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#143411 --- 03/13/05 09:12 AM Indian Sovereign Immunity
Rich_Tallcot Offline
Senior Member

Registered: 01/19/03
Posts: 5565
Loc: Greeneville, TN
A general overall picture and solution as suggested by the U.S. Supreme Court

Jim Marino is one of the attorneys that I work with.

Sunday Forum March 13, 2005
Indian Sovereign Immunity:
An American Anachronism after the Enactment of IGRA.
Attorney James Marino
California

More than two centuries ago through a complex series of treaties, Acts of Congress and federal and state court decisions, the concept of "Indian Sovereignty" emerged. This concept was more or less an attempt to placate conflicts between tribes and sub-tribes or bands of native peoples populating areas in America where the settlers, migrating here, sought social, political and economic freedom in the new world. Territorial and cultural disputes developed. The idea was to avoid belligerent conflicts so these tribes and tribal governments could be referred to as a "sovereign", which was a largely anglo-American political concept. Politically a sovereign is the ruling government of a "nation" which, not only exercises political control over a defined territory but also governs a defined body of "subjects" who often share some common historical and national culture and heritage. Typically the sovereign provides all services and infrastructure needed by its subjects, including a basic economy which in turn enables the nation to exist independently.

Early on Congress was determined to have plenary power and authority over Indian affairs largely because of the treaty powers and commerce acts established under the United States Constitution. Indian affairs were delegated to the Department of the Interior and it's Secretary which then established its own bureaucracy, the Bureau of Indian Affairs. Indian policy over the decades vacillated between removal, relocation and treaty allotments. Later in an attempt to encourage assimilation Congress enacted the Indian Allotment Act intended to allow tribal members to be allotted the tribal land as their own which was thought to be a method of encouraging assimilation of all Native Americans into the United States of America as American citizens. The concept of an Indian tribe being a governmental entity did not die, however, because some tribes, particularly the few larger tribes desired to perpetuate a separate and distinctive culture apart from contemporary America. The difficulty this presented was that these "independent and separate Indian "nations" i.e. tribes and bands, had no independent economic systems and means to exist in the economic and political mainstream of a developing nation.

This self imposed separation from mainstream America made these Indian Nations dependant upon the United States of America for their subsistence. Thus Indian policy created a large dependant category of Native Americans who resisted assimilation for social and cultural reasons. Although many individual Indians intermarried and assimilated into nearby communities, the policy of preserving tribal dependency persisted, in varying degrees, to this day. Some argue that it has persisted because the BIA and its massive bureaucracy is a self perpetuating agency. Over the decades Congress has attempted to provide by enacting various laws that provided for the necessities of life, such as food, housing, healthcare, and education. It had little success enacting laws which removed Indians from the dependant and welfare status that despite these laws continued to persist. The poorly thought out Indian Gaming and Regulatory Act of 1988 was yet another attempt to give Indian tribes a measure of economic viability. For the past three decades however, the politically correct segment of American society has resurrected the notion that separatism, or preservation of historical tribal culture is a good thing. This has been done under the rubric of "cultural diversity" and cuts across all nationalities including Native American Indians. This influence has brought us to the point where the drive to encourage "diversity" has blended with the ancient concept of "Indian Tribes" as sovereigns. That point is wholly irreconcilable with all the fundamental principals on which the United States of America is based.

The advent of the United States did not just "happen" it evolved. That evolution was at times painful and explosive, like the civil war, and has resulted in political and legal developments which took decades, even centuries to perfect. They represent a continually evolving process at work.

There are currently over 600 recognized "Indian Tribes" in this country. "Recognition" is a creature of the bureaucratic processes of the BIA. We have Indian "tribes" or "bands" with 1 member, 2, 3, 5, 8, 15 members etc. who are recognized and claim "sovereign status". Given the political definition of what sovereignty means, this designation is, at best, an absurd fiction. In the past this absurdity has been a matter of little consequence. It only meant that most of those claiming that status could continue to receive federal welfare, grant monies, loan guarantees and other federal benefit programs.

