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In the latest development in the ever-evolving Indian land claim litigation, a Northern District of New York federal judge has ruled in a test case that Madison County acted in good faith when it acquired and improved disputed territories; therefore, any damages must be based on the value of unimproved land. Like much of what comes before Senior U.S. District Judge Neal P. McCurn regarding Indian land cases, a dispute involving the Oneida Indian Nation and some 300,000 acres of central New York is steeped in history and acrimony. But this case also sets the stage for future discussions, including possible settlement negotiations. The Oneida case pending before McCurn involves the validity of a series of 26 treaties signed between 1795 and 1846. McCurn has decided that returning the land to the Oneidas is not a remedy in this matter. The “test case” began on Feb. 5, 1970, before now-deceased U.S. District Judge Edmund Port. It originally involved only a small portion of the Oneida reservation established through a 1795 treaty, and fair rental value for only two years, 1968 and 1969. In 1977, Port held that the Oneidas had established a viable claim under the Nonintercourse Act and, with liability established, held a separate damages hearing. His ruling on liability was affirmed by the 2nd U.S. Circuit Court of Appeals, but the appellate panel remanded for calculation of damages. After Port died, the matter came before Judge McCurn for a good-faith factual determination. “There is more than a little irony to the fact that at the end of the day good faith is relevant to such an insignificant portion of the property which is the subject of this test case,” McCurn wrote in Oneida Indian Nation v. County of Oneida, 70-CV-35. “That does not diminish the potential importance of this issue though, especially considering that good faith may well become an issue in other land claim cases involving vastly more land and a great many more improvements than those at issue herein.” The matter came to McCurn on remand from the 2nd Circuit, which had stressed that the trial court should consider whether the counties of Oneida and Madison were “good faith occupiers” of Indian land. If they were not, McCurn said in his analysis, “it would be extremely difficult if not impossible to argue that any improvements were made in good faith.” If they were, however, the court must “continue its good faith analysis because if a good faith occupant subsequently improves the property, that occupant will not be entitled to a set-off for improvements if the occupant had notice of an adverse claim.” NOVEL CLAIMS Judge McCurn found that Madison County had acquired properties improved by a radio tower and a county park under color of title and that it exercised ownership over the properties. That, however, led to another question of whether the improvements to those properties were made in good faith, centering in part on whether Madison County had actual notice of the Oneida’s claim when it made the improvements. “Certainly given the novelty of land claims such as this, it is only with the advantage of hindsight that now, in the year 2002, an argument could be made that Madison County officials in 1930, 1953 and/or 1961 should have been aware that such centuries’ old claims were legally viable, let alone that subsequent occupiers of the property could be held liable to the Oneidas for monetary damages,” McCurn wrote. G. Robert Witmer Jr. of Nixon Peabody in Rochester, N.Y., which represents the counties of Oneida and Madison, said the decision is important in that it recognizes the counties’ good-faith argument. He said the ruling has significant implications for future litigation as it seemingly reduces considerably the amount of damages that could be awarded the Oneidas. “We continue to turn our efforts to the main case, which is in the initial stages of discovery, and also to whether there is an opportunity to settle these claims,” Witmer said. Other attorneys involved in the matter included Thomas D. Barr of Cravath Swaine & Moore in Manhattan and William W. Taylor of Zuckerman Spaeder in Washington, D.C., for the Oneida Indian Nation of New York state; and Assistant Attorney General David B. Roberts for the state.

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