Indians - New York Federal-State-Tribal Courts And Indian Nations

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Chapter Thirty
Indians!
by KA:REN L. SPENCER
I.
Introduction
A. Background
B. Sources
n. Indian Nations in New York State
A. Tonawanda Seneca Nation
B. Seneca Nation of Indians
C. Tuscarora Nation
D. Cayuga Nation
E. Onondaga Nation
F. Oneida Nation
G. Mohawk Nation
H. Shinnecock Tribe
1.
Unkecha~g Nation
m. The Haudenosaimee: Iroquois Confederacy
A. Iroquois Constitution
B. Traditional Governance Structure
C. Historical Overview and Bibliography
D. Haudenosaunee World View
IV. Treaties
A. Colonial Treaties
B. Federal Treaties
C. State Treaties
V. Federal Sources
A. Compilations
B. Treatises
C. Introductory Texts
D. Executive Documents
. Despite"the popularity of the term "Native American," the author defers to Russell Means, Indian
activist who prefers the term "American Indian" because of its origins: "The word 'Indian' is an
English bastardizatioJ;l iof two Spanish words, En Dio, which correctly translated means 'in with
God.'" From the Interm:t'site: <http://www.geocities.comlCapitolHil1l8366/terms.htrnI>.
New York Legal Research Guide
580
E.
F.
G.
H.
1.
J.
K.
Laws, Statutes, Congressional Materials,
Casebooks
U.S. Indian Claims Commission
Journal Articles
General Reference Books: Encyclopedias, Chronologies, etc.
Bibliographies
Online Guides
VI. Colonial and State Sources
A.
B.
C.
D.
E.
F.
G.
H.
1.
State Archives and Records Administration
Colonial Records
Laws, Statutes, etc.
Commissioners of Indian Affairs
Legislative Documents
Executive Agencies
Courts
Reference Tools: Chronology, Gazetteer, Biographical List
Special Collections
VII. Gaming and Taxation
A.
B.
Gaming
Taxation
VIII. International Law
A.
B.
C.
Monographs
Bibliographies
United Nations
IX. Directory oflndian Nations
A.
B.
C.
Haudenosaunee
Federally Recognized Tribes
State-only Recognized Tribes
X. List of Treaties and Other Documents in the Whipple Report
XI. Chronology to Mid-19th Century
I.
Introduction
When fIrst confronting a legal issue involving Indians inNew York, the researcher
will fmd a complex web of Indian, state, federal and international laws, policies, and
interests. It requires anunderstanding ofhistorical developments ofmore than 300 years
and a cross cultural awareness not necessary in legal actions involving non-Indians.
A.
Background
The area which became New York State was home to the most powerful Indian
nations in North America: the Haudenosaunee (People of the Longhouse), mown to
Chapter 30: Indians
581
non-Indians as the Iroquois Confederacy or the Six Nations. 2 From 1609 when
continuous contact began, the governments of France, Holland and by 1664, England,
dealt with the Indians as sovereign nations establishing diplomatic relations and making
treaties. 3 The Indians in New York today rely on their sovereignty as the basis for their
relations with non-Indians.
New York has long considered the Indians a "problem." So, too, have the Indians
considered New York. A 1988 report from the governor's office succinctly described
the traditional Indians' view of the State:
The more traditional Indian nations do not officially recognize the legitimacy of
a direct State role in Indian issues, but they do look to the State as a service
provider pursuant to treaty obligations. They believe that a sovereign
relationship exists only with the United States and that the State of New York
has only an incidental, ministerial relationship with the nations as an agent of
the United States. Accordingly, they do not acknowledge formal relations with
the State, whether on issues of criminal jurisdiction, taxation or the regulation
of other activities such as hunting and fishing. In actual practice, however, all
Indian nations accept albeit do not formally acknowledge, an official State role. 4
Aside from the historical treaties, legislative commissions, .administrative opinions
and annual reports prior to 1975, there is little material from New York State on Indian
matters. A search ofthe 2001-02 New York State Redbook mentions Indians or Native
Americans in only one sentence describing the duties of the Office of Children and
Family Services. s The website for the Office of Children and Family Services
<http://www.ocfs.state.ny.us/main/nas> contains this information and refers to an office
ofNative American Services as the successor to the Bureau of Indian Affairs.
2
Most accounts set the origins of the Confederacy at the mid-fifteenth century. A more recent study
sets the date much earlier at 1142 when the ratification council convened at Gonandaga (Victor,
N.Y.) and adopted the Iroquois Constitution, THE GREAT LAW OF PEACE. See Bruce Johansen,
Dating the Iroquois Confederacy, 1 AKWESASNE NOTES NEW SERIES 62-63 (Fall 1995); Barbara
Maim & Jerry Fields, A Sign in the Sky: Dating the League ofthe Haudenosaunee, 21 AM. INDIAN
CULT. & RES. J. 105 (1997); DOUG GEORGE-KANENTIIO, IROQUOIS CULTURE AND COMMENTARY
27-28 (2000).
3 Tl1e Haudenosaunee's position of power differed from that of the western tribes whose treaties were
generally made from weaker positions following a war. Treaties with the Six Nations are "distinctive
and arguably more favorable to the Six Nations, since the United States entered into them not as an
act of conquest but more as an act necessary for the survival of the foundling nation." Robert B.
Porter, The Jurisdictional Relationship Between the Iroquois and New York State: An Analysis of25
U.S. C. Sec. 232. 233,27 HARV. J. ON LEGIS.497, 549 (1990). See also infra sources listed in section
1II(C)(4). See also commentary from the Grand Council of the Haudenosaunee, Haudenosaunee
Land Claim, LAND CLAIM NEWS, Fall 1999, available at <http://www.peace4turtleisland.org/
pagesllandclaimsl.htm>.
4 New York State Executive Chamber, Preliminary Report to the Governor on State-Indian Relations
2-3 (May 1988) (unpublished report available in the collections of the New York State Department
of Law Library, Albany and the Charles B. Sears Law Library, State University of New York at
Buffalo) .
5 NEW YORK STATE REDBOOK 2001-02, at 843.
582
There has not been an executive agency or committee assigned responsibility for
Indian policy since 1977. Indian-state relations have focused more on litigation and·
negotiation so responsibility lies close to the governor's desk with little documented
information. 6 During Governor Mario Cuomo's tenure, responsibility for Indian matters
and negotiations was placed with his second in command, Secretary Gerald Crotty. 7 At
time ofpublication, Governor Pataki's point person was Greg Allen, in the Governor's
counsel's office.
In 1996 the state appeared to link negotiations on land claims to casino gambling
and the collection ofstate tax revenues from sales to non-Indians. 8 In the spring of 1997,
a proposed Trade and Commerce Agreement Between the State o/New York and the
Haudenosaunee was controversial and allowed to expire. 9
Information on Indian-state negotiations on casino gambling, taxation, and land
claims is limited to news sources and websites. Critical evaluation of these sources is
warranted.
B.
Sources
Current Indian legal issues must be analyzed within an historical and cultural
context. Research must involve more than the standard legal sources. Chapter 26 ofthe
New York Indian Law in the Consolidated Laws ofNew York:, while part of the laws
passed by the legislature, is considered invalid by some Indian nations. These sovereign
nations have the right to self-government and to the extent these laws interfere with that
right they are viewed as invalid. 1O The chapter in New York Jurisprudence 2d titled
"Indians" is incomplete as a legal research tool because it does not address these crosscultural and historical issues. I I
6
7
8
For insight into the negotiations process in New York land claims, see William Stama, Epilogue, in
IROQUOIS LAND CLAIMS 163-77 (C. Vecsey & W. Stama eds., 1988).
LAURENCE M. HAUPTMAN, FORMULATING AMERICAN INDIAN POLICY IN NEW YORK STATE:
1970-1986, at 27-28, 37 (1988).
See Jon R. Sorenson, State Urged to Use Casino Revenues to Settle Indian Land Claims, ~UFF.
NEWS, Mar. 12, 1996, at A5, available at 1996 WL 5829140; Erik Kriss, Casinos Could Be Bonanza
for State: A governor's Panel Says Voters Should Decide Whether to Legalize Casino Gambling,
POST-STANDARD (Syracuse, N.Y.), Aug. 31,1996, atAl, available at 1996 WL 7181631; State Says
It's Open to Land Talks, TIMES UNION (Albany), October 7, 1996, at B2, available at 1996 WL
12035525.
The agreement expired after sixty days. It was not made public by the State but was published in
Daybreak Magazine by the Native Studies Program in the American Studies Department at the State
University of New York at Buffalo in the Summer of 1997, volume 5, number 3. Subscription: P.O.
Box 315, Williamsville, NY 14231-0315. See supra section VI1(B).
10 See Robert B. Porter, Legalizing, Decolonizing, and Modernizing New York State's Indian Law, 63
ALBANY L. REv. 125 (1999); [Lois Jircitano], Report to the New York State Judicial Commission on
Minority Representation: Indian Issues, in 5 REPORT OF THE NEW YORK STATE JUDICIAL
COMMISSION ON MINORITIES (1991) [hereinafter JUDICIAL COMMISSION REPORT] (Appendix: Staff
Reports and Working Papers).
11 For example, compare 66 N.Y. JUR. 2D Indians § 2 (West Group 2002) with Porter, supra note 3, at
549.
9
Chapter 30: Indians
583
For an introduction to the culture, history and currentissut;ls, see Doug GeorgeKanentiio's Iroquois Culture and Commentary (Sante Fe, N:M.: Clear Light
Publishers, 2000).
An introductory overview from the Grand Council of the Haudenosaunee is
available in: Haudenosaunee Land Claim, LAND CLAIM NEWS, Fall 1999, available
at <http://www.peace4turtleisland.org/pagesllandclaimsl.htm> and at the official Six
Nations website <http://www.sixnations.org>.
The Encyclopedia of the Haudenosaunee (Iroquois Confederacy) edited by
Bruce E. Johansen and Barbara A. Mann (Westport, Conn.: GreenwordPress, 2000) is
a one-volume source with a bibliography at 339-53.
The Symposium on Law, Sovereignty and Tribal Governance: The Iroquois
Confederacy in the Fall 1998 Buffalo Law Review (Volume 46) contains nine useful
articles and essays. In particular, Robert Porter's article, Building a New Longhouse:
The Case for Government Reform Within the Six Nations ofthe Haudenosaunee, is
an extensive historical review of the effects of Euro-American colonization on the
Indians. It describes each Indian nation, traces the internal conflicts and political
factions, and has extensive footnotes. 12
For a historical overview and detailed analysis of Indian-state relations, see
Formulating American Indian Policy in New York State, 1970-1986 by Laurence M.
Hauptman (Albany: State University ofNew York Press, 1988) and Helen M. Upton,
The Everett Report in HistoricalPerspective: The Indians ofNew York (Albany: New
York State American Revolution Bicentennial Commission, 1980).
Robert Porter's article, The JurisdictionalRelationship between the Iroquois and
New York State: Analysis of 25 U.S.C. Sec. 232, 233 13 helps untangle the web of
federal, state and tnbal interplay. Part I is an historical overview from 1777 to 1948;
Part II covers basic federal Indian law that. applies in state-Indian relations; Part ill
details sources New York relies on for its authority over the Indians; Parts N and V
look at the effects on the Indians and propose reforms. Porter's subsequent article,
Legalizing, Decolonizing, and Modernizing New York State's Indian Law analyzes
why the state's Indian Law is invalid. 14
The Report ofthe New York State Judicial Commission on Minorities, April
1991 (5 v.) describes the sovereignty andjurisdictional issues affecting Indians in New
York:
In volume 1, The Public and the Courts,see Chapter Seven, ''Native Americans
and the Court System" at pages 253 to 271. A word of caution is in order,
however, as the description oftraditional and elective forms of government is not
entirely accurate.
12
13
14
46 BUFF. L. REv. 805 (1998).
27 HARV. J. ON LEGIS. 497 (1990).
See Porter, supra note 10.
584
Volume 5, Appendix: StaffReports and Working Papers, offers a rare opportunity
to hear from the Indians themselves because it includes two reports submitted to
the Commission: Report to the New York State Judicial Commission on
Minority Representation: Indian Issues (written by Lois M. Jircitano) and the
Seneca Nation of Ind!ans Judiciary Report to the New York State Judicial
Commission on Minorities.
In the fall of 2003, Syracuse University College of Law established a Center of
Indigenous Citizenship, Law and Government directed by Robert Odawi Porter. This
center and its website <http://www.law.syr.edu>may also be a valuable resource.
ll. Indian Nations in New York State15
Indian nations are identifiable not only by name but also by their governmental
structures which generally take one of two forms: a traditional council of chiefs or anon-traditional, i.e., non-Indian, elective or corporate body. It is helpful to understand
the distinctions between the traditional and non-traditional governments as many ofthe
conflicts in Indian-state-federal relations are affected by these differeJ;Lces, particularly
involving gaming.
Confusion arises because nations often refer to themselves as "traditional," since
they continue their ancestral and cultural practices, yet they employ non-traditional
elective or corporate structures. In this chapter, ''traditional'' specifically refers to those
nations who retain their aboriginal ways of decision making and governance and who
have not adopted any non-Indian form ofelection or corporate practice. The traditional
nations are also adamantly opposed to gaming.
The Haudenosaunee (SixNations) maintain their historical alliance ofthe Iroquois
Confederacy by their traditional governments of Council of Chiefs: 16 the Tonawanda
Seneca Nation, the TuscaroraNation, the Cayuga Nation, and the Onondaga Nation, (all
of whom are also "federally recognized"), along with the Oneida Nation and the
Kahnia'kehaka (Mohawk Nation Council of Chiefs) (who are not ''federally
recognized").
15
16
Various members of the Indian Nations in New York State live out of state or in Canada and may
be included by the Nations in their governance and cultural activities but are not otherwise the
subject ofthis bibliography. However, recent actions and land purchases in New York by the SenecaCayuga Tribe of Oklahoma and the Stockbridge-Munsee Band of Mohicans (Wisconsin) may
complicate the already tangled web ofIndian-State relations. See Wisconsin Indian Tribe Buys Land
Near Oneidas, POST-STANDARD (Syracuse, N.Y.), Nov. 14, 2002, at AO, available at 2002 WL
6028000; Tom Precious, Oklahoma Tribe Tries to Claim Seneca Land, BUFF. NEWS, Nov. 23, 2002,
at B 1, available at 2002 WL 7448563; David L. Shaw, Tribes' Approaches Differ, POST-STANDARD
(Syracuse,N.Y.); Dec. 21,2002, atBl, available at 2002 WL6034265; DavidL. Shaw, Tribe Won't
Stop Plans to Construct Bingo Hall, POST STANDARD (Syracuse, N.Y.), Jan. 11,2003, available at
2003 WL 5807974; William Kates, Wisconsin Tribe Seeks Determination on Standing, ASSOCIATED
PRESS NEWSWIRES, Feb. 10,2003, Westlaw, ALLNEWSPLUS database. See also note 73 infra.
The selection and powers of leaders in the traditional system derives from The Great Law ofPeace
which is also referred to as the Iroquois Constitution. See infra section m.
Chapter 30: Indians
585
The federally recognized "tribes" are: the Tonawanda Band of Senecas
(Tonawanda Seneca Nation), the Seneca Nation ofIndians, the Tuscarora Indian Nation
(Tuscarora Nation), the Cayuga Nation of Indians (Cayuga Nation), the Onondaga
Nation, the Oneida Indian Nation ofNew York, and the St. Regis Mohawk Tribe. 17 The
United States Bureau of Indian Affairs (BIA) recognizes these nations and their
particular form of government, although it uses different nomenclature. The BIA
accepts members designated by the governing bodies as representing these nations for
federal-Indian relations' purposes. IS
Confusion also arises because ofsimilarity ofnames and it is important to identify
the distinctions:
The Tonawanda Seneca Nation retains its traditional government and participates
in the Confederacy. The Seneca Nation of Indians, however, relinquished the
traditional government when it adopted an elective constitutional democracy in
1848 and is politically separate from the Confederacy.
The Mohawks also have traditional and elective systems: the traditional chiefs
(Kahnia'kehaka, The Mohawk Nation Council of Chiefs) maintain connection
with the Confederacybut is not federally recognized, while the elected council (St.
Regis Mohawk) are recognized by the federal government and maintain relations
with New York State. 19
The Oneida IndianNation ofNew York does not function within the Confederacy,
but is federally recognized. The traditional peoples of the Oneida Nation not
associated with the Oneida Indian Nation ofNew York do not have an organized
structure within New York, but have a spokesperson who maintains the
relationship with the Confederacy.
Recognized only by New York State and not the federal government are the
Shinnecock and Unkechaug (Poosepatuck) nations on Long Island. The Shinnecocks
are preparing an application for federal recognition. The Montauk Indian Nation of
Long Island have also indicated their intent to fJ.1e for federal recognition, but are not
recognized by New York. Ramapough Indians residing in Orange and Rockland
Counties are recognized byNew Jerseybut not byNew York or the federal government.
For information on the Stockbridge-Munsee Band of Mohicans and Seneca
Cayuga Tnbe of Oklahoma who have land claims pending in New York, see sections
II(F), U(B) and II(D) infra.
17
18
19
25 C.F.R. Part 83 (2003). The word "tribe" is not used by the traditional Indian nations. The names
used by the U.S. Government are not always the names the Indian nations call themselves, e.g., the
Tonawanda Band of Senecas is the Tonawanda Seneca Nation, the Cayuga Nation ofIndians is the
Cayuga Nation, etc. These may be considered minor points to non-Indians, but they reflect a lack
of respect for the nations' sovereignty.
Webster Cusick v. Eastern Area Dir., BrA, 31 IBIA 255 (Nov. 17,1997).
2 JUDICIAL COMMISSION REpORT, supra note 10, at 261.
New York Lega' Research Guide
586
A.
Tonawanda Seneca Nation
The Tonawanda Seneca Nation emollment was approximately 1,300 in 1997. 20
Their present territory includes 7,549 acres on the Tonawanda Reservation located in
Erie, Genesee and Niagara counties. 21
The Tonawanda SenecaNation retains the traditional governance by Clan Mothers
and Council of Chiefs and represents the Senecas in Confederacy affairs including
traditional Senecas living elsewhere in Confederacy territory. Contrary to § 46 ofNew
York Indian Law, the Peacemaker Court does not function on the Tonawanda
Reservation, nor do any of the Seneca Nation of Indians' fonns of government. The
Tonawanda Seneca Nation opposes gaming.
