NYSBA SPRING 2006 | VOL. 8 | NO. 1 Government, Law and Policy Journal A Publication of the New York State Bar Association Committee on Attorneys in Public Service, produced in cooperation with the Government Law Center at Albany Law School Indian Law “The Guardian” Painting by John Kahionhes Fadden • Iroquois Influence on Democracy • Laches at Law and Cayuga Indian Nation • Indian Treaties and Tribal Sovereignty • Native Environmental Issues and • Impact of City of Sherrill v. Oneida Indian Resource Issues Nation of New York • Cultural Preservation • Acquisition of Tribal Land Seeking Nominations for the 2007 Award for Excellence in Public Service Sponsored by the New York State Bar Association, Committee on Attorneys in Public Service Purpose: To recognize excellence by a member of the legal profession in the commitment to, and performance of, public service. Nomination Deadline: Friday, September 29, 2006 Date Award Presented: During NYSBA 2007 Annual Meeting at the New York Marriott Marquis Hotel, Tuesday, January 23, 2007, 5:30 – 7:00 p.m. Award Criteria: Individuals must epitomize a commitment to the highest and noblest calling afforded by the legal profession: to preserve and protect the public. Their efforts must demonstrate a commitment to service, honor and integrity. Submission Information Requested: • Name and contact information of the nominee • Length of public service of the nominee • Distinctive achievements in public service • Other distinguished accomplishments: e.g.—voluntary bar association or charitable organization service • Name and contact information of nominator Past Award Recipients: 2000 The Honorable Joseph Bellacosa, NYS Court of Appeals 2001 The Honorable Robert Morgenthau, NYC District Attorney 2002 Archibald R. Murray (posthumous honor), NYC Legal Aid Society 2002 Professor Patricia Salkin, Albany Law School, Government Law Center 2003 The Office of the Attorney General, under the direction of the Honorable Eliot Spitzer 2004 Jeffrey Friedlander and Leonard Koerner, New York City Law Department 2005 Robert J. Freeman, NYS Commission on Open Government and Walter E. Mugdan, U.S. Environmental Protection Agency 2006 David B. Klingaman (posthumous), NYS Court of Claims and Office of the Staff Judge Advocate, 42nd Infantry Division and Honorable Jonathan Lippman, NYS Unified Court System Submit nomination materials by end of business, Friday, September 29, 2006 to: Patricia K. Wood, CAE, Senior Director, Membership Services New York State Bar Association One Elk Street Albany, NY 12207 [email protected]; 518-487-5571 / fax 518-487-5579 SPRING 2006 | VOLUME 8 | NO. 1 Government, Law and Policy Journal Contents Board of Editors 2 Message from the Chair James F. Horan Vincent M. Bonventre Founding Editor-in-Chief 3 Editor’s Foreword Rose Mary Bailly J. Stephen Casscles 5 The Iroquois Influence on American Democracy James F. Horan Cynthia Feathers and Susan Feathers Ann Horowitz 9 American Indian Nations, Indian Treaties, and Tribal Sovereignty James P. King Hon. Elizabeth Furse and Robert J. Miller Patricia L. Morgan 14 The Impact of the Supreme Court’s City of Sherrill Decision on Barbara F. Smith Lands Reacquired by Indian Tribes in New York Patricia K. Wood Peter D. Carmen Staff Liaison 18 Acquisition of Land by the United States in Trust for Indians Albany Law School and Indian Tribes Editorial Board David M. Schraver Rose Mary K. Bailly 21 Impact of City of Sherrill v. Oneida Indian Nation of New York Editor-in-Chief S. John Campanie Patricia E. Salkin 26 Laches at Law: The Second Circuit and the Cayuga Case Director, Matthew Leonardo Government Law Center 40 Tribal Land Claims: Before and After Cayuga Arlinda Locklear Student Editors 44 Protecting Mother Earth for the Seventh Generation Ryan Emery Grant W. Jonathan Executive Editor 47 Haudenosaunee Hunting and Fishing Rights in New York State Joshua Oppenheimer Christopher A. Amato Andrew Poplinger Suzanne Post 55 Global Warming: An International Human Rights Violation? Jessica Satriano Inuit Communities Petition at the Inter-American Commission Sharalyn Savin on Human Rights Senior Editors Eleanor Stein Editorial Office 59 Free Exercise Claims of Incarcerated Indians: GLP Journal Grooming Regulations and Judicial Standards Government Law Center Amy Lavine Albany Law School 80 New Scotland Avenue 65 The Indian Child Welfare Act Implementation in New York Albany, NY 12208 Frederick J. Magovern 518.445.2329 70 Off-Reservation Indian Gaming: Will Congress Change the Rules? Send Address Changes to: Bennett Liebman Records Department New York State On the Cover Bar Association One Elk Street “The Guardian” Albany, New York 12207 The eagle is the guardian bird of the Haudenosaunee, 518.463.3200 and is often seen in images as being above the Tree of Peace. [email protected] Painting by Mohawk artist John Kahionhes Fadden Reprinted with permission The Government, Law and Policy Journal welcomes submissions and suggestions on subjects of interest to attorneys employed, or otherwise