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Attorneys want ruling on status of Oneidas

By: Denise M. Champagne//November 8, 2011

Attorneys want ruling on status of Oneidas

By: Denise M. Champagne//November 8, 2011

David M. Schraver

Attorneys want ruling on status of OneidasAttorneys representing Madison and Oneida counties want a decision on whether or not the ancient Oneida Indian reservation in Central New York has been disestablished.

They are asking the full U.S. Court of Appeals for the Second Circuit to review a recent decision dismissing their counterclaims that sought to have more than 300,000 acres of ancient Oneida Nation reservation territory declared as disestablished.

David M. Schraver, a partner at the Rochester office of Nixon Peabody LLP, filed papers last week requesting an en banc review on that particular point.

“We think this is an extremely important issue and we hope that the Second Circuit will grant our petition to rehear it en banc,” he said.

Members of the Oneida Indian Nation of New York are descendants of the Oneidas, one of five founding nations in the Iroquois Confederacy, who occupied hundreds of thousands of acres in Central New York more than 200 years ago. The Nation claims the land was not disestablished as Oneida reservation territory and has long been recognized as such.

“The county has positioned itself legally into a no-win situation,” said Mark Emery, director of media relations for the Oneida Nation. “Their desire to seek an en banc review is one more example of Madison County’s political leadership blindly advancing a strategy that will serve to only further undermine over 1,000 of their residents currently employed by the Oneida Indian Nation.”

The three-judge Second Circuit panel ruled on a number of issues in its Oct. 20 decision, which also reaffirmed a previous holding that the Oneida reservation had not been disestablished.

Schraver claims that conflicts with the 2005 landmark decision in City of Sherrill v. Oneida Indian Nation of NY 544 U.S. 197 (2005), also referred to as Sherrill III, in which the U.S. Supreme Court ruled the Oneida Indian Nation of New York could not exercise sovereignty over repurchased lands, that they had long ago been abandoned and were subject to property taxation and state and local jurisdiction.

That decision did not address whether the ancient reservation had been disestablished or diminished.

A year later, U.S. District Court Judge David N. Hurd, sitting in the Northern District of New York, agreed the land was subject to taxation, but that the tribe had sovereign immunity from any type of tax enforcement proceeding such as foreclosure, the method the two counties were trying to pursue on parcels in arrears.

The Second Circuit affirmed the decision, but asked the U.S. Supreme Court to rule on the sovereign immunity issue, saying the law defied common sense by allowing an Indian tribe to purchase land, refuse to pay lawfully owed taxes and suffer no consequences because taxing authorities could do nothing to collect the taxes owed.

Schraver wants the Second Circuit to reverse the decision of a 2003 panel which it followed in its October ruling, noting until Oneida Indian Nation of N.Y. v City of Sherrill, 337 F.3d 139 (2d Cir. 2003), also referred to as Sherrill II, was overruled by an en banc panel of the Supreme Court, that it remained the controlling law of the circuit.

The question of whether the ancient reservation had been disestablished was one of the issues the high court had agreed to hear Feb. 23, along with considering whether tribal sovereign immunity from suit bars taxing authorities from foreclosing to collect lawfully imposed property taxes.

The case was sent back down Jan. 10 after the Oneidas agreed to waive sovereign immunity.

Schraver argues the analysis in the earlier case, Sherrill II, is flawed because the panel failed to recognize that the ancient Oneida reservation in New York was disestablished or diminished by the removal of the Oneidas from New York, the 1838 Treaty of Buffalo Creek and other developments in the 19th and 20th centuries.

The Oneidas purchased more than 17,000 acres in the 1990s that had been within their ancestral homelands. They claimed sovereignty on the newly purchased land, but the U.S. Supreme Court in Sherrill III decided they had waited too long to bring a claim and could not exert sovereignty over the repurchased land.

The Oneidas then applied to have the land put into federal trust, as suggested in Sherrill III, and have it established as “Indian Country,” which would allow the tribe to use it as it saw fit, free from state and local taxation and regulations. The secretary of the Interior, in 2008, accepted 13,004 acres into trust for the Oneidas, with some exceptions. That decision is being challenged by the two counties.

Besides conflicting with Sherrill III, Schraver maintains the petition for rehearing en banc meets the “exceptional importance” rule to have the court resolve the status of approximately 300,000 acres of land in Central New York encompassing two cities, more than 20 municipal governments and school districts and includes 20,000 landowners. He described it as 450 square miles that reach into Lewis County and 19 times the size of Manhattan.

“In fact, the Supreme Court itself recognized the exceptional importance of this issue when it granted the counties’ petition for a writ of certiorari last year on this precise issue,” the petition says. “The sole reason this issue evaded Supreme Court review was that the Oneida Indian Nation of New York waived its ‘sovereign immunity to enforcement of real property taxation through foreclosure’ a few days before the counties’ Supreme Court merits brief was due.”

Schraver argues that until the disestablishment issue is decided, it will continue to create confusion and jurisdictional conflict in the area.

“Unless this court addresses and correctly resolves the disestablishment issue, questions concerning the legal status of the 300,000-plus acre ancient Oneida reservation will inevitably arise in subsequent litigation, boundary disputes and land-into-trust applications,” the petition reads.

Citing Sherrill III, he noted that the land has been settled, developed, governed and populated almost exclusively by non-Indians since the 1840s, with the possible exception of a 32-acre Oneida Territory recognized on a 2000 census map.

Schraver maintains it was the federal government’s long-standing policy to remove the New York tribes, including the Oneidas, to “Indian Country” lands in the West and that the Oneidas sold their lands to New York.

“Contrary to the Sherrill II panel’s conclusion, the record shows in the first five years after the Treaty, the Oneidas sold 80 percent of their remaining lands to New York; and by 1845, two-thirds of the remaining Oneidas removed from New York, resettling in Wisconsin and Canada and establishing new homes and governments there,” the petition says.

Schraver maintains that even though the Second Circuit decided that the Oneida reservation was not disestablished, it is not a reservation under state law for the purposes of Indian Law Section 6 and Real Property Tax Law Section 454.

He said a core characteristic of an Indian reservation is the right of the tribe to exercise sovereignty over the land and that Sherrill III determined the Oneidas had no sovereignty over the land the earlier decision had concluded was not disestablished.

Schraver said there is no deadline for a response to his en banc review request. He said a majority of seven judges of the 13 entitled to sit would be needed to grant an en banc review, which he acknowledged is rarely granted.

Working with Schraver is Nixon Peabody partner David H. Tennant and associate Erik A. Goergen; Madison County Attorney S. John Campanie; and Oneida County Attorney Linda M.H. Dillon.

The Oneidas are represented by Seth P. Waxman, a partner in the Washington, D.C., firm Wilmer Cutler Pickering Hale & Dorr LLP.

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