Below is the transcript of the October 12th agument to reverse the courts decision not to hear the Onondaga Nation’s Land Rights Case. On October 19th, the panel denied this request. The Nation is currently appealing to the full 13 panel of Judges.
Onondaga Land Rights Action
October 12th, 2012 Oral Argument
Chief Judge Dennis Jacobs (herein “DJ”)
Robert A. Katzmann (herein “RK”)
Debra Ann Livingston (herein “DL”)
Joseph Heath (herein “JH”)
Denise Hartman, Assistant Solicitor General for Eric T. Schneiderman (herein “DH”)
Mark Puzella (herein “MP”)
(At this time we’ll hear Onondaga Nation versus the state of New York)
JH: Good morning your honors, may it please the court, I’m Joe Heath, General Counsel for the Onondaga Nation, and we bring this appeal to ask you to reverse the District Court and gives us a chance to prove the facts that support our case. We know there are other cases that are very similar, but we think the facts in the Onondaga case are very, very different. The fundamental problem that we find with the District Court ruling is the use of the judicial notice to find ultimate facts to dismiss the complaint and all we’re asking is that the court remand this so that we have a chance to prove the facts about these historic problems.
DJ: One of the, probably the central point of judicial notice is that the city of Syracuse and its environment has been developed. I mean, it may not be a big city, but there are those who love it, and it’s there, and it’s on the map, why shouldn’t a court take notice of the fact that a city has grown up in this area with suburbs and everything else?
JH: Well, there’s certainly are. First of all there are 5 separate transactions that we’re challenging; and if we focus on 1 of those I think we can see that there are factual differences among those,(Judge: go ahead) In 1795, the third taking by the State of the New York, it came back and took Onondaga Lake and a mile round the Lake. Now Onondaga Lake is sacred to the Onondagas; their cultural historical spiritual connection to the Lake is recognized by everybody. Almost all of the land around that lake is owned by two of the defendants; the County of Onondaga and Honeywell Corporation. Honeywell did not develop this land, they turned it from a pristine lake where the fish in the 1880s were a delicacy at New York City restaurants and turned it to the most polluted lake the in country; turned it into a superfund site, 8 superfund sites. That is not development, I don’t think, and I think we have a right to prove those facts. Further, all of the people in Central New York including these defendants accept the Nation’s spiritual and cultural connection to that Lake. We had a meeting within the last month where we were sitting down with the County Executive and other parties to mutually work together to build a cultural heritage site on that Lake that celebrates cooperatively the nation’s connection with that lake, that’s a very different set of facts and we think that each of these transactions needs to be looked at separately so that we can weigh the equitable factors and we just want a chance to prove it… (Interruption)
DL: On the question of judicial notice, so you’re saying what needs to be done and what has been improperly done here is to assess the development of the lands specifically in the hands of these defendants. As opposed to assessing the development of the land as a whole, because the broader declaration or the broader claim here would be about a much larger tract of land where you might say it is well within the scope of judicial notice to say that much of this land has been developed in the intervening period, that you’re saying they need to focus on these particular tracts of land in the hands of specific defendants
JH: Yes, the court took judicial notice of the development and took judicial notice of whether or not the expectations of these defendants were justified under the historical record and we’d like a chance to prove that historical record. The use of judicial notice should not be, judicial notice of a disputed fact should not ordinarily be taken as a basis of a dismissal of a complaint on its face. The better course is an evidentiary hearing in which a plaintiff may have its day in court, that’s this courts Oneida 1982 ruling and so we’re…
DJ: On the societal expectations point, in Oneida III, the court held that 3 different factors gave rise to justified societal expectations (1) a tremendous expanse of time separating the transaction, (2) the fact that the subject lands have passed into the hands of the multitude of entities and individuals, most of whom have no connection to the historical injustices and (3) the fact that these parties have, I’m quoting, have bought and sold the lands and also developed them into, in an enormous extent. Which of these factors do you think, that the federal rules of evidence prohibit the District Court from noticing?