The history of the loss ofSeneca Nation aboriginal territory in Western New York
has received considerable attention in the literature. 22 Most of these lands were ceded
in a series of treaties conducted between 1797 and 1842. In the Buffalo Creek Treaty
ofl826, the Seneca Nationpurportedly sold nearly 88,000 acres to land speculators, but
records fail to show Senate or presidential ratification. 23 In the Buffalo Creek Treaty of
1838, the Ogden Land Company Land, through fraud, threats, and bribery, attempted
to take the Buffalo Creek, Cattaraugus, Allegany and Tonawanda reservations, but the
compromise Treaty of 1842 restored the Allegany and Cattaraugus Reservations and
voided the earlier treaty.24
The Tonawanda Seneca Nation chiefs, who took no part in the Treaty of 1842,
refused to recognize the cession ofthe Tonawanda lands and resisted efforts to remove
their people to the West. They were forced to repurchase their lands under the Treaty
of 1857.25 This treaty, as recorded by the United States, provided that New York State
Per clerk of the Tonawanda Seneca Nation. See also Doug George-Kanentiio, Iroquois Population
in 1995, 1 AKWESASNE NOTES NEW SERIES 61 (Fall 1995), available at <http://www.ratical.coml
many_worlds/6Nations/population95.htm1>.
21 THE MANUAL FOR THE USE OF THE LEGISLATURE OF THE STATE OF NEW YORK 1988-89, at
1123(1988) [hereinafter THE MANUAL].
22 See, e.g., Norman B. Wilkinson, Robert Morris anrJ the Treaty ofBig Tree, 40 MISSISSIPPI VALLEY
HIST. REV. 257 (1953); Barbara C. Chernow, Robert Morris: Genesee Land Speculator, 58 N.Y.
HIST. 195 (1977); Henry S. Manley, Buying Buffalo from the Indians, 28 N.Y. HIST. 313 (1947);
Lawrence M. Hauptman, The State's Men, the Salvation Seekers, and the Seneca: The Supplemental
Treaty ofBuffalo Creek, 1842, 78 N.Y. HIST. 51 (1997); HELEN M. UPTON, THE EVERETT REPORT
IN HISTORICAL PERSPECTIVE: THE INDIANS OF NEW YORK 44-49 (1980).
23 See AMERICAN STATE PAPERS, INDIAN AFFAIRS, No. 258, 866-67; 1828 Senate Executive Journal
601-02; Henry S. Manley, Red Jacket's Last Campaign, 31 N.Y. HIST. 149 (1950); Upton, supra
note 22, at 45-46.
24 7 Stat. 550 (1838); 7 Stat. 568 (1842). See also Manley, Hauptman, and UPTON, supra note 22.
25 11 Stat. 735,12 Stat. 991 (1857). For background on the Seneca split and Tonawandapul'chase, see
Thomas S. Abler, The Kansas Connection: The Seneca Nation and the Iroquois Confederacy
Council, in EXTENDING THE RAFTERS: INTERDISCIPLINARY APPROACHES TO IROQUOIAN STUDIES
81-89 (M. Foster ed., 1984). For an online copy of the deed filed in the Genesee County Clerk's'
Office, Batavia, N.Y., see <http://www2.pcom.netlcinjodlhistorlanlTonresDeed.html>.
20
Chapter 30: Indians
587
would hold title to the reservation in trust,26 but this does not comport with the recording
by the Tonawanda Seneca Nation.
The Tonawanda Seneca Nation has joined in the land claims filed by the Seneca
Nation of Indians as the lands in question were part of Seneca Nation aboriginal
territory and were taken prior to the political split in 1848. (See section II(B) below.)
The Seneca and Tuscarora Indians: An Annotated Bibliography by Marilyn
Haas (Native American Bibliography Series, No. 17, Metuchen, N.J.: Scarecrow Press,
1994) is an extensive resource for cultural, historical and legal resources. The detailed
annotations for treaties, federal and state government documents, and materials on land
issues are particularly helpful. See also Porter, Longhouse (above section I(B)).
B.
Seneca Nation oflndians
The Seneca Nation ofIndians ' enrollment was 6,700 in 1997. 27 The Seneca Nation
of Indians' territory is located on three reservations in Western New York.
The Allegany Indian Reservation in Cattaraugus County originally included
30,469 acres ofland surrounding the Allegheny River, of which nearly 10,000 acres
were submerged by the Kinzua Reservoir in 1964.28 It also includes the City of
Salamanca whose century-old controversial lease arrangement between non-Indians and
the Seneca Nation of Indians was renegotiated in the early 1990s.29
The Cattaraugus Indian Reservation is on 21,68030 acres in Cattaraugus,
Chautauqua and Erie counties. The Oil Springs Indian Reservation is one square mile
near Cuba, New York, and has Seneca Nation and private enterprises but no permanent
Seneca residents.
In 1848, following the Treaties of 1838 and 1842,31 when the Senecas were left
with only the Cattaraugus and Allegany Reservations, the Seneca Nation of Indians
separated from the traditional Seneca Nation and formed an elective constitutional
26
27
See United States v. Nat'l Gypsum Co., 141 F.2d 859 (2d Cir. 1944).
Seneca Nation of Indians website <http://www.sni.org>. There are traditional Senecas residing on
the Cattaraugus and Allegany Reservations who do not recognize the government of the Seneca
Nation of Indians and who are not counted in their enrollment.
28 Id. THE MANUAL, supra note 21, lists the current size as 22,640 acres. For background on the Kinzua
Darn controversy, see LAURENCEM. HAUPTMAN, THE IRoQuOIs STRUGGLEFOR SURVIVAL: WORLD
WAR II TO RED POWER 85-122 (1986).
29 Seneca Nation Settlement Act of 1990, 25 U.S.C. §§ 1774-1774h (2000). For background, see
Laurence M. Hauptman, The Historical Background to the Present-Day Seneca Nation-Salamanca
Lease Controversy, in IROQUOIs LAND CLAIMS, supra note 6, at 101-22; Katharine Nelson,
Resolving Native American Land Claims and the Eleventh Amendment: Changing the Balance of
Power, 39 VILL. L. REv. 525, 578-87 (1994). For a comparative view from the lessees' perspective,
see J. Coleman, Esq, Tribal Rights in Private Property Cases, Statement before Congress, Sept. 24,
1996 from Federal Document Clearing House, Inc., available at 1996 WL 10831342.
30 THE MANUAL, supra note 21. See also Doug George-Kanentiio, How Much Land Did the Iroquois
Possess, 1 AKWESASNE NOTES NEW SERIES 60 (Fall 1995), available at
<http://www.ratical.comlmany_worlds /6NationslHowMuchLand.htrnl> (reporting a different figure
of21,6l8 acres).
31 Supra note 25.
588
government consisting of executive, legislative and judicial branches. 32 The Executive
branch includes a president, treasurer and clerk who are elected for two year terms and
who may not succeed themselves. The sixteen-member Tribal Council, the legislative
branch, has eight members from each of the Cattaraugus and Allegany Reservations.
They are elected for four-year terms.
The judicial branch includes the Peacemaker and Surrogate Courts and the Court
ofAppeals. The Peacemaker Courts are courts ofgeneral and equitable jurisdiction for
all civil matters arising on the reservations. 33 Surrogate Court jurisdiction is made by
reference to New York State law. 34 The Court of Appeals reviews decisions of the
Peacemaker and Surrogate Courts. Final appeals are made to the Tribal CounciI,35
Courts operate pursuant to rules inthe Seneca Nation Peacemakers and Surrogates
Ru1es of Civil Procedure, The Seneca Nation Children's Code, the Seneca Nation
Business and Tax Codes and the Environmental and Conservation Codes.36
The Seneca Nation ofIndians has gaming operations on its reservations. In 2002,
they negotiated a tribal state compact with the State ofNew York and opened a casino
in the city ofNiagara Falls.
Seneca aboriginal territory covers most ofWestern New York. Land claims have
been filed for a fifty-acre parcel on Cuba Lake in Allegany County contiguous with the
Oil Springs Reservation,37 islands in the Niagara River including Grand Island,38 and
part of the New York State Thruway.
The Seneca-Cayuga Trib~ ofOklahoma has purchased land inNew York in hopes
of establishing gaming operations and have sought to intervene in the Cuba Lake l~d
claim. 39
Haas (section Il(A) above) is an exhaustive resource on Senecamaterials. See also
Porter, Longhouse (above section reB)).
32
CONSTITUTION OF THE SENECA NATION OF INDIANS, as amended effective Nov. 9, 1993.For a
detailed review of societal and political changes that precipitated this Seneca governmental
transfonnation, see Robert Porter, Decolonizing Indigenous Governance: Observations on Restoring
Greater Faith and Legitimacy in the Government of the Seneca Nation, 8 KAN. J.L. & PuB. POL'Y
97 (1999).
33
Seneca Nation ofIndians Judiciary Reportto the New York State Judicial Commission on Minorities,
in 5 JUDICIAL COMMISSION REpORT, supra note 10, at 14.
Id.
34
35
CONSTITUTION OF THE SENECA NATION OF INDIANS § IV.
36
Supra note 33.
37
Seneca Nation of Indians v. State of New York, 26 F. Supp. 2d 555 (N.D.N.Y. 1998), aft'd, \78 F.3d
95 (2d Cir. 1999), cert. denied, 528 U.S. 1073 (2000).
Seneca Nation of Indians v. New York, 206 F. Supp. 2d 448 (N.D.N.Y. 2002).
James M. Odato, Bidfor Land Claim Pits Tribe vs. Tribe, TIMES UNION, (Albany), at B2, Nov. 28,
2002, available at 2002 WL 24175134; see also note 15 supra.
38
39
Chapter 30: Indians
589
C. .Tuscarora Nation
The Tuscararoa Nation emollment in 1995 was 1,200.40 Their territory is on the
Tuscarora Reservation on 5,778 acres41 in Niagara County. The Tuscaroras retain the
traditional fonn of government with a Council of Chiefs and Clan Mothers.
Originally from North Carolina, the Tuscaroras migrated to the Oneida territory
near Binghamton, New York in the early 1700s and became the sixth nation to join the
Iroquois Confederacy. They fought with the Americans during the Revolution along
with some of the Oneidas. During General Sullivan's campaign to punish pro-British
Indians, many Tuscaroran villages were destroyed as well. They moved to WesternNew
York and in 1808, the Seneca Nation deeded one square mile of their territory near
Lewiston, New York to the Tuscaroras. 42 During the 1950s, the Tuscaroras lost a
significant portion, 550 acres, of their reservation to the Power Authority of the State
ofNew York. 43 The fifty-year lease expires in 2007. The Power Authority is preparing
for relicensing and has signed a Memorandum ofAgreement with the Tuscarora Nation
which is available on the Power Authority's website <http://niagara.nypa.gov>.
In 1997, a significant decision from the federal Interior Board of Indian Appeals
reinforced the sovereignty of Indian nations. It declared the "designation of a
spokesman ... an internal matter for decision by the Council ofChiefs. Any attempt by
BIA to look behind the designation ... would constitute not only an unwarranted
intrusion into tribal government, but also a 'retreat into the old days ofpaternalism."'44
The Tuscarora nation opposes gaming.
Haas (noted in section II(A) above) provides extensive annotations for materials
on the Tuscaroras. See also Porter, Longhouse (noted above in section I(B».
D.
Cayuga Nation
The Cayuga Nation maintains an office in Gowanda, in Cattaraugus County, and
its 470 members reside throughout Confederacy territories. It continues with the
traditional governance of Clan Mothers and Council of Chiefs. It is one of the Six
Nations and participates in the Grand Council of the Haudenosaunee (Iroquois
Confederacy).
The CayugaNation aboriginal territory lies betweenRochester and Syracuse in the
area now covered by Cayuga, Seneca, Chemung, Schuyler, Wayne, Tompkins and part
of Tioga counties. Cayuga lands were taken by the state in the treaties of 1789, 1795
40
41
42
43
44
George-Kanentiio, supra note 20.
THE MANUAL, supra note 21.
For a reprint of this deed, see NEW YORK (STATE) ASSEMBLY, REpORT OF THE SPECIAL COMMITTEE
(ApPOINTED BY THE ASSEMBLY OF 1888) TO INVESTIGATE THE INDIAN PROBLEM OF THE STATE, no.
51,401 (Albany, 1889) [hereinafterWHIPPLEREPoRTj.
FPC v. Tuscarora Indian Nation, 362 U.S. 99 (1960). See also HAUPTMAN, IROQUOIS STRUGGLE,
supra note 28, at 151-78.
Cusick v. Eastern Area Director. BIA, 31 IBIA 255 (Nov. 17, 1997).
590
and 1807 but the Cayuga Nation has sought continually to regain them. 45 After the
Cayuga Nation filed suit in 1980 for the return of 64,000 acres in Seneca and Cayuga
counties, the treaties of 1795 and 1807 were declared invalid because they violated the
federal Nonintercourse Acts. 46 Following a jury verdict for $36.9 million in February
2000, Judge Neal P. McCum added $211 million more for pre-judgment interest in a
lengthy October 2001 decision. 47 The case is on appeal in the Second Circuit Court of
Appeals.
Previously opposed to gaming, the Cayuga Nation offered to drop the appeal of
the land claim in exchange for a gaming compact with the state. A tentative agreement
was reached in June 2004. The Cayuga Nation has applied for federal approval and a
gaming compact for a casino in Monticello. Without a land base for over 200 years, in
2003 it purchased land in Union Springs. The tribe received approval from the National
Indian Gaming Commission for a Class II gaming operation, but development of this
land is subject to litigation. 48
The Seneca-Cayuga Tribe of Oklahoma has joined in the Cayuga land claims. It
purchased land in New York with the hopes ofestablishing gaming operations and filed
suit in June 2003 to regain the right to return to New York and reclaim its reservation
land. 49
See also Porter, Longhouse, noted above in section reB).
E.
Onondaga Nation
The Onondaga Nation's aboriginal territory covers the area ofJefferson, Oswego,
Onondaga, Cortland, and part of Tioga and Broome counties. Today the Onondaga
Chris Lavin, Responses to the Cayuga Land Claim, in IROQUOIs LAND CLAIMS, supra note 6, at
87-100. The three treaties are reprinted in the Whipple Report, supra note 42, at 216-29.
46 Cayuga Indian Nation of New Yorkv. Cuomo, 771 F. Supp.19 (N.D.N.Y. 1991)(Cayuga VI). The
Cayuga VI decision lists and summarizes the Cayuga I-V cases. Cayuga VI held all defendants liable
except the State. In July 1996, Judge Neal P. MeCum of U.S. District Court N.D.N.Y. removed the
state as a defendant. However, an identical suit filed in 1993 by the federal government maintains
the state as a defendant. For more on the Nonintercourse Acts, see infra, note 61 and accompanying
text.
47 165 F. Supp. 266 (N.D.N.Y. 2001) This Cayuga XVII decision provides an exhaustive review ofthe
historical evidence and events.
48 Torn Precious, State to Pay Cayugas $248 Millionfor Land, BUFFALO NEWS, June 11, 2004, at Dl,
available at 2004 WL 60042246; Scott Rapp, Casino Application Review Finished; Cayugas Want
to Build It in Monticello, SYRACUSE POST STANDARDIHERALD-JOURNAL, Nov. 19,2003, available
at 2003 WL -5860811; Scott Rapp, Cayuga Indians Win Federal OK for Gaming License on
Sovereign Land; Nation Needs Federal Judge to Declare Property in Union Springs as Indian Land,
SYRACUSE POST STANDARDIHERALD-JOURNAL, Dec. 11,2003, at A9, available at 2003 WL 586
4488.
49 See note 15 supra. For further information regarding the lawsuit, see James Odato, Oklahoma Tribe
Suesfor Return to State, TIMES UNION (Albany, N.Y.), June 5, 2003, at B2, available at 2003 WL
5019636; Scott Rapp, Oklahoma Cayugas File Federal Suits, POST STANDARDIHERALD JOURNAL
(Syracuse, N.Y.), June 6, 2003, at AI, available at 2003 WL 5832164. See also Diana Carter, A
Riven Land, ROCHESTER DEMOCRAT & CHRON., Aug. 24, 2003, at 8A, available at 2003 WL
57938438.
45
Chapter 30: Indians
591
Territory includes 7,300 acres south of Syracuse. 5°A,lthoughtheNationenrollment is
not officially disclosed, in 1995 it was published as 596. 51
The Onondaga Nation maintains a traditional government of Clan Mothers and
Council of Chiefs. As the "Firekeepers" for the Confederacy, the Onondaga Nation
hosts meetings ofthe Grand Council ofthe Haudenosaunee . In April 2002, Onondaga
ChiefSid Hill was condoled as the newest Tadadaho, the leader ofthe Grand Council. 52
The Onondaga Nation continues to reject attempts by the state or federal
governments that would impinge on its sovereignty. Land claims have not yet been filed
but talks continue with the governor's office. 53
See also Porter, Long house, noted above in section I(B).
F.
Oneida Nation
The Oneida Nationterritory encompasses a thirty-two-acre reservation in Madison
County, but approximately 4,000 additional acres have been acquired. 54 Nation
enrollment in the federally recognized Oneida Indian Nation ofNew York in 1997 was
1,100.55 Some 3,970 Oneidas live in Southwold near London, Ontario, Canada, and
10,309 live in Wisconsin. 56
The Oneidas' aboriginal territory lies mid-state. stretching north to south from the
S1. Lawrence River to the Susquehanna and east to west from the West Canada Creek,
the Unadilla River and the foothills of the Adirondacks to the Tioughnioga River,
Otselic River and Chittenango Creek. A vivid history of the series of deceptive and
coerced land treaties 57 and internal strife that led to the nearly complete removal of
Oneidas to Wisconsin is found in The Oneida Indian Experience edited by Jack
Campisi and Laurence Hauptman (Syracuse, N.Y.: Syracuse University Press, 1988).
The Oneida Indian Journey: From New York to Wisconsin, 1784-1860 (Madison:
University .0fWisconsin Press, 1999), edited by Laurence Hauptman and L. Gordon
McLester, III, relates not only the historybut includes useful bibliographical appendices
and direction for historical research.
