Bully’s Justice

George Zebrowski

Undisputed is the fact that Europeans seized this continent, piece by piece, from the many Native peoples who were here first. Today, when these nation-tribes go to court, seeking recognition of their rights to ancestr al lands—even when they define their claims narrowly—they almost always lose.

Those of us conscious of the old injustice of Native dispossession might imagine that our legal system repeatedly refuses to acknowledge, much less correct, that glaring moral wrong because of some weighty countervailing principle of justice. Surely, we might speculate, some murky but hugely important legal principle must be in play that accounts for the courts’ baffling conduct in rejecting the plain demands of justice. If you assume that, you’d be wrong, as a recent case involving New York’s Onondaga Nation demonstrates. There is no such principle, moral or otherwise, on the basis of which American law dismisses Native American land claims—other than the principle of the bully, the thief, or the moral shirker.

On March 11, 2005, the Onondaga Nation of Nedrow, New York, filed Onondaga Nation v. The State of New York et al., a land-rights action in federal court, seeking acknowledgment of title to more than three thousand square miles of ancestral lands centering in Syracuse, New York. This action was dismissed in 2010. That decision followed a previous dismissal of land claims by the Oneida and Cayuga nations and was based on the 2005 U.S. Supreme Court decision Sherrill v. Oneida. In that case, the Oneida had refused to pay property taxes to Sherrill, New York, based on the principle of their sovereign status; the city then threatened the Oneida with eviction. The U.S. Court of Appeals in the Second District ruled in favor of the Oneida, and the dispute went to the U.S. Supreme Court, which ruled against the Oneida. Here is an excerpt from that decision:

Given the longstanding, distinctly non-Indian character of central New York and its inhabitants, the regulatory authority over the area constantly exercised by the State and its counties and towns for 200 years, and the Oneidas’ long delay in seeking judicial relief against parties other than the United States, standards of federal Indian law and federal equity practice preclude the Tribe from unilaterally reviving its ancient sovereignty, in whole or in part, over the parcels at issue. The Oneidas long ago relinquished governmental reins and cannot regain them through open‑market purchases from current titleholders.

The distance from 1805 to the present day, the Oneidas’ long delay in seeking equitable relief against New York or its local units, and developments in Sherrill spanning several generations, evoke the doctrines of laches, acquiescence, and impossibility, and render inequitable the piecemeal shift in governance this suit seeks unilaterally to initiate. This Court has long recognized that the passage of time can preclude relief.

In a revealing footnote, the high court added: “Under the ‘doctrine of discovery’ fee title [that is, ownership] to the lands occupied by Indians when the colonists arrived became vested in the sovereign, first the discovering European nation and later the original states and the United States.”

In other words, the Sherrill decision was based in part on the Doctrine of Discovery, one of the rare principles of American law that came not from English common law or from the pen of some Enlightenment philosopher but rather from the Vatican. The doctrine can be traced to Pope Nicholas V’s issuance of the papal bull Romanus Pontifex in 1455, which allowed Portugal to claim and conquer lands in West Africa. Pope Alexander VI extended to Spain the right to conquer newly found lands in 1493. The Doctrine of Discovery gave European Christian explorers a rationale to claim lands unoccupied by Christians, even if indigenous people lived there, declaring that these indigenous people had no land rights.

With that history established, let’s return to the Onondaga case. Following the 2010 dismissal of its land-rights action, the Onondaga Nation appealed to the Second Court of Appeals in New York City in 2012. Asserting land rights only to the Central New York region around Onondaga Lake, the Onondaga pointed out that they had in fact been continuously occupying those lands and also that, in contrast to previous land-rights cases (including that of the Oneida), they were only seeking a resolution and a recognition of rights, not demanding a disruptive repossession of lands. The appeals court nonetheless ruled against them on October 19, 2012.

