Seneca Indian Law Suit Information Page, Grand Island NY @ IsledeGrande.Com

Seneca Indian Law Suit Information Page
A U.S.Justice Department Release and a Series of Publications

Peter McMahon
Supervisor Town of Grand Island
2255 Baseline Road
Grand Island, NY 14072-1710

Dear Mr. McMahon:

Thank you for your letter in which you request that the Department of Justice withdraw its claims against private landowners.

At the outset, we agree that private landowners should not bear any potential liability in the Indian land claims in New York State. The private landowners purchased their land in good faith from New York or from earlier good faith purchasers and therefore should not be subject to Liability or bear any burden in defending these claims. We believe the same policy applies to governmental entities other than the State, such as counties, cities and towns.

On August 3,2001, the United States submitted papers in the Grand Isle land claim that ask the Court for leave to file an amended complaint that clarifies that the United States does not seek any remedy against the private landowners or any party other than New York State. Instead, the United States' amended complaint seeks relief only from New York State, as the party that initially violated the Non-Intercourse Act and put into motion the events giving rise to the Indian land claims in New York State today.

At the same time, the United States believes it is important to continue to participate in the land claim against New York State. If the United States were to withdraw its claims against New York State, the action by the tribes against the private landowners would continue. However, the State could seek dismissal by raising its sovereign immunity under the Eleventh amendment. This would leave only the private landowners as defendants in the land claim, and would place them in greater jeopardy of being held liable. Therefore, the United States believes that it is important to remain a party against New York State to ensure that the State, and not the private landowners, remains accountable for any remedy, and thereby provide the private landowners with a shield against potential liability in an action by the tribes.

Thank you for sharing your views with the Department.

Sincerely,
Lori Sharpe
Director and Advisor to the Attorney General

Residences Dropped From Land Lawsuit

Photo and Story By Mike Mehltretter

   Governor George E. Pataki announced in a news conference at 3:00 p.m. Friday, August 3, 2001 that the Justice Department has filed to drop the residences of Grand Island from the Seneca land-claim lawsuit. The Governor, who made some very poignant remarks during the news conference, stated that the "US Department of Justice was absolutely wrong to try to hold libel." The Governor also stated that, "The residences were bought with good faith from the Government and that the Government created the problem 200 years ago." Furthermore, the Governor stated that "In the event any individual becomes a defendant, the state of New York will stand up and defend them."
   Supervisor Peter A. McMahon who also spoke during the conference, thanked the Governor for helping the people of Grand Island and working closely on an almost day to day basis. The Supervisor, who accredited the swiftness to a bipartisan movement, also thanked council members Richard Crawford, Mary Cooke, and Michael Heftka, County Legislator Charles Swanick, County Attorney Fred Wolf, and Erie County Executive Joel A. Giambra among others.
   Governor Pataki, who answered questions from the media, called upon the Assembly to pass the Casino Bill, saying, "The Assembly should come back and finish the job."

