Leon R. Koziol, J.D.
Human Rights Advocate
Founder, Citizen Commission Against Corruption, Inc.
Estimates for the present value of “40 acres and a mule” promised to 400,000 freed slaves, range as high as $640 billion, but it is likely much higher than that. Contrary to modern thinking, this promise did not originate with a congressional enactment, constitutional provision or even an executive order. It has its genesis in a military “Field Order #15” issued by General William Tecumseh Sherman in 1865.
Its purpose was to give these slaves an economic capacity for self-determination using conquered confederate property as a form of compensation for their labor and reward for their contributions to the Union cause. It was also an effective implementation of Lincoln’s Emancipation Proclamation of 1863. But this Field Order was quickly reversed by President Andrew Johnson who was himself a former slave owner.
For his part, General Sherman, in his newly elevated role as Commander of the U.S. Army, went on to preside over some of the most horrific human rights violations ever committed against Native Americans. Exploiting the successful scorched earth atrocities committed during the Civil War, Sherman extorted land treaties from numerous tribes during the Indian wars of the wild west that followed.
Given this history, the resurrection of that broken field order by African-American activists on Juneteenth Day each year, is proper. But meaningful action will necessitate civil recourse, and that ushers in a portend of litigation outcomes endured by Native-American activists seeking similar reparations. The example of nationally recognized tribal spokesman Ray Halbritter is highly instructive in that regard.
During a 1999 interview on CBS 60 Minutes, Oneida Indian Nation CEO Ray Halbritter was caught off-guard with a question by the late Morley Safer which turned the tables on the CEO’s class action lawsuit demanding the removal of illegal occupants from tribal lands.
After airing Halbritter’s recitation of historical injustices in support of his unprecedented action, Morley Safer asked the simple question of whether land conquests were the true motive here, to which Halbritter replied in substance:
Of course, it’s about the land, because the creator is not making any more of it.
Halbritter’s lawsuit, Oneida Indian Nation v County of Oneida, et. al., 470 US 226 (1985), was based on state violations of a 1794 treaty, 1790 federal law known as the Non-Intercourse Act, and Article I, section 8 of the Constitution. The power to transact land with Indian tribes was reserved to the federal government under these provisions.
But the State of New York disregarded them under the premise that they did not apply to the original 13 states. It therefore continued with illegal purchases between 1795 and 1846 totaling 250,000 acres and impacting 20,000 contemporary landowners. Their deeds were dependent on the original patents held by the state, and title companies rarely searched the records beyond 50 years, thereby effecting novel encumbrances without guiding legal precedent.
Had a federal agent been present at these transactions consistent with trust duties under these same provisions, the Oneida claim might have been extinguished long ago. The passage of time alone would have backed this up under an equitable theory of laches. And that proved to be the successful defense decades later, but not before a plague of federal court decisions that disrupted nation-neighbor relations.
Can casino compacts become the remedy for broken promises to descendants of freed slaves?
While currently a novel proposition, casino compacts for victimized African-Americans take on real promise with the determination championed by Oneida Indian Nation CEO Ray Halbritter. His land claim was not being taken seriously. Indeed, in another ejectment case pending at the same time, the Oneida tribe sought 6 million acres between the Pennsylvania and Canadian borders. But that all changed when the Supreme Court issued a landmark ruling in 1985. By a 5-4 decision, it found the 250,000-acre case to be meritorious. That triggered the 1998 class action when settlement efforts proved futile.
It also emboldened Halbritter to lobby for a gaming compact pursuant to the 1988 Indian Gaming Regulatory Act. That newly enacted federal law preempted Article 1, section 9 of the state constitution (since amended) which prohibited gambling generally. Halbritter was able to lobby politicians to permit a fledgling casino that resembled more of a bingo parlor than a Las Vegas style enterprise. He did so with a solemn promise to control addictions and prohibit alcohol, illegal drugs and nefarious activity.
But much like the broken treaties, that promise was torched as the casino morphed into a multi-billion-dollar operation with questionable oversight of a semi-sovereign nation. It now features a full range of alcohol services, expanded gaming tables, sports betting parlor, evident prostitution and drug abuses, gambling debts of home foreclosure variety, suicides, crime, bankruptcies, and a flood of addictions. And the lust for easy profits continues to prevail over its vast collateral harm.
To detract from the obvious, the three-decade CEO of Oneida Indian Nation Enterprises routinely countered this harm by citing the thousands of jobs and high-end amenities created by Turning Stone. It now features shows to rival any Las Vegas casino, three PGA level golf courses, an entertainment mecca known as Exit 33, diverse eating establishments, and a hotel tower rising 20 floors and 250 feet above the surrounding farm fields. Halbritter rightfully boasts a world class conference center.