On that day, the Associated Press reported that the Onondaga Nation’s 183-year-old land claim against New York State had again been denied.* The brief story, written “objectively,” styled away inconvenient facts by not recognizing them as facts, in much the same way as the court’s decision had ignored law and lawful practice by brazenly proclaiming a conclusion that was both unlawful and unjust. Even a short summary of the well-established historical record exposes the absurdity of recent court decisions regarding the Onondaga (as well as other Native land-claim cases). Moreover, it perpetuates an overwhelming record of public shame.

Let us review the history.

The Trial of Red Jacket
The Trial of Red Jacket by John Mix Stanley shows the famous Iroquois orator and negotiator—a signatory of the Treaty of Canandaigua—addresssing a crowd.

During the American Revolutionary War, the Onondaga were initially neutral. After an American attack on their main village in 1779, they sided with the British. Following the war, many Onondaga left for Canada, but some remained in their ancestral homeland around New York’s Onondaga Lake.

In 1794, the Onondaga who had stayed in New York State, along with other members of the Six Nations (Mohawk, Seneca, Cayuga, Oneida, and Tuscarora) still living in the state, signed the Treaty of Canandaigua with the United States. The tribes’ right to their homelands was explicitly admitted by the United States in Article 2 of this treaty. Why was this treaty made? At the time, the fledgling U.S. government under President George Washington wanted to keep the Haudenosaunee (or Iroquois, as the Six Nations were known collectively) from joining other Native Americans in Ohio who were threatening war over the allocation of their lands. The Treaty of Canandaigua kept the Iroquois out of that conflict.

It should also be noted that the Eleventh Amendment to the U.S. Constitution, which granted sovereign immunity to each of the states in the Union, was not ratified until 1795, a year after the Treaty of Canandaigua was formalized. The Eleventh Amendment reads as follows: “The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another state, or by Citizens or Subjects of any Foreign State.” In other words, shortly after the Treaty of Canandaigua was signed, the Eleventh Amendment arguably gave New York a new constitutional right to violate the treaty retroactively.

Back to the present day: What were the Onondagas up against in bringing, then appealing, their suit? One answer is the shameful Doctrine of Discovery, of course, now affirmed by the Sherrill v. Oneida decision. But what they truly faced were unjust human judges, exercising unjust laws and issuing self-serving declarations whose foundations rested on sand and pretzel-like assertions. Doing right costs, as does doing wrong. To do right only when it does not confli
ct with your interests is hypocrisy; in logic, it is an outright contradiction. To do right only when it costs nothing at all is a malicious hope entertained only by the morally bankrupt.

Given our national history of unprincipled pragmatism when it comes to Native American land claims, it was always unlikely that dispassionate persons might emerge in the Onondaga case who would stand up for legal principles regardless of their prejudices. It was always unlikely that representatives of the state would accept the unpleasant consequences of applying legal principles consistently. So surely no such person emerged, a phenomenon we see often enough in human quarrels outside the Onondaga case. It seems we can do little except to shame the perpetrators and not lie to ourselves about the truth, even when as individuals it seems we can do little to make matters right.

In the Onondaga case, the law was, quite simply, bought and sold according to the interests of a generation and its political-judicial operatives. Such was the fear that the Onondaga Nation might claim, even if only in principle, a section of land extending through Central New York State that the U.S. Court of Appeals for the Second Circuit issued a written order affirming a lower court rejection of the case in 2010, “even before evidence could be developed to support the Nation’s claims.” The law’s fear of its own justice is obvious in this act of preemption. “U.S. District Judge Lawrence Kahn in Albany [had] ruled [in 2005] that the Nation’s claim to land stretching from Canada to the Pennsylvania border would disrupt areas developed by generations of landowners” (quotations from the AP story previously cited). Note that Judge Kahn did not deny the original crime of seizing the Onondagas’ land. Instead, he treated it as beneath notice, yet not deniable: a perfect example of having it both ways.

Kahn ruled that the Onondaga claim “would disrupt areas developed by generations of landowners.” For “developed” read “stolen”; for “landowners” read “the current generation of thieves,” with the thieves themselves agreeing to—and setting aside—their crimes.

