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#904578 --- 10/25/08 08:55 PM Trust Lawsuit
Rich_Tallcot Offline
Senior Member

Registered: 01/19/03
Posts: 5565
Loc: Greeneville, TN
Fee to Trust - UCE lawsuit - plain language
Lawsuit filed by Upstate Citizens for Equality, Inc. David Vickers, Scott Peterman, Richard Tallcot, and Daniel T. Warren.
Case # 08-CV-00633
http://www.upstate-citizens.org/USDC-UCE-v-US.htm

FIRST CLAIM FOR RELIEF - Plain language

The defendants have no authority to create federal public domain land or federal Indian land in the State of New York, an original Colony, which retains its preemptive rights to all lands within its exterior boundaries. For unknown reasons, New York State did not make this argument in their lawsuit.

Based upon the Indian Reorganization Act as passed into law, the Sherrill ruling as ruled upon by the U.S. Supreme Court, and the United States Constitution, the defendants are ignoring the law, defying the U. S. Supreme Court, violating the U.S. Constitution and acting in excess of their authority.

Only the acquisition methods under the IRA, as enacted by Congress, were delegated to the Secretary of the Interior to accept lands into federal trust status for an Indian tribe. This did not include any delegation of authority for lands purchased by an Indian Tribe to become federal trust lands.

Congress explicitly removed the provision from the original IRA allowing tribes to purchase their own lands, placed a limitation of land purchases only by Congress and only up to $2 million a year. This was done purposely to protect the non tribal interests. The DOI is accepting lands not purchased by Congress and exceeding $2 million a year. Subjecting the purchase of lands to be restored to Indian Tribes to express Congressional appropriations was and is an express limitation on the discretion of the Secretary of the Interior required by the Property Clause that vests sole discretion in the management of property and acquisition of territory in the Congress.

Furthermore, ONLY tribes that accepted and restructured under the IRA within one year, extended to two years, after its passage, would be allowed the benefits under it. The Iroquois tribes did not accept the IRA, so they do not qualify.

The IRA designates different requirements in Section 5 for acquired additional lands from Section 3 for "restored" lands. Restored lands pursuant to Section 3 could only be returned to their tribal territorial status under the Property Clause of the Constitution if it was deemed by the Secretary of the Interior to be in "the public interest." Is it in the public interest to remove Constitutional rights?

Property Clause Article 4 Section Three Clause 2 The Congress shall have power to dispose of and make all needful rules and regulations respecting the territory or other property belonging to the United States; and nothing in this Constitution shall be so construed as to prejudice any claims of the United States, or of any particular state.

The only other clause of the Constitution of the United States that allows the federal government to purchase land is the Enclave Clause.

Enclave Clause Art. I Sec. 8, Cl. 17 To exercise exclusive legislation in all cases whatsoever, over such District (not exceeding ten miles square) as may, by cession of particular states, and the acceptance of Congress, become the seat of the government of the United States, and to exercise like authority over all places purchased by the consent of the legislature of the state in which the same shall be, for the erection of forts, magazines, arsenals, dockyards, and other needful buildings;--
Lands purchased under the Enclave Clause require the consent of the Governor of the State for federal jurisdiction to vest. No other clauses exist in the Constitution for the federal government to acquire ownership of land.

Expanding the methods by which lands can be conveyed into trust status violates the plain meaning of the appropriative restriction of Section 5 of the IRA. Only Congress can extend the federal Indian trust to include lands purchased by or donated to an Indian tribe. Other acts of Congress cannot be interpreted by the Secretary of the Interior as authorizing an expansion of his authority to accept lands into trust.

Lands taken into federal trust that are not purchased pursuant to Section 5 of the IRA cannot restore tribal sovereignty unless the fee title to the lands and aboriginal title are assumed to become unified as described in the decision of City of Sherrill v. Oneida Indian Nation, (2005). SCOTUS explicitly rejected that theory.

The assumption that federal Indian common law authorized the Secretary of the Interior to accept lands purchased by an Indian Tribe into federal trust status was in reality, unilaterally promulgated by the Secretary of the Interior, without the proper authorization from Congress. The Secretary of the Interior wrote his own regulations without Congressional oversight.

In fact, accepting fee land into federal trust status was declared unconstitutional in Department of the Interior v. South Dakota, (1996). It was based on the remand of this case that the new regulations under were drawn.

The new regulations for were promulgated in 2004. The Sherrill decision cites explicitly to the new regulations as "Recognizing these practical concerns, Congress has provided a mechanism for the acquisition of lands for tribal communities that takes account of the interests of others with stake in the area's governance and well-being."

The Sherrill Court expressly cites to the 2004 regulations as "sensitive to the complex interjurisdictional concerns that arise when a tribe seeks to regain sovereign control over territory." These jurisdictional concerns are not addressed by the defendant's limited Final EIS.

Before approving an acquisition, the Secretary must consider, among other things, the tribe's need for additional land; the purposes for which the land will be used; the impact on the State and its political subdivisions resulting from the removal of the land from the tax rolls; and jurisdictional problems and potential conflicts of land use which may arise.

Lastly, the Oneidas like all Indians in New York were not subject to the allotment policy that the trust process was intended to reverse.

The United States Court of Appeals for the Eighth Circuit held "that an intelligible principle exists in the statutory phrase 'for the purpose of providing land for Indians' when it is viewed in the statutory and historical context of the IRA. The statutory aims of providing lands sufficient to enable Indians to achieve self-support and ameliorating the damage resulting from the prior allotment policy sufficiently narrow the discretionary authority granted to the Department. We therefore affirm the grant of summary judgment for the Department on the nondelegation doctrine challenge." South Dakota v. United States DOI, (8th Cir. 2005)

Since the IRA and ILCA were intended to "ameliorating the damage resulting from the prior allotment policy" and the Oneidas were not subject to, and did not suffer harm from, the "prior allotment policy" it follows that the Defendants are acting in excess of their lawfully delegated powers.

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#904609 --- 10/25/08 09:55 PM Re: Trust Lawsuit [Re: Rich_Tallcot]
Rich_Tallcot Offline
Senior Member

Registered: 01/19/03
Posts: 5565
Loc: Greeneville, TN
Fee to Trust UCE's lawsuit - plain language: SECOND CLAIM FOR RELIEF

Defendants acted contrary to constitutional right, power, privilege, or immunity in taking any land in the State of New York into trust under the Indian Reorganization Act in that 25 U.S.C. § 465 violates the nondelegation doctrine of the United States Constitution and is in excess of the powers conferred to Congress by the Indian Commerce Clause.

The Indian Commerce Clause's grant of authority to the federal government, and preemption of state authority, extends only to activities occurring in "Indian country."

Indian Commerce Clause art. I, Section 8, cl. 3 To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;

It has been held that Congress has no authority to abrogate a state's sovereign immunity from suit granted by the Eleventh Amendment of the U.S. Constitution pursuant to the Indian Commerce Clause. Congress' power under the Indian Commerce Clause should also be limited by the U.S. Const. in which the State's consent is a necessary element to the removal of land from a State's sovereign control particularly if the federal government's intent is to cede sovereign control to any degree to another sovereign.

In this case the State of New York not only withheld its consent, it opposed the taking of the subject land into trust by the United States.

The central question of how modern Courts were to view the Indian Commerce Clause had its roots, ironically enough, in criminal law (ruling that federal laws don't apply to Indian reservations if the State in question hasn't granted its legislative permission for the federal government to exercise jurisdiction).

The overwhelming conclusion was that the federal laws could pre-empt State laws only if the federal legislation could be justified on Indian "commerce" grounds and only if the State in question had granted jurisdictional authority over otherwise sovereign State controlled land, usually granted in the State's application for Statehood. The State cession of jurisdiction component has been ignored by the BIA, since the BIA has engaged in preferential pro-Indian hiring practices since the early 1970's. The BIA and the decision-makers therein are really Indian advocates, not guardians of proper federal responsibilities vis a vis the States.

The first sentence of the body of the United States Constitution provides that, "All legislative Powers herein granted shall be vested in a Congress of the United States . . . ." According to the nondelegation doctrine, "Congress may not constitutionally delegate its legislative power to another branch of Government". The nondelegation doctrine is an underpinning of separation of powers jurisprudence. Congress is therefore not permitted to abdicate or to transfer to other branches of government its essential legislative function.

The Indian Reorganization Act states that, "[t]he Secretary of the Interior is hereby authorized, in his discretion, to acquire . . . any interest in lands . . . within or without existing reservations . . . for the purpose of providing land for Indians." Designating legislative authority to the Executive branch without Congressional oversight is unconstitutional.

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#904616 --- 10/25/08 10:11 PM Re: Trust Lawsuit [Re: Rich_Tallcot]
Rich_Tallcot Offline
Senior Member

Registered: 01/19/03
Posts: 5565
Loc: Greeneville, TN
Fee to Trust UCE's lawsuit - plain language: THIRD CLAIM for Relief

Defendants acted in an arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law and without observance of procedure required by law in rendering its determination;

The Indian Reorganization Act of 1934 is not properly before the Defendants in that the application was presented by Raymond Halbritter as Nation Representative, who was removed from this position on or about May 21, 1995.

The Defendants only considered and responded to the comments from only governmental entities that it sent specific notices to and not the general public and citizens groups such as UCE despite their duty to consider the effect of its decision on the community at large.

According to the BIA, they represent only the interests of the Indian tribe as defined by the Tribe submitting the fee to trust application. This qualifies as a conflict of interest and compromised the objectivity and integrity of the administrative process to such an extent that the presumption of agency regularity is rebutted and more exacting scrutiny should be used to review its determination herein.

The application was incorrectly filed as on reservation since the land the OIN seeks to have taken into trust is not within an existing reservation.

As to seven parcels in the Town of Vienna, Oneida County, the land is not even within the boundaries of the area set aside for the Oneidas in the 1788 Treaty of Fort Schuyler and acknowledged in the 1794 Treaty of Canandaigua.

As reflected in the Defendants own land to trust regulations, an "Indian reservation" is an area in which a tribe is "recognized by the United States as having governmental jurisdiction . . .".

By deciding that the OIN has no right to exercise tribal sovereignty on fee land within the former reservation, the Supreme Court found that the land lacked reservation (and Indian country) status. The Court's language, which repeatedly characterized the reservation in the past tense, is entirely consistent with that conclusion (See Sherrill (describing OIN land as land "that once composed the Tribe's historic reservation"); Even before Sherrill the United States had repeatedly recognized that with the possible exception of the 32 acres addressed in United States v. Boylan, the area set aside in the Treaty of Fort Schuyler is not today a reservation. Indeed, Justice Stevens, in dissent, recognized that the majority had "effectively proclaimed a diminishment of the Tribe's reservation." Sherrill.

The Second Circuit decision in Cayuga Indian Nation v. Pataki, (2d Cir. 2005), confirms that the Sherrill decision should not be narrowly cabined but should be accorded its necessary and logical import. As the Second Circuit recognized, Sherrill "dramatically altered the legal landscape against which we consider plaintiff's claims." (Cayuga). The Court there read Sherrill to read that there is also no Cayuga Indian reservation in Cayuga or Seneca Counties.

There is no valid statutory authority for the Defendants to take the land into trust that the OIN seeks to have them to.

Removing over 13,000 acres of land from local tax rolls so that the OIN can operate a massive illegal casino and entertainment complex that produces $100 million of annual revenue for a tribe with a claimed membership of approximately 1,000 hardly fulfills the intended function of § 465 if it is even applicable. The OIN has the capacity to use the land it owns in an economically productive way without having it held in trust status.

There is no reason why the OIN needs to, or should, enjoy the significant economic advantages over surrounding non-Indian business that come with having its land exempt from state and local taxes and, potentially, state and local regulatory requirements.

The OIN's application omits any mention of the fact that some of the land which it seeks to have taken into trust is the site of a Class III gaming facility that is being operated in blatant violation of the Indian Gaming Regulatory Act. The OIN's operation of the casino is unlawful because it is being operated without a valid tribal-state compact and on land that is not gaming.

The Record of Decision in addressing the loss of tax revenue states that taxing the Turning Stone Casino & Resort is "contrary to the spirit, purpose, and letter of The Indian Gaming Regulatory Act" (IGRA). However it fails to consider that this facility is on fee land on which the OIN has no right to exercise tribal sovereignty on and which is not gaming eligible land and in the absence of a valid tribal-state compact as required. Since this facility is not authorized by IGRA, IGRA cannot prohibit its taxation.

Additionally the Record of Decision fails to adequately address the payment of taxes levied against the subject property prior to the United States taking title sufficiently for clean title to pass.

The laws of the State of New York require one who challenges the amount of property taxes due to pay first, litigate later, not provide bond or letter of credit, litigate later. Until these taxes are paid and satisfied they act as a lien on the property which must be satisfied in order to pass title to the property.

Defendants failed to adequately consider the loss of taxes actually assessed and paid on the property as required. "In order to show consideration with respect to Appellant, BIA must, at a minimum, discuss whether Appellant has taxing authority; what, if any, taxes were assessed by Appellant in regard to these properties, or what, if any, taxes were received by Appellant in regard to each property; and the impact, if any, on Appellant of the removal of the tracts from the tax rolls."

The Defendants have acted without due regard to the arguments raised by the State Of New York, Madison County, Oneida County, Plaintiffs and other citizens in their respective submissions as to the factors to be considered.

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#904621 --- 10/25/08 10:21 PM Re: Trust Lawsuit [Re: Rich_Tallcot]
Rich_Tallcot Offline
Senior Member

Registered: 01/19/03
Posts: 5565
Loc: Greeneville, TN
Fee to Trust UCE's lawsuit - plain language: FOURTH CLAIM for Relief

In the absence of a valid tribal-state gambling compact, any Class III gambling by the Oneida Indian Nation of New York would violate IGRA, and any decision by Defendants to place the casino site into trust for such a purpose is arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.

Under IGRA, an Indian tribe may conduct Class III if - and only if - it does so in conformance with a "tribal-state compact" entered into between the tribe and the state. Absent a compact, gambling is illegal under New York and federal law.

The Oneida Indian Nation of New York does not have a valid gambling compact with the State of New York, and therefore cannot offer Class III gambling, including purported Class II bingo games that are in reality Class III games, even if it obtains land in trust for other purposes.

Defendants have nonetheless proceeded with their plans to take land into trust for Class II and Class III gambling without addressing this legal problem. A person suffering a legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review under the Administrative Procedures Act (APA).

The APA empowers this court to "hold unlawful and set aside agency action, findings, and conclusions found to be: (A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; . . (C) in excess of statutory jurisdiction, authority, or limitations, or short of statutory right; [or] (D) without observance of procedure required by law; . .".

Defendants' decision to take land into trust without ensuring that there will never be illegal gambling at the site violates the law and the applicable standard of review under the APA.

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#904626 --- 10/25/08 10:39 PM Re: Trust Lawsuit [Re: Rich_Tallcot]
Rich_Tallcot Offline
Senior Member

Registered: 01/19/03
Posts: 5565
Loc: Greeneville, TN
Fee to Trust UCE's lawsuit - plain language: FIFTH CLAIM for Relief

Defendants have violated the statutory procedures mandated by IGRA for permitting gambling without a tribal-state compact on Indian lands acquired after October 17, 1988.

In Saratoga County Chamber of Commerce v. Pataki, the New York Court of Appeals held that entering into a tribal-state compact with an Indian tribe involved making policy choices that epitomized legislative powers, and the Governor could not do so without legislative authorization or approval.

Based on the above ruling in Saratoga the tribal-state compact between the OIN and the State of New York was held to be invalid.(Peterman v. Pataki, supra).

The New York Court of Appeals determination that only the legislature can authorize tribal gaming is controlling for purposes of IGRA. The federal courts addressing the issue of whether a state has validly bound itself to a compact, including who within the state government has the authority to bind the state, have found that the issue is strictly one of state law.

Even if taking the land on which Turning Stone Casino sits into trust would address - on a prospective basis only - the status of the land, it does nothing to alter the fact that gaming at the Casino is not conducted pursuant to a valid compact.

Section 2719 of IGRA creates a broad prohibition against gambling on land taken into trust after October 17, 1988.

Under IGRA, gambling on lands taken into trust after 1988 ("newly acquired lands") is permitted only pursuant to certain narrowly defined exceptions. First, the statute provides that gambling is permissible if "such lands are located within or contiguous to the boundaries of the reservation of the Indian tribe on October 17, 1988." The land upon which the Turning Stone Casino and Resorts is situated upon ("casino site") is not located within or contiguous to the boundaries of the Oneida's reservation but rather 9 miles away from their reservation.

The exception is not applicable to the Oneidas because they had a reservation on October 17, 1988. The Defendants have previously taken the position that the 32 acres at issue in Boylan was an Oneida [State] reservation as of October 17, 1988.

Next, the statute says such gambling is also permissible if the Secretary, after consultation with the tribe and state and local officials, determines that "a gaming establishment on newly acquired lands would be in the best interest of the Indian tribe and its members, and would not be detrimental to the surrounding community, but only if the Governor of the State in which the gaming activity is to be conducted concurs in the Secretary's determination.". There has been no two part determination made as required by this provision for the site upon which Turning Stone Casino and Resort is situated on since the Secretary has made no finding that the casino "would not be detrimental to the surrounding community," nor obtained the concurrence of the state's governor.

The statute permits gambling on newly acquired lands where the lands are taken into trust as part of "a settlement of a land claim". The Oneidas land claim has been dismissed in part and to date there has been no settlement. Therefore this exception is not applicable.

The statute permits gambling on newly acquired lands where the lands are taken into trust as part of "the initial reservation of an Indian tribe acknowledged by the Secretary under the Federal acknowledgment process . . . .". The site upon which the Turning Stone Casino and Resort is situated on is not being taken into trust as part "the initial reservation" of the Oneida Indian Nation of New York because it has been federally recognized and has had a reservation in the State of New York since at least 1788 (See City of Sherrill v. Oneida Indian Nation (U.S. 2005))

In this case, none of the exceptions to IGRA's general ban on using new land for casino gambling is applicable. Subsection (a)(1), referring to land within or contiguous to the tribe's reservation, is inapplicable here since the proposed casino site is clearly not within or contiguous to any tribal reservation existing in 1988. Subsection (b)(1)(A) is likewise inapplicable, since the Secretary has made no finding that the casino "would not be detrimental to the surrounding community," nor obtained the concurrence of the state's governor.

The exception created by subsection (b)(1)(B)(ii) is also inapplicable. The site upon which the Turning Stone Casino and Resort is situated on is not being taken into trust as part of the Oneida Nation's "initial reservation," as required by the statute. The application of the Oneidas consist of hundreds of different and predominantly non-contiguous parcels, this newly acquired property is separate from the 32 acres that was the subject of United States v. Boylan, (the 32 Acres). While this newly acquired property is located within the area that was once occupied by the Oneida people before the nineteenth century, it is not property over which the present OIN can assert sovereignty. Rather, this property is within the sovereign jurisdiction of the State of New York.

The exception created by subsection (b)(1)(B)(iii) is also inapplicable because the Oneida Indian Nation of New York has not been restored to federal recognition within the meaning of this provision.

In short, none of the exceptions provided by IGRA for gambling on newly acquired Indian lands is available here. In the absence of such an exception, the Oneidas cannot legally operate a casino on the casino site. Under the APA, Defendants have therefore acted "without observance of procedure required by law" or otherwise "not in accordance with the law." The land in trust decision must therefore be set aside.

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#904629 --- 10/25/08 10:55 PM Re: Trust Lawsuit [Re: Rich_Tallcot]
Rich_Tallcot Offline
Senior Member

Registered: 01/19/03
Posts: 5565
Loc: Greeneville, TN
Fee to Trust UCE's lawsuit - plain language: SIXTH CLAIM for Relief

The Department of Interior Secretary's decision that the 1993 Nation-State Compact between the Oneida Indian Nation of New York and the State of New York is still in effect for purposes of the Indian Gaming Regulatory Act As a final agency action is arbitrary, capricious, an abuse of discretion, and not in accordance with law.

Every federal court and agency has inherent authority (unless abrogated by Congress) to re-examine its decisions if asked to do so within a reasonable time,

According to defendants' March 15, 2007, letter they were compelled on their own to reconsider their June 4, 1993, determination based on the New York State court rulings that former Governor Cuomo lacked the authority under State law to negotiate and enter into the tribal-state compact with the Oneida Indian Nation of New York and solicited input from the OIN and the State of New York.

In light of the New York State court rulings that former Governor Cuomo lacked the authority under State law to negotiate and enter into the tribal-state compact with the Oneida Indian Nation of New York the tribal-state compact is not in effect under the Indian Gaming Regulatory Act.

Despite the lengthy and reasoned decision set forth in its determination to reconsider the validity of the tribal-state compact between the Oneidas and the State of New York the final determination is inconsistent and tersely reverses its position.

The Second Circuit has ruled that "an agency - cannot simply adopt inconsistent positions without presenting 'some reasoned analysis.

"Such explanation, the court has said, is necessary so that the reviewing court may 'be able to understand the basis of the agency's action so that it may judge the consistency of that action with the agency's mandates. Ramaprakash v. F.A.A., (D.C. Cir. 2003) (stated that an agency's "failure to come to grips with conflicting precedent constitutes an inexcusable departure from the essential requirement of reasoned decision making" and that in changing course, an agency must "provide a reasoned analysis indicating that prior policies and standards are being deliberately changed, not casually ignored").

Defendants Hogen and NIGC failed to make an Indian lands determination prior to the approval of the Oneida Indian Nation's Gaming Ordinance dated January 3, 1994.

Defendants Hogen and National Indian Gaming Commission's determination approving a gaming ordinance permitting gaming under a tribal-state compact that is not lawfully in effect as required because the State Defendants did not have the authority under state law to enter into it. This determination and Defendants refusal to reopen and reconsider it in light of the changes in circumstances is arbitrary, capricious, an abuse of discretion, and not in accordance with law.

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#904633 --- 10/25/08 11:27 PM Re: Trust Lawsuit [Re: Rich_Tallcot]
Rich_Tallcot Offline
Senior Member

Registered: 01/19/03
Posts: 5565
Loc: Greeneville, TN
Fee to Trust UCE's lawsuit - plain language: SEVENTH CLAIM and final for Relief

A Writ of Mandamus Should Issue Compelling Defendants to Carry Out Their Statutory Duties

Defendants are charged with the duty to promulgate and implement the United States trust responsibility towards Indian Nations and tribes and their members which include when and how lands acquired by the various Indian nations and tribes will be taken into trust or restricted fee status and the duty to make the necessary determinations relative to gaming on Indian lands and, if permitted, the monitoring and regulation of the on-going conduct of such gaming.

The failure of Defendants to adhere to what regulations they have promulgated and their failure to promulgate and implement regulations setting forth their longstanding policies that are necessary to carry out their duties has resulted in ad hoc and irrational, arbitrary and capricious decisions in determining land status and the applicability of the provisions of the IGRA.

As testified to by Earl E. Devaney, the Inspector General for the Department of the Interior before the U.S. Senate Committee on Indian Affairs on April 27, 2005 "We determined that neither the BIA nor NIGC has a systematic process for identifying converted lands or for determining whether the IGRA exemptions apply. Therefore, unless a tribe abides by the rules and applies for approval, conversion of trust lands to gaming purposes goes essentially unchecked. Neither the Department nor NIGC has a way to ensure that Indian gaming is being conducted only on approved lands."

As testified by Penny Coleman, Acting General Counsel of the National Indian Gaming Commission before the U.S. Senate Committee on Indian Affairs on July 28, 2005, "The Commission and the Department have been criticized by the Department's Office of Inspector General for failing to decide the Indian lands questions before a facility opens and for failing to have a systematic approach to making such decisions."

Despite her testimony above Penny Coleman, Acting General Counsel of the National Indian Gaming Commission in a letter to Richard Platkin, Esq. as Counsel to Governor Pataki dated October 27, 2005, that it was the view of the NIGC that despite the lack of OIN sovereignty over the land, it is still reservation land. This is inconsistent with the clear intent of the statute, but also NIGC's own practice. Recognizing the essential link between sovereignty and reservation status, in determining whether a tribe has jurisdiction on land for purposes of IGRA the NIGC "presumes" jurisdiction where the land is reservation land. Here there is no jurisdiction as a result of Sherrill and the land cannot be considered reservation land.

The position set forth In Ms. Coleman's October 27, 2005 letter is also inconsistent with her letter dated February 7, 2008 letter to Chairman Kawaykla of the Fort Sill Apache Tribe.

On or about February 1, 2006 a hearing was held before the U.S. Senate Committee on Indian Affairs at which George T. Skibine, the Bureau of Indian Affairs official in charge of gaming, testified that he has circulated proposed regulations to cure the aforementioned deficiencies.

Senator McCain stated "I don't see how we can effectively regulate Indian gaming, and certainly exercise Congressional oversight, unless there's regulations to implement the law we passed. . ."

Mr. Skibine testified at the February 1, 2006 hearing before the Senate Committee on Indian Affairs "As we do the consultation, we have not as this point figured out exactly how we are going to proceed . . . At this point we haven't come up with a plan yet, except that we will do it, for sure."

Sen. John McCain and Sen. Byron Dorgan expressed frustration with the slow-moving pace. They said it was unacceptable that the rules aren't in place 17 years after the passage of the Indian Gaming Regulatory Act.

In or about Fall 2006, Interior Department Inspector General Earl Devaney testified before Congress that "simply stated, short of a crime, anything goes at the highest levels of the Department of the Interior."

Additionally the Defendants' own internal criticism prompted a review of all 404 casinos to make sure they are operating legally.

These systemic issues have resulted in the Federal Defendants approving gaming ordinances and tribal-state compacts prior to a proper determination as to whether gaming is permitted and/or prior to a proper determination as to whether or not gaming on land acquired, or to be acquired, is permitted.

United States Code provides that "The Commission shall, when such information indicates a violation of Federal, State, or tribal statutes, ordinances, or resolutions, provide such information to the appropriate law enforcement officials."

Defendant NIGC, although in receipt of information that indicates a violation of Federal, State, or tribal statutes, ordinances, or resolutions, have not provided such information to the appropriate law enforcement officials.

United States Code provides that "The Attorney General shall investigate activities associated with gaming authorized by this Act which may be a violation of Federal law."

Defendant Attorney General, although in receipt of information that indicates a violation of Federal law has not investigated the activities associated with gaming authorized by the Indian Gaming Regulatory Act.

Despite the aforementioned rulings, statutes and complaints from plaintiffs and others the Defendants have failed to take any action on this blatant and obviously illegal gambling.

Defendants Hogen and the National Indian Gaming Commission has reduced its duty to review and approve tribal gaming ordinances to a perfunctory approval with no real or hard look at the proposed ordinances to determine if it in fact complies with the IGRA including boiler plate language which merely states that the gaming must not be inconsistent with the provisions of the IGRA which is the very thing it is suppose to determine.

The Federal Defendants, despite being given guidelines for the agency to follow, in exercising its enforcement powers under the IGRA and have failed to follow them and/or they have conspicuously and expressly adopted a general policy that is so extreme as to amount to an abdication of its statutory responsibilities.

The defendants have failed to adhere to their own regulations and policies, make regular inspections, or take vigorous inspections in order to carry out their enforcement duties under the Indian Gaming Regulatory Act of 1988 and the United States Trust Obligation toward the Indian nations and tribes.

