In the midst of a national climate characterized by trauma, fear and anger, the Cayuga Nation just got word that their long-standing land claim may garner a much better deal than many observers thought possible. Deciding in a case awaited with intense curiosity by all Native nations with pending land claims, U.S. District Judge Neal P. McCurn of Syracuse ruled that New York State must pay the Cayuga Indian Nation $211 million over and above the $36.9 million earlier awarded in damages and fair rental value. The total amount stands now at $247.9 million.
The 21-year-old case turns on two illegal treaties from 1795 and 1807 when New York State acquired 64,027 acres of Cayuga land in violation of the 1790 Trade and Intercourse Act, which mandated federal government approval for such transactions. The ruling impacts some 400 Cayugas in New York as well as members of the Seneca-Cayuga Tribe of Oklahoma.
Threats of appeals from both New York State and representatives of Cayuga and Seneca counties were immediate. The counties in particular stated they will prompt the state to fight any settlement amount, likely to the 2nd Circuit Court of Appeals in Manhattan. The Upstate Citizens for Equality (UCE), an anti-Indian sovereignty organization in Central New York, has vowed repeatedly to fight any land claim settlement and has put forth an agenda to destroy all Indian jurisdictional bases. It seems that everyone remains committed to playing hard-ball at this point. The Cayuga’s lawyer, Martin R. Gold, is threatening to seek eviction of property owners plus an additional $1.7 billion in interest if the state moves forward with an appeal.
Nevertheless, after an earlier jury trial that awarded the $36.9 million, an amount so low that it stunned most American Indian observers, Judge McCurn’s ruling restored a reasonable balance to the scales of justice. Four out of nine jury members in the first trial were people who owned property in the affected land claim area. Judge McCurn took into account widely disparate formulas advanced by state and tribal lawyers and their expert witnesses. These ranged from the $1.7 billion cited by a witness for the tribe down to $12.1 million proposed by state experts. The U.S. Justice Department, which intervened on the tribe’s side, had arrived at a compounded interest of $527.5 million. The nearly quarter billion now ruled fair compensation by the judge seems to us an attempt to find an adequate middle ground.
At this point there exist three visible paths the case could take. First, the state could accept Judge McCurn’s ruling, ante up and, with honor, move on to settle the next of several Haudenosaunee land claims. However, were McCurn’s interest formula applied to other existing and proposed cases, the state would end up owing the Oneida, Seneca, Mohawk and Onondaga nations up to $4 billion. Second, both parties could appeal. However, legal experts say the state would unlikely be able to substantially diminish the recent award while opening the doors for the Cayuga Nation to appeal on every issue and push its award even higher. It is also highly questionable whether the Supreme Court would entertain the case. Third, the parties could reach a negotiated settlement. Ultimately, any settlement agreement involving the U.S. Justice Department and requiring federal dollars would need congressional approval.
Given the national political climate and particularly New York State’s current financial status, the negotiated option remains tenuous at best. In particular, the Cayuga Nation now finds itself in a strengthened position. They have rebounded from earlier internal debates, sit comfortably in the knowledge that they had been honorable with New York State in past dealings, and benefit from a June 4 United States District Court ruling in Oneida Indian Nation of New York vs. the City of Sherrill.
New York Cayugas have pressed for actual land concessions to once again settle at least a portion of its population within a territory under Indian jurisdiction. And while UCE and other anti-Indian residents of Cayuga and Seneca counties, in arguments directly reminiscent of those made by the New York settlers after the Revolutionary War, have vowed to fight any new demarcations of Indian land, the Oneida vs. Sherrill case confirmed the right of Indian nations to designate purchased lands as “Indian Country.” Lands such identified are immune from state and local property taxation and confer civil and criminal jurisdictions to the Indian government.
Opponents are bound to dust off their usual arguments that such Indian land claims cases are too old for any justice to be possible (made ever older by a U.S. justice system that has dragged the Cayuga case some 20 years), that Indians were conquered “fair and square,” that people living today should not have to make good on the foibles of past generations. However, the Cayugas and other American Indian governments pressing their land claims are no Johnny-Come-Latelies to the effort to recover lands.
The illegal taking of Haudenosaunee (Six Nations or Iroquois) lands began immediately after the Revolutionary War, when Indians returning from the displacement of the military campaigns at war’s end found their lands occupied by supporters of the Revolution. From the first instance, Indian governments, former warriors and combatants and many individual Indian families sought return of their lands, both through the courts and through petitions to the legislature. As Seneca historian John Mohawk likes to point out, “Indians have never missed an opportunity to press their claims.” By that time, Indians had lived side by side with colonists for over a generation. Whenever problems had arisen, however, courts were not available to Indians, who were “not permitted to bring suit or even to testify against an Englishman.”
There was so much bribery and outright coercion after the War that just after the 1789 adoption of the Constitution, George Washington and the Congress, mindful of the dangers of continuing conflicts with tribes, moved to implement a fair treatment policy that would attempt to offer market value for Indian lands. This was the intent of the 1790 Trade and Intercourse Act.
Unfortunately, the states did not always follow this new law. Land speculators out of Albany continued to press for taking Indian lands under whatever justification, even if this was done in defiance of the federal act. Throughout the 19th century, courts would not hear such Indian cases, though delegation after delegation of chiefs raised such issues with both the state and the federal government. It was not until 1920 that the first case under the Trade and Intercourse Act was decided (United States v. Boylan), when the court held that 32 acres of Oneida land seized for non-payment of a loan, was protected under the 1790 federal law. It was an Oneida case again, in 1974, and again in 1985, that opened the way for other cases to seek justice for the long-standing illegal loss of lands.
These claims represent a fundamental appeal to justice. The late attorney and scholar, Howard Berman, would always point out that the search for justice on these cases had long been denied by procedural impediments that were finally cleared away by the Oneida cases. The treaties invoked, and the Trade and Intercourse Act, just as the U.S. Constitution itself, are not ancient law, but still in the books and just as current as when they were written and passed into existence. In fact, the Trade and Intercourse Act was “implementing legislation,” intended to implement treaty responsibilities to prevent the seizure of Indian lands without a lawful process and the agreement of legitimate Indian authorities and the federal government.
The wheels of justice turn slowly, but they do turn. Despite chronic bigotry that has stained this history for more than 200 years, the opportunity is now upon a great state and a great country to do the right thing. The path to honor, peace and reconciliation can only be paved with justice.