The fact that many laws did not apply to these “recognized” tribal governments and their members largely affected only tribal members. Preserving particular native cultures or tradition was important to many Indian tribal members, but is a matter of pedantic interest for non-Indians, particularly the "diversity is politically correct" crowd.

However, the advent of the Indian Gaming regulatory Act (IGRA.) changed all of that for several reasons. First and foremost was the somewhat obscure legal doctrine of "sovereign immunity". In the historic development of common law the "sovereign" (maker of the rules) was thought to be immune from any suit by the subjects it ruled. In our western civilization in particular this concept was so staunchly embedded that it provided that one "sovereign" could not sue another without consent and would only recognize the courts of another sovereign on principals of comity. i.e. I'll recognize your court decisions if you recognize mine.

As soon as Congress enacted the IGRA many of these recognized "tribes" began to engage in class III casino gambling which prior to IGRA had been very limited primarily to Nevada, Atlantic City, and vessel’s plying international or inland waterways. The rapid expansion of Indian gambling and their related businesses in conjunction with outside non-Indian "investors", has exposed the glaring anachronism of the legal doctrine of tribal sovereign immunity.

The historic development of laws protecting workers, patrons of businesses, those who enter into contracts and surrounding communities that impose zoning and development laws and environmental protection laws for the benefit of everyone, are well known and resulted from hardships and human suffering over decades. Now that so called "Indian Tribes" are the owners and operators of these businesses, the natural question to ask is, "Why should these tribes be immune from all the laws which protect the public".

Similarly the question naturally arises, why should tribes not have to provide the same protections to workers and to nearby non-Indian communities that any other for-profit business must follow including the requirement that they pay taxes for all of the public services provided by non-Indian taxpayers like, police, fire, schools, roads, sewer and water systems, hospitals, libraries and other extensive infra-structure that these same tribes and tribal members use extensively?

Finally the question must be asked as to why these Indian casinos, tribes and other profitable tribal businesses are still receiving massive amounts of federal welfare, grant gifts and loan guarantees. Why are tribal members of these ‘sovereign nations’ voting in all local, state and Federal elections but no non-Indian has any right to vote or any voice in any tribal government matters? All of these absurd inequalities result from the court created doctrine of "tribal sovereign immunity".

The United States Supreme Court finally acknowledged that this doctrine of sovereignty is an anachronism that evolved from the period that Indian tribes were dependent, nascent entities whose land was oftentimes owned in trust by the government and the tribes had few assets. It was a doctrine in-tended to protect these tribes from outside interference in their internal affairs, in other words a defensive legal mechanism. The majority of the court concluded that the Congress must have known about the many court decisions which both created and expanded the doctrine over the years when they enacted the many Indian benefit laws year after year so it was up to Congress to correct the problems created by rule of law. The minority vigorously dissented with justice Stevens stating in perhaps the understatement of the century, "Why should an Indian tribe have more immunity than the United States, All the states and every foreign nation ?”

The entire court suggested a relatively simple solution to Congress. That was to amend the Foreign Commerce Act to include Indian tribes or bands. That Act provides that when a foreign nation seeks to do business in this country they must obey all state, local and federal laws and become susceptible to lawsuits in all State and federal courts just like everyone else. Thus such a law is not an affront to classic notions of sovereignty because it only applies when the sovereign seeks to do business. As it would apply to any Indian tribe or band, they retain all classic "sovereignty" until they engage in any business enterprise. When they do that, then all of the laws protecting workers, patrons and communities who suffer adverse impacts of that business and any one injured or damaged can sue the tribe in all state and local courts. Similarly these Indian business enterprises would have to comply with all tax laws, campaign financing laws, elections laws and all other laws for the health, safety and welfare of the general public and would have to meet all regulatory and licensing laws.

That case, Kiowa Tribe of Oklahoma versus Manufacturing Technologies Inc. was decided in 1998. Congress has done nothing to correct the problem evidently because of a combination of a politically correct reluctance to do anything that affects Indians and be accused of being racist or insensitive to historic injustices perpetrated on the remote ancestors of current, (often fractional part Indians) and for which no one living today, had anything to do with, and money.

