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Supreme Court rejects Oneida taxation defense

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Declares repurchase doesn't restore sovereignty

ONEIDA NATION HOMELAND, N.Y. - Rejecting an expansive theory of tribal
sovereignty, the U.S. Supreme Court ruled 8 - 1 against the Oneida Indian
Nation's attempt to assert immunity from local properly taxes on
repurchased parcels within the Nation's historical reservation boundaries.

After invoking the Doctrine of Discovery and citing without condemnation
the early 19th century Indian removals, Justice Ruth Bader Ginsburg wrote
that the Court's holding would "preclude the tribe from rekindling embers
of sovereignty that long ago grew cold."

While rejecting the Nation's "unilateral" assertion of sovereignty in the
closely-watched City of Sherrill v. Oneida Indian Nation of N.Y. case, she
did endorse the existing federal process of taking land into trust. The
congressional "mechanism for the acquisition of lands for tribal
communities," she wrote, "takes account of the interests of others with
stakes in the area's governance and well being."

The decision went beyond taxation and undercut tribal efforts to restore
jurisdiction across the board on recovered territory, both in New York
state and across the country.

Hostile neighbors of the Oneidas greeted the ruling with jubilation. One
citizen group called on the regional U.S. Attorney to end what it called a
"racketeering enterprise," referring to the Oneida Indian Nation's (OIN)
Turning Stone Resort and Casino and its Sav-On chain of convenience stores
and gasoline stations.

The Oneida Nation of upstate New York released a two-sentence reaction:
"Certainly the Nation wishes the court had ruled differently. But, the
Nation will do everything it can to protect the over 4,200 jobs it has

In an internal letter to employees, Nation Representative Ray Halbritter
said that "life goes on and we will continue to do everything in our power
to protect your jobs, have our enterprises thrive and maintain our

In addition to the casino and convenience stores, the Oneidas are opening
an expanded resort hotel and golf course complex. Their enterprises include
Four Directions Media, publishers of Indian Country Today.

Indian leaders and law specialists found much to criticize in Ginsburg's
ruling. Professor Robert Odawi Porter, director of the Center for
Indigenous Law, Governance and Citizenship at Syracuse University, said it
was "barren of legal precedent."

Tex Hall, president of the National Congress of American Indians and
chairman of the Three Affiliated Tribes, said the decision "throws the
principles of Indian Law and the canons of construction on their head. The
very hostility and indifference of the United States to Indian tribes is
now being used against Indian tribes as a justification for the
dispossession of Indian lands."

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The lone dissenter, Justice John Paul Stevens, said the decision "is at war
with at least two bedrock principles of Indian law."

"First, only Congress has the power to diminish or disestablish a tribe's
reservation. Second, as a core incident of tribal sovereignty, a tribe
enjoys immunity from state and local taxation of its reservation lands,
until that immunity is explicitly revoked by Congress."

The case began when the City of Sherrill sent out tax bills for several
Oneida-owned parcels, including a gas station and a textile printing
factory. The Oneidas refused to pay and the city foreclosed. The Oneidas
went to federal court for an injunction. Both the District Court and a 2 -
1 majority in the Second Circuit Court of Appeals found in their favor in
lengthy decisions.

Ginsburg ignored most of the legal arguments, however, basing her ruling on
"pragmatic concerns." She said, in essence, that the deed was done too long
ago and that it would be impractical to set it right.

"The wrongs of which OIN complains in this action occurred during the early
years of the Republic," she wrote. "For the past two centuries, New York
and its county and municipal units have continuously governed the

"This long lapse of time, during which the Oneidas did not seek to revive
their sovereign control through equitable relief in court, and the
attendant dramatic change in the character of the properties, preclude OIN
from gaining the disruptive remedy it now seeks."

She referred to an 1892 case citing improvements European settlers had made
on "[t]hat which was wild land 30 years ago." She did not mention the
improvements made recently by a number of Indian tribes on land returning
to their sovereign control. Tribal resorts such as Turning Stone have
become the leading private employers in a number of regions.

Ginsburg also took pains to distinguish her ruling from earlier land rights
cases in which the Supreme Court upheld the Oneidas' right to bring federal
suit over the illegal dispossession of their land in the late 18th and
early 19th centuries. These suits are still pending.

"In sum, the question of damages for the tribe's ancient dispossession is
not at issue in this case," she said, reaffirming the holding in the 1985
case now known as Oneida II.

"However, the distance from 1805 to the present day, the Oneida's long
delay in seeking equitable relief against New York or its local units, and
developments in Sherrill spanning several generations, evoke the doctrine
of laches, acquiescence and impossibility, and render inequitable the
piecemeal shift in governance this suit seeks unilaterally to initiate."

Ironically, Stevens, who has emerged in his dissent here and in a
concurring decision in last year's Lara case as the court's greatest
advocate of tribal sovereignty, dissented in 1985 in Oneida II. In that
dissent he cited "laches," the doctrine that an old grievance couldn't be
brought to court if a long lapse of time made it hard to mount a defense.
Ginsburg has repeatedly made a point of citing Stevens' 1985 dissent.