Lawyers For Defendant Class of Landowner in the Seneca Land Claim Speak Out

The following is an open letter to property owners on Grand Island from Anthony M. Feehery and Gus P. Coldebella of the law firm of Goodwin, Proctor LLP, representing the defendant class of landowners in the Seneca Land Claim case.
February 21, 2001
    To the Private Landowners on Grand Island and the other islands in the Strait of Niagara:
   Our law firm, Goodwin Procter LLP, represents the defendant class of private landowners in the Seneca Indian Land Claim, currently pending before Judge Richard Arcara in federal district court in Buffalo. In that lawsuit, the plaintiffs Seneca Nation of Indians, Tonawanda Band of Seneca Indians, and the United States of America have filed complaints seeking, among other things, an award to the plaintiff Indian tribes of Grand Island and all the other islands (within the United States) in the Strait of Niagara. We write to clear up any confusion concerning recent statements made by the United States, and reported in the local press, regarding whether the United States will seek to eject the private landowners or seek money damages from them.
   First, a brief update on the present state of the litigation. The past 12 months have seen a great deal of activity. On behalf of the landowners, and together with the State of New York and Erie County, we filed over 250 pages of summary judgment briefs; submitted scores of exhibits; and presented argument in three day-long hearings. Our summary judgment motion requests that the Court enter judgment in favor of all the defendants. The motions are presently before the court.
   Recently, the United States Department of Justice sent the parties in the litigation a letter stating that it is now "the policy of the United States not to seek relief from private landowners in the cases involving the New York land claims." We are concerned that this statement, and some media coverage of it, may have misled some of the private landowners. At first blush, this statement appears to suggests that the private landowners are no longer defendants in the litigation. Indeed, a number of recent news articles expressed just that view. Notwithstanding the United States's letter, however, the private landowners are still defendants in the Seneca Indian Land Claim. The Seneca Nation and Tonawanda Band have maintained, and every indication is that they will not voluntarily dismiss, their claims for ejectment and money damages against the private landowners. In other words, simply because the United States has decided to dismiss the landowners from the case, does not mean that the Senecas and the Tonawandas will not continue to pursue the private landowners for ejectment and money damages. Moreover, even though it stated its position in a letter, the United States has not submitted a Motion to Dismiss to the court; so the private landowners are still defendants in the United States's action as well. There is no indication of when the United States will file such a motion, though Judge Arcara invited the United States to do so during last week's hearing.
   In addition to the arguments about the Treaty of Canandaigua of 1794 and other arguments that make up the defendants' motion for summary judgment, we also argued that the private landowners should be dismissed from the case for additional reasons-because they are innocent of any wrongdoing, because the United States, which now supports the Indians' claims, has encouraged landowners to settle on the islands in the Niagara for nearly two centuries, and because removing innocent landowners from their land, or demanding money from them, would be an unfair, unjust and unworkable remedy. Our argument gained significant support from a recent decision in a different New York land claim case, the Oneida Indian Land Claim, in which another federal court denied the Oneida Indians's attempt to bring suit against a class of defendant landowners. The United States's recent statement acknowledges the Oneida decision and underscores the strength of the private landowners's motion.
   In sum, the new "policy" of the United States is a welcome change. However, it has no effect on the position of the Indian tribes, which is not to dismiss the private landowners as defendants in the lawsuit, and it does not by itself insulate the landowners from potential liability and ejectment. We remain hopeful that the court will agree with us that the landowners should not be a part of this lawsuit, that the lawsuit in its entirety should be dismissed, and that our present motions should be granted.

Very truly yours,

Anthony M. Feeherry
Gus P. Coldebella
Goodwin Procter LLP
Exchange Place
Boston, MA 02109
T: (617) 570-1780
F: (617) 523-1231

Tonawanda Seneca Nation Responds To
Island Board Of Supervisors Press Conference
   PRESS RELEASE Monday, Jan. 22-Tuesday, Jan 23, 2001
   "Tonawanda Seneca Nation maintains its desire and readiness for a constructive and peaceful settlement of this land claim, rather than continued litigation. Regretfully, the State appears to prefer vexatious and costly litigation to settlement talks that would benefit all parties involved.
   "The private landowners presently occupying much of the land in question in this land claim suit have been legitimate and necessary participants in the litigation of this claim since 1993. This will not be changed by the new United States position on what remedies are appropriate against the private landowners. Because they are parties in this case, the private landowners have a right to full participation in litigation and settlement talks.
   "If we work together in good faith and with a mind toward future generations, we believe it is entirely possible to resolve the long-standing dispute about Seneca land rights and to chart a better future for all of us, Indian and non-Indian alike."

