations of the Trade and Intercourse Act, three federal treaties, and the United States Constitution contravenes the fundamental right to a remedy, international legal norms, principles of federal equity and this Court’s decisions in County of Oneida v. Oneida Indian Nation of New York State, 470 U.S. 266 (1985) and City of Sherrill v. Oneida Indian Nation, 544 U.S. 197 (2005).