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#904637 --- 10/25/08 11:57 PM Re: Trust Lawsuit [Re: Rich_Tallcot]
Rich_Tallcot Offline
Senior Member

Registered: 01/19/03
Posts: 5565
Loc: Greeneville, TN
Fee to Trust National Grid's lawsuit ' plain language:
Found at http://www.upstate-citizens.org/National-Grid-Complaint.pdf

FIRST CAUSE OF ACTION seeks a declaration that Section 5 of the Indian Reorganization Act ("IRA"), 25 U.S.C. § 465 ("Section 465") constitutes an unconstitutional delegation of Congressional authority to the Secretary of the Interior.

The non-delegation doctrine prohibits Congress from making unbridled delegations of authority.

When Congress delegates its authority to an agency, Congress must provide some guidance in the manner in which the agency id to exercise that authority or the delegation of that authority is unconstitutional. Section 465 does not provide any guidance to the Secretary of the Interior ("the Secretary") in the exercise of the Secretary's discretion. Absence any such guidance, Section 465 is unconstitutional.

SECOND CAUSE OF ACTION seeks a declaration that Section 465, as applied to in this trust application, is unconstitutional.

Guidance, if any provided to the Secretary with respect to the Secretary's discretion under Section 465 would be found in the legislative history and structure of the Indian Reorganization Act. The statute itself provides absolutely no guidance.

According to the statute's legislative history, the intent and purpose of the IRA was "to rehabilitate the Indian's economic life and give him a chance to develop the initiative destroyed by a century of oppression and paternalism."

Representative Howard, the sponsor of the bill in the House of Representatives indicated that the act would help remedy the problem by preventing "any further loss of Indian lands" and permitting "the purchase of additional lands for landless Indians." (June 12, 1934) (statement of Senator Wheeler, sponsor of the bill in the Senate, echoing the remedial goals in relation to Indian lands.)

In the Instant case, the Secretary discounts even the minimal guidance provided by the legislative history. That section states that:

As a threshold matter, the Department finds that the Nation's financial wherewithal and competence to manage its affairs do not render it ineligible for placement of land into trust. Section 5 of the IRA is not limited to landless or impoverished tribes, or to tribes that are incompetent to handle their own affairs.

The Secretary's rejection of the guidance renders the application of Section 465 to the instant trust applications contrary to the law and unconstitutional.

THIRD CAUSE OF ACTION seeks a declaration that Section 465 is not applicable to the New York Oneida's trust application in that any diminishment of the New York Oneida's reservation and/or land holdings was not due to the Allotment Act of 1887.

The IRA was enacted in 1934 to end the allotment policy initiated in 1887 under the General Allotment Act of 1887. The General Allotment Act of 1887 had no force or effect in the State of New York because, at the time of its enactment, there were no federal Indian reservations in the state of New York.

The parcels covered by the New York Oneidas' trust application were not allotments and, thus, were not covered by the General Allotment Act. The New York Oneidas did not lose title to those parcels through operation of the General Allotment Act. Absent coverage of the State of New York by the General Allotment Act, the IRA has no force of effect in the State of New York or the New York Oneidas' parcels.

Interior's application of Section 465 to the New York Oneidas; trust application was arbitrary, capricious, an abuse of discretion and otherwise not in accordance with law.

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#904639 --- 10/26/08 12:06 AM Re: Trust Lawsuit [Re: Rich_Tallcot]
Rich_Tallcot Offline
Senior Member

Registered: 01/19/03
Posts: 5565
Loc: Greeneville, TN
Fee to Trust National Grid's lawsuit - plain language:

FOURTH CAUSE OF ACTION seeks declaratory judgment and injunctive relief under the Administrative Procedures Act.

The Secretary of Interior's Record of Decision (ROD) is arbitrary, capricious, an abuse of discretion and otherwise not in accordance with law in that the Interior considered the parcels covered by the application to be part of the New York Oneidas' reservation.

For example, the ROD states that under the Proposed Action, the Secretary would accept into trust approximately 17, 370 acres located within the Oneida reservation as confirmed by the 1794 Treaty of Canandaigua."

The ROD discuses the alternative of creating a New York State reservation and states that "this alternative would apparently entail disestablishment of the existing Federal reservation, contrary to the fact that "only Congress can divest a reservation of its status and diminish its boundaries."

The ROD states that:
Land may be acquired for a tribe in trust status:
(1) When the property is located within the exterior boundaries of the tribe's reservation or adjacent thereto, or in a tribal consolidation area; or
(2) When the tribe already owns an interest in the land [i.e., the tribe owns an interest in an off-reservation asset and seeks to consolidate that interest]; or
(3) When the Secretary determines that the acquisition of the land is necessary to facilitate tribal self-determination, economics development, or Indian housing.

The Secretary claims that this requirement is satisfied because the Nation's request is for acquisition of lands located within the exterior boundary of its "Indian Reservation" as defined in 25 CFR § 151.2(f).

C.F.R. § 151.2 states that: Unless another definition is required by the Act of Congress authorizing a particular trust application, "Indian reservation means that area of land over which the tribe is recognized by the United States as having governmental jurisdiction, except that, in the State of Oklahoma or where there has been a final judicial determination that a reservation has been disestablished or diminished, "Indian reservation" means that area of land constituting the former reservation of the tribe as defined by the Secretary.

The United States has never recognized that the New York Oneidas have governmental jurisdiction over the parcels being sought to be taken into trust. In fact, the United States Supreme Court, in its City of Sherrill decision (2005)), held that the New York Oneidas could not exercise governmental jurisdiction over its off-reservation parcels absent those parcels being taken into trust.

Nor is there any final judicial determination that any reservation held by the New York Oneidas has been disestablished or diminished. The parcels contained in the New York Oneidas' trust application, therefore, do not constitute a "reservation" as that term is defined by the IRA.

Interior's treatment of the parcels as the New York Oneidas' reservation is arbitrary, capricious, an abuse of discretion and otherwise not in accordance with law.

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#904640 --- 10/26/08 12:12 AM Re: Trust Lawsuit [Re: Rich_Tallcot]
Rich_Tallcot Offline
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Registered: 01/19/03
Posts: 5565
Loc: Greeneville, TN
Fee to Trust National Grid's lawsuit - plain language:

FIFTH CAUSE OF ACTION seeks declaratory judgment and injunctive relief under the Administrative Procedures Act.

Interior's decision to accept certain parcels of property located within Madison and Oneida Counties into trust was arbitrary, capricious, an abuse of discretion and otherwise not in accordance with law.

National Grid, as a public utility, is subject to numerous Federal and State laws and regulations that govern the operation of the utility. Those laws and regulations require National Grid, among other things, to provide safe and continuous electric and gas service to customers within its franchise territory.

National Grid, in order to fulfill these requirements, has certain easements, rights of way and franchise rights on parcels of land located within Madison and Oneida Counties, including many of those parcels approved for fee-to-trust acquisition.

National Grid utilizes these easements, rights of way and franchise rights to service that portion of its franchise territory that extends across parts of Oneida and Madison Counties by providing gas and/or electric service to customers in those counties including those located on the Nation’s trust acquisition lands and those located on other property that will not be taken into trust.

The Company's utility infrastructure in Oneida and Madison Counties includes high voltage electric transmission facilities, overhead and underground electric distribution facilities, high pressure natural gas pipelines, gas distribution facilities, and gas regulator stations.

Taking into trust those parcels on which National Grid's utility easements, rights of way and franchise rights are located jeopardizes the Company's ability to operate and maintain the existing utility infrastructure used to serve its franchise territory including both customers located on fee-to-trust acquisition lands and those customers whose land is not subject to the trust application.

Taking into trust those parcels on which the National Grid's utility easements, rights of way and franchise rights are located jeopardizes the Company's ability to provide ongoing utility service to customers on the Nation's trust acquisition lands, adjacent properties, and the entire region.

National Grid's existing utility easements, rights of way and franchise rights cross many of the properties to be taken into trust.

National Grid's inability to access these utility easements, rights of way and franchise rights will impermissibly interfere with the Company's ability to comply with requirements of Federal and State laws and the regulatory requirements contained in tariffs.

The ROD failed to consider whether the Nation's lands are subject to existing easements, rights of way and franchise rights and failed to condition the taking of parcels of land into trust upon an enforceable protective mechanism for the easements, rights of way and franchise rights including a waiver of sovereign immunity by the New York Oneidas and the United States.

Interior's failure to address these concerns and to impose such conditions on the New York Oneidas to ensure adequate regulation over National Grid’s gas and electric utility infrastructure is arbitrary, capricious, an abuse of discretion and otherwise not in accordance with law.

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#904641 --- 10/26/08 12:18 AM Re: Trust Lawsuit [Re: Rich_Tallcot]
Rich_Tallcot Offline
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Registered: 01/19/03
Posts: 5565
Loc: Greeneville, TN
Fee to Trust National Grid's lawsuit - plain language:

SIXTH CAUSE OF ACTION seeks declaratory judgment and injunctive relief under the Administrative Procedures Act.

Interior's decision to accept certain parcels of property located within Madison and Oneida Counties into trust was arbitrary, capricious, an abuse of discretion and otherwise not in accordance with the law.

National Grid, as a public utility, has certain rights under State and Federal law, including, but not limited to, provisions enacted to protect the Company's infrastructure, provisions designed to protect underground facilities and overhead structures and provisions to enable the Company to meet its service requirements.

The placement of parcels into trust would exempt these parcels from those requirements and increase the risk of danger to the Company's infrastructure as well as increase the danger to the public.

Such a concern is based upon previous experiences, not on mere speculation as to what might happen.

On one occasion, the New York Oneidas sought to prevent National Grid from accessing major natural gas pipeline which runs under a Nation-owned golf course after it was damaged by the Nation while installing a golf course drainage pipe. Rather than granting National Grid immediate access to the pipeline to repair the damage and to diminish the risk and dangers associated with such damage, the New York Oneidas asked the Company to delay repairing the pipeline until after completion of the golf season. The Nation's excavation ignored New York State law which requires that underground utilities be marked out before any excavation is undertaken.

On a separate occasion, the New York Oneidas constructed a landing for the Turning Stone's Casino helicopter traffic ("the Heli-Pad") which included drainage installations that encroached upon a National Grid-owned natural gas pipeline right of way. This excavation was conducted without regard to the Company's right of way and without regard to State laws and regulations enacted to ensure storm water runoff/collection basins are graded in a manner that maintains a minimum distance from natural gas pipelines and other utility facilities. The Heli-Pad was also constructed without regard to the risk of danger and injury associated with landing and fueling multi-ton helicopters next to a natural gas pipeline.

Unregulated construction and excavation on the Nation's lands that encroach on the Company's utility easements, rights of way and franchise rights without conformance to New York State laws and regulations interfere with National Grid's existing utility infrastructure used to serve its customers and threaten the public health and safety.

Absent any requirement that New York Oneidas and the United States recognize those State statutes and regulations designed to protect the Company's infrastructure and designed to protect the public health and safety, the ROD is arbitrary, capricious, an abuse of discretion and otherwise not in accordance with the law.

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#904642 --- 10/26/08 12:22 AM Re: Trust Lawsuit [Re: Rich_Tallcot]
Rich_Tallcot Offline
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Registered: 01/19/03
Posts: 5565
Loc: Greeneville, TN
Fee to Trust National Grid's lawsuit - plain language:

SEVENTH CAUSE OF ACTION seeks declaratory judgment and injunctive relief under the Administrative Procedures Act.

Interior's decision to accept certain parcels of property located within Madison and Oneida Counties into trust was arbitrary, capricious, an abuse of discretion and otherwise not in accordance with the law.

Interior's ROD states that the New York Oneidas have a history of entering into agreements respecting the costs of infrastructure and services.

Interior's ROD fails to acknowledge or address the New York Oneidas refusal to enter into an agreement with the National Grid to recognize the Company's right to locate, construct, operate, maintain, repair and replace existing and new utility facilities on the nation's trust acquisition lands.

Interior's ROD states that "the Nation has stated that it intends for all rights-of-way, including those used to access utility infrastructure, to remain in effect after placement of lands into trust."

In the absence of continued regulation governing utility service on the New York Oneidas, the continued provision of service to customers on the New York Oneidas lands and downstream lands cannon be assured.

The approval of the fee-to-trust acquisition of lands without the protection of National Grid's rights to access its natural gas transmission and distributive facilities, which include 14.3 miles of high pressure natural gas pipelines located on or in the immediate vicinity of the New York Oneida's land, could adversely impact Cities of Rome and Oneida and the Villages of Munnsville and Canastota and the Vernon area.

If the land is taken into trust without protection of National Grid's right to locate, operate and maintain its utility facilities on the fee-to-trust acquisition lands, thousands of National Grid customers and potential customers could be adversely affected.

Interior's failure to address these concerns and to impose such conditions on the New York Oneidas to insure adequate regulation over National Grid’s gas and electric facilities is arbitrary, capricious, an abuse of discretion and otherwise not in accordance with the law.

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#904643 --- 10/26/08 12:26 AM Re: Trust Lawsuit [Re: Rich_Tallcot]
Rich_Tallcot Offline
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Registered: 01/19/03
Posts: 5565
Loc: Greeneville, TN
Fee to Trust National Grid's lawsuit - plain language:

EIGHTH CAUSE OF ACTION seeks declaratory judgment and injunctive relief under the Administrative Procedures Act.

Interior's decision to accept certain parcels of property located within Madison and Oneida Counties into trust was arbitrary, capricious, an abuse of discretion and otherwise not in accordance with the law.

Although the Department considered certain issues with respect to National Grid's comments concerning easements necessary to operate and maintain the Company's gas and electric utility facilities, the Department failed to consider operational issues such as the right to engage in essential repairs and maintenance including the rights to trim both dangerous trees and other essential operating and maintenance activities on the Nation's land that directly abuts the Company's utility facilities. Failure to acknowledge National Grid's right to repair or maintain these properties could interfere with or incapacitate existing utility infrastructure used to serve the Nation's land and downstream customers.

Interior's failure to address these concerns and to impose such conditions on the New York Oneidas to ensure adequate regulation over National Grid's gas and electric utility easements, rights of way and franchise rights is arbitrary, capricious, an abuse of discretion and otherwise not in accordance with the law.

NINTH CAUSE OF ACTION seeks a declaration that the Interior's decision to take certain parcels into trust for the benefit of the New York Oneidas without adequately protecting National Grid's property rights in those parcels constitutes an impermissible taking without just compensation in violation of the Fifth Amendment to the United States Constitution.

National Grid, in order to fulfill its service obligations, has obtained certain easements, rights of way and franchise rights necessary to provide service to its customers.

Those rights constitute a property right for the benefit of the National Grid.

Absent necessary protections of those rights, National Grid will lose all beneficial use of those property rights when the parcels are taken into trust by the United States.

Such uncompensated takings violate the Fifth Amendment of the United States Constitution.

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#904644 --- 10/26/08 12:44 AM Re: Trust Lawsuit [Re: Rich_Tallcot]
Rich_Tallcot Offline
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Registered: 01/19/03
Posts: 5565
Loc: Greeneville, TN
PRELUDE
In as much as the Oneida trust application lawsuits have the same arguments as the Cayuga situation, I will present the points made. While the fee to trust process is founded entirely on a different basis than the Cayuga's lost land claim or the Oneida land claim still in the Second Circuit Court of Appeals, some of the same arguments come into play because the tribes have to show some kind of justification for their applications.

There are additional factors to consider in the Cayuga situation. They sided with the British in the American Revolution, the Cayuga have not had a presence here for 200 years, the 1926 International Tribunal encompassed all factions of the tribe - ruled the 1789, 1790, 1795 and 1807 transactions to be one contract and ordered Congress to pay $100,000 disparity to the Cayuga in Canada, which was only one of many final settlements. The Cayuga have a reservation in Canada and perpetual use right lands on the Cattaraugus Reservation.

Arguments in Oneida regarding the casino issue are also relative, because Cayuga's applications include use for gambling. Even Class II has to be approved in accordance with IGRA (Indian Gaming Regulatory Act) on eligible Indian lands.

While the Cayuga land claim was dismissed and is over, the tribal arguments for justifying placing lands into trust for them are similar. So there are compound arguments against the trust application procedures coupled with arguing against there justifications.

The Bureau of Indian Affairs (BIA) and Dept. of Interior (DOI) held hearings in both areas for months. Based on those hearings they issued a record of decision almost a year later, in the Oneida process, to accept over 13,000 acres into trust. Oddly enough, while they felt the input justified such a disruptive nature in May of 2008, they have refused to disclose the input justifications for their decision and, upon challenge in court, asked for an extension September 11, 2008 for the first hearing to justify their reasoning. The Bureau of Indian Affairs has agreed that the land will not go into trust while the appeals are pending, an agreement either side can cancel with 30 days' notice.

They have used this extension, not to validate their erroneous reasoning, but October 9, 2008 applied to the Second Circuit Court of Appeals for removal of all the Constitutional arguments against them by the plaintiffs. Obviously, upon reading the lawsuits against them, the Department of Interior realized it could not win in court against the Constitutional challenges being presented.

The newspapers reported three Constitutional challenges, which are in the State's lawsuit. If we win on any one of these points, we win the whole case. If we lose these arguments, there are still multiple issues to defeat it.

U.S.C. is United States Code, which is law passed by Congress. Title 25 deals with Indians, Section 465 deals with acquisition of lands, water rights or surface rights; appropriation; title to lands; tax exemption. Section 465 is the result of the Indian Reorganization Act (June 18, 1934) but the DOI regularly does not follow the law as it's written.

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#904645 --- 10/26/08 12:50 AM Re: Trust Lawsuit [Re: Rich_Tallcot]
Rich_Tallcot Offline
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Registered: 01/19/03
Posts: 5565
Loc: Greeneville, TN
Lawsuit by the State of New York, Oneida County and Madison County.

From the state's lawsuit: http://www.upstate-citizens.org/oneidas_lawsuit.pdf

The three complaints being challenged by the DOI are 1,2 & 17

The delegation of authority from Congress to the Bureau of Indian Affairs is unconstitutional. FIRST CAUSE OF ACTION 25 U.S.C. § 465 IS AN UNCONSTITUTIONAL DELEGATION OF LEGISLATIVE AUTHORITY

It is fundamental that Congress may not delegate its policymaking functions to an administrative agency in the absence of an "intelligible principle" that limits the agency's exercise of that authority.

Section 465 violates these precepts by giving the Secretary of the Interior unbounded discretion to acquire land "for the purpose of providing land for Indians." The statute contains no limiting standards. The regulations, which cannot in any event provide a standard where the statute contains none, are similarly lacking in any meaningful standard. Those regulations merely list factors that the Secretary should consider when taking land into trust, but place no boundaries upon that authority.
The delegation of unbounded discretion to the DOI is particularly offensive to the Constitution because the DOI is a federally mandated trustee of Indian lands. The lack of any statutory limits on the Secretary's exercise of discretion when deciding to take land into trust, when considered together with the DOI's institutional bias in favor of Indians, creates a decision-making process that is unbalanced and unfair.

As a result, Section 465 is an unconstitutional delegation of legislative authority, is in violation of the separation of powers principles contained in the Constitution, and is invalid.

The second also refers to the delegation of authority, this time as it relates to the Tenth Amendment in the Constitution. "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." SECOND CAUSE OF ACTION 25 U.S.C. § 465, AS APPLIED, VIOLATES THE TENTH AMENDMENT

The Tenth Amendment reserves to the States, or the People, those powers not granted to the United States by the U.S. Constitution.

The State has continuously exercised jurisdiction over its lands since the adoption of the U.S. Constitution, including the lands which are the subject of the Determination, and has never consented to the removal of such land from State jurisdiction.

The U.S. Constitution does not grant to the United States the authority to remove land from a State's jurisdiction for the purpose of providing such land to an Indian tribe without first obtaining the consent of the affected State.

The U.S. Constitution clearly enumerates those limited instances where the United States has the authority to remove lands from a State's jurisdiction. For example, Article I, Section 8, Clause 17 of the U.S. Constitution grants Congress the power "to exercise exclusive Legislation in all Cases whatsoever... over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings." (emphasis added). Similarly, no other provision of the U.S. Constitution authorizes the Secretary to remove the subject lands from the State’s jurisdiction without its consent.

The State has not consented to the Secretary's decision to remove the subject lands from its jurisdiction.

Article I, Section 8, Clause 3 of the U.S. Constitution confers upon Congress the power "to regulate "commerce ... with the Indian tribes" but regulation of commerce with Indian tribes does not extend to removal of land located within states from state and local jurisdiction.

Section 465 far exceeds the power granted to Congress to regulate commerce with the Indian tribes, is unauthorized by any other provision of the U.S. Constitution, and deprives the State of its sovereignty with respect to lands taken into trust.

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#904646 --- 10/26/08 12:55 AM Re: Trust Lawsuit [Re: Rich_Tallcot]
Rich_Tallcot Offline
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Registered: 01/19/03
Posts: 5565
Loc: Greeneville, TN
Lawsuit by the State of New York, Oneida County and Madison County.

The other complaint in the suit relates to the Indian Gaming Regulatory Act, which requires a two-step process. The state is arguing that the decision exceeds the authority of the DOI and that the decision cannot be made without the governor of the state and the secretary of the interior agreeing. SEVENTEENTH CAUSE OF ACTION THE DETERMINATION EXCEEDED THE SECRETARY'S STATUTORY AUTHORITY AND IS OTHERWISE NOT IN ACCORDANCE WITH LAW BECAUSE IT VIOLATES 25 U.S.C. § 2719(b) IN THAT IT PURPORTS TO TAKE LAND INTO TRUST FOR CLASS III GAMING WITHOUT THE CONSENT OF THE GOVERNOR OF NEW YORK

The OIN offers casino-type gaming at Turning Stone Casino and clearly intends to continue to offer such gaming at Turning Stone Casino if the subject land is taken into trust.

The land that the Secretary has determined to take into trust includes the land on which Turning Stone Casino is located.

Subject to certain limited exceptions, IGRA prohibits the Secretary from taking land into trust for the purpose of gaming after the October 17, 1988 enactment of the IGRA.

The only exception with any conceivable application to the OIN and its Turning Stone Casino requires the Secretary to determine that gaming on the subject land would be "in the best interest of the Indian tribe and its members," "not be detrimental to the surrounding community," and, crucially, requires the Governor of the State in which the gaming activity is to be conducted to concur with such determinations of the Secretary.

DOI guidelines mandate that such determinations regarding the advisability of gaming and efforts to obtain the concurrence of the Governor of the State in which the gaming activity is to be conducted occur independently from the notification process for land into trust applications prescribed by 25 C.F.R. § 151. See Office of Indian Gaming Management, Checklist for Gaming Acquisitions, Gaming-Related Acquisitions and IGRA Section 20 Determinations, dated March 2005, at 8.

The Secretary has not made the findings mandated by Section 2719(b) nor has he attempted to obtain the concurrence of the Governor of New York with respect to such findings as required by that section.

Instead, the ROD claims that "the casino is situated within the Oneida reservation on Indian lands as required by IGRA" evidently attempting to invoke Section 2719(a) which permits land to be taken into trust for gaming after 1988 if such "…lands are located within or contiguous to the boundaries of the reservation of the Indian tribe on October 17, 1988." The implication in the ROD – that Turning Stone Casino is located “within or contiguous” to lands that were a reservation of the OIN on October 17, 1988 - is fundamentally at odds with the DOI definition of Indian reservation contained in the regulations governing land into trust applications. Since the OIN is not recognized as having sovereignty over the casino property that land is not an Indian reservation under the DOI regulations.

As a result, the Secretary's decision to take land to be used by the OIN for casino type gaming is in clear contravention of IGRA and the DOI's own regulations and therefore exceeds the Secretary's statutory authority and is otherwise not in accordance with law.

The state will respond that the points are valid forcing the DOI to argue those issues before the rest of the complaints are addressed.

The request to dismiss the complaints that argue the constitutionality of the DOI decision is scheduled to be heard by Judge Lawrence Kahn in Albany on Nov. 7.

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#904815 --- 10/26/08 10:42 AM Re: Trust Lawsuit [Re: Rich_Tallcot]
grinch Offline
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Registered: 08/28/01
Posts: 4613
Loc: New York State
It will take sometime to digest all of that info. Perhaps it is best I leave it to the lawyers.

Weaving through some of the information, I noted references to "with the consent of the governor".

Can they take land into trust with his consent, or do they also need the legislature and the consent of the locals?

I would hope he looks way, way down the road and past the current financial crisis in the state and he does not agree with land into trust.

In my opinion agreeing to land into trust is a furthur weakening of State's Rights, and of our country.

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#904838 --- 10/26/08 11:44 AM Re: Trust Lawsuit [Re: grinch]
Rich_Tallcot Offline
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Registered: 01/19/03
Posts: 5565
Loc: Greeneville, TN
Originally Posted By: grinch
Weaving through some of the information, I noted references to "with the consent of the governor".

Can they take land into trust with his consent, or do they also need the legislature and the consent of the locals?
First: State law ten bars the Governor from relinquishing state sovereignty. So, legally, he can't do it. However, with the spineless legislature we have refusing to initiate impeachment proceedings against him for failing to do his job and party politics involved, we couldn't guarantee the state not to sell us out.

25 C.F.R. § 151.10(b) directs the Secretary of Interior to consider the tribe's need for the additional land. Now HERE is where we come into conflict with the State. At this point the state has already argued that the feds just cannot do what they are trying to do. There are multiple reasons why the tribe would not qualify under need.

But the state's reasoning relates to the casino on line 150 of their lawsuit. "Turning Stone Casino and related facilities, which are located on 225 acres of land, are more than sufficient to secure the economic self-sufficiency of the OIN and its members."

There is more to this than pro or anti casino. The state WOULD allow trust land to be established and even ASKED for it to be established in the Catskills for a now failed casino deal with the Mohawk tribe. If the feds only approved that 225 acres for trust, or even a thousand acres, I think we'd have to sue the state to challenge them to file a lawsuit to defend sate sovereignty. So you can be happy the feds tried to grab 13,000 acres. But you should be aware that the state would be willing to cut a deal if it meant casino money, even if it meant setting precedent in allowing trust land to be established in New York State. None of the 13 colony states have any trust lands. There are some lands designated as restricted fee as agreed to by those states. Technically there is a difference because those states agreed to a settlement. But such lands still come under tribal jurisdiction.

THAT is why the UCE, CERA , and CNYFBA lawsuits are so important! They are the only non-governmental entities filing lawsuits and as long as they have appeals ongoing in the courts, the DOI cannot take lands into trust. We HAD to do this as a safeguard to prevent the state from making a deal.

I note this prior to the state's argument number seven - which I have yet to post. Our arguments are in conflict with the State's.

Such lands are not accepted until they are logged in the federal register.

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#904881 --- 10/26/08 01:18 PM Re: Trust Lawsuit [Re: grinch]
Rich_Tallcot Offline
Senior Member

Registered: 01/19/03
Posts: 5565
Loc: Greeneville, TN
Originally Posted By: grinch
It will take sometime to digest all of that info. Perhaps it is best I leave it to the lawyers.
Feel free to ask questions. My objective here is to help people understand the arguments and expose people like Congressman Arcuri for being the idiots they are in promoting settlement by creating and expanding reservations and eliminating Constitutional rights.

Why on earth would anyone be opposed to the courts ruling on the laws as they are written when, if enforced, should result in equality under the law unless they didn't understand the arguments or were either a complete idiot or a corrupt bought off public official? Cong. Arcuri has HAD the arguments explained to him many times verbally and in writing by both myself and the President of CERA.

