Onondaga Nation Land Claim

The Onondaga case is remarkable because the suit asks only for a declaratory judgment that the land was illegally taken from the Nation and that the Nation continues to have legal title to the land.  It does not ask for possession of the land nor for compensation.  The Nation is primarily interested in demanding clean-up of the many SuperFund sites in the area around Syracuse, especially Onondaga Lake. 

  In November 2006, we completed an enormously important and massive submission in the Onondaga Nation land rights suit.  This was the Nation's response to the motions to dismiss the Nation's suit.  The defendants had asked that the suit be dismissed on the ground that some 200 years have passed since the land was taken from the Nation and on the ground that the State of New York is immune from suit. 

  In 2005, the Second Circuit Court of Appeals decided that the entire Cayuga Nation claim must be dismissed because of the passage of 200 years and the supposed delay in filing the claim.  No rule of law existed making the claim too late, and in fact law was well established that the claim was not too late.  So the Court of Appeals simply made up a new rule.  It is clear that the Cayuga Nation has been denied equality before the law by being subjected to a new rule created just for this case.  Last summer we filed a friend of the court brief to support the Cayugas' petition for a rehearing.  That was denied. 

  During the fall and winter, we worked on a friend of the court brief to support the Cayugas' petition to the Supreme Court asking for review of the decision.  We worked very closely with the Cayugas' lawyers and with many other lawyers who also drafted friend of the court briefs.  Our brief was filed early this year in behalf of the Onondaga Nation, the Tonawanda Band of Seneca Indians, the Mohawk Nation Council of the Chiefs, and the Haudenosaunee (Six Nations Confederacy).  Sadly, the Supreme Court in May 2006 refused to review the case, making this horrible decision final.

  In mid-August of 2006, the Defendants filed their motions to dismiss based on the Cayuga precedent.  For more than a year we have been preparing for this very possibility that the Cayuga case might be finally dismissed on the grounds of delay or the passage of 200 years between the loss of the lands and the filing of the claim.  Our strategy is to demonstrate through historical evidence and legal history that the Onondaga Nation cannot be charged with delay and could not have filed its law suit earlier.  We retained four outstanding historical experts who researched the relevant history and compiled the historical records showing that the federal courts would not consider such land rights cases until 1974 and showing that the Onondaga Nation took every possible action to protest the taking of its lands.  The historical record shows that the Nation did not delay and that the passage of time has not resulted in any prejudice to the defendants.

  Over the past year and a half, we have hired and supervised almost two dozen historians and research assistants working in libraries and archives all over the nation to compile the relevant history.  This past fall, this enormous effort came together in the form of four formal expert declarations supported by hundreds of pages of documents showing that the Onondaga Nation has never been guilty of delay or acquiescence.  We have submitted this proof to the court to show that Nation is prepared to prove it has not been guilty of delay.  We are confident that if we can win the right to a trial in the federal court, we can show that this case cannot be dismissed on the ground of delay as the Cayuga case was dismissed.

  In all, the submission filed in November 2006 totaled some 900 pages, including our lengthy brief, the historical declarations and documents, and other relevant papers.  We are now awaiting the defendants' reply, which will be due at the end of January.  We will probably get a decision on this stage of the case some time next Fall.  We are continuing to build public understanding with communications work and local organizing.

  In January, the judge in the Onondaga case granted our request for oral argument on the motions to dismiss the case.  Because he does not ordinarily hear oral argument, we see this as a suggestion that the judge is willing to hear more and that he does not intend to dismiss our case perfunctorily.  Argument was originally scheduled for March 28, 2007, but has now been delayed and is pending rescheduling.

  We have also continued to press the United States to join this law suit.  We have met twice over the past six months with the Interior and Justice Departments asking that the United States sue the State of New York in order to overcome the State's claim of sovereign immunity.  We are continuing to correspond with the relevant federal officials to provide them with legal arguments and keep them up to date.

  We have also provided counsel to the Nation in relation to the problem of state taxation of sales on the Onondaga Nation territory.  We are discussing with the Council possible measures that could be taken, mostly outside of court, to deal with these tax issues.  Joe Heath, counsel for the Nation in Syracuse, is primarily responsible for the work relating to taxation issues.