The Sherrill Case “Does Not” Apply to the Mohawk Nation

by Doug George-Kanentiio
News From Indian Country
After reviewing the statements issued by the St. Regis Tribal Council in support of extinguishing forever all Mohawk claims to our aboriginal territory it is obvious none of the lawyers for the Tribe, the Mohawk Council of Akwesasne or the Mohawk Nation Council have read, studied or creatively analyzed the dreaded 2005 City of Sherrill v. Oneida Indian Nation of New York case and its limitations.

A careful reading would reveal that the Court made numerous factual errors in its conclusions beginning with the repetition of the myth that the Oneida Nation once held sovereignty over 6,000,000 acres of what is now New York State.  This is blatantly false. At its peak the Oneidas possessed a stretch of land between the St. Lawrence and Susquehanna rivers and from the West Canada Creek to the east and Chittenango Creek to the west for a total of 3.7 million acres or 5,800 square miles. Within that area the Oneidas had communities at Oswegatchie, Black Lake, Oriskany, Otsego and Oneida Castle among other places. Anything additional would be considered intrusions on the lands of the Onondaga and Mohawk nations.

The second major mistake is that the current Oneida Indian Nation is a continuance of the Oneida Nation as it was in 1794 and into the first decades of the 19th century.  It is not. The current regime was fabricated in 1992 and bears no resemblance in structure or governance to the Oneida Nation of the past.  It does not adhere to the Great Law, has no condoled chiefs, faithkeepers or clanmothers.

This regime deliberately and demonstrably separated from the Haudenosaunee in 1993 and has acted in a manner hostile to the other Iroquois nations. In addition, the Oneida Indian Nation does not meet the basic standards for US federal recognition (25 CFR § 83) as it fails in categories 83.7 (a) (b) and (C) in that it is neither an ancestral administration, one which has governed since 1990 nor has in any way held political influence since “historic times” (which may also said to be true of the St. Regis Tribe).

The third error is that the Oneida Indian Nation has standing before the US courts to bring suit. It fails in this category since it does not represent the traditional Oneidas and has vigorously opposed the intervention of the Oneidas from Wisconsin and Ontario. The latter two are critical elements in the claims process and for the US Supreme Court to exclude them is contrary to its previous rulings and leaves them without remedy and denies them their day in court.

Another mistake made by the justices is to somehow cite the 1794 Canandaigua Treaty as having bearing on the Sherrill case. It does not since the Oneida Indian Nation is excluded from its provisions given that the OIN is in no way associated with the Haudenosaunee (Six Nations Iroquois) nor was it a party to the signing of that treaty nor can it claim to be a natural inheritor of those who did. So how can the Court qualify the treaty claims of the Oneidas using the OIN as its representative agency?  

This error is compounded by citing the fraudulent 1838 Buffalo Creek Treaty, a document so blatantly corrupt and controversial it led to the Senecas of Cattaraugus and Allegany forming their own government separate from the Confederacy with major revisions in the second Buffalo Creek treaty in 1842.

The 1838 “treaty” was also designed to remove the Mohawks to Kansas yet that never happened. To cite this most terrible of documents as cause for a denial of the land claims is yet one more historical lie placed upon another. That the Oneida Nation was involved in anyway in 1838 is not credible given that the Nation was scattered and its council fire wampum held by the Grand Council.

Further, the court used the laches defense to reject the Oneida Indian Nation claims. It ruled that those lands under question may have been stolen by New York State but too much time had passed and individual homeowners and businesses were at risk. The decision by the OIN to threaten the non-Native property owners was the major mistake made by its lawyers (without the knowledge or consent of the Oneida people). The essence of the Supreme Court ruling is the following:

“...long acquiescence may have controlling effect on the exercise of States’ dominion and sovereignty over territory. E.g., Ohio v. Kentucky, 410 U. S. 641, 651. This Court’s original-jurisdiction state-sovereignty cases do not dictate a result here, but they provide a helpful point of reference: When a party belatedly asserts a right to present and future sovereign control over territory, longstanding observances and settled expectations are prime considerations. It has been two centuries since the Oneidas last exercised regulatory control over the properties here or held them free from local taxation.

Parcel-by-parcel revival of their sovereign status, given the extraordinary passage of time, would dishonor “the historic wisdom in the value of repose.” Oneida II, 470 U. S., at 262. Finally, this Court has recognized the impracticability of returning to Indian control land that generations earlier passed into numerous private hands. See, e.g., Yankton Sioux Tribe v. United States, 272 U. S. 351, 357. The unilateral reestablishment of present and future Indian sovereign control, even over land purchased at the market price, would have disruptive practical consequences similar to those that led the Yankton Sioux Court to initiate the impossibility doctrine: Sherrill and the surrounding area are today overwhelmingly populated by non-Indians, and a checkerboard of state and tribal jurisdiction--created unilaterally at OIN’s behest--would “seriously burde[n] the administration of state and local governments” and would adversely affect landowners neighboring the tribal patches.”

But does it in any way effect the Mohawk claim?  It does not. The mistake made by the Mohawk lawyers is not making a clear distinction between our claims and the far weaker OIN action. When I was a negotiator we anticipated the above as a tactic to be used by New York State. Our response was to identify those lands which were not inhabited, were under current State administration and therefore would not cost the counties or New York any lost revenues. No one would be displaced, no business adversely affected. Since New York would lose nothing it could easily concede those lands. Anyone with a boat can tour Barnhart, Croil, Long Sault, Ogden or Galop islands and see that they are all free from permanent habitation and can be returned to Akwesasne, just as most of Brasher State Forest or any other State holding. Yet I am certain not one of the Mohawk lawyers has ever seen these lands and doubt none of the current Mohawk leadership has taken the time to truly see what is about to be ceded. Nothing in the Sherrill case precludes the Mohawk councils from attaching the islands or any other State property so long as it can be proven such claims do not in any way disrupt the security of  US taxpayers.

Nor does Sherrill qualify the Mohawk claim when we can prove a longstanding, sustained formal action to recover those stolen lands and prove that at no point did the Mohawk Nation cede by treaty or any other document any lands to New York or the US. Therefore, Sherrill has no bearing on us: but if we are foolish enough to hide beneath the Seven Nations of Canada or Joseph Brant “treaties” then Sherrill may apply. To its credit, the Mohawk Nation Council has repeatedly denied the validity of both “agreements”.

Returning land to us without condition is a practical resolution to prolonged court action. We did not wait two centuries to bring our claim nor have we surrendered our  jurisdictional rights at any time. The lands to be returned are not held by private hands: no checkerboard will happen here. There will be no disruptions to anyone and the exercise of Mohawk sovereignty can be demonstrated to have beneficial consequences to all parties.

Yet the Mohawk lawyers refuse to adopt a more aggressive strategy and counsel their clients to get the best of a very bad deal when there are many alternatives open to the Mohawk people.

But where to begin?

Start by firing every one of those timid lawyers (especially those who, even now, have not met with the Mohawk people) and begin to assert through direction action what is, by natural law and aboriginal right, ours.