Brad Powless laments the pollution of Onondaga Lake. If only he and his fellow members of Onondaga Nation still controlled the land, he says, they would keep it clean.
“It’s a sad thing,” said Powless, a member of the Onondaga Nation Council. “It’s something that someone took from us, and it’s so dirty.”
David Vickers was raised to believe the law applies everyone. In his view, American Indian nations should not be able to sue the state to get out of abiding by state laws.
“It boils down to whether an Indian tribe has the right to team up with the federal government and simply remove land from New York state jurisdiction,” said Vickers, president of Upstate Citizens for Equality, a group that opposes American Indian land claim cases in New York.
Powless lives on the Onondaga Nation’s reservation in Onondaga County. Vickers is from Erieville in Madison County. Their opposing views represent how a national, centuries-old battle for land ownership is playing out in Central New York.
Nationally and locally, at issue is who rightfully owns swaths of land. On the one side: American Indian nations say they do because the federal or state government violated their treaty rights and stole their land. On the other side: Non-Indian citizens say the nations are using the cases to avoid state laws and federal courts say the Indian nations have no case.
The United States has 566 federally recognized American Indian nations, according to the Bureau of Indian Affairs. That’s about 1.9 million people. In New York are seven federally recognized nations. Six of those are considered to be in Central New York — the six nations of the Haudenosaunee peoples: Mohawk, Oneida, Onondaga, Seneca, Cayuga and Tuscarora nations.
Under U.S. law, American Indians nations are considered “domestic dependent nations.” This means Indian nations control their own internal issues like citizenship and make treaties with Congress. The relationship between the U.S. government and Indian nations has also been described as a government-to-government relationship. But unlike a foreign nation, for example, Indian nations cannot prosecute a non-Indian for a crime committed on their land.
In general, land disputes arise from three main conflicts:
- If the federal government violated a treaty with an American Indian nation
- If Indian land was bought for less than its proper value
- If states bought Indian land in violation of federal law
That last conflict has been the main issue in Central New York, said Carrie Garrow, the executive director of the Center for Indigenous Law, Governance and Citizenship at Syracuse University. Central New York Indian nations say New York illegally bought their land during the 18th and 19th centuries in violation of the 1790 Indian Trade and Intercourse Act, more commonly called the Nonintercourse Act.
That law says, among other things, the federal government must sign off on all land purchases between Indian nations and U.S. states. “That didn’t happen in a lot of the purchases that New York state made,” Garrow said.
In a land dispute, Indian nations typically file suit in federal court. The number of land-claim suits across the country is probably in the hundreds, Garrow said. The lawsuits are not seeking to evict current residents from their homes, she said. The suits focus on money.
“It’s just seeking compensation for what the state stole from them,” Garrow said.
Today, most of the court cases have stalled, Garrow said, because the court began applying a legal principle called “laches.” This means the court believes Indian nations waited too long to file suit.
When a land-claim suit fails, Indian sometimes then buy land like anyone else and put it under federal trust. Putting land into trust protects the land from state interference. Nationally, the federal government holds 55 million acres in trust. Eighteen of those acres are in Verona, N.Y., and belong to Oneida Nation.
In Central New York, Indian nations have three main land disputes. Here is a closer look at them:
- Oneida and Madison counties
The Oneida Nation has filed suit to get the the state to pay the nation for 250,000 acres in Madison and Oneida counties. The case dates back to the 1920s, when nation members began writing letters to government officials seeking to reclaim the land, said Kandice Watson, the nation’s educational and cultural outreach director. Watson is the great granddaughter of one of main letter writers.
“My great grandmother was very adamant that we needed land — not so much money,” Watson said. “We needed land.”
In the 1970s, Oneida Nation filed suit. In October 2011, the U.S. Supreme Court decided not to hear the case. That left standing the 2nd Circuit Court of Appeals ruling that Oneida Nation could not pursue monetary damages. The appeals court ruled that the nation had waited too long to file its claim. The damages would have been worth more than $500 million.
In the meantime, Oneida Nation had purchased 17,000 acres of land scattered throughout Madison and Oneida counties. The nation took the land off the state tax roll as if it were reservation land. The city of Sherrill sued to get the property taxes. In 2005, the Supreme Court ruled that simply buying the land was not enough to make it tax-exempt. The court suggested the nation put the land into federal trust.
Oneida Nation is still waiting for the government to approve putting 13,000 of those acres into trust. Watson, the Oneida Nation educational and cultural outreach director, suggests the delay comes from lack of understanding about putting land into trust.
“The concept is a little new to people,” she said, “and I think it’s making people nervous.”
- Cayuga and Seneca counties
In 1980, Cayuga Indian Nation filed a suit saying 64,015 acres of land in Cayuga and Seneca counties around the north end of Cayuga Lake had been stolen by New York. The potential damages would have been $248 million.
Representatives from Cayuga Nation could not be reached for comment.
In 2000, a federal judge ruled in favor of Cayuga Nation. But in 2005, the appeals court dismissed the case, again saying the nation had waited too long to file the suit. In 2008, the nation filed suit again.
Cayuga Nation also tried to put 125 acres into trust so it could build a casino on the land. In December 2011, the U.S. Department of Interior dismissed Cayuga Nation’s application to put land into trust, saying the application was incomplete. Cayuga Nation has said it will resubmit its application.
- Onondaga County
Onondaga Nation calls its case a “land-rights action.” The nation does not want land or money. It simply wants an acknowledgement that New York acted illegally in buying the land — including Onondaga Lake — in the 18th and 19th centuries.
“We’re looking at a way of trying to make the healing of our waters and our lands and trying to right a wrong that happened over 200 years ago,” said Onondaga Nation Council member Powless.
In 2005, Onondaga Nation filed its original suit against the state, Onondaga County, Syracuse and four businesses the nation blamed for polluting Onondaga Lake. In 2010, the federal court ruled against Onondaga Nation, again citing that long delay in the nation filing the claim. In February 2012, the nation filed an appeal and is waiting to see if the court will hear the case.
One of the key things the nation wants in the suit is winning the right to clean up Onondaga Lake. The lake is significant for two reasons. First, in the 16th century, it was the site where the five original Haudenosaunee nations formed their league. Second, the nation feels responsible for ensuring the resources of the lake are there for future generations, Powless said.
Of the contaminated state the lake is in now, Powless said, “It is very sad.”
For the Oneida, Cayuga and Onondaga cases, the main citizen opposition has come from a group called Upstate Citizens for Equality. The group’s main tenet is that Indian nations should not get any special treatment.
The conflict boils down to state law versus federal law, said Upstate Citizens for Equality president Vickers. “The history has been the states have governed the concept of tribes,” Vickers said. If a Indian nation was in one state, Vickers said, the state used to be able to govern it.
With many of the court cases either already tossed out or in limbo, Upstate Citizens for Equality is focusing on opposing nations’ efforts to put land into trust. Putting land into trust would be destructive because it would give the Indian nations more ways to circumvent the law, Vickers said. For example, the nations’ businesses would not have to pay state taxes or have state inspections like health inspections.
“It’s a law thing,” Vickers said. “It gives the tribal entities, which in some cases are really operating as multi-billion dollar corporations, a huge advantage over any competition.”
(Rebecca Kheel is a senior with dual majors in newspaper journalism and history.)