JH: We think that the court should look at these defendants, this case is very, very different than the Cayuga case and Oneida case; it was framed differently, the facts on the ground are different, and the procedural process, procedural context in which it comes to the court is different. In both Cayuga and Oneida as the court knows, those are extremely possessory cases. They started off right away challenging every land owner in the land area. This is very, very different. We call you attention to the first paragraph of our amended complaint, which was dictated to us in the Longhouse by the Council of Chiefs; it did not call for possession or negative consequences for the general public, it called for a healing. What the Nation is looking for here is enough of a declaratory judgment to be able to sit down with the State of New York and Congressional representatives and find some way to find a solution, some recognition of a historic harm. Here we have a very undisputed illegal taking in violation of the Constitution… (Interruption)
DJ: In Oneida, the Supreme Court said that these considerations barred the non-possessory claims as well as the possessory claims, so the distinction that you’re talking about, which actually would seem to be a fairly sensible dividing line, doesn’t seem to be what the Supreme Court allows
JH: As I said before your honor, there are 5 different takings; we think that a court of equity should be able to create… (Interruption)
DJ: Focus on the best one, what’s your best point, in terms of this. I know there are 5 takings and we’re dealing with a couple of hundred years of history so as to what parts of land, what’s your best case? What escapes the Oneida principle?
JH: We think the Onondaga Lake and the mile around it, where their connection is recognized. The other distinction here is that the Onondagas never left their homeland. They have always been here, they resisted efforts at removal and partition. And the other difference is what’s happening on the ground in Central New York where the filing of this case has caused absolutely no disruption whatsoever. We have cooperative relations with all of the defendants, particularly the governmental defendants, and the Lake is recognized as properly connected with the Nation. That set of facts and the lack of development, whatever that terms means, is the distinction that we ask a chance to prove in the District Court.
RK: Can I ask you about the sovereign immunity issue, as to War Powers; which of the War Powers do you think Congress exercised when it enacted the Trade and Intercourse Act?
JH: Well first of all we think that if the 11th Amendment issues come it ought to be remanded to District Court; there was no finding of it there. The Trade and Intercourse Act was enacted first in 1790, reenacted in 1793, and then on. The 11th Amendment did not come into, was not adopted until February of 1795. This statute was specifically aimed at the defendant State of New York. There was a historical problem that Washington was trying to correct; he was losing a war in Ohio, he needed to keep the Haudenosaunee and the Seneca warriors out of that, and he passed this, had Congress pass this law specifically to stop the State of New York. This is before the State of New York had immunity under the 11th Amendment, and we think we should be able to go back to the District Court and see whether or not that set of facts and the equity surrounding it, pierces the state’s sovereign immunity. Thank you.
DJ: You’ve reserved a couple minutes rebuttal and we’ll hear you then
DH: Good morning your honors my name is Denise Hartman, I’m appearing on behalf of the state defendants and I’ll use my 8 minutes to discuss both the equitable defense upon which the District Court relied to dismiss all the claims and also briefly address the 11th Amendment immunity issue. My colleague Mr. Puzella will address the indispensible party issue which only comes into play if this court reaches the 11th Amendment issue because he represents the interests of the counties, the city and the corporate defendants. Your honors, this court firmly established in Cayuga and Oneida that these 200 year old land claims are both inherently and indisputably disruptive. They are subject to dismissal ab initio as this court said in Cayuga because…
DJ: It does seem to me that it’s one thing if you’re talking about the City of Syracuse where large numbers of people own large numbers of plots and different people own different plots, but could you address yourself to the 1 mile around the Lake? That’s where Mr. Health is pegging his claim. It’s not an inconsiderable claim, and according to him there’s just two folks there; the tribe and the company.
DH: Of course, the complaint, the amended complaint in this case addresses the wide swath of land, 2 ½ million acres of land ranging from the state of Pennsylvania boarder up to St Lawrence River, and 1 of the treaties they’re focusing on in this argument affects the 1 mile area around the Onondaga Lake (that’s what I’m asking about) but the District Court which sits in Syracuse obviously is aware of the development and the facts on the ground in the area surrounding Onondaga Lake which includes not only the corporate defendants but many other municipal defendants, the county owns the land. It’s hard to talk about this without saying I’ve been there or the facts on the ground are discernable and verifiable…
DJ: Let’s say we go there, and we would find then there are only 2 or 3 landowners; there’s a company, a county, and the tribe, correct? If that is so then where are these elaborate settled expectations that govern the result in these other cases?