The Oneida Indian Nation of New York retains a governmental system with the
Clan Mothers and a Men's Council (not Council ofChiefs) but does not function within
the Confederacy. The ''Nation Representatives," selected in the same manner as
traditional chiefs through the clan system, were intended to be transitional posts until
50
51
52
53
54
55
56
57
George-Kanentiio, supra note 30; THE MANUAL, supra note 21.
See Joyce Mitchell, Legendary Title is Raised for the Haudenosaunee (2002), at
<http://www.hetfonIine.orglpages/tadadahoraised.htm>.
Indian Law Resource Center, Onondaga Nation Land Claim Background Information (Mar. 11,
1998), at <http://www.indianlaw.orglbody_onondaga.htm>
Oneida Indian Nation of New York website <http://www.oneida-nation.net>. THE MANUAL, supra
note 21, lists thirty-five acres for the Reservation.
Oneida Indian Nation of New York website <http://www.oneida-nation.net>.
See WHIPPLE REpORT, supra note 42 at 234-365.
,-
592
chiefs were selected. However, due to the lack ofrecognition by the Haudenosaunee of
the Oneida Indian Nation of New York, there has been no Condolence ceremony and
out ofrespect for the traditional installation ofchiefs, the Oneida Indian Nation ofNew
York maintains the designation ofits leaders as "Nation Representatives. ,,58 The current
Nation Representative is also the CEO ofOneida Nation Enterprises which operates the
Turning Stone Casino and several other economic enterprises. 59
Traditional Oneidas who do not participate in the Oneida Indian Nation ofNew
York continue to be split by internal disagreements as well as geographic boundaries
and their numbers are uncertain. Chiefs of the Oneida Nation residing in Southwold,
Ontario, represented the Oneidas on the Grand Council of the Confederacy, but in
recent years have withdrawn from participation. Presently, one Oneida spokesperson
in New York is recognized by the Grand Council for Confederacy affairs.
The Oneida Nation and the Oneida Indian Nation of New York have been
successful in the courts winning two significant U.S. Supreme Court cases on their post1790 clairns. 60 These cases recognized aboriginal title as a federal common law claim,
applied the Trade and Intercourse Acts (Nonintercourse Acts)61 to the original thirteen
states requiring federal consent to extinguish Indian title, and held such actions are not
time-barred. The defendants were found liable and negotiations continue onthe questiqn
of damages. A pre-1790 claim was dismissed. 62 For information on the land claim
actions involving 263,000 acres, see The Oneida Land Claims: A Legal History by
George Shattuck (Syracuse, N.Y.: Syracuse UniversityPress, 1991). This book includes
a map and reprints, and among other documents, the "Oneida Indian Nation Petition to
the President of the United States, 1968" and "Oneida Supreme Court Brief, 1973."
The Stockbridge-Munsee Band ofMohican Indians ofWisconsin originally lived
on both sides of the Hudson River. Christianized Mohicans around Stockbridge,
Massachusetts became known as the Stockbridge Indians. After fighting for the
Americans in the Revolution, their land titles were not recognized by the new federal
58
59
60
61
62
Per Oneida Indian Nation of New York General Counsel, Steven Paul McSloy. See GEORGEKANENTIIO, supra note 2 at 126. See also note 75 infra.
See Oneida Indian Nation of New York website, supra note 54; Ray Halbritter & Steven Paul
McSloy, Empowennent or Dependence? The Practical Value and Meaning of Native American
Sovereignty, 26 N.Y.U. J. INT'L L. & POL. 531 (1994). Ray Halbritter's leadership as Nation
Representative has not been without controversy. See, e.g., William Glaberson, Struggle for
Oneidas'Leadership Grows Bitteras Casino Succeeds, N. Y. TIMES, June 17, 1996, atAl; Stephanie
Saul, A Good Bet or A Loss? Oneida Casino a Boon, But Not to the Tai Base, NEWSDAY, Sept. 24,
1996, at A06; Porter, Longhouse, supra section I(B), at 855-65.
Oneida Indian Nation of New York v. County of Oneida, 414 U.S. 661 (1974) (Oneida I); County
of Oneida v. Oneida Indian Nation of New York State, 470 U.S. 226 (1985) (Oneida II). See also
Laurence M. Hauptman, Iroquois Land Issues: At Odds with the "Family ofNew York, " in IROQUOIS
LAND CLAIMS, supra note 6, at 71-74.
The significantacts: Act ofJuly22, 1790; th. 33,1 Stat. 137; Act of Mar. I, 1793, ch. 19, 1 Stat.
329; Act of May 19, 1796, ch. 30, 1 Stat. 469; Act of Mar. 3,1799, ch. 46,1 Stat. 743; Act of Mar.
30, 1802, ch. 13,2 Stat. 139; Act of June 30, 1834, ch. 161,4 Stat. 743.
Oneida Indian Nation ofNew York v. State of New York, 860 F.2d 1145 (2d Cir. 1988), cert. denied,
493 U.S. 871 (1989).
Chapter 30: Indians
593
government. They moved to Oneida lands in New York but over the next 150 years
were forced to move to Wisconsin along with the Munsee-Delawares. In 1986, they
filed a land claim for 23,000 acres in Oneida aboriginal territory, separate from the
Oneidas 263,000 acres.
In 1987, the Oneidas intervened inthe Stockbridge-Munsee suit. Proceedings were
stayed in 1995 while the Stockbridge-Munsee tried to negotiate with the state. Because
the state refused negotiations, the Stockbridge-Munsee sought to lift the stay and askthe
court to decide which Indian nation has proper claim to the land. 63
The Stockbridge-Munsee Band have purchased land in,Madison and Greene
counties. 64 The tax status ofland purchased by out-of-state Indian nations is unclear. 65
Questions remain as to application ofthis rule to out-of-state Indian nations such as the
Stockbridge-Munsee or Seneca Cayuga Tribe ofOklahoma. 66
See also Porter, Longhouse, noted above in section I(B).
G.
MohawkNation
The Mohawk Nation resides in several communities in upstate New York and
southern Ontario and Quebec, Canada. Three governmental structures are involved:
The Kahnia'kehaka (Mohawk Nation Council of Chiefs) is the traditional
leadership for the entire cross-border area and thus, the Mohawk representative in the
Haudenosaunee (Iroquois Confederacy). They are concerned with the preservation of
the Mohawk language, history and culture and do not recognize the border between the
United States and Canada. They operate the Akwesasne Freedom School and publish
Akwesasne Notes. They are opposed to gaming.
The St. Regis Mohawk Tribe is the u.S.-recognized government. In the 1820s,
New York imposed a three-person "Trustee" system ofgovernment. In 1995, a constitutional form of government was adopted creating executive, legislative and judicial
offices <http://thorpe.ou.edu/constitution/stregisconst.html>. See the St. RegisMohawk
TribalPoliceDepartmentPolicies andProceduresManual (Rochester: General Code
Publishers Corp., 1995). See also Porter, Longhouse (above section I(B)).
The Mohawk Council of Akwesasne is recognized by the Canadian government
and is an elected thirteen-member council governing three districts. This democratic
form was imposed by the Indian Act of Canada of 1876. 67
63
64
65
66
67
Stockbridge-Munsee Cornmunityv. Indian Nation ofNew York, No. 86CV1140 LEKGJD, 2003 WL
21715863 (N.D. N.Y. July 24, 2003). See also William Kates, Wisconsin Tribe Seeks Determination
on Standing, ASSOCIATED PRESS NEWSWlRES, Feb. 10,2003, Westlaw, ALLNEWSPLUS database.
Wisconsin Indian Tribe Buys LandNear Oneidas, POSr-STANDARD(Syracuse, N.Y.), Nov. 14, 2002,
at AI0, available at 2002 WL 6028000.
See note 15 supra. For tax-exempt status oflndian lands in New York, see Oneida Indian Nation of
New York v. City of Sherrill, 145 F. Supp. 2d 226 (N.D.N.Y. 2001).
See articles at supra note 15.
The Canadian First Nations, formerly called Bands, also have traditional and elective supporters. See
GERALD R. ALFRED, HEEDING THE VOICES OF OUR ANCESTORS: KAHNAWAKE MOHAWK POLITICS
AND THE RISE OF NATIVE NATIONALISM (1995); Gerald R. Alfred, From Bad to Worse: Internal
594
Enrollment for the New York portion at Akwesasne in 1995 was 5,632. 68 Otfer
Mohawk communities have been established at Ganienkeh (near Altona) and Fonda.
The Mohawk Nation, whose aboriginal territory covers northeastern New York
and much of Ontario and Quebec in Canada, suffered traumatic land loss and
environmental and social degradation from the development of the St. Lawrence
Seaway and subsequent industrialization in the area. 69 Numerous protests and legal
actions were taken by the Indians.70
In 1977, following a Mohawk takeover ofthe Moss Lake area, the state negotiated
a land settlement for Ganienkeh near Altona in Clinton County.71 Significantly, this was
the first time the state had negotiated directly with the "Six Nations Confederacy
[Grand] Council at Onondaga, a body that had never been formally given a political
recognition.'>72 A book by Gail Landsman, Sovereignty and Symbol: Indian-White
Conflict at Ganienkeh (Albuquerque, N.M.: University ofNew Mexico Press, 1988),
reprints the "Ganienkeh Manifesto," the "Joint Statement by Secretary Cuomo and
Kakwirakeron," and the "Turtle Island Trust Agreement." The Mohawks at Ganienkeh
do not participate in Confederacy affairs.
Recently, a community oftraditional Mohawks was established on 400 acres near
Fonda called Kanatsiohareke. 73 This community maintains ties to the traditional
Mohawk Nation Council of Chiefs in Akwesasne, and thus, to the Confederacy.
Conflicts within the Mohawk Nation are described in Porter, Longhouse and
Doug George-Kanentiio'sIroquois Culture and Commentary, noted above in section
I(B).
In 1982 the Mohawks filed suit for 10,500 acres adjacent to the American portion
of the reservation in Franklin and St. Lawrence Counties, including two islands in the
St. Lawrence River and lands along the Grass River. 74 The three governments formed
a tn-council group recognized by the state and federal authorities in land claims
68
Politics in the 1990 Crisis at Kahnawake, 8NORTHEAST IND. Q. 23 (1991); David Wilkins, Internal
Tribal Fragmentation: An Examination ofaNormative Model ofDemocratic Decision-Making, 1992
AKWE:KON J. 33 (Fall).
George-Kanentiio, supra note 20. Canadian Mohawks total 23,682, not counting 1hose who reside
on 1he Grand River Reserve west of Hamilton, Ontario.
69 HAUPTMAN, IROQUOIS STRUGGLE, supra note 28, at 123-50.
70 Id. at 146-50.
71 See HAUPTMAN, FORMULATING AMERICAN INDIAN .POLICY, supra note 7, at 29-32, or Hauptman,
Iroquois Land Issues, supra note 60, at 78-81. See also DEPARTMENT OFSTATE. Moss LAKE INDIAN
NEGOTIATION FILES, 1974-1979, Identification No. 13025, New York State Archives and Records
Administration, Albany, New York.
72 See Hauptman, FORMULATINGAMERICANINDIANPOLICY, supra note 7, at 31 or Hauptman,lroquois
Land Issues, supra note 60, at 80.
73 Kanatsiohareke website <http://www.design-site.netlmohawk.htm>.
74 IROQUOIS LAND CLAIMS, supra note 6, at 3. For 1he text to relevant treaties, see 1he WHIPPLE
REPORT, supra note42, at 366-81. The St. Regis cases are summarized in St. Regis IV, 146 F. Supp.
2d at 174-77. See also Canadian St. Regis Band ofMohawk Indians ex reI. Francis v. New York(St.
Regis, V), 278 F. Supp. 2d 313 (N.D. N.Y. 2003).
Chapter 30: Indians
595
negotiation. The claims have been complicated by issues of taxa.tion and casino
gambling, but a Memorandum of Understanding was reached between the St. Regis
Mohawks and Governor George Pataki in May 2003. 75
H.
Shinnecock Tribe
The Sbinnecock Tribe, an Algonquian Indian group, has a land base on eastern
Long Island on a 400-acre reservation which is home to approximately 450 members.
Their original lands extended from Brookhaven to East Hampton and from the Atlantic
Ocean to Peconic Bay. Current land holdings extend beyond the reservation an
additional 400 acres. 76 Emollment in 1988 was 1,900. 77
The Sbinnecocks maintain a governance system with three trustees elected
annually and a tribal council. They applied for federal recognition in 1978 but had not
received it as of2003. In 2003, the Sbinnecocks broke ground for a casino, sparking a
legal battle with New York State. U.S. District Judge Thomas C. Platt issued a
temporary injunction and later added the federal government as a party to the action. 78
I.
Unkechaug Nation
The Unkechaug Nation, also an Algonquian Indian group, is located on the fiftytwo-~cre Poosepatuck Reservation in the northeast portion ofMastic, Long Island. The
village of Poosepatuck is what remains of the 175 acres deeded to the Unkechaugs in
1700 by Colonel William "Tangier" Smith. This deed survived a court challenge in
1936.79
The Unkechaug Nation codified their traditional law and governance in a written
set of bylaws in the 1960s. 80 Their seven-member council consists of a chief, a
secretary, a keeper ofwampum and a keeper ofrecords, who are elected annually, and
three land trustees, each elected for three years. 8 \ Division ofreservation land is solely
75
New York State Breaks Off Negotiations, Oct. 3, 1996, available at <http://www.tuscaroras.com/
pages/newyorkNA.htm1>; Mohawk Land Claim Deal Close?, INDIAN TIME, Feb. 7, 2002, at 1;
Council Reaffirms Commitment to Unified Claim, INDIAN TIME, Mar. 7,2002, at 1; Mohawk Nation
Council of Chiefs to Governor Pataki, INDIAN TIME, July 25, 2002, at 5, Indian Time information
available at <http://hometown.ao1.com/miketbenl/miketben6.htm>. For the governor's press release
on the Memorandum of Understanding, see <http://www.state.ny.us/governor/press/year03/
mayI2_C03.htm>. The MOU (14 pp) is available at the Charles B. Sears Library, University of
Buffalo.
76 Harriet C.B. Gumbs, Shinnecock, in ENCYCLOPEDIA OF NORTH AMERICAN INDIANS 586 (1996).
77 THE MANUAL, supra note 21, at 1123.
78 New York v. Shinnecock Indian Nation, 280 F. Supp. 2d 1 (E.D. N.Y. 2003). See also Ann Givens,
Judge Adds U.S. to Shinnecock Lawsuit, NEWSDAY, Dec. 24, 2003, at A30, available at 2003 WL
69083234.
79 William Shepherd Dana v. Luther Maynes, Frances Maynes, Edward Gales, and Elaine Gales
(Suffolk County, N.Y. Mar. 15, 1936), noted in Bernice F. Guillaume, Poosepatuck (Unkechaug
Nation), in ENCYCLOPEDIA OF NORTH AMERICAN INDIANS 497 (1996).
80 Per Chief Harry Wallace of the Unkechaug Nation.
81 Id.
596
by the trustees. 82 The council enforces Poosepatuck law and administers local and state
programs. In 1998 the number of emolled members was approximately 250. 83
III. The Haudenosaunee:s4 IroquoisS5 Confederacy
The Six Nations or Iroquois Confederacy is a union of North American Indian
nations begun possibly as early as 1142 which continues to act as a single political
nation today.s6 The Haudenosaunee, loosely translated as "People of the Longhouse,"
include the traditional peoples and governments of the Mohawk, Oneida, Onondaga,
Cayuga, Tonawanda Seneca, and Tuscarora Nations.
Traditional Iroquois law exists in three forms. The Great Law of Peace is the
constitution for all Iroquois. The Great law defines the powers of each nation
and guarantees certain freedoms for the people. It is supported bythe Handsome
Lake Code, a set of rules that define communal relationships and provide
standards for ethical behavior. Finally, there is customary, or common law,
which is not codified but handed down across the generations. 87
A.
Iroquois Constitution
1. Overview
The Confederacy was formed and continues to be governed by The Great Law of
Peace (Gayaneshakgowa), which has also come to be called the Iroquois Constitution.
The Great Law is oral in form as opposed to the written documents ofnon-Indians. The
oral tradition that established this law continues to be the only form that is recognized
by the Indians and is codified in a series ofwampum belts held at the Onondaga Nation.
82 Guillaume, supra note 79, at 498.
83 Supra note 80.
84 Haudenosaunee website <http://www.sixnations.org>.
85 The term "Iroquois" comes from an Algonquian word "Irinakhoiw" meaning "real adders." This
"illustrates a common phenomenon in which a derisive term used by a native group's enemy
becomes the accepted designation ... [in] European languages." See John C. Mohawk, Iroquois
Confederacy, in ENCYCLOPEDIA OF NORTH AMERICAN INDIANS 299 (1996). For an alternative
explanation, see BRUCE JOHANSEN, FOUNDING FATHERS: BENJAMIN FRANKLIN, THE IROQUOIS AND
THE RATIONALE FOR THE AMERICAN REVOLUTION 41 (1982) ( "The French use of the term Iroquois
to describe the confederacy was itself related to this [sophisticated] oral tradition; it came from the
practice of ending their orations with the two words 'iro' and 'kone.' The first meant 'I say' or 'I
have said' and the second was an exclamation ofjoy or sorrow according to the circumstances ofthe
speech. The two words, joined and made subject to French pronunciation, became Iroquois.").
86 See note 2 supra. Some historians distinguish between the Iroquois League and the Iroquois
Confederacy. The former is considered to have been intramural, seeking cooperation between
member nations;The latter is seen as having been formed in the seventeenth and eighteenth centuries
for extramural influence on neighboring Indians and colonial powers. See Timothy J. Shannon,
INDIANS AND COLONISTS AT THE CROSSROADS OF EMPIRE, 17 n.1 (2000).
87 George-Kanentiio, supra note 2 at 105. Numerous resources on the Handsome Lake and the
Handsome Lake Code can be found in Haas, section II(A) supra.
'
Chapter 30: Indians
2.
597
Printed and Online Translations
The White Roots ofPeace by Paul A.W. Wallace is a composite narrative of the
origins of the Great Law written from the three main versions available in English:
The Newhouse version, gathered and prepared by Seth Newhouse, a Canadian
Mohawk, and revised by Albert Cusick, a New York Onondaga-Tuscarora. This version
has been edited and published by Dr. Arthur C. Parker of the Rochester Museum [see
below].
