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Autumn 2002
   
Give It Back to the Indians?
Walter Olson
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When you read about the boomlet in lawsuits demanding reparations for slavery, it’s natural to wonder: whatever happened to the statute of limitations? As the press has announced with some fanfare, many civil rights activists would like courts to hold modern-day businesses liable for transactions that 1) took place nearly 150 years ago; 2) were accepted as legal at the time; and 3) were then left undisturbed by the comprehensive political settlement that followed the Civil War. But if legal claims like these aren’t obsolete, what claims ever are? In fact, if we pursued the logic of reparations in any thoroughgoing way, the ownership of much of the nation’s real estate would be in doubt: most housing stock in cities like Atlanta, Charlotte, and Memphis, for example, sits on land that slaves once worked and that their descendants might wish to reclaim. Even if this property weren’t ultimately confiscated as reparations, to subject its ownership to years of legal uncertainty would gravely burden innocent purchasers and inheritors, who’ve long acted under the assumption of unchallenged title. Our courts would never make themselves the instruments of such injustice and social divisiveness—would they?

Don’t be so sure. Until recently, it’s true, all civilized legal systems seemed to agree on the principle embodied in the statute of limitations: that the civil law must view grievances not pressed in a prompt way as laid to rest. But over the last 25 years or so, lawyers have enjoyed unprecedented success in persuading American courts to relax time limits on the right to sue, with occasionally dramatic results. Just ask the residents of western New York towns like Chittenango, Seneca Falls, and Springport, where as many as 90,000 upstate landowners, joining many others in Connecticut and other states, have seen the titles to their properties clouded by the revival of Indian land claims once thought extinguished in the earliest years of the republic. Yet though these landowners have compelling stories to tell—they include, for example, farmers unable to clear title to land that has been in their family for two centuries—few of our elite legal institutions seem much interested in their plight. The Indian land-claims debacle offers a sobering preview of the havoc that slave-reparations claims might soon visit on American society as a whole.

Like many other social catastrophes, this one began with the “public interest law” movement of the 1970s, which saw litigation as the great hope for rescuing the socially dispossessed. And few groups could claim dispossessed status more plausibly—and more romantically—than Native Americans. Law school clinics, major law firms’ pro bono programs, legal-aid task forces—all jumped into the fray, infusing new talent and fierce combativeness into the formerly obscure field of Indian law.

It was attorney Tom Tureen of Maine’s Pine Tree Legal Assistance, a federally funded legal-services group, who noticed a long-neglected oddity in Indian law that public interest lawyers could turn to present-day effect. In Maine, as throughout the East, surviving Indians had long since sold off most of their tribal land holdings to the state governments, which in turn had sold them to farmers of European descent and other buyers. But, Tureen asked, what if these sales weren’t legal in the first place?

This contention wasn’t, at least on its own terms, completely frivolous. Under the federal Nonintercourse Act of 1790 and related legislation in later years, states could acquire Indian lands only with the case-by-case approval of the national government. Everyone agreed that this law applied to the western frontier states, where Indian tribes held a status akin to that of neighboring foreign powers. For a brief while, however, opinions split on whether this legislation also bound eastern states, long accustomed to purchasing lands from the Indian tribes living peacefully among them. But the controversy was soon settled (or so it seemed) against federal supervision of the eastern governments: the eastern states continued to buy land from willing Indian sellers, without consulting federal authorities; no one stepped forward to challenge the sales (least of all the Indian tribes, since they wanted the money); and the Supreme Court never ruled on the practice.

The idea of going back nearly two centuries later and declaring all these sales invalid was almost unthinkably audacious. All the relevant federal agencies, including the Department of Justice and the Bureau of Indian Affairs, recognized them as ratified by custom and practice. Nothing suggested that the tribes had been under duress at the time, had been anything other than eager to sell the land, or had received less than due value for it. And the tracts in question were vast. In Maine, they encompassed two-thirds of the state, on which 350,000 people now live, and in New York, large swaths of the western part of the state, from the Finger Lakes to the shores of Lake Erie.

