Mediated Settlement of a Native American Land Claim

By Louis Coffey

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JUNE 2006 - The Federal District Court for the Western District of New York recently approved the settlement of a land claim by the Seneca Nation of Indians (SNI) against the State of New York, a case involving complex accounting issues and in which the federal government intervened.

The tribal lands in question had been granted to the SNI under the Treaty of 1794, 7 Stat. 44, between the United States and the Iroquois. The lands were taken from the SNI in the middle of the 19th century, beginning in 1858, by the State of New York, allegedly under its power of eminent domain. The lands were to be used in connection with the development and operation of the Erie and Genesee Valley Canals. The tribal lands were not part of the canal beds; they were part of the plan to provide water to the canals. They were partly in Allegany County, partly in Cattaraugus County, in two municipalities and a special services district.

In 1866, New York paid the SNI $1,396.04, including interest to the date of payment, for a significant part of the acquired land. There is no evidence of any payment for the remaining lands. Commercial use of the Genesee Valley Canal was abandoned in 1878, and commercial use of the Erie Canal was abandoned in 1892.

A portion of the tribal lands was used as part of the bed of a manmade lake, which came to be known as Cuba Lake. The lake was to act as a water-retention facility. A dam and spillway were created on a part of the tribal lands at one end of the lake to control the water level of the lake and the flow of water downstream, to prevent flooding and to supply water to the canals.

After commercial use of the canals was abandoned, the State of New York reduced the size of the lake and, in 1913 and 1914, divided the resulting lakefront property all around the lake into building lots, a ring road, boat launches, and other miscellaneous uses. A number of the lots, part of the ring road, a boat launch, and other related facilities were on the tribal lands.

The state then leased the lots to individuals. The individual tenants built lakefront vacation homes on the lots, boated and fished in the lake, and otherwise used the lands for recreational purposes. The state, by statute, created a special services district called the Cuba Lake District, with the status of a municipality, to administer and operate the lake, the lots, the dam and spillway, the ring road, and other related facilities.

The lots and cottages were sold and resold by the tenants as though they were the fee owners of the lots and improvements. Although the legal rights of the parties in possession of the lots up to the present day are questionable, the state believed it had some equitable, and perhaps legal, obligation to the occupants, and proved unwilling to evict them. Furthermore, the state believed it had paid fair market value for most of the land taken, based on appraisals at or about the time of the taking.

The dispute between New York and SNI continued, in one form or another, for close to 150 years. The most recent iteration was a lawsuit initiated by the SNI in 1985 in Federal District Court. The U.S. government intervened on behalf of the SNI to avoid having the court dismiss the case because of the immunity that all states enjoy based upon the Eleventh Amendment to the U.S. Constitution.

In the litigation, the tribe demanded the return of ownership of, and sovereignty over, its tribal lands, free and clear of any rights in any other persons; and monetary damages amounting to eight figures. The State of New York countered that it had lawfully acquired the land and paid fair market value for it; that Congress had implicitly approved the taking, though not directly, by approving other legislation that was based, in part, on an underlying assumption that the taking was legal; and that, therefore, the State of New York had no liability to the SNI.

Introducing Mediation to the Dispute

As of January 22, 2002, the date that the court appointed the author to mediate this dispute, and as of the date that the court approved the SNI-NYS settlement, three years later, no court had dispossessed “innocent” nontribal occupants of tribal lands. At best, tribes had been awarded compensatory monetary damages. Many Native Americans have a relationship to the land that cannot be measured in dollars—a concept not easily grasped by America’s dominant culture. Early in the mediation process, the SNI settlement team clearly and emphatically stated that its first priority was to regain possession of and sovereignty over their tribal lands, and that they were prepared to take extraordinary measures to achieve that goal. The SNI was also seeking substantial monetary damages for interest on the underpayment by the State of New York for the value of the land taken and the value of having been dispossessed for nearly 150 years.