His opponent, Richard Hanna, recognizes the corrumption that has ensued can only be resolved through the courts Constitutional interpretation of the laws.

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#904888 --- 10/26/08 01:27 PM Re: Trust Lawsuit [Re: Rich_Tallcot]
Rich_Tallcot Offline
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Registered: 01/19/03
Posts: 5565
Loc: Greeneville, TN
Fee to Trust plain language: lawsuit by the state, Madison & Oneida Counties continued.

Abbreviations: Environmental Impact Study (EIS), Oneida Indian Nation (OIN), Memorandum Of Understanding (MOI), Indian Reorganization Act (IRA), Record Of Decision (ROD), Freedom Of Information Act (FOIA), Supreme Court Of The Unites States (SCOTUS)

Note: The Dawes Act of 1887 broke up reservations and issued land allotments to individual Indians in fee simple (private property) title. Many Indians became homeless because they couldn't pay the taxes and their lands were foreclosed upon. The Indian Reorganization Act of 1934 reversed that procedure by allotting federal public domain lands to tribes who could prove a need provided they accept the IRA and reorganize under it.

Note: Sherrill refers to the U.S. Supreme Court ruling whereby the Oneida tribe alleged that the lands they sold were still reservation in accordance with the 1794 Treaty of Canandaigua and they, therefore, did not have to pay taxes on lands purchased.

From the Sherrill case:
http://www.oyez.org/cases/2000-2009/2004/2004_03_855/
Question presented to the United States Supreme Court
Were land parcels once owned by the Oneida Nation, sold in 1807 but repurchased in the 1990s by the Nation's descedant tribe, part of an Indian Reservation and thus exempt from local taxes?

Conclusion of the United States Supreme Court
NO. In an 8-1 opinion delivered by Justice Ruth Bader Ginsburg, the Court held that standards of federal Indian law and federal equity precluded the Tribe from unilaterally reviving its ancient sovereignty over the land at issue. The Court pointed to the "longstanding, distinctly non-Indian character of central New York and its inhabitants" and the fact that regulatory authority over the land had been exercised by state and local government for 200 years. By giving up the land in the early 19th century, the Oneidas had "relinquished governmental reins and could not regain them through open-market purchases from current titleholders."

Based on this ruling in March of 2005, the Cayuga tribe's land claim was ruled invalid by the Second Circuit Court of Appeals. Thus, SCOTUS has ruled that this is not a reservation nor is it Indian Country. But the tribes have filed their trust applications under "on reservation" status.

Continuing with the state's arguments:

THIRD CAUSE OF ACTION 25 U.S.C. § 465 DOES NOT APPLY TO THE OIN
Section 465 was enacted as part of the IRA. That statute was intended to put a stop to allotment of Indian lands pursuant to the federal policy set forth in the Dawes Act of 1887, and to redress the loss of Indian land under the allotment system.

The provisions of Section 18 of the IRA condition application of the IRA on a vote of the affected Indians. When a majority of the adult Indians in a reservation "shall vote against application" of the Act, it "shall NOT apply." Following the adoption of the IRA, the Oneidas (as well as other New York Indians) voted to reject the IRA.

Therefore, trust benefits are not available to the OIN. By purporting to take land into trust for the OIN, the Secretary acted in excess of his authority and not in accordance with law.

Although the ROD cites 25 U.S.C. § 2202, which states that "the provisions of Section 465 of this Title shall apply to all tribes notwithstanding the provisions of Section 478 of this Title," it does not mention 25 U.S.C. § 2201, which defines "tribe" to mean "any Indian tribe, band, group, pueblo, or community for which, or for the members of which, the United States holds lands in trust."

Since the United States held no OIN land in trust prior to the time of the trust application, the OIN was not a "tribe" within the meaning of Section 2202, and Section 2201 therefore makes Section 465 unavailable to the OIN.

Section 465 does not authorize the Secretary to take land into trust for the benefit of the OIN for the separate reason that Section 465 authorizes the acquisition of lands only "for the purpose of providing land for Indians."

25 U.S.C. § 479 defines "Indians" for purposes of the IRA to "include all persons of Indian descent who are members of any recognized tribe NOW under federal jurisdiction." The OIN does not meet this requirement as the OIN was not a "recognized tribe now under federal jurisdiction" as of the date of the IRA's enactment in 1934. [This argument is being challenged in the Rhode Island case being heard by SCOTUS this fall.]

Notably, the ROD does not consider in a meaningful or complete way the absence of statutory authority as required by its own regulations. In light of the fact that there is no statutory authority for the Secretary to take land into trust for the OIN, the Determination was arbitrary and capricious, an abuse of discretion, in excess of the Secretary's statutory authority, and otherwise not in accordance with law.

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#904890 --- 10/26/08 01:40 PM Re: Trust Lawsuit [Re: Rich_Tallcot]
Rich_Tallcot Offline
Senior Member

Registered: 01/19/03
Posts: 5565
Loc: Greeneville, TN
Fee to Trust plain language: lawsuit by the state, Madison & Oneida Counties continued.

FOURTH CAUSE OF ACTION THE DETERMINATION WAS NOT IN ACCORDANCE WITH LAW BECAUSE IT WAS MADE CONTRARY TO PRIOR DOI POLICIES

The purpose of Section 465 is to enable landless Indian tribes or tribes with inadequate land resources to become economically self-sufficient. Consistent with this purpose, the DOI, historically, has taken the position that it will NOT take additional land in trust from tribal groups that HAVE the ability to manage their own affairs and who have been highly successful through their own efforts.

The OIN has earned hundreds of millions of dollars from its business activities, which clearly demonstrates its "ability to manage its own affairs" and the success of its own efforts.

The DOI's longstanding policy has been not to take land into trust unless marketable title may be conveyed to the DOI by the fee owner of the property. The OIN lands are subject to outstanding tax liens, which under well-established principles render title unmarketable. The Determination nonetheless proposes to take such land into trust. [This is an EXCELLENT point because even if the DOI claimed it accepted the land into trust, the feds will not accept it and log it into the federal register until the tribe can get title insurance on it. They cannot do so with liens against the land.]

Even if Section 465 was constitutional and available to the OIN (which it is not) the Determination is antithetical to the policies underlying that statute and adopted by the DOI.

FIFTH CAUSE OF ACTION THE DETERMINATION WAS INFECTED WITH BIAS TOWARD THE OIN IN VIOLATION OF THE PLAINTIFFS' CONSTITUTIONAL DUE PROCESS RIGHTS

Due process requires that the determination to take land into trust be made in an impartial manner. The manner in which the Determination was made reflected bias in favor of the decision to take the subject lands into trust.

For example, Malcolm Pirnie, which drafted the EIS upon which the Determination was based, was selected and compensated by the OIN. Such selection was memorialized in the MOA entered into during December 2005 by and between Malcolm Pirnie, the BIA, and the OIN. The State and Counties were not parties to the Memorandum of Understanding (MOA) nor asked or permitted to provide input in selecting the party to draft the EIS.

The selection process was run entirely by the OIN and its outside counsel. In an October 12, 2005 letter to Franklin Keel, Regional Director, BIA Eastern Regional Office, the OIN's outside counsel, Zuckerman Spaeder LLP, noted that Zuckerman Spaeder itself had both created the list of potential candidates for the project and conducted the initial screening and in-person interviews of the candidates it had identified. The letter states that "Malcolm Pirnie emerged as the best candidate selected for the project, subject to the [BIA's] concurrence."

The same letter requested that the DOI approve the selection of Malcolm Pirnie on the basis of background information on the four finalist candidates appended to the letter. Such background information consisted nearly entirely of printouts from publicly available websites.

The EIS's bias reflects the fact that the EIS is an advocacy piece that was commissioned by the OIN's outside counsel rather than an objective evaluation of the environmental consequences of taking the subject lands into trust as is mandated by NEPA and its implementing regulations. Many elements of the EIS were, in fact, agreed to between Malcolm Pirnie and the OIN prior to the start of the EIS process. On October 6, 2005, Malcolm Pirnie prepared an "outline" of the EIS which described the content of the EIS including the predetermined conclusion that there was "need" to take lands into trust on behalf of the OIN and that the "existing condition of [the subject] lands is the baseline going forward for impact assessment."

Additionally, the DOI ignored its obligations under FOIA. The DOI has acknowledged that its own regulations and FOIA require it to produce the documents upon which the EIS was based, and in fact the DOI accepted a check from the Plaintiffs in the sum of $9,540 for the production of such documents. Nevertheless, the DOI has yet to provide the documents upon which the EIS was based to the Plaintiffs.

The actions of the DOI in violation of FOIA further reflect the DOI and the BIA's bias in favor of taking the subject lands into trust. The DOI's failure to produce the requested documents deprived Plaintiffs of their due process rights to address the evidence submitted in support of the OIN's application.

The DOI's biased consideration of the OIN's land into trust application is consistent with the fact that the OIN dominated the EIS process by hiring a former DOI and DOJ official, whose official duties, among others, concerned the United States' involvement in litigation relating to the OIN.

The Secretary's analysis of the evidence and facts in reaching the decision was not fair, impartial, objective or reasonable. Accordingly, the Determination was arbitrary and capricious, an abuse of discretion, and otherwise not in accordance with law.

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#904900 --- 10/26/08 01:54 PM Re: Trust Lawsuit [Re: Rich_Tallcot]
Rich_Tallcot Offline
Senior Member

Registered: 01/19/03
Posts: 5565
Loc: Greeneville, TN
Fee to Trust plain language: lawsuit by the state, Madison & Oneida Counties continued.

SIXTH CAUSE OF ACTION THE DETERMINATION WAS MADE WITHOUT REGARD TO THE RELEVANT FACTORS UNDER 25 CFR PART 151

Defendants wrongfully applied the regulations in granting the application because the Defendants wrongfully characterized the OIN's land-into-trust application as an "on-reservation" request.

Section 151.10 applies only to land located within an "Indian reservation." The definitional section of the DOI's regulations applicable to land-into-trust application defines "Indian Reservation" as "that area of land over which the tribe is recognized by the United States as having governmental jurisdiction . . . ." The United States does not recognize the OIN as having governmental jurisdiction on any of the land that is the subject of the land into trust application, a fact that is clear from Sherrill.

In deciding that the OIN had no right to exercise tribal sovereignty on the subject lands, the Supreme Court in Sherrill held in substance that the land lacked reservation (and Indian country) status. The language of the Court's decision, which repeatedly characterized the reservation in the past tense, is entirely consistent with that conclusion.

Consequently, the application should have been treated under the OFF reservation regulation. The OFF reservation requires that greater weight be given to state and local concerns in assessing the application. In any event, the factors set forth in both sections militate against taking OIN land into trust. The Determination was therefore arbitrary and capricious, an abuse of discretion, and otherwise not in accordance with law.

My notes:
[Note: Whereas U.S.C. is United States Code and law as passed by Congress, C.F.R.'s are Code of Federal Regulations written by the bureaucracies themselves and are often changed or rewritten without Congressional oversight. They carry the weight of law but are often ignored by the bureaucracies that write them.]

[Note: 25 C.F.R. § 151.10(b) directs the Secretary of Interior to consider the tribe's need for the additional land. Now HERE is where we come into conflict with the State. At this point the state has already argued that the feds just cannot do what they are trying to do. There are multiple reasons why the tribe would not qualify under need.]

[Note: But the state's reasoning relates to the casino on line 150. "Turning Stone Casino and related facilities, which are located on 225 acres of land, are more than sufficient to secure the economic self-sufficiency of the OIN and its members." ]

[Note: There is more to this than pro or anti casino. The state WOULD allow trust land to be established and even ASKED for it to be established in the Catskills for a now failed casino deal with the Mohawk tribe. If the feds only approved that 225 acres for trust, or even a thousand acres, I think we'd have to sue the state to challenge them to file a lawsuit to defend sate sovereignty. So you can be happy the feds tried to grab 13,000 acres. But you should be aware that the state would be willing to cut a deal if it meant casino money, even if it meant setting precedent in allowing trust land to be established in New York State. None of the 13 colony states have any trust lands. There are some lands designated as restricted fee as agreed to by those states. Technically there is a difference because those states agreed to a settlement. But such lands still come under tribal jurisdiction. ]

[Note: 25 C.F.R § 151.10(e) directs the Secretary to consider the impact on the State and its subdivisions of the removal of the land from the tax rolls. The DOI Secretary ignored the state and subdivisions using solely the input from the BIA, which only represents the tribes.]

SEVENTH CAUSE OF ACTION THE DETERMINATION WAS MADE WITHOUT REGARD TO 25 C.F.R. § 151.10(b)

25 C.F.R. § 151.10(b) directs the Secretary to consider the tribe's need for the additional land. The ROD states that "a demonstration of necessity may take into account - economic need and may also consider the tribe's need for land to support self-determination and tribal housing."

The ROD contains no findings that support a conclusion that taking any amount approaching 13,003.89 acres of land into trust is necessary to satisfy any of these goals. Aside from general assertions such as that the Determination will "support tribal economic development," which is doubtless true whenever land is exempted from taxation and removed from local regulatory jurisdiction to which surrounding land held by non-Indians is subject, the ROD contains no particularized explanation for why the OIN "needs" to have 13,000+ acres of land taken into trust.

There is no reason why the OIN needs to, or should, enjoy the significant economic advantages over surrounding non-Indian businesses that come with having its land exempt from local taxes.

Turning Stone Casino and related facilities, which are located on 225 acres of land, are more than sufficient to secure the economic self-sufficiency of the OIN and its members. Upon information and belief, the enterprise value of Turning Stone Casino and related facilities was between approximately $2.15 and $2.60 billion as of December 31, 2006, which equates to approximately $2.2 to $2.6 million per enrolled member of the OIN and $6.3 to $6.7 million per OIN household.

Nor can tribal self-determination or housing justify the massive transfer of land into trust contemplated by the ROD. Together with the casino property, the land on which much of the OIN's governmental offices and housing for its members are located comprise slightly more than 1,000 acres.

The record does not support a finding that the OIN has need for the lands to be taken into trust. Therefore, the Determination was arbitrary and capricious, an abuse of discretion, and otherwise not in accordance with law.

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#904906 --- 10/26/08 02:07 PM Re: Trust Lawsuit [Re: Rich_Tallcot]
Rich_Tallcot Offline
Senior Member

Registered: 01/19/03
Posts: 5565
Loc: Greeneville, TN
Fee to Trust plain language: lawsuit by the state, Madison & Oneida Counties continued.

EIGHTH CAUSE OF ACTION THE DETERMINATION WAS MADE WITHOUT REGARD TO 25 C.F.R. § 151.10(e)
25 C.F.R § 151.10(e) directs the Secretary to consider the impact on the State and its subdivisions of the removal of the land from the tax rolls. Here, the Secretary failed to consider adequately this impact by simply claiming that the impacts of removing lands from the tax rolls are not significant when balanced with the benefits to the OIN of taking the lands into trust.
Significantly, the decision to take the OIN land into trust removes the land from the tax rolls of the localities. The decision was made without regard to the drastic consequences of this revenue loss. The combined annual anticipated loss of county, municipal and school taxes, resulting from the removal of all of the OIN parcels is estimated to be over $16.2 Million. This number does not take into consideration potential increases in the taxes on the subject parcels due to increases in tax rates and assessed value or increases resulting from future development and improvement of the property.

Given the OIN's demonstrated historical pattern of development, it is reasonable to assume it will continue to develop its properties profitably, and the loss of future tax revenue will be substantially greater in the future than is reflected by the current figures.

For example, OIN-owned properties represent, by value, approximately 48% of the taxable property in the Vernon-Verona-Sherrill Central School District. Such parcels represent about $10.2 Million in school district revenue annually.

Additionally, the total amount of acreage owned by the OIN in the Town of Stockbridge to be taken into trust alone constitutes approximately 14% of the Town's total acreage. The annual real property taxes (including school taxes) in Stockbridge that would be lost on these parcels is approximately $133,500.

The Town of Verona, where Turning Stone Casino is located, would be especially strongly impacted. The Town of Verona would experience an annual loss of over half of its total property tax levy.

The cumulative outstanding real property taxes on the OIN properties in Oneida County is over $46 Million, and the cumulative amount of delinquent taxes on the OIN properties in Madison County is $7.5 Million. The lost taxes represent a significant portion of the total tax revenues for the taxing authorities in question.

The tax effect is exacerbated by the unfair competitive advantage that the OIN would receive by having the land held in trust. Non-Indian business unable to compete may shut down, with an additional loss of tax revenues to the Counties in the form of lost property and sales tax.

The loss of taxes imposes the cost of local services used by OIN enterprises and members - schools, road and bridge maintenance and repair, police and fire protection - on a smaller group of non-Indian New Yorkers, increasing the cost for these services. Since the OIN receives the benefit of those services - e.g. Oneida children attend local schools, individual Oneidas and customers of OIN businesses use local roads and receive police and fire protection - the non-Indian community is footing the bill for these services for the OIN. This effect is particularly acute because in some cases, the demand for the services actually has increased as a result of OIN activity on OIN-owned land. For example, the Turning Stone Casino has resulted in dramatically increased traffic on local streets and higher demand for emergency services.

Further, the ROD gives undue credit to the OIN for those voluntary payments it sometimes chooses to make for municipal services. For example, the ROD refers to the OIN's provision of funds to the Verona Volunteer Fire Department through a "Voluntary Service Agreement." The ROD omits the fact that the OIN unilaterally changed the formula under which it made such payments to the Verona Volunteer Fire Department through the Voluntary Service Agreement. Such payments are extraordinarily important to the Verona Volunteer Fire Department as the Turning Stone Casino is over 1,000,000 square feet and over 20 stories tall and thus is by far the largest building in the Verona Volunteer Fire Department's service area.

Similarly, the ROD gives great weight to the OIN's "non-binding" commitment to continue paying for various services which it or its members use. The ROD ignores not only the history of the OIN's relationship with local governments but also that the OIN will lose its incentive to keep making voluntary payments after the subject lands have been taken into trust. Without justification, the ROD states that "it can reasonably be expected that the [OIN] will continue to pay local governments for services provided."

The ROD contains unwarranted conclusions with respect to mitigation of the direct revenue loss to Plaintiffs. One such conclusion is that any taxes paid by an OIN employee or vendor should be treated as payments made by the OIN for purposes of the ROD.

The ROD states that "[OIN] employees paid an estimated $5.55 million in local property taxes in 2004" and further that this amount is expected to be maintained or increase through 2011 if the subject lands are taken into trust. The ROD ignores the fact that many of the OIN's employees do not live in the Counties or the communities most directly affected by the Determination and therefore it is unreasonable to suggest that such governments are being made whole by property taxes paid by employees of the OIN.

The same unwarranted conclusion is implicit in the statement that "the [OIN] withheld and remitted $3.38 million in New York State income taxes from its employees in 2005." Moreover, the premise of the ROD's reliance on taxes paid by OIN employees - that the OIN is entitled to credit for taxes paid by others - is without basis.

Accordingly, the Determination was arbitrary and capricious, an abuse of discretion, and otherwise not in accordance with law.

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#904908 --- 10/26/08 02:11 PM Re: Trust Lawsuit [Re: Rich_Tallcot]
Rich_Tallcot Offline
Senior Member

Registered: 01/19/03
Posts: 5565
Loc: Greeneville, TN
Note: NEPA stands for the National Environmental Policy Act. http://www.epa.gov/compliance/nepa/index.html It is law, but the feds never comply with it.

Note: 25 C.F.R § 151.10(f) directs the Secretary to consider jurisdictional problems and potential conflicts of land use that may arise. Arguments referring to SCOTUS ruling in Sherrill point out that while the DOI claims trust status would not affect health, safety, rights of way nor conflict with surrounding areas, the state points out that the Oneida tribe has already and continues to affect everything mentioned in the negative. To a great degree, this is not the state's fault because federal district Judge Hurd repeatedly ruled in the tribe's favor. He ruled that the reservation still existed, since overturned by Sherrill. Then he ruled that even though the U.S. Supreme Court ruled that the tribe's fee simple property in Sherrill was taxable, that the municipalities could not foreclose on the property because the tribe had sovereign immunity. His rulings get overturned, but years worth of damage get done in the process with federal courts barring the state from action. Rulings set precedence until they are overturned.
But the state itself is as much to blame for not enforcing the laws that it does have the authority to enforce and blatantly refuses to.

Note: 25 C.F.R § 151.10(g) directs the Secretary to consider whether the BIA is equipped to discharge the additional responsibilities resulting from the acquisition of the land-in-trust status. The BIA can’t handle what it has and has been embroiled in billion dollar lawsuits for years.

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#904915 --- 10/26/08 02:20 PM Re: Trust Lawsuit [Re: Rich_Tallcot]
Rich_Tallcot Offline
Senior Member

Registered: 01/19/03
Posts: 5565
Loc: Greeneville, TN
Fee to Trust plain language: lawsuit by the state, Madison & Oneida Counties continued.

NINTH CAUSE OF ACTION THE DETERMINATION WAS MADE WITHOUT REGARD TO 25 C.F.R. § 151.10(f)

25 C.F.R § 151.10(f) directs the Secretary to consider jurisdictional problems and potential conflicts of land use that may arise. The Determination failed to consider adequately potential land use and other jurisdictional problems, as detailed more fully below and in the NEPA claim herein.

Taking the OIN's lands into trust results in an unworkable jurisdictional patchwork which the Supreme Court expressly sought to avoid in Sherrill. At the heart of the Court's decision in Sherrill is the concern that allowing tribally-owned land located randomly throughout communities in Central New York to be removed from State and local jurisdictions would fundamentally and irreparably injure the affected communities by disrupting the "governance of central New York's counties and towns." The Court in Sherrill was particularly concerned about the effects of the OIN's position on local zoning and land use controls.

The Court's language reflects a recognition that communities cannot be maintained without the ability to govern in a coherent and comprehensive fashion.

The DOI's land-into-trust regulations were enacted before the Supreme Court decision in Sherrill. As a result, the regulations are silent as to evaluating the checkerboard jurisdictional problems that were of central concern to the Supreme Court. The problems of checker-boarding are dismissed or outright ignored in the ROD.

In fact, the decision to take into trust hundreds of parcels scattered throughout Madison and Oneida Counties, which would institutionalize a patchwork of tribal land holdings, is an obvious effort to circumvent the types of concerns articulated by the Court in Sherrill. It is also fundamentally at odds with one of the core purposes of the IRA, namely, to consolidate Indian holdings.

The dispersed and non-contiguous character of OIN holdings creates a host of jurisdictional and regulatory problems.

First, the effectiveness of a body of regulatory law rests on the ability of the state or local government uniformly to enforce certain laws throughout a broad geographic area. To the extent taking land into trust removes a particular piece of land from the scope of regulatory law it may render the law ineffective as to surrounding land as well.

Second, granting the application may place OIN land beyond the reach of the State's comprehensive environmental protection program, frustrating an important New York State policy of environmental protection.

Third, placing OIN land into trust may render inapplicable to OIN lands a significant number of laws and regulations that are intended to protect the health and safety of guests and employees of business establishments, preventing the State from providing such protection to its Indian and non-Indian citizens alike.

It is impossible to design and implement a unified and coherent zoning and land use plan when randomly located parcels within the community are not subject to local land use laws and can be developed for uses inconsistent with the overall regulatory framework. To the extent that OIN land taken into trust status is exempt from zoning and other land use law, it poses a significant obstacle to the non-Indian communities’ legitimate land use planning. The effect is particularly acute on individual landowners whose property is located adjacent to non-conforming tribal use.

The Determination would similarly impair the ability of local officials to monitor and enforce compliance with health, building, fire, and safety code requirements and other state and local regulations designed to benefit and protect all citizens in the area. These include food handling laws, weights and measures, clean indoor air act (smoking restrictions), adolescent tobacco use prevention act, and bottle redemption and deposit. The inability to monitor and enforce compliance with these laws may pose risks for visitors, emergency responders, and surrounding property owners.

The ROD never comes to grips with these significant regulatory problems. For example, the ROD acknowledges that the OIN has not obtained building permits or abided by zoning regulations but excuses this behavior by stating that "overall, the [OIN's] uses are generally consistent with local zoning and the uses of adjacent non-[OIN] lands,' with no discussion of the fact that THIS IS SIMPLY NOT TRUE in a number of critical areas, such as Turning Stone Casino.

Specifically, Turning Stone Casino was constructed on agricultural land, forever changed this land and was not consistent with adjacent uses. The casino complex includes a 120,000 square foot gaming floor, an arena and a 20-story hotel. Upon information and belief, the casino complex was constructed without regard for state and local building, zoning, environmental or fire codes. Further, the structures pose unique challenges to local emergency service organizations. Upon information and belief, the local fire department, for example, is not experienced in dealing with fires in high rise structures and there is a serious question as to whether there is adequate water pressure in the area to provide sufficient water to the higher floors of the hotel in the event of a fire. The ROD fails to address these concerns, noting only that the OIN's construction was appropriate because it 'was a key aspect of an enterprise that is essential to the self-sufficiency' of the OIN.

The ROD similarly does not address in any serious way the impact of potentially removing OIN land from application of State and local environmental laws. In response to comments that the OIN would not be subject to State and local environmental laws if the subject lands were taken into trust, the ROD simply notes that "the Federal government supports tribal self-determination." The ROD additionally notes that the OIN presently voluntarily complies with certain environmental standards without describing the Secretary's reason, if any, for believing that the OIN would continue abiding by such standards following the subject lands being taken into trust.

Accordingly, the Determination is arbitrary and capricious, an abuse of discretion, and otherwise not in accordance with law.

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#904916 --- 10/26/08 02:27 PM Re: Trust Lawsuit [Re: Rich_Tallcot]
Rich_Tallcot Offline
Senior Member

Registered: 01/19/03
Posts: 5565
Loc: Greeneville, TN
Fee to Trust plain language: lawsuit by the state, Madison & Oneida Counties continued.

TENTH CAUSE OF ACTION THE DETERMINATION WAS MADE WITHOUT REGARD TO 25 C.F.R. § 151.10(g)

25 C.F.R § 151.10(g) directs the Secretary to consider whether the BIA is equipped to discharge the additional responsibilities resulting from the acquisition of the land-in-trust status.

While the Secretary acknowledges in the ROD that the DOI has historically had difficulty administering trust lands, the ROD discusses the issue for less than one page and concludes, disingenuously, that management will not be a problem with respect to the subject lands.

The primary justification for such conclusion is that the Determination will "impose limited additional responsibilities on the BIA" as the property is being acquired for the purpose of providing the OIN with "sovereign authority over its reacquired lands."

This assertion is, of course, entirely inconsistent with both the express and implied assertions throughout the ROD that DOI management of the subject lands will somehow mitigate the problems that taking the subject lands out of the Plaintiffs’ jurisdiction will cause the affected communities.

The Determination was arbitrary and capricious, an abuse of discretion, and otherwise not in accordance with law because the BIA is clearly ill-equipped to discharge properly the responsibilities inherent in acquiring over 13,000 non-contiguous acres in Central New York. The Eastern Regional Office of the BIA, located in Nashville, TN, is approximately 800 miles away from Central New York. The ROD does not address whether or how the BIA will discharge its responsibility to administer and superintend OIN trust lands in Central New York.