Senecas Keep Landowners In Suit
   In spite of the US Department of Justice (DOJ) letter and the Monday, January 22 pronouncements in Grand Island Town Hall from US Senator Charles Schumer and other local politicians (see last week's E-News) "nothing's really changed" according to Federal Court Judge Richard J. Arcara. The DOJ letter and press conference caught Arcara and the Senecas off guard. They both found out about the DOJ action in the local media.
   Oral arguments concluded in the Seneca suit at the US Courthouse building, downtown Buffalo Tuesday, January 2. Judge Arcara seemed frustrated that in spite of last Monday's pronouncements, individual landowners are still part of the Seneca land claim lawsuit.
   The announcement was "a matter of policy" explained DOJ Attorney S. Craig Alexander. The DOJ didn't file a motion Tuesday to relieve property owners from the suit. Alexander said they would do so in the future, saying that based on recent court decisions "as a matter of law, landowners should have to pay no compensation nor face ejectment."
   Tonawanda-Seneca Nation Lawyer Arlinda Locklear disagreed with the DOJ's policy claiming they have "no desire to eject homeowners," but they are holding on to "all remedies entitled" to them until (and if) the trial reaches the "damages" stage.
   Individual landowners are "innocent purchasers" who "did not exist" when the treaties took place "200 years ago," said Gus P. Coldebella, lawyer for the landowners of Grand Island. Coldebella filed a motion that Arcara make a summary judgment excluding landowners from the suit based on Judge McCurn's September 2000 decision in the Oneida land case. McCurn decided that homeowners could not be included in that case due to the "Impossibility Doctrine," which states that the ejection of 20,000 residents would be practically impossible due to the logistics of the problem.
   Arcara seemed willing to grant the motion and invited the Senecas' lawyers to drop landowners from the suit. "What's the difference" between the Grand Island case and the Oneida case? "Why wait...we could decide it right now... There has to be some finality..." there has been "seven years of litigation," the costs are "astronomical...Do the Senecas really want to kick the homeowners out of their homes on Grand Island? "Arcara asked.
   The Senecas' lawyers replied that the Oneida case was different to their case because McCurn's decision was based on "bad faith" as well as "impossibility." They also felt that McCurn could be overturned on appeal, and that even if it is not technically feasible to remove all the residents it is still "theoretically possible."
   Arcara is still considering both sides of this issue.
   Many other issues were brought up during Tuesday's arguments. The case has been going on for more than seven years now and eight different parties are involved. The plaintiffs include: the United States Department of Justice, Seneca Nation of Indians, and Tonawanda-Seneca Nation of Indians; defendants include New York State, the New York State Thruway Authority, Erie County, Town of Grand Island, and Grand Island property Owners(as a class in the class-action suit). Each party has slightly different viewpoints and objectives. These parties have submitted a mountain of briefs, with evidence from 300 years worth of treaties, maps, newspaper articles, dictionary definitions, and case law.
   The case is extremely complicated. A great deal of time was devoted Tuesday to the definition of "along the shore" in an 18 century treaty. The plaintiffs contended that due to English Common Law (in effect at the time) it meant to the middle of the river, including Grand Island. The defendants felt that it meant to the water's edge, due to the fact that the Niagara is a "navigable highway" and could not be possessed. Both sides used case law to support their arguements.
   Arcara has been especially critical of the DOJ's position due to the fact that they took directly opposing positions during the 1970's. He repeatedly asked Alexander how he can justify siding with the tribes today, when the DOJ took the position in the 70's that: "The treaties of cession 1764 to the prior sovereign, Great Britain, are conclusive evidencing an intent of the Seneca to abandon and relinquish any actual exclusive use and occupancy of the Niagara River strip after 1764...We find that the Seneca have no compensable interest."
   Alexander took the position that it is possible for the government to take different sides of an issue at different times, as it did with its position on slavery.
   Oral arguments in the case concluded after 5 p.m. on Tuesday. Arcara complimented each party's legal team saying they were "extremely able council." He offered them "one more bite at the apple," a ten page brief with no footnotes or rebuttal, covering any issues the parties feel havn't been addressed. The final brief will be due on March 2, 2001. If the case is not settled out of court, Arcara will rule on it based on all the evidence before him without benefit of a jury. His decision will likely be appealed regardless who wins.

CORRECTION    In last week's E-news this reporter stated "Grand Island residents no longer need to fear for their property due to the Seneca Nation Lawsuit." That was incorrect. It should have read Grand Island residents no longer need to fear for their property due to the actions of the US Department of Justice in the Seneca Nations Lawsuit.
   I also implied that Special Council Michael Powers said the Seneca could not sue landowners due to the 11th Amendment of the Constitution. The Seneca may not sue the state due to the 11th amendment.
   I apologize for any confusion due to these errors.

Landowners Freed From Seneca Suit

By William O'Connor
United States Senator Charles Schumer is shown with
Supervisor Peter A. McMahon at Monday's press conference in town hall.

