In land negotiations in New York state, a retired American Indian Studies professor says: “Governor Cuomo and his supporters not only ignore the past, they wish to exterminate it, erasing the historical realities which have shaped the Empire State.”
ALBANY, New York — New York Gov. Andrew Cuomo reached a preliminary agreement with the St. Regis Mohawk Tribe (SRMT), St. Lawrence County and the New York Power Authority on May 28 that could end three decades of litigation over land illegally taken from the Mohawk of Akwesasne Natives.
In response to the land claim first filed in federal court in 1989, the memorandum of understanding guarantees the county a $4 million annual increase of the current state share of $2.9 million from the Mohawk’s casino compact payments, one-time payments of $2 million from the state and $1.5 million from the tribe.
Read the the memorandum of understanding below
In return, the Mohawk will be able to buy about 5,000 acres from willing sellers bordering their land, add the parcels to the reserve, waive tuition fees to state universities, and receive lowered electricity rates.
“After carefully reading the MOU, I conclude that the MOU is a racist wish list of provisions sought by people who in the past would have supported the policy of termination begun in the late 1940s but who also rallied around policies to break up reservations such as those advocated in the so-called ‘Whipple Report of 1889,’” Robert Venables, a retired Cornell University professor of American Indian Studies, told MintPress news. (The “Whipple Report” basically concluded that the Haudenosaunee still held title to the land.)
“Governor Cuomo and his supporters not only ignore the past, they wish to exterminate it, erasing the historical realities which have shaped the Empire State,” Venables continued.
The memorandum is also currently being negotiated with Franklin County, where 7,700 acres could become part of the reservation. Both counties must sign for it to take effect, and an act of Congress is required to ratify it.
The claim was filed by all three Akwesasne councils — the SRMT that represents the New York side of the community, the Mohawk Nation Council (MCA) that represents the Canadian side, and the traditional Mohawk Nation Council of Chiefs (MNCC) that serves all Mohawk.
“A canary in the coal mine”
Based on the 1790 Nonintercourse Act, also known as the Indian Intercourse Act, that forbids the purchase of Indian lands without federal government approval, the claim being negotiated argues that the state sold land to settlers through the 19th century, leaving Akwesasne 14,000 acres on the American side and 10,000 acres on the Canadian side.
The objectives of the original claim stressed intent to secure compensation for the lost lands, expand powers of jurisdiction, protect the tax-free status of Native American goods, gas, articles and land, and eliminate the international border that bridges New York and Canada through their community. The 1988 appraisal estimated the value of the lands at more than $400 million, from which Mohawk could seek more than $69 million in annual rental fees.
At a community meeting held on June 11, Doug George-Kanentiio, a member of the original negotiating team in the 1980s, made a plea for the tribal council to remember that there’s a process for the people to accept this. With only tribal council signatures needed to bind the community, he noted, this completely rejects all that they had done.
“A cardinal rule that guided us is that land be returned unconditionally,” he said. “At no point did Mohawk people agree to cede even an inch of our land, which should have been a lead in this negotiation.”
The other two councils are not included in the agreement. MNCC stated: “The Tribal Council does not speak for the Mohawk Nation. We would like to take this time to point out that the MOU was never made available for review by the Nation and was never presented at any session of the Mohawk Nation Council of Chiefs, nor has the Mohawk Nation leadership agreed in council to support any version of the MOU. Our political system is based upon consensus and no consensus decision has been made to support the MOU.”
Read the full MNCC statement below
Under the memorandum, the SRMT agrees to pay state or county legal costs if the nation council or anyone else fights the agreement.
“If a provision such as this gets past Congress, it will be a canary in the coal mine for all people of all races within the state and, indeed, the United States,” Venables said. “The MOU would make the tribe financially responsible for cutting off other Mohawk or Haudenosaunee from making their voices heard in court, the media, Albany street protests, or other venues. In reality, however, there would be no legal or moral way to stop or silence these voices.”
“But that’s what it took,” SRMT Chief Beverly Cook said at the meeting. “We were losing in the courts. We’re trying to get this with the state or we have nothing.”
Cook said that although the preliminary framework of the agreement requires the tribe to pay to reclaim land taken from them illegally, the people will still have land and education.
Further, the state would cover lost property taxes for lands the tribe is able to acquire.