The press account continued, “A three-judge panel of the appeals court declared Kahn to be right because so much time had passed since the ‘historical injustice’ and because the long-delayed claims would be disruptive to the ‘justifiable expectations’ of people and entities far removed from the taking of the lands.”

This is laughable. Terms like historical injustice and justifiable expectations of “people and entities” (read “corporations”) do not stand up under any kind of truth telling; these terms mean what the judges want them to mean. Ultimately they are mere insistence, calculated to stop further deliberation as early as possible.

The federal appeals court’s rejection of the Onondaga Nation’s land claim repeated the injustice of the original dispossession, continuing that injustice by simply declaring the power to do so. In so doing, it ignored the principle that “justice delayed is justice denied,” to say nothing of the legal principle of “accessory to the crime after the fact.” (If a crime is concealed, or its investigation interfered with, individuals or groups become part of the crime and guilty by degrees of the crime itself. An accessory may enable a crime to happen, help to conceal it, or enable it to continue—before, during, or after the fact—even by inaction or silence.)

In fear of its own legalistic labyrinth, then, the court would not even say the truth about the facts or about itself. Injustice sets its own precedents and hangs on in fear. That today’s occupiers of the lands in question treasure certain “justifiable expectations” is true enough, but this argument assumes a conclusion to prove itself, classic circular reasoning. It boils down to: “We own the land because we own the land.” The present’s reassertion of admitted wrongs perpetuates past injustice, ignoring the possibility that today’s “owners” of the Onondaga lands—the individuals, banks, and corporations who occupy them today—might very well work out individual solutions with the Onondaga. However, even a polite apology is to be feared.

Note well, again, that the court still nowhere denies the crime.

Would it have been disruptive and expensive to honor the Onondaga claim? Of course. But it is well understood that sometimes an extreme is necessary to regain the mean; disruption of the present is to be expected. At the very least, the Onondaga deserve some kind of settlement for justice so long delayed.

The Onondaga may not have expected to win this case, but perhaps they could have made a public statement addressed to the land’s present occupiers and embarrassed those who continue to benefit from past crimes and accept the fact without much thought. At the very least, today’s generations should speak out against the vast crimes of Native American genocide—and of black slavery as well—even as we continue to benefit from inherited crimes. It is not enough to say, “I killed no Indians and held no slaves.” You have to reject the crimes, however useless that may seem; if enough people refuse to lie to themselves, we may move toward a better world.

The court decided as it did, for the benefit of the powers that be, simply because it could do so, with no one to stop it. This is the action of a bully who comes to you with five friends: four hold you while one gut-punches you. No fair contest is possible against an empire’s doctrine of overwhelming force.

Justice sometimes requires seeming injustice as the price of an earlier evaded injustice. What we can do, at least, is to speak truth to power and not lie to ourselves—we who were born into the overwhelming power of the present, who pay our taxes and benefit from past wrongs. We can reject convenient accommodations with past wrongs, speaking out loudly whenever we can, so that our lives do not drown in trivial, criminal acceptance. If enough of us tell the truth, it may well make a future difference.

If the U.S. Supreme Court simply refuses to hear this case, as I predict it will, it will be acting out of a cowardly fear that a future court might strike down any decision it takes, whether for or against the Onondaga. Judges—even justices—worry about their legacies.

But we must all live with the persistent, inconvenient truth, ignoring its unpleasant smell. Remaking the truth to conceal its inconveniences is a deliberate criminal act and a delusion. To live in the magical world of that delusion makes us accessories to past crimes. Self-serving ideas from the eras of slavery and Native American genocide persist, comforting our courts with the notion that these people are not really people or citizens—in the case of the Onondaga, only conquered Native Americans—so they can’t do anything about what we decide. They have no army.

To say that Native Americans will never be given back the country is a simpleminded response to the issue, because, unlike the descendants of the settlers, they do not want it all and never did. “They’ll never get it back” is hardly ever said in a neutral tone but coldly—suggesting guilt, fear, often outright resentment and hate, and even outrage that the very question, or any discussion of settlement, should even be raised.

