Onondaga Nation Amicus Brief Opposing New York’s Nuclear Power Bailouts

Here is the brief:

cw-affirm12-14-18-z14104318-0001

The tribe’s description of the brief and of the issue is here:

In order to pretend that New York state has a progressive energy policy, Gov. Cuomo created his “clean energy plan”, that relies heavily on a multi-billion dollar bail out of the nuclear industry, including the 3 aging reactors in Oswego and a 4th near Rochester–all paid for by rate payers–including every electrical customer in the state.  Under this plan, and every household on the Nation pays extra every month for 12 years.

These extra payments collectively create a fund of $ 12 billion dollars that will be used to prop up the nuclear reactors, which otherwise cost too much to operate to compete against other energy sources.  Clearly this money should be used to build out more solar, wind and renewable energy generation.  

The sloop Clearwater [Pete Seager] has sued to stop this; and their lawyers  asked the Nation to file an Amicus/”friend of the court” appearance, to bring to the court the details of the harmful impacts of the nuclear industry on Indigenous peoples generally and the dangers created for the Nation and Haudenosaunee, by keeping the 3 Oswego reactors in operation for 12 more years. 

The Amicus is a very limited appearance in court, in which the issues important to the Nation and the Haudenosaunee can be raised, but no counterclaims could be filed back; and there is no waiver of sovereign immunity in such an appearance. The issues covered in the Nation’s papers are:

The horrible impacts on Indigenous peoples caused over decades of mining, milling, and transporting uranium;;

The inherent dangers of the 3 aging reactors and their decades of accumulated spent fuel rods at Oswego, which are the same flawed design as those at Fukushima;

The damages to Lake Ontario and its fish and other wildlife cause by these reactors, in violation of the Nation’s stewardship of its original territory and waters; and 

The dangers to the Nations, its citizens, waters, etc., from the transportation of nuclear wastes down Rt. 81, over the clear opposition of the Nation’s leaders.

The Nation was also joined in this Amicus by the Haudenosaunee Environmental Task Force and the American Indian Law Alliance.

Federal Court Challenge to Onondaga Nation ICW Jurisdiction Defeated

Here are the materials in Pitre v. Shenandoah (N.D. N.Y):

12-5 Onondaga Nation Motion to Dismiss

20-5 Onondaga County Motion to Dismiss

34-2 Oswego County Motion to Dismiss

45 DCT Order

R.J. Reynolds Sues US Dept. of Ag. over Tribal Tobacco Retailers

Here is the complaint in R.J. Reynolds Tobacco Co. v. Dept. of Agriculture (D.D.C.):

1 Complaint

1-1 Exhibit A

1-2 Exhibit B

News coverage here.

Onondaga Nation Files Petition with Inter-American Commission on Human Rights

The Onondaga Nation Files Petition Against United States with Inter-American Commission on Human Rights

Sovereign Nation in Upstate New York Seeks International Support After U.S. Courts Fail to Address Violations

**LINK TO PHOTOS**

Washington, DC – Today, the Onondaga Nation, a treaty-recognized sovereign Indian nation with its homelands in upstate New York, filed a petition against the United States with the Inter-American Commission on Human Rights (IACHR). Since 1788, 2.5 million acres of land have been stolen from the Onondaga Nation by New York State, and the failure of the U.S. court system has left the Nation with no choice but to seek assistance for human rights violations from the international community.

To bring attention to the filing, chiefs from the Onondaga Nation and supporters gathered at the Friends Meeting House in Washington, DC wearing traditional dress and with a historic wampum belt commissioned for the Nation by President George Washington to signify peace and friendship while ratifying the 1794 Treaty of Canandaigua.

Click here to view photos of the Onondaga Nation’s demonstration outside the White House and the George Washington belt.

Click here to view the Onondaga Nation’s petition and annex to the petition as filed with the Inter-American Commission on Human Rights.

“Our access to basic equality and justice was fundamentally denied by the United States’ courts,” said Tadodaho Sid Hill of the Onondaga Nation. “Now, we’re calling on the international community to help us reach a healing process following centuries of violations and broken promises.”

On March 11, 2005, the Nation filed a Land Rights Action in the United States District Court, which the federal court dismissed. The Nation then appealed to the Second Circuit Court of Appeals, which affirmed that dismissal. Finally, the Nation filed a petition for a writ of certiorari with the Supreme Court seeking review of the dismissal and its affirmance. On October 15, 2013, the Supreme Court denied that petition. No further remedy is available in the United States court system.