These now wealthy tribes are working hard to stifle any reform of what amounts to an absurd legal largess by donating massive amounts of money to willing politicians who have no concern for the routine injustices being foisted on present day Americans of all races by the undeserved legal immunity of highly profitable Indian casinos and businesses which have significant and numerous negative community impacts on non-Indians without any legal recourse. Lastly this absurd immunity has impacted individual tribal members because these tribal members have little or no say so in the control of their own tribal governments, often dominated by the largest family, or the control by their own government over massive amounts of money. It is a subject for another essay, but the control of who is or isn't a member of a recognized tribe is left up to the tribe itself. Therefore if the controlling government decides to dis-enroll a tribal member who represents a cut of their profit from their business success, or their eligibility for federal welfare and grant money, it is in the hands of the controlling tribal government with no right to sue or to redress in any court except the very tribal government that ousted them. This is the primary reason why many tribal members of good conscience cannot do anything to correct the corruption they see from the inside or to even speak out against it.

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#143412 --- 03/13/05 11:20 AM Re: Indian Sovereign Immunity
grinch Offline
Senior Member

Registered: 08/28/01
Posts: 4617
Loc: New York State
Dick, that essay tells it like it is. My thanks to you for posting it. This should be published to a much wider audience and discussed openly.

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#143413 --- 03/13/05 11:55 AM Re: Indian Sovereign Immunity
Okla.ndn Offline
Senior Member

Registered: 12/21/02
Posts: 3074
Loc: Osage Indian Nation in Oklahom...
No one gave us Sovereign Immunity its something we always had that we didn't give up. No one gave us the right to game we have always had that right to game if we wanted to. The Indian Gaming and Regulatory Act of 1988 was yet another attempt to control and take part of what we were making from gaming. Look to the case of the Seminole in Fl. and thats what brought about the IGRA act. Congress would like you to think they gave us this right but the fact is how can someone give you what you already have. Treaties, laws, and acts of congress have been done not to give to the Indians but to take away from Indians. Good try Dick at lest you have grinch eating up your bs. LOL
_________________________
I am a General Council member of the Seneca-Cayuga Tribe I speak for my self not my Tribe.

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#143414 --- 03/13/05 01:05 PM Re: Indian Sovereign Immunity
dwarren Offline
Senior Member

Registered: 01/20/03
Posts: 1542
Loc: West Seneca, NY
Quote:

No one gave us Sovereign Immunity its something we always had that we didn't give up. No one gave us the right to game we have always had that right to game if we wanted to. The Indian Gaming and Regulatory Act of 1988 was yet another attempt to control and take part of what we were making from gaming. Look to the case of the Seminole in Fl. and thats what brought about the IGRA act. Congress would like you to think they gave us this right but the fact is how can someone give you what you already have. Treaties, laws, and acts of congress have been done not to give to the Indians but to take away from Indians. Good try Dick at lest you have grinch eating up your bs. LOL




As usual you are incorrect the Seminole case (decided in 1996) did not bring about the IGRA, it interpreted a provision of it relating to the sovereign immunity of States in relation to suits brought by Indian Nations and Tribes under the IGRA.

If you accept the premise that you are trying to set forth (i.e. they are possessed of the same level of sovereignty as an independent sovereign such as Canada) then they should be treated as foreign sovereigns are. But they do not want that because then their sovereign immunity would not protect their commercial interests from suit or taxes. It was summed up well by Justice Stevens in his concurring opinion in Oklahoma Tax Commission v. Citizen Band Potawatomi Indian Tribe Oklahoma 498 U.S. 505, 111 S. Ct. 905, 112 L. Ed. 2d 1112, as follows: “The doctrine of sovereign immunity is founded upon an anachronistic fiction. See Nevada v. Hall, 440 U.S. 410, 414-416 (1979). In my opinion all Governments -- federal, state, and tribal -- should generally be accountable for their illegal conduct. The rule that an Indian tribe is immune from an action for damages absent its consent is, however, an established part of our law. See United States v. United States Fidelity & Guaranty Co., 309 U.S. 506, 512-513 (1940). Nevertheless, I am not sure that the rule of tribal sovereign immunity extends to cases arising from a tribe's conduct of commercial activity outside its own territory, cf. 28 U. S. C. § 1605(a) ("A foreign state shall not be immune from the jurisdiction of courts of the United States or of the States in any case . . . (2) in which the action is based upon a commercial activity carried on in the United States by a foreign state . . ."), or that it applies to claims for prospective equitable relief against a tribe, cf. Edelman v. Jordan, 415 U.S. 651, 664-665 (1974) (Eleventh Amendment bars suits against States for retroactive monetary relief, but not for prospective injunctive relief).”