The Chiefs' version, compiled by the chiefs ofthe Six Nations Council on the Six
Nations Reserve, Ontario, 1900. This version appears in the "The Traditional History
of the Confederacy of the Six Nations," edited by Duncan C. Scott (Proceedings and
Transactions ofthe Royal Society ofCanada, vol. 5 Ottawa, 1911).
The Gibson version, dictated in 1899 by Chief John Arthur Gibson of the Six
Nations Reserve to the late J.N.B. Hewitt ofthe Smithsonian Institution, and revised by
Chiefs Abram Charles, John Buck, Sr., and Joshua Buck, from 1900 to 1914. This
version, which is still in manuscript, was translated into English in 1941 by Dr. William
N. Fenton ofthe Bureau ofAmerican Ethnology, Smithsonian Institution, with the help
of Chief Simeon Gibson. 88
Other translations of the Great Law include:
The Great Law ofPeace ofthe Longhouse People = Kaianerekowa Hotinonsionne.
Rooseveltown, N.Y.: Akwesasne Notes, 1977;
The Constitution of the Five Nations or The Iroquois Book of the Great Law by
Arthur C. Parker; originally published: Albany: University of the State of New
York, 1916 (New York State Museum bulletin: 184); reprinted: Ohsweken, Ont.:
Iroqrafts, 1984;
Iroquois Constitution,
greatlaw.htm1>;
at
<http://www.iroquoisdemocracy.pdx.edulhtml/
Iroquois Constitution, at <http://www.1aw.ou.edu/hist/iroquois.htm1>;
A synopsis and explanation of the Great Law ofPeace, at <http://www.sixnations:
org/Great_Law_of_Peace>.
3.
Impact on U.S. Constitution
The U.S. bicentennial celebrations unleashed extensive publication about the
significant impact of the Great Law and Iroquois union on the formation of the U.S.
88
PAULA.W.WALLACE, THE WHITE ROOTS OF PEACE vii (Saranac Lake, N.Y.: Chauncey Press, 1986)
(1946). This 1986 reprint edition has a Prologue by Prof. John Mohawk and an Epilogue by Dennis
Banks which provide cultural and contemporary contexts. A 1994 reprint (Santa Fe, N.M.: Clear
Light Publishers) includes a foreword by Chief Leon Shenandoah (Onondaga) and an epilogue by
Prof. John Mohawk.
598
New York Legal Researchr Guide
Constitution. In 1988, Congress passed concurrent resolutions recognizing this
contribution. 89 Other titles that focus on these foundations are:
Indian Roots of American Democracy, Special Constitution Bicentennial Edition,
Northeast Indian Quarterly, [Ithaca, N.Y.]: Cornell University, 1988. Double issue
covering vol. N, No.4 (Winter 1987) and vol. V, No.1 (Spring 1988).
Included are papers from a conference held at Cornell University in the fall of
1987 on the Great Law of Peace, and the Congressional concurrent resolutions
cited above.
Bruce E. Johansen, Native American Political Systems and the Evolution of
Democracy: An Annotated Bibliography. Westport, Conn.: Greenwood Press,
1996, available at <http://www.ratical.com/many_ worlds/6Nations
/NAPSnEoD.htm1>.
- - - , Forgotten Founders: Benjamin Franklin, the Iroquois and the rationalefor
the American Revolution. Ipswich, Mass.: Gambit, 1982, available at
<http://www.ratical.com/many_worlds/6NationsIFF.htm1>.
Oren Lyons, et aI., Exiled in the Land ofthe Free: democracy, Indian Nations, and
the U.S. Constitution. Santa Fe, N.M.: Clear Light Publishers, 1992.
This "Iroquois Influence Thesis" is not without its critics. Timothy 1. Shannon's
Indians and Colonists at the Crossroads ofEmpire: The Albany Congress of
1754 (Ithaca, N.Y.: Correll University Press, 2000) lists a more extensive
bibliography for both sides on page 7.
4.
Women
For insight on the role of women in the Great Law, see:
Renee Jacobs, Iroquois Great Law ofPeace and the United States Constitution: how
the Founding Fathers ignored the Clan Mothers, 16 American Indian Law
Review 497 (1991).
Robert Porter, Decolonizing Indigenous Governance: observations on restoring
greaterfaith and legitimacy in the government ofthe Seneca Nation (Parts III,
N, & V), 8 Kansas Journal of Law & Public Policy 97 (1999).
Roots ofthe Women's Line, Section IV, in Indian Roots ofAmerican Democracy
(section III(A)(3) above).
B.
Traditional Governance Structure
The Great Law provides a framework for the governance and traditions of each
nation and defines the functions of the Grand Council and the process of law making
and dispute resolution. It is a participatory democracy where the power flows up from
89
S. Con. Res. 76, IOOth Congo (1988); H.R. Con. Res. 331, lOOth Congo (1988).
Chapter 30: Indians
599
the individual in the clan through the Council of Chiefs to the Grand Council in a:
structure similar to that found in upper and lower houses insome parliamentary systems.
Eachnation is composed ofa different combination ofpossible clans: Turtle, Bear,
WoIr, Heron, Hawk, Snipe, Beaver, Deer, and Eel. All nations have at least the Turtle,
Bear and WoIr clans. Clan Mothers hold primary responsibility for the function of the
clans. They hold clan meetings where issues are discussed and chosen to be sent up to
the Chiefs.
Male leaders of each clan chosen (and removed) by the Clan Mothers are called
hoyaneh-"Caretakers ofthe Peace." They are known in English as chiefs or sachems.
There may be more than one hoyaneh for each clan but all the hoyaneh share equal
power in the nation's Council ofChiefs. Chiefs are installed during a ritual Condolence
ceremony.90
The principal roles of the Council of Chiefs are as peacemaker and protector of
the t~rritory and the people. As such, chiefs hold the law, people and religion in the
palm of theit hands: they must insure the traditions and culture for future generations
and carry on the annual cycle of ceremonies. In their decision-making they must
consider the social, ceremonial, economic, educational and political life of their
community.
The national Councils of Chiefs serve as representatives to the Grand Council of
Chiefs which sits at Onondaga. There is no hierarchy and all chiefs are on equal footing.
Chosen by all six nations is the Tadadaho, the chief from the Onondaga Nation to
preside over the Grand Council. The women's role is to monitor proceedings and report
inconsistences with the Great Law to the chiefs. The Grand Council historically made
treaties with foreign nations, resolved disputes among the Six Nations, and planned for
the protection and welfare ofthe people. Today the Grand Council passes laws to insure
the traditions for future generations, continues to strategize on the future of the
Confederacy, and engages with foreign sovereigns and international bodies, such as the
United Nations, to achieve these goals.
The Confederacy maintains a balance ofpower between nations by its process of
consensual decision-making. The Grand Council is divided into "brotherhoods." The
Elder Brothers are the Mohawks, Senecas, and Onondagas. The Younger Brothers are
the Oneidas, Cayugas, and Tuscaroras.
The Onondagas, known as the "Firekeepers," sit at the eastern end of the
longhouse and introduce the issue for debate. The Senecas (i.e., the Tonawanda
Senecas) and Mohawks, sitting on the north side, present to the assembled Grand
Council and deliberate until a consensus is achieved. Then the Cayugas, Oneidas, and
90
For a brief description of the Condolence ceremony and its place in the Confederacy diplomatic
affairs, see Robert A. Williams, Jr., Linking Arms Together: Multicultural Constitutionalism in a
'North American Indigenous Vision of Law and Peace, 82 CAL. L. REV. 983, 997-1000,1017-19
, (1994). See also Wil.LIAM N. FENTON, THE GREAT LAW AND THE LONGHOUSE: A POLITICAL
HISTORY OF THE IROQUOIS CONFEDERACY (1998).
600
Tuscaroras, sitting opposite the Senecas and Mohawks, meet in a similar manner and
announce their decision to the Council.
When both sides come to a mutually agreeable decision, they inform the
Onondagas who afftrm ifthe decision comports with the Great Law. Where both sides
do not agree, the Onondaga may ask each side to reconsider and the process begins
anew, or they may table the matter for a future meeting. When consensus is reached, the
Onondaga announce the decision to the people and it becomes a law of the
Confederacy.
Consensus decision making is not majority rule:
The Chiefs do not vote on matters, but discuss them from all perspectives. Each
option must be considered. Consensus requires thoughtful analysis and sensitive
negotiation. Different points ofview must reach a compromise that is acceptable
to all. While this requires more deliberation, it eliminates a dissenting minority
because no decision is made unless all sides agree. 91
Following the American Revolution, many members ofthe Six Nations left New
York and settled in Canada, particularly at the Grand River Reserve. Because of
distance from the Grand Council Fire in Onondaga, the nations on Grand River "kindled
a confederacy fire" there and Grand Councils are conducted in both places:
Although the two councils unite and act as one whenever business must be
conducted that affects them both, the Grand River Council is the primary
political organization in negotiations with Canada and its political subdivisions,
while the <;Jrand Council at Onondaga is the primary negotiator with the United
States and its subdivisions.92
c.
Historical Overview and Bibliography
The Iroquois Confederacy was a powerful political and economic force in North
America from the early seventeenth century through the American RevolutiOlJ.. The
European colonial powers made treaties with each of the nations and the Confederacy
to maintain peace and trade relations. The Indians rely on these treaties today to confIrm
their sovereignty and refute state or federal jurisdiction over their territory or national
affairs and to provide a basis for claims to land. 93
Indian issues in NewYork are complicated by confusion over conflicting authority
for the extinguishment ofIndian land title during the Articles ofConfederation and after
91
92
93
Great Law of Peace: How Does the Grand Council Work, at Haudenosaunee website
<http://www.sixnations.org>.
John C. Mohawk, Iroquois Confederacy, in ENCYCLOPEDIA OF THE NORTH AMERICAN INDIANS 299
(1996).
See infra section IV.
Chapter 30: Indians
601
the adoption of the U.S. Constitution (between the newly fonned state and the federal
governme'nt).94
New York, as a colony and in early statehood, aggressively sought control of
Indian land and assumed its right to treaty with the Indian nations. Despite the passage
in 1790 of the Nonintercourse Act,95 which declared the federal government's sole
authority to approve the sale of Indian land, New York continued to enter into treaties
and assumed jurisdiction in numerous ways throughout the nineteenth and twentieth
centuries. Indian "law" in New York is the result ofthese conflicts between federal and
state jurisdiction and Indian sovereignty.
1. Jurisdiction
For historical background on the jurisdictional struggle in New York State:
Gunther, Gerald. Governmental Power and New York Indian Lands-A
ReassessmentofaPersistentProblem ofFederal-StateRelations, 8 Buffalo Law
Review 1 (1958);
Hauptman, Laurence M. Formulating American Indian Policy in New York State,
1970-1986. Albany: State University ofNew York Press, 1988. Bibliography at
171-203;
Upton, Helen M. The Everett Report in Historical Perspective: the Indians ofNew
York State. Albany: New York State American Revolution Bicentennial
Commission, 1980;
Klute, James W. Note, The New York Indians Rightto Self-Determination, 22 Buffalo
Law Review 985 (1973);
Porter, Robert B. Jurisdictional Relationship Between the Iroquois and New York
State: An Analysis of25 U.S. C. Sec. 232,233, 27 Harvard Joumal on Legislation
497 (1990) (see section I above);
Porter, Robert B. Legalizing, Decolonizing, and Modernizing New York State's
Indian Law, 63 Albany Law Review 125 (1999).
Pound, Cuthbert. Note, Nationals Without a Nation: the New York State tribalIndian,
22 Columbia Law Review 97 (1922).
94
For those trying to follow the various land transactions, confusion also stems from overlapping royal
land grants to the colonial powers (particularly between Massachusetts and New York). See the
Hartford Compromise of 1786 in the WmpPLE REPORT, supra note 42, at 105, wherein New York
.. assumed jurisdiction over its lands within its boundaries but Massachusetts retained the right ofpreemption, Le., the first right to extinguish title to Indian lands. The sale of pre-emption rights to land
speculators, many of whom doubled as government officials or missionaries, contributed to the loss
of Indian land. See also UPTON, supra note 22, at 28-39.
95 Supra note 61.
602
2.
Politics and External Influences
For further understanding of the political, social, religious and economic forces
at play, see the works listed below.
Beauchamp, WilliamM.A History ofthe New York Iroquois, Now Commonly Called
the Six Nations. Port Washington, N.Y.: Ira Friedman, Inc., 1962.
Originally published as New York State Museum Bulletin 78, Archeology 9
(1904).
Benn, Carl. The Iroquois in the War of1812. Toronto: University of Toronto Press,
1998.
Bibliography at 249-56.
Colden, Cadwallader. The History ofthe Five Indian Nations ofCanada which are
Dependent on the Province of New York, and Are a Barrier Between the
English and the French in That Part of the World. 2 v. New York: New
Amsterdam Book Co., 1902.
Fenton, William N. The Great Law and the Longhouse: a political history ofthe
Iroquois Confederacy. Norman, Okla.: University of Oklahoma Press, 1998.
Bibliography at [743 ]-64.
Graymont, Barbara. The Iroquois in the American Revolution. Syracuse, .N.Y.:
Syracuse University Press, 1972. Bibliographical essay at 327-43.
Hauptman, Laurence M. Conspiracy ofInterests: Iroquois dispossession and the rise
ofNew York State, Syracuse, N.Y.: Syracuse University Press, 1999.
Hauptman, Laurence M. The Iroquois and the New Deal. Syracuse, N.Y.: Syracuse
University Press, 1981.
Bibliography at [229]-48.
Hauptman, Laurence M. The Iroquois in the Civil War: from battlefield to
reservation. Syracuse, N.Y.: Syracuse University Press, 1992.
Hauptman, Laurence M. The Iroquois Struggle for Survival: World War II to red
power. Syracuse, N.Y.: Syracuse University Press, 1986.
Hough, Franklin B. Proceedings ofthe Commissioners ofIndian Affairs Appointed
by Law for the Extinguishment of Indian Titles in the State of New York,
Albany: Joel Munsell, 1861.
Chapter 30: Indians
603
Jennings, Francis. The Ambiguous Iroquois Empire: the Covenant Chain
Confederation ofIndian tribes with English coloniesfrom its beginnings to the
Lancaster Treaty of 1744. New York: W.W. Norton, 1984.
Nammack, Georgiana C. Fraud, Politics, and the Dispossession ofthe Indians: the
Iroquois land frontier in the colonial period. Norman, Okla.: University of
, Oklahoma Press, 1969.
The Oneida Indian Experience: two perspectives, Jack Campisi & Laurence M.
Hauptman, eds. Syracuse, N.Y.: Syracuse University Press, 1988.
Porter, Robert B. Building a New Longhouse: the casefor government reform within
the Six Nations ofthe Haudenosaunee, 46 Buffalo Law Review 805 (1998)
Richter, Daniel K. Cultural Brokers and Intercultural Politics: New York-Iroquois
relations, 1664-1701, 75 Journal ofAmerican History 42 (June 1988).
Shannon, Timothy J. Indians and Colonists at the Crossroads ofEmpire: the Albany
Congress of1754. Ithaca, N.Y.: Cornell University Press, 2000.
The Sixty Years' War for the Great Lakes, 1754-1814, David C. Scaggs & Larry L.
Nelson, eds. East Lansing, Mich.: Michigan State University, 2001.
Symposium on Law, Sovereignty and Tribal Governance: the Iroquois Confederacy,
46 Buffalo Law Review, Fall 1998.
Nine articles and essays at 799-1095.
Trelease, Allen W. Indian Affairs in Colonial New York: the seventeenth century.
Ithaca, N.Y.: Cornell University Press., 1960.
Bibliography at 364.
3. Land
An important distinction from other Indian nations who were relocated to lands
"reserved" for their use and held in trust by the United States, Indian nations in New
York hold aboriginal title. For background on land claims and the Indian view of land
tenure, see the titles listed below.
Berman, Howard R. The Concept ofAboriginal Rights in the Early Legal History of
the United States, 27 Buffalo Law Review 637 (1978).
Documents ofAmerican Indian Diplomacy: treaties, agreements, and conventions,
1775-1979, at 6-15, Vine Deloria, Jr. & Raymond J. DeMallie comps. Norman,
Okla.: University of Oklahoma Press, 1999)
,Churchill, Ward. Struggle to Regain a Stolen Homeland: the Iroquois land claims in
Upstate New York, in Ward Churchill, Struggle for the Land 87-111. Momoe,
Mass.: Common Courage Press, 1993.
604
Hauptman, Laurence M. Conspiracy ofInterests: Iroquois dispossession and the rise
ofNew York State. Syracuse: N.Y., Syracuse University Press, 1999.
Kendrick-Hands, Karen D. Note, State Sovereignty and Indian Land Claims: the
validity of New York's treaties prior to the Nonintercourse Act of 1790,31
Syracuse Law Review 797 (1980).
Malloy, Robin Paul. Letters from the Longhouse: law, economics and native
American values, 1992 Wisconsin Law Review 1569.
Nelson, Katharine F. Resolving Native American Land Claims and the Eleventh
Amendment: changing the balance ofpower, 39 Villanova Law Review 525
(1994).
Parker, Linda S. Native American Estate: the struggle over Indian and Hawaiian
lands. Honolulu: University of Hawaii Press, 1989.
Vecsey, Christopher, and William A. Starna. Iroquois Land Claims. Syracuse, N.Y.:
Syracuse University Press, 1988.
4.
Treaty Making
Printed treaties are necessarily records from the non-Indian perspective and
culture. Consult the titles listed below for background on treaty making in colonial
North America and insight into the Indian concept of diplomacy and historical events.
Berman, Howard R. Perspective on American Indian Sovereignty and International
Law, 1600 to 1776, in Exiled in the Land of the Free: democracy, Indian
nations, and the U.S. Constitution 125-88. Santa Fe, N.M.: Clear Light
Publishers, 1992.
Fenton, William N. The Great Law and the Longhouse: a political history of the
Iroquois Confederacy. Norman, Okla.: University of Oklahoma Press, 1998.
Harvard, Gilles. The Great Peace ofMontreal of1701: French-Native diplontacy in
the seventeenth century. Montreal: McGill Queen's University Press, 2001.
