[This is a long (17K) newspaper article]
A CLAIM FOR LAND AND JUSTICE
Onondagas Prepare to Show State Grabbed Land Illegally
Syracuse Post Standard, Wednesday, May 22, 1991
by Sean Kirst
"Here then is the security for the remainder of your lands. No Sate nor
person can purchase your lands, unless at some public treaty held under
the authority of the United States. The general government will never
consent to your being defrauded..."
-- George Washington, in a letter to the Seneca Nation chiefs, Dec. 29, 1790
Three years after the nation's first president made that promise to
Iroquois leaders, a pair of land agents representing the state of New
York brought up three-quarters of the upstate acreage owned by the
Onondaga Indian Nation. The deal gave the state most of the 100 square
miles then reserved for the Indians south of the "Salt Lake" -- land
that wold eventually make up much of Syracuse and parts of its immediate
suburbs.
Two centuries later, after simmering for generations over the legitimacy
of those deals, Onondaga leaders are considering how best to file a
claim that they still legally own the most populated portion of Central
New York.
"We're trying to get some justice back," said Leon Shenandoah, an
Onondaga chief who is "Tadodaho" -- or ranking chief --within the six
upstate Indian tribes that make up the Iroquois Confederacy. His nation
is expected to base its claim on a history of federal assurances and
treaties from the 1790s -- particularly the Trade and Intercourse acts,
which forbid states from buying up Indian land without federal approval,
and the Treaty of Canandaigua, in which the U.S. government recognized
the Iroquois boundaries.
Modern-day judges have consistently ruled that time has not diminished
those obligations. In similar claims filed by the Oneida and Cayuga
tribes over the past 20 years, the Iroquois have won a series of
landmark court decisions based on the promises made in Washington's
time.
Like other Onondaga leaders, however, Shenandoah is cautious about
commenting on the claim, emphasizing it's still under discussion in the
longhouse -- where the people of his tribe make their decisions.
Just three weeks ago, Onondaga leaders raised the likelihood of the
claim while talking with state officials about hunting rights, said
Herbert Doig, assistant commissioner of the state Dept. of Environmental
Conservation. Shenandoah said the topic has surfaced frequently in
longhouse meetings over the last year.
Robert Venables, a Cornell University history professor, is helping the
Onondagas research the treaties and policies that would shape any claim.
He knows the chiefs well, and he said Syracuse residents shouldn't fear
any attempt to evict them from their homes. Venables said it's more
likely the Onondagas would seek from the state a settlement involving a
monetary payment and the addition of property to their existing
7,300-acre reserve near Nedrow.
Most important, Venables said, tribal leaders hope to enlighten the
public about historical wrongs done to the Iroquois nations in violation
of federal treaties meant to protect them. "The only comment I would
make is that it's our law, not Onondaga law, that's driving this claim,"
Venables said. "I hope it never goes to court. I hope it's negotiated
and settled by the executive branch of the federal government..."
William Starna, chairman of the anthropology dept. at SUNY College at
Oneonta, said the Onondagas may have balked initially at filing a claim
because they feel that suing the state detracts from their
treaty-guaranteed status as a sovereign nation. "But there are
pragmatists among the Onondagas who recognize they have an extremely
strong case, and a settlement would be a positive for the entire
Onondaga community," he said.
Onondagas Build Case on History of Broken Deals
Onondaga Chief Irving Powless declined to comment specifically on any
potential land claim.
He noted, however, that the state took most of his nation's ancient
lands, and he said Iroquois leaders respect only federal treaties
between sovereign governments -- particularly the Canandaigua pact of
1794.
Powless also referred to an essay he wrote for a book entitled "Iroquois
Land Claims," in which he compared white settlers to squatters who take
up unauthorized residence in an empty room of an occupied house. "You
are not hostages in our house," he wrote. "We don't hold you here. But
we do recognize the fact that you are in our house. We have people who
are working on settling the dispute as to how you should live in our
house..." Powless wrote, "It must be set down, solid, as it was three,
four thousand years ago, that we are the landowners."
A Strong Claim
The Onondagas -- who were left with a corner of their original reserve
after a series of treaties with state agents between 1793 and 1822 --
have a formidable argument, according to scholars and legal experts
familiar with both sides of Iroquois land claims.
The strength of their claim is underlined by Allan van Gestel, a Boston
lawyer who has represented upstate municipalities and landowners against
land claims filed by the Cayuga and Oneida nations." "The decision of
the Supreme Court of the United States in 1985 in the Oneida case has
made it very difficult to defend against a case based on clear
violations of the Trade and Intercourse Act," he said. In considering
an Oneida Nation land claim, the nation's highest court determined that
1790 congressional act -- which directly prohibited states from buying
Indian land without federal approval -- bound the original 13
colonies,including New York.
