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H:\ONONDAGA\OTHER\Petition 4 14 14.Wpd PETITION to the INTER-AMERICAN COMMISSION ON HUMAN RIGHTS submitted by THE ONONDAGA NATION and THE HAUDENOSAUNEE against THE UNITED STATES Representative of Petitioner: Tadodaho Sidney Hill, Onondaga Nation 1009 Martins Lane Via Nedrow, New York Tel: (315) 447-4851 Attorneys for Petitioner: Joseph J. Heath Alexandra C. Page Curtis G. Berkey Onondaga Nation General BERKEY WILLIAMS LLP BERKEY WILLIAMS LLP Counsel 616 Whittier Street N.W. 2030 Addison Street, Suite 410 512 Jamesville Avenue Washington, D.C. 20012 Berkeley, CA 94704 Syracuse, New York 13210 Tel: (202) 302-2811 Tel: (510) 548-7070 Tel: (315) 447-4851 E-mail: [email protected] Email: E-mail: [email protected] [email protected] April 14, 2014 TABLE OF CONTENTS I. Introduction ............................................................ 1 II. Jurisdiction ............................................................ 2 III. Exhaustion of Domestic Remedies .......................................... 2 IV. Timeliness ............................................................. 3 V. Per Saltum Review ...................................................... 3 VI. Absence of Parallel International Proceedings ................................. 4 VII. The Victims and the Petitioners ............................................ 4 VIII. Facts ................................................................. 5 A. The Illegal Takings of Onondaga Lands ................................ 6 B. The Negative Consequences to the Onondaga People from the Illegal Takings of their Lands ....................................... 11 C. Damage to Onondaga Lands from Extractive Industries .................. 12 i. Chemical Pollution of Onondaga Lake .......................... 12 ii. Salt Mining in Tully Valley .................................. 13 iii. Channelization of Onondaga Creek ............................ 13 iv. Damage to the Other Tributaries of Onondaga Lake ............... 14 v. Hydraulic Fracturing ........................................ 14 D. Diplomatic Efforts to Seek Redress and Early Legal Barriers to Court Action .................................................... 15 E. Judicial Procedures Invoked by the Onondaga Nation .................... 19 F. The United States Courts’ Denial of Legal Remedies to the Onondaga Nation ................................................ 24 IX. Merits................................................................ 27 A. The Prohibition Imposed by the United States Legal System Against Provision of Remedies for Historic Violations of Indigenous Land Rights Violates the Human Rights of the Onondaga Nation ................................................ 28 B. The Right to Property ............................................. 29 Statement of Relevant Law ................................... 29 Statement of the Violation ................................... 31 C. The Right to Equality ............................................. 32 Statement of Relevant Law ................................... 32 Statement of the Violation ................................... 34 D. The Right to Judicial Protection and Due Process ....................... 34 Statement of Relevant Law ................................... 34 Statement of the Violation ................................... 38 X. Request for Relief ...................................................... 39 Annexes PETITION to the INTER-AMERICAN COMMISSION ON HUMAN RIGHTS submitted by THE ONONDAGA NATION and the HAUDENOSAUNEE against THE UNITED STATES I. Introduction 1. The ONONDAGA NATION (the “Nation”) hereby submits this Petition to the Inter-American Commission on Human Rights (the “Commission”) against the United States (the “State” or “U.S.”). The Nation is a sovereign Indigenous nation whose original homelands are situated in what is now central New York State in the United States. The Nation seeks redress for the violation of the rights of the Onondaga people to their lands, to equal treatment, and to judicial protection.1 2. The HAUDENOSAUNEE is a confederation of six sovereign Indigenous nations, of which the Onondaga Nation is one. The Central Council Fire, or seat of government, of the Haudenosaunee is at the Onondaga Nation near what is now Syracuse, New York. 3. Between 1788 and 1822 the State of New York, a political subdivision of the United States, took approximately 2.5 million acres of Onondaga Nation land in violation of federal law and treaties and in violation of the Nation’s own law. The courts of the United States have failed to provide any remedy for this loss of land. The United States domestic legal system’s denial of a remedy for violation of the Nation’s land rights and treaties is a violation of the Nation’s fundamental human rights protected by the American Declaration on the Rights and Duties of Man, the United Nations Declaration on the Rights of Indigenous Peoples and other international human rights agreements. 