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#143415 --- 03/14/05 05:19 AM Re: Indian Sovereign Immunity
UKNFOAD Offline
Senior Member

Registered: 03/25/03
Posts: 1718
you know, im a live and let live person. If the tribes want their own, let them have it. no more welfare or grants. you shouldnt be able to say you dont want our government and then be at offices applying for aid through our government. you shun it, then hold out your hand. We all welcome you, you have right to be unique. The world has evolved and if this land didnt become america, it would be england or maybe even ussr. If that was the case you would really have no say at all.
IMO anyone who uses our resources and tax money should also pay them.

of course this is my opinion- im not full blooded indian but i do have some in my family and in myself- and that is the way i see it.

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#143416 --- 03/14/05 10:48 AM Re: Indian Sovereign Immunity
Okla.ndn Offline
Senior Member

Registered: 12/21/02
Posts: 3074
Loc: Osage Indian Nation in Oklahom...
way2savory We pay more to the feds then we get back. We pay to the state and get nothing back. So who needs to pull their hands back and stop taken from who.
_________________________
I am a General Council member of the Seneca-Cayuga Tribe I speak for my self not my Tribe.

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#143417 --- 03/14/05 04:29 PM Re: Indian Sovereign Immunity
Strawberry Jam Offline
Diamond Member

Registered: 07/11/04
Posts: 34421
Loc: Herkimer County NY
Quote:

way2savory We pay more to the feds then we get back. We pay to the state and get nothing back. So who needs to pull their hands back and stop taken from who.




Simple little thing I want to say here Okla....PROVE IT!

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#143418 --- 03/14/05 10:59 PM Re: Indian Sovereign Immunity
Okla.ndn Offline
Senior Member

Registered: 12/21/02
Posts: 3074
Loc: Osage Indian Nation in Oklahom...
Quote:

Quote:

way2savory We pay more to the feds then we get back. We pay to the state and get nothing back. So who needs to pull their hands back and stop taken from who.




Simple little thing I want to say here Okla....PROVE IT!


I already did before you became a member of this board. We don't just sale cigarettes we have our own brand that we make. The state and the fed. government gets a bundle of money from us in taxes. You could look its in the archives so do some research. I don't have the time to keep answering the same things over and over.
_________________________
I am a General Council member of the Seneca-Cayuga Tribe I speak for my self not my Tribe.

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#143419 --- 03/15/05 07:26 AM Re: Indian Sovereign Immunity
bluezone Offline
Diamond Member

Registered: 12/19/04
Posts: 32556
Loc: USA
Quote:

way2savory We pay more to the feds then we get back. We pay to the state and get nothing back. So who needs to pull their hands back and stop taken from who.





You say that you pay to the feds and get nothing back?

If you are a sovereign nation then why do you pay the feds????
Because you are not sovereign, you are a ward of the US government.

Well, who has protected your tribe from other nations/countries for the last 200 years? The US military.

How much would this be worth if you had to have your OWN military forces????

The tribes use all the infrastructure that has been built by the feds, the state, the counties, the cities...
Do yu expect to use this infrastucture without supporting it?

The tribes receieve BILIONS of dollars FROM the US government each year but you get nothing back???
More propaganda.......

The tribe abuses and exploits the justice system that was established by our forefathers.

You fought the colonists and LOST --- go live with your war partner..


.
_________________________
"OUR COUNTRY IS IN MOURNING, A SOLDIER DIED TODAY."

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#143420 --- 03/15/05 11:06 AM Re: Indian Sovereign Immunity
Okla.ndn Offline
Senior Member

Registered: 12/21/02
Posts: 3074
Loc: Osage Indian Nation in Oklahom...
bz go back to the land of your forefathers.
_________________________
I am a General Council member of the Seneca-Cayuga Tribe I speak for my self not my Tribe.

