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Oneida judge says tribal court wrong venue

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ONEIDA, N. Y. - Lack of jurisdiction keeps the Oneida Nation Court from hearing complaints from 18 disenfranchised tribal members against Nation Representative Ray Halbritter and the Oneida government, Chief Judge Stewart F. Hancock Jr. ruled.

The ruling upheld the nation's motion to dismiss the suit, argued before the court in a special session on Dec. 28. The suit, the biggest case yet heard by the fledgling tribal court, was the latest round in a dispute lasting more than a decade.

Some plaintiffs said when they brought the suit that they didn't expect to win in tribal court but were laying groundwork for an appeal to the federal courts.

Judge Hancock's memorandum decision stated that the 1997 Oneida Nation ordinance creating the court specifically left out three types of suits, including questions of "membership and good standing in the nation." The other two are suits infringing on the sovereign immunity of the Nation or raising "political questions."

"Reading the complaint in a way that is most favorable to plaintiff's contentions, it is clear that every allegation falls within one or more of the specific exclusions from the nation court's subject matter jurisdiction," he wrote.

"The complaint recites a litany of allegedly unauthorized and illegal actions taken by defendant Halbritter together with the Men's Council and Clan Mothers."

These acts he wrote, included "wrongfully 'convicting' plaintiffs of 'treasonous' activities and sanctioning them by denying essential services, causing them to lose their voices as nation citizens, terminating their distributions, suspending them from employment in the nation, and enacting and implementing a program to improve housing which will assertively cause some of them to be illegally evicted from their homes."

The judge said loss of benefits resulted "because eligibility is expressly limited to members 'in good standing.'" Questions of membership status were excluded from the court's jurisdiction by Section 3 of the ordinance, he said.

This barrier kept the court from judging the charge that the plaintiffs faced illegal eviction, the newest element of the complaint. Some of the plaintiffs, notably Maisie Shenandoah and her relatives, live in trailers on Territory Road on the original 32 acres of Oneida territory, target of the Oneida Nation initiative to eliminate unsafe housing. The Shenandoahs charge that without access to tribal grants for rebuilding, they will be forced to leave the indigenous territory.

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Judge Hancock said he had no jurisdiction over official acts of the nation or Halbritter since they had not waived sovereign immunity. He rejected the plaintiff's argument that they sued Halbritter as an individual, not in his official capacity.

But the basic question was whether "defendant Halbritter, the Men's Council and the Clan Mothers were without authority because Halbritter had unlawfully continued in and expanded the role of Nation Representative and had unlawfully replaced the traditional Oneida government," Hancock said.

These charges "entail questions involving the government of the nation which are inherently political in nature and are specifically excepted from this court's subject matter jurisdiction."

In a footnote, Hancock noted the irony that if the nation government were invalid, then its ordinance setting up the court would also be thrown out. "The Oneida Nation Court - the tribunal from which plaintiffs seek relief - would not exist to grant relief even if it were assumed that the Establishment Ordinance had granted it subject matter jurisdiction."

In a final point, Hancock denied the court could expand its jurisdiction under the federal Indian Civil Rights Act (ICRA).

"The Oneida Nation had the power, in its discretion, to create a tribal court and to limit its jurisdiction as it saw fit," he wrote. "A holding that the ICRA has compelled the Oneida Nation Court to hear matters beyond its delegated authority would conflict with the Nation's recognized powers of self-government as a sovereign Indian Nation."

Barbara J. Olshansky, counsel for the plaintiffs, could not be reached for comment, but she indicated at the hearing that she would appeal an adverse ruling to the tribal appeals judge and, if necessary, to the U.S. District Court.

The Oneida Nation released a terse statement saying it "is pleased with the judge's dismissal of the case. The nation will continue with its initiative to provide safe and better housing for everyone on Territory Road."

Current plaintiffs are Maisie Shenandoah, Wilbur Homer, Raymond Obomsawin, Victoria Shenandoah, Darcie Tarbell, McKenzie Williams, Lorna Jones, Geralda Thompson, Lizza Obomsawin, Joanne Shenandoah, Gerald Shenandoah, Matthew Jones, Danielle Patterson, Linda Hill, Neil Thomas, Irene Thomas, Otatdodah Homer and Leonard Babcock.

Many also were parties in an earlier unsuccessful federal court suit against Halbritter and the Oneida Nation.