The NewStandard ceased publishing on April 27, 2007.

Indian Nation Files Unique Claim to Protect Environment

by Catherine Komp

The Onondaga Nation is suing New York state, local governments, and corporations responsible for polluting their ancestral lands; but rather than cash or casino rights, plaintiffs are demanding ecological reparations.

Syracuse, New York; Mar. 18, 2005 – The Onondaga Indian Nation has filed a unique, historic land rights lawsuit seeking title to approximately 4,000 square miles of their aboriginal territory in Central New York. Stretching from the Canadian border to Pennsylvania, the area includes the cities of Syracuse, Cortland, Oswego, and Binghamton, constituting the largest amount of land cited in a tribal land rights case in New York’s history. But unlike typical land claims, the primary focus of the Onondagas’ suit is environmental protection and recovery.

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Filed in federal court last Friday, the lawsuit names New York State, the city of Syracuse, and Onondaga County. It also names several corporations charged with polluting the area, including Honeywell International, the current incarnation of some of the companies responsible for putting Onondaga Lake on the Environmental Protection Agency’s federal Superfund list of worse polluted spots in the country. Clark Concrete Company, Hansen Aggregates, and Trigen Syracuse Energy are also named in the suit.

Sid Hill, an Onondaga chief and tadadaho, or spiritual leader, said the lawsuit is intended to establish a negotiating foothold in order to "right injustices that happened" to the Onondaga people.

"The state of the world and the environment is in danger and that is why we filed this action," said Hill. "We’re hoping we could address some of the pollution and the degradation of the lands, and this is what we have to do to make people think about their daily lives, how they contribute and [that] they can stop contributing to pollution."

"It is the duty of the Nation’s leaders to work for a healing of this land, to protect it, and to pass it on to future generations." --Onondaga land claim

The land rights claim has two components. First, it asks the federal court to declare that New York illegally acquired Onondaga territory by failing to acquire federal approval, in violation of the US Constitution and the 1790 Federal Trade and Intercourse Act. The suit also seeks title to that land, though the Onondagas emphasize no property owners would be evicted.

The Onondaga Nation, which remains fully sovereign as it refuses federal and state funding aside from money owed through treaty obligations, is also not currently seeking monetary damages as part of the suit. If title is granted, however, the Nation says it would ask for payments from the state for use of the land.

Additionally, unlike many tribes, the Onondagas are also not seeking gaming rights. In fact, the tribal government is one of the relative few that staunchly opposes Indian-owned casinos.

Instead, the Nation is focusing on the environment and the dozens of Superfund sites that now litter its traditional territory, protection of their ancestral burial grounds, and a "healing between themselves and all others who live in the region."

The opening paragraph of the filing explains the Onondaga leadership’s motivations:

The [Onondaga] Nation and its people have a unique spiritual, cultural, and historic relationship with the land, which is embodied in Gayanashagowa, the Great Law of Peace. This relationship goes far beyond federal and state legal concepts of ownership, possession, or other legal rights. The people are one with the land and consider themselves stewards of it. It is the duty of the Nation’s leaders to work for a healing of this land, to protect it, and to pass it on to future generations. The Onondaga Nation brings this action on behalf of its people in the hope that it may hasten the process of reconciliation and bring lasting justice, peace, and respect among all who inhabit this area.

“The Onondaga people aren’t interested in money; they need land, they need waterfront; they need environmental healing, and they want to reach out to their neighbors to make everything better.” --Onondaga Nation counsel Joe Heath

The plaintiffs point out that they have lived on the lands outlined in the complaint for centuries, and have never sold or relinquished these lands or their collective rights as a sovereign nation.

Between 1788 and 1822, the New York governors attempted to buy large tracts of the Onondaga Nation territory on behalf of the state through multiple land deals negotiated with individual members of tribe. But the deals, according to the complaint, were not approved by the Onondaga Nation itself, nor by the United States Congress, and were therefore illegal and nonbinding.

In fact, the Onondaga leaders further note, New York State passed legislation in 1788 making it illegal to acquire tribal land without the approval of the state’s own legislature.

Robert Coulter, executive director of the Montana-based Indian Law Resource Center and lead counsel in the case, said the historical acquisitions of Onondaga land by New York State were all in violation of the US Constitution, the Trade and Intercourse Acts, and the Treaties of Fort Stanwix of 1784 and Canandaigua of 1794. "This is the same basis as the other claims that have been decided favorably," said Coulter, referring to successful land claims by other New York tribes. "We have studied the law and history very carefully, and we are quite sure that New York State never got title to any Onondaga land."