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#143421 --- 03/15/05 12:35 PM Re: Indian Sovereign Immunity
bluezone Offline
Diamond Member

Registered: 12/19/04
Posts: 32556
Loc: USA
Quote:

bz go back to the land of your forefathers.




I am already here.

Remember my forefathers PAID your forefathers many many many times for the same land. Not our problem your elders did not pass the money to you.

Did they gamble all the money away.

You lost the war when you fought AGAINST the colonists. The losing party in a war doesn't come out ahead.


.
_________________________
"OUR COUNTRY IS IN MOURNING, A SOLDIER DIED TODAY."

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#143422 --- 03/16/05 10:24 AM Re: Indian Sovereign Immunity
Okla.ndn Offline
Senior Member

Registered: 12/21/02
Posts: 3074
Loc: Osage Indian Nation in Oklahom...
Quote:

Quote:

bz go back to the land of your forefathers.




I am already here.

Remember my forefathers PAID your forefathers many many many times for the same land. Not our problem your elders did not pass the money to you.

Did they gamble all the money away.

You lost the war when you fought AGAINST the colonists. The losing party in a war doesn't come out ahead.


.


The same goes for the losing the land claim case. What did you drink to much and can't remember the loss in court. Hahahahah
_________________________
I am a General Council member of the Seneca-Cayuga Tribe I speak for my self not my Tribe.

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#143423 --- 03/28/05 04:55 PM Re: Indian Sovereign Immunity
grinch Offline
Senior Member

Registered: 08/28/01
Posts: 4617
Loc: New York State
This is an older article, it points up some of the abuses of Tribal Sovereign Immunity. Its message is still pertinent today. There are enough people shining the light on the abuses of tribal soveriegnty. This situation will change in the not so distant future.

TRIBAL SOVEREIGN IMMUNITY (Senate - September 03, 1997)




[Page: S8721] GPO's PDF
Mr. GORTON. Mr. President, on October 25, 1994, Jered Gamache lost his life, and his brother, Andy, was seriously injured on their way home from school when a Yakama tribal police officer, driving at 68 miles per hour, ran through a red light and crashed into their truck. Jered was 18 and Andy was 16. Despite the loss of Jered's life and the injuries to Andrew, the Gamache family has been totally unable to seek damages against the Yakama tribal government for the actions of its police officer.

Now, let us compare this situation, Mr. President, to the case of Abner Louima, the Haitian immigrant who was brutalized a few weeks ago by New York City police officers. According to the New York Times, in addition to the ongoing criminal investigation, Mr. Louima's attorneys are planning to file a $465 million civil damage suit against New York City.

Now, Mr. President, what makes the case of Jered and Andy Gamache different from the case of Abner Louima? The answer is simple: Tribal sovereign immunity. Unlike New York City, the Yakama tribal government can claim immunity from any civil lawsuit, including suits involving public safety and bodily harm, in both State and Federal courts. As a consequence, the lawyers retained by the Gamache family have told them it is pointless to bring any kind of lawsuit. They have no recourse.

New York City does not have sovereign immunity, and thus, of course, is subject to a lawsuit in any amount of money on the part of victims of malfeasance, on the part of members of its police department.

A few weeks ago, up until the present time, the New York Times has run articles and editorials showcasing the Louima case as an example of police brutality and the need for permanent reform. While that case has sparked outrage from editorialists in New York and elsewhere, last Sunday the New York Times vilified my efforts to provide exactly the same avenue for relief to the Gamache family as the New York Times eloquently advocates for Mr. Louima. The New York Times has decided that while it is unacceptable for New York City to brutalize a person, it rejects non-Indians' right to bring similar claims against tribal police agencies in the U.S. courts. So we have 18- and 16-year-old victims who have no recourse.

Enormous injustices can be done whenever a technical claim can prevent the adjudication of a just claim on the part of an individual against a government. It is for exactly that reason that the doctrine of sovereign immunity was long ago dropped by the Federal Government and the State government in cases of this nature.