No matter, said attorney Tureen in Maine and those who soon began to push similar claims in other states. Congress had never explicitly agreed to the eastern land deals. And the fact that the tribes had traded willingly was irrelevant. Indian law had as a key premise the idea that the tribes were childlike “wards” of Washington, incapable of looking after their own interests (it also asserted that tribes were sovereign nations, like France or Brazil, but never mind). The tribes thus were as incapable of signing away their rights in land as infants would have been. Armed with the principle that it’s never too late to right an injustice, the Maine tribes soon were in court, demanding not only that most of the state be given back to them, but that they receive damages of up to $25 billion. John Paterson, a former Maine deputy attorney general, later paid Tureen grudging credit: “He invented a claim for them that nobody had ever heard of. In 200 years, nobody had ever thought of it.”

The courts proved willing to listen. Tureen himself later said of his legal ploy that it was “amazing that it worked.” But by the seventies, the courts increasingly were willing to open their doors to grandiose schemes of litigation in the name of social justice, even when the practicality of such schemes was far from obvious. So perhaps it wasn’t so surprising after all that Tureen’s stratagem succeeded.

By 1976, the suits were interfering not only with private land transactions in Maine but also with state government operations in Augusta, and they had even called into question the soundness of Down East mortgage lenders. “It was the worst crisis I’ve ever seen in state government,” Paterson, the former Maine official, told the Portland Press-Herald. “There were meetings going on in the Cabinet room at one in the morning, trying to find solutions for this. It was extraordinary.” The next year, President Jimmy Carter sent an emissary to get the two sides negotiating, and in 1980 the tribes reached an $81.5 million settlement with state officials, in which they agreed to give up their claim to the land.

The unfortunate landowners of western New York wouldn’t get off as easily. Court battles with the Oneida and other tribes commenced in 1970 and twice reached the U.S. Supreme Court, which, in 1985, ruled in a five-to-four decision that the tribe had the right to seek compensation—and to drag private landowners into its action. The Court refused to follow its usual practice of applying to such cases a statute of limitation, and discerned instead (with little evidence) a federal “policy” that Indian claims should remain open forever; the majority decision, written by Justice Lewis Powell, invoked both the nation’s “unique obligation” toward the Indians and the principle that “Indian treaties are to be interpreted liberally toward the tribe.”

Indian law is so murky that the majority could probably have reached almost any conclusion it wanted in the case. But dissenting Justice John Paul Stevens, joined by William Rehnquist, Warren Burger, and Byron White, noted that the Oneida elders who originally struck the deals had made no attempt to back out of the sales or cast doubt on their legitimacy, while their successors had “waited 175 years before bringing suit to avoid a 1795 conveyance that the Tribe freely made, for a valuable consideration.” Stevens continued: “The absence of any evidence of deception, concealment, or interference with the Tribe’s right to assert a claim, together with the societal interests that always underlie statutes of repose—particularly when title to real property is at stake—convince me that this claim is barred by the extraordinary passage of time.”

There would be an economic price to pay, too, Stevens predicted. “This decision upsets long-settled expectations in the ownership of real property,” he observed. “The Court, no doubt, believes that it is undoing a grave historical injustice, but in doing so it has caused another, which only Congress may now rectify.” Stevens quoted the 1831 case Lewis v. Marshall: “Nothing so much retards the growth and prosperity of a country as insecurity of titles to real estate. Labor is paralyzed where the enjoyment of its fruits is uncertain; and litigation without limit produces ruinous consequences to individuals.”

Emboldened by their success, the New York tribes began to increase their demands, which now included not only the land’s market value but also retroactive rent, damages for interference with tribes’ economic and cultural development, and billions of dollars in compound interest. In one pending claim, the Onondagas claim they own a large tract of land on which sits, among many other things, the city of Syracuse. “It’s in total violation,” says the tribe’s chief, referring to New York’s fifth-largest municipality, with a population of 160,000.