Cultural differences and animosities between the tribe and the governmental entities were palpable. The SNI is matriarchal in its governmental and economic structure. It makes decisions based on what it believes to be in the best interests of the seventh generation to come, “the faces yet unseen.” This concept is foreign to mainstream America, which often focuses on today’s bottom line, with little regard for the future.

It is critical to understand the people with whom one is mediating. Because the SNI were a foreign culture to this mediator, before contacting any of the parties the author researched the history, culture, and customs of the SNI. Gaining the trust of the parties, so that the mediator could come to understand the interests underlying each party’s position, would require a significant amount of time, because the author was a stranger to all involved. Furthermore, based on their experience, many Native Americans have little reason to trust any persons of European heritage, such as the author.

Some positions of the SNI and the State of New York appeared to be completely at odds and, according to the parties, nonnegotiable. Understanding the dynamics of the relationship of the parties and the interests underlying their positions enabled the author to facilitate and support the parties in crafting creative resolutions to their apparently irreconcilable differences. The author attributes the success in part to the careful application of mediation skills and active listening skills, including the ability to see opportunity where the parties saw only disagreement and to ask probing questions that led the parties to creative solutions.

Finding a Place to Start

The controlling law in the Federal District Court case included long-standing treaties. An important treaty resulted from a meeting in Philadelphia between President George Washington and Chief Corn Planter in which the United States granted land to the seven tribes of the Iroquois Nation, one of which is the Seneca. New York State law and federal law also played a role.

The federal Indian Trade and Intercourse Act (25 USC section 177), known as the “Non-intercourse Act,” requires congressional approval of any alienation of tribal lands, whether it be a transfer of ownership, a lease, a license, an easement, or another interest in land. Some might view the act as arrogant paternalism; others might view it as an attempt to protect an abused minority unfamiliar with how the dominant culture operates. In the District Court case, Senior Judge John T. Curtin of the Federal District Court for the Western District of New York found that the State of New York had wrongfully acquired the SNI Tribal Land because the state had failed to obtain congressional approval of its taking of the tribal lands. At the request of the United States, the State of New York, and the SNI, Judge Curtin then appointed the author to mediate the remedies. (Judge Curtin, who retained jurisdiction over the case throughout, unfortunately suffered a major heart attack and stroke during the mediation process, but recovered well and remained involved.)

A major difference between this case and other cases was that the SNI tribal lands were occupied by tenants of the State of New York, the party that had wrongfully acquired the tribal lands; the state was not in possession of most of the tribal land at issue. As tenants, the occupants were subject to dispossession at the expiration or earlier termination of their leases. Most if not all of the leases of portions of the tribal lands had expired, and, in some instances, the tenants had not paid rent for a significant period of time. The U.S. government was willing to fund part of the cost of the resolution; New York would not be responsible for the total cost. Over time, the negotiating teams for all parties became willing to compromise as they recognized that a negotiated settlement on the terms being discussed would be better for each of them than taking their chances in court. One helpful factor was that, as in most cases, there was some question as to what remedy a court might fashion. This opened the door to serious negotiations.

The Progress of the Case

During the three years that the mediation proceeded, the parties and their counsel traveled to Philadelphia for several mediation sessions—coincidentally, the place where the tribe was first granted sovereignty over the land by the United States. Many sessions were conducted by conference call.

In that time period, New York Governor George Pataki successfully ran for reelection. Progress on the mediation was slowed for several months during the run-up to the election. The Republican Governor’s Office and the Democratic New York State Attorney General’s Office were both involved and wary of each other. The New York Government Accounting Office was also involved, but took a less political role.

There were two elections of the Tribal Council, which also included the replacement of the tribe’s attorney general and changes in the tribe’s Settlement Committee. Late in the proceedings, the tribe dropped one of its lawyers (all of whom were Native Americans) because of philosophical differences with the newly elected tribal chief.

The U.S. Department of the Interior and the U.S. Department of Justice were represented in the mediation. The settlement was structured so as to avoid any need for congressional approval, a concern identified early in the process.

