BZ, there is so much garbage in this Oneida agreement, it is obvious that Halbritter wrote the whole thing and extremely obvious that Picente just sucked up to him.
The U.S. Supreme Court in Carcieri ruled tribes had to both be federally recognized and under federal jurisdiction in 1934 to qualify for trust land. Neither the Cayuga or Oneida were on the federal recognition list or under federal jurisdiction. The NY tribes requested in 1848 to be under state jurisdiction.
A U.S. Supreme Court ruling issued March 31, 2009 sheds a different light on tribal trust applications within the thirteen colonies. HAWAII v. OFFICE OF HAWAIIAN AFFAIRS (No. 07-1372) It is obvious SCOTUS deems a state that enters the Union whole without federal reserved rights as having sovereignty over it's own lands and neither the State Supreme Court or Congress can change that.
Justice Alito said it "would raise grave constitutional concerns" if 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," he wrote.
There is presently a Congressional Hearing scheduled May 21, 2009 2:15 P.M. Senate Dirkson Building Room 628 to examine Executive Authority to acquire trust lands for Indian Tribes.
While the Carcieri ruling could be reversed in the future if enough congressmen were bought because the ruling as based upon congressional legislation, the Hawaii ruling cannot be reversed because it is based upon the Constitution.
There is absolutely NO conceivable way the lawsuits opposing trust lands can lose.
There is absolutely NO reason for an agreement or settlement.
The ONLY way the tribe can get ANYTHING is if it is given to them.
Oneida County Executive Picente's agreement drops three of four cases presently before the court with no possibility of reinstatement.
* Tax assessments: The tribe sued Oneida County in State Court with regard to assessments on properties on which the Sherrill decision says the tribe owes taxes. Oneida County will drop its counterclaim against the tribe's lawsuit. The tribe tried to withdraw this lawsuit shortly after filing because they realized they dropped their sovereignty against counterclaim and the court said no. The county would not be able to reinitiate the lawsuit due to tribal sovereign immunity. Making "application" to the courts to reinstate the lawsuit starts the process over again.
* Foreclosure Case: Initiated by Madison and Oneida Counties in Federal Court to foreclose on property on which the Sherrill decision says the tribe owes taxes.
[This is the case where Judge Hurd ruled sovereign immunity precluded the counties from foreclosing to enforce the tax collection SCOTUS said was due. A federal district judge in Hobart, WS ruled against the WS Oneida tribe last fall in favor of Hobart on an identical case and blasted Judge Hurd for being so stupid. Hobart won.] Oneida County will drop this lawsuit. The Second Circuit Court of Appeals has already heard oral arguments on this and we're merely awaiting a ruling. The county may not be able to reinitiate the lawsuit due to tribal sovereign immunity. Making "application" to the courts to reinstate the lawsuit starts the process over again.
* Oneida County will drop the lawsuit challenging the Interior Department's decision to take land into trust for the Oneidas. The county would not be able to reinitiate the lawsuit because the time frame in which to file lawsuits has lapsed.
The only case the tribe does not want withdrawn is the tribe's land claim suit in which the court has said they cannot have land but may receive a huge monetary settlement. Such settlement could be as high as $500,000,000.
* Oneida County agrees to allow 8,800 acres of county land be placed into trust.
* Oneida County will not oppose an additional 1,800 acres to be placed into trust.
* Oneida County will not oppose the transfer of 18 acres at Verona test site and will not oppose any other land owned by the federal government being transferred to trust that is not part of the agreement. That includes additional land at the Verona test site and any federal owned land at the old Griffiss Air Base. [The transfer of such land as an enclave has to revert back to state jurisdiction and cannot be taken without state legislative approval. This is not trust land as the news media has reported. The feds have not accepted it as trust land because it has not been recorded as such in the Federal Register. The action is still before the courts in the trust lawsuits.]
* Oneida County agrees to allow tribal police complete jurisdiction to arrest anyone, including non-Indians, not just throughout the county, but within the "geographic area of employment". This is a non-revocable, non-discretionary deputization of members of the Nation's police force. "Litigation shall be brought in the United States District Court for the Northern District of New York or, if if that court determines that it lacks jurisdiction in any other court of competent jurisdiction." This could be interpreted to mean tribal court for non-Indians.
* The plan includes the 300,000 acre area covered in the State use right reservation in the 1794 Treaty of Canandaigua. The agreement allows tribal jurisdiction and unlimited development including liquor sales on ALL land owned in fee by the tribe in the covered area.
* Any land held in fee by the tribe shall have Silver Covenants paid instead of taxes. Silver Covenants are unenforceable and in the past have been paid and withdrawn at the whim of the tribe.
* The state will drop its lawsuit against the Record of Decision, agree to the 8,800 acres into trust as well as the additional 1,800 acres into trust and the ability to spread into the covered area in the future.
* The state will grant the tribe a liquor license.
* The state will set up a liquor board of tribal members to deal with themselves. Again, this includes the full 300,000 acres.
* All sales and excise taxes will be kept by the tribe whether in trust or in fee simple within the 300,000 acre covered area. This includes Madison County, which was not included in the agreement. [This is important because when the Cayuga tribe loses the tax case, the Oneida tribe is in the same boat. King Ray is worried.]
* The State must agree that they will not collect sales or excise taxes from the past, present or in the future from the tribe.
* No tribal members will be charged any sales or excise tax.
* Any land uses and existing changes involving local building codes, land use, zoning, weights and measures, health, safety and environmental matters may continue and shall be deemed to be conforming uses. That would include the tribe's gas tanks next to the lake, their helicopter pad which was built dangerously close to a major gas line, their marinas dredging the lake without permits and more. They don't call UFPO.