Yet in 1793, two state agents -- Simeon DeWitt and John Cantine -- put
down $410 and bought property that would eventually become much of
Syracuse and its immediate suburbs.
"The (original) reservation was about 11 3/8 miles long ... and included
parts of the towns of LaFayette, Camillus, Geddes, DeWitt, and the city
of Syracuse, and all of (the town of Onondaga)," historian J.H. French
wrote in his 1844 "Gazetteer of New York." By 1822, following several
smaller land sales to the state, the Onondagas held only a fraction of
what had been a reservation of 100 square miles.
That state still pays members of the Onondaga Nation $2,400 a year in
treaty annuities, along with the annual provision of 150 bushels of salt
-- which was intended to compensate the Onondagas for the loss of the
salt-rich deposits along Onondaga Lake. The cash is broken down into
tiny individual payments for each member by Louella Derrick, an Onondaga
who serves as Indian agent for the state Bureau of Indian Affairs. This
summer, Derrick said, eery person with verified Onondaga blood will
receive a check for about $1.50. Many Onondaga scornfully refuse to
cash those checks as a means of quiet protest. "A lot of people nail
them to their walls," Powless said.
Still, Shenandoah makes no prediction on when the Onondagas will go
public with their land claim. "I know we have to talk about it shortly,
about how we're going to do it -- the whole thing, or one piece at a
time," he said. He said it's too early to speculate on whether the
claim will focus on the post-1790 deals with the state, or on the
sprawling aboriginal hunting territory of the Onondagas -- which covered
much of Central New York and a sliver of the southern tier.
Like Bernie Parker -- a chief on the Tonawanda Seneca reserve near
Buffalo, whose tribe is also considering a large land claim --
Shenandoah said the Onondagas are still mapping out strategy.
Shenandoah said his nation will initially appeal directly to President
Bush, since the Treaty of Canandaigua was negotiated between sovereign
governments.
Parker -- who confirmed his tribe is considering a claim on roughly 4
million acres of Western New York, following boundaries specified in the
Canandaigua treaty -- agreed settlement talk are preferable. "If
litigation was pursued on this," he said, "it would be mind-boggling."
Other Treaty Issues
Parker and Shenandoah said the state's financial crisis might provide
room to use land claims as a wedge in negotiating other treaty issues
important to the Iroquois. Those issues include whether Indian
merchants should be subjected to state taxes and addressing the
Onondagas' long-standing claim that they should be allowed unrestricted
hunting outside the reserve. Parker said he expects the Grand Council
of chiefs from the six Iroquois nations will release a general statement
on treaty grievances before any action begins on either claim.
"We're going to have to do more talking between ourselves about how
we're going to do it," Shenandoah said. "One day we'll get down to
it."
Robert Batson, a state special counsel with expertise in Indian land
claims, said he's had no formal proposal about an Onondaga or Seneca
action. But he said Onondaga leaders told Gov. Mario Cuomo during a
meeting last fall that they were getting ready to put forward their
claim.
Veilette, special assistant to state Director of Operations Henrick
Dullea, said confederacy leaders have included land claims on a 21-point
list of outstanding issues that need to be resolved in Albany. "The
state recognizes that the (Onondaga) claim is in the pipeline," Veilette
said.
Bad Faith Deals
Historians have documented a generations-old contention among the
Onondagas that early state treaties sprang from bribery and deceit.
Both Shenandoah and Powless, for instance, said oral tradition within
their nation maintains the state acted in bad faith during treaty
negotiations. "There was a lot of crookedness," Shenandoah said. "They
(the state) would go to any Tom, Dick or Harry and say, 'He's a chief.'"
Those "chiefs," Shenandoah said, would then sign away land for cash
payments.
Indeed, when the state Everett Commission toured the Six Nations between
1919 and 1922 as part of an investigation into Iroquois grievances,
Onondaga leaders strongly argued that their lands were taken illegally.
Yet the Onondagas, like other Iroquois tribes, had no legal platform for
staking their claim until 1974, when the Oneida won their first
watershed U.S. Supreme Court decision, said Jack Campisi, an
anthropology professor at Wellesley College. The ruling upheld their
right to argue land claims in a federal court. Before that decision,
state courts consistently refused to hear land claims, maintaining New
York -- as one of the original 13 colonies -- was entitled in the late
1700s to make sovereign land deals with the Indians.
