U.S. Tribe Looks to International Court for Justice

• by Michelle Tullo (washington)
• Wednesday, April 16, 2014
• Inter Press Service

The petition was filed by the Onondaga Nation, a Native American tribe and one of more than 650 sovereign peoples recognised by the U.S. government. Onondaga representatives are calling on the Inter-American Court of Human Rights (IACHR), the human rights arm of the pan-regional Organisation of American States (OAS), to intervene.3

In 2005, the Onondaga Nation filed a case against New York State, stating the state government had repeatedly violated treaties signed with the Onondaga, resulting in lost land and severe environmental pollution. Yet advocates for the trips say antiquated legal precedents with racist roots have allowed the courts to consistently dismiss the Onondaga's case.

They are now looking to the IACHR for justice.

"New York State broke the law and now the U.S. government has failed to protect our lands, which they promised to us in treaties," Sid Hill, the Tadodaho, or spiritual leader, of the Onondaga people, told IPS.

Hill and others from the Onondaga Nation gathered outside the White House, located near the IACHR's Washington headquarters, on Tuesday. Hill brought an heirloom belt commissioned for the Onondaga Nation by George Washington, the first U.S. president, to ratify the Treaty of Canandaigua, affirming land rights for the Onondaga and other tribes.

In their petition to the IACHR, the Onondaga quote sections from the Trade and Intercourse Act of 1790. Signed by George Washington, this law assured the Onondaga that their lands would be safe, and if threatened, that the federal courts would protect their rights.

Yet since then, tribal advocates say, their 2.5 million acres of land has shrunk to just 6,900 acres. And rather than helping the Onondaga, the courts have ignored their case.

"We filed the original case in 2005," Joe Heath, the attorney for the Onondaga Nation, told IPS.

"We did not sue, did not demand any return for original land. It was more aimed at protecting sacred sites and environmental issues … Our case was dismissed in 2010, so we appealed to the Second Circuit."

The Second Circuit, and finally the Supreme Court, dismissed the case.

Landmark law

Since 2005, the U.S. courts have designed a new set of rules, called "equitable defence". This now arms New York with a two-part defence in the Onondaga case. First, officials are able to argue that too much time has passed since the 1794 treaty was signed to when the case was filed, in 2005.

Second, equitable defence also states that the court is able to determine on its own whether the Onondaga people have been disturbed on their land.

"The legal ground on which claims rest has undergone profound change since the Nation initiated its action," the District Court concluded. "The law today forecloses this Court from permitting these claims to proceed."

The Onondaga Nation and other Native American nations are now fighting to change Native American land laws.

Current legal precedents go back to the 1400s, when Pope Alexander VI issued a papal decree that gave European monarchs sovereignty over "lands occupied by non-Christian ‘barbarous nations'". In a case in 1823, the U.S. Supreme Court applied this principle to uphold the possession of indigenous lands in favour of colonial or post-colonial governments.

The Supreme Court again revived this doctrine as recent as 2005, when another New York tribe, the Oneida Nation, refused to pay taxes to the United States, citing its status as a sovereign nation.

"Under the Doctrine of Discovery ... fee title to the land 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," Justice Ruth Bader Ginsburg wrote in the 2005 decision.

This doctrine still underpins Indian land law and the dismissal of the Onondaga Nation's case.

"This is the Plessy v. Ferguson of Indian law," Heath told IPS, referring to a notorious landmark judicial decision that, for a time, upheld racial segregation in the United States.

Most polluted lake

Heath and others say the goal in "correcting" the U.S. legal system would be to provide the Onondaga Nation and other tribes more say in environmental decisions. Front and centre in this argument is the travesty they say has been visited on Onondaga Lake.

"Onondaga Lake, a sacred lake, has been turned into the most polluted lake in the country," Heath says. "Allied Corp. dumped mercury in the lake every day from 1946 to 1970."

In 1999, Allied Corp., a major chemicals company, purchased Honeywell, a company popularly associated with thermostats, and adopted its name, to try and shed its association with pollution. However, this merger has made it more difficult for the Onondaga Nation to get the company to clean up the lake.

"Before the Europeans got here, we had a very healthy lifestyle," Heath said.

"All the water was clean and drinkable … With the loss of land, pollution of water, and loss of access to water, health has been impacted negatively."

Another problem is salt mining.

"Only one body of water flows through the territory, Onondaga Creek, and this creek is now severely polluted as a result of salt mining upstream," Heath says. "The salt mining was done over a century, and so recklessly that it severely damaged the hydrogeology in the valley."

Heath says elder members of the Onondaga community can remember clear waters that supported trout fishing.

"Now you can't see two inches into the water, it looks like yesterday's coffee," he says.

The Onondaga Nation is now waiting to see whether IACHR will hear the case.

This normally takes several years, however. And even if the court hears the case, it has no formal enforcement mechanisms, but can only make recommendations to the United States.

"We understand that the U.S. does not adhere to the OAS," Onondaga leader Hill said. "But I don't know where we go. We've exhausted our avenues."

© Inter Press Service (2014) — All Rights ReservedOriginal source: Inter Press Service

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