Why a Native American Nation Is Challenging the U.S. Over a 1794 Treaty

Grace Ashford

Fri, March 15, 2024 at 11:59 AM CST·9 min read

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Joe Heath, a lawyer for the Onondaga Nation, at Onondaga Creek, south of Syracuse, N.Y., Nov. 30, 2023. (Lauren Petracca/The New York Times)

ONONDAGA NATION TERRITORY, N.Y. — Four or five years ago, Sidney Hill’s young son came to him with a question that Hill didn’t know how to answer.

The boy had learned that day about the millions of acres of land that his people, the Onondaga, had once called home, and the way that their homeland had been taken parcel by parcel by the state of New York, until all that was left was 11 square miles south of Syracuse.

“We lost all this land,” Hill recalled his son saying. “How can that be?”

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In many ways, Hill was the best person to answer that question. As Tadodaho, the spiritual leader of the Onondaga Nation, he was responsible for protecting its legacy and guiding it into the future. He was one of a handful of elders who have worked for decades on a legal and diplomatic strategy to fight back against the historic wrongs his son now sought to understand.

Even so, it caught him off balance.

The younger generation needed to know, he said. “But it doesn’t make much sense to them.”

Hill tried to reassure his son that all that injustice was in the past.

But he knew how hard it was to accept past wrongs, particularly when their consequences so informed the present. It was why he had spent so long pushing — first Onondaga elders, then the U.S. justice system and, finally, an international human rights commission — for a correction to that history.

The Onondaga claim that the United States violated a 1794 treaty, signed by George Washington, that guaranteed 2.5 million acres in central New York to them. The case, filed in 2014, is the second brought by an American Indian nation against the United States in an international human rights body; a finding is expected as soon as this year.

Even if the Onondaga are successful, the result will mostly be symbolic. The entity, the Inter-American Commission on Human Rights, has no power to enforce a finding or settlement, and the United States has said that it does not consider the commission’s recommendations to be binding.

“We could win against them, but that doesn’t mean that they have to abide by whatever,” Hill said in an interview.

The 2.5 million acres have long since been transformed by highways and utility lines, shopping malls, universities, airports and roller rinks.

The territory encompasses the cities of Binghamton and Syracuse, as well as more than 30 state forests, dozens of lakes and countless streams and tributaries. It is also home to 24 Superfund sites, the environmental detritus of the powerhouse economy that helped central New York thrive during the beginning and middle half of the 20th century.

Most notorious of these is Lake Onondaga, which once held the dubious title of America’s most polluted lake.

Industrial waste has left its mark on Onondaga territory, leaving the nation unable to fish from its streams and rivers. The history of environmental degradation is part of what motivates the Onondaga, who consider it their sacred responsibility to protect their land.

One of their chief objectives in filing the petition is a seat at the table on environmental decisions across the original territory. The other is an acknowledgment that New York, even if only in principle, owes them 2.5 million acres.

Across the nation, government officials have grappled with the notion of reparations to address historical injustices. In 2022, officials in Evanston, Illinois, began distributing $25,000 to Black descendants of enslaved people as reparations for housing discrimination.

In New York, people who were once imprisoned for marijuana crimes received preference for licenses to sell cannabis; Gov. Kathy Hochul last year also created a statewide task force to examine whether reparations can be made to address the legacy of racial injustice.

Some Native nations have been willing to drop land claims in exchange for licenses to operate casinos. But the Onondaga say they are not interested in cash. Nor are they interested in licenses to sell cannabis or operate a casino — which they consider socially irresponsible and a threat to their tribal sovereignty.

There’s really just one thing that Hill says would be an acceptable form of payment: land.

The Onondaga insist they are not looking to displace anyone. Instead they hope the state might turn over a tract of unspoiled land for the nation to hunt, fish, preserve or develop as it sees fit. One such repatriation effort is underway: the return of 1,000 acres as a part of a federal settlement with Honeywell International for the contamination of Onondaga Lake.

The United States has not contested the Onondaga’s account of how the nation lost its land. Indeed, the lawyers representing the United States in the Onondaga case have centered their argument on legal precedence, noting that courts at every level — including the U.S. Supreme Court — rejected the Onondaga’s claims as too old and most remedies too disruptive to the region’s current inhabitants.

To the Onondaga, the logic required to square these contentions seems unfair. Why should the United States be allowed to steal their land and face no obligation to give some back?

Joe Heath, a lawyer representing the Onondaga, said the refusal to acknowledge the past stands in the way of healing the future.

“If we don’t admit that those things have happened, how do we move forward together?” he said. But Heath understood that such an admission would have serious legal and practical implications.

