WASHINGTON -- The U.S. Solicitor General, the federal government's top
lawyer, is supporting the Oneida Indian Nation position on its state and
local tax exemption with a brief recently filed at the U.S. Supreme Court.
The Court is deliberating whether to review a 2nd Circuit Court of Appeals
ruling in favor of the Oneidas. At a Feb. 23 conference meeting on whether
to take up the case, which it would do by issuing a writ of certiorari, the
judges decided to invite the Solicitor General to send them the
Government's opinion. In a brief filed May 28, Solicitor Theodore B. Olson
told them, "The petition for certiorari should be denied."
Denying "cert" would end an appeal by the City of Sherrill and let stand
lower federal court rulings that reacquired Oneida Nation land cannot be
taxed by state and local governments. The city has been trying to collect
real estate taxes on several parcels owned by the Oneidas and has even
tried to repossess them. The case originated when the Oneida Nation sought
a federal court order staying the city's enforcement actions.
The Solicitor General's brief affirmed the position of the lower courts
that the Oneidas retained Indian title to land in the 300,000 acres
reserved to them by a series of federal treaties. New York state purchased
the land in violation of the federal Non-Intercourse Act, said the brief,
so when parcels returned to Oneida fee ownership through purchase, they
also reverted to their Indian title status.
The U.S. government is also supporting the Oneidas and several other
NewYork state tribes in long-running land claims suits. The brief reassured
the Court that the Sherrill case did not present the same set of issues.
"Even if the Court concluded that it may wish to revisit the complex issues
surrounding the longstanding efforts of New York Indians to vindicate their
possessory interests in their aboriginal lands, this case -- which involves
taxation of land that the Tribe has reacquired -- would not be a suitable
vehicle for resolution of the full range of those issues," said the brief.
"Rather, in that event, it would be appropriate for the Court to await
resolution of the ongoing litigation in the lower courts in which the
United States and the New York are both parties, and in which the record is
being fully developed on various matters."
The brief also addressed a dissenting opinion in the Court of Appeals,
which voted for the Oneida position by two to one. The dissenter, Judge
Ellsworth van Graafeiland, raised doubts about the continuous existence of
the Oneida Indian Nation as a tribe. Olson's brief emphatically dismissed
that argument. "At most, the documents cited by petitioner [City of
Sherrill] indicate that there has been 'fluctuations [in] tribal activity
during various years,'" said the brief.
"But such fluctuations do not foreclose the conclusion that a Tribe has
continuously existed ... much less provide a basis for a court to override
the Executive's determination that a Tribe has continuously existed. In any
event, ample evidence demonstrates that the United States continued its
historic course of dealings with the Oneida as a Tribe during the late
nineteenth and early twentieth centuries."
The brief cited the U.S. government's annual delivery of "treaty cloth" to
the Oneidas and its intervention in the early 1900s to eject non-Indians
from the 32 acres of remaining Oneida land.
With the brief in hand, the Supreme Court is expected to resume its
conference on the Sherrill petition, although a decision is not expected
before the end of the month. Only about one in 100 appeals to the Supreme
Court receive "cert."