But the well-documented federal treaties give particular weight to the
Iroquois arguments, said Thomas Tureen, a New England attorney who
represented the Passamaquoddy and Penobscot tribes in their successful
land claims against the state of Maine. Those tribes, he said, won an
$81.5 million federal settlement behind court precedents that
established as illegal the post-1790 sale of 12.5 million acres of
Indian-owned territory in the state of Maine.
The six Iroquois nations of New York, he said, are bolstered both by
federal legislation and by the protection offered in the 1794 Treaty of
Canandaigua -- which re-established that any lands still held by the
Iroquois would remain in their possession "until they choose to sell the
same to the people of the United States, who have the right to
purchase."
The Onondagas -- who note that federal treaty was written during the
same period as the U.S. Constitution -- say it should receive the same
respect from U.S. citizens and lawmakers.
But it was the state -- rather than federal agents -- who would make
more land deals with the Onondaga following that 1794 promise at
Canandaigua. In 1795, for $10 down, the Onondagas sold their right to a
one-mile "salt reserve" surrounding what would become Onondaga Lake. In
1817, for $430 a year in permanent annual payments and 50 annual bushels
of salt, the Onondagas sold a 4,320-acre slice of land on the east side
of their reserve. And they made their final deal with the state in
1822, selling 800 acres at the south end of their dwindling property for
a $1,700 one-time payment. All of those deals, say land claim
specialists, could be challenged on the basis of the Trade and
Intercourse acts.
"Whenever the Onondagas get around to following through, their case will
be as strong, if not stronger, than the others," said Howard Rowley, a
Rochester Gas and Electric executive who has served as a state point man
during negotiations with the Oneidas and Cayugas - tribes that have both
won precedent-setting victories while pursuing their land claims. "The
Onondagas have a way of doing these things right," said Rowley, noting
they traditionally avoid much of the obvious and bitter infighting that
hampers other Iroquois nations.
Shaping a Conflict
Both Campisi and William Fenton, another anthropologist who worked
extensively with the Iroquois, say the roots of the land claim lie in
the turbulent politics that shaped the early years of the United
States.
In the years following the victory of the 13 colonies in the
Revolutionary War, Washington -- as the nation's first president --
tried to appease the powerful Iroquois tribes. His approach was fueled
by concern that the Mohawks, Onondagas, Oneidas, Tuscaroras, Cayugas,
and Senecas might join into a strong alliance with the Indians of Ohio,
who continued to war with migrating white settlers. To reassure the
Iroquois, the Washington administration pushed through a series of
treaties and assurances that existing Indian lands would be safe from
sale or encroachment by any agency except the federal government.
At the heart of these assurances -- the the core issue in many of the
land claims today -- was the Indian Trade and Intercourse Act of 1790.
But the state of New York and its top elected official, Gov. George
Clinton, ignored its prohibition against dealing with the Indians. "You
see, (the state) had a governor who didn't really feel the federal
government was going to survive," Fenton said. "They set about making
treaties in direct contradiction of the nonintercourse acts."
That was the case in 1793, when state land agents DeWitt and Cantine
showed up at the Onondaga reserve to buy up much of what was set aside
for the tribe in a 1788 treaty at Fort Schuyler -- the modern site of
Rome. The 1788 treaty ceremony, in which the Onondagas sold an estimated
264,000 acres of land, was attended by Gov. Clinton himself.
Campisi said Clinton's attitude toward the Iroquois -- and his
willingness to ignore federal directives about dealing with them -- is
partially explained in a 1784 letter from James Duane, a Manhattan
attorney who was one of the governor's trusted advisors. Duane's advice
to Clinton on negotiating with the Iroquois, Campisi said, was
essentially adopted as state Indian policy -- and its echoes resound
through today's land claims.
"I would never suffer (to allow) the word nations, or Six Nations, or
confederates, or Council Fire at Onondaga, or any other form which
revive or seem to confirm their former ideas of independence," Duane
wrote. "They should rather be taught that by... entering into a wicked
war (against the colonies), they had weakened and destroyed themselves
and the the publick (sic) opinion of their importance has long since
ceased.
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COMMENTARY: This lengthy article is the only one to appear in local
papers discussing the Onondaga land claim. While very thoroughly
researched and carefully written, it still leaves certain issues vague
or unexplained.
Rather than add to this already lengthy posting, I will add my comments
on this very important issue in a response to this. I will also add
certain supplemental information as responses to this.
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