By DAN GUZEWICH Staff writer
The U.S. Second Circuit Court of Appeals has denied a rehearing in the Oneida Indian land claim case.
In August, the court essentially put an end to the land claim that dates back to 1974 when it upheld the 2007 dismissal of claims to nearly 250,000 acres of land by the Oneida Indian Nation of New York, the Oneida Tribe of Indians of Wisconsin and Oneida of the Thames, and also struck down monetary damages — in the hundreds of millions of dollars — sought by the tribes. The Oneidas, joined by the U.S. government, then requested a rehearing, either by the three-member panel that issued the initial decision or the full appeals court. On Dec. 16, the court rejected the rehearing request in its entirety.
The decision has as its basis the 2005 U.S. Supreme Court’s decision in a tax case involving the City of Sherrill and the New York Oneidas, followed by the decisions dismissing the 64,000-acre Cayuga claim.
The only venue left now for the Oneidas and the feds is the U.S. Supreme Court.
The Oneidas or the U.S. can file a petition with the nation’s highest court within 90 days from the date of the denial of rehearing, according to David M. Schraver, Indian affairs attorney for Oneida and Madison counties. For good cause, a Supreme Court justice can extend the time to file the petition for a period of not more than 60 days.
"We are studying the decision and considering our options," said Mark Emery, spokesman for the New York Oneidas.
Requests to review the decision of a lower court are rarely granted by the Supreme Court. Fewer than 10 percent of the petitions during a term are accepted.
"Review on writ of certiorari is not a matter of right, but a judicial discretion. A petition for writ of certiorari will be granted only for compelling reasons," state the Supreme Court ruled.
The Supreme Court already declined to hear a similar case involving the Cayuga Indian Nation of New York when its land claim was shot down in the lower courts, including dismissing a $250 million judgment against the state.
The 250,000 acres in question in the Oneidas’ case make up the westerly third of Oneida and the northerly half of Madison counties. The tribes say the state illegally took their lands in the late 1700s and 1800s and, as a result, they sought compensation. Monetary damages from New York state for what the Indians view as ancient wrongs land could have totaled as much as $500 million or more, after accounting for inflation and interest.
The land claim case is one of several long-standing issues that have divided the New York Oneidas and the state and local governments since the nation opened its Turning Stone Resort and casino in the Town of Verona in 1993. These include the payment of taxes and compliance with governmental rules and regulations like zoning and health and sanitary codes.
The case does not have any direct impact on the controversial trust land issue.
The U.S. Department of the Interior has approved putting 13,004 acres of nation land in the two counties into trust, a designation that would free the land from taxes and local jurisdiction. This decision is being challenged in the courts.
Oneida and Madison counties and the New York Oneidas do have a case before the Supreme Court over property foreclosure for unpaid taxes. When the Supreme Court decided to the accept the case, it agreed to consider two issues: whether tribal sovereign immunity prevents foreclosing on a tribal property to collect unpaid property taxes; and whether the reservation of the Oneida Indian tribe should continue to be recognized.
Whether there’s still a reservation is a key element in the nation’s argument that the tribe’s land is exempt from taxation under state law. If there’s no reservation, there would be a tax liability.
Oral arguments in this case are likely to be heard in the first quarter of 2011.