Though trial judges have generally disapproved strongly of the idea of kicking present-day occupiers off “tribal” land, this hasn’t stopped one tribe after another from pressing the same in terrorem—“intended to terrify”—demands. In July 1999, after Cayuga County broke off settlement talks with the Cayuga tribe, tribal officials announced that they would seek to evict 7,000 landowners. “We would seek ejectment because the people wouldn’t have clear title to the land. They would be trespassers,” Cayuga spokesman Clint Halftown told reporters. “What else can we do?” The judge rejected their demand. But he didn’t dismiss the landowners from the case.

The tribes have primarily used the in terrorem demands to scare the state government into making offers on homeowners’ behalf. “You have to get the state to get serious about negotiation,” Oneida leader Ray Halbritter has explained. “The pain of not settling has to be greater than the pain of settling,” he said. “This is all about power.”

Among those who’ve felt such pain is Daniel Gates, a seventh-generation Chittenango farmer. By 1999, he had been trying for two years to sell his 800-acre farm in order to pay off his debts and retire, but he could find no buyers, even at a cut price. As real-estate broker Michael Gaiser explained to a reporter, selling land in the Indian claim area had become “a nightmare,” because the difficulty and delay in getting title insurance slow down transactions and spook potential buyers. Rumors periodically sweep the land-claim area that the state will use eminent domain to condemn privately held land and bestow it on the tribes as part of a settlement. “I’ve worked this land all my life,” says 70-year-old soybean farmer Peter Shuster of Seneca Falls; his family, like Gates’s, had lived on the land for roughly two centuries. He found it hard to imagine that “you could lose that way of life after all these years.” But the threat was real.

Ironically, the most formidable of the upstate tribes, the Oneida, runs profitable tax-free casino and cigarette operations that have left it much more affluent than its homeowner antagonists. The tribe also donates abundantly to politicians, making it a major political force in the region, and it employs high-powered legal help. Meanwhile, the principal citizens’ group opposing the claims, the Upstate Citizens for Equality, raised funds this past May by holding a Saturday bottle drive and bake sale in the parking lot of the Waterloo Wal-Mart.

What’s saved the landowners from utter calamity is legal and political support from Albany, which sees statewide taxpayers as ultimately on the hook for most, if not all, of the cost of any settlement. During the Clinton era, however, to the local landowners’ fury, the U.S. Department of Justice weighed in on the Indians’ side (its brief, pricelessly, exempted certain federal lands, such as post-office sites, from the area that it saw the tribes as entitled to reclaim). In 2001, though, the incoming Bush Justice Department switched sides and began asking judges to dismiss individual homeowners from the suits.

Tribal representatives skillfully play the race card in these controversies, with the Oneidas even labeling the Upstate Citizens for Equality an “anti-Indian hate group.” For acrimony, however, it’s hard to top the invective that tribes can aim at one another when their varying claims conflict. Earlier this year, three in-state tribes wrote to Governor Pataki, threatening to file new legal actions or suspend settlement negotiations on their own claims if he dared to reach settlements with any tribes that had left the state before the modern era. (One band of Oneidas, for example, has long lived in Wisconsin, and another lives in Canada.) In a March 18 press release, the not-notably fraternal New York Oneidas described their Wisconsin brethren (who want to open a casino in the desirable Catskills) as “greedy outsiders” who “have not shown interest in their homeland since the time they left.”

With the potential value of Indian reparations claims now established, more such claims than most people expected have come out of the woodwork. Last year, the Miami tribe sued, asserting title to a staggering 2.6 million acres in 15 counties in east-central Illinois. Though the Kickapoo tribe sold the land to the federal government in 1815, the Miamis argued that the area really wasn’t theirs to sell: the Miamis already owned it. The Associated Press noted that the Miami tribe “insisted it didn’t want a casino” but had neglected to disclose that a Rochester, New York, shopping-mall developer, Thomas C. Wilmot Sr., was bankrolling most of the legal fees surrounding the claim “as a business investment because of the potential to develop a casino.” Earlier, Wilmot had backed the claims of Connecticut’s Golden Hill Paugussetts.

