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N.Y. legal battles ongoing

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ONEIDA NATION HOMELANDS, N.Y. - Reports of the demise of New York state
tribes are exaggerated, as they always have been.

Legal fights are delaying the impact of two serious recent losses in
federal courts, and the odds that one of them might even be reversed appear
sharply higher as lawyers analyze it closely.

The June 28 ruling by a 2nd U.S. Circuit Court of Appeals panel voiding the
generation-old Cayuga land claim suit is looking more and more vulnerable
to an appeal to the full 2nd Circuit bench. Beyond its effect on Indian
rights, it places far reaching and novel limits on the ability of the
federal government to enforce its own laws. In addition, a charge has
emerged that it might be "incurably tainted" by a conflict of interest on
the part of the judge who wrote the 2 - 1 decision.

The other major loss, the March 29 U.S. Supreme Court ruling in City of
Sherrill v. Oneida Indian Nation of New York, is having a less immediate
effect on Oneida operations than its more hostile neighbors apparently
hoped. U.S. District Court Judge David Hurd issued a stay July 1 against a
foreclosure action filed by Madison County in state court for 98 parcels
owned by the Oneida Nation, citing the "complexity, scope and significance
of the case," To protect the county's interests, he ordered the Oneidas to
post a $3 million bond, the sum of the alleged back taxes, by July 15.

Oneida County officials said July 5 they would continue their own
foreclosure against 58 nation parcels on which they are charging about $5
million in back taxes. They have threatened an auction if they don't
receive payment by September. Although the Oneida County action is more
advanced procedurally than Madison County's, Hurd's argument would seem to
apply there too.

Neither case involves the Oneida's Turning Stone Resort and Casino, valued
by the town of Verona at over $350 million. Following a nearly decade-old
development agreement between Verona and the nation, no taxes have yet been
assessed on the casino, although the town said it is preparing a tax bill
for the coming year.

(The Oneida Indian Nation also owns Four Directions Media, publisher of
Indian Country Today.)

In the wake of Sherrill, which rebuffed the nation's attempt to assert
"unilateral" tribal sovereignty over its reacquired reservation land, New
York Gov. George Pataki did question the legality of the casino in early
June in a letter to the National Indian Gaming Commission. At the time, he
openly portrayed his inquiry as pressure on the Oneida Nation to reach a
land claims settlement before the end of the legislative session. NIGC
Chairman Phil Hogen told ICT that he has been discussing a response to the
letter with Interior Secretary Gale Norton.

Interviewed June 28 at a tribal financial management conference at the
Mohegan Sun, he declined to say when they would reply.

A good reason for the timeout emerged later that afternoon when the 2nd
Circuit panel voided the Cayuga Indian Nation of New York v. Pataki land
claim suit, using arguments that would effectively bar almost all Indian
land claims across the country. The decision overturned a $248 million
District Court award to the Cayuga Nation and the Seneca-Cayuga Tribe of
Oklahoma. Writing the majority opinion, Judge Jose A. Cabranes said the
Sherrill decision had "dramatically altered the legal landscape."

His ruling landed like a bombshell among tribal leaders and lawyers
attending the United South and Eastern Tribes midyear meeting at the
Mashantucket Pequot's Foxwoods Resort. But their evident dismay eased a bit
after a closer reading showed some major issues that could bring the full
2nd Circuit to reverse the ruling.

The first appeal from a Circuit Court panel is to the Circuit Court sitting
en banc, that is, with as much of the full membership as possible hearing
the case. The 2nd Circuit has generally been sympathetic to Indian issues.
Past performance of the judges, and the cogent dissent filed by District
Judge Janet Hall, a member of the panel, suggest a vote of at least 6 - 3,
or more, for reversal.

A major problem with Cabranes' opinion is the unprecedented limit it placed
on the power of the U.S. government to punish breaches of federal law. This
"novel" doctrine emerged from his reading of U.S. Supreme Court Justice
Ruth Bader Ginsburg's Sherrill decision, which applied the equity doctrine
of laches, among others, to bar the Oneida's remedy of asserting
sovereignty over reclaimed land.

Some might argue that Ginsburg distorted the doctrine. It has two parts,
not simply that one party "waited too long" to bring suit. The second part,
as Hall made clear in her Cayuga dissent, is prejudice; the long delay
might have changed conditions so that the defendant can't protect himself
in court, through death of witnesses and so forth. As Indian lawyers
maintain, if anyone has suffered prejudice from the long delay that
innumerable barriers caused in bringing the land claim suits, it is the
tribes that lost their land.

But the Cayuga case differed from Sherrill in a very important respect -
the United States of America was a party. Hall quoted apparently clear
language reasserted in a 2004 Supreme Court decision: "The principle that
the United States are not ... barred by any laches of their officers,
however gross, in a suit brought by them as a sovereign Government to
enforce a public right, or to assert a public interest, is established
beyond all controversy or doubt."

Cabranes acknowledged this point but denied it was a "per se rule." The
land claims, he said, were private actions, not a matter of public
interest, as if violations of a law enacted by the First Congress and
renewed ever since did not raise questions of public policy. Even though
the 2nd Circuit itself had ruled that laches did not bar Indian claims,
Cabranes took it on himself to interpret the Sherrill decision as
overruling his own court's precedent, an assertion his colleagues might
want to speak to.

Laches does remain the Achilles heel of the land claim suits. The Supreme
Court left the argument open in its last word on the subject, the 1985 5 -
4 decision letting the Oneida land claim go forward. A strong dissent used
laches to argue that property titles should be left "in repose." Ironically
it was written by Justice John Paul Stevens, the lone dissenter in the
Sherrill decision. But even this decision cited private actions, not
attempts by the United States, to enforce its law.

The very least one can say about the Cabranes decision is that it will not
be the last word on this doctrine or, very likely, on Indian land claims.