A newly released ruling has kept intact the Onondaga Nation’s right to pursue claims for the illegal land seizures that reduced their homelands from 2.5 million acres to its current 7,500 acres.
The Inter-American Commission on Human Rights, an arm of the Organization of American States, responded in May to uphold the Nation’s 40-page petition, which was originally filed almost a decade ago.
“The passage of time does not diminish our determination to protect our people and regain our land, which has sustained us for millennia,” said Tadodaho Sid Hill of the Onondaga Nation. “In this case, justice has certainly been delayed. We hope it will not be denied.”
Joe Heath, a Syracuse-based attorney who has served as the general counsel for the Onondaga Nation for more than four decades, initially challenged the illegal land purchases back in 2005. He has continued championing the cause within the courts before being forced to pivot to the Inter-American Commission on Human Rights, an international forum, in 2014.
Heath chatted with Central Current on the significance behind this recent decision surrounding their petition and the path ahead of them to potentially reclaim land back for the Onondaga Nation.
Editor’s note: This conversation has been edited for length and clarity.
Can you walk us through how this petition first emerged?
Let me start with a legal procedural history. You’re absolutely correct that this is a follow up to the 2005 land rights action that the Onondaga Nation filed in federal court. And, of course, we know that the federal courts shamefully dismissed it. I remember arguing in the Second Circuit on Columbus Day in 2012. They gave us 10 minutes and didn’t even give us a chance to prove our case.
We also fought to the Supreme Court, and that exhausted our domestic remedies, so then we moved into this international forum, the Inter-American Commission on Human Rights, but there are very few that were even possible. This one is less than perfect because it’s only a commission, not a court. The U.S. will not accept the authority of the Organization of American States, which would issue a binding decision, but it is an important human rights body.
This petition alleges and charges the U.S. with human rights violations, in violation of many international agreements, one of which is the U.N. Declaration on the Rights of Indigenous Peoples. There’s also an American Declaration of Rights of Indigenous Peoples. Those violations were for allowing the land to be illegally taken originally, allowing the land to be severely environmentally damaged and destroyed.
All of that is related to City of Sherrill v. Oneida Indian Nation of New York and what some authors are now calling anti-Indian law based upon the 200-year-old Johnson v. McIntosh, the ‘Doctrine of Christian Discovery and Domination,’ plenary power and land in trust. And that’s exactly how we’re going after them in this arena.
How important is this development for your ongoing complaint?
This petition was filed on April 14, 2014. It’s a very underfunded commission and takes forever, but after nine years, this is a significant achievement for the Nation’s 235-year struggle to regain their land. This is essentially equivalent to a denial of a motion to dismiss, because the alternative would have been a dismissal of the petition.
The actual admissibility decision was made in May, but given the general administrative dysfunction of the commission, which is primarily funded by the U.S., and therefore underfunded. We didn’t get it until last Thursday, but the cover letter went to Secretary of State Antony Blinken.
What this decision means is that we have successfully been able to get the commission to reject all of the defenses that the U.S. threw up. There were many of them, but basically, what they said is “our courts did just fine for the Haudenosaunee land claims.” There were decades of litigation, but didn’t mention that all of them were dismissed. And they said, “We have a really adequate way of protecting Indigenous land rights. It’s called land into trust.”
We hope the commission will rule and direct the U.S. courts to correct their colonial anti-Indian laws and say that it’s just not acceptable. The Doctrine of Discovery and plenary power are not consistent with international human rights principles. If we got that ruling and if it were binding, or the U.S. had a conscience and really would follow it, that would have a huge impact.
This has been a nearly decade-long undertaking. Have you gotten help?
I couldn’t do this by myself. You can’t go into this kind of totally different jurisdiction: a totally different set of laws. Originally, we had assistance from a law firm that we no longer work with, but I have a gentleman by the name of Andrew Reid, from Boulder, Colorado, and part of the National Lawyers Guild.