DH: The settled expectations go to many concepts; of course the land owned by the county is owned for the county’s residents, and the county’s residents have expectations about the use of the land and the county has expectations about how that land can be regulated. All of this land, indisputably, is part of the sovereign State of New York. The sovereign state of New York has expectations about how it regulates and exercises its sovereignty over those lands. Those expectations are 200 years old and this court has said that…
DJ: Isn’t there a distinction? You may be right, but isn’t there surely there is a distinction between a situation in which land is expropriated or purchased, whatever it is 200 years ago and then a city grows up in there, or a rural area develops, and this 1 has a garage, that 1 has a house, and someone else has a tattoo parlor. But if you’re talking about the state taking land under transactions that are challenged, and the state still has that land and hasn’t alienated it to good faith purchasers who have built property on it; isn’t this then a simpler case? Would you concede that the level of settled expectations is at least diminished?
DH: But that’s not the case here, the state has not, does not, has alienated the land it has been transferred to generation after generation of different land owners. There are certainly current landowners that you are trying to identify now that are verifiable on the ground.
DJ: Within a mile, a circumference of the Lake?
DH: Yes, perhaps Mr. Puzella can address that since he’s representing the corporate defendants as well as the County in a little more detail. I’m addressing the larger issue with regard to the whole state and I’m sorry I can’t be more specific about who owns that land
DL: That goes back to the question I was asking of your colleague, at what range should the judicial notice be assessed? Of the whole tract of land the 2.5 million acres, or specific tracts? Because it seems more problematic to me to as a matter of judicial notice say this particular area within jurisdiction of the court has or has not been developed.
DH: Given the fact that these are 200 year transactions that were done in a series over those few years before the birth of our Nation, I think they have to be looked at in total. And the court properly made judicial notice of the essential and critical facts that this court found important in Oneida, that the Supreme Court found important in Sherill including the census data, the 200 years, the long expanse of time of sovereignty and land ownership and the many generations. Most importantly, at its heart, they must prove, to prove their claim, that these 200 year old transactions were unlawful. That proof, necessarily calls into question title and sovereignty to the lands in question. Certainly the way the court addressed this below and the way we think it’s properly addressed in total, that would be severely disrupted and Cayuga and Oneida are absolutely controlling.
DL: Now your adversary says there has to be expectations that would to be disrupted, those expectations also have to be justifiable, and he were given the opportunity to develop a record it would distinguish his case from that of Oneida and Cayugas
DH: Right, that’s his second argument. His first argument is that the nature relief is different and that we think is controlled by the decisions. The second argument is that they would like a chance to prove, they protested over the years, and there’s good reason, a reasonable excuse for their delay in bringing this lawsuit. Of course, those same facts were put forth at trial in Cayuga and on the summary judgment motion in Oneida and this court recognized even in Cayuga that there were findings that the Cayuga had not unreasonably delayed in bringing this lawsuit. Nevertheless, this court applied the equitable defense and said the critical facts are the expanse of time, the changes that have occurred in the land, the changes in population. Those are the critical and essential facts. And notwithstanding a reasonable or justified delay in bringing the lawsuit and prior protest, the equities require dismiss of the land claims
DJ: Your adversary talks a bit, well you’re the one who talks about sovereign immunity
DH: Let me address that, of course in Blanchford and Seminole, the Court, the Supreme Court has held that Congress has not abrogated the 11th Amendment immunity of the state under the Indian Commerce Clause, or cannot abrogate under the Indian Commerce Clause
DJ: What about war powers? It was a point not developed below, but can you talk to war powers?
DH: Even if it were under the war powers there is absolutely no language in the Indian Trade and Intercourse Act that which would expressly abrogate state sovereign immunity so regardless of whether you assume that the Act was enacted under war powers act it does not on its face abrogate state sovereignty
DJ: Your adversary suggests, and this I think he would say needs further development, but he suggests that in the context of which that Act was passed was that the concern was the prosecution of a war?
DH: Regardless, Congress must expressly abrogate state sovereign immunity and there’s no language in the Nonintercourse Act that says, abrogates or gives rise that the state sovereign immunity would be abrogated
RK: How about Central Virginia County College v. Katz, there the Supreme Court held that Congress could subject states to suits by exercising its bankruptcy powers, right?
