Wampum

The following commentary is from the final section of Arlinda Locklear's 1988 legal overview of the Oneida land claims (part of chapter 9 from the Iroquois Land Claims book published in 1988).

(Final section)

THE PASSAGE OF TIME AND EQUITY

All the Oneida successes have left as a practical matter only one possible defense to the claims, i.e., the equitable doctrine of latches. In its Oneida II decision, the Supreme Court expressed doubt about the applicability of that defense, but did not decide the issue. As a result, the issue is still an open one.

The purpose of the doctrine of laches is to prevent the assertion of stale claims. Originally, the defense of laches was available only in courts of equity while the analogous statute of limitations defense was available only in courts of law. Now, there are no separate courts of equity and law. Both equitable and legal actions are heard by a single court. But equitable defenses such as laches are, as a rule, still applicable only to traditionally equitable actions. For that reason, the Supreme Court in Oneida II was doubtful that the defense was available at all.

Even were the defense available, it would not bar the Oneida claims. Unlike a statute of limitations defense, laches does not arise simply from the passage of time. The latches defense depends upon the relative equities of the parties. It bars claims where the plaintiff unreasonably delayed filing suit for an unduly long period of time, resulting in prejudice to the opposing party. This is not the case with the Oneida claims for a number of reasons.

First, the Oneidas have been diligent in the pursuit of their land. As soon as the Oneidas realized what was happening to them in the late eighteenth century, the Oneidas called upon the federal government for its oft-promised protection. The first recorded request was made by an Oneida leader during the negotiations that led to the 1794 Treaty of Canandaigua. The Oneidas were told that the matter would be investigated later. No such investigation took place.

Since that time, the Oneidas have persistently raised the issue. Throughout the nineteenth century, the Oneidas in both Wisconsin and New York raised the matter of their New York lands with their federal Indian agent to no avail. In fact, there is evidence that the Oneidas consulted a lawyer in 1874 on the claims, but nothing resulted from that meeting. Protests continued throughout the twentieth century. Numerous letters and petitions were sent to the federal government by individual and Oneida leaders. The Oneidas also formally requested the United States to sue on the claims as the Oneidas' trustee. With one exception, discussed below, the requests were also to no avail. Thus, Judge Port concluded in his 1977 Oneida decision that the Oneidas "never acquiesced in the loss of their land, but have continued to protest it diminishment up until today."

Second, the Oneidas' legal capacity to sue on the claims without the United States as co-plaintiff, and the federal court's jurisdiction over the claims, have been doubtful until recently. The United States as trustee for Indian tribes plainly has legal authority to sue to protect tribal property rights. Historically, the overwhelming majority on such suits were filed by the United States when circumstances convinced the United States that such a suit was appropriate or required. It was assumed that the United States' trustee obligations somehow diminished the tribes' right to sue on their property rights themselves. That assumption was first squarely rejected by the Supreme Court in 1968. It was also doubtful whether federal courts have jurisdiction over suits filed directly by tribes. That jurisdictional point was not finally resolved in the tribes' favor by the supreme Court until 1974 in the Oneida test case itself. In other words, the Oneidas diligently pursued their claims in court once that avenue became available to them.

Third, these cases come as no surprise to the State of New York or its citizens. The state, of course, has been aware of the claims since the transactions occurred. The governor was told plainly by the federal officials before the time of the first transaction and afterward that the state had no authority to deal in Oneida land. The State chose to ignore that advice and thus acted at its peril. In 1919 the state legislature appointed a commission to investigate the "Indian problem." That commission, known as the Everett Commission, reported back, among other things, that the Indian/state land transactions had been illegal. The legislature did not like its commission's report and suppressed publication of it. There can be no doubt that state officials have actual knowledge of the claims from the state's own records.

Earlier litigation should have brought home knowledge of the claims to private landowners (i.e., actual knowledge as opposed to constructive knowledge arising from county land records). In 1919, the federal government filed suit on a thirty-two-acre parcel of the Oneida claim onbehalf of the Oneidas. Based on its determination that the federal government had sole authority to dispose of Indian lands, the court ordered eviction of the non-Indians then in possession of the parcel. On appeal the decision was upheld. The Boylan decision is generally known in the community as the origin of the present-day thirty-two-acre reservation in Oneida. In a contest about leases of Seneca lands in 1942, the same court again affirmed the general principle that New York State had no authority over tribal land. Thus, the existence of outstanding Indian claims is or should be known by the current landowners.

The Oneida claims, then, are not a bit of history dusted off by a clever lawyer and sprung upon an innocent state and citizenry. The Oneida claims arise out of a blatant and knowing violation of the dominant society's own law for which the Oneidas have sought redress by every means available to them. The story of the claims is one of conscious neglect of a former ally by the United States. The story is one of fraud and overbearing by the state of New York. And the story is one of self-imposed ignorance of others' rights by the present landowners. The equities plainly weigh in favor of a remedy for the Oneidas.

One final word about responsibility for the Oneida claims. It is true that the original sin here was committed by the United States and the state of New York. It is also no doubt true that there are a number of innocent landowners in the claim area, i.e., individuals who acquired their land with no knowledge of the Oneida claim to it. But those facts alone do not end the inquiry respecting the ultimate responsibility. Whatever their knowledge of the claims before then, the landowners have certainly been aware of the Oneida claims since 1970 when the first suit was filed. Since that time, the landowners have done nothing to seek speedy and just resolution of the claims. Instead, they have as a point of principle denied the validity of the claims to be frivolous. Now that the landowners have failed in that effort, they loudly proclaim their innocence in the entire matter. The Oneidas, on the other hand, have since 1970 repeatedly expressed their preference for an out-of-court resolution of the claims. Has the landowners joined with the Oneidas sixteen years ago in seeking a just resolution, the claims would no doubt be resolved today. For that reason, the landowners share responsibility for the situation in which they find themselves today.

Now that the legal merit of the claims has been demonstrated to a large extent, perhaps enlightened self-interest will convince all parties to deal fairly with the Oneidas. The parties to the claims must cooperate if an amicable solution to the claims is to be found. If that does not happen, then all parties will bear responsibility for the failure. As the Oneidas have learned, it cannot be done by one party alone.