The History and Culture ofIroquois Diplomacy: an interdisciplinary guide to the
treaties ofthe Six Nations andtheir league, Francis Jennings, ed. Syracuse, N.Y.:
Syracuse University Press, 1985.
This book also contains a chronology of treaty events, a gazetteer of place
names, and a descriptive list of people involved in Iroquois-colonial relations.
This book is a companion reference manual for a large microfilm collection
published for the D'Arcy McNickle Center for the History of the American
Indian at the Newberry Library in Chicago: Iroquois Indians: a documentary
history ofthe diplomacy oftheSixNations andtheirLeague, Francis Jennings,
ed. (Woodbridge, Conn.: Research Publications, 1985). This fifty-reel set with
Chapter 30: Indians
605
printed index is a chronological arrangement of8,000 documents from the early
sixteenth century to 1842 including "minutes or treaty conferences, the
agreements resulting from formal meetings, and a broad range of background
materials useful for interpreting motives, procedures, and effects." Photographs
of wampum belts are included on the last reel.
Jennings, Francis. The Ambiguous Iroquois Empire: the Covenant Chain
Confederation ofIndian tribes with English coloniesfrom its beginnings to the
Lancaster Treaty of 1744. New York: W.W. Norton, 1984.
Jones, Dorothy V. License for Empire: colonialism by treaty in early America.
Chicago: University of Chicago Press, 1982.
Powless, Irving, Jr. Treaty of Canandaigua 1794: 200 years of treaty relations
between the Iroquois Confederacy and the United States. Santa Fe, N.M.: Clear
Light Publishers, 2000.
Williams, Robert A., Jr. Linking Arms Together: multicultural constitutionalism in
a North American indigenous vision of law and peace, 82 California Law
Review 983 (1994).
5. Bibliography
.Ah excellent annotated bibliography is Marilyn Haas ' The Seneca and Tuscarora
Indians (noted in section II(A) above). Many of the items cover the Iroquois
Confederacy.
Bruce E. Johansen and Barbara A. Mann (Westport, Conn.: Press, 2000) is a one
volume source with a bibliography at 339-53.
D.
Haudenosaunee World View
The Great Law ofPeace (described in section III(A) above) establishes not only
a governmental structure but represents a world view and way oflife. Awareness ofthe
cultural differences between Indian and non-Indian legal systems and way oflife is a
significant aspect in researching Indian law:
A Basic Call to Consciousness: the Haudenosaunee address to the western world,
Akwesanse Notes, ed. Geneva, Switzerland, Auhunn 1977. Rev. ed.: Summertown,
Tenn.: Book Publishing Co., 1991. Portions available on the Internet, at
<http://www.ratical.com/rnany_worlds/6Nations lBasicCtC.html>;
Cornelius, Carol. The Thanksgiving Address: an expression of Haudenosaunee
worldview, 1992 Akwe:kon Journal 14 (Fall).
Haudenosaunee website at <http://www.sixnations.org>.
Indian Roots of American Democracy, Special Constitution Bicentennial Edition,
Northeast Indian Quarterly, [Ithaca, N.Y.]: Cornell University, 1988. Double issue
covering vol. IV, No.4 (Winter 1987) and Vol. V, No. I (Spring 1988);
606
New York Legal Research
~uide
Thomas, ChiefJacob E. Teachingsfrom theLonghouse. Toronto: Stoddart Publishing,
1994.
IV. Treaties
The sources listed below are printed documents from non-Indian records which
necessarily reflect the recorders' version of events. 96 It must be remembered that the
traditional Indian method of record keeping was oral with memorials maintained in
wampum belts:
Wampum belts are diplomatic and ceremonial records made from shells and
fastened into a string or chain of several rows. Symbols were embroidered into
the belts as documents and historical records ofdiplomatic agreements, treaties,
records ofimportant historical events, and records ofsacred and ceremonial law.
. .Today, as in the past, the Haudenosaunee use the wampum belts as a record
oftheir laws, treaties, and other important events ofthe past. Wampum belts are
analogous in importance to U.S. government documents, such as the Declaration
of Independence and the United States Constitution.97
Wampum belts held by the New York State Museum were recently returned after
a generation of negotiations to the site of the Grand Council in Onondaga Territory.
Photographs ofsome wampum belts are contained in the Jennings microfIlm collection
described in section III(C)(4) above.
A.
Colonial Treaties
1.
Sources
To identify treaties between the Iroquois and colonial powers, see the Jennings
microfIlm set, Iroquois Indians: a documentary history ofthe diplomacy ofthe Six
Nations and Their League, and the companion reference manual, The History and
Culture ofIroquois Diplomacy: an interdisciplinary guide to the treaties ofthe Six
Nations and Their League (noted in section III(C)(4) above).
See also the following indexed titles:
Documentary History ofthe State ofNew York, E.B. O'Callaghan, ed. 4 v, Albany:
Weed, Parsons, 1849 [hereinafter O'Callaghan, Documentary History];
96
97
For analysis of treaty making from the Indian perspective see the sources listed supra in section
III(C)(4).
THE NATIVE NORTH AMERICAN ALMANAC 250 (Dwayne Champagne ed., 1994). See also Williams,
supra note 81, at 1017...,19; Fenton ,_supra note_81, at 224-39; Howard McLellan, Indian Magna
Carta Writ in Wampum Belts: Six Nations Shows Treaty Granting Them Independent Sovereignty
as Long as Sun Shines, 1AKWESASNE NOTES NEW SERIES 64 (Fal11995), reprintedfrom N.Y. rIMES,
June 7, 1925, available at <http://www.ratical.comlmany_worlds/6Nations/WampumBelts.htm1>;
G. PeterJemison, Sovereignty and Treaty Rights-We Remember, 7 ST. THOMAS L. REv. 631 (1995),
also in 1 AKWESASNE NOTES NEW SERIES 10 (Fall 1995), available at <http://www.ratical.coml
many_worlds/6Nations/TreatyRights.htm1>.
Chapter 30: Indians
607
Documents Relative to the Colonial History of the State of New York, E.B.
O'Callaghan, ed. 15 v. Albany: Weed, Parsons, 1853 [hereinafter O'Callaghan,
Documents];
The Papers ofSir William Johnson. 14 v. Albany: University of the State of New
York, 1921.
2. Selected Treaties
Guswenta, Agreement made with the Dutch in 1609, and later with the French,
English and United States to respect each others' laws, religion and government. It is
memorialized in a wampum belt with two rows ofblue, representing two ways of life,
separated by three rows of white, representing the three basic laws of the
Haudenosaunee: trust, respect and honor,98 available at <http://www.degiyagoh.net/
guswenta_two_row.htm>.
Treaty of1701 (Beaver Hunting Ground), 4 o 'Callaghan, Documents 908 (1854).
After the Five Nations agreed to not fight the Indian allies of the French,99 they signed
this deed giving their lands for protection by the King.
Treaty of1726,5 o 'Callaghan, Documents 800 (1855). The Senecas, Cayugas,
and Onondagas give George I a deed in trust in exchange for protection by the King.
Preliminary Articles of Peace Concluded with the Seneca Indians (Apr. 3,
1764),5 o 'Callaghan, Documents 621 (1854). Following the Devil's Hole massacre,
the Indians ceded to Britain a four-mile-wide strip along the Niagara River from Fort
Niagara to Niagara Falls.
Articles ofPeace between Sir William Johnson and the Genesee Indians (Aug.
6, 1764),5 O'Callaghan, Documents 652 (1855). Confirms the Preliminary Articles
above and extends the four mile wide strip from Niagara Falls to the rapids of Lake
Erie, and gives the islands in the river to Johnson.
Treaty ofFortStanwix (1768), 1 o'Callaghan, DocumentaryHistory 587 (1849).
Negotiated by Sir William Johnson for the British, this treaty established the northern
boundary of the colonies. A fold out map is included.
B.
Federal Treaties
1. Sources
The U.S. Statutes atLarge, volumes 7 and 8, reprints Indian treaties through 1842
in chronological order with an index by name. From volume 9 through 1871, when
Congress ceased treaty making with the Indians, treaties are listed in a separate section.
Volume 2 of Charles J. Kappler's Indian Affairs, Laws and Treaties, United
States Congress, Senate Committee on Indian Affairs, 1903-41, (New York: Interland
98
99
2 JUDICIAL COMMISSION REpORT, supra note 10, at 255.
See Howard R. Berman, Perspectives on American Indian Sovereignty and International Law, 1600
to 1776, in EXILED IN THE LAND OFTHEF'REE 173-75 (Oren R. Lyons, et aI. eds, 1992).
608
New York Legal Research Gui4e
Publishing, 1972) (hereinafter Kappler) contains Indian Treaties. It is also available on
the Internet at <http://digital.1ibrary.okstate.edu/kappler>.
Documents of American Indian Diplomacy: treaties, agreements, and
conventions, 1775-1979 (Nonnan, Okla.: University of Oklahoma Press, 1999)
compiled by Vine Deloria, Jr., and Raymond J. DeMallie, improves on Kappler's
deficiencies regarding ratified treaties and provides background material helpful to
understanding the context and meaning of treaties.
A Compilation ofAll the Treaties Between the United States and the Indian
Tribes Now in Force as Law (Washington, D.C.: U.S. Government Printing Office,
1873) includes the text of treaties between 1784 and 1873 and an index.
Charles C. Royce's Indian Law Cessions of the United States, United States
Bureau ofAmerican Ethnology Annual Report, 18, Part 2, 1900, at 521-995 ([New
York]: Arno Press, 1971) provides sunnnaries of treaties which are keyed to
corresponding maps including New York.
Treaties and Agreements of the Indian Tribes of the Great La/fes Region
(Washington, D.C.: Institute for the Development of Indian Law, Inc., 1974) is one
volume of the American Indian Treaty Series. It includes text of treaties from 1794 to
1909.
Treaties prior to 1827 might also be in American State Papers, Class II, Indian
Affairs. 2 v. (Washington, D.C.: Gales & Seaton, 1832, 1834).
The New American State Papers: Indian affairs (Wilmington, Del.: Scholarly
Resources, Inc., 1972) is a thirteen-volume compilation arranged by subject reprinting
items from the original American State Papers from 1832-61, the U.S. Congressional
Serial Set from 1817, and the Legislative Records Section in the National Archives.
Separately published indexes include: List ofIndian Treaties (1778-1881) U.S.
Congress, House, Committee on Interior and Insular Affairs, (Washington, D.C.: U.S.
Govt. Printing Office, 1964) and A Chronological List of Treaties and Agreem~nts
Made by Indian Tribes with the United States (1778-1909) (Washington, D.C.:
Institute for the Development of Indian Law, Inc., 1973).
Ratified and unratified treaties between 1787 and 1883 are included in the FNAMEXEC database on Westlaw and in LexisNexis in the EXEC Library, NAPTRY file.
2.
Selected Treaties
The Treaty with the Six Nations at Fort Stanwix, 7 Stat. 15, 2 Kappler 5,
Whipple Report100 86 (Oct. 22, 1784). This was the first treaty made with the
Haudenosaunee following the end of the Revolutionary War and took place at the
present site of Rome, N.Y. The fledgling U.S. needed to prevent the Iroquois from
expanding their union with the Western Indians. Peace and protection were declared
with the nations which had supported Britain: Senecas, Mohawks, Onondagas and
100
See supra note 42.
Chapter 30: Indians
609
Cayugas. Article I addresses the exchaIige ofhost~ges. Article IT declares the Oneida
and Tuscaroras secure in their lands since they had supported the Americans against the
British. Article III sets the western boundary of the lands of the Six Nations to lands
west ofLake Erie (and a four-mile strip east ofthe Niagara River from Lake Ontario to
Lake Erie), south to the Pennsylvania northern boundary, west to the end of this
boundary, and south along the western boundary of Pennsylvania to the Ohio River
Valley, assuring them peaceful possession ofthe lands inhabited north and east ofthis
line. Article N indicates the U.S. will deliver unspecified goods to the Indians. See also
Henry S. Manley, The Treaty ofFort Stanwix 1784 (Rome, N.Y.: Rome Sentinel Co.,
1932); William N. Fenton, The Great Law and the Longhouse: a political history of
the Iroquois Confederacy 601-21 (Norman, Okla.: University of Oklahoma, 1998)
[hereinafter Fenton].
The Treaty ofFort Harmar, 7 Stat. 33, 2 Kappler 23, Whipple Report 87 (Jan.
9,1789) (Mohawks did not participate). Article I confrrms the Treaty ofFort Stanwix
and declares all lands west ofthe boundary line released, quitclaimed, relinquished and
ceded to the United States. Article II reconfirms the Six Nations lands east and north
of the boundary line except for a six-mile square around Fort Oswego reserved to the
United States. Article III again secures the Oneida and Tuscaroras in the lands. Article
N renews and confirms the peace and friendship between the Six Nations (except the
Mohawks, unless they agree within six months) and the United States. A separate article
addresses jurisdiction for rQbbery, murder and horse theft.
Agreement with the Five Nations ofIndians, 2 Kappler 1027,1 American State
Papers, Indian Mfairs 232 (Apr. 23, 1792). Pres. Washington's agreement to pay an
annuity of$I,500 to the Senecas, Oneidas, and the Stockbridge Indians, incorporated
with them the Tuscaroras, Cayugas, and Onondagas.
The Treaty with the Six Nations (Pickering or Canandaigua Treaty), 7 Stat. 44,
2 Kappler 33, Whipple Report 89 (Nov. 11, 1794). Article I establishes permanent and
perpetual peace. Article II reconfrrms reservation oflands to the Oneida, Onondaga and
Cayuga Nations. Artiole III describes the boundaries ofthe Seneca territory. In Article
N, the Six Nations agree to not claim any other U.S. lands. In Article V, the Senecas
agree to let the U.S. make a road from present day Lewiston to Buffalo and allow free
passage. In Article VI, the U.S. agrees to pay annuities. Article VII sets out procedures
for dealing with misconduct: The Indian Nations will report offenses to the President
or his Superintendent and the Superintendent or other presidential designate will report
to the Grand Council or Council of Chiefs ofthe nation to which the offender belongs.
See Fenton at 622-706.
Treaty of Amity, Commerce and Navigation (Jay Treaty), 8 Stat.116 (1794,
Ratified June 24, 1795, and proclaimed Feb. 29, 1796). Treaty between Britain and the
United States whose Article III allows for free passage to Indians dwelling on either
side of the U.S./Canada border.
610
Treaty with the Oneida, Tuscarora andStockbridge Indians (Veterans' Treaty),
7 Stat. 47, 2 Kappler 37, Whipple Report 92 (Dec. 2, 1794, PtoclaimedJan. 21, 1795).
Payment to individuals for losses and services during Revolutionary War.
Treaty with the Mohawk Residingin Upper Canada, 7 Stat. 61 (Proclaimed Mar.
27, 1798). Relinquished claims to lands in New York.
Contract between Robert Morris and the Seneca Nation (also mown as the
Treaty ofBig Tree), 7 Stat. 601,2 Kappler 1027, Whipple Report 131 (Sept. 15, 1797).
Most ofWestem New York sold to Morris for $100,000 to be vested in the stock ofthe
bank of the U.S. for benefit ofthe Seneca Nation. Numerous reservations ofland kept
by Senecas.
Treaty with the Seneca, 7 Stat. 70, 2 Kappler 60, Whipple Report 140 (June 30,
1802, ratified and proclaimed, Jan. 12, 1803). Senecas sell land to the Holland Land
Company.
Treaty with the Seneca (Little Beard's Reservation), 7 Stat. 72, 2 Kappler 62,
Whipple Report 143, (June 30, 1802, Ratified and proclaimed, Feb. 7, 1803).
Agreement with the Seneca (Gardeau Reservation Treaty), 2 Kappler 1033 (Sept.
3, 1823), unratified.
Treaty with the New York Indians (Buffalo Creek Treaty), 7 Stat. 550, 2 Kappler
502, Whipple Report 15, (Proclaimed Apr. 4, 1840 [although the Senate did not pass
with required two-thirds majority in March 1840]). Intent was to remove all Indians
from New York and resettle them west of Missouri. Ogden Land Company was to
purchase Seneca lands (Buffalo Creek, Tonawanda, Allegany, and Cattaraugus
Reservations) and Tuscarora lands but because the agreement was obtained by
fraudulent means, a compromise treaty was agreed to in 1842 (see section Il(A) above).
Treaty with the Seneca (Compromise Treaty of 1842),7 Stat. 568, 2 Kappler 537
(May 20, 1842, Proclaimed Aug. 26, 1842). Senecas regain the Allegany and
Cattaraugus Reservations. Ninth article provided for "protection from all taxes and
assessments for roads, highways, or any other purpose."Note: Chiefs ofthe Tonawanda
Senecas did not participate.
Treaty with the Tonawanda Band of Senecas, 11 Stat. 735, 12 Stat. 991, 2
Kappler 767 (Ratified June 4, 1858, Proclaimed Mar. 31, 1859). Tonawanda Senecas
buy back the Tonawanda Reservation from the Ogden Land Co. Article 3 says land was
conveyed in trust to the U.S. until the New York legislature designates a state offici;;tl
to hold title in trust. Note: The Tonawanda Seneca Nation's records do not include this
..
I
Iast proVISIOn.
Chapter 30: Indians
C.
611
State Treaties
The Whipple ReportlOI includes an app~ndix ofstate treaties. A list is provided in
sectionX.
State treaties may also be found in the Jennings microfilm collection described in
section ill(C)(4) above.
v.
FederalSources
New York Indian Law necessarily requires some understanding ofthe history and
current status offederallaw and policy regarding Indians. The basic policy periods are:
Discovery, Conquest and Treaty-making (1532-1828); Removal and Relocation
(1828-87); Allotment and Assimilation (1887-1928); Indian Reorganization
(1928-42); Termination (1943-61); Self-Determination and Sovereignty (1961 to
present). Events in New York must be viewed within the political and social contexts
of the federal policy periods and within the confines of federal law.
Parts I and IT ofRobert Porter's article, The Demise ofthe Ongwehoweh and the
Rise of the Native Americans: redressing the genocidal act offorcing American
citizenship upon indigenous peoples,102 give. a historical review of federal Indian
policies and current legal status of indigenous peoples.
The Native American Constitution and Law Digitization Project
<http://thorpe.ou.edu> and the Native American Rights Fund, National Indian Law
Library <http://www.narf.org/niWrlinks.htm> are good places to begin online.
