Tribal Map (Eastern U.S.)

Tribal Map (Eastern U.S.)

Wednesday, October 13, 2010

U.S. Supreme Court To Hear Oneida Indian Nation Foreclosure case

From the Utica Observer-Dispatch and Native American Law Blog:

U.S. Supreme Court to hear Oneida Indian Nation foreclosure case


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NICOLE L. CVETNIC/Observer-Dispatch

A SavOn gas station, owned by the Oneida Indian Nation, is shown on the corner of routes 365 and Route 31 on Thursday in Verona. A draft state-Nation agreement, which includes a cap of 30,000 acres of land into trust and equity on prices and tax levels with neighboring businesses, is not enough, many local leaders said.


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Posted Oct 12, 2010 @ 02:43 PM
Last update Oct 12, 2010 @ 07:16 PM
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The U.S. Supreme Court decided Tuesday to hear the case in which Oneida and Madison counties are attempting to foreclose on Oneida Indian Nation-owned properties on which taxes haven’t been paid.
On April 27, a three-member panel of the U.S. Second Circuit Court of Appeals upheld a lower-court decision that said the counties could not foreclose on the properties because the Oneidas are protected by sovereign immunity.
Now, the U.S. Supreme Court has decided to hear arguments in the case sometime between January and April, according to the Supreme Court public information office.
Oneida County Executive Anthony Picente said he considers it good news because the issue will be resolved, but there still is uncertainty about how the Supreme Court will rule and what would happen next.
“It’s the double-edged sword to some extent,” Picente said.
In 2005, U.S. District Judge David Hurd barred Oneida and Madison counties from foreclosing on the Oneidas’ land. That decision was appealed in 2007 and upheld in the April 27 ruling, which said the counties don’t have the right to sue an Indian tribe unless Congress has authorized the lawsuit or the tribe has waived its legal immunity.
Jose Cabranes, one of the judges in the April 27 decision, wrote a concurring opinion at the time that addressed why he believed the Supreme Court needed to weigh in.
“The holding in this case comes down to this: An Indian tribe can purchase land (including land that was never part of a reservation), refuse to pay lawfully owed taxes and suffer no consequences because the taxing authority cannot sue to collect the taxes owed,” Cabranes wrote. “This rule of decision defies common sense. But absent action by our highest court, or by Congress, it is the law.”
Madison County Attorney S. John Campanie said the legal claim of sovereign immunity has been “the biggest impediment” to the collection of property taxes from the Nation lands.
Campanie said because the Supreme Court has agreed to take the case, there is some indication that the court believes the previous decisions need to be addressed. Madison County officials are encouraged by the decision and are “cautiously optimistic” about how the court will rule, he said.
“I think our hope remains that simply these taxes be paid,” he said.
Nation spokesman Mark Emery said in an e-mailed statement that the Supreme Court decision to hear the foreclosure case makes it four times “in 35 years that the counties’ fights against the Oneida Nation have led to the nation’s highest court.”
“There’s got to be a better way to resolve disputes between our respective governments,” Emery said. “We will respond to the case at the Supreme Court through the appropriate channels and hopefully look forward to bringing these issues to closure once and for all.”
But even if the decision favors the counties, further steps would likely be necessary – such as going to back to a lower court – before the counties could actually foreclose on Nation properties, Picente said.
The lawsuit deals with unpaid taxes from the 1990s and only directly affects some Nation land – not including the Turning Stone Resort and Casino, he said.
Picente, however, said he would assume that if the Supreme Court rules that the Nation isn’t protected from foreclosure by sovereign immunity, the decision would affect the ability of Oneida and Madison counties to foreclose on other Nation properties. Additionally, he believes it would impact similar situations across the state and country, he said.
“It has far-reaching implications,” he said.
Tuesday’s decision to hear the case means there are issues of law that the Supreme Court feels need to be ruled on, said Robert Batson, who teaches federal Indian law at Albany Law School and is the school’s government lawyer in residence,
“It’s always significant when the Supreme Court decides to take a case,” Batson said, adding that the case holds extra importance because it deals with the issue of sovereign immunity. “This will be a very interesting case to watch.”

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