Doctrine of Discovery
This is the first land claims agreement to be reached with New York’s six nations since the 2005 U.S. Supreme Court decision in City of Sherrill v. Oneida Indian Nation dismissed an Oneida Nation suit because the nation had waited too long to file and it would disrupt others living in the area.
Citing the decision, then-Gov. George Pataki broke off a settlement agreement with the Mohawk that had guaranteed the Mohawk $100 million and he authorized the Mohawk to add 13,400 acres contiguous to the reservation. But lawyers argue that unlike the Oneida, the Mohawk claim is not disruptive to surrounding areas because they have always lived there and most of the claim area is vacant.
“The memorandum’s primary thrust is based on the claim by the state that the 2005 Sherrill Supreme Court decision has legally nullified land claim litigations and that Sherrill will not be altered,” Venables, the retired university professor, said. “While the Sherrill decision is indeed very destructive of native rights, it is even worse because the foundation of the Sherrill decision is the Doctrine of Discovery.”
As popes took up seats in Rome, accumulating vast amounts of wealth and artifacts from people around the world, the decree was issued in 1452 by Pope Nicholas V to King Alfonso V of Portugal, sanctioning the conquest, colonization and exploitation of nations and territories belonging to those who were not European Christians.
Establishing a perspective that non-Christians were less than human, Pope Nichols directed the king to “capture, vanquish and subdue the Saracens, pagans and other enemies,” to “put them into perpetual slavery,” and “to take all their possessions and property.” Encased in this thought system, they carried it like warfare 40 years later, when Columbus sailed across the ocean.
The doctrine was adopted into U.S. law in 1823 in Johnson v. McIntosh, when Chief Justice John Marshall interpreted the winning of independence in 1776 to mean that America had acquired “ultimate dominion” from Great Britain. The court unanimously affirmed his attitude to ignore the rights of Indigenous “heathens” and claim lands “unoccupied” by Christians.
“According to Marshall, the United States, upon winning its independence in 1776, became a successor nation to the right of ‘discovery’ and acquired the power of dominion from Great Britain,” wrote Steve Newcomb, Shawnee and Lenape, co-founder of the Indigenous Law Institute in California and author of “Pagans In the Promised Land: Religion, Law, and the American Indian” (2008).
“In other words, the Court affirmed that United States law was based on a fundamental rule of the ‘Law of Nations’ – that it was permissible to virtually ignore the most basic rights of indigenous ‘heathens,’ and to claim that the ‘unoccupied lands’ of America rightfully belonged to discovering Christian European nations,” he continued.
Citing a few examples of its use, Newcomb explained that “the myth of U.S. ‘plenary power’ over Indians” — a power he claimed was never intended by the authors of the Constitution — has been used by the U.S. to:
- Circumvent the terms of solemn treaties that the U.S. entered into with Indian nations, despite the fact that all such treaties are “supreme Law of the Land, anything in the Constitution notwithstanding.”
- Steal the homelands of Indian peoples living east of the Mississippi River, by removing them from their traditional ancestral homelands through the Indian Removal Act of 1835.
- Use a congressional statute, known as the General Allotment Act of 1887, to divest Indian people of some 90 million acres of their lands. This act, explained John Collier (Commissioner of Indian Affairs) was “an indirect method – peacefully under the forms of law – of taking away the land that we were determined to take away but did not want to take it openly by breaking the treaties.”
- Steal the sacred Black Hills from the Great Sioux nation in violation of the 1868 Treaty of Fort Laramie which recognized the Sioux Nation’s exclusive and absolute possession of their lands.
- Pay the Secretary of the Interior $26 million for 24 million acres of Western Shoshone lands, because the Western Shoshone people have steadfastly refused to sell the land and refused to accept the money. Although the Western Shoshone Nation’s sovereignty and territorial boundaries were clearly recognized by the federal government in the 1863 Ruby Valley Treaty, the government now claims that paying itself on behalf of the Western Shoshone has extinguished the Western Shoshone’s title to their lands.
City of Sherrill v. Oneida Indian Nation of New York
The first footnote in the Sherrill case notes the Doctrine of Discovery stating that European Christians have more right to the land than people who have lived there for thousands of years.