A.
Compilations
Washburn, Wilcomb E. The American Indian and the United States: a documentary
history. New York: Random House, 1973.
Includes full text ofReports ofCommissioners ofIndian Affairs; Congressional
debates; acts, ordinances and proclamations; treaties; judicial decisions.
Prucha, Francis P. Documents of United States Indian Policy, 3d ed. Lincoln:
University ofNebraska Press, 2000.
B.
Treatises
The classic Indian Law treatise is Felix S. Cohen's Handbook ofFederal Indian
Law, 1982 ed., Rennard Strickland, editor-in-chief(Charlottesville, Va.: Michie Co.,
1982), available at <http:/thorpe.ou.edu/cohen.htrnI>. The original 1942 edition published by the U.S. Government Printing Office is valuable for historical purposes and
includes a chapter oJ:!. New York Indians (Chapter 22) which was not carried over to the
1982 edition. The:6riginal edition also included several reference tables: Tribal Index
101
See supra note 42.
102
15 HARv. BLACKLETfERL.J. 107 (1999).
612
ofMaterials on Indian Law, Annotated Table ofStatutes and Treaties, Table ofFederal
Cases, Table of Interior Department Rulings, Table of Attorney Gfinera1's Opinions,
and Bibliography.
C.
Introductory Texts
American Indian LawDeskbook, 2ded. Joseph Mazurke, ed. Niwot, Colo.: University
Press of Colorado, 1998.
Canby, William C. American Indian Law in a Nutshell, 3d ed. St. Paul, Minn.: West
Group, 1998.
Pevar, Stephen L. The Rights ofIndians and Tribes: the authoritative ACLUguide
to Indian and tribal rights, 2d ed. Carbondale, Ill.: Southern Illinois University
Press, 2002.
D.
Executive Documents
Westlaw (FNAM-EXEC database) includes presidential proclamations (1879+),
executive orders (1871+), presidential memoranda (1984+) and solicitor general
opinions (1917-74), as well as treaties from 1787 to 1883.
Westlaw (FNAM-IBIA database) includes documents released by the Interior
Board ofIndian Appeals (IBIA) including adjudicative decisions ofthe Commission of
Indian Mfairs and other officials, administrative lawjudges, and the IBIA (from 1970).
LexisNexis (NAPEO me) has the executive orders pertaining to Native American
people (from 1984), the NAPPP file has the presidential proclamations (from 1879),
and the IBIA me has the decisions ofthe Interior Board ofIndian Appeals (from 1970).
(
E.
Laws, Statutes, Congressional Materials
Documents ofAmerican Indian Diplomacy: treaties, agreements, and conventions,
1775-1979, at 6-15. Vine Deloria, Jr. & Raymond J. DeMallie comps. Norman,
Okla.: University of Oklahoma Press, 1999.
Indian Affairs: Laws and Treaties. Charles J. Kappler, ed. 7 v. Washingto~ D.C.:
Govt. Print. Off., 1904, 1979, available at <http://digital.library.okstate.edu/
kappler>.
Johnson, StevenL. Guide to American Indian Documents in the CongressionalSerial
Set: 1817-1899. New York: Clearwater Publishing Co., 1977.
F.
Casebooks
Clinton, Robert N., Carole E. Goldberg, and Rebecca Tsosie. American Indian Law:
native nations and thefederal sy~tem cases and materials, 4th ed. Newark, N.J.:
LexisNexis, 2003.
Getches, David H. Cases and Materials on Federal Indian Law, 4th ed. St. Paul,
Minn.: West Group, 1998.
Chapter 30: Indians
613
Holt, Barry H., and Gary Forrester. Digest ofAmerican Indian Law. Littleton, Colo.:
F.B. Rothman, 1990.
Includes a chronology and summaries of cases.
National Indian Law Library. Landmark Indian Law Cases. Buffalo: William S. Hein
& Co., 2002.
G.
U.S. Indian Claims Commission
Index to the Decisions ofthe Indian Claims Commission, Nonnan A. Ross, ed. New
York: Clearwater Publishing Co., 1973.
Index to the Expert Testimony Before the Indian Claims Commission, the Written
Reports, NormariA. Ross, ed. New York: Clearwater Publishing Co., 1973.
This is a companion index to a microfiche collection that includes briefs and
records, expert records, transcripts of testimony and GAO reports.
Indian Claims Commission Decisions [and Index]. 43 v. Boulder, Colo.: Native
American Rights Fund, 1948-78
The NARF was authorized by the Commission in 1971 to reproduce its
decisions which previously had only been available in typescript format. The
Commission was created in 1946 to hear and decide all pre,.1946 Indian claims
against the United States. Prior to 1946 Indian claims would occasionally be
heard in the U.S. Court of Claims under special jurisdictional acts passed bythe
U.S. Congress. After August 13, 1946, cases were transferred back to the U.S.
Court of Claims (renamed the U.S. Court of Federal Claims in 1992).
Smith, E.B. Indian Tribal Claims Decided in the Court of Claims of the United
States, Briefed and Compiled to June. 30,1947. Washington, D.C.: University
Publications of America, 1976.
H.
Journal Articles
Fausett, Rory SnowArrow, and Judith V. Royster. Courts and Indians: sixtyjiveyears
oflegal analysis: bibliography ofperiodicalarticles relating to NativeAmerican
law 1922-1986, 7 Legal Reference Services Quarterly·l07 (1987).
Jorgensen, Delores, and Barb Heisinger. A Bibliography ofIndian Law Periodical
Articles, Published 1980-1990, 2d ed. Buffalo: William S. Hein & Co., 1992.
I.
General Reference Books: Encyclopedias, Chronologies, etc.
Atlas ofGreaiLakes Indian History, Helen H. Tanner, ed. Norman, Okla.: University
of Oklahoma Press, 1987.
Chronology ofNative North American History, Duane Champagne, ed. Detroit: Gale
Research, Inc., 1994.
614
New York L(!gal Research Guide
Encyclopedia ofNorth American Indians, Frederick E. Hoxis, ed. Boston: Houghton
Mifflin, 1996.
Haas, Marilyn L. Indians of North America: methods and sources for library
research. Hamden, Conn.: Library Professional Publications, 1973.
Handbook ofNorth American Indians, William C. Sturteyant, gen. ed. Washington,
D.C.: Smithsonian Institution, 1978-.
See particularly vol. 4, History of Indian-White Relations, Wilcomb E.
Washburn, ed., 1988, and vol. 15, Northeast Indians, Bruce G. Trigger, ed.,
1978.
Klein, Barry T. ReferenceEncyclopedia ofthe American Indian, 9th ed. Nyack, N.Y.:
Todd Publications, 2000.
White, Phillip M. American Indian Studies: a bibliographicguide. Englewood, Colo.:
Libraries Unlimited, 1995.
J.
Bibliographies
American Indians: a select catalog ofNational Archives microfilm publications.
Washington, D.C.: National Archives Trust Board, 1984.
Carter, Nancy Carol. American Indian Law: research and sources, 4 Legal Reference
Services Quarterly 5 (Winter 1984/85).
---.AmericanIndian Tribal Governments, Law andCourts: bibliographyofsources,
18 Legal Reference Services Quarterly 7 (2000).
National Indian Law Library Catalogue: an index to Indian legal materials and
resources. Boulder, Colo.: National Indian Law Library, Native American Rights
Fund, 1973-.
Native American Collection: a bibliography describing the microfiche collection
assembled and marketed by the Law Library Microform Consortium, by Jerry
Dupont, compo & ed. Honolulu: LLMC, 1990.
Prucha, Francis Paul. Bibliographical Guide to the History ofIndian-White Relations
in the United States. Chicago: University of Chicago Press, 1977.
Prucha, Francis Paul. Indian-White Relations in the United States: a bibliography of
works published 1975-80. Lincoln, Neb.: University ofNebraska Press, 1982.
K.
Online Guides
Federal Indian Law, State University of New York at Buffalo Law Library,
<http://ublib.buffalo.edu/libraries/units/law/guides_handouts /indian.html>.
Native American Law, University of Kansas Law Library, <http://www.law
.ukans.edu/library/tribal.html>.
Chapter 30: Indians
615
Nicely, Marilyn. AnnotatedBibliography ofP~deraland'tribalLaw: print and Internet
sources <http://thorpe.ou.edu/guide/researchGuide.html>.
VI. Colonial and State Sources
A.
State Archives and Records Administration
Guide to RecordsRelatingto NativeAmericans, at <http://www.archives.nysed.gov/a/
researcbroom/rr ed/native.shtm1>.
Guide to Records Relating to Native Americans. Albany: New York State Archives
and Records Administration, 1988.
B.
Colonial Records
Colden, Cadwallader. The History ofthe Five Indian Nations ofCanada which are
dependent on the province ofNew York, and are a barrier between the English
and the French in thatpart ofthe world. 2 v. New York: New Amsterdam Book
Co., 1992.
Documentary History ofthe State ofNew York, E.B. O'Callaghan, ed. 4 v. Albany:
Weed, Parsons, 1849.
Documents Relative to .the Colonial History of the State of New York., E.B.
O'Callaghan, ed. 15 v. Albany: Weed, Parsons, 1853.
The Papers of Sir William Johnson. 14 v. Albany: University of the State of New
York, 1921.
Wraxall, Peter. An Abridgement of the Indian Affairs contained in four folio
volumes, Transacted in the Colony ofNew York,from the Year 1678 to the Year
1751, Charles H. McIlwain, ed. New York: Benjamin Blom, 1968 (1915).
Includes a lengthy introduction on the fur trade and the personalities involved
in transactions with the Indians.
/
Statutes, etc.
C. Laws,
Laws ofthe Colonial andState Governments, Relatingto Indians andIndian Affairs,
from 1633 to 1831 Inclusive. Stanfordville, N.Y.: Earl M. Colman, 1979 (1832).
See New York section at 61-133.
D.
Commissioners of Indian Affairs
Hough, Franklin B. Proceedings ofthe Commissioners ofIndian Affairs Appointed
by Law for the Extinguishment of Indian Titles in the State of New York,
Albany: Joel Munsell, 1861.
An Act of March 25,1783 called for the appointment of three commissioners
of Indian Affairs. In an Act of April 6, 1784, the "Governor, with these
Commissioners, was authorized to associate them such other persons as might
616
be deemed expedient and to enter into such Compacts'and Agreements 'with the
Indians . . . ." This title includes the "Negotiations which attende'd these
Transactions" and includes detailed footnotes providing insight into persons
involved in Indian relations and background to many transactions, e.g, the
Livingston Leases on page 120.
E.
Legislative Documents
1. Indexes
Legislative hearings and reports as well as documents submitted to the legislature
by administrative agencies are valuable resources for tracing state policy, actions and
attitudes as well as Indians' responses. These materials and corresponding indexing
tools are discussed more fully in Chapter 5, Legislative History. Three are worth
repeating here:
Carter, Robert Allan. Annotated Lists and Indexes o/the New York State Assembly
andSenate DocumentSeries 1831-1918. Albany: University ofthe State ofNew
York, 1992.
The subject index lists the following references to the Senate (SD) and
Assembly (AD) Documents:
Cattaraugus Reservation: 1850 AD 136, 164; 1868 SD 72; 1873 SD 59,
60
Cayuga Indians: 1848 AD 61; 1849 AD 165; 1849 SD 64; 1851 AD 83;
1853 AD 26; 1853 SD 56, 81: 1861 SD 49,50;1886 SD 86; 1889
SD 35; 1891 SD 73; 1899 SD 20; 1900 AD 13;
Holland Land Company: 1835 AD 14; 1837 AD 224, 282; 1840 AD 350;
Holland Purchase: 1837 AD 224, 282; 1846 SD 18;
Indian Problem of the State of New York, Special Committee: 1889 AD
51;
Indians of North America: 1842 SD 92, 95; 1845 SD 84; 1846 SD 24;
1847 SD 70; 1850 AD 130; 1854 AD 49; 1857 AD 12; 1864 AD
153; 1865 AD 198; 1889 AD 51; 1890 SD 58; 1892 SD 10; 1900
AD 86; 1906 AD 40;
Oil Spring Reservation: 1868 SD 72;
Oneida Purchase: 1850 AD 32;
Onondaga Salt Springs Reservation: 1841 AD 83, 128; 1843 AD 39; 1854
AD 59, 132; 1859AD 155; 1871 AD 63; 1874 AD 96; 1889 AD 60;
St.RegisIndians: 1?33AD281; 1835AD318; 1841 AD 131; 1843 AD
136; 1850 AD 27; 1851 AD 32; 1853 AD 39; 1855 SD43; 18s6AD
34; 1870 AD 202;
St. Regis Reservation: 1831 SD 19; 1832 SD 12; 1845 AD 168;
617
Chapter 30: Indians
Seneca Indians: 1834 AD3?5; 1836 AD 82; 1841 AD 88; 1843 SD 84;
1845 SD 93, 94,104; 1846 AD 197; 1849 AD 108, 189, 190,205;
1850AD 136, 164; 1850SD21,59, 108; 1857 AD 17; 1857SD28;
1860 AD 28; 1865 AD 32, 61, 63,128; 1868 SD 24;
Stockbridge Indians: 1834 AD 343; 1838 AD 173; 1846 AD 158; 1848
AD 53, 81; 1853 AD 79; 1854AD 106; 1855 AD 103; 1855 SD 66;
1856 AD 205; 1857 AD 46; 1857 SD 72; 1861 AD 82,122; 1866
SD 30; 1876 AD 78; 1878 AD 142;
Tuscarora Indians: 1850 SD 65;
Tonnawanta [sic] Indian Reservation: 1831 AD 318.
Carter, Robert Allan. Annotated Lists and Indexes ofthe New York State Assembly
andSenate DocumentSeries 1919-1976. Albany: University ofthe State ofNew
York,1986.
Index entries for reports compiled in the New York Legislative Documents
Series include:
Indian Affairs, Joint Legislative Committee on: 1944-51; 1945-51; [1946-44];
1947-88;1948-64;1949-39;1950-57,1951-66;1952-74;1953-74;1954-42;
1955-41; 1956-49; 1957-9; 1958-38; 1959-15; 1960-12; 1961-28; 1962-6;
1963-32; 1964-38;
Indians (in addition to those above): 1919-67; 1924-79;
Indians-Education: 1954-42; 1955-41;
Onondaga Salt Springs Reservation: 1953-65(F).
Haase, Adelaide R. Index ofEconomic Material in Documents ofthe States ofthe
United States: New York 1789-1904. Washington, D.C.: Carnegie Institution of
Washington, 1907.
Reprinted by Kraus in 1965. Under the index heading "Land: Indian Lands"
there are three pages of annotated entries.
2.
Significant Reports
New York (State) Legislature. Assembly. Special Committee to Investigate the Indian
Problem. Report ofthe Special Committee to Investigate the Indian Problem of
the State ofNew York, Appointed by the Assembly of1888. Albany: Troy Press
Company, prirtters, 1889 (Assembly Document No. 51).
The infamous Whipple Report (named after its chairman in its full version)
includes testimony from hearings. Appendices reprint federal and state treaties
and miscellaneous documents (see section X). A fuller description is provided
in lmliaJlS-of-Nonh-Ameriea (Haas, noted above in section ll(A) at 383-84).
.-·"lk.,
-n....e.. 5f..-'Ao'<..~..f -r'1
sc..::;-;.,'£Y;t--
c;;f.l.v../-A-A...3ta
I ' ""'\
New York (State) Legislature. Assembly. Special Committee on Indian Affairs. Report.
Albany, Feb. 20, 1906 (Assembly Document No. 40).
7
618
Concerned with determining the powers of the state to regulate and control
Indians. Appendix E contains a bibliography of Indian materials in the New
York State Library, notably prior to the 1911 fire. A fuller description is
provided in lmlitttts-of-No-,471Te1'iefl (Haas, noted above in section I1(A), at
385).
New York (State) Legislature. Joint Legislative Committee on Indian Affairs. Report
of Joint Legislative Committee on Indian Affairs. Albany, Mar. 15, 1946
(Legislative Document No. 44).
Historical synopsis of the conflicting legal status of New York Indians.
New York (State) Legislature. Joint Legislative Committee on Indian Affairs. Report
ofthe Joint Legislative Committee on Indian Affairs. Albany, 1950 (Legislative
Document No. 57).
Legislative history of the civil jurisdiction bills sent to Congress.
Everett, Edward. Report ofthe New York State Indian Commission to Investigate the
Status ofthe American Indian Residing in the State ofNew York: [The Everett
Report] transmitted to the Legislature, March 17, 1922. Unpublished. [Albany:
New York State Education Department, reprint 1972].
A memorandum at the front ofthe volume from C.C. Daniels, Special Assistant
to the Attorney General, explains the story behind the Everett Commission and
its rejection by the Legislature. Everett determined the Indians to still be the
owners ofland left to them under the Treaty of Fort Stanwix, 1784. Included is
a transcript of a Conference of New York State and National Indian
Commissioners held at Saratoga on July 27, 1920 and testimony taken at
hearings at several Indian reservations. See Upton, The Everett Report in
Historical Perspective (section ill(C)(I) above).
F.
Executive Agencies
The Departments of Social Services (formerly the State Board of Charities) and
Education were the leading agencies involved with Indians throughout the nineteenth
and most of the twentieth centuries. 103
The New York State Interdepartmental Committee on Indian Affairs was created
by the governor on November 13, 1952 and continued until the Moss Lake Crisis
1974-77. Membership consisted of representatives from the State Commissioners of
Education, Health, Commerce, Social Services, Mental Hygiene, Environmental
Conservation and Transportation, the Superintendent ofPolice, and a Director ofIndian
Services. Annual reports exist from 1959 to 1975.
103
See HAUPTMAN, FORMULATING AMERICAN INDIAN POLICY, supra note 7, at 9-10,33-41,70-88;
UPTON, supra note 22.
Chapter 30: Indians
619
The ineffectiveness of this committee was noted repeatedly by the New York
Assembly Subcommittee on Indian Affairs from 1971 to 1977: the committee met only
once a year and its members owed primary allegiance to their departments. The
Director's total staff included two secretaries, a caretaker for the Tonawanda Indian
Community Building, a part-time agent for the Onondaga Reservation and a part-time
attorney for the Tonawanda Senecas. The Assembly recommended the creation of a
Commission on Indian Affairs with an Indian Advisory Council in 1971 and later in
1975 called for an Office of Native American Affairs. Neither recommendation was
acted upon. 104
Currently, three state agencies are charged with serving New York's ''Native
American" population: The Office of Children and Family Services (OCFS), the State
Education Education, and the Department of Health. The OCFS website is located at
<http://www.ocfs.state.ny.us/main/main/nas>.