   Grand Island residents no longer need to fear for their property due to the Seneca Nation Lawsuit. United States Senator Charles Schumer, Erie County Legislator Chuck Swanick, Deputy County Executive Carl Calabrese, Grand Island Supervisor Peter A. McMahon, Council Members Dick Crawford, Mike Heftka, Kevin Rustowicz, and several other lawyers and public servants gathered Monday (Jan. 22, 2001) at the Grand Island Town Hall to announce that the United States Department of Justice (DOJ) dropped the suit against Grand Island Landowners. A DOJ letter last Friday, January 19 said that: "...it is the policy of the United States not to seek any relief from private landowners in its cases involving the New York Land claims. Also, as a consequence of this review, we have decided to file motionswith the court at the appropriate time to hold that New York State is liable for any and all remedies awarded by the court and that the United States does not need the private landowners in its suit..."
   Federal Judge Richard J. Arcara must approve the DOJ motion, but according to Swanick that is extremely likely. "Judicially it's not a big deal," he said. The motion means that the Seneca Nation will also drop any claim against Grand Island landowners according to Grand Island Special Council Attorney Michael B. Powers from Phillips, Lytle, Hitchcock, Blaine, & Huber. Powers said that the Seneca could not pursue the case against landowners without the DOJ due to the 11th amendment of the Constitution.
   The decision is a response to a October 6, 2000 letter from Supervisor McMahon which states, "it is unconscionable that the United States maintains it claims and seeks relief in both monetary damages and ejectment...against innocent landowners. ...United States Judge Neil McCurn's September 25, 2000 decision in the Oneida Nation matter pending in the Northern district of New York casts significant doubt on the viability of such claims."
   The January 19 DOJ letter referred to two Central New York Lawsuits (similar to the Grand Island case) the Cayuga and Oneida land claims. It was their conclusion that "landowners are not necessary in the suit for full relief to be obtained from the state."
   Calabrese said the decision was the result of a "great partnership" between "city state and town."
   "After years of living with the threat of these intrusive law suits hanging over their heads, New York landowners can finally let out a sigh of relief " Schumer said.
   The Seneca and DOJ contend that landowners were never the intended target of the suit. Including landowners in the suit was a legal strategy used because a state must "consent" to be sued by a tribe due to "soverign immunity." "The Counties and the landowners, however, have no sovereign immunity from suit in federal court... Since the early 1990's, the United States has tried hard to arrive at a settlement that provides the affected tribes with a fair result while leaving private landowners fully protected" according to the DOJ.
   Oral arguments in the land clam will continue Tuesday, January 30, 9:00 a.m. in the US Courthouse Building, downtown Buffalo.

Feds Move To Drop Ejectment In Seneca Land Claim

Jan. 22, 2001 press release from Peter A. McMahon,
             Supervisor Town of Grand Island

   "It's been a long and difficult struggle but this is a big victory for the residents of Grand Island. Our efforts in Washington, DC have finally paid off. This is great news for the citizens of the Town of Grand Island."

   The new Justice Department decision was announced in a letter dated January 19, 2001 and addressed to Grand Island Town Supervisor Peter McMahon. The letter from Asst. Attorney General Lois J. Schiffer says, "It is the policy of the United States not to seek any relief from private landowners in its cases involving the New York Land Claims." The letter goes on to say, "We have decided to file motions with the court at the appropriate time to hold that New York State is liable for any and all remedies awarded by the court and that the United States does not need the private landowners in its suit."

   "We have always held the position that the Federal government should separate the land from the lawsuit," said Supervisor McMahon. Once the Federal government's motions have been filed and accepted by the court, the ownership of this land will no longer be part of the lawsuit, he said.

FOR IMMEDIATE RELEASE ENR FRIDAY, MARCH 20, 1998 (202)514-2008 JUSTICE DEPARTMENT MOVES TO RESOLVE INDIAN LAND DISPUTE INVOLVING GRAND ISLAND, NEW YORK WASHINGTON, D.C. -- The Justice Department today intervened in an existing federal lawsuit brought by the Seneca Nation and the Tonawanda Band of Senecas over Indian land, including Grand Island, in Allegheny County, New York. The lawsuit alleges that in the nineteenth century, New York State illegally obtained land that belongs to the Seneca Nation. "The Seneca Nation has an historical and federally protected interest in this land," said Lois Schiffer, Assistant Attorney General in charge of the Justice Department's Environment Division. "New York State violated federal law when it purchased the land without Congressional approval in the early nineteenth century. It is time to right this wrong." According to the Department's papers filed today in U.S. District Court in Buffalo, New York State tried to buy land from the Senecas in 1815, without the consent of the United States Congress. A 1790 federal statute prohibits the purchase of land from Indian tribes without Congressional consent. The federal government's intervention will prevent the state from successfully arguing that it should be dismissed from the cases due to a June 1997 U.S. Supreme Court ruling which held that Indian tribes may not bring land claims against state officials. However, this ruling does not apply to the federal government, which may sue states in federal court. Federal intervention will ensure that the court can hear the merits of the case, and that the state, which improperly purchased the land, remains accountable for its action. The Senecas' suit, originally filed in 1993 in U.S. District Court in Buffalo, involves a claim for approximately 18 Niagara River islands totaling approximately 18,000 acres, of which Grand Island is by far the largest. The United States is not joining in another claim in the Senecas' suit, in which the Seneca Nation asserts that a 300 acre easement for Interstate 90 across the Cattaraugus Reservation near Buffalo is not valid because it was not approved by Congress. Interior Secretary Bruce Babbitt said, "Although we are intervening and are willing to litigate the case, we are also willing to engage in serious settlement discussions with the state and the Senecas." Similar Indian land claims in other states have been resolved through negotiation. In those claims, the tribes, the state, and the federal government have reached agreements that have compensated tribes and eliminated questions about the land title of present-day owners. In some of these settlements, tribes bought land from willing sellers to create or expand a reservation. The U.S. Supreme Court has ruled that no time limitation applies to this type of Indian land claim. This is a U.S. Justice Department Release