The pandemic proved to be little more than a dent on all this progress. On September 6, 2022, Halbritter, held a high-profile news conference to announce “the largest expansion” of his resort that “will nearly double the existing convention center” with a second skyscraper hotel. This week, he unveiled its most elaborate holiday display ever with 160 decorated trees, over 2 million LED lights, giant figurines, gaudy entrance road and Gingerbread Village.
Tale of two tribes
Not exactly the report one would expect from a discriminated people languishing in poverty. And no excess was spared. But that’s where a long festering division among Indian tribes resurrected the reparations debate. Traditional leaders like those of the adjacent Onondaga Indian Nation in Syracuse had long refused to seek any gaming compacts due to their inevitable erasure of genuine tribal cultures.
Even Halbritter sparred with his tribe’s aboriginal faction for this reason. Dissident members complained that he had assumed the mantra of a “petty tyrant” denying them federal trust funds in violation of their free speech rights. Many were residing on the original reservation, a 32-acre trailer park, while their federally recognized CEO was pursuing his action without their consent against their neighbors.
Both Oneida and Onondaga tribes are among the five founding members of the once powerful Iroquois (Haudenosaunee) Confederacy whose conquests prior to arrival of the white man reached as far as the Mississippi River with conquered tribes pressed into slavery. The Mohawks and Seneca were reputed to have cannibalism among their rituals. Today, the Mohawks operate a modest facility at the Canadian border while the Cayugas of the Finger Lakes region remain divorced of any Class III gaming.
Joining the Oneidas on a markedly different path, the Seneca tribe owns three casinos in Buffalo, Salamanca and Niagara Falls with the latter boasting a hotel tower higher than the one at Turning Stone. These contrasts are further complicated by the kind of reparations being sought. Extremists are demanding full sovereignty of “Indian Country” as it is called, a patchwork of certified reservations, reacquired lands and tracts that were consistently occupied. On the opposite end, there are fully assimilated descendants oblivious to all this and those victims who stand by the original treaties.
Local taxing authorities enter the fray
This chaotic landscape took another fateful turn when a nearby municipality entered the fray with a test case of its own seeking to foreclose on Nation properties for nonpayment of taxes. In 2005, a newly constituted Supreme Court referenced the remedy left open in 1985 (“Oneida II”) in City of Sherill v Oneida Indian Nation, 544 US 197 (2005). There it ruled collaterally that reacquisition of lands located within the 250,000-acre tract did not work a union of fee and aboriginal titles and was therefore taxable.
The case may have proved counter-intuitive, however, because the Oneidas were freely donating revenues at the time to local school districts and municipalities known as chain covenant grants. This was a practice to maintain government-to-government cooperation. And for those duped by the notion that mandatory tribal assessments were a welcome substitute for property taxation, their governments rarely eased tax liabilities especially in the “Vampire State.” New York remains hopelessly addicted to all revenue sources to feed an insatiable appetite of free spending.
The Oneidas quickly fired back with a petition to the Bureau of Indian Affairs to take their purchased lands into federal trust, thereby returning them to tax-free status Despite the growing feuds, the overriding remedy for treaty and human rights violations was effectively reserved for the Supreme Court’s still pending Oneida Nation litigation. That finally resulted in a federal appeals court decision in 2010 which rejected both possessory and compensatory demands. The Supreme Court then refused to hear the case and that served to extinguish countless claims across the country, making rational people question what this litigation fiasco was all about in the first place.
For Ray Halbritter the myriad of lawsuits was worth every casino penny. The successful interim Supreme Court ruling in 1985 proved that Oneida ambitions were not fringe but a growing juggernaut. Nation leaders influenced state and local officials to shift positions by supporting their proposal for a modest gambling facility which then became the engine for unbridled land development. By the time of the 2010 ruling, Ray Halbritter had become a national figure. He was a prime mover of the decision to rename the Washington Redskins and even sponsored an elaborate float in the Macy’s Day Parade.
In 2013, exasperated players negotiated a global settlement that featured a ratification of the gaming compact, over 15,000 acres of lands for arms-length purchase to be added to trust lands, economic benefits for neighbors, and 25% of slot machine revenues for local municipalities. This forever extinguished longstanding claims, making the litigation journey a success. After all, only twenty years earlier, the tribe resided in a trailer park on its nearby 32-acre reservation.