Let us consider another case, Mr. President, the case of Sally Matsch. When she was fired from an American Indian casino in Minnesota she felt that she was a victim of age discrimination, so she sued the Prairie Island Indian Tribe. The tribe, however, invoked its sovereign immunity against lawsuits in State or Federal courts, and her case was heard by an Indian court on the second floor of the casino and was dismissed amid the sounds of slot machines by a judge who served at the pleasure of the tribal council that ran the casino.

Seventeen years ago I was attorney general of the State of Washington. I brought a lawsuit that asserted the right of the State of Washington to tax the sale of cigarettes in Indian smoke shops to non-Indians. The Supreme Court of the United States upheld our position that those sales were taxable. For all practical purposes, however, in the 17 years since that time, States have been unable to enforce a right that the Supreme Court of the United States said they had because they cannot sue the tribe or the tribal business entities in order to collect those taxes or to enforce their collection. Why? Tribal sovereign immunity.

Barbara Lindsey, Mr. President, is president of an organization of Puget Sound beach property owners in Washington State. In 1989, 16 Indian tribes sued those property owners in the State of Washington claiming that `treaty rights' gave them the right to enter private property to remove clams and oysters. A Federal district court in large measure has accepted that claim, but Barbara Lindsey and the thousands of property owners she represents, Mr. President, cannot sue the Indian tribes for violations of their property rights, even in cases when those violations are obvious and open. The problem? Tribal sovereign immunity.

So, Mr. President, this body will debate next week when it debates the Interior appropriations bill a provision that for a period of 1 year, as a rider on the appropriations bill, requires the waiver of tribal sovereign immunity on the part of those tribes--and I believe it is all of them--whose governmental entities, whose police forces, are being funded by money appropriated by the Congress out of the taxes collected from all of the American people. The proposal does not change any substantive laws. It simply says if, in fact, the law has been violated, there should be a remedy in a neutral Federal court--we have not extended it to State courts--but in a neutral Federal court.

Is it fair to prevent a family from seeking justice for the wrongful death of their son? Is it fair that a claim of age discrimination cannot be made or decided in a neutral court? Is it fair that a decision of the Supreme Court of the United States on taxes cannot effectively be enforced? It is not, Mr. President, and claims that sovereignty is somehow undercut by saying that the sovereign is subject to the laws is simply not the case.

The claim of those who believe we should make no change is a claim that an Indian tribe can act in a totally lawless fashion and not be held responsible in any court of the United States for those lawless actions.

It can be dressed up in whatever fancy language about sovereignty that one may propose, but it comes right down to that proposition: Is it fair that if you are injured by a New York City policeman you can sue New York City,

but if you are injured by a Yakama tribal police officer, you may not sue its tribe. The doctrine is one that stems from the kings of England. It is an anachronism in today's world. Under constitutional guarantees of due process to every American citizen, every American citizen should be granted the opportunity to bring his or her case in a neutral court and get an answer as to whether or not crimes have, in fact, been committed. The only issue that will be involved in this case is, Should any government be permitted to act in an entirely lawless fashion and not be called to account for its acts? The answer to that question is `no'. We should not be involved in that kind of action, and the only body with constitutional authority to make that decision across this United States is the Congress of the United States. The buck stops here.


[Page: S8722] GPO's PDF

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#143424 --- 03/29/05 08:51 AM Re: Indian Sovereign Immunity
Okla.ndn Offline
Senior Member

Registered: 12/21/02
Posts: 3074
Loc: Osage Indian Nation in Oklahom...
" This is an older article, it points up some of the abuses of Tribal Sovereign Immunity. Its message is still pertinent today. There are enough people shining the light on the abuses of tribal soveriegnty. This situation will change in the not so distant future." Didn't you know Tribal governments are the only bad governments in the world. If you could do away with Tribal governments what government would you go after next. I don't think any of the states around New York pay New York taxes. Are they next if so then move on to them as you have just as much chance to do away with them as you do us. LOL deam on grinch.
_________________________
I am a General Council member of the Seneca-Cayuga Tribe I speak for my self not my Tribe.