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#904920 --- 10/26/08 02:31 PM Re: Trust Lawsuit [Re: Rich_Tallcot]
Rich_Tallcot Offline
Senior Member

Registered: 01/19/03
Posts: 5565
Loc: Greeneville, TN
Fee to Trust plain language: lawsuit by the state, Madison & Oneida Counties continued.

ELEVENTH CAUSE OF ACTION THE DETERMINATION FAILED TO TAKE INTO ACCOUNT EXISTING EASEMENTS AND LEASES AND RIGHTS OF WAY

The ROD states that "placement of the [OIN's] lands into trust will not affect any valid existing rights-of-way." While this conclusory statement of law may be technically accurate it ignores the reality that the OIN has interfered with existing utility easements and also ignores the fact that the Determination does not require the OIN to waive its sovereign immunity with respect to the enforcement of existing easements or rights of way. As a result, it will be difficult or impossible for holders of easements or rights of way over the subject lands to enforce such easements or rights of way.

The inability to enforce utility easements and rights of way on the subject lands has created major public safety hazards in the past. For example, upon information and belief and as clearly discussed in comments from National Grid Corporation, in the fall of 2005, the OIN refused to grant the utility company National Grid access to a major natural gas pipeline that runs under an OIN-owned golf course until after conclusion of the golfing season. The OIN refused to grant access to such pipeline despite the existence of a valid easement and the fact that the utility company had determined, through remote inspection, that the pipeline was damaged. When National Grid was finally granted access to the pipeline in December 2005, it determined that the pipeline had been damaged by the OIN during the grading of its golf course or installation of a golf course drainage pipe. The Determination ignored the twin uncontroverted facts that the OIN failed to honor the easement rights of National Grid, and it failed to comply with New York's "Dig Safely" Program, designed to ensure that before any excavation is undertaken, underground utilities (such as pipelines) are marked out and not ruptured.

Similarly, without prior notice to National Grid, the OIN built a Heli-Pad and associated drainage installations in a location that encroached on one of National Grid's natural gas pipeline rights of way. Such construction was done without regard for National Grid's right of way or the danger of landing multi-ton helicopters in close proximity to a natural gas pipeline.

[Note: you see here why National Grid filed their own lawsuit. The state may mention problem areas, but fail to disclose the seriousness of the issue and also fail to protect National Grid's property rights.]

Upon information and belief, the OIN interfered with a City of Oneida water main that crosses several OIN parcels within a pre-existing, lawful 50 foot right-of-way. To protect water mains, New York State law requires prior notification to the water main operator by means of a one-call notification system of proposed excavation near a water main. The OIN has failed to notify the City of Oneida of OIN actions that would restrict City access to the water main for maintenance and that would subject the water main to possible damage. On one occasion the OIN threatened to excavate and cut off the water main; on another occasion OIN excavated and planned to place a fence on the water main right-of-way.

Upon information and belief, the City of Oneida also supplies sewer services to all properties within the City and maintains sewer line easements on OIN-owned property located in the City. To ensure the health and safety of all residents, these easements must be fully protected. An unregulated sewer system poses obvious public health and safety concerns.

Despite the ROD's conclusion that the Secretary's action will not alter easements and rights of way, the reality is that taking land into trust for the OIN will impair those rights in substantial part in light of the OIN's past posture and the sovereign immunity from suit enjoyed by the OIN and United States.

The Determination was also arbitrary and capricious, an abuse of discretion, and exceeded the Secretary's statutory authority because it failed to consider whether the OIN lands may be subject to existing easements, leases and rights of way or disregarded the existence of such easements, leases, and rights of way and fails to condition taking of the subject lands into trust upon the existence of an enforcement mechanism for such easements, leases, and rights of way, such as a waiver of sovereign immunity by the OIN and the United States.

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#904922 --- 10/26/08 02:38 PM Re: Trust Lawsuit [Re: Rich_Tallcot]
Rich_Tallcot Offline
Senior Member

Registered: 01/19/03
Posts: 5565
Loc: Greeneville, TN
Fee to Trust plain language: lawsuit by the state, Madison & Oneida Counties continued.

Abbr: Federal Environmental Impact Study (FEIS); National Environmental Policy Act (NEPA)

TWELFTH CAUSE OF ACTION THE DETERMINATION WAS ARBITRARY AND CAPRICIOUS, AN ABUSE OF DISCRETION, AND OTHERWISE NOT IN ACCORDANCE WITH LAW BECAUSE THE OIN HAD NOT SATISFIED OUTSTANDING TAX LIENS, AS REQUIRED BY 25 C.F.R. § 151.13

25 C.F.R. §151.13 mandates that prior to taking land into trust, the Secretary 'shall require elimination" of 'liens, encumbrances, or infirmities [that] make title to the land unmarketable." Further, it is Departmental policy not to accept into trust lands that are encumbered by tax liens.

[Note: That means all the taxes have to be paid up. The Oneida tribe has not done so and the DOI approved the trust applications anyway.]

There are outstanding tax liens on the OIN lands resulting from the OIN's refusal to pay real property taxes required by Sherrill. Such taxes are owed by the OIN and the liens relating to those taxes must be eliminated before the lands are taken into trust.

The ROD states that such tax liens have been "addressed" by the OIN's provision of letters of credit in favor of the Counties, the terms of which were unilaterally dictated by the OIN. The letters of credit did not "eliminate" the tax liens on the subject lands or make title to the subject lands "marketable" as 25 C.F.R. § 151.13 requires prior to the Secretary taking land into trust.

In fact, under New York law tax liens remain on land until the taxes are paid and the existence of such liens renders title unmarketable. Further, the letters of credit issued in favor of the Counties are highly restrictive and do not in any event come close to guaranteeing the full amount owed by the OIN to the Counties.

For example, an independently conducted 2005 valuation of the 225-acre lot that contains Turning Stone Casino estimated the value of such lot, as improved, to be $362.55 million. The Secretary has erroneously determined that the OIN will only be required to provide a letter of credit with respect to taxes due on the Turning Stone Lot based on a valuation of $22.5 million.
Because the Secretary did not require elimination of the tax liens on the subject lands or that the OIN provide marketable title to the subject lands as is mandated by 25 C.F.R. 151.13, the Determination was arbitrary and capricious, an abuse of discretion, and otherwise not in accordance with law.

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#904931 --- 10/26/08 02:48 PM Re: Trust Lawsuit [Re: Rich_Tallcot]
Rich_Tallcot Offline
Senior Member

Registered: 01/19/03
Posts: 5565
Loc: Greeneville, TN
Fee to Trust plain language: lawsuit by the state, Madison & Oneida Counties continued.

[Note: NEPA requires that planning documents must be unbiased and fully disclose all impacts. The BIA and DOI are not only overtly biased but their studies and records of decision border governmental racist racketeering. While the C.F.R. is only a regulation, NEPA is an act of law so it can hardly be disregarded.]

THIRTEENTH CAUSE OF ACTION THE DETERMINATION WAS ARBITRARY AND CAPRICIOUS, AN ABUSE OF DISCRETION, AND OTHERWISE NOT IN ACCORDANCE WITH LAW BECAUSE THE POTENTIAL ENVIRONMENTAL CONSEQUENCES OF TAKING THE LANDS INTO TRUST WERE IGNORED IN VIOLATION OF THE NATIONAL ENVIRONMENTAL POLICY ACT

The Determination failed to comply with NEPA. NEPA requires the Secretary to "take a hard look" at the environmental impacts and consequences of taking lands into trust.

The environmental review conducted by the DOI and the Secretary, as reflected in the FEIS issued in February 2008, erroneously and arbitrarily concluded that there would be no direct environmental impacts that would result from the transfer of lands into trust.

The superficial environmental review conducted by the DOI and the Secretary relied on faulty logic and incorrect assumptions to rationalize the Secretary's decision regarding the OIN's trust application, in violation of regulations implementing NEPA, which provide that "environmental impact statements shall serve as the means of assessing the environmental impact of proposed agency actions, rather than justifying decisions already made."

For example, the purported analyses of alternatives in the FEIS and the ROD rely on four "taxation/jurisdiction scenarios," two of which are: Property Taxes Not Paid and Dispute Continues and Casino Closes and All Enterprises Close. By accepting the draft EIS and FEIS for publication, BIA endorsed the use of these scenarios.

As the Plaintiffs made clear in their comments, the casino and all enterprises close scenario is a false "strawman." Indeed, the ROD itself repeatedly states, without explanation since none is needed, that the "Department disputes" it. Nonetheless, throughout the draft EIS and the FEIS, BIA relied on this scenario as the principal justification for discounting any alternative which would not result in at least 13,000 acres of land being taken into trust. Reliance on assumptions such as these in an EIS renders the EIS invalid and requires a new EIS or, at least, a supplemental EIS which uses rational assumptions and scenarios.

The Property Taxes Not Paid and Dispute Continues scenario is also used throughout the FEIS and the ROD (with no apparent "dispute" by the Department). The Property Taxes Not Paid and Dispute Continues scenario assumes that, despite the decision in Sherrill and the DOI's denial of all or part of the OIN's land-into-trust application (meaning that denied lands would be subject to taxation), the OIN will continue to refuse to pay legally owing taxes. The OIN's past, current and future refusal to pay taxes regardless of decisions of the Supreme Court and the DOI was an accepted factor in evaluating the impacts of any alternatives other than those which granted the OIN's request in its entirety. Reliance on the future illegality of an applicant's action is patently unreasonable in evaluating the impacts of a proposed action under NEPA.

The Property Taxes Not Paid and Dispute Continues scenario, which is a key part of the analyses in the FEIS and ROD, recognizes that the OIN has not obeyed, does not obey and will not obey laws: a recognition well founded on the OIN's demonstrated violation of land use, health, safety and environmental laws. Nonetheless, despite the recognition of the OIN's expected refusal to obey laws, the FEIS, as mitigation, expresses confidence that the OIN will obey federal law and will "consider" but not be bound to, requirements of state and local land use, health, safety and environmental laws.

Further, based on the OIN's incorrect assertion that its property was exempt from state and local regulatory laws, which has now been rejected by the Supreme Court in Sherrill, the OIN has NEVER complied with state or local land use or environmental laws NOR, in some cases, federal environmental laws and regulations. . For example, the OIN has recently constructed and commenced operation of a cogeneration plant near their Turning Stone Casino without having first obtained the necessary permits and approvals under the Clean Air Act. The OIN built Turning Stone Casino itself without first obtaining necessary permits and approvals or complying with applicable State and local laws. Similarly, upon information and belief, the OIN has constructed numerous golf courses without any permits or legally mandated environmental review.

In addition, upon information and belief, the OIN has violated other laws critical to the public welfare including dumping, wetlands, and storm sewer regulations, fire safety and building codes, and laws regulating the storage of gasoline.

Upon information and belief, based on past and ongoing rapid development of land by the OIN it is reasonably foreseeable that there will be continued development thereon. The suggestion that the transfer of the land into trust will not result in any changes entirely ignores this reality.

The record before the DOI and the Secretary shows that the transfer of lands into trust will have direct and significant adverse environmental impacts. The conclusion of DOI and the Secretary arbitrarily and capriciously ignored the demonstrated significant adverse environmental impacts of taking lands into trust in the record before them.

The Determination failed to consider proper alternatives that would mitigate environmental impacts and consequences, as required by NEPA. Accordingly, the Determination was arbitrary and capricious, an abuse of discretion, and otherwise not in accordance with law.

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#904939 --- 10/26/08 02:55 PM Re: Trust Lawsuit [Re: Rich_Tallcot]
Rich_Tallcot Offline
Senior Member

Registered: 01/19/03
Posts: 5565
Loc: Greeneville, TN
Fee to Trust plain language: lawsuit by the state, Madison & Oneida Counties continued.

FOURTEENTH CAUSE OF ACTION THE DOI FAILED TO CONSIDER CUMULATIVE IMPACTS OF THE TRANSFER AS REQUIRED BY THE NATIONAL ENVIRONMENTAL POLICY ACT

The ROD states that "because the [OIN] is proposing no change in land use or ground-disturbing activity as part of the Proposed Action, resource categories related to the physical environment (e.g., soils, groundwater, air, noise, wildlife, vegetation, wetlands, etc.) would not be subjected to unavoidable adverse impacts as a result of implementing the Proposed Action or one of the alternatives." In reaching this conclusion, BIA violated the express requirements of NEPA.

NEPA implementing regulations expressly require that an agency consider the direct and indirect effects of its action as well as the cumulative impacts of the action "when added to other past, present and reasonably foreseeable future actions [of any agency or person]."

The ROD improperly relies on the inaccurate conclusions of the FEIS that "there have not been significant adverse effects on environmental resources" as a result of OIN's past management of its lands without compliance with state - and, in some cases, federal - environmental requirements. In fact, the Plaintiffs have documented significant potential and actual adverse effects of such noncompliance on both OIN and non-OIN lands as a result of the OIN's noncompliance with state laws governing, inter alia, protection of wetlands, groundwater and surface waters and wildlife, air emissions, solid and hazardous waste regulation, and petroleum bulk storage and spill response. Among the known instances of OIN noncompliance resulting in adverse environmental effects are:

* Construction and operation of a major air pollution source with the potential to emit more than 150 tons per year of nitrogen oxide, without the required state and/or federal permit that would allow for monitoring of emissions that directly impact air quality on non-OIN lands, including the nearby Vernon-Verona-Sherrill Central School District campus.

* Construction activities related to the development of Turning Stone Casino causing permanent destruction or impairment of state and federal jurisdictional wetlands and consequential impairment of adjacent wetlands, ground and surface waters and wildlife habitat, on both OIN and non-OIN lands.

* The OIN practice of building demolition and burial of debris on-site without regard to appropriate disposal practices, posing a direct threat of contamination of groundwater on both OIN and non- OIN lands.

* The OIN's operation of numerous gas stations without the stringent oversight of state regulations governing the storage of petroleum, and without allowing state access for spill response, which poses a serious and imminent threat to groundwater quality on both OIN and non-OIN lands.

These past actions and others by the OIN resulting in adverse environmental impacts were required by NEPA to be considered by the DOI on a cumulative basis with the current transfer of land and change of jurisdiction.

In addition, the DOI completely failed to consider the foreseeable future actions by the OIN that must also be considered on a cumulative basis with the transfer of title. The DOI improperly accepts at face value the OIN's representations that there will be no change in the use of the land after transfer. To the contrary, the OIN has repeatedly expressed its intentions to continue to expand and diversify its economic activity, and these future actions on lands taken into trust will foreseeably result in environmental impacts on both OIN and non-OIN lands that NEPA requires the agency to consider.

Accordingly, the Determination was arbitrary and capricious, an abuse of discretion, and otherwise not in accordance with law.

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#904948 --- 10/26/08 03:02 PM Re: Trust Lawsuit [Re: Rich_Tallcot]
Rich_Tallcot Offline
Senior Member

Registered: 01/19/03
Posts: 5565
Loc: Greeneville, TN
Fee to Trust plain language: lawsuit by the state, Madison & Oneida Counties continued.

Abbr: Freedom Of Information Act (FOIA)

Note: Title 43 C.F.R. PART 2 is the Code of Federal Regulations covering the Department of Interior's requirements for complying with the Freedom of Information Act.

Note: 40 C.F.R. § 1506.6 2 is the Code of Federal Regulations covering additional requirements under the National Environmental Policy Act.

FIFTEENTH CAUSE OF ACTION THE DOI VIOLATED FOIA AND 43 C.F.R. PART 2

Plaintiffs requested under FOIA access to all documents and evidence submitted in regard to the OIN's land in trust application. The requested documentation contained the evidentiary basis upon which the DOI would render the Determination.

The ability of the Plaintiffs to exercise their constitutional rights to have notice and be heard relative to the OIN's land-into-trust application, required open and fair access to the documents submitted by the OIN in support of its application, which were reviewed and apparently accepted uncritically by the DOI in issuing the Determination.

Under FOIA, the DOI ordinarily is allowed 20 workdays from the date of receipt of a FOIA request to determine whether to grant or deny the FOIA request but is allowed to take an additional 10 workdays to collect and examine voluminous requests. More than 19 MONTHS after the initial FOIA request was submitted by Plaintiffs, Plaintiffs have YET to receive the requested FOIA documents.

As of the date of this Complaint, the DOI has been in receipt of a check in the amount of $9,540, DOI's estimated cost for the full production of the documents responsive to the FOIA request, for over fourteen months.

In May 2007, the FOIA coordinator for the BIA's Eastern Region Office informed Plaintiffs that the responsive FOIA documents were under review in the U.S. Solicitor's Office and would be provided to Plaintiffs in early June.

Thereafter, Plaintiffs had regular, repeated conversations with such FOIA coordinator, and her subsequent replacement, regarding the status of the document production in response to the FOIA request and, each time, Plaintiffs were assured that the Solicitor's Office was in the process of reviewing the documents and Plaintiffs would receive the documents shortly.

In response to Plaintiffs' frequent inquiries as to the status of the response that had already been paid for, on January 9, 2008 Plaintiffs received a letter from the Acting Director of the BIA's Eastern Region office informing Plaintiffs that the Solicitor's Office intended to complete its review by January 25, 2008.

In good faith, Plaintiffs have relied on the DOI's frequent and repeated promises to provide the documents requested.

By withholding these critical documents, Defendants substantially impaired the ability of Plaintiffs to provide meaningful comment on the draft EIS and the FEIS.

Defendants' conduct, by failing to turn over documents necessary to evaluate the land-into-trust application despite repeated requests and promises to do so, left Plaintiffs without a remedy as an administrative appeal would have been futile in that Defendants had continually maintained that all of the responsive documents were going to be produced and Plaintiffs had already paid for the document production.

Defendants' failure to provide Plaintiffs with the responsive documents pursuant to FOIA is a violation of FOIA and the DOI's own regulations.

Defendants' illegal failure to comply with Plaintiffs' requests presents particular problems with respect to the request for copies of Oneida Ordinances and Codes, which Plaintiffs have never had the opportunity to review. The EIS listed the Oneida Ordinances and Codes in support of DOI's conclusion that the land transfer and accompanying change in regulatory jurisdiction would have no environmental impact, but also expressly refused to provide any comparison between Oneida and New York State regulatory provisions. Defendants' reliance upon these materials in the Determination, and simultaneous refusal to provide them to Plaintiffs, deprived Plaintiffs of the opportunity to respond meaningfully to DOI's conclusions.

Defendants' acts and omissions in violating FOIA and the DOI's own regulations rise to the level of a constitutional violation inasmuch as that conduct deprived Plaintiffs of documentation and information as to which public access was mandated by law and such public access was necessary for Plaintiffs to exercise their due process rights meaningfully.

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#904953 --- 10/26/08 03:10 PM Re: Trust Lawsuit [Re: Rich_Tallcot]
Rich_Tallcot Offline
Senior Member

Registered: 01/19/03
Posts: 5565
Loc: Greeneville, TN
Fee to Trust plain language: lawsuit by the state, Madison & Oneida Counties continued.

SIXTEENTH CAUSE OF ACTION THE DOI FAILED TO DISCLOSE THE DOCUMENTS UNDERLYING THE ENVIRONMENTAL IMPACT STATEMENT AS IS MANDATED BY 40 C.F.R. § 1506.6

NEPA's implementing regulations mandate that any agency preparing an EIS "make environmental impact statements, the comments received, and any underlying documents available to the public pursuant to the provisions of [FOIA], without regard to the exclusion for interagency memoranda"

The DOI has violated FOIA by failing to produce "underlying documents" relevant to the EIS.

The DOI's failure to comply with FOIA, as is mandated is an independent violation of NEPA's implementing regulations and, further, frustrates the requirement that the Secretary solicit the views of local and state governments affected by a proposed land-into-trust transfer prior to ruling on such a request.

The Determination was arbitrary and capricious, an abuse of discretion, and otherwise not in accordance with law as the Determination was based on an EIS which was drafted in a manner inconsistent with NEPA and its implementing regulations.

This concludes the complaint filed by the State of New York, Madison County and Oneida County. The entire 60 page document can be read by clicking on this url:
http://www.upstate-citizens.org/oneidas_lawsuit.pdf

The nature of the action, venue, facts presented and reelief requested comprise 26 pages in addition to the arguments presented. The whole document is 60 pages. All I presented here were the arguments.

More Fee to Trust lawsuits to follow.

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#905021 --- 10/26/08 04:48 PM Re: Trust Lawsuit [Re: Rich_Tallcot]
Rich_Tallcot Offline
Senior Member

Registered: 01/19/03
Posts: 5565
Loc: Greeneville, TN
Lawsuit filed against the trust applications by
the Town of Verona, Town of Vernon, Abraham Acee, and Arthur Strife:
Found in entirety at http://www.upstate-citizens.org/CPvernon-verona-CM.pdf
All I present here are the claims for relief.

Note: While the state did argue against the feds right to just take state land, it FAILED to argue state preemption rights. That's the first argument filed by this lawsuit. In this they also argue the Tenth Amendment that the state argues in its second point and the Constitutionality of 465 that the state argues in its first point.

Note: 25 U.S.C. § 478 specifies that a tribe must accept the IRA to be qualified for the benefits, which include application for trust lands.

Note: Various arguments are the same as the state's, but the presentations vary Ex: this lawsuit points out that the provisions under the IRA trust benefits were extended to all tribes under the Indian Consolidation Act of 1983. Then it follows through noting that THAT act ONLY applied to tribes that HAD federal trust lands and wished to consolidate them. So it still doesn't apply to the Oneida or Cayuga tribes. The purpose of THAT act was to concolidate EXISTING trust lands.

FOR A FIRST CLAIM, Congress lacks the power to pass a law giving the U.S. Secretary of the Interior the authority to take sovereign land of the State of New York and remove it from that State's jurisdiction, and, in particular, Congress has no power to allow Federal officials to take such lands from one of the original 13 colonial States and remove such land from its jurisdiction and control without its consent.

New York State is one of the original 13 colonial states that adopted the U.S. Constitution in 1789, and at the time of and immediately following such adoption, there were no federally owned public lands or federally recognized Indian reservation land in the State of New York, including the lands the Defendant Secretary intends to take into trust that are the subject of this action.

While, pursuant to the so-called "Indian Commerce Clause" of the U.S. Constitution, Congress was delegated the power by the 13 colonial states to regulate commerce among the Indian nations, neither that clause nor any subsequent amendment to the U.S. Constitution empowered the Congress and/or any official of the U.S. Government to acquire land in any such colonial state so as to remove jurisdiction and sovereign control by such state over said land.

No state can be required to surrender sovereignty over any land within its borders and subject to its sovereign control and jurisdiction without its express consent, and New York State, and, in particular, the New York State Legislature, has not given its consent with respect to the land here in question. Under New York State's Constitution and separation of powers, only the Legislature is vested with the power to make major policy decisions such as this.

Powers not delegated by the U.S. Constitution to the U.S. Government nor prohibited by it to the states are reserved to the states or to the people, respectively. U.S. Constitution, Amendment X.

Under the New York State Constitution and laws enacted pursuant thereto, the Plaintiff Towns of Vernon and Verona are democratically-elected governmental entities subordinate to New York State but have the power under New York State law to enact local laws and regulations governing the health, safety and welfare of its inhabitants and people and entities acting or doing business within its borders and such towns are further empowered under the New York State Constitution and laws enacted pursuant thereto to levy property taxes on land within their borders.

If the Defendants' actions challenged herein are implemented, Plaintiffs Acee and Strife, who are taxpayers and citizens of New York State in the Towns of Vernon and/or Verona and who are eligible to vote to elect their state and town representatives, will be deprived of their right to have their elected officials fully carry out the responsibilities and duties for which they were elected.

If the Defendants' actions challenged herein are implemented, the Plaintiff towns will be illegally and unconstitutionally deprived of their power to exercise the control and taxing authority over lands within their borders which powers are given to them under New York State's laws and regulations.

Section 5 of the IRA is, therefore, an unconstitutional usurpation of power by the U.S. Government in violation of the 10th Amendment to the U.S. Constitution insofar as it applies to the State of New York, its political subdivisions and its citizens. It is in derogation of the rights, powers and sovereignty of the State of New York and its political subdivisions, including the Towns of Vernon and Verona, and is a violation and impairment of Plaintiffs Acee and Strife's right to vote and to have a proper "voice" in the policies to be adopted by their elected representatives in the Legislature of the State of New York, the Executive Branch of the State of New York, and the respective towns in which they reside.

Plaintiffs have no other adequate remedy at law.

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#905036 --- 10/26/08 05:32 PM Re: Trust Lawsuit [Re: Rich_Tallcot]
Rich_Tallcot Offline
Senior Member

Registered: 01/19/03
Posts: 5565
Loc: Greeneville, TN
Lawsuit filed against the trust applications by
the Town of Verona, Town of Vernon, Abraham Acee, and Arthur Strife:

FOR A SECOND CLAIM the provisions of Federal Law which Defendants have invoked to justify their actions, do not apply to land in the State of New York and, even if they otherwise did apply, they do not and were never meant by Congress to apply to the OIN which elected not to be governed under the IRA guidelines.

The Indian Reorganization Act of 1934 was enacted by Congress to reverse the policy of "assimilation" that had theretofore been official U.S. policy to Indians for at least the prior 50 years. Under the "assimilation" policy, the U.S. Government had sought to encourage Indians to shed their cultural ties and heritage and to become integrated into American society.

The Dawes Act gave the U.S. Government the authority to carve out from existing "reservations" under the control of the U.S. Government up to 160 acres of land to be thereafter allotted to individual Indians affiliated with the Tribe residing on the affected "reservation." At the time of the enactment of the Dawes Act, there was no land in New York State that was "reservation" land under the control or jurisdiction of the U.S. Government, nor were there any allotments made with respect to any such land in New York State.

The IRA authorized the Secretary of the Interior to restore any surplus in unalloted lands back to "reservation" status.

Under Section 5 of the IRA, the Secretary was authorized to take land into trust for the benefit of Indian tribes to help restore the identity of such tribes and to encourage their economic development and welfare.

Congress, however, did not intend to have the IRA apply other than to land or tribes which had previously been the subject of the allotment policy. The allotment policy had never been applied under the Dawes Act to the land which the Defendants intend to take into trust in this action.

By its very terms, the IRA applies only to tribes which, at the time of its enactment in 1934, were Federally recognized and under Federal jurisdiction. The OIN was neither Federally recognized nor under Federal jurisdiction in 1934 at the time of the enactment of the IRA.

[Note: KEY point here - the New York Oneida tribe was NOT federally recognized in1934! Why? Because, like the Cayuga, they were merely a dissident faction of the real tribe. The state, again, FAILED to bring this out in THEIR lawsuit. Why would the state not jump at the chance to have this gang derecognized from a list they were merely added to in 1980? Because then the state would lose the chance to sustain the illegal casino which donates to candidates and political parties. It CAN'T be with the prospect of getting a valid state compact because the state has jurisdiction NOW to close down the illegal operation. Until THAT is done, the tribe holds all the cards.]

[Note: The State used the casino as an example of why the Oneida tribe did not need any more in their seventh argument. The state's ninth argument notes that the casino has violated almost every land use, safety, and environmental law there is. The state's seventeenth argument makes the point that there is a two step process involved in approving lands into trust for casinos. But not ONCE did the state touch upon or mention Peterman v. Pataki (UCE's lawsuit) that ruled the casino illegal. It is the STATE that is at fault here for CREATING many of the problems we have by NOT enforcing existing laws under its OWN jurisdiction.]

