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Sherrill decision strengthens Indian country

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There are court decisions that reach across Indian country. The decision last week by the U.S. 2nd Circuit Court of Appeals upholding the Oneida Indian Nation of New York's right to tax-exempt status as they buy properties within their former reservation lands is one of those.

The federal appeals court agreed in a 2-1 vote that nation-owned land, recently repurchased by the Nation in the nearby town of Sherrill cannot be taxed. Said the court: "Because the Oneidas' reservation was not disestablished and because the Sherrill properties are located within that reservation, we conclude that Sherrill can neither tax the land nor evict the Oneidas."

As it gained in economic clout via Turning Stone, its resort and gaming enterprise at Verona, N.Y., the Oneida Nation has been buying its land base back, some within the nearby town of Sherrill. In February 2000, when the city threatened foreclosure of the nation properties within the city for its refusal to pay property tax, the Oneida Nation sued Sherrill in federal district court. In June 2001, U.S. District Judge David Hurd ruled that the land in Sherrill and other parcels in Madison County could not be taxed and Sherrill could not foreclose because these properties were now "Indian country." Hailed as "a significant victory" for Indians nationally, the decision exempted the Oneida-owned land in Sherrill from all forms of state jurisdiction. Last week's ruling upheld that decision.

The ruling is likely to impact not just Madison and Oneida counties, but across New York and perhaps across the country. Two of the three judges on the panel held that the extremely important 1794 Treaty of Canandaigua, which reserved about 300,000 acres of land for the Oneidas and applies to several of the Six Nations Iroquois reservations, remains in effect. Since the Oneida-owned properties in question lie within the boundaries of the original Oneida reservation as defined by the 1794 Treaty, they are part of Indian country and thus not subject to local taxes.

The two-judge majority ruled that the 1794 Treaty of Canandaigua, which set aside an Oneida Reservation, "remains in force." Wrote Judge B.D. Parker in the 51-page decision: "There is no material dispute that the Sherrill Properties were part of the Oneidas' aboriginal land and the tribe's reservation as recognized by the Treaty of Canandaigua."

Two other nations, the Cayuga Indian Nation and the Seneca-Cayuga Tribe of Oklahoma, both of which have recently bought land in Cayuga County, point to the decision in the Oneida case in their assertion of tax-exemption on their properties.

One of the three judges, Ellsworth A. Van Graafeiland, dissented, claiming that the Oneidas of New York - even though they are federally-recognized - could not prove they were a legitimate tribe under federal law. While the original Oneida tribe has now fragmented into three separate governments - one each in New York, Wisconsin and Ontario - the New York Oneidas, still located in their aboriginal territories, hold the mantle of sovereignty in the area.

Sherrill lawyers had argued that the lands owned by the Oneida Nation were not set aside by the federal government for Indian use and thus could not be construed as "Indian country." They further argued that an 1838 treaty disbanded the Oneida reservation. This vague attempt at challenging the fundamental existence and formal recognition of the Nation found agreement in Judge Van Graafeiland's dissent. Van Graafeiland opined that the New York Oneida Nation may have forfeited its rights of inheritance of the land because "its tribal existence was abandoned for a discernible period of time." However, these speculative notions did not carry the day and the decision states, quite strongly: "This reservation has never been disestablished, and accordingly, the 'trust relationship' between the federal government and the Oneidas has never been terminated."

Lawyers for Sherrill have asked the judges to re-analyze their decision and, failing that, vow to appeal the case to the U.S. Supreme Court. The Oneidas have a good track record with the High Court, which has twice ruled for them on their land claim. Because the district court judge who initially heard the case rejected the county's arguments too quickly, Madison County will get also another hearing. Further arguments by Madison County, however, are unlikely to affect the ruling.

Officials in Sherrill and in Madison and Oneida counties argue that they lose millions in taxes because the nation pays no taxes on its 16,000 acres, assessed at over $225 million. The land, however, is no longer theirs to tax. That sovereign authority now belongs to the Oneida Nation. That is the basis of sovereign government, which is mandated to offer services to its own nation membership and to protect its lands and other assets from foreign jurisdictions.

Nevertheless, cognizant of the budgetary burdens that such recoveries cause to their neighbors, the Oneida Nation has consistently offered financial "Silver Covenant" awards that more than compensate local school districts, towns and counties for their revenue losses. Some have accepted but others, fervently mired in their anti-Indian positions and who wish for nothing less that the extinguishment of the Indian government, have refused.

The local anti-Indian hate group, Upstate Citizens for Equality, was predictably upset. Across the country, battles over the attempt to tax sovereign tribal nations are raging as many states and municipalities have racked up huge deficits. In any and all cases where Native people have not asserted their sovereign rights or worse, have given up such rights in questionable language, states and municipalities will advance upon Indian sovereignty. The Oneida Nation and other Iroquois nations are fortunate to have had ancestors who worked intelligently to protect the rights of their coming generations.

States Article 4, Treaty of Canandaigua: "The United States having thus described and acknowledged what lands belong to the Oneidas, Onondagas, Cayugas, and Senecas, and engaged never to claim the same, nor to disturb them, or any of the Six Nations, or their Indian friends residing thereon, and united with them, in the free use and enjoyment thereof ?"

This new affirming decision, the result of persistent, intelligent and cogent advocacy by the Oneida people, will certainly be challenged, perhaps all the way to the U.S. Supreme Court. Nevertheless, as of today, it stands as a beacon of clear interpretation on the fundamental reality of Indian sovereignty.