A DAYBREAK REPORT
by John Mohawk
This is a land claim filed by the Seneca Nation in August of 1993. The
claim is for approximately 18,600 acres involving islands in the Niagara
River. The largest of these islands is Grand Island which is over 17,000
acres. Grand Island is the heart of the claim.
The Seneca argument is essentially that the land belonged to the Seneca
Nation, which was part of the Iroquois Confederacy and they never sold it
or gave it away to either the French or the British. The State of New
York acquired the land in 1815 from the Seneca Nation in an agreement
which was made in violation of federal law. The federal law in 1815
required that all transactions involving land between Indians and anyone
else, including state governments, must be approved and authorized by
Congress.
No one in this case contests the Seneca argument that the transactions
were not approved. There is no evidence that Congress approved this
transaction. The transaction therefore violates the Trade and Intercourse
Act which provides that when land is acquired without the approval of
Congress, any of the titles that were transferred are void.
The theory of the case is that the Seneca continued to own the land after
1815 and are entitled to trespass damages for the illegal use and
occupancy of the land by the State of New York, by Erie County, and by
non-Indians from 1815 to the present.
The defendants are the State of New York, Erie County and all of the
private landowners (numbering more than 2,000, including a number of
corporate defendants,) in the claim area. The case is being handled in the
Federal Court for the Western District of New York, Judge Richard Arcara
presiding. Judge Arcara has, with the consent of the parties, handed over
some of the issues to a federal magistrate to be resolved.
The case is being handled as a class action lawsuit. What that means is
that the entire group of defendants is represented by a number of
representatives. The State of New York, Erie County, and Moore Business
Forms have been designated by the courts as representatives of the class
of defendants. The lawyer for Moore Business Forms is Allan van Gestel, a
prominent attorney who has handled a number of Indian land claims for the
defendants.
The class action character of the lawsuit will make the process more
efficient. What it means is that the rulings in the case will legally bind
all of the members of the class. In other words, they are all effectively
parties to the action and whatever happens in this case will effect their
interests. The first thing that was done in the case was to identify the
class of defendants and to notify them of the pending action. This was all
done in order to give them an opportunity to find their own attorneys.
The Tonawanda Band of Senecas, represented by the Indian Law Resource
Center, intervened in the case in November 1993, three months after the
suit was filed. That intervention was not opposed by any of the parties.
The remedies sought for trespass damages have no dollar figure attached.
What is sought is the ejectment of the defendants and return of possession
of the land to the Seneca. The question of how the two entities
representing the Seneca Nation -- the Seneca Nation of Indians comprising
the Cattaraugus and Allegany Indian Reservations, and the Tonawanda Band
of Seneca on the Tonawanda Indian Reservation -- have not been addressed
at this stage and will be resolved later.
The attorneys for the defendants raised eleven defenses which would have
dismissed the case. Attorneys for the Seneca argued that these motions be
stricken, that they had already been ruled on, and the Magistrate Judge
recommended that this be done. The most important defense of the eleven
involved an argument that enough time had passed that the matter of
ownership of the islands had been settled and could not be revived. The
Magistrate Judge recommended that this defense could not be used in this
case, that the Seneca did not need to prove that they were prompt in
asserting their claim, and that the case would continue on. The issue is
now before the federal judge who will make the final decision.
Right now, both sides are in the discovery phase. Both sides are
exchanging information. A status conference is scheduled for August 11.
Discovery phase should end on December 29, 1995. Any motions to dismiss
should be in by February 21. That phase of the case could be argued in May
or June 1996. A decision might be reached in autumn, 1996 about whether
the case has enough merit to go to trial. Unless the Court decides in the
meantime to issue a summary judgment that the Seneca Nation still owns the
land, we can expect it to take up to two years to go to trial.
The Seneca Nation has a strong legal case. No one can predict how the
matter will turn out in the long run.
(This article was adapted from an interview with former Indian Law
Resource Center attorney Curtis Berkey.)
DAYBREAK MAGAZINE
BOX 315
WILLIAMSVILLE, NY 14231-0315
e-mail mohawk@ubvms.cc.buffalo.edu