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For the second time in a matter of days, a Northern District of New York federal judge on Thursday addressed a key but ancillary issue in the Oneida Indian land claim case. And for the second time, the American Indians were on the losing end. U.S. District Judge Lawrence E. Kahn on Thursday criticized the Oneida tribe for pursuing a claim where it sought to repossess lands that have been held by private landowners for several generations. Kahn labeled “disingenuous at best” what he described as the tribe’s attempt to circumvent a prior order by Senior U.S. Judge Neal P. McCurn, also of the Northern District, who found that repossession of native lands is not a remedy. “The time has come to put an end to the tactics long employed by the Oneida plaintiffs in these land claim actions that are meant only to scare the local population and delay resolution of the ultimate issues,” Kahn wrote in Oneida Tribe of Indians of Wisconsin v. AGB Properties Inc., 02-CV-233. The Indian land claim litigation has consumed several decades and involves myriad claims and counterclaims centered around one threshold issue: whether American Indians were improperly dispossessed of their lands, either through invalid treaties or other means, and if so, how to compensate them for the wrongful taking and longtime use of their property. In a test case decided last week ( Oneida Indian Nation v. County of Oneida, 70-CV-35), McCurn held that Madison County, N.Y., acted in good faith when it acquired and improved disputed territories. Consequently, any damages must be based on the unimproved value of the land. In the latest decision, Kahn addresses a claim in which the Oneida Tribe of Wisconsin seeks property it contends was set aside under the 1788 Treaty of Fort Schuyler but acquired by New York state in violation of the 1794 Indian Trade and Intercourse Act. Kahn notes that Judge McCurn had previously held that “ejectment is not a viable remedy” and that private landowners cannot be subjected to money damages. The court was critical of the tactic employed by the tribe. Judge Kahn said the attempted end run around McCurn’s ruling “creates substantial unrest in the community and raises the specter of widespread loss of land for private landowners in the claim area.” And while the tribe has promised not to go after certain types of landowners or to expand those claims, Kahn said in a footnote that he is “hesitant to rely on the tribe’s representations in light of the history of the Oneida Land Claim action. “The history of that action is rife with examples of promises made by the parties to each other, the court and the public, only to be broken later in the proceedings.” The tribe had claimed that McCurn’s order was not a final judgment for collateral estoppel purposes, but Judge Kahn found that contention “directly contradicted by the overwhelming majority of case law on this issue.” Kahn said a review of the case law “reveals widespread agreement among the courts in this circuit that finality for purposes of collateral estoppel is not the same as finality for purposes of appeal.” Thursday’s decision dismisses the action in its entirety on collateral estoppel grounds and enjoins the plaintiff from filing any further actions against private landowners. New York Gov. George E. Pataki on Thursday praised the ruling as a “victory for the people of Central New York.” In a press release, the governor described the lawsuit as “an outrageous and frivolous attempt to scare the people” and said he “couldn’t agree more” with Judge Kahn’s reasoning. Arlinda Locklear of Jefferson, Md., appeared for the Oneida Tribe of Indians of Wisconsin. Dwight A. Healy of White & Case in Manhattan represented AGB Properties. Locklear was not immediately available for comment.

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