engaged in public service. Views expressed in articles or letters published are the author’s only and are not to be attributed to the GLP Journal, its editors or the Association unless expressly so stated. Authors are responsible for the correctness of all citations and quotations. Contact the editor- in-chief for submission guidelines. Material accepted for publication becomes the property of the Association. Copyright © 2006 by the New York State Bar Association. ISSN 1530-3942. The GLP Journal is published twice a year. Message from the Chair By James F. Horan In January, the Committee JAG Officers did while on deployment. Also, Judge on Attorneys in Public Service Lippman spoke movingly about public service in presented our annual Award accepting his Award. Chief Judge Judith Kaye nominat- for Excellence in Public Ser- ed Judge Lippman for the Award and Judge Kaye intro- vice. The Committee presents duced Judge Lippman at the Reception. the Award to recognize excel- In choosing the Award recipients each year, the lence by a member or mem- Committee must struggle in selecting who we will bers of the legal profession in honor from a usually large number of highly qualified the commitment to and per- and dedicated public servants. This year, we made an formance of public service. excellent choice in honoring two men for long and ded- This year, the Committee hon- icated service in managing the court system and seeing ored three co-recipients: to the day-to-day administration of justice and in hon- • Jonathan Lippman, the Chief Administrative oring a group of men and women, who over a short Judge of New York State, and very trying time period, away from their homes and families, established and administered civil justice • David B. Klingaman, the late Chief Clerk of the in a dangerous and unstable location. New York Court of Claims, and, The Award Reception was one of the highlights of • The Office of the Staff Judge Advocate General the Bar Meeting this year and was one of the highlights (JAG) of the Army National Guard for the 42nd of my three-year term as the Chair of the Committee. Infantry Division. That term is ending now and my Vice-Chair, Patty At the time we announced the Award, the JAG Offi- Salkin, will become Chair on June 1st. I’d like to thank cers were on station in Tikrit, Iraq, administering a civil Patty for her assistance to me with the general business justice program as a part of the American occupation in of the Committee and especially with this Journal and that country. By the night of the Award Reception in with the Committee’s excellent educational programs. January, the 42nd Infantry Division’s deployment to I’d also like to thank the Committee’s members for their Iraq had ended and some members of the JAG Staff assistance, especially my predecessor, Barbara Smith, were able to attend the Reception to receive their Sub-Committee Chairs Donna Case, Jim Costello, James Award. McClymonds, Larry Storch, Spencer Fisher and Steve Casscles and the Journal’s Editor, Rose Mary Bailly. No The January 24th Reception to honor the Award one has provided me greater assistance nor has worked recipients was the most crowded and the most emotion- harder to make the Committee’s work successful than al such Reception since the Committee created the Patricia Wood, the Committee’s NYSBA Staff Liaison. Award. Mrs. Alicia Klingaman attended the Reception, Once again, I thank Pat and her Staff for all their work. with her children and their families, and accepted the Finally, I thank the NYSBA Leadership for their contin- Award for her late husband. In introducing the Award uing support for the Committee and our mission to rep- for Mr. Klingaman, Chief Judge Richard Sise of the resent the interests of public service attorneys within Court of Claims spoke about Mr. Klingaman’s long and NYSBA. distinguished service at the Court of Claims. A large number of Judges and staff from the Court of Claims attended the Reception to honor their former colleague. Hon. James F. Horan, Chair of the NYSBA Com- Judge Sise and Associate Judge Susan Read from the mittee on Attorneys in Public Service, serves as an Court of Appeals submitted the Klingaman nomination Administrative Law Judge with the New York State for the Award. In accepting the Award on behalf of the Department of Health. He is a past President of the JAG Officers, Lt. Col. Robert Moscati spoke about the New York State Administrative Law Judges Associa- sacrifices that the Officers and their families made dur- tion. ing the deployment in Iraq and about the work that the 2 NYSBA Government, Law and Policy Journal | Spring 2006 | Vol. 8 | No. 1 Editor’s Foreword By Rose Mary Bailly Today New York can history of Indian land litigation prior to City of Sherrill boast the presence of seven and describes the possibility of tribes applying to the federally recognized Indian federal government to place reacquired land in trust to nations: the Cayuga Nation, secure its immunity from local government authority.