DH: I don’t see how that would give them authority under the Indian Commerce Clause, to abrogate state sovereign immunity, that’s a commerce clause power and the commerce clause powers have been definitively been held not to give Congress the ability to abrogate the state sovereign immunity. Look, I understand that the argument here is that there has been unfairness over the years but that argument has been taken into account by this court twice now in Cayuga and Oneida and in the overall balancing of the equities nevertheless this court has held that the equitable defense bars these claims. This case is effectively identical to those cases, and I see my time is up, but nothing in a ruling dismissing this case prevents continuing discussion, dialog between the Nation and the…
(Judge: that’s not our department)
However, the argument is there is a declaration needed in order to foster that discussion, that discussion is underway and this lawsuit is not necessary to allow mutual discussions on mutual interests to continue, thank you.
MP: Good morning, may I please the court, Mark Puzella for the non-state defendants; shall I start with the issue of the area around Cayuga Lake?
DJ: That would be useful, that’s where your adversary focused and it doesn’t seem to be an inconsiderable geographic area
MP: Correct, let’s begin with the assumption that we can parse this decision among the various treaties at issue. The treaties are interrelated and they’re connected. I think it’s troubling to think that we can, at the appellate level, address an issue that wasn’t raised below of trying to parse the various treaties. Below, we only described and discussed the treaties as affecting the entire land area. So this is a new issue and new face on the argument. But, just to address the argument because the issue was raised…
DJ: If you prevail, you would surly argue that if Mr. Heath filed another lawsuit dealing only with Onondaga Lake, that was all settled in this case?
DJ: So let’s look at it
MP: If you look at the equitable factors that are raised in Sherill they apply equally to the 1 mile around Cayuga Lake. So, I’m reading from page 25 from our brief, the factors there are the passage of 2 centuries since the allegedly illegal transactions occurred, that’s the same (2) the longstanding distinctly non-Indian character of the area and its inhabitants
DJ: Well part of it, I think Mr. Heath is apparently prepared to argue that part of it is occupied by tribe
MP: I don’t understand that to be his argument. I understand his argument to say there it has a longstanding spiritual relationship with the tribe, but not that there are actual tribal members there
DJ: Who owns the land now a days?
MP: I don’t know specifically. But my general understanding is that local municipalities and Honeywell.
DJ: So it’s a settled area?
DJ: A judge sitting in Syracuse could take judicial notice that it is settled the way I can take judicial notice that Queens is settled?
MP: Correct, there are roads, parking lots, things of that nature. So the longstanding distinctly non-Indian character the area and its inhabitants is the same, the place is not a component of a reservation or anything along those lines, so that 2nd factor is the same. The infrastructure and private development in the area spanning generations; there is no doubt that Honeywell and the local municipalities have developed the area to varying degrees, that is the same; (4) the longstanding regulatory authority constantly exercised by the state of New York and its counties and towns over the claimed lands, that’s the same. Those local municipalities and the state have governed the region for 200 years; (5) the degree to which the claims disrupt long settled expectations; long settled are not just houses. The expectation that this is land that everyone is equally entitled to use. And land that is freely saleable, land that companies like Honeywell can build developments on, conduct their business, and be certain that their sovereign yesterday is going to be their sovereign tomorrow and there isn’t going to be a fundamental change as to who’s regulatory authority governs their business. So I think even if we do consider 1 treaty concerning 1 parcel of land, there are still facts that may be judicially noticed that arrive at the same conclusion.
DJ: Thank you
JH: Just to clarify, Onondaga Lake is owned entirely by Honeywell and the county.
DJ: You’re talking about the Lake, but I understood you’d be talking about the 1 mile circumference around the Lake; that’s not owned entirely?
JH: There are other landowners further away. So let’s look at these defendants because this court has ruled that a quiet title action should only affect the parties, it should not affect non-parties. The facts just read by counsel do not fit that precise area. To say that Honeywell developed this land is absurd. There are hundreds of acres of wastebeds, industrial waste piled 80 feet high along the shores of Onondaga Lake. 40% of the Lake has been filled in by this industrial waste. This unique area…
DJ: Yes but that would be like saying land is not developed because someone built a parking lot on it. That is a form of development. I mean ruining the land is occupying it and developing it, it’s just doing it in a certain way.
JH: What this exchange shows, your honor, is that facts matter, and we’re really eager to prove our facts in this matter.