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Judge appoints mediator in Oneida land claim; Reserves dismissal ruling for later

SYRACUSE, N.Y. ? In an attempt to resolve the ongoing land claim dispute between the State of New York and several groups of Oneida Indians, a federal judge appointed a mediator on May 3.

Judge Lawrence E. Kahn, presiding at the U.S. District Court for the Northern District of New York, appointed Albany lawyer John W. Tabner mediator in the matter. Tabner's term, effective immediately, will extend for 90 days. He will be compensated at the rate of $250 per hour for time spent up to 50 hours. The federal and New York state governments were ordered to split the mediator's fees and expenses.

"The Court finds it to be in the interest of justice and finality to bring all of the parties to this action together to attempt to reach a comprehensive settlement of this action," Judge Kahn wrote in his order.

While praising the new mediator's legal expertise, Judge Kahn said that Tabner considered his assignment "a challenge." A previous mediator, Ronald Riccio, dean of the law school at Seton Hall University in New Jersey, was appointed in February 1999. Thirteen months later, he declared his attempts "fruitless" and expressed doubts that a settlement agreeable to all parties would ever be reached.

The appointment came at the end of a hearing on a defense motion to dismiss a series of lawsuits by the Oneida Tribe of Indians of Wisconsin against 57 property owners in the Central New York counties of Madison and Oneida. The Wisconsin Oneidas filed these suits in February and March in an attempt to force the state to negotiate with them on settling the original land-claim suit.

On Feb. 16, the New York Oneidas announced an agreement-in-principal with the defendants in the original land-claim lawsuit, New York State and the counties of Madison and Oneida. Under that agreement, the Wisconsin Oneidas would receive $250 million and the Oneida Nation of the Thames in Canada would receive $25 million; neither would get any land within New York State.

That lawsuit involved a 250,000-acre tract claimed jointly by the Oneidas as their ancestral homeland.

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At the hearing on the motion to dismiss the Wisconsin Oneidas' lawsuits, Dwight A Healy, attorney for the defendant landowners, asserted that the absence of the other parties in the original lawsuit was cause for immediate dismissal. Healy called those parties, the Oneida Indian Nation of New York and the Oneida of the Thames, "necessary parties" to the case.

Healy further argued that there are "absolutely no circumstances" under which the plaintiffs are entitled to gain relief from private landowners, referring frequently to Judge Neal P. McCurn's previous dismissal of a similar lawsuit against individual landowners by all the Oneida groups. Healy characterized the Wisconsins' suits as "harassing, disruptive and vexatious litigation," which he said the court has broad jurisdiction to prevent. Healy likened the lawsuits to a "sword of Damocles" hanging over the landowners' heads.

Healy is a member of the White & Case law firm of New York City. The firm was hired by the state to represent the defendants.

The Wisconsin Oneidas' attorney, Arlinda Locklear, argued that Judge McCurn's decision applied only to the 20,000 landowners in the original 250,000-acre contiguous claim, while the Wisconsins' lawsuits currently target 57 landowners and some 2,000 acres in non-contiguous parcels. The difference in scope and magnitude make this a "a qualitatively different issue" for the court to consider, she said.

Locklear asked Judge Kahn to be pragmatic in his ruling on the motion. Because the Wisconsin Oneidas were excluded from the settlement negotiations with the New York Oneidas, the Wisconsins have no other relief available.

"What's at stake is the Wisconsin Oneidas' ability to proceed with their land claim," she argued. "Without these actions, the tribe has no other options" available.

The 57 defendants, owners of commercial properties within the original land-claim area, were selected for minimal disruption to the community and because the tribe's equity interest in the land superceded theirs, Locklear said, adding that no residential owners were intentionally targeted.

Judge Kahn closed the hearing by saying he would consider both parties' arguments on the motion to dismiss and issue a ruling "