As has been mentioned before this case is dealing with some of the same tax/reservation/land into trust issues that Osage Nation is. If I am understanding the logic of this ruling…while their case deals with land taxation ours somewhat deals with personal taxation. If the individual in the case is an “incompetent Osage” and a ward of the federal governement these cases should be analogous. But most of the time my legal understanding leaves much to be desired. Can anyone with some legal knowledge straighten this out for me?

full story here

Verona, NY — When the U.S. Supreme Court ruled in 2005 that the Oneida Indian Nation had to pay property taxes, much of Madison and Oneida counties rejoiced.

A federal appeals court on Tuesday, however, stripped the counties of the power to actually collect those taxes.

A panel of the 2nd Circuit Court of Appeals said that, while the tribe might owe taxes, it can’t be taken to court because it’s sovereign. That means the nation can ignore tax bills without the fear of facing court proceedings as other delinquent landowners might.

“The (Oneida nation) is immune from suit under the long-standing doctrine of tribal sovereign immunity,” wrote Judge Robert Sack. “The remedy of foreclosure is therefore not available to the counties.”

Sack’s two colleagues on the panel, Jose Cabranes and Peter Hall, recognized the seeming contradiction.

“This rule of decision defies common sense,” they wrote in a concurring decision. “But absent action by our highest Court, or by Congress, it is the law. In the last twenty years, the Supreme Court has twice held that, although states may have a right to demand compliance with state laws by Indian tribes, they lack the legal means to enforce that right.”

For his part, Sack resorted to a nursery rhyme to explain the predicament of the counties to enforce a law they have no real power to enforce:

“Mother, may I go out to swim?

Yes, my darling daughter

Hang your clothes on a hickory limb

And don’t go near the water.”

Joe Singer, a Harvard Law School professor and expert on federal Indian law, said he understands why people might view the 2nd Circuit decision as contradictory, but he said judges were following the law of the land as laid out by the Supreme Court.

“I think it’s literally four times in the past 15 years that the Supreme Court has repeated that tribes have sovereign immunity,” Singer said. “The Supreme Court has been very vehement in making tribal sovereignty part of the law.”

Five years ago, it seemed to residents of Sherrill that the Supreme Court had finally forced the Oneidas to pay up.

“This is an exciting day in the history of Sherrill,” City Manager David Barker said the day of the ruling, March 29, 2005. “Our concern all along has been the unknown. And now we have some finality.”

The Sherrill case was finally settled when the Oneidas agreed to pay taxes for five years. That agreement expires this fall.

As the 2nd Circuit decision shows, however, there is little in the way of finality. Sack suggested the counties could ask Congress to intervene; Cabranes and Hall urged the Supreme Court to revisit the cases the judges said they were bound to follow.

David Vickers, president of Upstate Citizens for Equality, a citizens group that has opposed Oneida and Cayuga Indian land claims, said he hopes the counties will appeal to the Supreme Court.

“I think this decision is a fairly likely decision for review at the Supreme Court level,” Vickers said. “I would not be at all surprised if the (Chief Justice John) Roberts court says, ‘We need to take this and decide on it once and for all.’”

The Oneida nation owns more than 17,000 acres in the two counties. In 2008, the federal Department of Interior agreed to take about 13,000 acres into trust, where the land would become free from state and local laws and taxes. That decision is being held up in court cases.

If that land is put into trust, Tuesday’s decision would apply to the remaining 4,000 acres of land, which includes nine SavOn gas stations and convenience stores.

Oneida nation spokesman Mark Emery issued an e-mail statement saying the nation was pleased with Tuesday’s ruling.

“Now that the court has resolved the issue once and for all, it is time to move forward and put the disputes behind us,” Emery wrote.

The counties can ask that the entire 2nd Circuit review the decision. If that fails, the last resort would be an appeal to the Supreme Court.

——-here is another article covering the same story—-

VERONA — A three-judge panel in the Second Court of Appeals ruled Tuesday that counties cannot foreclose on property owned by the Oneida Indian Nation for non-payment of taxes and reaffirmed the Nation’s immunity.

The same decision was made in 2005 by U.S. District Judge David Hurd in the lawsuit between the Nation and Madison and Oneida counties. Tuesday’s ruling was a result of a 2007 appeal of the lower court’s decision.

The ruling, by Judge Jose Cabranes, Robert Sack and Peter Hall, concludes that the OIN is immune from foreclosure unless Congress authorizes the lawsuit or the Nation waives its immunity.