“The problem is that all of the land in New York, in the United States, is stolen Indian land,” he said. “What does that mean in terms of U.S. property law?”

‘All of Our Country and for a Very Trifle’

There was a time when the United States worked with the Haudenosaunee, the confederacy that includes the Onondaga, Cayuga, Oneida, Tuscarora, Mohawk and Seneca nations, as the fledgling government sought to defuse conflicts in the aftermath of the Revolutionary War.

The federal government entered into three treaties that affirmed the confederacy’s sovereignty and ownership over much of the northern part of New York state. Critically, those treaties guaranteed that no one but the federal government would have the authority to deal with the Haudenosaunee.

But as early as 1788, New York state had started to chip away at the Haudenosaunee land and sovereignty. Over the next 34 years, the state would come to control nearly all of the Onondaga land — as well as most of that owned by the other Haudenosaunee nations — because of a series of transactions that the Onondaga say were illegal.

“The [New] York people have got almost all of our Country and for a very trifle,” Onondaga chiefs told federal officials in 1794, according to the papers of U.S. Indian Commissioner Timothy Pickering.

For the next two centuries, the Onondaga continued to fruitlessly press their case in numerous face-to-face meetings with presidents, members of Congress and governors of New York.

Legal options were limited: In New York, for example, Native people were not considered to have standing to sue on their own behalf until 1987.

When Indian nations did make it into the courtroom, many claims were dismissed.

The Onondaga’s decision to go to court was decades in the making, with the first discussions beginning more than 40 years ago. For the next 20 years, the council debated in the long house — a long, low structure made of whole logs used for ceremonial events and Haudenosaunee gatherings.

Hill is one of 14 chiefs on that council, each of whom represents a different clan. In the Onondaga tradition, these chiefs are male, but they are appointed by the clan mothers.

The chiefs did not initially embrace the idea of a lawsuit, seeing it as another venue for broken promises.

“Our elders were always afraid of going into courts,” Hill said. Many were concerned that losing in court could lead them to lose what little land they had left.

“We finally said: We have to do something,” Hill said.

In 2005, the Onondaga filed a version of their current claim in U.S. District Court in the Northern District of New York, naming as defendants the state of New York, its governor, Onondaga County, the city of Syracuse and a handful of the companies responsible for the environmental degradation over the past centuries. A similar case filed by the Oneida Nation was, at the time, pending before the Supreme Court.

But just 18 days after the Onondaga filed their petition, the Supreme Court rejected the Oneidas’ case. The decision referenced an colonial-era legal theory known as the Doctrine of Discovery, which holds, in part, that Indigenous property claims were nullified by the “discovery” of that land by Christians.

The “long lapse of time” and “the attendant dramatic changes in the character” precluded the Oneida nation from the “disruptive remedy” it sought, Justice Ruth Bader Ginsburg wrote in the majority decision.

The ruling appeared to doom the chances of any Native nation seeking recompense through the courts. The history seemed settled.

‘Disruptive to Who?’

Of the more than 1,600 words in the Supreme Court’s ruling, one stood out to Hill: “disruptive.”

“When I heard that, I said, ‘Well, OK, disruptive to who?’” he recalled. “It’s already been disruptive to us, as Indigenous people.”

Some might have left it at that: an admission that Native people could never be made whole for the profound wrongs perpetrated on them.

Instead, lawyers for the Onondaga used the rejection as the premise for a new argument. They contended that the U.S. court system’s refusal to find in their favor proved that they could not find justice in the United States.

The petition filed before the international commission amounts to the most direct challenge of the United States’ treatment of Indigenous people to date in terms of human rights — and the first to apply the lens of colonialism.

“What the Onondaga litigation is doing right now is to force a political dialogue with the colonial occupier,” said Andrew Reid, a lawyer representing the Onondaga, adding that a favorable finding could prompt a political conversation about the United States’ treatment of native people on the world stage.

Representatives for the State Department declined to be interviewed and did not respond to requests for comment. But in legal documents, the United States contended that the Onondaga’s central claims have been rejected in prior cases; that they have had “abundant opportunity” for their case to be heard; and that they are merely unhappy with the outcome. It also contended that the commission has no jurisdiction, given that the bulk of the nation’s losses took place two centuries before it was established.

“The judicial process functioned as it should have in this matter,” the United States wrote in legal papers.

The commission’s decision could come at any time, but Hill is trying not to focus on it.

Most days he is glad to have tried.

“We aren’t sure how it’s going to go,” he says. “But at least it won’t be hanging there for the next generation.”

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