He also assisted me when I went to Standing Rock; he knew the legal coordinator there, and that was very helpful, so we’ve been working together for about 15 years. The more I talked with him, the more I understood his expertise, because he teaches international law at the University of Denver’s Sturm College of Law and represents two or three of the cases in front of this same committee.
I’m sure you’ve heard many Indigenous peoples say they can’t get any justice in U.S. courts, so we have to go to international forums. The Dann sisters of the Western Shoshone, I think they’re the only other Nation we’re aware of at this point, got a favorable decision and then the U.S. ignored it.
With the Vatican recently repudiating the Doctrine of Discovery amid the two-century anniversary of the Johnson v. McIntosh ruling, are these historic moments culminating in favor of Onondaga’s legal case?
It’s all part of undoing this colonial structure. I don’t think anything’s gonna happen magically, no matter how well we do here, but the political momentum that this would and will provide, is critical.
There aren’t enough Indian law practitioners who can go directly at it the way Onondaga has authorized us, because it’s their leadership. It’s an important decision in this individual matter, but it also has a lot of legs.
I think there is a growing awareness and clearly a growing movement, understanding the horrible forms of colonialism. Another important step in that was the ratification of the U.N. Declaration on the Rights of Indigenous Peoples in 2007. Tellingly, four colonial states refused to sign: the U.S., Canada, New Zealand and Australia. The Indigenous peoples in all of those countries have been through hell.
Forced assimilation, ethnic cleansing in boarding schools, and everything still going on in Central and South America, because capitalism can make money off the land and the people are in the way. Hopefully there is a growing consciousness that this is wrong.
As I said, the U.N. and American declarations have no resonance here in the U.S. yet or not enough. And that’s what this petition is part of; it’s all interconnected.
Can you briefly explain the historical context behind the illegal land seizures cited within your petition and why it still matters today?
In 1788, right after the Constitution had been ratified by a sufficient number of states, New York systematically went after stealing Haudenosaunee land before the Constitution became effective.
They met with people who were not Onondaga leaders, who were still over at Buffalo Creek because of the Sullivan-Clinton Campaign. People left the homelands under the protection of the British because they didn’t know when the next army was coming to burn, kill or rape them, and cut down their orchards or ruin their vegetable gardens. They made an agreement that was totally illegal, and it was totally fraudulent.
After the Constitution came into effect, George Washington was tremendously inconvenienced for lack of a stronger word, but he wanted to continue taking Indian land quickly, particularly the Oneida and Onondaga.
Washington had Congress pass the 1790 Trade and Intercourse Act, which was particularly aimed at New York. It mandates that no taking of Indian land can be valid without federal involvement and ratification.
Then he convened in Canandaigua for treaty negotiations in 1794 and sent out wampum to leadership and 1,600 Haudenosaunee came. That’s a historic treaty, but New York didn’t care and they still kept taking the land in five separate illegal seizures until 1822.
Well before the filing, Onondaga was reaching out to New York governors, the Department of Interior and Department of Justice, asking for diplomatic discussions of the problem. New York knowingly took the land illegally; there is no factual dispute about that.
We need government-to-government recognition of the obligation to heal that illegal activity; that’s the framework that we’ve used. What we would like is land returned to Indigenous nations. That’s the only form of reparation for justice that really works.
Have you exhausted all of your legal avenues at this point?
Until we get Johnson v. McIntosh and Sherrill reversed, we can’t get back into the U.S. courts. This is the only international forum that would be close to having success, but there’s a strong record of human rights decisions in favor of Indigenous peoples within the Organization of American States, even given the level of oppression throughout Turtle Island. This is really the only avenue we had.
Essentially, what are your next steps?
We’ve been working on a response, and we will now file within the next four months, what they call additional observations, which is essentially a brief or a memorandum. We’re gonna walk through all of that.
I can tell you what we have drafted and we’ll submit, we go directly after Johnson v. McIntosh, U.S. colonial law, land into trust, Sherrill, all of that, because again, their defense is we take care of Indigenous land rights.