Even if the IRA otherwise applied to OIN, Section 18 of the IRA, provided that any Indian tribe could opt NOT to have the provisions of the IRA applied to it. As the Defendants admit the OIN chose NOT to have the IRA apply to it.

The Defendants, however, cite a provision adopted in 1983 as part of the Indian Land Consolidation Act (25 U.S.C. § 2202) which they say "extended the provisions of Section 5 of the IRA to all tribes - Therefore, no statutory limitation on acquiring land into trust is applicable to the Nation's request."

The Defendants, however, OMIT the fact that the definition of "tribe" in 25 U.S.C. § 2201, which defines Indian tribe for the purposes of the Indian Land Consolidation Act, including 25 U.S.C. § 2202, means "any Indian tribe - for which, or for the members of which, the United States holds land in trust." The Defendants themselves admit in their ROD that they do not hold any lands in trust for OIN.

The Defendants' regulations which purport to implement their powers under are set forth in 25 C.F.R. Part 151. 25 C.F.R. § 151.3 requires that land may be taken into trust "when such acquisition is authorized by an act of Congress." Congress has not enacted legislation to authorize the U.S. Secretary of the Interior to take into trust the specific land here at issue.

The Defendants have, therefore, acted in excess of their authority and without any specific or proper delegation of authority in taking the land into trust in this case.

For the reasons set forth in this Complaint, the IRA, does not apply to the OIN and Defendants' actions, therefore, are illegal and without any basis in law, and Plaintiffs have no other adequate remedy at law.

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#905045 --- 10/26/08 05:45 PM Re: Trust Lawsuit [Re: Rich_Tallcot]
Rich_Tallcot Offline
Senior Member

Registered: 01/19/03
Posts: 5565
Loc: Greeneville, TN
Lawsuit filed against the trust applications by
the Town of Verona, Town of Vernon, Abraham Acee, and Arthur Strife:

FOR A THIRD CLAIM: Even if the statute were otherwise constitutional and applicable to the OIN, the unprecedented action taken by Defendants in removing over 13,000 acres of land from a State's jurisdiction is arbitrary, capricious, an abuse of discretion and not otherwise in accordance with law.

Even if foregoing arguments otherwise applied to New York State and to the land here in question, the decision by the Defendants to take the land into trust was nevertheless arbitrary, capricious and an abuse of discretion.

Much of the analysis in the Defendants' ROD is predicated and hinges on the erroneous assumption that the operation by OIN of the Turning Stone casino is legal, when, in fact, it is not.

Even if the subject lands could otherwise be taken into trust, that would not legalize OIN's operation of the casino at Turning Stone because, under IGRA, Indian gambling on land acquired in trust after IGRA's enactment is illegal.

Moreover, OIN does not qualify under for any of the exceptions to the prohibitions set forth in the Indian Gaming Regulatory Act. The Governor of the State of New York has made no conclusion with respect to the absence of a detrimental effect on the surrounding community from such gaming and the lands in question are not being taken into trust pursuant to the settlement of the land claim or as part of an initial Indian reservation or for the restoration of Indian lands.

The decision by Defendants inappropriately rewards unlawful behavior by perpetuating an ongoing flagrant violation of state and federal law.

The Defendants' actions would create a jurisdictional nightmare, resulting in the very confusing and chaotic situation that the U.S. Supreme Court said should be avoided in its 2005 decision in City of Sherrill.

The Defendants' actions are predicated on the assumption and/or assurances of the OIN that it will not seek to engage in further ground-disturbing activities or other activities incompatible with local land use and local governmental controls.

Whatever assurances, if any, the OIN has given or will give with respect to its future use of the land in question is not legally binding or enforceable such that OIN would, subsequent to the land being taken into trust, be free to undertake actions that are beyond the ability of the Plaintiff towns to prevent, control or regulate. See, In Re Gaming Ordinance of the Ponca Tribe of Nebraska (National Indian Gaming Commission dated December 31, 2007) (Tribe's promise not to engage in gambling if lands are taken into trust is neither legally binding nor enforceable when Tribe later sought to undertake such gambling).

If the subject lands are taken into trust, OIN would be free to undertake actions, activities and land usages that are incompatible with local zoning and land use regulations and beyond the reach of state and local authorities.

The land into trust statute was intended to benefit Indian tribes, but was not designed to establish enclaves that would give such tribes or members thereof an unfair economic advantage vis-à-vis other non-Indian taxpayer entities who operate small businesses in the same locality such as the individual Plaintiffs herein.

If the decisions of the Defendants herein are implemented, there would be nothing to prevent the OIN from owning and operating restaurants and taverns in direct competition with the individual small business owners who are Plaintiffs in this action, and the OIN could do so without having to comply with state and local laws regarding the operation of such businesses.
The decision of the Defendants is unprecedented in that it takes an enormous parcel of land in the middle of a populated area overwhelmingly inhabited by non-Indians that has been governed for over two centuries by other governmental entities and strips such governments from any further jurisdiction, control or regulation over said land.

For the reasons set forth, the actions of the Defendants are illegal, arbitrary, capricious, an abuse of discretion, and otherwise not in accordance with law and Plaintiffs have no other adequate remedy at law.

[The towns only made three arguments.]

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#905135 --- 10/26/08 06:55 PM Re: Trust Lawsuit [Re: Rich_Tallcot]
Rich_Tallcot Offline
Senior Member

Registered: 01/19/03
Posts: 5565
Loc: Greeneville, TN
Lawsuit filed against the trust applications
by the Central New York Fair Business Association, Citizens Equal Rights Alliance, New York State Assemblyman David R. Townsend, Oneida County Legislator D. Chad Davis, Oneida County Legislator Michael J. Hennessy, and Melvin L. Phillips.

Located at http://www.upstate-citizens.org/cera-complaint.pdf

FIRST CLAIM FOR RELIEF The Indian Reorganization Act of 1934 ("IRA") As applied in New York is a violation of 5 U.S.C. § 706. http://www.law.cornell.edu/uscode/5/706.shtml

The IRA is a federal public domain statute, that ONLY applies to federal lands. New York is an original colony where there are currently no federally owned public lands outside of defense installation and post offices.

The Indian Reorganization Act (IRA) requires that: "Title to any lands or rights acquired pursuant to this Act ... shall be taken in the name of the United States in trust for the Indian tribe or individual Indian for which the land is acquired, and such lands or rights shall be exempt from State and local taxation."

The plain meaning of Section 5 of the IRA was that ONLY the acquisition methods, as enacted by Congress, were delegated to the Secretary of the Interior to accept lands into federal trust status for an Indian tribe.

Until 1978, all lands restored to tribal sovereignty under the IRA were acquired by direct appropriation of Congress under the Property Clause. HOWEVER, interestingly, the federal government has admitted in legal briefs that BOTH the Property Clause AND the Enclave Clauses ONLY apply to Federal Indian Land. [Note: the lawsuit says "neither" when it should have read "only" ] Since there is NO Federal Indian Land in New York, the Secretary has NO power to take the land using the Property or the Enclave Clause.

The IRA EXPRESSLY limited to Congressional appropriations of NO MORE THAN two million dollars per year. The value of the lands in the instant case alone exceed two million dollars per year.

The IRA designates different requirements for acquired additional lands from "restored" lands either surplused or otherwise disestablished from a federal Indian reservation of federal public land reserved by treaty, executive order or act of Congress.

Restored lands regained their tribal territorial status as tribal land if it was deemed by the Secretary of the Interior to be IN "THE PUBLIC INTEREST."

As INTENDED by Congress in passing the IRA, subjecting the purchase of lands to be restored to Indian Tribes to express Congressional appropriations was and is an express LIMITATION on the discretion of the Secretary of the Interior required by the Property Clause that vests sole discretion in the management of property and acquisition of territory in the Congress.

The ONLY other clause of the Constitution of the United States that allows the federal government to purchase land is the Enclave Clause. Lands purchased under the Enclave Clause requires the consent of the Governor of the State for federal jurisdiction to vest. However, as admitted by the government and cited above, neither the Enclave clause nor the Property clause apply in New York.

No other clauses exist in the Constitution for the federal government to acquire ownership of land. Neither Section 5 of the IRA or 25 U.S.C. § 465 have been amended by Congress since 1934. Only two minor amendments for specific Indian tribes have been added.

Neither Section 5 of the IRA or 25 U.S.C. § 465 have been amended by Congress since 1934. Only two minor amendments for specific Indian tribes have been added.

As currently defined, the federal regulation that asserts the discretion of the Secretary of the Interior to accept lands owned in fee by the Tribe into federal trust status is 25 C.F.R.§ 151.3:

"Land acquisition policy. Land not held in trust or restricted status may ONLY be acquired for an individual Indian or a tribe in trust status when such acquisition is authorized by an act of Congress. No acquisition of land in trust status, shall be valid unless the acquisition is approved by the Secretary. (A) SUBJECT TO THE PROVISIONS CONTAINED IN THE ACT of Congress which authorize land acquisition, land may be acquired for a tribe in trust status: (1) When the property is located within the exterior boundaries of the tribe's reservation or adjacent thereto, or within a tribal consolidation area; or (2) When the tribe already owns an interest in the land; or (3) When the Secretary determines that the acquisition of the land is necessary to facilitate tribal self-determination, economic development, or Indian housing."

Expanding the methods by which lands can be conveyed into trust status violates the plain meaning of the appropriative restriction of Section 5 of the IRA.

Only Congress can extend the federal Indian trust to include lands purchased by or donated to an Indian tribe.

Other acts of Congress including 46 Stat. 1106, as amended by 82 Stat. 171, codified as 25 U.S.C. § 451 but not adopted as part of the Johnson-O’Malley Act or as part of the Indian Self-Determination and Education Assistance Act, cannot be interpreted by the Secretary of the Interior as authorizing an expansion of the Indian trust or his authority to accept donated or transferred Indian lands into trust status pursuant to 25 U.S.C. § 465.

Without the appropriative RESTRICTION of Section 5 of the IRA, the asserted authority of the Secretary of the Interior to accept lands into federal trust status as currently defined in 25 C.F.R. § 151.3 is unlimited.

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#905143 --- 10/26/08 07:06 PM Re: Trust Lawsuit [Re: Rich_Tallcot]
Rich_Tallcot Offline
Senior Member

Registered: 01/19/03
Posts: 5565
Loc: Greeneville, TN
Lawsuit filed against the trust applications
by the Central New York Fair Business Association, Citizens Equal Rights Alliance, New York State Assemblyman David R. Townsend, Oneida County Legislator D. Chad Davis, Oneida County Legislator Michael J. Hennessy, and Melvin L. Phillips.

FIRST CLAIM FOR RELIEF - [First Claim continued}

Lands taken into federal trust that are not purchased pursuant to Section 5 of the IRA CANNOT restore tribal sovereignty UNLESS the fee title to the lands and aboriginal title are assumed to become unified, which was REJECTED as in the Sherrill decision.

In fact, without a direct act of Congress to appropriate land for a tribe and remove it from state jurisdiction, the Secretary has NO authority under the IRA to remove lands from the State or local tax base.

The assumption that federal Indian common law authorized the Secretary of the Interior to accept lands into trust status was in reality, unilaterally promulgated by the Secretary of the Interior, (in 1980) WITHOUT the proper authorization from Congress.

In fact, these unilaterally expanded regulations that included accepting fee land of the tribes into federal trust status, were declared unconstitutional in South Dakota v. Babbitt (1996).

The new regulations for were promulgated in 2004 and revised again and published on May 19, 2008.

The Sherrill decision cites explicitly to these new regulations as "Recognizing these practical concerns, Congress has provided a mechanism for the acquisition of lands for tribal communities that takes account of the interests of others with stake in the area's governance and well-being" and as "sensitive to the complex interjurisdictional concerns that arise when a tribe seeks to regain sovereign control over territory."

These jurisdictional concerns are not addressed by the defendant's limited Final Environmental Impact Statement (FEIS), nor are they addressed in the Secretary of Interior's Record of Decision (ROD).

Before approving an acquisition, the Secretary must consider, among other things, the tribe's need for additional land; the purposes for which the land will be used; the impact on the State and its political subdivisions resulting from the removal of the land from the tax rolls; and jurisdictional problems and potential conflicts of land use which may arise.

The ROD states, "the purpose of the Proposed Action is to help address the Nation's need for cultural and social preservation and expression, political self-determination, self-sufficiency and economic growth by preserving a tribal land base and homeland."

Defendant's assert the authority to do this in the ROD pursuant to the new regulations. In effect, the defendants are asserting the authority to create a federal Indian reservation in New York where no federal Indian reservation has ever existed.

The President is expressly prohibited from making any more Indian reservations. See Indian Appropriations Act of 1919, Section 27, 41 Stat. 3, 34. Congress reserved to itself the exclusive right to make a new Indian reservation, but ONLY on lands under federal superintendence.

The interpretation by the Secretary contained in the ROD allowing him to carve out OIN land from the jurisdiction of the State of New York is arbitrary, capricious and not in accordance with law, for asserting the right to create federal Indian land for the Oneidas where it never existed.

Attempting to create federal Indian land for the first time in New York State violates the separation of powers. By subverting the exclusive authority of the Congress pursuant to the Property Clause and by subverting the sovereign authority of the State of New York by attempting to establish sovereign rights in the Oneidas that were not reserved to them before statehood, separation of powers is violated. This would clearly disrupt the settled governance of New York more than 200 years after the Oneidas conceded all of their sovereignty in the Treaty of Fort Stanwix (Fort Schuyler).

Section 18 states, "This Act shall NOT apply to any reservation wherein a majority of the adult Indians, voting at a special election duly called by the Secretary of the Interior, shall vote against its application." The OIN voted in compliance with the statute to REJECT the application of the IRA.

[Note: the lawsuit itself reads "shall" apply, not "shall NOT apply". It is another screw up.]

As indicated above, the IRA was implemented to remedy the allotment policy under the Dawes Act. There were no allotments made in New York under the Dawes Act and Congress did not intend for the IRA to apply to lands that were not subject to the Dawes Act.

There is no evidence to support the fact that OIN was a recognized tribe nor under federal jurisdiction at the time of the enactment of the IRA in 1934. Further, the OIN voted to opt out of the application of the IRA as indicated above.

25 C.F.R. §151.3 requires that land may be taken into trust only when the acquisition is authorized by Congress. There is no Act, statute or regulation in existence that authorizes the Secretary to take the land that is the subject of the ROD into trust on behalf of the OIN.

Therefore, the actions of the defendants are in excess of their authority, have no basis in law and must be enjoined by this court as Plaintiffs have no other adequate remedy at law.

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#905157 --- 10/26/08 07:16 PM Re: Trust Lawsuit [Re: Rich_Tallcot]
Rich_Tallcot Offline
Senior Member

Registered: 01/19/03
Posts: 5565
Loc: Greeneville, TN
Lawsuit filed against the trust applications
by the Central New York Fair Business Association, Citizens Equal Rights Alliance, New York State Assemblyman David R. Townsend, Oneida County Legislator D. Chad Davis, Oneida County Legislator Michael J. Hennessy, and Melvin L. Phillips.

SECOND CLAIM FOR RELIEF The Secretary's Misapplication of 25 U.S.C. § 465 in New York violates the 10th Amendment

Article I, § 1, of the U.S. Constitution provides that, "All legislative powers herein granted shall be vested in a Congress of the United States. . ." Congress writes the laws that delegate some of its lawmaking authority to the executive branch and its unelected bureaucrats. However, the literal hijacking of state sovereignty and jurisdiction by an administrative agency under the executive branch, as in this case, is an egregious overreach by an agency in derogation of the rights, guaranteed to states under the Constitution.

The U.S. Constitution, Amendment 10 states: "Powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."

The ROD states that it derives its power from the Indian Commerce Clause, U.S. Constitution, Article I, § 8, clause 3. The commerce clause is broad, but is not unlimited. The Indian Commerce clause's grant of authority to Congress does not empower the executive branch to remove land from sovereign state control, especially when the land in question is not designated as "Indian Country." New York has not consented to the cessation of its sovereign control over the lands in question. The Supreme Court in Sherrill expressly ruled that the subject lands are not Indian Country, and not under federal superintendence.

Therefore, the misapplication of Section 5 of the IRA and its implementing regulations is an unconstitutional power grab prohibited by the 10th Amendment to the Constitution as applied in states such as New York, that retained its right of pre-emption. 100. Plaintiff’s constitutional rights as state citizens are only protected if the sovereign authority of the State of New York is not disturbed.

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#905172 --- 10/26/08 07:28 PM Re: Trust Lawsuit [Re: Rich_Tallcot]
Rich_Tallcot Offline
Senior Member

Registered: 01/19/03
Posts: 5565
Loc: Greeneville, TN
Lawsuit filed against the trust applications
by the Central New York Fair Business Association, Citizens Equal Rights Alliance, New York State Assemblyman David R. Townsend, Oneida County Legislator D. Chad Davis, Oneida County Legislator Michael J. Hennessy, and Melvin L. Phillips.

THIRD CLAIM FOR RELIEF The Determination was made without proper compliance under 25 CFR Part 151

In its final Decision dated May 20, 2008 and filed May 23, 2008, DOI adopted the aforementioned Alternative I-Preferred Alternative. The ROD did not include an 82 acre parcel located in the Town of Stockbridge in Madison County.

In describing the proposed action, Defendants acknowledged that as a result of its decision to acquire the land in trust, such land would be subject to tribal sovereignty, and immune from New York State and local governmental taxation and regulations. See Record of Decision.

The ROD states that the authority for its actions were Section 5 of the IRA (25 U.S.C. § 465) and 25 C.F.R. Part 151.

The ROD also states that OIN "had been lawfully conducting Class III gaming at Turning Stone under IGRA" and that "the casino is situate within the Oneida Reservation on Indian lands as defined to comply with IGRA".

The ROD further states that no further approvals were required by the State or DOI with respect to the operation of said casino.

The ROD also wrongly asserts that the parcels of land to be acquired in trust were part of OIN's "reservation" and, therefore, not subject to the more stringent two-part review applicable to "off-reservation" lands to be acquired into trust under 25 C.F.R. § 151.11.

Section 18 of the IRA mandates that a vote of the adult members of the Tribes be taken to determine if the IRA is applicable to that tribe. The Oneidas and all the other New York Indians voted against the application of the IRA. A majority of the Oneidas voted again to reject the IRA in 1936. See Michael T. Smith, Memorandum to Director, Office of Indian Services, Bureau of Indian Affairs, dated Feb. 24, 1982 at 8. The ROD also acknowledges that OIN had "opted out" of the applicability of the IRA pursuant to 25 U.S.C. § 478, but then Defendants asserted that under the provisions of 25 U.S.C. § 2202, Section 465 of the IRA nevertheless applied to the OIN.

The ROD further asserted that OIN had 32 acres under its sovereign authority and admitted that no acres were held in trust.

Then Defendants wrongly cited its authority for said actions under Section 5 of the IRA (25 U.S.C. § 465) and 25 C.F.R. part 151 (ROD at 8). Defendant's also cited Article 1, Section 8, Clause 3; the Commerce Clause as the basis for taking New York sovereign land into trust on behalf of the OIN.

The Sherrill decision, which involved OIN, and specifically held that the lands that are the subject of this ROD are not "Indian Country" and are not considered reservation lands for purposes of sovereignty and taxation. In spite of that ruling, the Defendants wrongfully accepted this application as "on reservation" applications in order to avoid the stricter scrutiny under the two-part determination required for "off-reservation" applications.

The failure of the defendants to correct this erroneous action by the BIA is arbitrary, capricious, an abuse of discretion, and otherwise not in accordance with law.

The ROD also fails to provide support for the conclusion that 13,003.89 acres in trust is necessary to satisfy the tribes goal of self-determination and other similar needs of the tribe.

The ROD fails to adequately assess the impact this determination has on the local communities which is require by 25 C.F.R. 151.10 (e) and the NEPA analysis.

The ROD fails to adequately address the concerns of the local communities.

The ROD failed to adequately assess the viable alternatives of the commenters particularly the recommendation that a State Reservation be created which would prevent the unlawful taking of New York sovereign land.

The ROD is unlawful and unconstitutional and would allow the OIN to continue its unfair advantage over other tax paying businesses. The fact that OIN, once its lands are taken in trust, can enjoy unlimited commercial development on trust lands and not be subjected to the same taxes and regulatory burdens as neighboring businesses, creates an unfair advantage for OIN. This is tantamount to subsidized government off-shoring in the backyard of the local citizens which has caused and will continue to destroy the legitimate private tax base.

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#905193 --- 10/26/08 07:47 PM Re: Trust Lawsuit [Re: Rich_Tallcot]
Rich_Tallcot Offline
Senior Member

Registered: 01/19/03
Posts: 5565
Loc: Greeneville, TN
Lawsuit filed against the trust applications
by the Central New York Fair Business Association, Citizens Equal Rights Alliance, New York State Assemblyman David R. Townsend, Oneida County Legislator D. Chad Davis, Oneida County Legislator Michael J. Hennessy, and Melvin L. Phillips.

FOURTH CLAIM FOR RELIEF The determination is arbitrary and capricious, and abuse of discretion, and otherwise not in accordance with law because it fails to adequately assess the environmental impacts in accordance with the National Environmental Policy Act (NEPA)

Immediately after the Sherrill decision, the OIN applied to have 17,000 plus acres taken into trust by the Secretary of the Interior. Through DOI, the Bureau of Indian Affairs ("BIA") began its NEPA review. Some of the plaintiffs in the within action sued the DOI and the BIA calling for a NEPA analysis using the Programmatic Environmental Impact Statement ("PEIS") in order to give the numerous tribal applications fee to trust a more thorough analysis. A PEIS was deemed necessary, because all of the fee to trust claims had significant comprehensive legal questions due to the unique jurisdictional and constitutional problems posed by the attempted application of the IRA in New York. The District Court dismissed the plaintiffs' Complaint indicating in the court's total lack of understanding of the land status in New York after Sherrill. Interestingly, this is the same District Court Judge who's decision was overturned by the Supreme Court in Sherrill.

The DOI, through the BIA commenced with preparation of a Draft Environmental Impact Statement which was completed on November 24, 2006. The BIA conducted public comment sessions throughout the region. The OIN was clearly in control of the sessions and shipped bus loads of employees to the events all clad in bright read t-shirts emblazoned with "My job, my vote" and pre-printed signs supporting the land in trust efforts. Numerous individuals, public officials and citizens groups braved the madding crowd to present their time-limited comments after OIN representatives read a lengthy prepared statement which did not address NEPA issues.

Throughout the process, OIN and its representatives threatened the closure of the Casino as among one of the dire events that would take place if land were not placed in trust. This sentiment is echoed in the Final Environmental Impact Statement ("FEIS").

The DOI analyzed the various alternatives. The Preferred Alternative, Alternative I, called for 13, 086 acres of OIN's 17,000 acre request to be placed in trust, including (a) all of the 3,428 acres in Oneida County where OIN operates the Class III Turning Stone casino, gaming-related activities and hotel, five adjacent golf courses, and a Sav-On gas station and convenience store; (b) approximately 6,475 acres in both Madison and Oneida County, including the location of the OIN's government, health, education and cultural facilities and activities, member housing, hunting lands, numerous non-gaming Nation enterprises, including 12 Sav-On gas stations and convenience stores, a newspaper operation, three marinas and agricultural operations, and ( c) approximately 7,467 acres in both Oneida and Madison Counties which were characterized in the Final Environmental Impact Statement as "generally underdeveloped, active and inactive agricultural lands."

NEPA requires that "all agencies of the Federal Government shall include in every recommendation or report on major Federal actions significantly affecting the quality of the human environment, a detailed statement by the responsible official." When enacting NEPA, Congress:

"recogniz(ed) the profound impact of man's activity on the interrelations of all components of the natural environment, particularly the profound influences of population growth, high-density urbanization, industrial expansion, resource exploitation, and new and expanding technological advances and recognize(ed) further the critical importance of restoring and maintaining environmental quality to the overall welfare and development of man, (and) declare(d) that it is the continuing policy of the Federal Government, in cooperation with the State and local governments, and other concerned public and private organizations, to use all practicable means and measures, including financial and technical assistance, in a manner calculated to foster and promote the general welfare to create and maintain conditions under which man and nature can exist in productive harmony, and fulfill the social, economic, and other requirements of present and future generations of Americans."

Plaintiffs' interest in the environmental and economic well-being of the State of New York are among the interests to be considered before land is placed into trust. See TOMAC v. Norton, (D.C.Cir. 2006) (holding that a community group had standing to challenge the BIA's decision to take land into trust for the construction of a casino under the Indian Gaming Regulatory Act); see also Citizens Exposing Truth About Casinos v. Norton,(D.D.C. Apr. 23, 2004) (holding that a citizen's group had standing under the Indian Reorganization Act, to challenge a trust acquisition because the Act's implementing regulations provide for consideration of land use conflicts and NEPA requirements).

Under the Departmental Manual of the BIA for the application of NEPA in the fee to trust process, the BIA allows the tribes making the fee to trust applications to act as "lead agency" for the completion of the NEPA documentation. This presents an inherent conflict of interest in terms of producing a fair and unbiased report which takes into consideration the needs of the surrounding communities.

According to the BIA, they represent only the interests of the Indian tribe as defined by the Tribe submitting the fee to trust application.

This position of the BIA on NEPA is based on federal common law district court rulings that held that the state and local governments did not have standing to sue against the fee to trust applications of Indian tribes because they were not within the "zone of interests" to be protected by the IRA and 25 U.S.C. § 465.

The above district court opinions have been effectively overruled by Sherrill and the promulgation of the new regulations implementing 25 U.S.C. § 465.

As prepared, the Final EIS for the fee to trust applications of the OIN does not address any of the factors deemed part of the "justifiable expectations" of the local non-Indian residents or state and local governments identified in the Sherrill decision as disruptive.

The regulatory and cumulative jurisdictional impacts of removing thousands of acres from the sovereign control of state and local governments has not been adequately addressed.

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#905195 --- 10/26/08 07:50 PM Re: Trust Lawsuit [Re: Rich_Tallcot]
Rich_Tallcot Offline
Senior Member

Registered: 01/19/03
Posts: 5565
Loc: Greeneville, TN
Lawsuit filed against the trust applications
by the Central New York Fair Business Association, Citizens Equal Rights Alliance, New York State Assemblyman David R. Townsend, Oneida County Legislator D. Chad Davis, Oneida County Legislator Michael J. Hennessy, and Melvin L. Phillips.

FIFTH CLAIM FOR RELIEF Violation of 42 U.S. C. § 1981

Persons of Oneida Indian descent, like plaintiff Melvin Phillips, have been treated as white citizens of the State of New York since the 1930's. This means that they have enjoyed full rights as citizens of the United States and the State of New York. The only distinction in their rights as citizens is that the Oneidas residing on the 32 acre parcel in Madison County and State land at Marble Hill, Town of Vernon, Oneida County is that they are immune from state taxation.

The defendants assert the right under the ROD to rekindle the sovereignty of the Oneida Indian tribe in New York.

This action by the defendants will subject persons of Oneida Indian descent to tribal laws that do not [allow] the constitutional rights enjoyed by their white neighbors in violation of 42 U.S.C. § 1981. See Santa Clara Pueblo v. Martinez, 436 U.S. 49 (1978)

According to the defendants, persons of Oneida descent will again become wards of the federal government after being treated as full citizens of New York and the United States for more than 150 years.