To deny recognition of what happened, to repudiate past wrongs, stifles any chance of reconciliation. It extends the historical fact of having taken it all, and still wanting it all. “They will not get their country back.” True, but what does that admit? The conqueror does as he pleases and the judicial system does as it pleases&m
dash;not as it must, not as it should. That’s the way it is when grown people talk in tautologies. It’s the way things are.

In a 1957 movie Western, Trooper Hook, the star, Joel McCrea, is asked by his army commander what he thinks of the war with the Indians. “Reminds me of two dogs fighting over a bone,” says Trooper Hook. There is a long pause. “Except it’s their bone,” he says to his commander, who does not react, as if he is deaf.

We could admit that much to ourselves when this movie was released, at the height of the civil rights struggle in America. Several films from this time managed a few just words. Today we do even less than a fifties movie did, as if any admission of violations of human rights, especially the words of whistle-blowers (in whose treatment we have set aside the legal principle that the same entity cannot be judge, jury, and executioner) will put the wealthy hierarchy on a slippery slope of decline.

Consider what the will of settled power does to justice. Facts make justice impractical; inconvenience makes justice irrelevant. Again, the notion that justice can be done without cost, while injustice came at a high price, is absurd reasoning. It deadens our moral senses. And still, all that the powers that be can say in the face of these moral absurdities is “too bad.” Even then theyavoid answering explicitly.

l Practically speaking, we should not expect the powerful to give up their advantages. “You and what army will stop us?” they ask. “We make the law, abide by it, enforce it with arms, and break it when necessary.” In fact, they rewrite reality—2 + 2 = 5, and gravity is a fiction.

But this is why power sits uneasily in its places, hungering after legitimacy—from the days of the divine right of kings to today, when it claims a monopoly on the voice but always with the help of weapons. The legitimacy of power arising from below, or from any elected representation, is nearly nonexistent today.

“The slaves are mine, their lives and houses are mine,” said the masters, and it is still so today under other names, even though in fact we all belong to each other and to our world.

So how does justice ever prevail? We see more clearly how injustice prevails—by force, which only creates boiling pots of revolt. A well-placed judge helps light fires under the pots of hierarchy.

So what are we to do with our lives?

We can start by telling ourselves the truth, and then tell others, even if we lose friends and get our noses bloodied. We should never underestimate the redemptive power of telling ourselves and others the truth.

The implications of this case reach far beyond the claims of the Onondaga. Given emerging scholarly knowledge of the western hemisphere’s history of exploitation and genocide,** the inescapable conclusion is that we are the beneficiaries of a destroyed mass of peoples. From them we have taken their wealth and their future. Their past is still their past. It sits in our present like a cancer.

*Associated Press, “Court Rejects Land Claim,” Albany Times-Union, Friday, October 19, 2012.

**Charles C. Mann, 1491: New Revelations of the World Before Columbus (New York, NY: Vintage, 2006) and 1493: Uncovering the New World Columbus Created (New York, NY: Vintage, 2011). Noteworthy on the toll of slavery is Daniel Rasmussen, The Untold Story of America’s Largest Slave Revolt (New York, NY: HarperCollins, 2011).


Postscript

Since this essay was submitted, the U.S. Supreme Court declined to hear Onondaga Nation v. The State of New York et al., just as George Zebrowski predicted it would. In April, the Onondaga Nation filed a petition against the United States with the Inter-American Commission on Human Rights, part of the Organization of American States.—The Editors


George Zebrowski is an award-winning novelist, story writer, poet, essayist, editor, and lecturer. His work has appeared in Nature and World Literature Today, among many other publications.

George Zebrowski

George Zebrowski is an award-winning novelist, story writer, poet, essayist, editor, and lecturer, with work in Nature and World Literature Today , among many other publications.


“. . . The Sherrill decision was based in part on the Doctrine of Discovery, one of the rare principles of American law that came not from English common law or from the pen of some Enlightenment philosopher but rather from the Vatican.”

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