Upending Settled Expectations
"Why the Onondaga Land Case may decide the fate of humanity"
Long ago, in upstate New York near the present-day city of Syracuse, the retreat of glaciers over seismically active deep magma chambers carved Lake Onondaga, 4.6 miles long by 1 mile wide with an average depth of 35 feet. As people moved in to settle the lands in this now more favorable climate, the lake and its 8 major tributaries offered more than any might reasonably need. In addition to the fertile glacial drumlins and forest game, the lake held Atlantic salmon, sturgeon, brown trout, northern pike, large and small-mouth bass, walleye, carp, channel catfish, white perch, and more. By the late 19th century, fish from the lake were being harvested and served in restaurants across the state.
The still-active mudboils— dynamic ebb-and-flow features usually associated with Yellowstone Park— erupt and form cones, then return to silence after feeding their mineral-rich sediments to one side of the lake. Saline brine flows from deep underground to surface springs at other points, adding more minerals but the lake is dimictic, meaning the water completely changes from top to bottom and end to end four times each year as it discharges to Seneca River and ultimately to Lake Ontario.
When the people known as Gana’dagwëni:io’geh found and settled there, they were truly blessed. For many generations, they fought to defend this lake territory, and those battles were very costly to them. Then, a thousand years ago, the Great Peacemaker approached the Onondaga and the other warring tribes and got them to agree to create the Haudenosaunee, or Six Nations Confederacy, today among the oldest representative democracies still functioning.
The Six Nations owned and occupied by aboriginal rights and treaty most of New York State before the founding of the United States, according to a recent law review article. They were never conquered but in 1788 gave up some of their land claims in exchange for greater assurances they could keep those they held most sacred, including Lake Onondaga.
French explorers were first shown the salt springs in 1654. That brought British-American salt producers. When the newly created State of New York began taking land secured to the Haudenosaunee by the Treaty of Fort Stanwix, a delegation traveled to Philadelphia in 1790 to entreat President Washington.
Washington pointed to the recently enacted Trade and Intercourse Act as “the security for the remainder of your lands” and promised:
that [t]he general Government will never consent to your being defrauded—But it will protect you in all your just rights.
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If, however, you should have any just cause of complaint against [land speculators], and can make satisfactory proof thereof, the Federal Courts will be open to you for redress, as to all other persons.
After that, the story is all too familiar. Washington retired and died and took his promises with him. The Nation sued for their land but was thrown out of court.
Concerned about malaria, the white settlers rushing into Onondaga territory drained the swamps and wetlands at water’s edge. They erected the city of Syracuse, named for the Sicilian city where militaristic Sparta defeated philosophy-and-art-loving Athens in 413 BPE. The sewage of 450,000 people was dumped, largely untreated, into the lake for more than a century. Salt production gave way to soda ash, glass, chemicals, detergents and paper. Forest gave way to urban sprawl. From 1884 onward, about 20 tons of soda ash per day went directly into the lake. In 1920, the Solvay Process Company merged with four other chemical companies, forming Allied Chemical. In 1950 it began the production of chlorine by mercury extraction. Between 1946 and 1970, 165,000 pounds of mercury were discharged, sometimes 25 pounds per day. Federal and state governments banned fishing in 1970 and sued to stop the contamination, but the company just erected barrier lagoons, which leaked.
Other chemical manufacture contaminated lake sediments with polychlorinated biphenyls (PCBs), pesticides, creosotes, heavy metals (lead, cobalt, and mercury), polycyclic aromatic hydrocarbons (PAHs), chlorinated benzenes, and BTEX compounds (benzene, ethylbenzene, toluene, xylene).
No fewer than 90 sewer outflows have been issued state permits to discharge into the lake and tributaries. The high levels of ammonia and phosphorus due to sewage have favored excessive algae growth. Swimming has been prohibited for the past 82 years. By the end of the 20th century, few fish could be readily found, and women of childbearing age, infants, and children under the age of 15 are advised against eating any.
This year the Inter-American Commission on Human Rights agreed to hear the land rights claim of the Onondaga Nation. When, in 2013, the US Supreme Court dismissed the Onondaga case, the Nation’s General Counsel, Joe Heath, called it
...just another example of the shameful history of broken treaties, land thefts, forced removal and cultural genocide that is the foundation of New York’s and the United States’ treatment of the Indigenous peoples and nations. Essentially, the courts have ruled that none of these horrible, historic harms matter under US law, because ‘it is not fair to raise these problems at this time.’
The courts had agreed with Heath on nearly all the facts and the violations of law. The State of New York had brazenly broken federal laws when it acquired and resold Indian lands. The only divergence between the lawyer and those sitting in judgment arose when it came time actually to do something about the injustice.