These articles are publications regarding the Seneca Law Suit:

"SENECA NATION FILING LAWSUIT LAYING CLAIM TO GRAND ISLAND"
(Leader Says Land Was Illegally Sold)
By Agnes Palazzetti, News staff reporter
The Buffalo News -- 25 August 1993

Citing a 200-year-old treaty and the promise of George Washington, the Seneca Nation of Indians says it is the rightful owner of Grand Island [an island in the Niagara River, and town in Erie Co., NY]. The Senecas will begin legal action today to reclaim all 18,660 acres of the island and evict its more than 6,000 property owners. They also will seek the return of about 300 acres of land on the Cattaraugus Reservation now being used by the New York State Thruway.

The Senecas claim that Grand Island was illegally sold to New York State in 1815 and that the Thruway property on the Cattaraugus Reservation was improperly obtained by the state in 1954. "The land transfers were not done properly because the transactions were never ratified by the federal government," said Barry Snyder, president of the Seneca Nation. He cited the Trade and Intercourse Act of 1790 and a promise that President Washington made after the treaty was signed. "When you may find it for your interest to sell any part of your lands, the United States must be present, by their agent, and will be your security that you shall not be defrauded in the bargain you may make," Washington said in a speech to the Senecas a few months after the 1790 act was adopted.

Snyder said that the Senecas' suit being filed today in U.S. District Court here is similar to a successful action that the Oneida Indian Nation began in 1964 involving thousands of acres in central New York. Four hundred acres of that land claim is now the site of the Oneida's high-stakes gambling casino. Although the Indian lawsuits typically ask for the return of land, almost all successful claims have resulted in large monetary settlements. Seldom have large tracts of property actually been returned to Indians or have non-Indians been evicted.

Named as defendants in the suit are New York State, the New York Thruway Authority, Erie County and the six major Grand Island property owners - Moore Business Forms Corp., Inducom Inc., Rad-O-Mart Inc., Ilona H. Lang, Robert W. Weaver and Francis B. Pritchard. The assessed valuation of the three corporations is more than $18 million, according to the Seneca's attorney, Joseph F. Crangle. The transfer of Grand Island dates from early in the last century. New York State acquired Grand Island in 1815 for $1,000 and a perpetual $500 annual payment to the Senecas. Twenty-five years earlier, however, the federal government had approved the Trade and Intercourse Act of 1790, which created a special relationship between the federal government and the Indians with respect to the disposition of their lands, Snyder said. "To protect the Indians, the act demanded that there could be no sale or conveyance of Indian lands without the consent of the federal government," Snyder said. "That relationship still exists today."

Snyder also referred to the speech Washington made to the Senecas a few months after the 1790 act was adopted. "The general government will never consent to your being defrauded but will protect you in all your just rights," Snyder quoted Washington as saying [so much for one man's words! ;-) ]. Snyder also said the Indians were given further protection a short time later when Congress declared that no sale of lands made by any Indians to any person or persons, or even to any state, shall be valid without the consent of Congress.

