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Oneidas win in drive to reclaim land

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UTICA, N.Y. - Repurchased Oneida land is "Indian Country" with full sovereign status, a federal judge ruled June 4 in a case with sweeping implications.

U.S. District Judge David N. Hurd decisively rejected claims by state and local governments that the Oneida reservation was abolished in the early 19th century. He ruled that when land within the original Oneida territory returned to nation ownership it could not be taxed by towns or counties even if it fell within their boundaries.

The ruling practically decides some main issues in the broader Oneida land claims case which has still to come to trial, say legal scholars. It also may have broad impact on land suits by other members of the Iroquois Confederacy.

It affirms the broad strategy of using casino profits to reconstitute tribal homelands.

Although the ruling greatly strengthens the nation's legal position, Nation Representative Ray Halbritter sounded a conciliatory note.

"We hope that this will pave the way for solving all land claim issues by negotiated agreement," he said in a prepared statement. "It is time for the entire community to turn away from conflict and to cooperate for a better future for all of us."

Stunned city and county officials said they would take the case to the Second Circuit Court of Appeals. "We think the judge is seriously wrong on a number of points," said Madison County Attorney John Campanie. "We fully expect an appeal to be filed."

The main case, Oneida Indian Nation vs. City of Sherrill, arose from the nation's refusal to pay local property taxes on 23 parcels it had acquired in Sherrill and surrounding Madison County. The property included a gas station and convenience store and a block-long building that houses Oneida Textile Design.

The city foreclosed on the property within its limits, sold the parcels to itself and attempted to sue to evict the Oneida Nation. In response the nation asked the federal court for a permanent injunction on any city or county legal action.

Peter D. Carmen, attorney for the nation, argued that by buying the land, the Oneidas returned it to the reservation status recognized by the 1794 Treaty of Canandaigua.

The nation further argued that all of the original 300,000 acres remain a part of the reservation whether that nation presently owns them or not. It said only the federal government could change reservation status and it had not done so.

Sherrill, the surrounding counties of Madison and Oneida and New York state, argued in court that the reservation was abolished by the 1838 Treaty of Buffalo Creek, one of the most controversial of the measures used to force tribes out of their eastern lands. Judge Hurd decisively rejected that argument, following a closely reasoned brief submitted by the Oneida Nation legal team.

He said the Buffalo Creek Treaty never used language explicitly dissolving the Oneida reservation. Any ambiguity should be resolved in favor of the tribes, he said, following long-standing Supreme Court practice.

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Oneida Ltd., a manufacturing concern in Oneida and a private party submitting a "friend of the court" brief, objected that if tribal sovereignty survived "an obligatory removal treaty," more than 100 million acres of land east of the Mississippi River would be opened to claims of "ongoing tribal sovereignty, jurisdiction and regulatory authority over the lands, waters, natural resources and peoples within these areas."

But Judge Hurd called the contention "baseless" and chided the group for making a statement that "engenders inflamed passions on all sides."

He rejected the company's appeal to history and demography, namely that European settlers had replaced the American Indian population. He said, "this argument calls for ignoring the law and succumbing to political pressures."

He noted, however, that Judge Neal P. McCurn had ruled out dispossession of private landowners as a remedy in the Oneida land claims case. "It may be that courts would also determine that such a remedy is not viable in similar suits in other areas," he said.

The significance of his ruling came when the Oneida Nation repurchased land in a private transaction, he said. Since the reservation treaty was still in effect, he said, "this land is Indian Country and is not taxable by Sherrill and the Counties."

In a blunt preamble, Judge Hurd said his decision was the result of inaction from the federal executive and Legislature. He quoted a 1985 Supreme Court statement in the Oneida land claim case: "This litigation makes abundantly clear the necessity for congressional action."

He added, "Rather than heed the advice of our highest Court, Congress has not enacted legislation to extinguish or resolve Indian title and land claims in New York State. It has turned a deaf ear to the Court and remained silent for over 16 years."

Furthermore, he said, "Heroic efforts" by Judge McCurn and Settlement Master Ronald J. Riccio to make a settlement "were met with resistance and ultimate failure.

"Instead the parties have increasingly turned to the courts to settle their disputes."

Land claim suits by other Iroquoian tribes also are picking up speed. In the same week as Judge Hurd's ruling, Judge McCurn gave the go-ahead for a Mohawk suit over 12,000 acres near the Canadian border. He rejected a series of motions that would have ended the suit, although he allowed one that removed a 144 acre parcel from the claim on the grounds that it was adjudicated in 1938.

The St. Regis band and the Mohawk Nation Council of Chiefs are asking the court to void land deals with New York state which they said were made in violation of federal law between 1816 and 1846. The deals involved the Croil Islands and Barnhart Island surrounded by the St. Lawrence River and a 6-square-mile tract near the Grasse River.

A spokesman for New York State Attorney Eliot Spitzer said the state maintained it had done everything properly.

Judge McCurn is also due to give a ruling on the money damage phase of the Cayuga Nation land claims. The Cayugas won the case in a jury trial two years ago, but were disappointed by a jury award that was one fourth of the settlement proposed in out-of-court negotiations.

In preparing for this decision, Judge McCurn handed the Oneida land claim case to a third federal judge, Lawrence Kahn of the U.S. District Court in Albany. Although 16 years old, this case is still in its preliminary stages.