Justice, 200 Years Later

By BOB HERBERT

Perseverance. Fortitude.

The Cayuga Indians are a tiny, poverty-stricken, widely scattered tribe that lost its ancestral home in western New York more than 200 years ago.

Most of the Cayugas' 64,000 acres of land (in what are now the counties of Cayuga and Seneca) were ceded to the State of New York in a decidedly shady deal known as the Cayuga Ferry Treaty in July 1795. Another three square miles, the last of the tribe's land, was ceded in 1807.

Although the Cayugas were paid a small sum for the land, there were problems. The deal was illegal. It did not have the required approval of the federal government. George Washington, who was president at the time of the initial transfer, expressed unease with what the state was doing, but the federal government did not intervene.

The Cayugas endured extreme hardship. Many drifted away — some to Canada, others to various parts of the American West. Over many decades the tribe was reduced in number to only a few hundred families. But as one struggling generation followed another, there remained a dream among the Cayugas that they would someday reclaim the land lost in New York. Or, at least, its fair value.

New York State has always been vulnerable to the Cayugas' claims because of the patent illegality of the land transfers. The U.S. Constitution, ratified in 1789, specifically and unequivocally forbade the type of treaties under which the state obtained the Cayugas' land.

Sporadic efforts to settle the Cayugas' continuing claims failed, and in 1980 the tribe filed a federal lawsuit against the State of New York. Four years later a special panel recommended that the tribe be given 8,000 acres in Cayuga and Seneca Counties for a reservation, and a cash settlement of $15 million. Most of the land was publicly owned, and no private owners would have been required to give up their property against their will.

The bitterness provoked by that proposal was stunning. As The Times's Michael Winerip reported in an article in August 1984, local residents threatened to use guns to keep Indians off the land. People complained at public meetings that they did not want their children going to school with "dirty" Indians suffering from dysentery and infected with lice.

The opposition was led by a retired Tufts University professor named Wisner Kinne, who said, "People have no conception how frightening it was fighting them when the country was new." Pointing to a visitor, he remarked, "It was nothing for them to pick up someone like you, and put you in a fire, slowly, a couple of inches at a time until you'd be dead."

The lawsuit was not settled and the Cayugas pressed on. In 1992 the federal government joined the suit on the side of the Cayugas. In 1994 Judge Neal McCurn ruled that the tribe had a valid claim to the 64,000 acres because the acquisition by the state was never ratified by Congress, as required by federal law.

The case dragged on. In 1999 a court-appointed mediator proposed a settlement in the range of $125 million, to be split between the federal and state governments. The Cayugas accepted. But the state would not go along.

Whether it realized it or not, the state was in a bind. The Cayugas had the law and the weight of history on their side.

On Feb. 17, 2000, a federal jury in Syracuse returned a verdict in favor of the Cayugas, awarding them $36.9 million for the loss of their ancestral lands. But that did not include the interest that had accrued. Last month, in a ruling that got very little press coverage, Judge McCurn ordered the state to pay the Cayugas a total of $247.9 million, which is believed to be the largest resolution of an Indian land claim in U.S. history.

This was a case that was based on bad faith from the very beginning and the shame is that it should have taken more than two centuries to correct the wrong.

In the period immediately following the Revolutionary War, New York disagreed with the notion, embodied in the Constitution, that the federal government and not the individual states would have ultimate legal jurisdiction over the Indians.

When the Cayuga land issue arose, the state simply ignored the law, said Martin Gold, a Manhattan attorney who represented the Cayugas in their lawsuit. "The state went out on its own," he said, "and did what it wanted to do, which was take the Indians' land for a song."