The Seneca Nation previously has been given federal protection in a land transaction with the white governments, Snyder said. In 1784, a New York State court held that leases between the Seneca Nation and white settlers on the Allegheny Reservation were invalid because they had not been approved by Congress. Congress ratified the leases with special acts in 1875 and 1890, and most recently in 1990 with the Salamanca Land Settlement Act. The 1990 law also gave the Seneca Nation $65 million from the state and federal governments to compensate for the minimal lease payments it had been receiving from Salamanca residents for 100 years. Snyder said the Seneca government "was obligated to bring suit on behalf of our Nation. To do otherwise would be an abdication of our constitutional responsibilities." Crangle said he did not anticipate any further land claims by the Senecas, although he did have on caution. "The Nation is continuing its review of all easements and rights of way that have been given to utility companies, the railroads and other non-Senecas on both the Cattaraugus and Allegheny reservations," he said.

"Feds Rule in favor of Senecas"
Case to proceed to trial

By Deanne Bartha

(Article in Island Dispatch August 14, 1998 Vol. 58,No. 19)

The case between the Seneca Nation of Indians vs. defendants regarding the Town of Grand Island came to a head Thursday morning after the federal government officially ruled to recommend dismissal of the defendants' filed motions. Announced by Carol E. Heckman, United States Magistrate Judge at the Federal courthouse in downtown Buffalo, the move prompted immediate response from local government officials who continue to speak out in defense of Grand Island property owners.

Supervisor Peter McMahon said the ruling was "the expected result of the federal government's intervention in the Seneca Nation land claim. Fundamentally, the ruling means the case can go to trial."

"This ruling 'does not change the facts in this case," McMahon said. "It does mean that the uncertainty felt by our property owners and the negative economic impact, which are caused by this land claim will continue for another two or three years."

McMahon met with Judge Heckman following the release of her ruling. She told him that "if the US Government had not been there, the case would probably have been dismissed."

"It is unfortunate that the federal government has chosen to ignore the rights of our residents," McMahon said. "It is important to remember that in the entire history of Indian land claims no property owner has ever involuntarily lost property."

McMahon has instructed the Town Attorney to research the law governing Indian land claims and look for legal options which might "result in either the dismissal of Island property owners as defendants and/or which would limit any award from the lawsuit to monetary damages." By doing so, McMahon believes that uncertainty provoked by the case would end.

Assembly member Sam Hloyt was with McMahon for the press conference and expressed disappointment in the ruling. He criticized Attorney General Janet Reno for her actions this year that allowed the federal government to intervene on behalf of the Seneca Nation of Indians. "Today's decision by Magistrate Heckman is deeply disappointing," Hoyt said. "However, while this decision legally allows the United - States Government to intervene against New York State and Grand Island, it still does not justify that intervention. As I said last spring, the Attorney General's office has no legal obligation to get involved in this matter."

Hoyt pointed out that although the intervention may be legal, it isn't necessarily "right."

"Today's ruling will further prolong the life of a legal case that many have called baseless," Hoyt insisted. "For or five years, Grand Island residents have had to live with this claim. Today, their confusion and their fears will grow unnecessarily and Janet Reno is to blame." Hoyt emphasized that although this may be a setback for Islanders, it is not the end just one battle in the "war."

Erie County Legislator Charles M. Swanick downplayed the decision. The recommendation, he noted, was "limited to procedural issues and does not make a determination as to the validity of the Seneca Nation's claim." He believes it is one step toward "resolving the issue in the courts the courts the next several months."

"The Magistrate simply decided that the United States government has the right to intervene on the Seneca Nation's behalf; it does not make any factual determination as to their right to claim title to the Land," Swanick said. "Without the United States government as a party to thc proceedings, it would appear that New York State and the other parties would have been immune from a suit such as this on Constitutional grounds."

Swanick noted that this is only a recommendation from the Federal Magistrate that must be accepted by the federal court prior to making a decision as to the Senecas' lawsuit. Even if the court does accept the Magistrate's ruling he remains confident that the Senecas will not be successful. "Today's recommendation is only one step in a long process; I still believe that the Senecas' lawsuit will be unsuccessful," Swanick said. "I look forward to working with all of the named defendants that are fighting the Senecas' lawsuit to ensure that the residents and taxpayers of the Town of Grand Island have their land rights protected." Defendants named in the suit are:

State of New York, George E. Pataki, Bernadette Castro, Dr. Ronald W. Coan, John Cahill, Joseph Boardman, John R. Platt, The New York State Thruway Authority, Erie County, Moore Business Forms Corp., Inducom, Inc., Rad-0-Mat Holdings U.S. Inc., Ilona H. Lang, Robert W. Weaver, and Francis B. Pritchard:

A pretrial conference is set for 3 p.m. Tuesday, Oct. 18 to schedule further proceedings.