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#143425 --- 03/29/05 01:26 PM Re: Indian Sovereign Immunity
grinch Offline
Senior Member

Registered: 08/28/01
Posts: 4617
Loc: New York State
Okla: Today the Supreme Court issued their ruling in the Sherill matter, the Oneida tribe has to pay real estate taxes on properties they have recently acquired or will acquire in the future. How do you think this will effect your properties and the Cayuga Claim?

Supreme Court overturns Oneida Nation case
Tuesday, March 29, 2005

The U.S. Supreme Court today delivered a major blow to the Oneida Nation of New York, ruling that the tribe cannot reassert sovereignty over its 250,000-acre land claim area.
In an 8-1 decision, the justices held that the tribe waited too long to assert authority over land it lost more than 200 years ago. "Generations have passed during which non-Indians have owned and developed the area that once composed the tribe's historic reservation," Justice Ruth Bader Ginsburg wrote for the majority.

The tribe has been able to repurchase properties within the claim area. But the court said taking the land off the local tax rolls and removing it from local jurisdiction would "seriously disrupt" existing expectations of the non-Indian community.

"The Oneidas long ago relinquished the reins of government and cannot regain them through open-market purchases from current titleholders," Justice Ruth Bader Ginsburg wrote for the majority.

The decision reverses a 2nd Circuit Court of Appeals ruling that favored the tribe. The court sent the case back to the lower courts for further proceedings, which could include foreclosure on the land because the tribe hasn't paid property taxes to the city of Sherrill.

Justice John Paul Stevens filed the lone dissent. He pointed out that the case was solely about taxation and that the majority essentially engaged in judicial activism by terminating the tribe's historic reservation and all rights associated with it.

"Without the benefit of relevant briefing from the parties, the Court has ventured into legal territory that belongs to Congress," Stevens wrote.

Justice David Souter filed a concurring opinion. He said the tribe's "inaction" contributed to the loss of its governmental rights.

A phone call to the Oneida Nation was placed seeking a comment.

Reached at the Western Governors' Association summit on Indian gaming in Denver, Keller George, a tribal member and president of United Southern and Eastern Tribes, said this morning that the decision was not favorable but that he had not read the full ruling and would comment later. He is scheduled to appear on a panel this afternoon to discuss the growth of Indian gaming.

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#143426 --- 03/29/05 06:35 PM Re: Indian Sovereign Immunity
Okla.ndn Offline
Senior Member

Registered: 12/21/02
Posts: 3074
Loc: Osage Indian Nation in Oklahom...
"Okla: Today the Supreme Court issued their ruling in the Sherill matter, the Oneida tribe has to pay real estate taxes on properties they have recently acquired or will acquire in the future. How do you think this will effect your properties and the Cayuga Claim?" At this time it doesn't effect us we have agreed to pay the taxes on our land. But I have to agree with Stevens."Without the benefit of relevant briefing from the parties, the Court has ventured into legal territory that belongs to Congress," As an act of congress is the only way to take away rights that come with a res. And congress has to make its intent clear thats what they are doing and that has not been done. If I understand this ruling right it doesn't effect their land claim.
_________________________
I am a General Council member of the Seneca-Cayuga Tribe I speak for my self not my Tribe.

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#143427 --- 03/30/05 06:46 AM Re: Indian Sovereign Immunity
grinch Offline
Senior Member

Registered: 08/28/01
Posts: 4617
Loc: New York State
My opinion: We now have some guidelines to follow as laid down in this decision. Some of what I say might be premature as all of this unfolds, but worth discussing in any event. We all know eviction was out of the picture, but now it no longer can be used as a threat in this or any other claim. Reestablishing governmental control by the Tribe is not feasible after so many years, this confirmed by the Supreme Court. Checker boarding will not be allowed. Properties owned by the Tribes will be subject to taxation and other local laws. I wonder how that will effect collection of sales taxes. It would seem the two gas stations are no longer protected by sovereignty, at least until they apply for the land to be taken into trust. That might not be possible because of this decision. It appears a monetary award would be in order and that is under appeal. The Supreme Court made a point the USGovernment is at fault by not taking any action in the early years following the sale of the Oneida Reservation. If that premises holds up, it appears the same rational can be applied to the Cayuga Claim. Their inaction indicates acceptance of those treaties. I would expect any money to be paid would have to be shared by the Feds. If this decision had been available before the hearing in Judge McCurans court, there would never have been a monetary award. The appellate court is reviewing points of law that lead the Supreme Court to reverse the lower court rulings. The ruling of the Supreme Court must be considered by the Appellate court and it is more than probable they will reverse the lower court decision in the Cayuga Claim. It does not seem likely the compacts will pass the legislature or congress in view of this development. The Pompo Bill is looming in the background as well. We will see what we will see.


