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The New York Sun.

Indian Claims Debacle Offers a Sobering Preview on Reparations
New York Cases Draw a Comparison to the Balkans
October 29, 2002

By Walter K. Olson

When you read about the boomlet in lawsuits demanding reparations for slavery, it is natural to wonder. Whatever happened to the statute of limitations? But if legal claims like these aren't obsolete, what claims are? If we pursued the logic of reparations, 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. Our courts would never make themselves the instruments of such injustice and social divisiveness - would they?

Don't be so sure. Until recently 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. Just ask the residents of western New York towns like Chittenango, Seneca Falls, and Springport, where as many as 90,000 upstate landowners 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. 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.

It was attorney Thomas 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?

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. 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 tracts in question were vast. In Maine, for example, 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.

Thanks to the courts, the unfortunate landowners of western New York wouldn't get off easy. Court battles with the Oneida and other tribes commenced in 1970 and twice reached the U.S. Supreme Court, which, in 1985, ruled that the tribe had the right to seek compensation - and to drag private landowners into its action. The Court discerned (with little evidence) a federal "policy" that Indian claims should remain open forever. Indian law is so murky that the majority could probably have reached almost any conclusion it wanted in the case. But the majority's decision invoked both the nation's "unique obligation" toward the Indians and the principle that “Indian treaties are to be interpreted liberally toward the tribe."

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 kind of in terrorem - "intended to terrify" - demands. "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.

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.

What 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. 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. 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. 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.” 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 to that of the Balkans or Northern Ireland.

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.

Mr. Olson is a senior fellow at the Manhattan Institute. Adapted from the Autumn 2002 edition of City Journal.

©2002 New York Sun

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