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#905198 --- 10/26/08 07:53 PM Re: Trust Lawsuit [Re: Rich_Tallcot]
Rich_Tallcot Offline
Senior Member

Registered: 01/19/03
Posts: 5565
Loc: Greeneville, TN
Lawsuit filed against the trust applications
by the Central New York Fair Business Association, Citizens Equal Rights Alliance, New York State Assemblyman David R. Townsend, Oneida County Legislator D. Chad Davis, Oneida County Legislator Michael J. Hennessy, and Melvin L. Phillips.

THE SIXTH CLAIM FOR RELIEF Violation of 42 U.S.C. § 1983

The OIN initially applied for 17,130 acres to be placed into federal trust status pursuant to 25 U.S.C. § 465.

Just as in the Sherrill case, the OIN assert in the final EIS that several alternatives exist for allowing up to 35,000 acres of land that has been under state jurisdiction since before the Constitution of the United States went into effect may be placed into federal trust status.

The OIN claims for fee to trust are essentially the same land claim advanced in Sherrill.

Since the Sherrill decision, the underlying land claim case that asserted the possessory rights of the OIN was dismissed by the Federal District Court based on Cayuga Indian Nation v. Pataki, (2nd Cir. 2005)

The Cayuga decision expanded upon the Sherrill ruling to include all types of possessory land claims as being subject to the equitable considerations enumerated in Sherrill. The Cayuga majority concluded that the land claim of the Cayuga Indian Nation should be dismissed in its entirety and that the equitable considerations for the disruptive effects were also applicable against the United States as trustee of the Tribe.

The Cayuga majority concluded that the United States was bound to act on behalf of the private interest of the Cayuga Tribe and therefore it was not acting in its sovereign capacity to protect the public interest by asserting the land claim.

Similarly, the defendants, by asserting solely the interests of persons of Oneida descent to re-establish their long extinguished claims of tribal sovereignty is racially discriminating against every other resident of Madison and Oneida Counties in violation of 42 U.S.C. § 1983.

The Oneida Indians did not maintain tribal political relations with the United States. In fact, Oneida descendants had to petition the United States to protect their lands from alienation in U.S. v. Boylan,(2nd Cir. 1920) From the time of the Boylan decision, until the Indian Claims Commission case was withdrawn by the Oneidas, the United States did not recognize any Oneida tribe in New York. The OIN was not recognized under the C.F.R. part 83 regulations.

Instead, the Assistant Secretary assumed Raymond Halbritter had united all of the remaining descendants of the Oneida of New York. The only recognition was to Raymond Halbritter as a temporary leader. See attached letter of Ada Deer 1993.

The recognition of Raymond Halbritter as an Oneida Indian with special rights based upon his alleged descent, to rekindle the rights of an Indian tribe whose "embers of sovereignty had long grown cold," constitutes invidious racial discrimination by the defendants in violation of 42 U.S.C. § 1983 against all other residents in Oneida and Madison Counties.

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#905203 --- 10/26/08 08:01 PM Re: Trust Lawsuit [Re: Rich_Tallcot]
Rich_Tallcot Offline
Senior Member

Registered: 01/19/03
Posts: 5565
Loc: Greeneville, TN
Lawsuit filed against the trust applications
by the Central New York Fair Business Association, Citizens Equal Rights Alliance, New York State Assemblyman David R. Townsend, Oneida County Legislator D. Chad Davis, Oneida County Legislator Michael J. Hennessy, and Melvin L. Phillips.

SEVENTH CLAIM FOR RELIEF Violation of 42 U.S.C. § 1985

Deciding to place thousands of acres of land that has always been under state jurisdiction into Indian territorial status by taking it into federal trust can benefit only persons of Indian descent.

The United States DOI and the Department of Justice have been thwarted in their attempts to restore lands to the New York Indian tribes in land claim cases that have been litigated for more than 30 years and have cost taxpayers of New York millions of dollars to defend.

In the actual land claim case on the Oneida tribes, the Department of Justice ("DOJ") finally admitted it was developing a new policy with the BIA to deal with the Sherrill and Cayuga decisions. This new policy first appeared in January, 2008. It was used to moot the PEIS case filed by some of these plaintiffs. This new policy has now been incorporated into new regulations for 25 U.S.C. § 2719, Section 20 for land acquired after 1988. The new 25 C.F.R. Part 292 regulations should apply to this fee to trust ROD for the OIN.

Instead, the ROD says that all prior determinations are not subject to review in the ROD. The BIA has had a common policy or scheme to "create" a federal Indian reservation for the OIN in New York since 1935.

In 1935, Congress passed an act to make the site of Fort Stanwix (Fort Schuyler) a National Monument.

National Monuments are administered by the National Park Service, a branch of the DOI. Fort Stanwix was the site where the Treaty of 1788 was negotiated and entered into between the State of New York and the Oneida tribe. Fort Stanwix was the “carrying place” of the Oneidas. By portaging between the Mohawk River and Wood Creek, the Oneida could transport goods all over New York.

The right of passage over the waterways and over the carrying place was specifically reserved to the Oneidas in the Treaty of 1788. The federal Treaty of Canandaigua in 1794 acknowledged and further protected this right of passage. A right of passage is a vested right under the Public Trust doctrine that is enforceable as a federal reserved right for hunting, fishing and commerce.

This right of passage has been litigated as a reserved right in the Six Nations of the Iroquois confederacy. See F.P.C. v. Tuscarora Indian Nation (1960). The State of New York has not directly interfered with the right of passage of the Oneidas.

The Oneidas right of passage has been effectively rendered a nullity because the Oneidas have had no land base on which or from which to exercise the right of passage and the concomitant rights to conduct commerce or hunt and fish.

Neither of the federal common law reserved rights cases of United States v. Winans (1905) or Winters v. United States (1908), may be made applicable in New York without the Oneidas regaining a land base to which the right of passage may attach.

The DOI has systematically sued the State and the people of New York trying to connect a land interest of the Oneidas to this reserved right of passage.

Beginning in the late 1950's, the United States asserted that pursuant to the Federal Power Act of 1935, the state lands of the Tuscarora Indians could be considered a federal Indian reservation as defined in 16 U.S.C. § 792.

The very broad definition of "federal reservation" contained in 16 U.S.C. § 792 was applied in New York to Indian lands reserved by the State for the continued occupancy of descendants of the Iroquois Confederacy.

That same definition from 16 U.S.C. § 792 could be applied to Fort Stanwix National Monument to attach rights reserved to the Oneidas in the treaties to any lands the federal government can define as being under the resurrected sovereignty of the Oneidas.

Lands in fee title to the Oneidas that do not have tribal sovereignty rights attached cannot be used by the defendants to threaten the jurisdiction and sovereignty of the State of New York unless "converted" into a land classification that re-attaches the sovereign rights of the Oneidas.

From 1935 forward, this has been the scheme of the United States to rekindle the embers of sovereign rights in the Oneidas and other tribes, that have long ago grown cold. The scheme will continue until there is an enforceable means to limit the IRA as Congress intended in 1934.

The scheme violates the equal protection rights of all non-Indian citizens of New York.

[Note: That concludes the CERA & CNYFBA arguments.]

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#905212 --- 10/26/08 08:13 PM Re: Trust Lawsuit [Re: Rich_Tallcot]
Rich_Tallcot Offline
Senior Member

Registered: 01/19/03
Posts: 5565
Loc: Greeneville, TN
Lawsuit filed against the trust applications by the Stockbridge-Munsee Community Band of Mohican Indians can be found at
http://www.upstate-citizens.org/Stockbridge-Munsee-Complaint.pdf

Basically they claim rights to lands or rights to settlement monies for the Department of Interior taking what they claim are THEIR lands into trust for the Oneida tribe.

There is another lawsuit that was filed by the City of Oneida, but I do not have a copy of it.


Edited by Rich_Tallcot (10/26/08 08:14 PM)

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#905230 --- 10/26/08 08:36 PM Re: Trust Lawsuit [Re: Rich_Tallcot]
Rich_Tallcot Offline
Senior Member

Registered: 01/19/03
Posts: 5565
Loc: Greeneville, TN
Congressman Arcuri said he supports a comprehensive negotiated settlement between the parties.

His opponent Richard Hanna disagrees, stating "I oppose the [Cayuga Indian Nation's] application to put land in trust and favor the lawsuit by the counties in opposition to that. There should be no settlement. I respect the Cayugas, but there has to be a fair way to co-exist. We are all inter-dependent and should all contribute and get benefits."

I'm voting for Richard Hanna.

If you support the
Removal of Constitutional Rights
The Removal of the Clean Air Act
The Removal of the National Environmental Protection Act
The Removal of the Endangered Species Act
The Removal of state and local jurisdictions
The Removal of state and local tax base
And the Removal of a few hundred other acts (NO exaggeration
Limiting federal jurisdiction to the Major Crimes Act to fourteen crimes
Murder Manslaughter Kidnapping Maiming Felony under ch. 109A Incest
Assault with intent to commit murder Burglary
Assault with a deadly weapon Robbery
Assault resulting in serious bodily injury
Assault against a minor under 16 years old Arson
Felony crimes under (18 U.S.C. § 661)
Then Vote for Arcuri, because THAT is what HE wants.

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#905371 --- 10/27/08 06:47 AM Re: Trust Lawsuit [Re: Rich_Tallcot]
bluezone Offline
Diamond Member

Registered: 12/19/04
Posts: 32535
Loc: USA
The tribe must win all of these lawsuits or trust is denied?

Is that correct?


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

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#905645 --- 10/27/08 06:00 PM Re: Trust Lawsuit [Re: bluezone]
Rich_Tallcot Offline
Senior Member

Registered: 01/19/03
Posts: 5565
Loc: Greeneville, TN
Originally Posted By: bluezone
The tribe must win all of these lawsuits or trust is denied? Is that correct?

The "tribe" is out of the picture. They're begging the federal government to take state sovereign land, make it federal sovereign land and give the tribe sovereignty over it.

The lawsuits are filed against the federal government. The federal government has to win key rulings in every lawsuit, or trust land is denied. The case will be appealed by whomever loses. So until SCOTUS rules or denies an appeal from the Second Circuit Court of Appeals, the ruling will not be final. However, when it is final it will be final, UNlike numerous final negotiated settlements.

More specifically
The United States of America, individually, and as trustee of the goods, credits and chattels of the federally recognized Indian nations and tribes situated in the State of New York;

Is being sued by UCE and its officers,

And is being sued by The Stockbridge-Munsee Community band of Mohican Indians


DIRK KEMPTHORNE in his official capacity as Secretary of the U.S. Department of the Interior;

Is being sued by UCE and its officers,

Is being sued by the Town of Verona; the Town of Vernon; Abraham Acee; and Arthur Strife

Is being sued by the State of New York; Governor David A. Patterson; Attorney General Andrew M. Cuomo; Madison County; and Oneida County.

Is being sued by Niagara Mohawk Power Corporation d/b/a/ National Grid

Is being sued by the Central New York Fair Business Association; the Citizens Equal Rights Alliance; NYS Assemblyman David A. Townsend; Oneida County Legislator D. Chad Davis; and Oneida County Legislator Melvin L. Phillips.

Is being sued by the Stockbridge-Munsee Community band of Mohican Indians


P. Lynn Scarlett, in her official capacity as Deputy Secretary of the U.S. Department of the Interior and exercising her delegated authority as Assistant Secretary of the Interior for Indian Affairs;

Is being sued by UCE and its officers,

Is being sued by the State of New York; Governor David A. Patterson; Attorney General Andrew M. Cuomo; Madison County; and Oneida County.

Is being sued by Niagara Mohawk Power Corporation d/b/a/ National Grid

Is being sued by the Central New York Fair Business Association; the Citizens Equal Rights Alliance; NYS Assemblyman David A. Townsend; Oneida County Legislator D. Chad Davis; and Oneida County Legislator Melvin L. Phillips.


JAMES CASON, in his official capacity as the Associate Deputy Secretary of the U.S. Department of the Interior and exercising his delegated authority as Assistant Secretary of the Interior for Indian Affairs;

Is being sued by UCE and its officers,

Is being sued by the State of New York; Governor David A. Patterson; Attorney General Andrew M. Cuomo; Madison County; and Oneida County.

Is being sued by Niagara Mohawk Power Corporation d/b/a/ National Grid

Is being sued by Central New York Fair Business Association; Citizens Equal Rights Alliance; NYS Assemblyman David A. Townsend; Oneida County Legislator D. Chad Davis; and Oneida County Legislator Melvin L. Phillips.

Is being sued by The Stockbridge-Munsee Community band of Mohican Indians


The United States Department of Interior

Is being sued by UCE and its officers,

Is being sued by the Town of Verona; the Town of Vernon; Abraham Acee; and Arthur Strife


Philip N. Hogan, in his capacity as Chairman of the National Indian Gaming Commission;

Is being sued by UCE and its officers,


The National Indian Gaming Commission

Is being sued by UCE and its officers,


Michael B. Mukasey, in his capacity as Attorney General of the United States

Is being sued by UCE and its officers,

Is being sued by the Town of Verona; the Town of Vernon; Abraham Acee; and Arthur Strife


Franklin Keel, Eastern Regional Director, Bureau of Indian Affairs,

Is being sued by The State of New York; Governor David A. Patterson; Attorney General Andrew M. Cuomo; Madison County; and Oneida County.

Is being sued by Niagara Mohawk Power Corporation d/b/a/ National Grid

Is being sued by the Central New York Fair Business Association; the Citizens Equal Rights Alliance; NYS Assemblyman David A. Townsend; Oneida County Legislator D. Chad Davis; and Oneida County Legislator Melvin L. Phillips.


James T. Kardatzke, Eastern Regional Environmental Scientist;

Is being sued by the Central New York Fair Business Association; the Citizens Equal Rights Alliance; NYS Assemblyman David A. Townsend; Oneida County Legislator D. Chad Davis; and Oneida County Legislator Melvin L. Phillips.


Arthur Raymond Halbritter, as a real party in interest as the Federally Recognized Leader of the Oneida Indian Nation.

Is being sued by the Central New York Fair Business Association; the Citizens Equal Rights Alliance; NYS Assemblyman David A. Townsend; Oneida County Legislator D. Chad Davis; and Oneida County Legislator Melvin L. Phillips.

I'm not sure who the City of Oneida sued.

You may need to print this off for a scorecard - lol

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#905993 --- 10/28/08 02:32 AM Re: Trust Lawsuit [Re: Rich_Tallcot]
bluezone Offline
Diamond Member

Registered: 12/19/04
Posts: 32535
Loc: USA
Thanks for all the information.

It is interesting that the taxpayers are the ones that foot the bill for this from all aspects of this scam. Taxpayers lose when NY state refuses to enforce the tax collection from the tribal run business, fail to enforce the laws, allow land to be "given" away. Congress should retract the right of tribal casinos.
_________________________
"OUR COUNTRY IS IN MOURNING, A SOLDIER DIED TODAY."

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#906998 --- 10/29/08 08:46 AM Re: Trust Lawsuit [Re: Rich_Tallcot]
bluezone Offline
Diamond Member

Registered: 12/19/04
Posts: 32535
Loc: USA
No Trust land in NY.
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"OUR COUNTRY IS IN MOURNING, A SOLDIER DIED TODAY."

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#909004 --- 10/31/08 01:18 PM Re: Trust Lawsuit [Re: Rich_Tallcot]
Rich_Tallcot Offline
Senior Member

Registered: 01/19/03
Posts: 5565
Loc: Greeneville, TN
Originally Posted By: Rich_Tallcot
Congressman Arcuri said he supports a comprehensive negotiated settlement between the parties.

His opponent Richard Hanna disagrees, stating "I oppose the [Cayuga Indian Nation's] application to put land in trust and favor the lawsuit by the counties in opposition to that. There should be no settlement. I respect the Cayugas, but there has to be a fair way to co-exist. We are all inter-dependent and should all contribute and get benefits."

I'm voting for Richard Hanna.

If you support the
Removal of Constitutional Rights
The Removal of the Clean Air Act
The Removal of the National Environmental Protection Act
The Removal of the Endangered Species Act
The Removal of state and local jurisdictions
The Removal of state and local tax base
And the Removal of a few hundred other acts (NO exaggeration
Limiting federal jurisdiction to the Major Crimes Act to fourteen crimes
Murder Manslaughter Kidnapping Maiming Felony under ch. 109A Incest
Assault with intent to commit murder Burglary
Assault with a deadly weapon Robbery
Assault resulting in serious bodily injury
Assault against a minor under 16 years old Arson
Felony crimes under (18 U.S.C. § 661)
Then Vote for Arcuri, because THAT is what HE wants.

Richard Hanna proves to be a true politician before even being elected.

I have just sent this to his campaign web site. Lets see how fast he can flip flop AGAIN?

He tells us that he supports the court process in the trust applications and OPPOSES settlements. THEN, in the other end of the district, claims he can work out a SETTLEMENT with the tribes if they're willing to negotiate. He blasts Arcuri for not being able to work out a deal and states:

"If Mr. Halbritter is willing to negotiate, I'm confident that I am much more qualified to bring all parties together and bring this long process to a successful conclusion."

%$#!@ TWO of the lawsuits challenge Halbritter's position and authority to even FILE a trust application because he was removed from office BY THE TRIBE before our corrupt Congressman Boehlert made a deal with Ada Deer and had him proclaimed CEO spokesman. We can FINALLY get this to the U.S. Supreme Court.

The casino was ruled illegal by every court in the state and even SCOTUS rejected Halbritter's plea to overturn the state court rulings. We can FINALLY get this to the U.S. Supreme Court.

We are where we WANT to be because ONLY the courts can issue an absolute FINAL ruling. Neither the tribes nor the feds like the looks of our lawsuits and they KNOW they can't win.

Hanna's a much bigger IDIOT than I thought. He just LOST my vote!

If Hanna gets elected all he'll end up doing is dragging things out before we end up right back where we are. Hanna doesn't "GET IT" that the ONEIDA lawsuits are the precedent setter. He also obviously doesn't understand states rights, preemption rights, or what the laws say or the Constitution. We can FINALLY get this to the U.S. Supreme Court.

Arcuri doesn't get it EITHER. But at least Arcuri had resigned to the fact that consideration of giving the tribe twenty billion dollars and ten thousand acres, which could be expanded upon with future applications, was not considered negotiating.

I have opposed Arcuri because he was always in favor of settlement. But at least he told us that to our face.
Arcuri no longer opposes the lawsuits. It's obvious that Hanna DOES. He's another - tell 'em what they want to hear to get their votes and do just the opposite!

With Hanna switching his position flip flopping from one side of the district to the other, I have just flip flopped my vote to ARCURI. He may be another Boehlert, but at least he always OPENLY opposed us.

http://www.uticaod.com/election2008/x1197767530/Nation-disputes-congressional-candidates-claims
Utica Observer Dispatch
Nation disputes candidates' claims
________________________________________
By BRYON ACKERMAN
Observer-Dispatch
Posted Oct 30, 2008 @ 11:14 PM
Last update Oct 31, 2008 @ 09:53 AM
________________________________________
The Oneida Indian Nation conducted a media phone conference Thursday to dispute comments made by the 24th Congressional District candidates about the difficulty of negotiating with the Oneida Indian Nation.

During the conference, Oneida Indian Nation Vice President of Communications Peter Golia said he primarily was concerned with comments made during a News 10 Now debate that occurred more than three weeks ago.

Golia said he wasn’t trying to attack either candidate, but the candidates' comments seemed to be in line with an underlying idea that "you can’t negotiate with Indians."

"That's just not true," Golia said.

At the debate, U.S. Rep. Michael Arcuri, D-Utica, and Republican challenger Richard Hanna, a businessman who lives in Cooperstown, talked about trying to negotiate with Oneida Indian Nation Chief Executive Officer Ray Halbritter about the issue of placing land into federal Indian trust.

Hanna criticized Arcuri during the debate for allowing the land-into-trust issue to go to court instead of resolving it.

Arcuri responded later in the debate.

"In order to negotiate, you need parties who are willing to negotiate," Arcuri said. "And frankly, in reference to the Oneida negotiation, Ray Halbritter was just not willing to negotiate."

Hanna then responded to Arcuri.

"It seems fascinating to me that it's taken 20 years to figure out that Ray Halbritter doesn’t want to negotiate ... with Oneida County or the state," he said.

Golia said the Oneida Indian Nation negotiates on many issues all the time and was negotiating about the land-into-trust issue until the federal Interior Department decision in May to place 13,004 acres into trust. The federal decision resulted in lawsuits against the decision.

Jordan Karp, Arcuri's campaign manager, responded to the Oneida Indian Nation’s comments about Arcuri\'s statements from the debate.

"I think the congressman stands by his word," Karp said.

Hanna responded to the Oneida Indian Nation comments in an e-mailed statement.

"It was Mike Arcuri who said his negotiations failed with the Oneida Nation and Ray Halbritter," Hanna said. "If Mr. Halbritter is willing to negotiate, I’m confident that I am much more qualified to bring all parties together and bring this long process to a successful conclusion."

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#917192 --- 11/13/08 09:40 AM Re: Trust Lawsuit [Re: Rich_Tallcot]
bluezone Offline
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Registered: 12/19/04
Posts: 32535
Loc: USA
Paterson needs to enforce the laws before he asks NY'ers for more money.



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

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#921782 --- 11/20/08 05:29 AM Re: Trust Lawsuit [Re: Rich_Tallcot]
bluezone Offline
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Registered: 12/19/04
Posts: 32535
Loc: USA
The tribes have many hurdles.
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#927967 --- 11/30/08 03:48 PM Re: Trust Lawsuit [Re: Rich_Tallcot]
bluezone Offline
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Registered: 12/19/04
Posts: 32535
Loc: USA
Other counties to push for Raids.
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"OUR COUNTRY IS IN MOURNING, A SOLDIER DIED TODAY."

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#971850 --- 01/31/09 09:49 PM Re: Trust Lawsuit [Re: Rich_Tallcot]
Rich_Tallcot Offline
Senior Member

Registered: 01/19/03
Posts: 5565
Loc: Greeneville, TN
Justice Scalia's opinion in Adarand v. Pena

I join the opinion of the Court, except Part III C, and except insofar as it may be inconsistent with the following: In my view, government can never have a "compelling interest" in discriminating on the basis of race in order to "make up" for past racial discrimination in the opposite direction. See Richmond v. J. A. Croson Co., 488 U.S. 469, 520 (1989) (Scalia, J., concurring in judgment).

Individuals who have been wronged by unlawful racial discrimination should be made whole; but under our Constitution there can be no such thing as either a creditor or a debtor race.

That concept is alien to the Constitution's focus upon the individual, see Amdt. 14, §1 ("[N]or shall any State . . . deny to any person" the equal protection of the laws) (emphasis added), and its rejection of dispositions based on race, see Amdt. 15, §1 (prohibiting abridgment of the right to vote "on account of race") or based on blood, see Art. III, §3 ("[N]o Attainder of Treason shall work Corruption of Blood"); Art. I, §9 ("No Title of Nobility shall be granted by the United States").

To pursue the concept of racial entitlement--even for the most admirable and benign of purposes--is to reinforce and preserve for future mischief the way of thinking that produced race slavery, race privilege and race hatred. In the eyes of government, we are just one race here. It is American.

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#972403 --- 02/02/09 01:30 PM Re: Trust Lawsuit [Re: Rich_Tallcot]
bluezone Offline
Diamond Member

Registered: 12/19/04
Posts: 32535
Loc: USA
United We Stand!!!!!!!!!!!
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"OUR COUNTRY IS IN MOURNING, A SOLDIER DIED TODAY."

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#1001328 --- 03/30/09 12:02 PM Re: Trust Lawsuit [Re: bluezone]
bluezone Offline
Diamond Member

Registered: 12/19/04
Posts: 32535
Loc: USA
divided we fall
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#1159971 --- 03/15/10 11:46 PM Re: Trust Lawsuit [Re: Rich_Tallcot]
Rich_Tallcot Offline
Senior Member

Registered: 01/19/03
Posts: 5565
Loc: Greeneville, TN
Notice:

CERA / CNYFBA has a lawsuit against the Oneida trust process. They are holding an open forum Tuesday night, which will be tonight by the time you read this.

CITIZENS EQUAL RIGHTS ALLIANCE (CERA), CENTRAL NEW YORK FAIR BUSINESS, INC. AND MICHAEL HENNESSEY ARE HOLDING AN OPEN FORUM TO DISCUSS THE AMENDED COMPLAINT ON THE RECORD OF DECISION AND THE STATUS OF IT IN LIGHT OF JUDGE KAHN'S DECISION OF MARCH 1ST, 2010.

THE forum which is open to the public is being held Tuesday March 16th, 7:30 at the Vernon Town Office Building Vernon, 4305 Peterboro Rd., New York.

Our legal advisor Lana Marcussen from Arizona will be presenting the various issues surrounding the decision and the status from our point of view.

ALL IS NOT LOST AND IF YOU THINK SO BASED ON JUDGE KAHN'S RULING ON THE MOTION FOR PARTIAL DISMISSAL YOU NEED TO ATTEND ESPECIALLY IF YOU ARE AN ELECTED OFFICIAL IN A DECISION MAKING CAPACITY!

If you need directions – do a mapquest request
http://www.mapquest.com/directions

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#1160976 --- 03/18/10 10:22 AM Re: Trust Lawsuit [Re: Rich_Tallcot]
bluezone Offline
Diamond Member

Registered: 12/19/04
Posts: 32535
Loc: USA
the fact that seneca falls has to dissolve due to the cayuga tribes illegal cig operations should reinforce that trust be denied
_________________________
"OUR COUNTRY IS IN MOURNING, A SOLDIER DIED TODAY."

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#1161148 --- 03/18/10 05:20 PM Re: Trust Lawsuit [Re: bluezone]
grinch Offline
Senior Member

Registered: 08/28/01
Posts: 4613
Loc: New York State
Hey Dick:

I know you posted something on the census quite some time ago. While this does not belong on this thread I am curious.

Race question. Seems to identify every race on the face of the earth except those of us born in the USA.

I am thinking of answering that question by checking "other"

Penning in "American Native".

If I remember correctly you said you did something similar on another such form.

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#1161215 --- 03/18/10 07:20 PM Re: Trust Lawsuit [Re: grinch]
Rich_Tallcot Offline
Senior Member

Registered: 01/19/03
Posts: 5565
Loc: Greeneville, TN
Originally Posted By: grinch
Hey Dick:

I know you posted something on the census quite some time ago. While this does not belong on this thread I am curious.

Race question. Seems to identify every race on the face of the earth except those of us born in the USA.

I am thinking of answering that question by checking "other"

Penning in "American Native".

If I remember correctly you said you did something similar on another such form.
I always check "other" and write in "human".

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#1161232 --- 03/18/10 07:31 PM Re: Trust Lawsuit [Re: grinch]
bluezone Offline
Diamond Member

Registered: 12/19/04
Posts: 32535
Loc: USA
Originally Posted By: grinch
If I remember correctly you said you did something similar on another such form.


I think you are referring to his new york state fair entrance episode
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"OUR COUNTRY IS IN MOURNING, A SOLDIER DIED TODAY."

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#1161239 --- 03/18/10 07:34 PM Re: Trust Lawsuit [Re: Rich_Tallcot]
Rich_Tallcot Offline
Senior Member

Registered: 01/19/03
Posts: 5565
Loc: Greeneville, TN
PS: Knowing the census BS, if you write in "American Native" they will ID you as a "Native American" anyway. All that will do is allow the tribe more federal funding.

One does not have to prove what race they are or verify anything on a census form. I make it fun.