Daybreak Magazine: "Seneca Nation Land Claim: Grand Island"

mohawk@ubvms.cc.buffalo.edu
Tue, 8 Aug 1995 14:24:07 -0400

SENECA NATION LAND CLAIM: GRAND ISLAND

A DAYBREAK REPORT
by John Mohawk

This is a land claim filed by the Seneca Nation in August of 1993. The claim is for approximately 18,600 acres involving islands in the Niagara River. The largest of these islands is Grand Island which is over 17,000 acres. Grand Island is the heart of the claim.

The Seneca argument is essentially that the land belonged to the Seneca Nation, which was part of the Iroquois Confederacy and they never sold it or gave it away to either the French or the British. The State of New York acquired the land in 1815 from the Seneca Nation in an agreement which was made in violation of federal law. The federal law in 1815 required that all transactions involving land between Indians and anyone else, including state governments, must be approved and authorized by Congress.

No one in this case contests the Seneca argument that the transactions were not approved. There is no evidence that Congress approved this transaction. The transaction therefore violates the Trade and Intercourse Act which provides that when land is acquired without the approval of Congress, any of the titles that were transferred are void.

The theory of the case is that the Seneca continued to own the land after 1815 and are entitled to trespass damages for the illegal use and occupancy of the land by the State of New York, by Erie County, and by non-Indians from 1815 to the present.

The defendants are the State of New York, Erie County and all of the private landowners (numbering more than 2,000, including a number of corporate defendants,) in the claim area. The case is being handled in the Federal Court for the Western District of New York, Judge Richard Arcara presiding. Judge Arcara has, with the consent of the parties, handed over some of the issues to a federal magistrate to be resolved.

The case is being handled as a class action lawsuit. What that means is that the entire group of defendants is represented by a number of representatives. The State of New York, Erie County, and Moore Business Forms have been designated by the courts as representatives of the class of defendants. The lawyer for Moore Business Forms is Allan van Gestel, a prominent attorney who has handled a number of Indian land claims for the defendants.

The class action character of the lawsuit will make the process more efficient. What it means is that the rulings in the case will legally bind all of the members of the class. In other words, they are all effectively parties to the action and whatever happens in this case will effect their interests. The first thing that was done in the case was to identify the class of defendants and to notify them of the pending action. This was all done in order to give them an opportunity to find their own attorneys.

The Tonawanda Band of Senecas, represented by the Indian Law Resource Center, intervened in the case in November 1993, three months after the suit was filed. That intervention was not opposed by any of the parties.

The remedies sought for trespass damages have no dollar figure attached. What is sought is the ejectment of the defendants and return of possession of the land to the Seneca. The question of how the two entities representing the Seneca Nation -- the Seneca Nation of Indians comprising the Cattaraugus and Allegheny Indian Reservations, and the Tonawanda Band of Seneca on the Tonawanda Indian Reservation -- have not been addressed at this stage and will be resolved later.

The attorneys for the defendants raised eleven defenses, which would have dismissed the case. Attorneys for the Seneca argued that these motions be stricken, that they had already been ruled on, and the Magistrate Judge recommended that this be done. The most important defense of the eleven involved an argument that enough time had passed that the matter of ownership of the islands had been settled and could not be revived. The Magistrate Judge recommended that this defense could not be used in this case, that the Seneca did not need to prove that they were prompt in asserting their claim, and that the case would continue on. The issue is now before the federal judge who will make the final decision.

Right now, both sides are in the discovery phase. Both sides are exchanging information. A status conference is scheduled for August. Discovery phase should end on December 29, 1995. Any motions to dismiss should be in by February 21. That phase of the case could be argued in May or June 1996. A decision might be reached in autumn, 1996 about whether the case has enough merit to go to trial. Unless the Court decides in the meantime to issue a summary judgment that the Seneca Nation still owns the land, we can expect it to take up to two years to go to trial.

The Seneca Nation has a strong legal case. No one can predict how the matter will turn out in the long run.

(This article was adapted from an interview with former Indian Law Resource Center attorney Curtis Berkey.)

DAYBREAK MAGAZINE
BOX 315
WILLIAMSVILLE, NY 14231-0315
e-mail mohawk@ubvms.cc.buffalo.edu

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