An example of the dozens of legal cases using the doctrine against Indian claims, more than 300,000 pages compiled into a 1970 land claim filed by the Oneida of New York, the Oneida in Wisconsin and the Thames in Canada. The Supreme Court ruled in 1985 that the federal government had not authorized the treaties in which land in New York had been given up. The U.S. Supreme Court stated:
“Despite Congress’ clear policy that no person or entity should purchase Indian land without the acquiescence of the federal government, in 1795 the State of New York began negotiations to buy the remainder of the Oneidas’ land. When this came to the attention of Secretary of War Pickering, he warned Gov. Clinton and later Gov. Jay, that New York was required by the Non-intercourse Act to request federal commissioners to supervise any land transaction with the Oneidas. The State ignored these warnings, and in the summer of 1795 entered into an agreement with the Oneidas whereby they conveyed virtually all of their remaining land to the State for annual cash payments. It is this transaction that is the basis of the Oneidas’ complaint in this case.”
The landmark ruling entitled all Oneida to a settlement for the 250,000 acres in central New York that had been given in the Canandaigua Treaty of 1794. The New York nation would receive $87.5 million, the Wisconsin nation would receive $125 million and the Oneidas of Canada would get $12.5 million.
But after waiting decades for a settlement, the Oneida began purchasing a patchwork of parcels of property in the claim area. In Sherrill v. Oneida, the Supreme Court used laches to bar sovereignty over the properties and it was determined the Oneida had to pay taxes, despite the previous court ruling that they held the title to the land.
Cayuga Nation land rights
In November 2005, Dan Hill became the first Cayuga to return to the homeland in western New York after more than 200 years. The following month, he moved onto a 74 acre farm in Union Springs, a village of a thousand people that incorporated in 1848 on the east shore of Cayuga Lake.
A Cayuga land claim was 25 years old, filed in 1980 for 64,015 acres of original lands that horseshoe around the northern part of Cayuga Lake.
Hill was asked to be a seat warmer in 2003 on the traditional Cayuga Council for the Heron Clan to hold the titled place until someone filled it. Two of the nine traditional council hoyáneh (leaders) for the 500-member nation are in New York state. The others are at the Six Nations reserve in Ontario.
Neil McCurn, a federal judge, said in 1981, “There is no question but that these cases present claims which long ago should have been solved in a legislative forum rather than a court of law. Unfortunately, neither the state of New York nor the federal government has shown much indication to do so thus far.” On March 30, 1999, the judge said “The state’s got to pay for it. Why drag in all these individual property owners and go through all that?”
In 2000, a jury determined the state had illegally stolen the 64,015 acres on the north side of Cayuga Lake in 1795 and 1807 and awarded the nation $37 million.
McCurn increased the settlement the following year, ruling that the state pay land claim damages totaling $247.9 million and stating that there would be no land involved. Then-Gov. George Pataki announced a memorandum of understanding in 2004 with the Cayuga Nation to give the $247.9 million over 14 years that would allow the people to establish up to 10,000 acres of sovereign land as well as the rights to build a casino in the Catskills.
In March 2005, the U.S. Supreme Court decision in Sherrill v. the Oneida Nation reverberated in April 2005 when, citing the Sherrill case, the governor withdrew legislation to settle the claims. In June, the U.S. 2nd Circuit Court of Appeals also cited the Sherrill decision 2-1 and reversed McCurn’s decision in the original land claim. The Cayuga were left with no land.
The appeal to the 2nd U.S. District Court of Appeals was denied on May 15, 2006.
“The Cayuga claim just issued a 91-page decision that said the Cayuga did everything they could and New York State violated laws in acquiring their land and yet the 2nd Circuit ignored it, brushed it aside,” Joe Heath, the Syracuse attorney representing the case, told the audience of a 2006 symposium.
Heath described to a packed audience at a symposium in 2006 the role of land speculation and the Doctrine of Discovery that continue to be the basis of Indian law today.
The Cayuga lands are protected under the 1794 Canandaigua Treaty by America “having …acknowledged what lands belong to the Oneidas, Onondagas, Cayugas and Senekas, and engaged never to claim the same, nor to disturb them or any of the Six Nations, or their Indian Friends residing thereon and united with them, in the free use and enjoyment thereof.”
