Michelle Malkin has the latest (Jul. 12).
Posts Tagged ‘Indian tribes’
2nd Circuit dismisses Cayuga land claim
In a fairly stunning ruling with far-reaching significance for Indian land claims in the Northeast, a panel of the Second Circuit Court of Appeals has thrown out the Cayuga tribe’s lawsuit against New York State and local landowners over possession of 64,000 upstate acres, including the $248 million that a trial court judge had earlier determined was owed to the tribe in damages (see Jun. 24-25, 2002). The majority in the 2-1 opinion, led by Judge Jose Cabranes, relied on the U.S. Supreme Court’s recent opinion in City of Sherrill v. Oneida, which disallowed a tribe’s efforts to assert reservation sovereignty over tracts of land it had added piecemeal through purchase to its previous holdings. According to the majority opinion, the Sherrill ruling revitalizes the equitable defense of laches, or undue delay, which many observers had assumed was unavailable to defendants in the Indian land claim suits. In a dissent, Judge Janet Hall agreed that ejectment of current homeowners was now barred by the Supreme Court’s evolving jurisprudence but argued that claims for cash damages should be allowed to go forward.
Should the ruling be upheld following the inevitable petitions for en banc reconsideration, Supreme Court certiorari, etc., it could spell doom for most and perhaps all efforts to revive long-defunct Indian land claims, which have for decades now inflicted injustice and disruption on innocent landowners and others. For our extensive coverage of the issue, see Jun. 27 (Shinnecocks’ Hamptons suit) and many links from there. (Diana Louise Carter, “Judges throw out Cayugas’ land claim”, Rochester Democrat & Chronicle, Jun. 29; Scott Rapp, “Judges To Indians: You’re Too Late To Reclaim Land”, Syracuse Post-Standard, Jun. 29; Jim Adams, “Second Circuit throws out New York state land claim”, Indian Country Today, Jun. 28; William Kates, “Appeals Court Tosses $248M Award to Tribe”, AP/Washington Post, Jun. 28). More: New York Law Journal (& welcome Howard Bashman readers). Update Apr. 14, 2006: U.S. Justice Department petitions for certiorari.
In the New York Times
I’ve got an op-ed in yesterday’s New York Times (in the zoned Long Island weekly edition) on the Shinnecock Indians’ recent lawsuit asserting land claims over much of Southampton, N.Y. Readers of this space will not be surprised to learn that I take a dim view of the claim. (Walter Olson, “This Land Is My Land”, Jun. 26). For more, see my City Journal treatment of the issue, and, on this blog, most recently Jun. 13 and Jun. 19 (& welcome Michelle Malkin readers).
More: it’s reported there’s dissension among tribe members about the action (William L. Hamilton, “Casino Interest in Land Bid Divides Tribe in Hamptons”, New York Times, Jun. 26). And according to the Washington Post, while the lawsuit looms as a serious hassle for some in Southampton, the wealthiest of the wealthy are paying little heed: “The high-net-worth crowd doesn’t really worry about this sort of thing. That’s for the locals,” says Hampton Sheet publisher Joan Jedell. Insecurity of property as a hazard? That’s only for the little people. (Michael Powell, “Old Money and Old Grievances Clash in Haven of the Very Rich”, Jun. 25).
(Bumped 6/27, a.m.)
“The Worst Bill You’ve Never Heard Of”
Update: staking the Shinnecocks
On the day the Shinnecock Indian tribe filed the first of an expected series of lawsuits laying claim to wide swaths of the Hamptons (see Jun. 13), the tribe disclosed that its courtroom offensive was being underwritten by wealthy Detroit casino investors Marian Ilitch, who with her husband Michael founded Little Caesars Pizza and since then has gone on to purchase baseball’s Detroit Tigers as well as the city’s Red Wings hockey team, and real estate developer Michael Malik. “Gateway Funding Associates, a company backed by [Ilitch and Malik], signed an agreement with the tribe more than a year ago to pay for the lawsuit and other ‘economic development’ initiatives in exchange for a part of any future proceeds, said Tom Shields, a spokesman for Gateway.” Champerty has been defined as the practice of aiding in a lawsuit in return for a share in the benefits being sued over; it was illegal at common law but “the prohibitions have been greatly relaxed in modern times” and in some cases abolished. (Katie Thomas, “Shinnecocks launch legal claim to Hamptons land”, Newsday, Jun. 16; “Lawsuit backers invest in casinos” (sidebar), Jun. 16; James Langton, “Native American tribe lays claim to the Hamptons”, Sunday Telegraph (U.K.), Jun. 19).