Edited by grinch (03/30/05 07:08 AM)

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#143428 --- 03/30/05 10:16 AM Re: Indian Sovereign Immunity
Okla.ndn Offline
Senior Member

Registered: 12/21/02
Posts: 3074
Loc: Osage Indian Nation in Oklahom...
grinch my opinion is your reading way to much into this. " inaction indicates acceptance of those treaties. " The fact that the USA government hasn't done its duties is a given. Theres no way inaction can replace the law that it takes an act of congress to do away with or reduce the size of a res. And then the act must be clear of what the intent of congress is. grinch the 1985 Supreme Court ruling that the treaties are illegal stands.
_________________________
I am a General Council member of the Seneca-Cayuga Tribe I speak for my self not my Tribe.

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#143429 --- 03/30/05 03:33 PM Re: Indian Sovereign Immunity
grinch Offline
Senior Member

Registered: 08/28/01
Posts: 4617
Loc: New York State
Okla: The brief to the US Appellate court is being amended as we speak to include elements of the Sherrill decision. Keep the word laches in mind. That is extremely important. It is a defense denied by the court originally and now must be considered. Was the Cayuga reservation ever under federal supervision, or did it remain a State reservation? There are other points such as prior payments to the Cayuga, The Tribunal of 1926 etc., amongst the many things in that brief contesting the award made in the lower court. . Taxation was the prime issue in the Sherrill matter the underlying liability issues were not examined. They will be in the Cayuga Claim. The justices have decided land reacquired in the reservation will be subject to local governmental rule including taxes. It is no longer a "slam dunk" land so acquired will automatically be considered sovereign. You did retain your sovereignty in Okla. I cautioned before, the harder the people are pushed the harder they will push back and you may just lose more than you can hope to gain. Congress did nothing for those objecting to these claims, It is doubtful they will do anything to prolong this mess they have helped to create.


Edited by grinch (03/30/05 03:36 PM)

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#143430 --- 03/30/05 03:54 PM Re: Indian Sovereign Immunity
Okla.ndn Offline
Senior Member

Registered: 12/21/02
Posts: 3074
Loc: Osage Indian Nation in Oklahom...
Quote:

Okla: The brief to the US Appellate court is being amended as we speak to include elements of the Sherrill decision. Keep the word laches in mind. That is extremely important. It is a defense denied by the court originally and now must be considered. Was the Cayuga reservation ever under federal supervision, or did it remain a State reservation? There are other points such as prior payments to the Cayuga, The Tribunal of 1926 etc., amongst the many things in that brief contesting the award made in the lower court. . Taxation was the prime issue in the Sherrill matter the underlying liability issues were not examined. They will be in the Cayuga Claim. The justices have decided land reacquired in the reservation will be subject to local governmental rule including taxes. It is no longer a "slam dunk" land so acquired will automatically be considered sovereign. You did retain your sovereignty in Okla. I cautioned before, the harder the people are pushed the harder they will push back and you may just lose more than you can hope to gain. Congress did nothing for those objecting to these claims, It is doubtful they will do anything to prolong this mess they have helped to create.


Your wrong grinch its how we acquire the land. No matter what the court can't rerule the treaties are legal. The court upheld the 1985 supreme court ruling that the New York treaties were illegal. Like I said grinch your reading way to much into that ruling. I know all the things asked for in that case didn't come to pass with the ruling. If they had the UCE would be dancing in the streets.
_________________________
I am a General Council member of the Seneca-Cayuga Tribe I speak for my self not my Tribe.

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