As the Hartford Courant recently described, wealthy investors, pursuing casino possibilities, often quietly foot the bill for the costly historical and genealogical research needed when groups of persons claiming Indian descent—some plausibly, others far less so—decide to seek federal recognition as a tribe. When Connecticut’s little-known Schaghticoke tribe filed claims a little while back to thousands of acres along the Housatonic River in Litchfield County, including land owned by the exclusive Kent School, the tribe’s chief refused to name the backer making the suit possible, describing him only as a “friend of the tribe.” A former Bureau of Indian Affairs (BIA) historian grumbled, “The backers have made it a dirty business.”

Litchfield residents must hope that the Schaghticoke claims will be easier to resolve than those of the Golden Hill Paugussetts, a casino-eager but federally unrecognized group that, starting in 1992, began to lay legal claim to much of downtown Bridgeport and portions of nearby Connecticut towns. In 1996, historians, anthropologists, and genealogists with the BIA concluded in a supposedly “final determination” that there was “little or no evidence” that the Paugussett applicants’ ancestor “was descendant from the historical Golden Hill Paugussett or from any other identified historical Indian tribe” or that he lived “in tribal relations during his lifetime.” But appeals continue, with a reconsidered BIA ruling expected before year’s end.

On September 18, 2002, Paugussett reps once again played their trump card: land claims. At a breakfast meeting with real-estate agents from Fairfield and New Haven Counties, the Paugussetts threatened to file claims covering hundreds of thousands of acres in affluent Westport, Woodbridge, East Haven, Branford, and other towns. Outlining the chaos that this litigation would unleash, they then offered not to pursue it—if the state gave them land in Bridgeport to build a casino.

It’s not clear yet how the tribes will fare when their cases make it to resolution in court. In February 2000, the Cayuga tribe went to trial over its 20-year-old claim to 64,000 acres in Cayuga County. In what may have been the first jury trial for a land-claims case, a jury of non-Indians took 12 hours to return a recommendation that the tribe receive $37 million, payable by the state—less than Albany itself considered the land worth. (Unlike many other tribes, the Cayuga weren’t interested in casino rights.) The judge ruled out many of the tribe’s hoped-for damages and rejected its demand to evict the present “occupiers.” But it did add $211 million in compound interest, which brought the total to $247.9 million. Then, in June of this year, U.S.

District Court Judge Richard Arcara threw out the Senecas’ claim to be the rightful owners of Grand Island and numerous smaller islands in the Niagara River. The judge concluded “that there is no archaeological evidence that the Senecas ever set foot on Grand Island.” Many of the island’s 18,000 residents heaved sighs of relief, though it might be premature: the Senecas plan an appeal, which observers expect could take at least 18 months.

In a piece saluting celebrity Harvard law professor Charles Ogletree for his role in organizing slavery lawsuits, the Harvard Law Bulletin coos that the reparations movement “rides on hopes of racial healing.” But healing is far from what has happened over 25 years of litigation in the Indian claim zones. Old friendships have broken up, petty vandalism and threats have escalated, and the tone of politics has grown rancorous. Some locals involved in the New York cases have likened the atmosphere (no doubt hyperbolically) to that of the Balkans or Northern Ireland. “It’s kind of like the situation with Israel and Palestine,” a lawyer representing the St. Regis Mohawks’ land claim told the New York Post, varying the comparison.

In unheralded New York towns like Springport and Aurelius and Fayette, the longtime, European-descended residents really can’t back down: for many of them, their homestead represents the one asset of real value they can hope to pass on to their children. And as they wait out the siege, they’re entitled to wonder, after 25 years, how a legal system they grew up trusting could have let this happen.

 

 

 
Billion-dollar tribal land claims are wreaking havoc.
City Journal Autumn 2002.
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