The New York State Racing and Wagering Board has information on Indian
gaming at <http://www.racing.state.ny.us/indian>. It refers to the tribal-state compacts
with the Mohawks, Oneidas and Senecas.
An Index ofOpinions: New York State Attorney General and New York State
Comptroller on Indian Affairs [to 1961J was prepared by the Department of Law. It
also contains an essay and bibliography by the State Law Librarian, Ernest H. Breuer,
entitled The American Indian: a selected bibliography ofmaterial on the American
Indian-federal and New York State-in the New York State Library.
A bibliography of government publications from New York's executive and
legislative branches is available in Hauptman's Formulating American Indian Policy
in New York State 1970-86 at 177-82 (see section ill(C)(1) above) and in Upton's
Everett Report in Historical Perspective at 236-37 (see section ill(C)(1) above).
Haas's Jndians uJNOIt/' Amel'iea (see section Il(A) above) has a chapter on
government documents at 382-88.
G.
Courts
New York (State) Judicial Commission on Minorities. Report ofthe New York State
Judicial Commission on Minorities. Apr. 1991 5 v. (see section I(B) above).
New York (State) Unified Court System, Equal Employment Opportunity Division,
Reporton the Unified Court System's Implementation oftheRecommendations
ofthe New York State Judicial Commission on Minorities, 1995.
10;4 gi!e HAUPTMAN, FORMULATING AMERICAN INDIAN POllCY, supra note 7, at 34; New York State
'Legislature, Assembly Subcommittee on Indian Affairs,AnnualReport [1975], in NEWYORK STATE
INTERDEPARTMENTAL COMMITfEE ON INDIAN AFFAIRS, ANNuAL REpORT 1974-75, at 21.
620
/
H.
Reference Tools: Chronology, Gazetteer, Biographical List
Jennings, The History and Culture of Iroquois Diplomacy, (section III(C)(4)
above) has a useful chronology called a "Descriptive Treaty Calendar" in Chapter 9, a
"Gazetteer" ofplace names whichprovides alternative name/> andpresent locations, also
in Chapter 9, and an alphabetical listing ofIndians and non-Indians and descriptions of
"Persons Participating in Iroquois Treaties" in Chapter 10.
Bruce E. Johansen and Barbara A. Mann (Westport, Conn.: Greenword Press, 2000),
is a one-volume source with a bibliography at 339-53.
The Encyclopedia ofNew YorkIndians(St. Clair Shores, Mich.: Somerset, 1998)
is a two-volume set that contains treaties and illustrations.
I.
Special Collections
The Howard R. Berman Collection contains many titles included in this chap~~r.
<http://ublib.buffalo.edullibraries/unitsllaw/collectionslberman.htm1>. See· also the
Iroquois Books of Marilyn L. Haas Collection, at <http://ublib.buffalo.edu/libraries/
units/law/collections/haas.htm1>.
For a work in progress, see Selected Special Collections on Indians and New York
State, at <http://ublib.buffalo.edullibraries/unitsllaw/collections/selected.h1ml>.
VIT. Gaming and Taxation.
Aside from land claims, gaming and taxation are the subjects ofmost Indian-state
negotiations and the source of serious internal conflicts for the Indian nations. The
traditional Haudenosaunee are opposed to gaming based on the Great Law (see section
III(A)). They also believe the entrepreneurial commercial activities not regulated by the
traditional governments to benefit the people also violate the Great Law. Both ofthese
activities have increased New York State governmental involvement in Indian nations'
affairs which in turn involves questions of sovereignty and self-determination.
Rob Porter's Longhouse article (see section I(B)) details the history and effects
of these issues on each of the nations. Searching current online news sources is
recommended. Searching the Web can be fruitful, but critical evaluation of these
sources is warranted.
A.
Gaming
Indian gaming is federally regulated by the u.s. Bureau ofIndian Affairs pursuant
to the Indian Gaming Regulatory Act, Pub. L. No. 100-497, Oct. 17, 1988, 102 Stat.
2467,25 U.S.C. 270 et seq. Regulations are at 25 C.F.R. Part 501 et seq. A Tribal-State
Compact List is mailltllIDeld by thel indian Gan@g Management staffat the U.S. Bureau
of Indian Affairs. To find approval notices, search the Federal Register.
The New York Constitution Article 1, § 9, prohibits gambling except state-run
lotteries, pari-mutuel betting on horse races, and locally approved games of chance.
Chapter 30: Indians
621
Thus, interest in Indian casinos has led to three tribal-state compacts negotiated for
Indian gaming in New York State:
Nation-State Compact Between the Oneida Indian Nation and the State ofNew
York, approved June 4, 1993 by the Assistant Secretary- Indian Affairs, U.S.
Dept. of the Interior; published June 15, 1993, 59 Fed. Reg. 33, 160;
Tribal-State Compact Between the St. Regis Mohawk Tribe and the State of
New York, approved Dec. 4,1993 by the Assistant Secretary-Indian Affairs, U.S.
Dept. of the Interior; published December 13, 1993, 58 Fed. Reg. 65,272;
amended January 19, 1995; published January 19, 1995, 60 Fed. Reg. 5814. In
June 2003, the New York Court ofAppeals declared this compact invalid because
the governor failed to obtain legislative approval;I05
Nation-8tate Gaming Compact Between the Seneca Nation ofIndians and the
State ofNew York, approved November 18 , 2002 by the Assistant SecretaryIndian Mfairs, U.S. Dept. of the Interior; published December 9, 2002, 67 Fed.
Reg. 72968.
The website for the New York State Racing and Wagering Board at
<http://www.racing.state.ny.us/indian/indian.html> summarizes the federal statutes and
caselaw and answers some frequently asked questions.
B.
Taxation
In 2001, lands purchased by Indian Nations within their aboriginal territory were
declared tax-exempt. 106 Questions remain as to application of this rule to out-of-state
Indian nations such as the Stock bridge-Munsee or Seneca Cayuga Tribe of
Oklahoma. 107
Joseph J. Heath's essay, Review of the History of the April 1997 Trade and
Commerce Agreement Among the Traditional Haudenosaunee Councils of Chiefs
and New York State and the Impact Thereof on Haudenosaunee Sovereigntyl°s
explains the New York State tax scheme, the caselaw, and the complexities of the
effects on traditional and elected nation governments.
The interim "trade agreement" expired after sixty days and was not made public
by the state. However, the agreement was published in Daybreak Magazine by the
Native Studies Program in the American Studies Department at the State University of
New York atBuffalo in the Summer of 1997, volume 5, number 3. Subscription: P.O.
Box 315, Williamsville, NY 14231-0315. For more on the controversial nature ofthis
agreement see:
105
106
107
108
Saratoga County Chamber of Commerce v. Pataki, 798 N.E.2d 1047 (N.Y. 2003).
Oneida Indian Nation of New York v. City of Sherrill, 145 F. Supp. 2d 226 (N.D.N.Y. 2001).
See note 15 supra.
46 BUFF. L. REv. 1011 (1998).
622
Mohawk Nation Council of Chiefs' Press Release of May 21, 1997, at
<http://sisis.nativeweb.orgimohawk/apr24mncc.htmI>;
John Mohawk, New York's Tax War With Indians, June 14, 1997, at
<http://nativenet.uthscsa.edularchive/nl/9706/0023.html>.
In June 2003, New York State said it would begin enforcing the law banning the
sale of cigarettes via the Internet, telephone, or mail order to direct consumers. 109 A
temporary restraining order was denied in June 2003, but in September an injunction
was granted in federal district court. 110
vm.
International Law
Since the 1970s, the rights ofindigenous peoples have become an important topic
in international law and international bodies such as the United Nations and the .
Organization of.A.tnerican States. The Haudenosaunee have been active participants in
the development ofaninternational forum. 11l As early as 1923, Cayuga ChiefDeskaheh
traveled to the League ofNations in Geneva to seek membership for the Confederacy.
In 1977, the United Nations recognized the Confederacy as a "non-government
organization" (NGO) at the Non-Governmental Organization Conference on
Discrimination Against Indigenous Populations 112 in Geneva, where they presented, A
Basic Callto Consciousness-The Haudenosaunee Address to the Western World. 113
Since 1982, the Haudenosaunee have been actively participating on the U.N".
Commission on Human Rights' Working Group on Indigenous Populations. 114 Chief
Oren Lyons, Haudenosaunee Faithkeeper, addressed the assembly ofthe United Nations
in December 1992 when 1993 was declared "The Year ofthe Indigenous Peoples."l1s
In December 1993, the U.N. proclaimed the International Decade of the World's
2000 N.Y. Laws ch. 262. The pertinent consolidated law is New York Public Health Law § 1399-11.
See Lou Michel & Anthony Cardinale, State, Senecas Fight Over Online Tobacco Taxes, BUFF.
NEWS, June 13, 2003, at B 1.
110 Oltra, Inc. v. Pataki, 273 F. Supp. 2d 265 (W.D.N.Y. 2003); Ward v. State ofNew York, No. 03-CY485S, 2003 WL 22384803 (W.D.N.Y. Sept. 19,2003).
111 For a briefsummary, see Doug George-Kanentiio, Iroquois at the UN, 1995, 1 AKwEsASNE NOTES
NEW SERIES 71 (Fall, 1995), available at <http://www.ratical.comlmany_worids/6Nations/
IroquoisAtUN.html>.
112 REPORT OF INTERNATIONAL NGO CONFERENCE ON DISCRIMINATION AGAINST INDIGENOUS
POPULATIONS IN THE AMERICAS-1977, 20-23 SEPT., Palais de Nations, Geneva, 1977.
113 See supra section III(D). A large part of this publication is available at
<http://www.ratical.comlmany_worids/6NationslBasicCtC.htmI>.
I 14 The Working Group on Indigenoll~.rQP!!I!!!!Q!!~, ~~tl!-b!ished pursuant to Economic and Social
Council resolution 1982/34 of7 May 1982 (U.N. Doc. ECIRes/1982134), is a subsidiary organ ofthe
Sub-Commission on Prevention of Discrimination and Protection of Minorities and meets annually
in Geneva. See <http://www.unhchr.chlindigenous/main.html>.
115 Chief Lyons' statement is available at <http://www.ratical.comlmany_worids/6Nations/
OLatUNin92.htmI>.
109
Chapter 30: Indians
623
Indigenous People (1995-2004) and directed the Commission on HumanRights to give
priority consideration to establishing a permanent fonnn for indigenous peoples. 116
In 1995, the Haudenosaunee received an award ll7 from the United Nations
Environmental Program (UNEP) recognizing the development of the Haudenosaunee
Environmental Restoration Plan l18 as an Indigenous Strategy for Human Sustainability
pursuant to the United Nations Conference on Environment and Development, Agenda
21: Chapter 26. 119 The website ofthe Haudenosaunee Environmental TaskForce, author
of that plan, lists its mission, members, and publications at
<http://www.hetfonline.org>.
The selected sources listed below are offered as starting points.
A.
Monographs
Anaya, S. James. Indigenous Peoples in International Law. New York: Oxford
University Press, 1996.
!his book includes an appendix of declarations and conventions from various
international organizations, an extensive bibliography, a table of principal
documents including "international conventions and other international
standard-setting or programmatic instruments," and a table of cases from
national and international tribunals.
Anaya, S. James. International Law and Indigenous Peoples. Aldershot, Hants,
England: AshgatelDartmouth, 2003.
Churchill, Ward. Perversions of Justice: Indigenous Peoples and Anglo american
Law. San Francisco: City Lights Books, 2003.
MacKay; Fergus. A Guide to Indigenous Peoples' Rights in the Inter-American
Human Rights System. Copenhagen: International Work Groups for Indigenous
Affairs, 2002.
B.
Bibliographies
Aboriginal Law and Legislation, at <http://www.bloorstreet.com/300block/
ablawleg.htrn>.
116
U.N. G.A. Res. 48/163, 86th Session, U.N. Doc. AlRES/48/163(1993). See International Decade of
the World's Indigenous People (1995-2004), at <http://www.un.org/documents/galres/48/
a48rl63.htrn>.
- 117 Summit ofElders Haudenosaunee Environmental Restoration Strategy, 1 AKWESASNE NEWS NEW
SERIES 66-69 (Fall 1995), available at <http://www.ratical.com/many_worlds/6Nations/
EldersSurnrnit.htrnl>.
118 JANICE W. ANNUNZIATA, HAUDENOSAUNEE ENVIRONMENTAL RESTORATION: AN INDIGENOUS
STRATEGY FOR HUMAN SUSTAINABILITY: THE HAUDENOSAUNEE ENVIRONMENTAL TASK FORCE
(Cambridge, England: Indigenous Development International, 1995).
119 Agenda 21 : Chapter 26 was adopted by the U.N. Conference on Environment and Development, Rio
de Janeiro, June 13, 1992. U.N. Doc. NCONF.151/26 (vol. 3), at 16, Annex 2 (1992). The text of
Agenda 21 : Chapter 26 is available at <http://earthwatch.unep.netlagenda21/26.php>.
\
New York Legal Research
Guide
(
624
Indigenous Peoples' Rights, in Jack Tobin and Jennifer Green, Guide to Human
Rights Research. Cambridge, Mass.: Harvard Law School Human Rights
Program, 1994 at Chapter 4, section V, available at <http://www.law.
harvard.edu/programslHRP/guide/rg4ivvii.h1ml#anchor289157>.
~
Perkins, Steven C. ResearchingIndigenous Peoples Rights Under InternationalLaw,
1999 (2003), at <http://intelligent-internet.info/law/ipr2.h1ml>.
Roy, Bernadette K. and Dallas K. Miller. The Rights of Indigenous Pe(Jples in
International Law: an annotated bibliography. [Saskatoon, SK]: University of
Saskatchewan Native Law Centre, 1985, available at <http://www.ciesin.org/
docs/O10-284/toc.h1ml>.
C.
./
United Nations
The United Nations High Commissioner for Human Rights' website provides
detailed information regarding its efforts to create a permanent forum for indigenous
peoples as well as the activities of the Working Group on Indigenous Populations,
available at <http://www.unhchr.ch/indigenous/groups-01.htm>.
Full-text resolutions and reports are ~included as well as the Draft United
Nations Declaration on the Rights ofIndigenous Peoples. This was an annex to the
Sub-Commission on Prevention of Discrimination and Protection of Minorities
resolution 1994/45 of 26 August 1994. U.N. Doc. E/CNA/1995/2,
E/CNA/Sub.2/1994/56, at 105 (1994).
A comprehensive guide to the numerous programs and international bodies
working on indigenous peoples' issues is (ike United Nations Guide for Indigenous
Peoples, at <http://www.unhchr.chlhtm1lracism/OO-indigenousguide.h1ml>.
The United Nations Environmental Program (UNEP) in conjunction with the
University of Cambridge created the Indigenous Development International (INDI) to
develop a global overview of the political, economic and environmental relationships
between indigenous peoples and nation-states. The UNEP in partnership with the
Haudenosaunee Environmental Task Force have published a working document of
Haudenosaunee environmental concerns and principles for environmental rest()ration
and sustainable development,12o
IX. Directory of Indian Nations
A.
Haudenosaunee
Six Nations, Iroquois Confederacy: Traditional Governments
Internet: <http://www.sixnations.org>.
Haudenosaunee Environmental Task Force
Internet: <http://www.hetfonline.org>:
120
ANNUNZIATA, supra note 118.
625
Chapter 30: Indians
1.
Tuscarora Nation
Chief Leo Henry, Clerk
2006 Mt. Hope Rd.
Lewiston, NY 14092
(716) 297-4990
2.
Tonawanda Seneca Nation
7027 Meadville Rd.
Basom, NY 14013
(716) 542-4244
3.
ChiefEmerson Webster
Darwin Hill, Clerk
Cayuga Nation
P.O. Box 11
Versailles, NY 14168
(716)532-4847
FAX (716) 532-5417
4.
Cliief Arnold Hewitt
5616 Walmore Rd.
Lewiston, NY 14092
(716) 297-9279
Chief Vernon Isaac
Sharon Leroy, Office Manager
Onondaga Nation
Chief Irving Powless
RRl, Box 3198
Nedrow, NY 13120
(315) 492-4210
5.
Oneida Nation
Council of Chiefs
RR2
Southwold, Ont.
Canada NOL 2GO
Howard Elijah, Secretary
6.
Wilbur Homer, New York
Spokesperson
Kahnia'kehaka (Mohawk Nation Council of Chiefs)
Akwesasne Mohawk Territory
P.O. Box 366
via Rooseveltown, NY
(518) 358-3326 or (518) 358-3381
FAX (518) 358-3488
E-mail: [email protected]
Internet: <http://www.mohawknation.org>
626
Kanatsiohareke
4934 State Hwy. #5
Fonda, NY 12068
Tom Porter, Community Leader
(518) 673-5356
FAX: (518) 673-5575
E-mail: [email protected]
Internet: <http://www.mohawkcommunity.com/index.html>
B.
Federally Recognized Tribes
1.
Tuscarora Indian Nation [Tuscarora Nation] (see sectionIX(A)(I) above)
2. Tonawanda Band of Senecas [Tonawanda Seneca Nation]
(see section IX(A)(2) above)
3.
Seneca Nation oflndlans
Allegany Reservation
P.O. Box231
Salamanca, NY 14779
(716) 945-1790
FAX (716) 945-3917
Ricky Armstrong, President
Sheila Kettle, Clerk
Shelley Huff, Treasurer
E-Mail: [email protected]
Internet: <http://www.sni.org>
Cattaraugus Reservation
1490 Rte. 438
Irving, NY 14081
716/532-4900
FAX (716) 532-9132
4.
Cayuga Nation oflndians [Cayuga Nation] (see IX(A)(3) above)
5.
Onondaga Nation (see IX(A)(4) above)
Onondaga Indian Agent
Louella Derrick (State appt.)
Rte. l1A, Box 229
Nedrow, NY 13120
(315) 492-3041
627
Chapter 30: Indians
6.