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#1161251 --- 03/18/10 07:38 PM Re: Trust Lawsuit [Re: Rich_Tallcot]
Rich_Tallcot Offline
Senior Member

Registered: 01/19/03
Posts: 5565
Loc: Greeneville, TN
PPS: Having flashbacks - wow that was a long time ago - like ten years ago during the last census. I even remembered the web site. http://www.checkother.com/

You have a good memory.

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#1161400 --- 03/19/10 06:24 AM Re: Trust Lawsuit [Re: Rich_Tallcot]
grinch Offline
Senior Member

Registered: 08/28/01
Posts: 4613
Loc: New York State
Thanks for the web site.

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#1162075 --- 03/20/10 11:35 PM Re: Trust Lawsuit [Re: Rich_Tallcot]
Rich_Tallcot Offline
Senior Member

Registered: 01/19/03
Posts: 5565
Loc: Greeneville, TN
Originally Posted By: Rich_Tallcot
Notice:
CITIZENS EQUAL RIGHTS ALLIANCE (CERA), CENTRAL NEW YORK FAIR BUSINESS, INC. AND MICHAEL HENNESSEY ARE HOLDING AN OPEN FORUM TO DISCUSS THE AMENDED COMPLAINT ON THE RECORD OF DECISION AND THE STATUS OF IT IN LIGHT OF JUDGE KAHN'S DECISION OF MARCH 1ST, 2010.

THE forum which is open to the public is being held Tuesday March 16th, 7:30 at the Vernon Town Office Building Vernon, 4305 Peterboro Rd., New York.


Here is a news article covering the forum in Vernon followed by a more in depth audio interview with Lana Marcussen that preceeded the forum meeting.

As she explains we are actually excited in having the rulings made because this is one case that will actually be argued based on the merits. We'll have this case wrapped up before the Supreme Court within three years.

One reason I think Judge Hurd will likely reverse his position of these being federal reservation lands is because the Second Circuit already ruled they were state lands. No, I'm not referring to Sherrill.

Hawaii v. OHA is at least the third SCOTUS ruling that said the feds cannot take state sovereign land without the state's consent.

Furthermore, Congress cannot authorize the Sec. of Interior to do what Congress does not have the power to do itself.

The IRA is constitutional. But it does not apply here because there are not and never were any federal public domain lands.

Under these set of facts, it is highly unethical for any public official to try and negotiate away New York State sovereignty.

That is ESPECIALLY directed at Oneida County Executive Picente.



http://www.wibx950.com/LocalNewsHeadlines/tabid/11470/newsid13176/41693/mid/13176/Default.aspx
CERA Attorney: Land-into-Trust Litigation NOT DEAD! "We don't want Picente screwing you behind your backs!"

TALKING Land-into-Trust Litigation, against the Oneida Indian Nation; the message from the Citizens Equal Rights Alliance to the people of Vernon is:

"We Have Not Lost!"

Legal Consultant Lana Marcuseen says there is still a huge constitutional question pending in the courts, of whether the secretary of the interior can take the Oneida's land out of state jurisdiction AT ALL, she says the U.S. will have to answer that question next Wednesday, March 24, 2010.

Marcussen told those who attended her informational meeting in Vernon last night "We don't want the county executive screwing you behind your backs...I think it's completely unethical for any official of the state of NY to be talking about conceding sovereignty when we have a constitutional question pending over whether the federal government has any right to take the sovereignty of NY away."

Oneida County Executive Tony Picente says, "I have never done anything unethical to the people of Oneida County and those statements show the great divide on this issue, and the fact that certain people don't want to be reasonable and civil."

Citizens Equal Rights Alliance is fighting to have other constitutional claims against the Oneida Nation land-into-trust decision reconsidered.

Listen to the eight minute, post-meeting interview with Lana Marcussen and WIBX News Reporter Jenn Ringrose. (Below)

Audio interview link with Lana Marcussen It takes a couple minutes to load.
http://www.wibx950.com/LinkClick.aspx?fileticket=8XSHfhXzocc%3d&tabid=11470

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#1162534 --- 03/22/10 10:53 AM Re: Trust Lawsuit [Re: Rich_Tallcot]
bluezone Offline
Diamond Member

Registered: 12/19/04
Posts: 32535
Loc: USA
Originally Posted By: Rich_Tallcot

Oneida County Executive Tony Picente says, "I have never done anything unethical to the people of Oneida County and those statements show the great divide on this issue, and the fact that certain people don't want to be reasonable and civil."


and the one sided deal picente made with ray was reasonable...only from the tribes side
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"OUR COUNTRY IS IN MOURNING, A SOLDIER DIED TODAY."

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#1162571 --- 03/22/10 11:55 AM Re: Trust Lawsuit [Re: bluezone]
Dinky Dau Offline
Member

Registered: 01/12/09
Posts: 304
Loc: Confused

I'm NOT looking to start a feud,But i would like to ask a question.

A big question seems to be can the Feds Take State land.

If the state can take any land under eminent domain. ( Yours or mine ).

Can the Feds take state land under Eminent Domain as well?

If the Feds can claim eminent domain would that not allow the feds to hold said land in trust for the Tribes?


Under the supreme court ruling even historical land marks can now be taken by eminent domain.
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Charter Member: Beaughko Dinky Dau Advisory Society

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#1162617 --- 03/22/10 01:42 PM Re: Trust Lawsuit [Re: Dinky Dau]
SilverFox Offline
Senior Member

Registered: 11/19/00
Posts: 6483
Loc: Waterloo
I think there is a legal technicality because NYS is one of the original 13 colonies. My understanding is that the orginal 13 colonies that became states have a unique legal status that the rest of the states don't have. They maintained a "sovereign" status and NYS lands are sovereign to NYS. Because of this status the state treaties with the Indians also have a special status of Sovereign to Sovereign government. Because of this status the Federal government should not be able to take NYS lands into trust, etc. unless NYS agrees to it. Unfortunately, too many of our politicians are prone to ignorantly go along with things without sufficient thought to the long term consequences.

Rich is the expert and perhaps he can explain this better than I have.
_________________________



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#1162682 --- 03/22/10 04:33 PM Re: Trust Lawsuit [Re: SilverFox]
Dinky Dau Offline
Member

Registered: 01/12/09
Posts: 304
Loc: Confused
Silver i think you are right. However Eminent Domain would not be dependent on treaties.
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#1162692 --- 03/22/10 04:38 PM Re: Trust Lawsuit [Re: Dinky Dau]
SilverFox Offline
Senior Member

Registered: 11/19/00
Posts: 6483
Loc: Waterloo
Would Eminent Domain take president over NYS's sovereign status dating back to colonial days? Any one know?
_________________________



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#1162731 --- 03/22/10 06:36 PM Re: Trust Lawsuit [Re: Dinky Dau]
bluezone Offline
Diamond Member

Registered: 12/19/04
Posts: 32535
Loc: USA
Originally Posted By: Dinky Dau
A big question seems to be can the Feds Take State land.

Originally Posted By: Rich Tallcot
Hawaii v. OHA is at least the third SCOTUS ruling that said the feds cannot take state sovereign land without the state's consent.

Originally Posted By: Dinky Dau
If the state can take any land under eminent domain. ( Yours or mine ).

Originally Posted By: bluezone
then I guess the state has a right to take back all state "reservations" and collect all taxes and enforce all NYS laws

Originally Posted By: Dinky Dau
If the Feds can claim eminent domain would that not allow the feds to hold said land in trust for the Tribes?


Originally Posted By: bluezone
have the tribes not benefited many times over with their illegal cigs sales and you want to give them more?
how much do we "owe" japan for their attack at pearl harbor?
Let the british give them their land as they sided with them and lost

Originally Posted By: Dinky Dau
Under the supreme court ruling even historical land marks can now be taken by eminent domain.

Originally Posted By: bluezone
Supreme Court???
since when does the tribes listen to those rulings......Sherrill / Carcieri rulings should have shut the tribes operations down

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

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#1162817 --- 03/22/10 10:38 PM Re: Trust Lawsuit [Re: SilverFox]
Rich_Tallcot Offline
Senior Member

Registered: 01/19/03
Posts: 5565
Loc: Greeneville, TN
From Article 1 Section 8 clause 17 of the U.S. Constitution.

To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of particular States, and the Acceptance of Congress, become the Seat of the Government of the United States, and to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings;--And

Surely if the Congress needed the consent of the particular states to procure a seat of government for the new nation and if it needed consent of the Legislature of the State in which it purposed to purchase and build forts, arsenals etc for the National Defense it is difficult to reason that the Congress has any authority to take land from a State for a tribe or any other purpose without the consent of that state's legislature.

Congress can not delegate authority or authorities it simply does not have and has never had to the Sec. of the Interior or any other entity. Regulations should not trump the United States Constitution but then when is the last time anyone in DC actually read the Constitution - especially anyone at Interior.

Congress has authority over federal lands. As such, they had and have authority to pass and follow through on the Indian Reorganization Act. Remember, the purpose of this Act was to compensate tribal Indians that became homeless as a result of the Dawes Act. It was a good Act and it is a good Act. It applies to any states that have federal public domain lands, which included all the states affected by the Dawes Act. As such it is constitutional. That is why all challenges to its constitutionality have been defeated.

But the colony states do not and never did have any federal public domain lands.

In CERA's lawsuit, we do not assert that a constitutional defect exists in the IRA. Plaintiffs assert that the Secretary has no authority under 25 U.S.C. § 465 to create a federal Indian reservation or federal Indian land in New York. At this point, no land has been taken into trust under 25 U.S.C. § 465 for the OIN.

When the Secretary misinterprets a law enacted by Congress like the IRA, to confer upon himself a power that Congress itself does not possess, his action is not only ultra vires but it also violates separation of power principles by treating the State of New York as if it were a federal territory of the United States. This is a violation of federalism. Congress does have the authority to buy land for Indians. Congress itself does not have the authority to restore sovereignty over the land it has purchased by withdrawing the land from state jurisdiction. See Hawaii v. Office of Hawaiian Affairs, 129 S.Ct 1436 (2009).

Eminent domain refers to the power possessed by the state over all property within the state, specifically its power to appropriate property for a public use. In some jurisdictions, the state delegates eminent domain power to certain public and private companies, typically utilities, such that they can bring eminent domain actions to run telephone, power, water, or gas lines. In most countries, including the United States under the Fifth Amendment to the Constitution, the owner of any appropriated land is entitled to reasonable compensation, usually defined as the fair market value of the property.

Lands held in trust for Indian tribes are not for public use. They are lands set aside specifically for the use of an Indian tribe. The public does not have a right to enter without permission from the tribe.

So for the United States to argue that taking state sovereign land and giving it to a race based government whose subjects do not have Constitutional rights is for the good of the general public, then they are going to have to argue that the Dred Scott decision was correct.

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#1163665 --- 03/24/10 04:47 PM Re: Trust Lawsuit [Re: Rich_Tallcot]
bluezone Offline
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Registered: 12/19/04
Posts: 32535
Loc: USA
sounds logical
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#1164429 --- 03/26/10 10:12 AM Re: Trust Lawsuit [Re: Rich_Tallcot]
bluezone Offline
Diamond Member

Registered: 12/19/04
Posts: 32535
Loc: USA
have the cayugas paid their federal cig taxes?
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#1169394 --- 04/08/10 10:03 AM Re: Trust Lawsuit [Re: Rich_Tallcot]
bluezone Offline
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Registered: 12/19/04
Posts: 32535
Loc: USA
Originally Posted By: Rich_Tallcot
All that will do is allow the tribe more federal funding.


and they claim sovereignty
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#1169900 --- 04/09/10 02:40 PM Re: Trust Lawsuit [Re: Dinky Dau]
bluezone Offline
Diamond Member

Registered: 12/19/04
Posts: 32535
Loc: USA
navajo tribe to recieve $33 milion for high speed internet from the government. if the navajo tribe needs federal money with all the land they have why does the cayuga need trust land?
_________________________
"OUR COUNTRY IS IN MOURNING, A SOLDIER DIED TODAY."

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#1226799 --- 10/17/10 09:32 AM Re: Trust Lawsuit [Re: Rich_Tallcot]
Rich_Tallcot Offline
Senior Member

Registered: 01/19/03
Posts: 5565
Loc: Greeneville, TN
This thread ONLY deals with the Oneida trust lawsuits. It is NOT a new thread. There are several lawsuits fighting trust in Oneida-Madison. The outcome will assuredly affect attempted trust takeover in Cayuga-Seneca.

This is separate from all the tribal sales tax lawsuits in two different federal courts, the foreclosure case regarding property tax lawsuit headed to SCOUTS, and separate from any land claims.

I know at times there appears to be an excess of threads that appear to be related. But lately there appears to be an excess of different tribal issues.

Oneida trust case - it appears that the BIA is corrupt. Imagine that. You should have learned that much at our EIS hearing.

You should also understand that there is no federal trust land in New York State, including the 18 acres the news media keep reporting as being taken into trust. Those 18 acres have become part of the trust lawsuit. The feds tried using the Quiet Title Act and claimed sovereign immunity to block a lawsuit challenge, which is why one cannot make a challenge after the fact.

But until property is listed in the federal register as being taken into trust, it has not been accepted by the federal government, regardless of what the BIA says, and the Quiet Title Act does not apply. Deals the state makes in the interim may be reversed in the end.

Once again, the feds got caught breaking their own regulations. The ultimate question is, just how much bias does Judge Kahn dare to show?

Remember, our own federal misrepresentatives support and sustain this system. If you want more of the same, then reelect those in office.

Then again, there are wall flowers like Rep. Barney Frank who recently introduced a bill to rescind the ability to make FOIA requests. Yes, there is opposition to equality under the law within Congress. But we have the choice to reelect or replace our federal misrepresentatives, who all support this opposition through their actions and inactions. Actions speak louder than words. Your votes, or lack of, this November is an action.


In April, U.S. Magistrate David Peebles issued a decision saying the counties and state had introduced sufficient evidence of bias and prejudgment on the part of the DOI to take land into trust to allow greater access to DOI documents and depositions, Madison County Attorney John Campanie said.

According to Campanie, the counties' evidence suggests that the decision to take thousands of acres of land into trust was made before notification that an application was filed and that the decision was made before the application was even complete.

Movement in the case is paused while Kahn decides whether to affirm Peebles' decision or overturn it.


http://oneidadispatch.com/articles/2010/10/14/news/doc4cb66e6e52ba9361812927.txt
Land into trust case still in lower court
Thursday, October 14, 2010
By CAITLIN TRAYNOR
Dispatch Staff Writer

As the land foreclosure case between the Oneida Indian Nation and Madison and Oneida counties moves to the United States Supreme Court, the land-into-trust case sits in trial-level federal court.

The Nation's application with the Bureau of Indian Affairs to put land into trust came quickly after its defeat in the Supreme Court with the City of Sherrill case, where an 8-1 vote decided newly-purchased land was not subject to tribal sovereignty. The April 2005 application requested the federal government take 17,370 acres of land into trust for the benefit of the Nation.

In 2008, the U.S. Department of Interior granted 13,000 acres into federal trust - about 9,000 in Oneida County and 4,000 in Madison County. The counties, along with the state, sued to stop the DOI's action and a second lawsuit from the towns of Vernon and Verona followed. [For whatever reason, the Oneida Dispatch neglects to point out that lawsuits were also filed by UCE, the CNYFBA & CERA, and the National Grid. ]

Northern New York District Judge Lawrence Kahn, in late 2009, ruled to eliminate three of the 17 original causes of action in the state and counties' cases and five other causes of action filed after 18 acres of surplus U.S. Air Force land in Verona were granted into trust. Fourteen causes of action still need to be decided on by Kahn.

In April, U.S. Magistrate David Peebles issued a decision saying the counties and state had introduced sufficient evidence of bias and prejudgment on the part of the DOI to take land into trust to allow greater access to DOI documents and depositions, Madison County Attorney John Campanie said.

According to Campanie, the counties' evidence suggests that the decision to take thousands of acres of land into trust was made before notification that an application was filed and that the decision was made before the application was even complete. The Oneida Nation subsequently appealed Peebles' decision to grant the counties and state greater access to documentation and an opportunity to depose DOI Associate Deputy Secretary James Cason.

Movement in the case is paused while Kahn decides whether to affirm Peebles’ decision or overturn it.

"We're simply waiting for Judge Kahn's decision on that," Campanie said.

Beyond that decision are 14 causes of actions that still waiting judgment. Until then, no land is in federal custody.

Once the case is concluded, Kahn's decision is subject to appeal, Campanie said. The land into trust case could see a similar progression as the land foreclosure case, as Kahn's decision, whatever it is, will likely be appealed to the Second Circuit Court of Appeals and then to the U.S. Supreme Court.

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#1227116 --- 10/18/10 01:33 PM Re: Trust Lawsuit [Re: Rich_Tallcot]
bluezone Offline
Diamond Member

Registered: 12/19/04
Posts: 32535
Loc: USA
Originally Posted By: Rich_Tallcot

According to Campanie, the counties' evidence suggests that the decision to take thousands of acres of land into trust was made before notification that an application was filed and that the decision was made before the application was even complete.


another back door scam by ray
_________________________
"OUR COUNTRY IS IN MOURNING, A SOLDIER DIED TODAY."

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#1230884 --- 11/01/10 02:57 PM Re: Trust Lawsuit [Re: bluezone]
bluezone Offline
Diamond Member

Registered: 12/19/04
Posts: 32535
Loc: USA
deny it
_________________________
"OUR COUNTRY IS IN MOURNING, A SOLDIER DIED TODAY."

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#1232701 --- 11/10/10 09:57 AM Re: Trust Lawsuit [Re: bluezone]
bluezone Offline
Diamond Member

Registered: 12/19/04
Posts: 32535
Loc: USA
Originally Posted By: Rich_Tallcot

According to Campanie, the counties' evidence suggests that the decision to take thousands of acres of land into trust was made before notification that an application was filed and that the decision was made before the application was even complete.


I did not sign up for trust so can I have some trust land?
_________________________
"OUR COUNTRY IS IN MOURNING, A SOLDIER DIED TODAY."

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#1247196 --- 01/16/11 12:19 PM Re: Trust Lawsuit [Re: bluezone]
bluezone Offline
Diamond Member

Registered: 12/19/04
Posts: 32535
Loc: USA
Originally Posted By: Rich_Tallcot

According to Campanie, the counties' evidence suggests that the decision to take thousands of acres of land into trust was made before notification that an application was filed and that the decision was made before the application was even complete.



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

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#1282262 --- 06/26/11 10:45 AM Re: Trust Lawsuit [Re: Rich_Tallcot]
Rich_Tallcot Offline
Senior Member

Registered: 01/19/03
Posts: 5565
Loc: Greeneville, TN
Senator Schumer recently introduced bill S 988 "the Land-In-Trust Schools and Local Governments Equitable Compensation Act" and Congressman Bill Owens introduced bill H.R. 1882 in the House.

If passed into law land that was taken off the tax rolls by being placed into trust would have the federal government pay the property taxes to the schools and local governments the same as any property taxes would be that were not trust lands.

But it is not the federal government that actually pays. The federal government does not create money. It can not give any monies to any entity without taking them from someone, in this case partly from the very people that are supposedly being compensated.

The property taxes will be paid out of federal funds borrowed from China and paid back with interest out of our income taxes.

Using this logic is no different that those that rationalize purchasing cogarettes from tribes to circumvent local and states sales and excise taxes. The cost overhead has to be met by increasing property taxes. In Schumer and Owens bills, the avoidance of property taxes has to be met by increasing income taxes.

All it amounts to is a shell game.

Even so, it is not that simple. The Secretary of Interior shall first attempt to negotiate an agreement among the applicable local education agency or unit of local government, the Secretary, State and any federally recognized Indian tribe under which all parties agree tht the amounts in subsection "b" shall be waived, limited or otherwise adjusted.

Those using scare tactics in reference to placing land into trust should read the Constitution.

Article One Section Eight of the United States Constitution never granted Congress the authority to take land into trust for any reason without the consent of the legislature of the State. That consent was even needed to house the federal government and erect forts and arsenals to defend itself.

Article One Section Eight : To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of particular States, and the acceptance of Congress, become the Seat of the Government of the United States, and to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings;

Amendment Ten of the U.S. Constitution ratified in 1791 states

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

Congress never had the power to take land into trust without the consent of a state legislature delegated to it.

Consequently, Congress could not constitutionally grant authority it never had to the Secretary of the Interior, which it did in the 1934 Indian Reorganization Act.

Those that reference court cases should read the cases to determine and realize that the DIRECT questions and references were never made. In most cases the challenges made were in reference to separation of powers questioning whether Congress (the legislative branch) can delegate authority to the Executive branch (the Secretary of Interior). One has to actually read the briefs to realize this. The courts rule yes.

The question NEVER posed is can Congress delegate authority it does not and never had?

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#1447117 --- 05/09/14 08:35 PM Re: Trust Lawsuit [Re: Rich_Tallcot]
Rich_Tallcot Offline
Senior Member

Registered: 01/19/03
Posts: 5565
Loc: Greeneville, TN
And the Trust Lawsuit Proceeds

Post 1 of 4

CERA’s reply to the US request for a Summary Judgment from SCOTUS.

UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF NEW YORK
________________________________________________
CENTRAL NEW YORK FAIR BUSINESS
ASSOCIATION, CITIZENS EQUAL RIGHTS
ALLIANCE, CLAUDIA TENNEY, New York State
Assembly, MICHAEL J. HENNESSY, Oneida County
Legislator, D. CHAD DAVIS, Oneida County Legislator,
and MELVIN L. PHILLIPS,
Plaintiffs, CIVIL ACTION NO.
6:08-cv-00660-LEK-DEP
v.
S.M.R. JEWELL, individually and in her official
capacity as Secretary of the U.S. Department of the Interior,
MICHAEL L. CONNOR, in his official capacity as Deputy
Secretary of the U.S. Department of the Interior,
ELIZABETH J. KLEIN, in her official capacity as Associate Deputy
Secretary of the Interior; FRANKLIN KEEL, the Regional
Director for the Eastern Regional Office of the Bureau of
Indian Affairs; and CHESTER MCGHEE, Eastern Regional
Environmental Scientist,
Defendants.
CENTRAL NEW YORK FAIR BUISNESS, et al. RESPONSE TO UNITED
STATES MOTION FOR SUMMARY JUDGMENT

Case 6:08-cv-00660-LEK-DEP Document 119 Filed 04/26/14 Page 2 of 35
TABLE OF CONTENTS
I. INTRODUCTION ..................................1
II. BACKGROUND ...................................2
III. STANDARD FOR SUMMARY JUDGMENT ......................................5
IV. REVIEW OF AGENCY ACTION UNDER THE APA.........................................................6
V. SUMMARY OF ARGUMENT ..................................................6
VI. ARGUMENT .................................................7
A. This Court is bound to Apply Carcieri v. Salazar to Determine Whether the Oneida of
New York was an Indian tribe “now under federal jurisdiction” as of June 1934………7
1.There are Two Federal Indian Law case lines……………………………..................10
2. The Intent of Congress or Unlimited Secretarial and Executive Power......................14
B. The Oneida Indian Nation Was Not a Tribe Now Under Federal Jurisdiction in 1934 ……17
1. The Removal Act of 1830 required termination of all federal Indian claims in The States East of the Mississippi River………………………………………..18
2. Being Allowed to Vote on Whether to Accept the IRA did not "Recognize" or Place the Tribe under federal jurisdiction to make it eligible for the benefits of the IRA…………………………………………………………….. 21
C. The Secretary has No Authority to Remove Fee Lands from State Jurisdiction as Asserted in the Part 151 Regulations………………………………………………..…24
1. The Indian Reorganization Act………………………………………………..…...24
2. Permanent plenary powers threaten the constitutional structure and our
Natural individual rights…………………………………………………………...29
VII.
CONCLUSION ..........................................33

Case 6:08-cv-00660-LEK-DEP Document 119 Filed 04/26/14 Page 3 of 35
I.
INTRODUCTION
The Secretary of the Department of the Interior (DOI) continues to defy the clear language of this Court to apply Carcieri v. Salazar, 555 U.S. 379 (2009). This Court ordered the DOI and specifically the Secretary to render an opinion applying Carcieri v. Salazar to the Oneida Indian Nation (OIN) on September 24, 2012.

Instead, almost a year and a half later the DOI issued an Amended Record of Decision (AROD) rearguing the Carcieri decision to allow all currently recognized Indian tribes to be eligible for the benefits of the Indian Reorganization Act (IRA), 25 U.S.C. § 461 et seq. , including the Oneida of New York. The Supreme Court in Carcieri did not defer to DOI's interpretation of "under federal jurisdiction."
The Court expressly held that Section 19, 25 U.S.C. § 479, is not ambiguous and that “now under federal jurisdiction” as of June 1934 was what Congress intended when it passed the Indian Reorganization Act (IRA). Carcieri at 390--‐1.

Just after issuing the AROD the Solicitor of the DOI issued opinion M--‐370293 that is binding on the BIA. The M opinion is clearly intended to rewrite the Carcieri decision and allow the DOI to continue to apply 25 U.S.C. § 465 fee to trust benefits on all currently federally recognized tribes. Clearly the M opinion and the AROD were being prepared by the DOI and Department of Justice simultaneously as the United States admits in its Motion for Summary Judgment.

The real fact is that the DOI is not ever going to apply the actual majority opinion of Carcieri v. Salazar to satisfy the Order of this Court. This is because under Carcieri v. Salazar, the New York Oneida are a tribe under the jurisdiction of the State of New York not a federally recognized tribe eligible for the benefits of the IRA as of June 1934. This is more than enough reason to deny the Motion for Summary Judgment of the Secretary. It is also

Page 1

Case 6:08-cv-00660-LEK-DEP Document 119 Filed 04/26/14 Page 4 of 35

the only way to protect the role of the federal courts within the constitutional structure of separation of powers and make the Executive branch accountable to the rule of law and the will of the people.

II.
BACKGROUND
This Court ordered the DOI and specifically the Secretary to render an opinion applying Carcieri v. Salazar to the Oneida Indian Nation (OIN) on September 24, 2012. Instead, almost a year and a half later the DOI issued an Amended Record of Decision (AROD) rearguing the Carcieri decision by defying the express holding that 25 U.S.C. § 479 was not ambiguous and that only tribes “now under federal jurisdiction” as of June 1934 were intended by Congress to receive the benefits of the Indian Reorganization Act (IRA).

Since the Carcieri decision issued on February 24, 2009, the Indian tribes and BIA have been pushing very hard for a "Carcieri fix." Congress has now allowed the Carcieri decision to stand for 5 years. Congress has not amended 25 U.S.C. § 479 or the language of 25 U.S.C. 2202 of the Indian Lands Consolidation Act (ILCA) to comport to the DOI/BIA’s interpretation despite major lobbying efforts by Indian tribes and the BIA.

Apparently frustrated that Congress does not agree with the DOI’s interpretation of 25 U.S.C. § 479, the DOI has decided to make its own "Carcieri fix" with the AROD and M opinion.

Both the AROD and the M opinion apply the same conclusion made originally to the Supreme Court in Carcieri that any Indian Tribe currently recognized is eligible for the benefits of the IRA under 25 U.S.C. § 479 including placing fee land into trust status per section 5 of the IRA, 25 U.S.C. § 465. They are trying to take another bite at the apple of the case they have already lost by adding additional pieces to their previous argument made in

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Carcieri itself.