“The holding in this case comes down to this: An Indian tribe can purchase land — including land that was never part of a reservation; refuse to pay lawfully-owed taxes; and suffer no consequences because the taxing authority cannot sue to collect the taxes owed,” Cabranes said. “This rule of decision defies common sense. But absent action by our highest court, or by Congress, it is the law.”

“The Oneida Nation is pleased with the court’s decision,” Mark Emery, OIN spokesman said. “We regret though that it took litigation to resolve it when the preferred path is negotiation. Now that the court has resolved the issue once and for all, it is time to move forward and put the disputes behind us.”

While Madison County Attorney John Campanie said he was still reviewing the details of the court’s decision, he said it was clear that the court intends for the case to be heard before the Supreme Court.

“It is probable that Madison County will act on the judges’ words and seek action to, as the judges put it, reunite law and logic,” he said. “Further, referring to the right to tax but the absence of the right to foreclose, these judges characterized this result as being ‘so anomalous’ that it ‘calls out’ for the Supreme Court action.”

—— here is another article——

Oneida and Madison counties were dealt another legal blow Tuesday when a three-member panel of the U.S. Second Circuit Court of Appeals upheld a lower-court decision saying the counties cannot foreclose on Oneida Indian Nation-owned properties on which taxes have not been paid.

Tuesday’s ruling stems from a 2007 appeal to U.S. District Judge David Hurd’s 2005 decision, which said the counties could not foreclose on the land.

Tuesday’s ruling stated that the counties do not have the right to sue an Indian tribe unless Congress has authorized the lawsuit or the tribe has waived its legal immunity.

But one of the judges, Jose Cabranes, wrote in a concurring opinion that the entire situation reflects an unfortunate paradox.

“The holding in this case comes down to this: an Indian tribe can purchase land (including land that was never part of a reservation); refuse to pay lawfully-owed taxes; and suffer no consequences because the taxing authority cannot sue to collect the taxes owed,” Cabranes wrote. “This rule of decision defies common sense. But absent action by our highest Court, or by Congress, it is the law.”

The Oneida Indian Nation hailed the decision, while Oneida County’s top leader saw the ruling as one more indication that resolution of issues will come through talks, not lawsuits.

“Now that the court has resolved the issue once and for all, it is time to move forward and put the disputes behind us,” Nation spokesman Mark Emery said.

Oneida County Executive Anthony Picente fell back on what he’s been saying now for many months – the county must work with the Nation to get a settlement both parties agree upon when it comes to land and taxes.

“It’s another case that I feared was not going to go our way,” he said.

In light of this week’s decision, Picente said the county has two options: ask the entire Second Circuit Court of Appeals to rehear the case, or appeal to the U.S. Supreme Court, which could deny the request.

Judy Bachmann, chairwoman of the Board of Directors of the Citizens Equal Rights Alliance, said the counties should consider further legal action.

“I’m not disturbed by the decision, and feel that there are two or three ways that the counties can proceed,” she said.

There is a 30-day window for action, Picente said. No decisions have been made, he said.

Madison County leaders could not be reached Tuesday night.

Series of setbacks

The counties and other citizens groups have encountered numerous legal setbacks with issues involving the Oneidas – specifically the Nation’s quest to place 13,000 acres of land into federal trust:

– Last September, portions of challenges by Madison and Oneida counties, the state and the towns of Vernon and Verona were dismissed by a federal judge.

– In March, parts of separate, but similar challenges by local groups, individuals and politicians – including county Legislator Michael Hennessy, D-Sherrill, and state Assemblyman David Townsend, R-Sylvan Beach- were dismissed.

– Also last month, U.S. Northern District Court Judge Lawrence Kahn dismissed all eight counts of a lawsuit brought by the citizens’ group Upstate Citizens for Equality.

But Madison County’s attorney and some citizens’ groups stress that not all claims have been dismissed, and that there are key issues left to be resolved in the courts.

After the 2005 U.S. Supreme Court decision ruling Oneida-owned properties in the city of Sherrill were subject to local taxes and regulations, Oneida and Madison counties announced plans to foreclose on non-reservation nation-owned land.

At that time, Hurd ruled the counties had the right to tax the Oneidas, but did not possess the remedy of foreclosure if the taxes were not paid.

At a glance

What happened: A three-judge panel of the U.S. Second Circuit Court of Appeals upheld a 2005 lower-court decision Tuesday saying Madison and Oneida counties cannot foreclose on Oneida Indian Nation-owned properties on which taxes have not been paid.

What’s next?: In light of the most recent decision, Oneida County Executive Anthony Picente said the county has two options: ask the entire Court of Appeals to rehear the case, or appeal to the Supreme Court, which could deny the request.

There is a 30-day window for action, Picente said. No decisions have been made, he said.