Oneida Indian Nation of New York
Nation Representative
223 Genesee St.
Oneida, NY 13421
(315) 361-6300
FAX (315) 361-6333
Internet: <http://www.oneida-nation.net>
7.
St. Regis Mohawk Tribe
412 State Route 37
Hogansburg, NY 13655
(518) 358-2272
FAX (518) 358-3203
(518) 358-2272
C.
Chiefs: Ahna Ransom, Hilda Smoke,
Paul Thompson.
Patricia Thomas, Clerk
State-only Recognized Tribes
1. Shinnecock Tribe
P.O. Box 59
Southampton, NY 11969
(516) 283-6143
2.
Unkechaug Nation
Poosepatuck Reservation Community Center
P.O. Box 86
Mastic, NY 11950
(516 )281-6464
X. List of Treaties and Other Documents in the Whipple Report121
State TreatieslDeeds:
Onondagas
Sept. 12, 1788. Agreement and Deed of Cession; Ratified
by nation June 16, 1790, p. 190.
Onondagas
Nov. 18, 1793. Release and Quitclaim, p. 195.
Onondagas
July 28, 1795. Increased annuity; sold common rights
retained in previous two treaties, p. 199.
8nondagas
Feb. 25, 1817. Cede more of reserved lands; lease to
Ephriam Webster, p. 204.
121
See supra note 42.
628
\
Onondagas
Feb. 11, 1822. Cede more of reserve lands, p. 206.
Onondagas
Feb. 28,1829. Changed location ofannuitypayment,p.
208.
Senecas
Sept. 12, 1815. Sale of islands in Niagara River, p. 211.
Senecas
Aug. 20, 1802. Strip ofland one mile wide along Niagara
River from Buffalo to Stedman's Farm, including Black
Rock; state land grants to Parrish & Jones; p. 214.
Seneca
Mar. 30,1808. Deed from Senecas to Tuscaroras, p. 401.
Cayugas
Feb. 25, 1789. Cede all lands but reserving 100 square
miles around Cayuga Lake, p. 216. Cayuga ratification June
22, 1790, p. 220.
Cayugas
July 27, 1795. Refers to cessions made Feb. 25, 1789,
confirmed June 22, 1790; makes new sessions reserving
only a two-square-mile piece and a one-square-mi1e piece
with a mine; one-square-mile reserved for :ip.dividual
sachem, Fish Carrier, p. 224.
Cayugas
May 30, 1807. Sale of remaining two parcels above, p. 229.
Cayugas
(Sandusky)
Feb. 8, 1829. Changed method of annuity payment, p. 230.
Oneidas and
Tuscaroras
June 28, 1785. Major land cessions, p. 234.
Oneidas
Sept. 22, 1788. Ceded all lands, reserving parcel for
Oneida use and leasing; reserved parcels for New England
and Stockbridge Indians; grants to individuals: Perache, the
Kirklands, Penet, p. 237.
Oneidas
Sept. 1, 1795. Instrument authorizing certain members to
represent Oneida Nation, p. 241.
Oneidas
Sept. 15, 1795. Further cessions oflands reserved in Treaty
of Sept. 22, 1788, p. 244.
Oneidas
June 1, 1798. Further cessions with reservations for
individual families (U.S. agent present), p. 249.
Chapter 30: Indians
629
Oneidas
Mar. 5, 1802. Further cessions including legislative
resolution aclmowledging need for United States
ratification; state land grants to Docksteder & Kern, p. 252.
Oneidas
June 4, 1802. United .States Agent present to confirm
agreement of Mar. 5th above, p. 256.
Oneidas
Mar. 21, 1805. Oneida reservation partitioned between
Cornelius (Pagan) and Christian parties, p. 259; Recorded
Mar.l0, 1807, p. 263.
Oneidas
Mar. 13,1807. Christian Party sell part of their reserve
grant to De Ferrier, p. 263.
Oneidas
Feb. 16, 1809. Further cessions by Christian Party with
right to reside; grant to De Ferrier, p. 266.
Oneidas
Feb. 21, 1809. Cession by Pagan Party with reservation for
individuals, p. 269.
Oneidas
Mar. 3, 1810. Cessions by Christian Party, p. 272.
Oneidas
Feb. 27, 1811. Cessions by Christian Party, p. 275.
Oneidas
July 20, 1811. Cessions by Oneidas of interest in lands
occupied by Stockbridge and Brother town Indians., p. 278.
Oneidas
Mar. 3, 1815. Christian Party cessions, p. 280.
Oneidas
Mar. 27, 1817. Second Christian Party cessions, p. 284.
Oneidas
Aug. 26, 1824. First Christian Party cessions, p. 287.
Oneidas
Feb. 13, 1829. First Christian Party cessions, p. 291.
Oneidas
Oct. 8, 1829. First Christian Party cessions, p. 293.
Oneidas
Apr. 2, 1833. First Christian Party cessions and agreement
to remove by Nov. 1st, 1833, p. 296.
Oneidas.
Feb. 1, 1826. Second Christian Party (Pagan) cessions, p.
298.
Oneidas
Feb. 2, 1827. Orchard Party cessions, p. 301.
Oneidas
Apr. 3, 1830. Orchard Party cessions, p. 303.
Oneidas
630
Oneidas
Oneidas
June 19, 1840. First and Second Parties to sell certain
parcels to state before migration to Canada; includes
emigration lists, p. 309.
Oneidas
Mar. 8, 1841. Further migration cessions; includes
emigration lists, p. 329.
Oneidas
Mar. 13, 1841. Migration cessions by Orchard Party, p.
343.
Oneidas
Apr. 1, 1841. Agreement to Migrate; includes emigration
lists, p. 351
Oneidas
May 23, 1842. Orchard Party of Vernon, p. 356.
Oneidas
Feb. 25, 1846. Missionary Lot sale, p. 363.
Seven Nations
of Canada
May 31, 1796. Quitclaim and release of interest in lands in
New York; reserving six square miles at St. Regis, a square
mile each reserved for the mills and meadow on the Salmon
and Grass Rivers (U.S. Commissioner present, reprinted at
7 Stat. 55), p. 366.
St. Regis
Mar. 15, 1816. Sale of one-square-mile on Salmon River
plus 5000 acres on the St. Regis Reservation, p. 369.
St. Regis
Mar. 8, 1824. Power of attorney to chiefs, p. 371.
St. Regis
Mar. 16, 1824. Sale of one-square-mile for mill on Grass
River, p. 372.
St. Regis
June 12, 1824. 1,000 acres of St. Regis Reservation, p. 374.
St. Regis
Dec. 14, 1824. ConfIrmation of transfer of premises to
Michael Hogan Oct 20, 23rd, 1817, p. 375.
St. Regis
Sept. 23, 1825.840 acres ofSt. Regis Reservation, p. 377.
St. Regis
Feb. 21, 1845. Grass River Meadow, p. 379.
Mohawk Nation
residing in Upper
Canada
Mar. 29, 1997. Extinguishes claim to New York lands.
Proclaimed Apr. 2,7, 1798 (U.s. Commissioner present,
reprinted at 7 Stat. 61), p. 381.
631
Chapter 30: Indians
MISCELLANEOUS DOCUMENTS
Massachusetts Bay Colonial Charter, 1628-29, p. 94.
Land Grant to the Duke of York, 1664, p.l00.
Hartford Compromise, Dec. 16, 1786, p.l 05.
Massachusetts conveys preemption rights to Robert Morris, May 11, 1991, p. 112.
Massachusetts releases another parcel to Robert Morris, June 20, 1792, p. 115.
Conveyance from Robert & Mary Morris to Herman LeRoy & John Lincklaen
of 1.5 million acres, Dec. 24, 1792, p. 117.
Conveyance from Robert & Mary Morris to Herman LeRoy, John Licklaen and
Gerrit Boon, Feb. 27,1793, p. 121.
Conveyance from Robert & Mary Morris to Herman LeRoy, William Bayard,
Matthew Clarkson, July 20, 1793, p. 124.
Conveyance from Robert & Mary Morris to Herman LeRoy, John Linklaen,
and Gerrit Boon, July 20, 1793, p. 128.
Contract between Robert Morris and the Senecas (Treaty of Big Tree), p. 131.
Conveyance from Holland Land Co. to David Ogden, Sept. 12, 1810 of many of the
above lands previously conveyed by Morris, p.134.
Conveyance from Senecas to Holland Land Co., June 30, 1802 (7 Stat.70), p. 140.
Treaty with the Seneca (Little Beard's Reservation), June 30, 1802 (7 Stat. 72),
p.143.
Treaty with the Seneca, Aug. 31, 1826. Seneca sell Gardeau Reservation, parts of
Buffalo Creek, Tonawanda,and Cattaraugus Reservations (U.s. Commissioner
present but not in Statutes at Large), p. 144.
Treaty of Buffalo Creek, Jan. 15, 1838 (7 Stat. 550), p. 151.
Livingston Leases , Nov. 30, 1787. Lease by Six Nations to John Livingston and others,
p. 402; Jan. 8, 1788. Lease by Oneidas to John Livingston and others, p. 403.
Line of Property, defined by Treaty ofFt. Stanwix, 1768, p. 403.
XI. Chronology to Mid-19th Century
1142
Haudenosaunee (People of the Longhouse) form a Confederacy
ofFive Nations, Mohawk, Oneida, Onondaga, Cayuga and Seneca
Nations, pursuant to the Great Law of Peace (Kaianerekowa
Hotinonsionne).
632
1613
Guswenta Treaty with the Dutch-Two row wampum signifies
two peoples traveling side by side, not interfering in each other's
land or governance.
1687
Marquis de Denonville, governor general of New France, led
military campaign in upstate New York, that destroyed
Ganondagan (near present town of Victor), the horne of
Jikonsaseh, Mother of Nations, who, with Deganawida and
Hiawatha, founded the Confederacy.
1696
Albany Commissioners of Indian Affairs appointed by royal
governor of New York to regulate the fur trade and and conduct
Indian diplomacy. Father and son, Robert and Phillip Livingston,
secretaries for Indian affairs between 1675 and 1749, led this
group.
1701
Treaty ofMontreal provided for Iroquois neutrality in the event
of war between the French and English.
Beaver Hunting Ground Treaty: "Deedfrom the Five Nations
to the King oftheir Beaver Hunting Grounds." An attempt by
the British to woo Six Nations from the French, Five Nations give
their lands up to protection by the King.
1722 (appr.)
Tuscarora Nation joins the Iroquois Confederacy making it the
"Six Nations."
1738
WilliamJohnson arrived in Mohawk Valley to administer uncle's
estate; through trade with Indians, accumulated huge land base
and influence with Six Nations; appointed sole Indian agent in
1746 by colonial New York governor George Clinton; later in
1756 became first Indian Superintendent for the British Crown,
wresting control of Indian affairs from local, colonial control.
1744-48
King George's War-Anglo-French hostilities along the Mohawk
frontier.
1754
Albany Congress-initiated by Mohawk complaints that the
Covenant Chain was broken, this Indian Treaty conference,
known more for BenjarninFranklin and his Albany Plan ofDnion,
converged many imperial and inter-colonial issues.
1754-63
French & Indian Wars.
1763
Proclamation of 1763 at end of French & Indian Wars
established a boundary line between colonies and Indian lands.
633
Chapter 30: Indians
French eliminated from North America by the English with help
from the Haudenosaunee.
1768
Treaty of Fort Stanwix-Led by Sir William Johnson, British
treaty with Six Nations reconfirmed the "Line of Property" from
the Proclamation of 1763.
1774
Sir William Johnson died.
1763-92+
Western Indians, in another Confederacy, continued to fight white
settlement, sided with the British, and continued to wage war west
ofPennsylvania, resisting all attempts by the new United States to
declare these lands "conquered."
1776-83
RevolutionaryWar-SixNations officiallyneutral, individuals from
various nations take sides: mostly Oneida and Tuscarora side with
Patriots; Mohawk, Seneca, Cayuga and Onondaga side with
British..
1779
Washington orders the Clinton-Sullivan military campaign to
destroy Six Nations homelands as punishment for some Indian
support of British. Many Oneida and Tuscarora villages also
destroyed. 60% of the Haudenosaunee were driven off their land
and fled to Buffalo Creek.
1781-89
Articles of Confederation-Confusion over federal/state jurisdiction, New York takes vast tracts of Indian land.
1782
Military Tract designated by New York Legislature for lands for
veterans. 1782 N.Y. Laws, ch.11.
1783
New York appointed three Indian Commissioners secretly
ordering them to negotiate for removal ofIndians fromNew York
State.
1783
Treaty ofParis-Ended Revolutionary War but failed to include
Indian Nations. British continued to hold forts from Detroit to
Niagara through 1790 effectively blocking trade on the Great
Lakes and the St. Lawrence.
1784
Treaty ofFt. Stanwix-peace treatywhere SixNations (byWarrior
chiefs who had no authority) conceded lands in the West, northwest
comer ofcurrent Pennsylvania, and four mile strip along Lake Erie
and Niagara River. Treaty was not approved by Six Nations Grand
Council. New York State actively involved despite this being a
federal treaty-prelude of aggressive dealings for land purchases.
634
1785-1846
Oneida Nation made twenty-six treaties for land sales with New
York State.
1786
Hartford Convention (Massachusetts/New York agreementNew York assumed jurisdiction, but Massachusetts retained right
ofpre-emption). Phelps and Gorham purchase of Seneca Land.
1787
Northwest Ordinance passed by Continental Congress to raise
money by selling parcels of land-opening the way for a flood of
white settlers.
1788-1829
1789
Onondagas signed six land treaties with New York State.
U.S. Constitution-federal power supreme in dealing with Indian
Nations.
1789-95
Cayugas signed three treaties with New York State losing all their
lands.
1789
Treaty ofFort Harmar reconfirmed 1784 Treaty ofFt. Stanwix.
1790
Cornplanter and several Seneca chiefs meet in Philadelphia with
Pres. Washington to complain of the terms of the Ft. StanWix
Treaty and unfair land deals with New York State.
1790
United States Congress passed the first ofa series ofIndian Nonintercourse Acts prohibiting states from conducting treaties with
Indians. State treaties made thereafter that do not have a federal
agent present and Congressional ratification are illegal.
1792
Washington turns to Six Nations for help persuading Western
Confederacy to sell lands and make peace. Six Nations failed to
convince Western Confederacy and war continued.
1794
United States Army made plans to occupy the northwest comer of
Pennyslvania, ceded in the Ft. Stanwix treaty, to effectively block
communication between Six Nations and Western Confederacy.
Cornplanter, who had signed both Ft. Stanwix and Ft. Harmar
treaties, now claimed those land cessions were illegal and that the
"Erie Triangle" belonged to the Seneca. Threats to United States
made in Indian Councils at Buffalo Creek in June/July led to
treaty negotiations.
1794
Treaty of Canandaigua, November 11, 1794. Reset boundaries
ofSix Nations territory. Lands along Lake Erie and Niagara River
recognized as Seneca Lands. Lands in Ohio and Pennysvlvania
635
Chapter 30: Indians
confirmed to United States. Guaranteed the United States will not
claim Six Nations land or disturb them-"nor their Indian friends
residing thereon and united with them, in the free use and
enjoyment thereof."
1797
Treaty ofBig Tree (sale of Seneca land to Robert Morris).
1802-20
Senecas signed three treaties ceding land to New York State and
sell also to Holland Land Co.
1816-45
St. Regis Mohawks signed five agreements with New York State
ceding land.
1838
Treaty ofBuffalo Creek-later declared fraudulent.
1842
Compromise Treaty ofBuffalo Creek.
1846
SenecaNation ofIndians adopted an elective form ofgovernment,
Tonawanda Senecas remained part ofthe traditional confederacy.
636
1857
Reservation lands returned to Tonawanda Senecas.
Gibson's
New York
Legal Research Guide
THIRD EDITION
William H. Manz
Including:
a section on
Indians
by
Karen L. Spencer
William S. Hein & Co., me.
Buffalo, New York
2004
Library ofCongress Cataloging-in-Publication Data
Gibson, Ellen M.
Gibson's New York legal research guide.-3rd ed. /
William H. Manz
p. em.
Rev. ed. of: New York legal research guide, 2nd ed. 1998.
"Including: a section on Indians, by Karen L. Spencer"
Includes bibliographical references and index.
ISBN 1-57588-728-2 (cloth: alk paper)
1. Legal research-New York (State) 2. Legal research-New
York (State)-New York. I. Title: New York legal research guide.
II. Manz, William H. III. Gibson, Ellen M. New York legal research
guide. IV. Spencer, Karen L. Indians V. Title.
KFN5074.G53 2004
340'.072'0747-dc22
2004042477
Copyright © 2004 William S. Hein & Co., Inc.
All rights reserved.
Printed on acid-free paper.
Printed in the United States of America.
About the Authors·
William H. Manz received his M.L.S. in Library Science from Long Island
University and his A.B. from the College of the Holy Cross. He received his
M.A. from Northwestern University, and his J.D. from St. John's University.
Currently, he is the Senior Research Librarian and Director of Student
Publications at St. John's University School of Law.
Karen L. Spencer received her B.A. cum laude, M.L.S., and J.D. cum laude
from the State University of New York at Buffalo. She has been a reference
librarian at the Charles B. Sears Law Library, State University at Buffalo since
1974 and is currently Archives and Special Collections Librarian. In 1982,
William S. Hein & Co., Inc. published the second edition of her slide-tape
series, AudiovisualLegal Research Programs. Admitted to the New York Bar
in 1988, she practices pro bono immigration law in Buffalo, New York and was
a lecturer at the State University at Buffalo Law School in the Asylum and
Refugee Law Clinic from 1991-93.
Ellen M. Gibson, author of the fIrst two editions of this book, received her
B.A. from Denison University, magna cum laude, her M.A.L.S. from the
University of Michigan, and her J.D. from the State University at Buffalo
School of Law, cum laude. She practiced law in Buffalo, New York for three
years. She is the retired Director of the Charles B. Sears Law Library and
Associate Dean for Legal Information Services and Professor of Law, State
University at Buffalo Law School. Her fIrst edition of the New York Legal
Research Guide was awarded the Joseph L. Andrews Bibliographical Award
by the American Association of Law Libraries in 1989.
xvii

Indians - New York Federal-State-Tribal Courts And Indian Nations

Transcription

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