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A Northern District of New York federal judge has rejected New York state’s argument in a massive Indian land claim matter that if the United States gains control of the disputed territories it must compensate the state under the Fifth Amendment’s takings clause. The decision by Judge Lawrence E. Kahn means that the state, which is already confronted with an order to pay nearly $248 million in damages to the Cayuga nation, could be solely on the hook for any damages that are awarded in a separate action involving the Oneida nation. However, while Kahn said the state cannot recover under the takings clause, he left open the possibility of recovery from the federal government as a possible joint tortfeasor. Indian land claim litigation in the Northern District has spawned a mountain of motions, partial decisions and political maneuvering over the last quarter century, and Kahn’s most recent decision is illustrative: His rulings on eight motions involving five counterclaims and some 40 defenses consumes 70 pages. And that is less than half of what Senior U.S. Judge Neal McCurn wrote last fall in the Cayuga matter. New York is attempting to broker an agreement to finally put to rest a dispute that dates to a treaty signed by George Washington. However, its attempt has been frustrated by a number of factors, including disagreements among the Indian tribes and squabbles with the federal government. Litigation in the matter has spanned more than a quarter century, and there is no clear end in sight. Meanwhile, a tentative settlement agreement announced in February may be unraveling. At issue in the case before Judge Kahn is essentially Central New York. Three Indian nations — the Oneida Indian Nation of New York, the Oneida Indian Nation of Wisconsin and the Oneida of the Thames — demand “ejectment” of the City of Syracuse, two centuries of rent for the use of what they claim is their land and other damages. Among the questions in a plethora of motions addressed by Kahn in his most recent decision was whether the Fifth Amendment provided New York with a remedy against the federal government if it loses the suit. It does not, the court said. In a counterclaim, New York argued that the court cannot find that the Oneidas hold a property interest in the disputed areas without first finding that the 1794 Treaty of Canandaigua conveyed a larger property interest to the Oneidas than they were granted by the 1788 Treaty of Fort Schuyler. The plaintiffs contend that New York violated the Treaty of Canandaigua the year after it was signed by President George Washington by subdividing Indian land among white settlers. Judge Kahn found that if the state has a recoupment remedy against the federal government, it is not through the Fifth Amendment. EARLIER RULING Kahn relied largely on Judge McCurn’s 1991 opinion in Cayuga Indian Nation of New York v. Cuomo, 758 F. Supp. 107. McCurn held in that opinion that the conduct of the state while the Articles of Confederation were in effect has no bearing on any interpretation of rights under the Treaty of Canandaigua. Since New York’s rights prior to ratification of the Constitution “were ceded by the State to the federal government by the State’s ratification of the Constitution,” it had no subsequent property interest, he said. “By arguing that the United States’ recognition of the Oneida’s land in the Treaty of Canandaigua was a taking rather than an assertion of federal control over Indian land by the United States, the State fails to acknowledge established federal law,” Kahn said. “This situation does not constitute a taking pursuant to the Fifth Amendment for which the State should be compensated.” Appearing on the motion were Assistant Attorney General David Roberts for the state; Steven Miskinis of the U.S. Department of Justice for the federal government; William Taylor of Zuckerman Spaeder Goldstein Taylor & Kolker in Washington, D.C., for the New York Oneida; Arlinda F. Locklear of Jefferson, Md., for the Wisconsin Oneida; Robert Smith and Carey R. Ramos of Paul, Weiss, Rifkind, Wharton & Garrison in Manhattan for the Oneida of the Thames; G. Robert Witmer Jr. of Nixon Peabody in Rochester, N.Y., for the counties of Madison and Oneida; and Marilyn Ford Ward of Quinnipiac Law School in Handen, Conn., for the Brothertown Indians.

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