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Appeals Court Trio Turns Down Shenandoah Eviction Appeal

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ONEIDA NATION HOMELAND, N.Y. - A three-judge federal Court of Appeals panel
has refused to intervene in the housing ordinance controversy on the Oneida
Nation's Territory Road, but a lawyer for residents fearing eviction said
they would appeal to the full 2nd Circuit Court and possibly to the U.S.
Supreme Court.

Donald Daines, attorney for the 19 residents suing to block condemnation of
their houses under the ordinance, told Indian Country Today he would file
for reconsideration of the decision by the three-judge panel or by the full
14 members of the 2nd Circuit Court of Appeals. If they failed to reverse,
he said he would then apply to the U.S. Supreme Court to take the case.

In the meantime, Daines filed a motion to stay any Oneida Nation action on
the housing, citing a December 2003 agreement by the Nation's attorneys to
wait for the outcome of the appeal. "The appeal is not completed yet," he
said.

Although homes belonging to families bringing the suit have been condemned
under the ordinance, spokesmen for the Oneida Indian Nation said that no
date had been set for their demolition while appeals were under way. They
said the nation "was not making any comments pending review of the
decision." The Oneida Indian Nation has offered alternative housing to the
families, who have refused it, contending that the Oneida Indian Nation
does not represent them as a government.

The challenge to the ordinance has now gone through three layers of appeal.
Oneida leaders have always maintained that the safety code was inspired by
a traumatic house fire on Territory Road in 1976, which took two lives.

Under current leadership, the Oneida Nation opened the Turning Stone Casino
in July 1993 and used its profits to build a new housing development for
tribal members about half a mile north of Territory Road. (Another Oneida
Nation enterprise, Four Directions Media, is the publisher of Indian
Country Today.)

The April 2 decision by Senior Circuit Judge Ellsworth van Graafeiland
upheld the District Court ruling that federal courts had no jurisdiction in
the matter. The only grounds available under the Indian Civil Rights Act,
said the ruling, was a writ of habeas corpus, to free a person from an
unjust restraint on personal liberty.

Although van Graafeiland allowed that tribal banishment could fall under
that jurisdiction, he said that the current case involved an "economic
constraint," the potential destruction of housing failing to meet the
Nation's safety code, rather than "a restraint on liberty."

"In the instant case, [the Oneida Indian Nation's] enforcement of their
housing ordinance did not constitute a sufficiently severe restraint on
liberty to invoke this Court's habeas corpus jurisdiction," he wrote.

This drawn-out case involves an Oneida Nation housing safety ordinance
requiring inspection of homes on Territory Road, the original 32 acres of
the recovered Oneida homeland, and renovations to bring them up to code.
The ordinance also provides for demolition of structures deemed unable to
meet the code.

Some of the oldest structures on the road belong to families who reject the
legitimacy of the current Oneida government. Some individuals from these
families were declared to have "lost their voice" in Oneida Indian Nation
affairs as the result of earlier disputes. They argue that because they are
ineligible for a Nation program to fund rebuilding of their homes on their
original site, the ordinance is a disguised means of evicting them.

Inspections under the ordinance have led to the demolitions of about a
dozen structures, including one belonging to a member of the Oneida Men's
Council, and at least three new homes have replaced them. OIN spokesman
Mark Emery also noted that two homes belonging to opponents of the
government had passed the inspection.

In perhaps the most emotional moment of the controversy, a trailer
belonging to Danielle Patterson was demolished on Oct. 23, 2002, shortly
after she was arrested and briefly jailed out of state after failing to
appear in tribal court on a charge of assaulting a tribal police officer.

The case reflects an ongoing dispute within the Oneida Nation, and the most
bitter dissension comes within the Wolf Clan and close relatives of the
same family. The matriarch of the plaintiffs, Maisie Shenandoah, 72, is
described in a release from her group as a Traditional Wolf Clan Mother and
11 of her co-plaintiffs are her daughters or grandchildren. She is also
sister to Gloria Halbritter, mother of Nation Representative Arthur Raymond
Halbritter, whom they accuse of usurping power in a 1993 BIA "coup d'etat."

According to a statement they released after the decision, "The plaintiffs
remain steadfast in their rejection of the 1993 action of the U.S. Bureau
of Indian Affairs to force Halbritter into power over the objection of the
1,000-year-old traditional Haudenosaunee Confederacy that signed the Treaty
of Canandaigua in 1794."

However, during the time of the 1993 incident cited, in which a group
consisting largely of external participants requested then BIA chief Ada
Deer to remove federal recognition from the Oneida Nation government,
Maisie Shenandoah was a sitting member of that same government. Along with
other council members she defended the legitimacy of the Oneida Nation
under the leadership of Raymond Halbritter. In a September 15, 1993 letter
to Ada Deer signed by various members of the Council, including Maisie
Shenandoah, the Assistant Secretary was chastised for having "met with
persons outside the Oneida Indian Nation of New York who told you that the
Nation no longer wished Ray Halbitter to be the Nation's Representative and
leader."

The letter goes on to state that more than 90 percent of enrolled adult
members of the Oneida Nation signed statements of support of "the Nation's
traditional government" and that "Ray Halbritter was selected through the
legitimate governmental process."

What emerges from Shenandoah's own letter and that of the Council is a
picture, not of a BIA "coup d'etat" that installed Halbritter against the
wishes of his people, but of an effort by another Oneida member, Wilbur
Homer Jr., Onondaga Chief Leon Shenandoah and others, to install Homer as
Oneida Nation Representative. The letter states that Deer was told by Homer
and others that the Grand Council of the Six Nations Confederacy had the
right to remove and choose leaders of the Oneida Indian Nation of New York.
"Such a 'right' is inconsistent with our sovereignty," the Oneida Nation
letter states.

The Oneida Nation letter also states that Homer "avoided the traditional
Nation process" of consensus because he had no support. Homer was also a
fugitive at the time sought on warrants in New York's Madison and Onondaga
counties. He was later arrested in Syracuse.

Although the BIA had briefly complied with Homer's request it quickly
reversed itself when, among other things, it received a petition supporting
the Oneida Nation government and Halbritter signed by the vast majority of
the Oneida people. Along with other Oneida Nation council members Maisie
Shenandoah also appeared at a meeting with BIA officials on Aug. 10, 1993,
to argue against the BIA's faulty recognition of Homer.

The dispute between the Shenandoah and other Oneida Nation families emerged
later and dealt with matters not related to the BIA.