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This Land Is My Land
By Walter Olson
Walter Olson, a senior fellow at the Manhattan Institute, is the author, most recently, of "The Rule of Lawyers."
THIS is a club Southamptonites were hoping not to join.
Tribal land claims have wrought havoc across the Northeast for decades, mostly in less-than-glamorous localities like Bridgeport, Conn., and Seneca Falls, N.Y. Now the casino-eager Shinnecocks are asserting a claim to some of the nation's priciest acreage. Outraged Hamptonites should start organizing now and should demand action from elected officials, particularly those in Congress.
Three decades of title-deed trench warfare in New England and upstate New York should give us a good idea of what to expect:
Things will get bigger and messier. The Shinnecocks already want billions of dollars in ''back rent'' and other damages and are promising much bigger land claims soon. Elsewhere in the state, the zones under dispute have grown to include the land under entire cities like Syracuse and Binghamton.
Thousands of innocent landowners will suffer as hostages. Title disputes don't stop real estate markets from functioning, but they do scare off some buyers and lenders, resulting in genuine if hard-to-measure damage to property values. And while the Shinnecocks say they are not asking the court to eject homeowners, both the Oneidas and the Cayugas initially put out similarly soothing words and then changed their tune.
Even battles involving weak claims can drag on and on. It is true the state-recognized Shinnecocks lack federal recognition as a tribe, which ordinarily counts as a threshold requirement for asserting land claims, thus leaving a big gap in their case. But the self-proclaimed Golden Hill Paugussetts of Connecticut, unrecognized at any level and with claims far weaker than those of the Shinnecocks, have managed to keep land suits hanging over homeowners for years. Nor is the tribe likely to run out of money for legal fees: as is typical in such cases, wealthy investors have helped pay the initial costs in exchange for a share in any future casino.
Albany probably will help; Congress probably won't. Gov. George E. Pataki and his predecessors have helped homeowners with legal defense on the theory that the state, with its deep pockets, would in the end be obliged to bail out losing owners and is thus the ultimate party on the hook. In Washington, the Department of Justice has grown friendlier to homeowners, but Congress almost entirely ignores their plight; tribal casino interests are central players on the K Street lobbying scene.
And yet it is bad federal law that got us into this mess. For centuries, our legal system recognized, through statutes of limitation and related concepts, that it is unfair and economically destructive to hold the door open for the revival of long-dormant grievances. But in a profoundly misguided 5-to-4 decision in a 1985 case involving the Oneidas, the United States Supreme Court, influenced by guilt over the nation's sorry history in this area, decided that Indian land claims were an exception and not subject to time limits.
Justice John Paul Stevens wrote an eloquent dissent. ''This decision upsets long-settled expectations in the ownership of real property,'' he noted. ''The court, no doubt, believes that it is undoing a grave historical injustice, but in doing so it has caused another, which only Congress may now rectify.''
And Justice Stevens quoted an 1831 case, Lewis v. Marshall: ''Nothing so much retards the growth and prosperity of a country as insecurity of titles to real estate. Labor is paralyzed where the enjoyment of its fruits is uncertain; and litigation without limit produces ruinous consequences to individuals.''
Indian land claims in the Northeast arise from alleged violations of the federal Nonintercourse Act of 1790 and related legislation, under which states were supposed to acquire Indian lands only with case-by-case approval from the national government. Eastern governments (unlike frontier states) did not believe they fell under the scope of the act and did not ask for federal permission when buying land from tribes.
Their stance was ratified at the time by practice and custom. Most tribes now asserting land claims did not object to the original sales because they wanted the money, and they cannot plausibly claim duress or lack of consideration. The Shinnecocks are evidently planning to argue that they are exceptions.
Because the mess originates in federal law, it's up to Congress to fix it. Ideally, it should reverse the 1985 Oneida decision with legislation that says the limit for contesting violations of the Nonintercourse Act is not open-ended and expired long ago. In practice, because of sympathy toward the Indians and their financial clout, that is going to be a hard slog unless public opinion can be mobilized broadly.
Swaying public opinion in Congress is one area where Hamptonites can contribute something distinctive. For years, upstate landowners have held bottle drives and bake sales to raise money in hopes of holding onto modest homes and farms that date back generations. They have had little success attracting wider attention to their plight. But if there is one thing the Hamptons aren't short on, it is publicity value. Why shouldn't Hamptonites throw a fund-raiser to help the upstate landowners' cause, which, given the tendency of legal precedents to apply across the board, is also theirs?
With luck and hard work, the mess our legal system has made of Indian land claim litigation can finally get the national scrutiny it deserves.
©2005 New York Times
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