Oneida: Tax Scofflaw Challenged

U.S. Supreme Court to hear another Oneida Nation land case


By CAITLIN TRAYNOR
Dispatch Staff Writer

WAMPSVILLE -- A key dispute between Madison and Oneida counties and the Oneida Indian Nation will be decided by the U.S. Supreme Court, probably sometime next year.

The High Court agreed Tuesday to hear a foreclosure case the OIN won in the Second Circuit Court of Appeals. The counties petitioned the Supreme Court after a three-judge panel ruled the tribe is immune from foreclosure after non-payment of taxes unless Congress authorized the lawsuit or the Nation waived its immunity.

The decision came with a foreboding message though, that the case would eventually find its way to the Supreme Court.

“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,” Second Circuit Court of Appeals Judge Jose Cabranes said in the ruling. “This rule of decision defies common sense. But absent action by our highest court, or by Congress, it is the law.”

The counties’ case is following in steps similar to the city of Sherrill’s case against the Nation in which the city lost in appellate levels and won in the Supreme Court.

“In general, we’re just really pleased,” said Madison County Attorney John Campanie. “I think we had good reason to believe they would (approve it) and would have been disappointed if they didn’t.”

Campanie said the lawsuit will address two critical questions: “Whether tribal sovereign immunity from suit bars taxing authorities from foreclosing to collect lawfully imposed property taxes” and “whether the ancient Oneida reservation in New York was disestablished or diminished.”

The outcome of this case has national importance, he said.

“This is something that has effect nation-wide and is of serious concern,” he said.

According to Campanie, the counties have been forced to continue litigation against the Nation despite their attempts to negotiate.

Oneida County Executive Anthony Picente said he is pleased the Supreme Court will hear the case and hopes that the outcome is in the counties’ favor.

“That would be the good news,” he said. “The bad news would be if it doesn’t.”

He called the case’s move to the Supreme Court a risk while acknowledging it as its ultimate destination. While favoring negotiations, he said the Supreme Court will offer a final resolution to the lengthy legal battle.

“Their decision to hear the foreclosure case makes it the fourth time in 35 years that the counties’ fights against the Oneida Nation have led to the nation’s highest court,” OIN Spokesman Mark Emery said via e-mail. “There’s got to be a better way to resolve disputes between our respective governments. We will respond to the case at the Supreme Court through the appropriate channels and hopefully look forward to bringing these issues to closure once and for all.”

Of 241 cases submitted for review by the United States Supreme Court this go-round, only six were chosen to be heard.

The Nation will be represented by Seth Waxman, from WilmerHale in Washington D.C., Meghan Beakman, general counsel for the OIN and Michael Smith, from Zuckerman Spaeder in Washington D.C. The counties will be represented by David Schraver from Nixon Peabody in Rochester. Under state law, New York will continue to pay the counties’ legal fees, Campanie said.

When asked how much litigation will cost, Emergy said "the Nation does not discuss its legal costs, though unlike the counties we will not be spending any public money.”

The counties will have 45 days to submit briefs in the case. The Nation will then submit its arguments. Campanie said the same arguments and evidence will be used as were submitted to the appellate court.

Campanie anticipates that oral arguments will be heard in the spring with a decision soon following.