Hamptons Indian land claim
It’s one thing when heavily lawyered-up Indian tribes bid to eject the residents of, say, Syracuse or Binghamton. But this is the Hamptons! It’s, like, a real news story now (Ann Givens and Andrew Metz, “Pricey bay tops tribal wish list”, Newsday, Jun. 12; Bruce Lambert, “Shinnecock Tribe Plans Suit, Claiming Land in Hamptons”, New York Times, Jun. 12).
Stifling archaeology, the tribal way
Colorado Republican Sen. Ben Nighthorse Campbell is attempting to insert broadening language into the Native American Graves Protection and Repatriation Act “so that any ancient skeleton can be claimed by modern American Indian tribes even though they have no known connection to the remains,” thus reversing the disposition of such cases as the Kennewick Man controversy (see Aug. 9, Aug. 2 and links from there). Such a step “could significantly reduce — and perhaps cripple — legitimate scientific inquiry into the origins of human settlement in the Western Hemisphere. The retiring Campbell apparently hopes that one of his last acts in Congress will be to undermine the sort of vital study that is undertaken in virtually every other region of the globe.” (“Campbell’s assault on science” (editorial), Rocky Mountain News, Oct. 13)(via Moira Breen, by way of Jim Henley). More: Tim Sandefur comments at Panda’s Thumb (Oct. 4).
Update: Indian sovereignty advances
“In an extraordinarily broad declaration of Indian land rights, a Northern District judge has held that the Cayuga Nation can buy up property in its former Central New York homeland, declare it ‘Indian country’ and operate a gambling hall immune from local building, zoning and tax laws.” “John Caher, “Indian Tribe Wins Broad Right to Add, Control Land”, New York Law Journal, Apr. 29). In related news, New York State “has broken off negotiations to settle the Cayuga Indian land claim and will let the courts decide the 24-year-old lawsuit, officials on both sides of the dispute said”. (Scott Rapp, “State stops settlement talks with Cayugas”, Syracuse Post-Standard, Aug. 4). For more on Indian land claim litigation in upstate New York and elsewhere, see my City Journal Autumn 2002 piece; Nov. 3-5, 2001 and links from there; Jun. 24-25, 2002; Jun. 4, Apr. 16, Feb. 9, 2004 and links from there. See also Jan Golab, “The Festering Problem of Indian ‘Sovereignty'”, The American Enterprise, Sept.. Update 2005: U.S. Supreme Court, in City of Sherrill v. Oneida, disallows “creeping expansion” of tribal sovereignty through piecemeal land purchases.
Update: Further Kennewick Man litigation likely
The Los Angeles Times reports that the eight-year-old legal battle over scientists’ attempts to study the 9,300-year-old bones (Feb. 14) is probably not over, even though Indian tribes and the Department of Justice decided not to appeal the Ninth Circuit’s ruling to the Supreme Court. Before, Clinton administration objections under the Native American Graves Protection and Repatriation Act prevented study. Now, the U.S. Army Corps of Engineers, which has custody of the bones, is objecting under the Archaeological Resources Protection Act of 1979 to anthropologists’ plans to study the skeleton. And the tribes have filed papers expressing their intent to continue litigating. In the words of the Houston Chronicle’s headline-writers in reprinting the LA Times article, “Curse of lawyers surrounds ancient skeleton.” (Tomas Alex Tizon, “Skeleton Case’s New Bone of Contention”, Los Angeles Times, Aug. 2 (via Bashman); Eli Sanders, “An 8-Year Fight Ends Over a 9,200-Year-Old Man”, New York Times, Jul. 20; Tim Sandefur, Panda’s Thumb blog, Mar. 25; Bonnischen v. United States; Friends of America’s Past website and Aug. 4 press release).
Beware the Indian-artifacts police
A 1990 federal law restricts commercial trade in American Indian archaelogical remains and so-called sacred objects, and pressures public institutions to hand over (“repatriate”) such holdings to tribes. According to its critics, the law has begun to put a serious crimp in archaelogical investigation of the North American continent. It also menaces legitimate dealers of artifacts with prison terms over vaguely defined offenses, all while providing the adherents of certain religious tenets (those claimed to be traditional native beliefs) with powerful legal muscle not available to those of us who may hold other (or no) religious beliefs. (Steven Vincent, “Grave Injustice”, Reason, Jul.). For the “Kennewick Man” controversy, the most famous thus far to arise under the law, see Feb. 14 and links from there. For cases with sometimes-overlapping effect arising from a federal law which restricts trade in artifacts whose components include the feathers of eagles and other protected birds, see Sept. 11-12, 1999.