The Onondaga Nation now has a population of about 1,500 people, and its current territory is a small, 11 square-mile parcel of land located about five miles south of Syracuse. One of the tribe’s main environmental concerns is Onondaga Lake, which the US declared a federal Superfund site in 1994. The banks of lake hold important spiritual and historic significance to the Onondagas, where in approximately 1142, a man called the Peacemaker brought together regional warring tribes -- the Onondagas, Cayugas, Senecas, Oneidas, and Mohawks -- to create the Haudenosaunee Confederacy.

The lake has also served as an important natural resource for the Onondagas and other Central New York residents, providing fish, water, medicine, salt, and clean tributaries for centuries. However, it was severely polluted over the last 130 years by industrial salt production, soda ash, organic chemicals and chlorine. Swimming was banned in the lake in 1940, and by the 1950s pollution had reduced the fish population to 90 percent carp, less durable species having all but died off. In recent years, cleanup efforts have managed to somewhat improve water quality.

New York’s Department of Environmental Conservation (DEC) charged Honeywell International with paying for and providing a clean-up proposal, which was finally delivered last year. The fourteen phonebook-sized volumes were presented to the public for feedback, and a final report is scheduled for release this spring.

But the Onondaga leadership says the dredging and capping proposal is a "band-aid fix," a "cover-up instead of a clean-up," that does not adequately address the extent of the pollution. Chief Irving Powless Jr., said the Nation has provided environmental experts and engineers to work with local, state, and federal officials on a more comprehensive clean-up plan. But they have been routinely ignored, Powless said, despite the federal Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA),* which requires sovereign nations to be afforded the same treatment as states in remediation of Superfund sites.

"The EPA says, ‘DEC, you have to consult with the Onondaga Nation on what you’re doing with the lake,’" explained Powless. "So, the DEC showed up and presented us with a 22-page Power Point presentation that they had already completed. I said that’s not consulting us. That’s telling us what you’re going to do."

Onondaga Nation counsel Joe Heath said the EPA has previously urged the DEC to consult the tribe. But he asserts that the state routinely ignores federal law and never acknowledged the Onondgas’ notice of the CERCLA violation filed last December.

"Every time we had to go out to fight to preserve a former village site; every time we encountered ancestral graves with potential to be disturbed; every time we studied environmental actions, we tried to work on all of this," said Heath. "We’ve been to hearings, we’ve written to DEC, we’ve tried to work with EPA, and we’ve tried to resolve this diplomatically, and it hasn’t worked."

But Heath also emphasizes that in his 30 years as a lawyer, he has never seen a lawsuit with the type of vision expressed in the Onondaga land claim, including the lengths the plaintiffs have gone to remain transparent and avoid the hostile community backlash often experienced by other tribes that have filed land rights lawsuits.

"It’s about the environment, and making it a better place to live," said Heath. "The Onondaga people aren’t interested in money; they need land, they need waterfront; they need environmental healing, and they want to reach out to their neighbors to make everything better."

Heath anticipates it could take several years for the court to issue a decision. Meanwhile, a spokesperson at Governor George Pataki’s office told the New York Times that they will "take whatever steps may be necessary to protect the interests of property owners and taxpayers."

While the Onondaga chiefs and clan mothers say they are relieved that their land rights case is finally in the courts, they also express frustration and some anger, and realize the resolution process could be lengthy.

Chief Powless remembers a time when people were able to catch fish and gather edibles in the creek running through their territory. He has worked for decades trying to obtain environmental clean-up for Central New York, meeting with United Nations officials and even President Ford in 1976.

"One of the natural laws is that you only hunt when it is necessary; you only take what you need," explained Powless in an interview at the Onondagas’ community house just weeks before the lawsuit was filed. "The violation of natural laws is not a law you can scoot around and appeal, because if you pollute the water so you can’t drink it, you’re headed for extinction."

CORRECTION: When initially posted, the first reference to CERCLA was incorrect. In the acronym, the second "C" was missing, and in the full title, the word "Comprehensive" was accidentally omitted. We regret any confusion this may have caused. The mistake was made by the editors.

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The NewStandard ceased publishing on April 27, 2007.

Catherine Komp is a contributing journalist.

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