“I guess the 2nd Circuit Court forgot these things,” Heath said, explaining that the courts ignored Congress, the Canandaigua Treaty and the Constitution. “How do we undo that? I’ve spent a lot of time trying to understand. It is simply bad law. It’s not just, it’s not law and it’s not Christian.”
When Heath filed the appeal on Aug. 9, 2005, he stated:
“The district court found that the Cayugas were shut out of court for over 184 years. Yet the panel majority did not consider any of the legal or practical barriers that precluded the Cayuga Nation from bringing suit earlier. From the earliest days of the republic through the nineteenth century, Indian nations lacked juridical personality in the federal courts except where provided by special statute. Efforts by Indian nations to surmount this barrier by appealing to the original jurisdiction of the Supreme Court as ‘foreign nations’ were decisively rejected.
“Moreover, even if the courts had been open, Indian nations faced enormous practical obstacles to filing suit, such as lack of financial resources, unfamiliarity with the English language, inability to retain attorneys, and unfamiliarity with the American legal system. There was no meaningful opportunity to assert Indian rights sufficient to justify the conclusion that the Cayuga Nation ‘unreasonably delayed.’”
Call to remove the papal bull
The 1823 Johnson ruling cited recognition of the Doctrine of Discovery by Spain, Portugal, France and Holland as well as its place in Russian history.
“This shows the global scope of [the doctrine’s] application and its concomitant framework of dominance,” said Special Rapporteur Tonya Gonnella Frichner, a member of the Onondaga Nation and member of the U.N. Permanent Forum on Indigenous Issues.
Frichner was addressing the 16-member U.N. Permanent Forum on Indigenous Issues in 2010, discussing a recently completed survey that initially focused on the U.S. — “Preliminary Study Shows ‘Doctrine of Discovery’ Legal Construct Historical Root.”
When some called the practice into question in Spain in the late 1550s, she noted, the debate never resulted in any conclusion about whether the Indigenous people of the Americas were human.
Frichner recommended convening an expert group to conduct a study by representatives of the seven regions identified by the forum.
“Specifically, a comprehensive study of the doctrine will provide an opportunity to understand that all the various struggles that Indigenous peoples are engaged in are a manifestation of the same root cause, which is the claim by one people of a right of dominance over another,” she said.
Nearly 2,000 Indigenous representatives from around the world gathered at the forum and the doctrine was the special theme at the forum’s meeting in 2012.
Murray Sinclair, chairperson of the Truth and Reconciliation Commission of Canada, said that Canada’s Indigenous peoples had experienced such harm for more than 150 years, with the enforcement of a racist policy of assimilation through the use of so-called “Indian residential schools” in the 19th and 20th centuries which also removed children from their families.
“The Canadian Government stated early on that, through their policy of assimilation, within a century Indian people would cease to exist,” Sinclair said.
Member of the Forum Margaret Lokawua, from Uganda, said the Doctrine of Discovery has also affected people in Africa. Western philosophy, she said, told Africans: “You go stand over there, close your eyes and pray while we take your land.” Traditional courts were no longer recognized. Traditional education had been destroyed.
Hassan Id Balkassm, a forum member from Morocco, spoke of children placed in schools seeing their cultures destroyed. While education should have been a means for fostering Indigenous languages, in Northern Africa schools had not taken into consideration Indigenous peoples’ identities and had imposed assimilation policies, he said. Children were made to feel guilty for speaking in their own language.
As a lawyer in Morocco, Balkassm was jailed for a week for placing a slogan in his window in the Tamazigh language. The Tamazigh people are reintegrating their language into schools in Morocco and Algeria.
“This is why Indigenous peoples had been experiencing, describing and fighting for more than five centuries,” Frichner said. “We already see signs of ecological collapse in the over consumption of fisheries, massive deforestation, toxic chemicals spewed across the earth and into waterways.”
Kuriakose Bharanikulangara, observer for the Holy See, said the “papal bulls” have been abrogated over the centuries, the Catholic Church has upheld the rights of Indigenous peoples to their ancestral lands, and the Vatican II process had refuted the Doctrine of Discovery.
He said that to deal with mistakes, including the actions of some missionaries, the Catholic Church had always sought communication and dialogue, adding that the Holy See supported the Declaration on the Rights of Indigenous Peoples and would continue to be an advocate for those rights.
Efforts to call for the removal of the papal bulls started with letters sent to the Vatican in 1984 and are continuing today.