Let the Games Begin

Resolving differences

An Oneida win and a Cayuga proposal

Could the end of central New York's two longest-running Indian land claims be in sight? Don't bet on it - yet.

In mid-May, both the Oneida and Cayuga nations returned to the headlines - the Oneida for having its land claim case dismissed and the Cayuga for proposing a settlement to its land claim. A look at each is in order.

Money, not land

Federal District Judge Lawrence Kahn ruled May 21 that the Oneida Indian Nation of New York may receive only money and not land as compensation for illegal and below-market-value purchases of reservation land by New York state.

Through the mid-1800s, Albany paid individual Oneidas, many if not all of whom were not authorized to sell communally held tribal land, some $116,000 for tens of thousands of acres of prime real estate that OIN has said was worth more than $600,000. Kahn ruled that this aggregate sum might well have been far less than the prevailing market rates of the day. He said that OIN can sue to recover the difference, plus interest. Various media reports have pegged this amount at $500 million. The Oneidas, as Kahn said in his decision, deserve compensation for the ''betrayals'' they suffered at the hands of the state.

Kahn's decision has basically squelched Oneida efforts to get land as settlement to its claims - now money is the remedy and Albany is likely going to be on the hook for millions of dollars. If OIN and Albany cannot negotiate a financial settlement (given the decades-long, contentious relationship between them, there's no reason to believe they can) the matter will go back to the courts for another long, drawn-out fight.

It would certainly behoove the state to negotiate in good faith. Although Albany has long aimed its greedy eyes at taxing Indian commerce and grabbing its ''fair share'' of gaming proceeds from Turning Stone Resort and Casino, a successful OIN lawsuit could turn the tables by restoring to the Nation some of the bargaining leverage that the City of Sherrill v. Oneida Indian Nation of N.Y. (544 U.S. 197 [2005]) decision stripped away from it.

Now might be the best time to negotiate a fair deal. Settling the matter will save thousands upon thousands of taxpayer dollars in court costs and will resolve things much quicker than the legal system can. And both sides have something that the other wants - money. But rather than give the Oneidas their due, Albany will certainly continue its efforts to pump OIN money into its own treasury.

Look for Albany to appeal Kahn's decision to the Supreme Court. Hey, why not? After what the court did to OIN in Sherrill, the governor and his minions will no doubt be hoping for an encore from the nine justices.

(Indian Country Today is owned by Four Directions Media, a business enterprise of the OIN.)

Sherrill's legacy

Shrill voices and media laziness have combined to distort what this decision actually says and does not say, leaving central New Yorkers confused. First and foremost, the Sherrill decision, despite repeated and vehement assertions to the contrary from many local politicians and other private individuals, did not extinguish Oneida claims to former reservation land in Madison and Oneida counties. Only Congress can formally disestablish an Indian reservation, which it never did to the original 250,000-acre Oneida reserve. Thus the reservation still exists - an assertion that remains the basis for OIN's continued resistance to Albany's attempts to tax it.

What Sherrill did say was that the OIN cannot reassert sovereign aboriginal title by simply reacquiring, in fee simple from willing sellers, land that is still recognized as having been illegally purchased by New York state during the late 18th and early 19th centuries.

Furthermore, the Supreme Court did offer the OIN a remedy of sorts. Justice Ruth Ginsburg's majority opinion specifically directed the Oneida and other Indian nations to apply to the Department of the Interior to take tribal lands into federal trust. OIN has done so, and a decision is expected in the coming months.

The Sherrill decision has been immensely harmful to Oneida sovereignty. A favorable land-trust decision and financial compensation from Albany could soothe some of the damage. At this point, however, it is impossible to say how much, if any, land Interior will take into trust or how much money, if any, Albany will pay to compensate the nation.

Casino proposal

Seventy miles to the west, the Cayuga Nation has offered an ambitious and reasonable proposal that merits serious consideration from state and local officials. Whether the plan will get such attention remains to be seen. Under the Cayuga proposal, in return for dropping its federal land into trust application, the nation would gain approval to build a Class III (aka ''Las Vegas-style'') casino either in central New York or the Catskills. The tribe would only build its casino in a community that wants it -Auburn comes first to mind, as it lies within Cayuga ancestral territory (although not the land claim boundaries) and because a number of local polls including the mayor have said they want a casino. The Cayugas have also explored having a casino in the Catskills.

The Cayugas would limit their federal land trust holdings at 10,000 acres, cap their trust holdings in Cayuga and Seneca counties at 6,600 and 3,300 acres, respectively, and have to own their land in a few contiguous parcels. This is a significant concession - the acreage represents less than one-sixth of the Cayuga land-claim area.

The Cayugas would also generously ''share'' gaming proceeds with Albany and with Cayuga and Seneca counties, an offer that would reap millions of dollars for the three governments. This is ''generous'' because under federal law, tribes are not required to pay to states any of their gaming proceeds.

Despite sharp internal divisions on gaming issues, the Cayuga leadership has at least had the wherewithall to offer ideas and potential solutions to its legitimate land claim. This is much more than can be said for area politicians who only criticize and lambaste the tribe without offering constructive solutions of their own. Most local polls and loudmouth ''citizens groups'' have consistently assailed the nation over the years. They've never offered constructive suggestions or meaningful concessions, insisting instead that the Indians ''negotiate'' on their terms - which really means acquiesce to their demands.

The Cayuga proposal is a classic ''win-win'' situation that solves a long-festering problem. Both sides get some of what they want and both sides have to compromise as well. Of course, this proposal needs approval at all levels of government - county, state and federal - none of which can be counted on to view this proposal for what it is: a mutually beneficial solution to what has been an intractably divisive issue for years.

Let's hope cool heads prevail in rapid time. A pipe dream? Probably.