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Counties, Oneidas take dispute to High Court

David M. Schraver

A Nixon Peabody attorney, David M. Schraver of the Rochester office, will get his day in court — the highest court in the nation — next year.

The U.S. Supreme Court has decided to hear an ongoing land claim case the firm became involved with in 1999.

The high court issued a writ of certiorari Tuesday, agreeing to consider two basic elements of a long-term dispute between the Oneida Indian Nation of New York and Madison and Oneida counties.

It will be Schraver’s first time before the U.S. Supreme Court, an appearance most attorneys never get to make. Working on the case with him are fellow partner David H. Tennant and associate Erik A. Goergen, who is fairly new to the case. They represent the two counties, which have been in a long dispute with the nation over the collection of taxes on property the Oneidas own in Madison and Oneida counties.

David H. Tennant

The Oneidas claim they are a sovereign nation, not subject to taxation by New York state or its subdivisions, including the counties, which disagree.

The U.S. Supreme Court, in 2005, ruled the Oneidas could not claim ancient sovereignty over land it had been purchasing in the 1990s; that it had waited too long to try to reclaim about 17,000 acres in Madison and Oneida counties that were part of the Oneida Nation reservation established under the 1788 Treaty of Fort Schuyler. The lands were later sold to non Indians and had been occupied and governed by non Indians for more than 200 years.

Erik A. Goergen

Tennant said after the 2005 decision, commonly known as the “Sherrill decision,” the counties resumed foreclosure proceedings on Oneida-owned lands that were in arrears on county taxes. He said the Oneidas contended the decision simply decided that the parcels were subject to taxation, but that the tribe still had sovereign immunity from any type of tax enforcement proceeding.

U.S. District Judge David N. Hurd of the Northern District of New York agreed with the tribe. The U.S. Court of Appeals for the Second Circuit, in an April 27 decision, affirmed Judge Hurd’s ruling, while noting the law defies common sense.

“The holding in this case comes down to this: an Indian tribe can purchase land (including land that was never part of a reservation); refuse to pay lawfully-owed taxes; and suffer no consequences because the taxing authority cannot sue to collect the taxes owed,” its April decision read. “But absent action by our highest court, or by Congress, it is the law.”

The Supreme Court notes in its recent order that the U.S. Court of Appeals for the Second Circuit “implored” it to review the matter. The order notes the high court will consider two questions: Whether tribal sovereign immunity from suit, to the extent it should continue to be recognized, bars taxing authorities from foreclosing to collect lawfully imposed property taxes; and whether the ancient Oneida reservation in New York was disestablished or diminished.

Madison County, through its attorneys, petitioned the U.S. Supreme Court.

“Their decision to hear the foreclosure case makes it the fourth time in 35 years that the counties’ fights against the Oneida Nation have led to the nation’s highest court,” according to a statement issued by Mark F. Emery, director of media relations for the Oneida Nation/Oneida Nation Enterprises.

“There’s got to be a better way to resolve disputes between our respective governments. We will respond to the case at the Supreme Court through the appropriate channels and hopefully look forward to bringing these issues to closure once and for all,” Emery said.

Tennant said Nixon Peabody will submit its merits brief before the end of the year to meet a 45-day deadline. He said the Oneidas will have 30 days to respond, after which the counties will have 30 days to reply before the matter is put on the 2011 calendar to be heard.

“We’re obviously gratified that the court has recognized that this is an important matter to all parties,” Tennant said. “It’s an opportunity for the court to clarify, as we believe, the decision in City of Sherrill didn’t just establish the right to impose taxes, but the right and power to enforce and collect through foreclosure and eviction. It also provides an opportunity for the court to basically say that there isn’t a reservation in Central New York, consistent with the historical realities.”

The counties are also represented by New York state. The tribe is represented by Michael R. Smith of the Washington, D.C. firm Zuckerman Spaeder, and the federal government.

The case is also being closely watched by Seneca and Cayuga counties, which are in a similar land-tax dispute with the Cayuga Indian Nation of New York. Those two counties submitted amicus briefs in support of Madison and Oneida counties.