Reaching a Resolution

In the settlement, the tribe regained possession of, record title to, and sovereignty over its land, free of any possessory interests, monetary claims, or other encumbrances, except for the limited easements granted and cooperation agreements reached in the settlement. The tribe acted in the best interests of “the faces yet unseen.” In exchange for regaining their land, the SNI agreed to accept monetary damages for the period of dispossession in an amount far less than they had originally demanded. In addition to record title and sovereignty, the SNI received joint jurisdiction over the public road, part of which is not on tribal land; the lake bed, part of which is not on tribal land; the dam and spillway; the issuance of fishing and boating licenses; and the regulation of use of the lake, part of which is not on tribal land.

The State of New York persuaded the occupants of the tribal lands to voluntarily release, in exchange for payment, any rights they may have had in the tribal lands and in any improvements that had been constructed on them, thus avoiding potential litigation with the occupants had they been involuntarily dispossessed. Because the U.S. government participated in funding the buyouts of the occupants, the state did not have to bear the total cost. New York obtained joint jurisdiction over the ring road, part of which is on tribal lands, and over the lake bed and the dam and spillway; and control over the level of the surface of the lake and the fishing and boating on the lake—all of which are of concern to occupants of lakefront lots not on tribal lands—thus avoiding potential litigation.

With a relatively small financial outlay and lending the weight of its force for an equitable settlement, the U.S. government, through the Department of the Interior and the Department of Justice, was able to bring about the return of tribal lands and some compensation for what is perceived by Native Americans as one of the many injustices perpetrated on them since Europeans introduced the concept of private ownership of land, a concept that Native Americans had difficulty understanding. This was accomplished without creating a hardship for the State of New York or the occupants of the tribal lands. And through a cooperation agreement that deals with the future, the state is assured that the occupants of the nontribal lands of Cuba Lake, the Cuba Lake District, the two counties, and the municipalities will not be adversely impacted in any significant way. The interests of all those concerned, whether or not part of the mediation process, were accommodated.

Lessons Learned

This case is a good example of how mediation can be used to resolve complex multiparty disputes, even those involving multiple sovereign governments. The resolutions reached in this matter could not have been fashioned by a court or an arbitration tribunal.

According to Native American lawyers who represent tribes, this is the first Native American land claim to be successfully resolved by settlement. It may also be the first Native American land claim in which the tribe regained possession of, and sovereignty over, its tribal lands.

A week after the court approved the Seneca settlement, the Second Circuit reversed the District Court in a different land claim. There, the District Court awarded $480 million in damages instead of giving the Cayuga Tribe possession of its former New York tribal lands. In its opinion, the Second Circuit said that the tribe had no remedy, neither possession nor damages. The appeal period in the Seneca settlement has now expired; no appeal has been taken.

Litigation creates enemies. In a successful mediation, the parties craft their own solution; a win-win solution can result in a favorable outcome for all. The solution is not imposed on them by a third party. The mediator, an impartial facilitator, has no authority to impose anything on the parties. This form of dispute resolution is especially valuable for parties who want, or need, to continue doing business together.
Since the settlement, the author has been advised by counsel to one of the parties that relationships and dealings between the SNI and the State of New York have improved dramatically.

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Louis Coffey, Esq., an arbitrator and mediator, is president of Coffey Consulting Co. and a former senior partner and now Of Counsel to the Philadelphia-based law firm Wolf, Block, Schorr and Solis-Cohen LLP. He serves on the American Arbitration Association’s Complex Commercial and Construction arbitration and mediation panels, the International Institute for Conflict Prevention and Resolution’s Panel of Distinguished Neutrals and its Specialized Construction and Sports panels, and the U.S.-China Business Mediation Center’s Panel of Mediators. Coffey is also a Dispute Resolution Provider in the Native American Dispute Resolution Network of the U.S. Institute of Environmental Conflict Resolution, established by the U.S. Congress.




















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