The Bush administration is asking the U.S. Supreme Court to reinstate the Cayuga land claim in hopes of protecting more tribes from seeing their cases dismissed.

In a petition filed earlier this month, the Department of Justice called on the justices to reaffirm the right of tribes to seek redress for stolen lands. Government lawyers said cases across the country could be thrown out of court unless the high court revives the claim filed by the Cayuga Nation of New York and the Seneca-Cayuga Tribe of Oklahoma.

"In the Trade and Intercourse Acts and the Treaty of Canandaigua, the United States committed the nation to protecting the interests of the Cayugas and other New York Indian Nations in their lands," the brief stated. "This court should ensure that the United States is able to honor that commitment by affording some measure of recompense for New York's clear violation of that undertaking."

The 2nd Circuit Court of Appeals, in a 2-1 decision last June, held that the Cayuga tribes waited too long to file their lawsuit. The ruling was based on an expansive interpretation of the Supreme Court's March 30, 2005, opinion in Sherrill v. Oneida Nation, another New York case.

By an 8-1 vote in Sherrill, the justices ruled that the Oneida Nation has to go through the land-into-trust process before asserting sovereign rights on land covered by the Treaty of Canandaigua. The court said it would be too "disruptive" to remove the land from local and state jurisdiction without analyzing the impact on the community.

Although the high court was careful to note that its ruling didn't "disturb" the Oneida Nation's right to seek remedy for stolen lands, the 2nd Circuit nonetheless said Sherrill "dramatically altered the legal landscape" of tribal land claims. Government lawyers argue that such an interpretation needs to be corrected in order to protect more tribes from suffering the same fate as the Cayugas.

"The decision below deprives the Cayugas and similarly-situated tribes of any remedy for the state's unlawful acquisition of their lands and renders superfluous the protracted litigation that was the natural and foreseeable consequence of this court's earlier ruling, the brief stated, referring to the Supreme Court's 1985 decision that allowed the Oneida claim to be pursued.

Several tribes indeed face defeat if other courts take the same position as the 2nd Circuit. In the 3rd Circuit, a federal judge dismissed the Delaware Nation of Oklahoma's bid to reclaim rights in Pennsylvania, the tribe's ancestral home. Land claims pending in Ohio, Illinois, Colorado and Michigan could also be thrown out of court.

For that reason, the Cayuga claim is drawing interest as it heads towards the Supreme Court. The National Congress of American Indians and the Native American Rights Fund, through their joint Tribal Supreme Court Project, are closely monitoring the case and plan to take part in it.

"I think a lot of tribes have an interest in this case," John Dossett, NCAI's general counsel, said last November. "The legal doctrine of 'it's been a long time' is not a good legal doctrine for tribes."

The Cayuga tribes were awarded $247 million for 64,000 acres stolen from by the state of New York, The 2nd Circuit, despite throwing out the award, acknowledged that the land was taken without federal approval in violation of federal law.

The tribes, like the Oneida Nation, have repurchased land covered by the Treaty of Canandaigua but they have since agreed to pay property taxes to local counties rather than risk foreclosure. The Cayuga Nation also has filed an application with the Bureau of Indian Affairs to have its properties taken into trust.

The tribes filed their petition earlier this month along with the Department of Justice one. A response from the New York defendants is due March 8, after which the court will determine whether to take the case.

Participating in the discussions will be new Chief Justice John G. Roberts and new associate Justice Samuel A. Alito. Roberts, who was confirmed last September, has already heard and decided one Indian law case, a state tax dispute that went against the Prairie Band Potawatomi Nation of Kansas.

Roberts has had significant experience in Indian law, having argued two major cases before the Supreme Court. Alito was a judge on the 3rd Circuit Court of Appeals, which hasn't heard any Indian law cases due to the lack of federally recognized tribes in the region. The Delaware claim is the first such case before the court.

Cayuga Land Claim Briefs:
DOJ Petition | DOJ Appendix Volume 1 | DOJ Appendix Volume 2 | Cayuga Petition

Cayuga Land Claim Decision:
Cayuga Nation v. New York (June 28, 2005)

Sherrill v. Oneida Nation Decision:
Syllabus | Opinion [Ginsburg] | Concurrence [Souter] | Dissent [Stevens]

Relevant Links:
NARF-NCAI Tribal Supreme Court Project - http://doc.narf.org/sc/index.html