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As John Ashcroft’s administration begins to take shape at the U.S. Department of Justice, many in New York will be closely monitoring the new attorney general’s treatment of the federal claims brought by American Indian nations for the return of hundreds of thousands of upstate acres. To date, four members of the Iroquois Confederacy — the Oneida, the Cayuga, the Seneca and the Mohawk — have filed suits based on the Federal Trade and Intercourse Act of 1790, which held that any purchase of Indian land by a state was illegal unless ratified by Congress. A fifth Iroquois nation, the Onondaga, said it also plans to file a suit. Because New York’s purchases of the lands at issue were not ratified, the federal government is now in the position of having to sue the state on behalf of the Indian nations, a move that has increased tensions between the native and non-native communities upstate, and left private citizens who own land on the disputed territory feeling betrayed by their own government. Under former Attorney General Janet Reno, the Justice Department took a vigorous approach to the litigation, initially naming individual landowners as parties to the suits. But a decision last year by Northern District Judge Neil McCurn that dismissed the landowners from the Oneida and Cayuga cases led the Justice Department to back off that tactic. In February, U.S. Representative Thomas M. Reynolds, a Republican who represents nine western New York counties, sent a letter to the new attorney general denouncing what he termed the Clinton Administration’s “vehement prosecution” of his constituents, and requesting that the Justice Department withdraw as a party to the litigation. “The land claim suits prosecuted by the DOJ against New York State have caused divisiveness, anxiety and outright anger across New York State,” Representative Reynolds wrote. “While I fully expect the federal government to meet its Constitutional and statutory responsibilities to our Indian Nations, it is time to stop this aggressive prosecution against our communities, landowners and state taxpayers.” Sources close to the Indians’ side of the dispute, however, say the anger of the non-native upstate residents is misplaced. They blame the controversy on politicians who mischaracterize the issues at stake in order to gain favor with voters. They also complain that the Pataki administration has stalled settlement negotiations by insisting on including unrelated sales tax and casino issues in any discussion of a land claim settlement. “This is part of a pattern of what appears to us to be an extremely unfortunate effort to politicize these cases,” said Arlinda Locklear, co-counsel for the Seneca nation and counsel to the Oneida Nation of Wisconsin. “We know that [New York] Gov. Pataki is attempting to bring his influence to bear on the new Republican administration, but it has been bipartisan. [Democratic] Senator [Charles] Schumer has also been actively involved in trying to lobby the Justice Department on behalf of the state.” While the Justice Department refused to comment on the issue, U.S. Supreme Court precedent holding in favor of the Oneida Nation and the 1794 Treaty of Canandaiguia, in which the United States agreed to protect the Iroquois’ rights to the land in question, make it unlikely the federal government will be able to withdraw from the suit. In 1974, the U.S. Supreme Court established federal jurisdiction over Trade and Intercourse Act claims in an 800-acre “test case” filed by the Oneida Nation. In 1985, the high court, hearing an appeal on the merits of the test case, found in favor of the Oneida, holding New York’s Madison and Oneida Counties liable. JURY VERDICT The success of the Oneida at the federal level opened the door for claims by tribes against several states. In New York, that includes the Cayuga claim to 64,015 acres in Cayuga and Seneca Counties, the Seneca claim to more than 100,000 acres in Erie, Genesee, Livingston and Allegany Counties and the Mohawk claim to 15,287 acres in Franklin and St. Lawrence Counties. The Onondaga claim, which is not yet filed, is expected to seek the return of about 100 square miles, including all of Syracuse. In 1998, after a federal mediator failed to reach a settlement on damages between New York and the Oneida, the Indian nation filed a new claim that covered 250,000 Madison and Oneida County acres. While states such as Massachusetts and Connecticut have managed quietly to settle their Indian land claims under the act, the litigation in New York has been more contentious. Last year, a nine-member jury, some of whom lived on disputed territory, returned a verdict of $36.9 million in compensation for the Cayuga claim, the only outstanding claim to reach the trial stage. The award, which amounted to about $576 per acre, was lower than the estimated $40 million appraised by the state and almost $300 million less than the Cayuga sought. Issues concerning interest and penalties owed to the Cayuga will be decided later this year by Judge McCurn. Settlement discussions over the other claims have deteriorated to the point where McCurn stepped down from hearing the Oneida case after growing frustrated with the lack of progress of the two sides. “I’m 75 years old and I can’t see where the Oneida case will reach the state the Cayuga case has for a long period,” the judge said. “I may not have that much longevity.” When asked about the difficulty in reaching settlements, a spokesman for Pataki, Michael McKeon, blamed the Clinton administration for supporting the Indian nations in the first place. “Part of the difficulty is that the Clinton administration took sides against the people of New York, against their own citizens,” said McKeon. “That’s the Clinton legacy regarding these land claims.” LINK TO TAX DISPUTES Some, however, blame the Pataki administration for the delay, charging that the governor has used the negotiations to try to force the Indian nations to accept concessions in longstanding unrelated disputes with the state over sales tax disparities and casino gambling revenue. “The Pataki administration will not settle a land claim without a tax agreement,” said Joseph Heath, the counsel to the Onondaga nation. “[The administration] tries to bring three issues to the table when we say, ‘Let’s work out a land claim’ — the land claim itself, tax and the casinos. Their favorite settlement of any land claim is to get the nations to start a casino in exchange for their land.” Judge McCurn confirmed in an interview last week that issues surrounding casino gambling and sales tax caused negotiations to fail in the Oneida case, leading to his decision to end court-ordered mediation. McKeon declined to comment on whether the Pataki administration is attempting to use the land claim negotiations to gain an advantage over other matters of contention with the tribes, saying only that the talks involve “a whole host of issues,” and that the administration is working in a “good-faith way” to try to resolve the claims. Regardless of the reasons for the delay in settlement, a recent Albany Supreme Court decision may cause the state to move away from its practice of introducing casino gaming revenue into land claim negotiations. In that case, Saratoga County Chamber of Commerce v. Pataki, 5507-99, Justice Joseph C. Teresi held that the governor lacks authority to enter into tribal gaming compacts without legislative approval. While the state intends to appeal Teresi’s decision, a federal suit involving similar issues is pending before Northern District Judge Thomas J. McAvoy. McCurn, who after his experience with the negotiations in his cases said he did not expect a settlement, thinks that Teresi’s decision may change the situation. “It will have some effect if it’s affirmed because it might remove one of the impediments to settlement — the refusal of the state to separate out gambling issues from the land claim,” he said.

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