Once again a US court has made a terrible decision
regarding the longstanding land claims of the Mohawk people against New York State.
On September 28 a district judge recommended that almost all of the claims be dismissed with the exception of a small section in the middle of Akwesasne, the so-called "Hogansburg" triangle.
Gone are the claims for Barnhart Island (potentially worth hundreds of millions of dollars), the Grasse River section (including two Alcoa aluminum factories and the St. Lawrence County mall), the former Massena Springså, other islands in the St. Lawrence River and a few thousand acres on the eastern edge of Akwesasne in the town of Fort Covington.
The judge used the 2005 US Supreme Court decision Oneida Nation v. the City of Sherrill in reaching the decision. That ruling in turn cited the highly controversial Doctrine of Discovery when it gutted federal treaties which are, according to the US Constitution, the "supreme law of the land". Instead, the Supreme Court decided by an 8-1 margin that the Oneidas not only waited too long to bring their case but the possibility of displacing landowners in the effected areas outweighed the constitution and the enormous suffering endured by the Oneidas when they were compelled to relocate from their homeland to Wisconsin and Oneida.
The Mohawk people should be outraged by the stupidity of the court’s finding since it is illogical, racist and in defiance of common sense.
But the Mohawk people should ask: why, in the face of certain defeat, was this case litigated at all?
Just as in the Sherrill case there were those, including myself, who believed there was no chance the courts would ever acknowledge the authority of any Native nation to regain active jurisdiction over lost lands regardless of the manner in which those areas were taken. Further, it was impossible for an American judge, ignorant of Native history or laws, to concede to the expansion of aboriginal territory exclusive of individual state control with the possibility of removing non-Natives.
The problem for every Iroquois nation, including Akwesasne, was the failure of the leadership to condemn Sherrill or to make the clear distinction that the Oneida Nation of New York, Inc. had no right to gamble with the collective land rights of the Iroquois.
The other mistake was to enter the courts alone, without the involvement of the other Iroquois nations. In effect, the Akwesasne leadership unraveled the bundle of arrows which was meant to give us unbreakable strength as a united Iroquois people. While seeking to enforce the Seven Nations of Canada treaty we also threw the judicial dice and did not even have the sense to consult with the actual seven nations: Kahnawake, the Hurons of Lorette, the descendents of the Oswegatchies, the Mohawks-Nippissings-Algonquins of Oka and the Abenakis of Odanak.
We ignored our own history when we should have known from our past experiences that forging alliances and working towards a common defense was how we survived the initial intrusions and threats brought to this continent by the Europeans.
We should have suspended litigation altogether rather than face certain defeat. This decision will bring great harm not only to the Iroquois nations, including Onondaga, Seneca, Cayuga and Tuscarora but will effect Native nations across the land. And who are we to have done so?
The court’s finding is amazingly ignorant for the following reasons:
-it violates the US constitution
-it breaches treaty law
-it is racist in that it ignores the forcible displacement of Natives
-it holds that non-Natives living on Native land have more protection than Natives
-it ignores the ongoing efforts by the Mohawks to regain stolen lands
-it completely exonerates New York State for its blatant theft of Mohawk territory
-it defends the land rights of companies such as Alcoa and the Power Authority of the State of New York to occupy and exploit stolen lands and that such occupancy exceeds the treaty obligations of the United States
-it uses “laches” as an excuse despite overwhelming evidence that the Mohawks not only contested the land thefts at the time of taking but have sought damages and the return of the land exclusive of the formal land claims filing date
-it ignores the demonstrably terrible harms suffered by the Mohawks of Akwesasne-culturally, biologically, physically, socially, legally-as a result of the land thefts
-it provides no compensation for the loss of the lands nor any remedy for the return of the lands.
In effect, the judge said that while the lands were stolen New York State would not be held liable and the US should accept this theft as a legal reality.
Since we knew this was inevitable it is the duty of our leaders to provide the Mohawk people with an explanation as to the ramifications of this defeat. They, and their lawyers, must appear before the people and explain this disaster and why they elected to move ahead given its certainty.
Our leadership has to be accountable and should be pressed to come up with a creative response to the ruling which does not involve an appeal to the US Supreme Court which will not only affirm the ruling but by doing so solidify this terrible decision as binding upon other nations.
There is nothing to boast about here but every reason to be alarmed.
Doug George-Kanentiio, Akwesasne Mohawk, is a co-founder of the Native
American Journalists Association, a former member of the Board of Trustees for
the National Museum of the American Indian and the author of many books and
articles about Native history and current issues. His latest book is "Iroquois
on Fire". He may be reached via e-mail: Kanentiioaol.com. Kanentiio resides on
Oneida Iroquois Territory in central New York State.
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