Stale Claims

How long should the law nurse old grievances?

Walter Olson from the November 2000 issue

(Page 2 of 2)

If you doubt it, ask the many Northeastern land owners whose property titles, whether purchased or passed down through generations, have lately been put in question by the revival of old Indian claims. In 1795 and 1807, for example, the state of New York bought from Indian tribes large tracts of what is now the western part of the state, from the Finger Lakes to the shores of Lake Erie. Though the tribes were eager to sell the land, the sales were legally irregular: Federal law, proceeding from the unseemly premise that the Indians were childlike "wards" who could not alienate their property of their own will, required such transactions to be approved by the national government (which they never were). But no one complained at the time. After the better part of two centuries had passed, leaders of the Oneida tribe decided to launch a legal action seeking to upset the old sales as unlawful–even though the land had been occupied for generations by the homes and apple orchards of tens of thousands of Euro-descended inhabitants.

In 1985, by a 5-to-4 margin, the U.S. Supreme Court ruled that proper title to the land never passed and sent the case back for further litigation. The legal questions are admittedly murky, given the peculiarities of Indian law. But Justice John Paul Stevens, speaking for fellow dissenters Warren Burger, William Rehnquist, and Byron White, pointed out that the Oneida elders of the day made no attempt to back out of the sales or cast doubt on their legitimacy, while their successors had subsequently "waited 175 years before bringing suit to avoid a 1795 conveyance that the Tribe freely made, for a valuable consideration. The absence of any evidence of deception, concealment, or interference with the Tribe’s right to assert a claim, together with the societal interests that always underlie statutes of repose–particularly when title to real property is at stake–convince me that this claim is barred by the extraordinary passage of time."

Now ugly tensions are on the rise across the disputed area, with old friendships breaking up, petty vandalism and threats escalating, and local Euro-descended landowners furious at both the tribal leaders and the Clinton Justice Department, which has intervened to back the Indian claims. The value of the disputed homes and farms has plunged; tribal spokesmen say they don’t intend to release the homeowners from their claims unless the state government steps in with a sufficiently generous offer on their behalf. "You have to get the state to get serious about negotiation," explains controversial Oneida leader Ray Halbritter. "The pain of not settling has to be greater than the pain of settling.… This is all about power." Ironically, because of its tax-free casino and cigarette operations, the Oneida tribe is itself much more affluent than its homeowner antagonists; it also donates abundantly to politicians, making it a major political force in the region.

Waiting in the wings is an even more dramatic claim by the Onondagas, to a large tract of land on which sits, among many other things, the city of Syracuse. "It’s in total violation," says the tribe’s chief, referring to the community, New York’s fifth largest with a population of about 160,000.

"Whether or not the lawsuits succeed is almost beside the point," writes New York Times editorialist Brent Staples of the black reparations claims. Defendants surely will take a different view.

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