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Let the Games Begin

The muddle that is Indian law

Mohawks seek meeting

Suppose you filed litigation against your neighbor, but later decided not to pursue it. Such an action ought to be easily accomplished - lawsuits are dropped all the time. Not so if you happen to be an Indian tribe surrounded by the state of New York.

In June, state Supreme Court Justice Dennis McDermott refused to allow the Oneida Indian Nation of New York to drop a series of lawsuits, and a trio of state appellate judges recently agreed with him. Their attitude seems to be that state law somehow supersedes federal law.

This situation stems directly from the 2005 City of Sherrill v. Oneida Indian Nation of New York decision, in which the U.S. Supreme Court ruled that the OIN could not assert sovereignty over reservation land illegally taken from it in years past. With dollar signs in their eyes, the two counties, Madison and Oneida, that surround the nation's 17,000 acres began foreclosure actions against nation lands for unpaid property taxes.

The nation then filed suit against 22 municipal governments in the two counties to prevent them from foreclosing. U.S. District Judge David Hurd subsequently ruled that the counties had no authority to seize land from a federally recognized Indian nation. OIN then sought to drop its litigation against the municipalities, believing that a federal district court decision ought to be adequate to settle the issue.

But the New York appellate judges did not agree.

''Public policy favors a resolution of these issues,'' the appellate judges wrote in their ruling, ''especially considering that the federal decision is being appealed and therefore remains uncertain.''

So why not wait until it is decided? The three judges wrote, ''Federal court rulings on issues of state law are not binding on state courts.''

But this isn't an issue of state law. Section 8 of the U.S. Constitution specifically dictates that Congress alone has the authority ''To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.''

So the question becomes this: What happens if Hurd's ruling that the municipalities cannot foreclose is upheld, but if New York's Court of Appeals (the state's highest tribunal) says that they can foreclose? Who wins?

Of course, there is also OIN's land trust application, vehemently opposed by all levels of New York government - local, county and state. Could New York be trying to re-steal Indian land before at least some of it is taken into federal trust?

Students of history may remember a nasty, bloody conflict back in the 1860s over the issue of states' rights. Didn't we decide back then that federal law trumps state law?

Once again, we can trace this jumbled mess back to Sherrill. The lone dissenting justice in that opinion, John Paul Stevens, correctly recognized the majority's ruling as ''perverse,'' ''inequitable'' and ''a novel holding,'' and that it contradicted ''settled law.''

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This is yet another example of the muddle that is Indian law. Federal and state courts are not on the same page - they're not even in the same book.

So how is an Indian tribe to get justice against increasingly aggressive states? To quote the ''To be or not to be'' soliloquy from Shakespeare's Hamlet - ''Ay, there's the rub.''

Catskill casino follies

Despite efforts to jumpstart the land-trust process for its proposed Catskill casino, the St. Regis Mohawk Tribe continues to wait for a response.

Frustrated by months of inaction on its land trust application, St. Regis tribal leaders in August formally requested a meeting with Interior Department Secretary Dirk Kempthorne.

''Requests are sent in on a daily basis,'' said Leslie Logan, of the tribe's public information office. ''But we have not been granted a meeting.'' She said that Kempthorne is out of his office until early September.

''No dates have been floated, but we're going to keep trying,'' she said.

The tribe's Akwesasne reservation, along the St. Lawrence River, straddles the U.S./Canadian border. The land in question, 29.3 acres of land in the Catskill town of Monticello upon which the tribe hopes to build a casino/resort complex, lies 250 miles due south of Akwesasne, as the crow flies.

Kempthorne is on record as an opponent of off-reservation casinos. The Mohawks claim their application ''has been personally delayed by the Secretary for at least two months,'' according to SRMT's Aug. 3 press release.

''We understand that there is no statutory time limit attached to the approval process,'' said Barbara Lazore, one of SRMT's three chiefs, in the release. ''However, it is important to note that if the secretary is upholding or postponing a decision based on personal convictions, there is no basis in law for that. ... We are insisting on a face-to-face meeting with the secretary to discuss this unwarranted and unnecessary delay.''

Another chief, James Ransom, described the tribe's application as ''airtight,'' with no outstanding regulatory or statutory issues.

''I hope that the secretary sees fit to meet with us and explain his position,'' Ransom said in the press release. ''Or better yet, announce his decision.''

New York state sides with the Mohawks. Gov. Eliot Spitzer in February concurred with a federal finding that SRMT's casino plan has satisfied relevant environmental criteria. Spitzer's predecessor, former Gov. George Pataki, signed legislation in October 2001 authorizing three Indian-owned casinos in the Catskills. None of these have gotten off the drawing board - the Mohawk proposal has advanced the furthest.

Kempthorne's previously expressed concerns that approving one off-reservation casino would mean approval for all is nonsense. Each tribe's circumstances are different. This project has Albany's backing. The SRMT has invested considerable time and energy on the project.

The Mohawks deserve a meeting and an answer, preferably a positive one - sooner rather than later.