Unlike other land claims, such as that of the Passamaquoddy and the Penobscot, or the Sioux demand for the Black Hills, the Onondaga did not seek to reclaim possession by dispossessing those living on lands that were stolen. They did not ask to take down Syracuse and reflood the swamps. The Nation asked only for a declaration that the territory was rightfully theirs—a redrawing of the borderlines between separate nations—and the right to resume responsible regulation within their borders, such as by levying taxes on alcohol and tobacco to raise funds to reclaim and restore Lake Onondaga and its tributaries.
The case is really about the lake. If environmental management of the watershed continues to be left to State and Federal agencies, the pattern of favoring industry über alles will continue, to the detriment of the tribe and all its relations.
Careful not to risk going too far, the Nation asked for a declaration of sovereign responsibilities, rather than possessory rights, and said the court could craft the order to prohibit dispossession of existing residents if it so chose.
The response from the United States ignored that nuance. The lower courts took judicial notice that “the subject land became populated and developed by non-Indians,” and that “there are non-Indians now living on the subject land,” but ruled that disturbance of “settled expectations” would be too great in returning ownership to the Onondaga.
In its petition for rehearing, the Nation argued that federal equity standards required that courts take into account the disruption and hardship experienced by the Indians as well as the whites—“being deprived of their traditional hunting, fishing, and gathering sites; losing access to important cultural, burial, and ceremonial sites; and having their sacred lands polluted and degraded.”
The rehearing was unsuccessful, as was the appeal to the US Supreme Court, but by virtue of federal refusals to adjudicate, the Onondaga gained jurisdiction to the international court. On April 14, 2014, the Onondaga Nation and the Haudenosaunee Confederacy filed a petition with the Inter-American Commission on Human Rights. That claim has now been accepted as within the Commission’s jurisdiction and a briefing schedule is progressing.
Climate activists like myself read something more ominous into the Supreme Court's rejection of the Onondaga claim. The federal courts never said the Haudenosaunee should not be allowed to protect their environment or have restitution for the illegal taking of land. They said the consequences of returning ownership and environmental management responsibility would disrupt “settled expectations.”
When you consider what is about to transpire within the lifetimes of those now living, there are many “settled expectations” about to be disrupted.
The “settled expectations” of the residents of Paradise California went up in smoke in 2018. The “settled expectations” of residents of Lismore Australia drowned under rooftop-high rain bombs twice within weeks in 2022. An estimated 15,000 lost their lives in the Paris Heat Wave of 2003. A similar number may have died of heat this year in India and Pakistan. During mid-January 2022, several countries of South America, including Argentina, certain parts of Brazil, Paraguay and Uruguay, experienced a record-shattering heatwave, with daily temperatures over 44 °C (111 °F).
And yet, their settled expectations—all of them—create an impediment—now a legally enshrined impediment—to taking the 11 percent prescription proposed by the thousands of scientists who wrote the most recent IPCC report. Those scientists recommended placing consumer culture on a glide path of annual reductions, moving into negative emissions territory by 2030, and continuing beyond zero until greenhouse gases were restored to something resembling pre-industrial concentrations (230 ppm CO2e) through the magic of carbon dioxide removal.
Theirs is the only survivable economic plan that contemplates a human future. It is severely disruptive to settled expectations but less than standing out in the sun waiting to be turned into stone.
References
Berkey, C., A. Page and L. Robertson, The Misuse of History in Dismissing Six Nations Confederacy Land Claims, 42 Am. Indian L. Rev. 291 (2018) https://digitalcommons.law.ou.edu/ailr/vol42/iss2/2
Cayuga Indian Nation v. Pataki, 413 F.3d 266 (2d Cir. 2005), cert. denied, 547 U.S. 1128 (2006) (reversing $248 million judgment on basis of City of Sherrill)
Oneida Indian Nation v. City of Oneida, 617 F.3d 114 (2d Cir. 2010), cert. denied, 565 U.S. 970 (2011)
Onondaga Nation v. New York, et al., 134 S. Ct. 419 (2013)
Onondaga Nation v. New York, Petition for Rehearing, 2012: 11.
Onondaga Nation v. New York, 500 F. App’x 87 (2d Cir. 2012), cert. denied, 134 S. Ct. 419 (2013)
Pané, Ramon, On the Antiquities of the Indians (1496)
Shinnecock Indian Nation v. New York, 628 F. App 54 (2d Cir. 2015), cert. denied, 136 S. Ct. 2512 (2016)
Stockbridge-Munsee Cmty. v. New York, 756 F.3d 163 (2d Cir. 2014), cert. denied, 135 S. Ct. 1492 (2015)
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