* The 1993 gaming compact, which was ruled unconstitutional by the courts in Peterman v. Pataki because it was not approved by the state legislature and through which the state and communities get nothing, will be considered valid. Where there is any conflict between the compact and this agreement, the compact controls. [UCE's trust lawsuit addresses this issue rather rigorously. By the action of the state legislature, should they approve this agreement, it would act as a validation of the 1993 compact. It would remove the only Ace the state holds to make any agreement because the casino violates the law now, is on fee simple property under state jurisdiction, but the state refuses to enforce the law. ]
* Disputes shall be resolved through arbitration. Remedies shall be severely limited to this agreement and shall not include an award of costs or fees of any kind. Judicial enforcement may only be made through the federal district court.
* If the laws or taxes change regarding cigarettes, the tribe may terminate the tax agreement.
* If there is deemed a violation, the state agrees it will not attempt to collect any taxes owed or impose penalties or fines prior to the date the tax agreement is terminated.
* Prior to the enforcement date if any part of the agreement is deemed invalid, then the whole agreement is deemed invalid.
* After the enforcement date if any part of the agreement is deemed invalid, then the tribe has the sole option of declaring the whole agreement void or continue with all remaining provisions in full force. [The county does not have a say in this matter.]
There are five other lawsuits pertaining to the Record of Decision. If any one of them prevail the tribe has the sole right to reclaim ALL $55 million dollars paid PLUS 50% interest.
As a balance:
* The tribe agreed not to file for additional trust lands within five years.
* The tribe agreed to allow the county to challenge future trust land applications in excess of 10,600 acres.
* The tribe agreed to pay a total of $55 million. This $55 million gets divided up between the county and its three cities, 26 towns and 10 villages, as well as several school districts. No future payments will be made.
* The tribe agrees to meet or exceed local building codes, land use, zoning, weights and measures, health, safety and environmental matters. [Note: whatever governmental entity utilizes the International Building Codes is its own overseer, as with everything else. The tribal government will oversee the code. Plus, as already addressed above, everything they are doing illegally now will be and continue to be deemed as legal.]
* The tribe will charge equivalent sales and excise taxes to that of the neighboring community. But it gets to keep all the tax and may opt to withdraw from this and undercut all competitors if the tax changes (goes up or down).
I am a Citizens Equal Rights Alliance board member and Chairman of the Cayuga-Seneca Chapter of Upstate Citizens for Equality. I am active in both organization lawsuits and a plaintiff against the Record of Decision pertaining to the Oneida tribe. I deal with the Cayuga tribe's trust applications, but am doing so by defeating the Oneida tribe's applications because trust lands cannot be established in New York State. I assure you, we will NOT drop our lawsuits and when we win, and we will, Oneida County will have to come up with $75 million dollars to pay the Oneida tribe.
[About eight years ago a tribal policeman quit because tribal police were stalking citizens opposed to the tribe's views, following UCE members home from meetings, using state police computer access to investigate anyone opposing the tribe, flushing evidence of drugs being used down toilets, and more. He couldn't take it anymore. Most tribal police are ex-troopers, but as tribal police they are federal officers and exempt from many constraints that apply to other police.]
[The state is not enforcing the laws now. There is no valid compact, the casino is illegal, tribal businesses are not on reservation lands, sales, excise and property taxes are not being collected or remitted, bed taxes are not being remitted. The highest state court has already ruled the compact unconstitutional, the tribe appealed to SCOTUS and they refused to hear the case. What's to say the agreement will be enforced if arbitration rules against the tribe and who does the enforcing? ]
So King Ray KNOWS that the properties the tribe owns are subject to foreclosure, are not reservation lands, are assessed reasonably, that sales and excise tax laws may be applied, that the Turning Stone is operating illegally, that he cannot sell a beer without a state liquor license, that tribal jurisdiction is limited to 32 acres, that everything outside the 32 acres is subject to local and state jurisdiction and laws, OR he would not be REQUESTING that all these items be granted to the tribe because otherwise they would already exist. His whole house of cards is subject to falling down.
The Oneida agreement is a Christmas wish list. Picente is pathetic. And, NO, Congress does not have to approve this if King Ray withdrew the trust applications because it would basically create an 8,800 acre state reservation. If the state legislature approved it, King Ray would appear to get more than he would if it were trust land because there would still be no federal jurisdiction. He could then expand on this by filing for trust lands in the future to annex.
The deal will not go anywhere because it is so absurd. King Ray's OBJECTIVE is to get talks going again to stall the court proceedings which would kick the chair out from under him. http://www.oneidadispatch.com/articles/2009/05/15/news/doc4a0e374d64a4a273400982.prt
Friday, May 15, 2009
Vernon-Verona-Sherrill Central School District sent out the following fact sheet explaining the impact of the proposed Oneida County Partnership Plan on the Vernon-Verona-Sherrill Central School District.
1. The school district will be required to discount its current property tax lien on the Oneida Indian Nation by 86 percent, in other words, settle for approximately 14 cents on the $1. $6.2 million / $44,221,906 = $0.14
2. The school district would be required to surrender 12 percent of its land mass from the school property tax roll.
3. The district would be required to surrender 48 percent of its total current assessed property tax value in perpetuity (forever more).
4. The school district would receive no further financial consideration for the loss from its tax rolls, therefore, the burden of the loss of these assessed values would fall on the remaining property taxpayers.