ONEIDA NATION HOMELAND, N. Y. – Even as a federal Circuit Court judge told
a group of Oneida Nation dissidents that he couldn’t take their case, he
expressed sympathy with their situation and suggested that Congress step
in.
But the attorney for the plaintiffs quickly repudiated the idea, calling it
a possible excuse for infringement of tribal sovereignty. Even though they
took rhetorical advantage of Judge Ellsworth van Graafeiland’s criticism of
the Oneida Indian Nation government, they expressed unease with his line of
reasoning.
And in fact the octogenarian judge, an Upstate New York native, is on
record in a recent decision as questioning the historical legitimacy of the
Oneida Nation itself.
Judge van Graafeiland appeared to favor the Oneida Indian Nation government
in rejecting the case of 19 Territory Road residents who are fighting
condemnation of their homes under its housing safety code. The plaintiffs,
including Maisie Shenandoah, 72, and 11 of her daughters and grandchildren,
argued that the housing ordinance was designed to evict them from the
original 32 acres of the recovered Oneida Nation homeland because of their
opposition to the governing Oneida Nation’s Council of Representatives and
Clan Mothers. The dispute is additionally embittered by a family feud
between the Shenandoahs and the nation’s other families including that of
Representative Ray Halbritter, whose mother is Maisie Shenandoah’s sister.
Oneida Nation spokesmen declined to comment on the Circuit Court ruling,
but they have consistently portrayed the housing code as deriving from the
traumatic experience of a fatal trailer fire on Territory Road in 1976. The
housing inspections and the condemnation orders have been upheld by the
Tribal court and its court of appeals. The federal District Court declined
to take the case because it said the federal Indian Civil Rights Act (ICRA)
did not give it jurisdiction.
Judge van Graafeiland agreed, saying that the only federal court action
available under ICRA was a writ of habeas corpus, protecting against
infringement of personal liberty. He said the housing code involved
economic issues, not illegal imprisonment or banishment.
Donald R. Daines, lawyer for the Territory Road families, argued to the
contrary, saying that the code was in fact a “bill of attainder” to punish
his clients’ political opposition to the government. He said that his
appeal would argue that ICRA gave the court ample scope to take the case.
Although Judge van Graafeiland gave a cut and dried legal ruling, he
digressed to criticize the conduct of the Oneida government and deplore the
limited reach of the Indian Civil Rights Act. “Even though the actions of
the ruling members of the Nation may be partly inexcusable herein, we can
only remedy those wrongs which invoke the jurisdiction of this court,” he
wrote.
He quoted a warning from Alexander Hamilton, “If [a] legislature can
disenfranchise any number of citizens at pleasure by general descriptions,
it may soon confine all the votes to a small number of partisans, and
establish an aristocracy or an oligarchy; if it may banish at discretion
all those whom particular circumstances render obnoxious, without hearing
or trial, no man can be safe, nor know when he may be the innocent victim
of a prevailing faction. The name of liberty applied to such a government,
would be a mockery of common sense.”
A release from the Territory Road plaintiffs quoted this quotation,
inserting the name of Halbritter at several points to support their
depiction of the Oneida government as an oligarchy.
Judge van Graafeiland appeared to agree with this depiction and suggested
Congressional action to counteract it. “If this danger exists in cases such
as the instant one,” he wrote, “and the presence of 20 or 30 Indian women
engaged in prayer in the courtroom and adjoining hallway when this appeal
was argued is some indication of its possible existence, Congress should
consider giving this Court power to act.”
But the Shenandoahs found that the appeal to Congress was going too far.
Daines said, “They don’t want to become a tool for Congress to deem them to
be like a Weapon of Mass Destruction justifying the invasion of sovereignty
to save the Shenandoahs.”
Although van Graafeiland upheld the Oneida Indian Nation position in this
case, he has been a severe critic in at least one other. He issued a
dissent in the Circuit Court ruling in City of Sherrill v. Oneida Indian
Nation, in which the majority upheld the Nation’s immunity from local
taxation. (The Sherrill case is now awaiting possible review by the U.S.
Supreme Court.) In the dissent, van Graafeiland questioned the legitimacy
of the Nation’s existence. He wrote, “The record presents significant,
unresolved questions of fact as to whether the Oneida Indian Nation of New
York has been in existence continuously over the last century and a half.”