For the ones offended by this outcome, it threatened to aggravate the growing envies, civil disobedience, and assaults of law enforcement that occurred during the interstate highway blockades in Syracuse and western New York. Even Ray Halbritter remarked in response to complaints of tax-free status that if he had a valid claim as the Supreme Court once ruled, his neighbors should be paying taxes to his Nation. Such inflammatory remarks only ignited further divisions.
Yellowstone caliber saga
This remains a real-life odyssey that Kevin Costner could remake into a Yellowstone type series. Yet nowhere was it mentioned in a pair of front-page articles last week in the New York Times. The first, authored by Pulitzer Prize winning reporter Emily Steel, focused on David Portnoy, the mega on-line sports betting figure who operates Barstool Sports. After months of research, she detailed how the gambling industry has yielded epic levels of addictions with impotent oversight.
Ms. Steel references the sexual harassment, misogyny, and racism allegations surrounding Portnoy’s sudden rise to billionaire status. She goes on to verify the corrupted industry by documenting highly deceptive practices like those of FanDuel which attracted countless victims through promises of refunds for any betting losses only to condition payment on their application to continued gambling. Such practices have found their way into Turning Stone operations.
Not surprisingly, Portnoy lambasted this reporter the next day while ignoring the Elephant in the Courtroom he helped create. Indeed, he had no comments regarding the next day article which stressed a lack of federal funding for gambling addictions, undue deference to the states which benefit from the tax revenues, and their combined expenditure of a mere $94 million in a $250 billion betting industry. That came to .03% of amounts spent on substance abuse.
Such inequities beg the question: Is this corrupted culture a promising environment for achieving Native American reparations or are we simply repeating a shameful history of Native-American genocide? After all, more indigenous peoples were exterminated by alcohol and disease introduced by European conquerors than the muskets and cannon balls were able to slaughter. The futility of government oversight is palpable in light of the daily corruption unfolding in Washington.
Modern day genocide
The insidious effects of alcohol were well known and exploited by early settlers. With the addition of gambling and illegal drugs in the addiction mix today, Native-Americans are more vulnerable than ever. A portend of this is found in a book by Richard Berleth entitled, Bloody Mohawk: The French and Indian War & American Revolution on New York’s Frontier (2009). On page 25, an excerpt features Sir Willam Johnson, a British loyalist who was highly trusted by the Iroquois. Together with various missionaries, he was determined to arrest the growing atrocities of alcohol abuse among the tribes:
From the beginning of settlement, the politics of alcohol and Indians troubled European consciences. Barclay was following in the footsteps of New France’s Jesuits by attempting to restrict the epidemic of intoxication of native peoples. Yet, where Indian policy was concerned, clerical qualms gave way to market pressures. As Johnson put it, “rum (was) the only thing they mostly traded for. … “
Johnson was never unmindful of the damage alcohol did to the tribes, but he was in no position to dictate what the tribes should want. The missionary impulse grew stronger as the century grew older, and Johnson wrestled with the moral imperatives of Puritan Yankees, Quakers, and his own Anglicans on occasions. But the basic reality of the frontier – recognized by the Dutch in Albany – was that the Six Nations of the Iroquois Confederacy, planted solidly in the middle of New York province, had the capability of destroying not only Albany, but white settlements everywhere west of the Hudson.
Johnson’s genius lay in learning to listen to what the Indians wanted.
About the Author
Leon Koziol is a human rights advocate who practiced law for more than two decades in federal and state courts. He appeared on the CBS program 60 Minutes for his defense of landowners targeted for eviction by Native-American tribes alleging violations of ancient treaties. In 2004, he secured a judgement in New York Supreme Court invalidating the 1993 Turning Stone gaming compact.
His recoveries feature substantial jury verdicts for victims of government abuse. Case citations include, Koziol v Hanna, 107 F.2d 170 (NDNY 2000); Patterson v City of Utica, 370 F.3d 322 (2nd Cir.2004); Oneida Indian Nation v County of Oneida, 132 F. Supp. 2d 71 (NDNY); Peterman v Pataki, 2004 NY Slip Op 51092(U) and Parent v State, 786 F. Supp. 2d 516 (NDNY 2011).
The latter was a consolidated case intended as a class action on behalf of victimized parents in divorce and family courts. It was part of the author’s bold challenge to judicial and sovereign immunity which yielded severe retributions upon his law licenses and parent-child relationships. The horrific ordeal which led to a near death climax was captured in his book, Whistleblower in Paris, published in 2021.
Leon Koziol can be reached at (315) 796-4000 and firstname.lastname@example.org