“Where the U.S courts failed, the international community can help us preserve our role as an environmental steward of the land,” added Hill. “That means greater access to our surrounding lands and to cleansing the industrial pollution in Onondaga Lake, which remains a vital location to our nation’s spiritual life.”

The response from the U.S. courts bars the Nation from any domestic remedy and refuses it the chance to articulate the violations of New York State dating back to the late 18th Century. The federal courts’ inherently discriminatory ruling refused to consider the merits of the Nation’s case, holding that indigenous peoples’ claims for relief arising from violations of their land rights are “inherently disruptive” and, therefore, cannot be considered.

The Nation’s petition at the IACHR outlines the United States’ responsibility for violations of the Nation’s property rights, equality, judicial protection and due process – outlined in multiple domestic and international agreements, including multiple treaties, the American Declaration of the Rights and Duties of Man and the United Nations Declaration on the Rights of Indigenous Peoples.

A positive result for the Onondaga Nation at the OAS could establish a framework to resolve the ongoing dispute and offer a case study for indigenous peoples barred access to justice by the U.S. court system.

The Onondaga Nation has never sold or otherwise relinquished its lands or its rights as a sovereign nation. Between 1788 and 1822 the State of New York took approximately 2.5 million acres of Onondaga Nation land, violating federal law, the Constitution and various treaties. Major land “acquisitions” by New York State in the 18th century were conducted with unauthorized individuals without the knowledge or consent of the authorized Onondaga chiefs. On multiple occasions, the State deceived the Onondagas into thinking the State was only leasing the land.

About The Onondaga Nation: The Onondaga Nation is one of the six nations of the Haudenosaunee (Iroquois) Confederacy. Onondaga Nation survives as a sovereign, independent nation, living on a portion of its ancestral territory and maintaining its own distinct government, laws, language, customs, and culture. Today, the Onondaga Nation consists of a 7,300-acre territory just south of Syracuse, NY. For more information visit http://www.onondaganation.org/land-rights/onondaga-nation-files-suit-in-world-court/

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Fletcher, Fort, and Reo on “Tribal Disruption” Theory in the Michigan Law Review First Impressions

Matthew L.M. Fletcher, Kathryn E. Fort, and Dr. Nicholas J. Reo have published “Tribal Disruption and Indian Claims” in Michigan Law Review’s First Impressions. PDF. Here is a taste:

Legal claims are inherently disruptive. Plaintiffs’ suits invariably seek to unsettle the status quo. On occasion, the remedies to legal claims can be so disruptive-that is, impossible to enforce or implement in a fair and equitable manner-that courts simply will not issue them. In the area of federal Indian law, American Indian tribal claims not only disrupt the status quo but may even disrupt so-called settled expectations of those affected by the claims.[1] The U.S. Court of Appeals for the Second Circuit has dismissed a round of Indian land claims at the pleading stage, including Onondaga Nation v. New York,[2] because it considered the claims so disruptive.

We agree that Indian legal claims are inherently disruptive and may implicate the centuries-old settled expectations of state and local governments and non-Indians. It is empirically and categorically false, however, that the remedies tribal interests seek are impossible to enforce or implement in a fair or equitable manner. Every year in cases against state governments and their political subdivisions, Indian tribes settle long-standing claims that at their outset, often appear intractable, if not downright impossible, to remedy. The recent settlements of claims by the Oneida Indian Nation of New York,[3] the Saginaw Chippewa Indian Tribe,[4] and five Michigan Anishinaabe tribes[5] demonstrate the falsehood of the idea 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.

Part I of this Essay describes recent common law, which dismisses Indian claims on the grounds that they are too disruptive. Part II briefly surveys the history of the relationship between Indians and the United States. Part III describes recent settlements between tribal and local governments. Part IV presents our theory of tribal disruption based on notions of ecological disturbance, studied in ecology and related fields. We argue that ecological disturbance in linked social-­ecological systems 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 fires, 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.

State Offers Settlement to Onondaga Nation Protestors Injured by Police . . . 15 Years Ago

Here.

New York state has agreed to pay $3 million to 98 people, mostly Native Americans, who were beaten, arrested or chased away by state troopers from a protest on Onondaga Nation territory 15 years ago.

Lawyers for the state and the people who sued over the May 18, 1997, conflict agreed to settle the case for $2.995 million, according to Terrance Hoffmann, a lawyer for half of the plaintiffs.

The settlement won’t be final until all the plaintiffs sign it, Hoffmann said. More than half have signed since the lawyers met with some of the plaintiffs May 17 at Bellevue Country Club in Syracuse, he said. Lawyers are tracking down the rest, he said. Five of the plaintiffs have died, and their survivors have agreed to the settlement, Hoffmann said.