Oneida Indian Nation never had immunity

Madison and Oneida counties: Oneida Indian Nation never had immunity

By CAITLIN TRAYNOR
Dispatch Staff Writer

WAMPSVILLE -- Madison and Oneida counties took their first footsteps in a recently-diverted legal path to the Second Circuit Court of Appeals Wednesday after the Supreme Court remanded the case to the lower court.

The counties filed their briefs in the foreclosure case with the court Wednesday, having slightly amended their arguments since their legal opposition - the Oneida Indian Nation - waived its sovereign immunity.

The Second Circuit Court of Appeals has ordered the Nation to submit its responsive brief by Feb. 2 at 5 p.m. The counties will then be allowed to submit a reply brief by Feb. 7 at 5 p.m.

In the counties’ first set of briefs it questions an ordinance enacted by the Nation Nov. 29 waiving its immunity from suit in foreclosure cases. The counties assert that the waiver comes after more than 10 years of litigation in which the Nation has aggressively asserted that recently purchased properties are exempt from tax collection and that its sovereign immunity prevents all attempts by the counties to collect property taxes.

“This dramatic reversal in its litigation position can only be understood as a forced concession on the courthouse steps, wrought by the prospect of unfavorable Supreme Court review,” the brief says.

Conversely, the counties point out that the Nation “asserted tribal sovereign immunity from suit as a core defense to the city of Sherrill’s and the counties’ tax enforcement.”

One of two questioned posed to the Supreme Court by the counties asks whether sovereign immunity bars taxing authorities from foreclosing on property in which taxes are owed.

The counties go on to further argue that the Nation cannot waive a right it does not have. Its assertion ignores the 2005 Sherrill case in which it was made clear that “the tribe has no right to immunity from collection of ad valorem property taxes through foreclosure.”

The brief implores the court to reject the Nation’s waiver. However, waiving immunity from suit does not render the case moot, the county argues. The Nation’s stance in the case has not changed in light the waiver; “it continues to believe it possesses super-sovereign immunity with respect to tax collection but has proported to elect not to assert that immunity with respect to the counties’ tax collection efforts through foreclosure,” the counties’ brief says.

The counties argue if the court does decide the issue of sovereign immunity is moot, then it should find that the waiver applies to foreclosure proceedings and all other related tax collection proceedings.

The second question submitted to the Supreme Court in relation to the disestablishment of the Nation’s reservation has been posed again to the Second Circuit.

According to the counties, “there has not been an Oneida reservation in New York for generations. The Supreme Court recognized the overwhelming non-Indian ownership of, and exclusive state sovereign over, the area in Sherrill.

“The Supreme Court also noted the long history of state sovereign control from the early 1880s and that for the past two centuries New York and its county and municipal units have continuously governed the territory.”

To say the reservation now encompasses 300,000 acres in Central New York - two cities and more than 20 municipalities - “ignores these historical facts and compounds the disruption to state and local government that concerned the Supreme Court in Sherrill.”

To ensure that the Second Circuit’s decision issues a final resolution, the counties are requesting the court also address three other questions:

• “Does the Indian Trade and Intercourse Act bar transfer of title through in rem foreclosure to collect lawfully imposed taxes on OIN-owned fee properties?”

• “Did OIN, a tax protester, receive constitutionally adequate notice of the tax delinquency and foreclosure proceedings and a reasonable opportunity to redeem the property?

• “If this court adheres to the conclusion that the ancient Oneida Reservation is not disestablished or diminished, are the OIN’s fee-owned parcels a reservation within the meaning of New York’s Real Property and Tax Law and Indian Law?”

In conjunction with the counties’ brief, the state of New York filed a brief Wednesday in support of the counties.

“The OIN has implicitly recognized that the claim of sovereign immunity was meritless by abruptly abandoning the claim after strenuously litigating the immunity issue for a decade, including two trips to this court and the Supreme Court,” the state says in its brief.