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Expressing frustration that the judiciary is left to clean up the Indian land claim mess, a New York Northern District federal judge has barred an upstate city and county from collecting property taxes levied against the Oneida Nation. Federal Judge David N. Hurd of the U.S. District Court for the Northern District of New York held this week that under the 207-year-old Treaty of Canandaigua, the land at issue in Madison and Oneida counties is “Indian Country” and, as such, is immune from property taxes. But Hurd began his lengthy decision with a swipe at federal, state and local governments for their seeming indifference to the myriad land disputes that are consuming considerable judicial resources in the backlogged Northern District. “Unlike the executive and legislative branches of government, the judiciary cannot turn a deaf ear in the face of disputes such as these,” Hurd wrote. “Rather, a judge must put aside any personal opinions or ideas and apply the Constitution, Treaties, and laws of this great country. This is the result” — a quarter-inch thick opinion that took three months to write. Hurd bemoaned the fact that nothing has been done despite the 1985 U.S. Supreme Court ruling in County of Oneida v. Oneida Indian Nation, 470 U.S. 226, which found that the litigation “makes abundantly clear the necessity for congressional action.” “Rather than heed the advice of our highest Court,” Hurd wrote in Oneida Indian Nation v. City of Sherrill, 5:00-CV-223, “Congress has not enacted legislation to resolve Indian title and land claims in New York state. It has turned a deaf ear to the Court and remained silent for over 16 years.” Further, Hurd said “heroic efforts” over several years by Senior U.S. District Judge Neal P. McCurn and Settlement Master Ronald J. Riccio to settle the various Oneida land claims have been met with only resistance and procrastination. In fact, McCurn, 75, recently transferred a virtual truckload of Indian-related matters to a younger colleague because even after years of work, the matter, he said, “is still in its initial stages, with no discovery having been conducted,” and motion practice has been “minimal and of no real import.” Still, McCurn has had his hands full with Indian land cases, and just this week issued a 57-page decision refusing to dismiss a claim by the Mohawk Indians for about 15,000 acres. Only one of the many cases, a matter involving the Cayugas, has gone to trial, and that ended with a $37 million award. Now, three judges in a district with one of the highest caseloads in the United States and more than 3,000 pending civil cases are frequently preoccupied with Indian land cases. And there is no political or legislative resolution in sight, a fact that has clearly rankled Judge Hurd. ANCIENT TENSIONS The latest go-around, like most of the others, is rooted in ancient tensions and modern realities while mired by future considerations and implications both political and logistical. It arises from a complaint filed on Feb. 4, 2000, in which the Oneida Indian Nation of New York sought to prevent the city of Sherrill from enforcing its property tax laws against land owned by the Nation, and a similar complaint lodged against Madison County. Sherrill responded with a petition for eviction. The litigation spawned a plethora of amicus curiae. It took Judge Hurd 76 pages of analysis to sort out and decide various motions for summary judgment and multiple related issues. At the heart of the matter is the 1784 Treaty of Fort Stanwix, in which the U.S. government, in recognition of the Oneida’s support during the Revolutionary War, guaranteed the Nation security “in the possession of the lands on which they are settled.” In 1784, that amounted to roughly six million acres in what is now central New York and encompassed a region stretching from the Adirondack foothills to the Pennsylvania border. Most of the land was sold off — or, in the view of some Indians, appropriated — but about 300,000 acres were reserved for the Oneida Nation under the 1794 Treaty of Canandaigua. Over the years, because of various shifts in federal policy toward Indians, the Oneidas were generally displaced, allegedly as a result of some illegal acts. Since the 1990s, the Nation has been reacquiring lands that it claims fall within the reservation. In 1997 and 1998, the Nation purchased for fee simple title 10 parcels in the city of Sherrill, Oneida County, where it operates a gasoline station, convenience store and a textile manufacturing and distribution facility. It also acquired 13 other properties in Madison County. The lead case in the dispute before Judge Hurd involves Sherrill’s assessment of property taxes, the Indians’ refusal to pay those taxes on tribal immunity grounds, and Sherrill’s initiation of eviction proceedings. A related case involving Madison County resulted from the Nation’s effort to prevent that government from enforcing its property tax laws. In both matters, the pivotal question was whether the properties at issue are “Indian Country.” If so, neither New York state nor its municipalities can impose property taxes without explicit congressional approval. There has been no such approval. LAND CONVEYANCES The Indians, who had not occupied the land in dispute for roughly 190 years, argued that the early 19th century conveyances were in violation of federal law and, therefore, void. They claimed that the properties were part of their aboriginal lands within the reservation guaranteed by the Treaty of Canandaigua. New York state and the municipalities countered that the property transfers were properly achieved through the 1838 Treaty of Buffalo Creek, which provided for the removal of several New York Indian tribes to Kansas. Judge Hurd cited “undisputed evidence” that the Treaty of Canandaigua guaranteed the reservation, including the lands at issue. “Reservation status of Indian land may be changed only upon a plain and unambiguous expression of congressional intent to do so,” Hurd wrote. “There is no evidence of any congressional act that disestablished the reservation between 1794 and the present day. Accordingly, this land is Indian Country and is not taxable by Sherrill and the counties.” Hurd showed no sympathy, or tolerance, for the argument that a finding in favor of the Nation would endanger the property interests of some 70,000 non-Indian residents of the area and warned against employing such “scare tactics” in his court. The judge said he has no intention of displacing private landowners. He was equally not persuaded by the argument that the very existence of Sherrill is at stake as the Indian Nation acquires more and more reservation land, causing the tax base to shrink. “Sherrill’s contention that it is on the verge of extinction is exaggerated,” Hurd said. “Sherrill has had budget surpluses for the last five years … . Sherrill’s financial condition is not indicative of being on the brink of bankruptcy.” In sum, Hurd: denied the city of Sherrill’s motion for summary judgment and granted the Oneida Nation’s motion for summary judgment; dismissed the petition for eviction; ruled in favor of the Nation in its dispute with Madison County; enjoined both the city and county from attempting to collect property taxes; and denied the Indians’ demand for attorneys’ fees. Appearing as lead counsel were: Peter D. Carmen of MacKenzie Smith Lewis Michell & Hughes in Syracuse and Michael R. Smith and William W. Taylor III of Zuckerman Spaeder in Washington for the Oneida Nation; Ira S. Sacks of Fried, Frank, Harris, Shriver & Jacobson in Manhattan for the city of Sherrill; and David M. Schraver and G. Robert Witmer Jr. of Nixon Peabody in Rochester for Madison County. The decision is online at: http://www.nysd.uscourts.gov/ courtweb/Default.htm.

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