Middleboro: Are you watching?

The Town of Middleboro has an Agreement with the Mashpee Wampanoag Tribe. Wealthy investors own the property on which the IGA (InterGovernmental Agreement) is based and no funds have been paid. It's time for the Town of Middleboro to take action to foreclose on the property.

Although the Mashpee Wampanoag Tribe has Pipe Dreams of Slot Barns in Mashpee, Middleboro and Fall River, the Hawaii decision preempts it.

What could be more simple? :

Within weeks of the 8-1 Carcieri v Salazar
decision, a second strike on fee to trust was
issued. This time it came from a case
originating in the state of
Hawaii.
In the 9-0 decision on Hawaii v. the Office of
Hawaiian Affairs. Justice Alito wrote, "It would
raise grave
constitutional concerns"
Congress sought to "cloud Hawaii's title to its
sovereign lands" after it had joined the
Union.
"We have emphasized that Congress cannot,
after statehood reserve or convey....lands that
have already been bestowed upon a state".
How many readers of this paper could
be effected by issues concerning
land that has been "bestowed upon a state";
as an original colony, through disestablished
territory or when the territory entered into
statehood?

The Oneida Tribe knew they were going to lose with SCOTUS because they had previously lost and took the actions they did.

It's also time for Beacon Hill leaders to take note.



Impact of Oneidas case stretches beyond region
Other tribes, states monitoring issue as it moves back to lower court

State governments and Indian tribes across the country were watching this week when the U.S. Supreme Court tossed a case about foreclosure on Oneida Indian Nation land back down to a lower court.

Over the past six years, as the case wended its way through the court system, Indian tribes feared if the Oneidas lost, it could diminish all their standings under the law.

And governments of at least 12 states that have tribes within their borders worried that if the Oneidas won, Indian nations could evade property tax collection.

Now that the Supreme Court has booted the case back to the 2nd U.S. District Court of Appeals, the states will have to wait for resolution, but Indian tribes have been granted a reprieve, a Washington D.C.-based advocate for Indian tribes said.

“You never know what the Supreme Court is going to do,” said John Dossett, general council for the National Congress of American Indians. “It could have really hurt them.”

The suit was initiated soon after the U.S. Supreme Court’s 2005 ruling that the Nation had to pay property tax on its non-reservation land.

After that decision, Oneida and Madison counties immediately moved to foreclose on the Oneida’s non-reservation land, since property taxes had not been paid on it in years. The Nation refused, and the issue has been under litigation ever since.

At the heart of the case — Madison County and Oneida County vs. Oneida Indian Nation of New York — is the issue of sovereign immunity for Indian tribes.

Among the Oneidas’ arguments was that the Nation was exempt from foreclosure because of its sovereign immunity.

Dossett said if the Supreme Court had ruled against the Oneidas, it could have further chipped away at the standing of tribes as independent governmental entities.

“It’s like a death by a thousand cuts,” Dossett said. “Over long spans of time, the Supreme Court just seems to find against tribes on a regular basis.”

One expert on Indian issues, Robert Batson of Albany Law School, said if the court had ruled against the Oneidas and had expressed its decision in broad terms, it could have caused “quite a change.”

“They would basically be like a corporation, not a government, subject to any suit in court,” he said of the Indian nations.

Other Indian nations contacted by the Observer-Dispatch did not return calls Tuesday.

Pressure?

Asked if the National Congress of American Indians had put pressure on the Oneidas to back away from the immunity argument, Dossett demurred.

“It wasn’t really pressure,” he said. “We talked about it quite a bit. I don’t know that tribes have the tools to put pressure on one another.”

Dossett said that in his view, recent Supreme Court rulings on Indian issues had not been favorable to the tribes.

Pressure or no, the Oneida Nation issued a declaration in late November “irrevocably and perpetually” waiving its immunity from foreclosures by state, local and county governments.

The Oneidas’ attorney, Washington D.C.-based Seth Waxman, said removing the foreclosure issue from the case eliminated the possibility that the court could alter sovereign immunity laws, but that wasn’t the reason for the declaration.

“If the issue of sovereign immunity were litigated, we think we would win,” he said.

But, he added, the case could be argued on other grounds that had not reached the Supreme Court and could now be litigated in lower court.

Broader impact

Several states will be watching to see how the case proceeds.

New York and 11 other states have filed a brief with the courts contending that blocking the counties from foreclosing on the property “imperils real property tax collection throughout the United States because it permits Indian tribes nationwide to escape enforcement of lawfully imposed real property taxes.”

David Schraver, the attorney representing Oneida and Madison counties, said the Supreme Court’s decision not to hear the case would delay resolution of that issue.

“There won’t be a decision in the short term by the Supreme Court,” he said.

Meanwhile, the Nation has been attempting to have its non-reservation property put into federal trust, free of state and local taxation and regulation.

The state and counties are fighting that plan in the courts as well, but they have yet to reach the level of the Supreme Court.