November 6, 2012
On Friday, November 2nd, the Nation’s attorneys filed the request for a re-hearing of the October 19, 2012 Circuit’s Summary Order, which had affirmed the lower court’s dismissal of the Nation’s Land Rights Action. This dismissal was based on the newly created “new laches” defense that the courts have awarded New York State. This new defense, which only applies to Indigenous Nations’ land rights cases, has radically changed the rules since our case was filed, and is patently unfair and unequal.
When we argued the appeal to the three judge panel of the 2nd Circuit on Columbus Day, they did not have the authority to change the Circuit’s previous rulings that had dismissed both the Oneida and Cayuga land claims, and they simply applied this same set of unfair “new laches” rules to Onondaga. The purpose of this en banc Petition is to ask the full, thirteen judge Circuit to re-visit those prior rulings, and to hopefully correct their errors, as the full panel has the authority to change their prior rulings, if they agree with our position.
The rules of the Circuit required us to file this Petition within two weeks of their Summary Order and the brief was limited to a maximum of 15 pages. The Nation’s attorney raised several legal arguments within this very limited format: (a) that the Circuit’s narrow application of their previous dismissals in Cayuga and Oneida violated prior rulings of the U. S. Supreme Court; (b) that those prior dismissals were in violation of the act of Congress that no statute of limitations should apply to land rights actions; and ( c) that these dismissal under the guise of “equity” were in violation of a long line of previous Supreme Court rulings and in violation of centuries old principle of equity or fairness.
Now the Circuit will decide if it will “re-hear” the case, which would call for further written briefs and oral argument, or if they will simply deny this request. If they deny our request, then the last possibility for the Nation is to ask the Supreme Court to review the Circuit’s ruling in a certiorari Petition. The Nation will certainly take that final step, but it is important to remember that in both Cayuga and Oneida, their en banc and certiorari petitions were summarily denied.
If Onondaga’s petition met the same fate, then we will have exhausted all possible avenues in the U.S. court system, which is a requirement before we can take these treaty violations and illegal land grabs into an international court.
Read the Petiton on Turtle Talk