4. The failure of the United States’ legal system to provide a remedy for the loss of Onondaga Nation land has been disruptive to relationships between the Onondaga Nation and its neighbors, including the State of New York and the United States. The Nation brings this Petition to bring about a healing between themselves and all others who live in the region that has been the homeland of the Onondaga Nation since the dawn of time. The Nation and its people have a unique spiritual, cultural and historic relationship with the land, which is embodied in the Gayanashagowa, the Great Law of Peace. This relationship goes far beyond federal and state 1 Petitioner does not request that the identity of the Onondaga Nation or the Haudenosaunee be withheld from the United States. legal concepts of ownership, possession or legal rights. The people are one with the land, and consider themselves stewards of it. It is the duty of the Nation’s leaders to work for a healing of this land, to protect it, and to pass it on to future generations. The Onondaga Nation brings this Petition on behalf of its people in the hope that it may hasten the process of reconciliation and bring lasting justice, peace and respect among all who inhabit the area. 5. The Haudenosaunee Six Nations, including the Onondaga Nation, entered into three treaties with the United States: the 1784 Treaty of Fort Stanwix,2 the 1789 Treaty of Fort Harmer,3 and the 1794 Treaty of Canandaigua.4 In these treaties, the United States affirmed the sovereignty of the Onondaga Nation, promised to protect Nation lands, and guaranteed the Nation the “free use and enjoyment” of its territory. Treaties are “the supreme law of the land” under Article VI of the United States Constitution, and yet the promises made in these treaties have been broken by the United States, most recently when the federal courts held there could be no remedy for the illegal taking of the Nation’s lands by the State of New York. II. Jurisdiction 6. The Inter-American Commission on Human Rights has competence to receive and to act on this Petition in accordance with Articles 1.2 (b) and 24 of the Commission’s Statute. III. Exhaustion of Domestic Remedies 7. Article 31 of the Commission’s Rules of Procedure requires that the Commission verify whether “the remedies of the domestic legal system have been pursued and exhausted in accordance with the generally recognized principles of international law.” 8. The Nation has exhausted domestic remedies. As discussed below, the Nation filed its land rights action in the United States District Court on March 11, 2005, within the time provided for such suits under federal law. The federal court dismissed this action and the Nation appealed to the Second Circuit Court of Appeals, which affirmed that dismissal. The Nation filed a petition for a writ of certiorari with the United States Supreme Court seeking review of the dismissal and its affirmance, and on October 15, 2013, the Supreme Court denied that petition. No further remedy is available in the United States court system. 9. While Article 31 of the Commission’s regulations generally requires that “the remedies of the domestic legal system have been pursued and exhausted,” Article 31.2(a) allows for an exception to this general requirement where “the domestic legislation of the State 2 7 Stat. 15, Annex 1. 3 7 Stat. 33, Annex 2. 4 7 Stat. 44, Annex 3. 2 concerned does not afford due process of law for protection of the right or rights that have allegedly been violated.”5 10. In the event the United States contends that domestic remedies have not been exhausted because the Nation has not filed suit against the United States directly, alleging that the failure of the federal courts to provide any remedy for the loss of the Nation’s lands violated United States law, the Nation argues in the alternative that exhaustion is not required. That is because, as contemplated by Article 31.2(a) of the Commission’s rules, no due process is afforded by the law of the United States for such suits against the United States.6 IV. Timeliness 11. Under Article 32 of the Commission’s Rules of Procedure, a Petition to the Commission must be lodged within six months of the notification of the final ruling that comprises the exhaustion of domestic remedies.7 In this matter, the final ruling was issued on October 15, 2013, and Petitioners were notified that same day. The six month filing deadline is April 15, 2014. This Petition is timely. V. Per Saltum Review 12. While a petition to the Commission is ordinarily “studied in the order it was received,”8 the Commission’s Rules
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