The DOI and the Department of Justice (DOJ) representing the federal officials of DOI and the BIA clearly assume that 25 U.S.C. § 479 as interpreted in Carcieri v. Salazar by the Supreme Court is not the interpretation of 25 U.S.C.
§ 479 they must apply.

This blatant opposition to a precedential opinion of the Supreme Court must not be tolerated if the rule of law and constitution are to be enforceable to limit the power of the Executive Branch.

This is beyond the DOI and DOJ acting in bad faith in applying a court decision adverse to their stated policies. This is a deliberate attempt to undermine the authority of the federal courts, the United States Supreme Court and Congress.

A motion for summary judgment is appropriate when there are no undecided questions of material fact and only legal questions remain to be determined by the Court. In this case there are two remaining questions of fact that have not been determined.

The first is whether the Oneida Indian Nation is a federally recognized tribe at all. As submitted to the Secretary after the Order of September 24, 2012 by Central New York Fair
Business Association (CNYFBA) and the Citizens Equal Rights Alliance (CERA) there is a question whether the OIN has ever been federally recognized.

The only direct evidence of federal recognition was done by Ada Deer as Commissioner of Indian Affairs to recognize Raymond Halbritter as the Chairman of the Oneida Indian Nation. See AR Docs. 1--‐5. This was not a tribal recognition as required by 25 CFR Part 83.

These regulations were clearly in place in 1994 when Ada Deer issued her letter. No explanation is given in the AROD as to a formal tribal recognition of the OIN. Instead the AROD uses a fabricated “new” fact never raised in the Carcieri litigation that the BIA determined which tribes were eligible to be IRA tribes when they allowed them to vote on whether to adopt the IRA in the required vote. The M

Page 3

opinion released after plaintiffs letter to this Court of February 12, 2014 informing the court that documents exist proving that all possible tribes were allowed to vote on the IRA, relies on a different and weaker argument to rewrite the requirements of 25 U.S.C. § 479 as interpreted in Carcieri.

The AROD goes into detail concerning the historical dealings with the Oneida but leaves huge gaps of time and does not even come close to the exacting requirements of the Part 83 regulations. Nor is the Treaty of Buffalo Creek, 7 Stat. 550, addressed in the AROD with its effects. In sum, the Secretary has never formally recognized the Oneida Indian Nation of New York that had ceased to exist as a tribe by the time of the Treaty of Buffalo Creek in 1838. The second material fact in dispute is whether the area reserved by the State of
New York for the ancient OIN under the Treaty of Fort Schuyler of 1788 placed the Oneida under exclusive state jurisdiction just like the Narragansetts were in Rhode Island before their formal recognition under the federal Part 83 process in 1983.

Therefore, to place lands into trust for the OIN the Secretary must have the authority to remove land from state jurisdiction.

The Supreme Court determined in Hawaii v. Office of Hawaiian Affairs, 556 U.S. 163 (2009) that even Congress itself cannot remove lands it ceded to a state from state jurisdiction. If Congress does not have authority to make a law authorizing the removal of state jurisdiction then the Secretary of Interior certainly does not have the authority to withdraw lands from state jurisdiction by placing those lands into trust status. This factual dispute goes directly to the remaining constitutional claim that the 25 CFR Part 151 fee to trust regulations are ultra vires as being beyond the authority of the Secretary Of Interior to promulgate and opinion released after plaintiffs letter to this Court of February 12, 2014 informing the Court that documents exist proving that all possible tribes were allowed to vote on the IRA, relies on a different and weaker argument to rewrite the requirements of 25 U.S.C. § 479 as interpreted in Carcieri.

The AROD goes into detail concerning the historical dealings with the Oneida but leaves huge gaps of time and does not even come close to the exacting requirements of the Part 83 regulations. Nor is the Treaty of Buffalo Creek, 7 Stat. 550, addressed in the AROD with its effects.

In sum, the Secretary has never formally recognized the Oneida Indian Nation of New York that had ceased to exist as a tribe by the time of the Treaty of Buffalo Creek in 1838.

The second material fact in dispute is whether the area reserved by the State of New York for the ancient OIN under the Treaty of Fort Schuyler of 1788 placed the Oneida under exclusive state jurisdiction just like the Narragansetts were in Rhode Island before their formal recognition under the federal Part 83 process in 1983.

Therefore, to place lands into trust for the OIN the Secretary must have the authority to remove land from state jurisdiction. The Supreme Court determined in Hawaii v. Office of Hawaiian Affairs, 556 U.S. 163 (2009) that even Congress itself cannot remove lands it ceded to a state from state jurisdiction.

If Congress does not have authority to make a law authorizing the removal of state jurisdiction then the Secretary of Interior certainly does not have the authority to withdraw lands from state jurisdiction by placing those lands into trust status.

This factual dispute goes directly to the remaining constitutional claim that the 25 CFR
Part 151 fee to trust regulations are ultra vires as being beyond the authority of the Secretary of Interior to promulgate and apply in New York. This is the exact same issue raised by plaintiffs in their

Page 4

prior response to the federal motion for summary judgment in January 2012. The legal question that must be decided to rule on the federal motion for summary judgment is whether the Secretary is required to follow the Supreme Court's interpretation of 25 U.S.C. § 479 as decided in Carcieri v. Salazar or is entitled to Chevron deference because it has used its own Carcieri interpretation in the AROD and then issued an M opinion further explaining the position taken in the AROD. Chevron v. Natural Resources Defense Council, 467 U.S. 387 (1984).

What is at stake for the federal courts is their ability to protect separation of powers principles, a major component of the constitutional structure and have those judgments accepted as the "law" by the Executive Branch.

The Supreme Court in Carcieri interpreted 25 U.S.C. § 479 using the normal canons of statutory construction. The Supreme Court determined congressional intent at the time the statute was passed and applied that intent to interpret the statute. The decision in New York boils down to this simple choice: Is the IRA to be interpreted as Congress intended in 1934 or can the Secretary and Executive Branch reinterpret the IRA as they see the Indian trust relationship defining tribal status and Indian country land status to meet their vision?

The answer to this question begins with whether this Court will defer to the Secretary's and Executive Branch positions asserted in the AROD and M opinion.

This is the first point addressed in the Argument.

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#1447119 --- 05/09/14 08:43 PM Re: Trust Lawsuit [Re: Rich_Tallcot]
Rich_Tallcot Offline
Senior Member

Registered: 01/19/03
Posts: 5565
Loc: Greeneville, TN
Post 2 of 4

III.
STANDARD FOR SUMMARY JUDGMENT
Rule 56(a) of the Federal Rules of Civil Procedure provides that summary judgment is appropriate where “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.”

As explained by the Second Circuit, "Summary

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Judgment is appropriate only if, after drawing all permissible factual inferences in favor of the non--‐moving party, there is no genuine issue of material fact and the moving party is entitled to summary judgment as a matter of law." O’Hara v. Nat’l Union Fire Ins. Co., 642 F.3d 110, 116 (2d Cir. 2011); see also Miller v. Wolpoff & Abramson, LLP, 321 F.3d 292, 300 (2d Cir. 2003) (same).

As plaintiffs have said, this case has two material facts in dispute which render summary judgment inappropriate as a matter of law.

IV.
REVIEW OF AGENCY ACTION UNDER THE APA
Section 706(2)(A) of the APA permits a court to set aside agency action only where it finds the action “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law."

Plaintiffs' amended complaint alleges that the Record of Decision (ROD) and by implication the Amended ROD is arbitrary, capricious, an abuse of discretion and not in accordance with law pursuant to section 706 of the Administrative Procedure Act (APA), 5 U.S.C. §§ 701--‐706.

In addition, plaintiffs challenge whether the 25 CFR Part 151 fee to trust regulations are within the scope of authority of the Secretary of the Interior to promulgate. Plaintiffs claim the Secretary of Interior acted ultra vires in promulgating the Part 151 regulations.

The burden of proof is on plaintiffs under the APA to win their case. However the burden of proof for the motion for summary judgment is on the United States.

V.
SUMMARY OF ARGUMENT
Plaintiffs defend the Amended Complaint and explain to this Court that it is presented with a simple but very important choice. If the Court applies Carcieri v. Salazar the Oneida Indian Nation is a state tribe that was not a "tribe now under federal

Page 6

jurisdiction" as of June 1934. This means they are not eligible for the fee to trust benefit of the IRA. The opposite choice is not to uphold this Court’s prior order directing the Secretary to apply Carcieri and allow the Secretary Chevron deference to reinterpret 25 U.S.C. § 479. This would contradict the holding in Carcieri that 25 U.S.C. § 479 was not ambiguous and therefore not entitled to deference under Chevron. Id. At 390--‐1.

Allowing the Secretary to use the plenary power authority to avoid the Carcieri ruling will also ensure that the United States will assume any lands it takes into trust for the Oneida Indian Nation will be treated as federal territorial lands also known as Indian country. Effectively, this would remove any lands taken into federal trust status from
state jurisdiction.

VI.
ARGUMENT A, This Court is Bound to Apply Carcieri v. Salazar to Determine Whether the Oneida of New York was an Indian tribe “now under federal jurisdiction” as of June 1934

The Secretary and federal defendants do quite a song and dance to avoid applying Carcieri as this Court ordered. Then they use every means possible to claim that the AROD and M opinion must be given Chevron deference by this Court.

The reality is that whether the Oneida of New York are eligible for fee to trust benefits is entirely dependent on meeting the definition of “tribe” in Sec. 19, 25 U.S.C. § 479 of the IRA. Unless they meet the definition of tribe in the
IRA they are not eligible for the fee to trust benefits of Sec. 5, 25 U.S.C. § 465 of the IRA. Justice Thomas said this even more bluntly in the majority opinion of Carcieri.

"Thus, although we do not defer to Commissioner Collier's interpretation of this unambiguous statute, see Estate of Cowart v. Nicklos Drilling Co., 505 U. S. 469, 476 (1992), we agree with his conclusion that the word "now" in § 479 limits the definition of "Indian,"

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and therefore limits the exercise of the Secretary's trust authority under § 465 to those members of tribes that were under federal jurisdiction at the time the IRA was enacted." Carcieri at 390--‐1.

Eight out of nine Justices agreed that the phrase "now under federal jurisdiction" in 25 U.S.C. § 479 was not ambiguous and was therefore not entitled to Chevron deference. (5 in the majority, Justice Breyer with his concurring opinion and Justices Souter and Ginsburg in their very short concurring in part and dissenting in part opinion.)

All eight of the Justices also concluded that the definition of tribe in Section 479 was an intentional restriction placed into the statute by Congress to limit the application of the IRA. The Justices also agreed that 25 U.S.C. § 2 of the Indian Lands Consolidation Act did not amend or alter the definition of Indian in 25 U.S.C. § 479. Id. at 394--‐5. Justices Breyer, Souter and Ginsburg all also agreed with the majority that the Narragansetts could not meet the definition of being a “tribe” in 1934.

Justices Souter and Ginsburg would have let them attempt to make an argument that because they had been formally recognized under the Part 83 process as a continually existing tribe in 1983 that they be allowed to at least try to make an argument they were under federal jurisdiction in 1934. Carcieri at 400. Eight Justices in Carcieri determined that the intent of Congress in 25 U.S.C. § 479 was to allow all federally recognized tribes as of June 1934 to have the benefits of the IRA. What this interpretation prevented was exactly what Congress did not accept in John Collier’s proposed IRA legislation—a continuing power in the Secretary and BIA to create or revive Indian tribes that no longer existed. If this statutory interpretation of Congressional intent by the Supreme Court was incorrect our elected representatives in

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Congress could rewrite the law. See United States v. Lara, 541 U.S. 193 (2004).

This protects Congress’ ultimate authority to make the law. The Supreme Court says what the law is and means subject to the authority of Congress to rewrite the law. Marbury v. Madison, 5 U.S. 137 (1803). Congress has been bombarded by Carcieri fix proposals and has not adopted any of them in five years. See Congressional Research Services Report April 2014. Exhibit 1. The fact is Congress is very aware that the Carcieri decision protects the authority of Congress to set federal Indian policy.

Congress has not abdicated this authority to the Executive Branch and is very unlikely to do so in the future. Only Congress has the constitutional authority to change 25 U.S.C. § 479 to moot the majority opinion in Carcieri and it has refused to do so. As an opinion of the court, under the doctrine of stare decisis this Court is bound to apply Carcieri v. Salazar to determine whether the Oneida Indian Nation meets the requirements of 25 U.S.C. § 479.

The disagreement of the Justices over the application of Section 479 came not from the phrasing of Section 479 but from defining what it meant and means to be “under federal jurisdiction.” The fact is that the Supreme Court itself had allowed “under Federal jurisdiction” to be reinterpreted during the Nixon administration to allow federal courts subject matter jurisdiction to hear federal claims that had long ago grown cold. That case was Oneida Indian Nation v. County of Oneida, 414 U.S. 661 (1974).

This case created more than 40 years of federal litigation over trying to reestablish the sovereignty of the OIN that had ceased to exist before the Treaty of Buffalo Creek in 1838. Counsel for plaintiffs will not belabor this point because this Court knows on a first hand

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basis the effects of allowing this reinterpretation of 25 U.S.C. § 177 and federal treaties through a modern refracted lens of the federal Indian trust relationship. The Supreme Court certainly did not intend to disrupt the settled expectations of thousands of property owners when it unanimously ruled for the Oneida to be able to try
to reclaim their historical reservation in 1974.

The Justices of the Supreme Court like most Americans wanted to "help the Poor Indians." They had no idea that the Executive Branch was working to exploit this sympathy to expand its own power.

City of Sherrill v. Oneida Indian Nation, 544 U.S. 197 (2005), ended the land claims but did not overrule the 1974 Oneida case and opened the door to this fee to trust litigation.

Until the Indians are subject to the equal protection of the laws under the Fourteenth Amendment of the Constitution the Executive branch will continue to use their separate status to increase Executive authority over Congress, the Courts and the States.

The real mistake was the Supreme Court separating the Indians from the rest of the people in order to try to justify slavery. Dred Scott v. Sandford, 60 U.S. 393 (1857). This mistake created its own federal Indian Law case line.

1.
There Are Two Federal Indian Law Case Lines

Carcieri v. Salazar follows a direct line of cases where the Supreme Court has assumed the authority to make federal Indian common law dating from the adoption of the Constitution. In Carcieri v. Salazar, the Supreme Court ruled that when Congress passed the pared down Indian Reorganization Act (IRA) in June 1934 that it deliberately limited the application of the IRA to only those “tribes now recognized and under federal jurisdiction.”

Congress was following the original case line of federal Indian common law that

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distinguished between tribes under state jurisdiction and those tribes that were under federal jurisdiction.

Eight Justices of the Supreme Court acknowledged that the Narragansett Tribe had been an Indian tribe under the sole jurisdiction of the State of Rhode Island until they were federally recognized in 1983.

This original case line assumes regular principles of law apply to the Indians because the
Indians are all citizens and will eventually lose their tribal relations to become part of the people of the United States and of the State wherein they reside. Carcieri v. Salazar applies this line of cases.

Events in our history led to the creation by the Supreme Court of a second line of Indian cases that started with the decision in Dred Scott v. Sandford, 60 U.S.
393 (1857).

This second line of federal Indian cases assumes that the Indians will always maintain their tribal relations as separate people from the people of the United States. It also always applies the Indian canons of construction. AROD at 4, first paragraph. The AROD and the M opinion follow this second case line.

This second line is based on the territorial war power authority that was developed around our Civil War and preserved through keeping the Indians separate from the rest of the people of the United States.

It requires all Indian land to be classified as "Indian country" which is defined as federal territorial land. This is the federal Indian policy promoted by the Nixon Indian policy.

According to the Nixon Indian policy as defined in the Nixon Memorandum "What Level Sovereignty?" the President can on his own authority reinterpret the Indian trust relationship and interpret all existing federal law from the perspective of his interpretation of that trust relationship. See Nixon Memo at www.citizensalliance.com. What this means is that the Executive Branch can decide that the way a still existing federal law was applied in

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the past was not in accord to the current interpretation of the federal Indian trust relationship.

Then using the resources of the United States to promote their version of what should have happened they sue on behalf of the Indian tribe to restore what they think was wrongfully taken. This was exactly the power that Congress was not willing to give the Secretary of the Interior when it rejected Commissioner John Collier's expansive Indian Reorganization Act legislation in 1934.

President Nixon did inform Congress of his change of interpretation of the Indian trust relationship in his Executive Memorandum to Congress of July 8, 1970. That Memorandum to Congress was the President’s pronouncement to Congress that the Executive and not Congress now exercised the plenary power over the Indians the Supreme Court had defined in Lone Wolf v. Hitchcock, 187 U.S. 553 (1903), United States v. Kagama, 118 U.S. 375 (1886) and Elk v. Wilkins, 112 U.S. 94 (1884) that expressly follow the Dred Scott line of cases.

The Nixon Indian Policy claims the authority to reinterpret the IRA as part of its assumed plenary power. The Nixon Indian Policy was designed to permanently preserve the plenary power over Indians keeping them forever separate from the States and people.

Without informing the courts, Congress or anyone else, the Nixon White House began promoting this permanent tribal sovereignty through direct legal help to tribal claimants from the moment they took office.

One of the first cases to receive this direct assistance from the White House was Oneida Indian Nation v. County of Oneida, 414 U.S. 661 (1974) that started this entire mess in New York.

As defined in Kagama, the plenary power over Indians is based on three clauses of the Constitution: the Property Clause (Art. IV, Sec. 3, Cl. 2), the Indian Commerce Clause

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(Art. I, Sec. 8, Cl. 3) and the Treaty Clause (Art. VI, Cl. 2).
These are the same exact list of powers asserted in the AROD in this case. The AROD openly claims the authority to "define the Federal Government’s unique and evolving relationship with the Indian tribes." Citing its power as ‘plenary and exclusive’ as based on the Treaty Clause and Indian Commerce Clause. AROD at p. 4.

Unlike in the original Record Of Decision that also cited the Property Clause for this authority and claimed the Oneida Reservation was a federal Indian reservation, the AROD lists all the powers that derive from the territorial power including the war power authority over territories of the United States starting with the paragraph following its direct Treaty and Indian Commerce assertions and not ending until it finishes the contemporaneous rewrite of the holding in Johnson v. M'Intosh, 21 U.S. 543 (1823) on p. 5.
It is generally not hard to distinguish which line of federal Indian cases one is using. If the case dates from before 1857, the year of the Dred Scott decision it is on the original case line and not on the plenary power line.

Many of the original cases have been reinterpreted in later cases. When this has happened it is usually reflected in the case citation. For purposes of this case there are two cases that must be clearly defined as to whether they fall on the original case line or the plenary power case line.

The first case is Oneida Indian Nation v. Oneida County from 1974 cited above as one of the first cases that received covert federal assistance from the White House. A cursory reading of the case is enough to demonstrate how old laws can be reinterpreted by expanding the nature of the federal trust relationship with the Indian tribes. The decision cites cases clearly on the plenary power case line side, including Holden v. Joy, 84 U.S. 211

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(1872), that made the territorial war power connections to the Treaty Clause and Indian Commerce Clause. The other case that must be defined is City of Sherrill v. Oneida Indian Nation, 544 U.S. 197 (2005). City of Sherrill like almost all recent Supreme Court decisions reflects more of the original case line than the plenary power case line. This is true of most of the cases that follow Montana v. United States, 450 U.S. 544 (1981). In City of Sherrill, Justice Ginsburg was willing to rebalance the equities and apply laches to end the land claims but it is still a hybrid in how it defers to the Secretary’s authority under the Part 151 regulations.

It is not until Carcieri and the Hawaii decision that followed two weeks later that the Supreme Court decided to attempt to impose actual limits on secretarial discretion as it had done in pre--‐Civil War times to protect the authority of Congress over Indian affairs. This Court can avoid the plenary power case line by applying Carcieri v. Salazar and its express holding that 25 U.S.C. § 479 is not ambiguous and is therefore not entitled to Chevron deference.

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#1447120 --- 05/09/14 08:50 PM Re: Trust Lawsuit [Re: Rich_Tallcot]
Rich_Tallcot Offline
Senior Member

Registered: 01/19/03
Posts: 5565
Loc: Greeneville, TN
Post 3 of 4

2. The Intent of Congress or Unlimited Secretarial and Executive Power
Carcieri v. Salazar is the first Supreme Court decision that directly confronts the Nixon Indian policy and tries to restore the intent of Congress as the interpretation of the very downsized IRA actually passed by Congress. The Supreme Court in Hawaii, has finally realized that it must enforce existing limitations on the Secretary and limit the territorial war power authority to make fee land back into federal territory as Indian country. The Supreme Court seems aware that the showdown is now on with the open defiance of the Secretary deliberately trying to circumvent Carcieri with the M opinion.

The Supreme

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Court seems to have made the realization that allowing the Secretary unlimited authority to redefine the federal Indian trust relationship means that federal litigation will never end until the Secretary wins. And even after a win if the Secretary or some bureaucrat in BIA or some tribal official decides they want even more authority that new litigation will be begun. If the Secretary is allowed to reinterpret the trust relationship there are an unlimited number of possible ways to restore tribal sovereignty that have not yet been tested in the federal courts.

This is exactly what happened with the land claims. When one theory failed another was presented. The case could not be closed because the Secretary and tribes were expressly allowed to try to develop any possible theory that would work. The same thing is happening with this fee to trust litigation. There is not just one federal reinterpretation of the IRA or historical facts and records in this case. Right now there are at least four different federal interpretations of 25 U.S.C. § 479 in play. The first is from the Oneida decision in 1974 that recognized the standing of the remnants of the Oneida to bring suit to pursue the land claim based on the reinterpretation of 25 U.S.C. § 177.

Even though the land claims are gone the ruling is still the basis of the Oneida Indian Nation’s standing and even possibly the claim to federal recognition that will be discussed more fully later in this brief. The second is in the original ROD that was done before the Carcieri decision. The third is in the AROD and relies on the fabricated fact that tribes that were allowed to vote on the IRA were somehow precleared as eligible for the IRA. The fourth is the revised argument in the M opinion.

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The issue that will decide this case is whether this Court follows Carcieri and the constitutional line of cases that interpret the historical facts using the intent of Congress or whether this Court gives Chevron deference to the Secretary and “the Federal Government’s unique and evolving relationship with Indian tribes.” That comes directly from the Nixon Indian policy. Giving this deference is essentially granting unlimited power to the Secretary and Executive Branch because the federal position will just continue to evolve to combat whatever the latest court ruling is that tries to limit the latest federal version of the evolving trust relationship bringing on new federal litigation until the federal government prevails. There is no limit that any Court can establish against this continually evolving claim of power except ending the separate status of the Indians.

Even more frightening is what this means in the context if the Settlement Agreement entered into between the State of New York, the Counties and the Oneida Indian Nation already accepted by this Court. The Secretary and Executive will continually reinterpret it adding more and more power and authority to the Oneida tribe until the have full territorial war power authority over the area. The Secretary and DOJ will be litigating solely for the benefit of the tribe with taxpayer money to remove more and more authority from the state government and individual rights from the people who choose to remain in the area.

The only way to limit the plenary power being asserted by the Secretary is by applying Carcieri and the case line following the Constitution and rejecting the plenary authority coming from the Dred Scott case line that is the basis of the AROD. Requiring the

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IRA be interpreted as Congress intended in 1934 stops the evolving versions of the Secretary’s authority.

B.
The Oneida Indian Nation Was Not a Tribe Now Under Federal Jurisdiction in 1934
Plaintiffs have spent much of this case arguing about the absurdity of claiming the Treaty of Canandaigua, 7 Stat. 44, somehow converted the Oneida's state reservation into a federal Indian reservation. Even though the AROD does not make the direct claim that the Oneida reservation was turned into a federal Indian reservation subject to the Property Clause it still asserts that the state reservation was federalized by the Treaty placing it and the Indians residing on it “under federal Jurisdiction.” AROD at p.16--‐17.

In the federal motion for summary judgment at p. 13, the Secretary claims the "Second Circuit has made clear that the Nation possesses a federal Reservation, which has never been disestablished," with no citation. This sentence is intended to refute plaintiffs claims that the off reservation criteria of the Part 151 regulations should have been applied instead of the easier on--‐reservation criteria.

The fact is that the on reservation criteria were used for the AROD conclusively proving that the Secretary is still asserting a direct federal territorial power that is based on the Property Clause for the Oneida Indian reservation set aside by the treaty of Fort Schuyler of 1788 that was between the Oneida tribe and the State of New York.

No issue in this case more clearly shows how differently the two federal case lines work in application than applying each line to the question of whether the Oneida Indian reservation as created by the state Treaty of Fort Schuyler and acknowledged in the federal

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Treaty of Canandaigua was either a state reservation or was a federal reservation. The main historical facts and the timeline of those facts seem to be in agreement on both sides. The differences the parties assert in the historical facts are all based on whether the historical facts are subject to the interpretation they were given at the time the documents were created or whether these historical facts which are the treaties and laws that created the changes to the status of the historic Oneida Indian Nation can be reinterpreted contemporaneously by the Secretary. The plaintiffs and the Carcieri Court claim regular statutory construction applies and the historical documents are to be interpreted as they were understood when created and agreed to.

The Secretary and DOJ claim a continuing and ever evolving authority to reinterpret the historical documents to meet their current version of the Indian Trust relationship. Applying federal law as the law was intended when adopted by Congress immediately confronts the Supreme Court’s decision in Oneida Indian Nation v. County of Oneida, 414 U.S. 661 (1974).

Until this decision, the remnants of the Oneida tribe were considered to be under the primary jurisdiction of the State of New York as a state tribe just like the Narragansett Tribe was under the primary jurisdiction of the State of Rhode Island in Carcieri. The whole basis of the 1974 Oneida Case was the reinterpretation of 25 U.S.C. § 177 that was allowed because the Supreme Court blindly accepted the allegation that the Oneida tribe in New York still existed without any discussion or analysis.

1.
The Removal Act of 1830 required termination of all federal Indian claims in the States East of the Mississippi River

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The Removal Act of 1830, 4 Stat. 411, required the United States To remove any remaining Indians and relinquish all remaining federal claims of the United States to Indians remaining in the Eastern States. By 1838 and the Treaty of Buffalo Creek the Oneida had ceased to exist as an Indian tribe.

The United States located the remaining Oneida descendants through the different Christian churches they attended. For purposes of the Buffalo Creek Treaty the remaining Oneida descendants were known generally as the Christian And Orchard parties. The subgroups were then denominated as the First Christian Party, the Second Christian Party etc…

The United States accepted the relinquishment of all remaining federal claims for the Oneida remnants that chose to remain in New York. The only Oneida lands not terminated by the United States were those for the individual allotments that were to be made for any Oneida descendant that removed to Wisconsin. With the confirmation of the Treaty of Buffalo Creek in 1840 all federal jurisdiction or recognition of any kind over the Oneida Indians in New York was terminated and forever relinquished. This was the intent of Congress in passing the Removal Act in 1830.

A full cession by treaty was necessary to cancel any and all rights that could exist under the previous federal treaties with the Oneida, especially the Treaty of Canandaigua of 1794. New York State did not require the complete removal of Indians as many other States did. New York continued to honor its promises to the remaining Oneida. New York also made them full state citizens and still gives Indian descendants many special privileges for college attendance and for taxes.

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Even before the Removal Act the Oneida Indians were considered to be an Indian tribe under primary state jurisdiction as was acknowledged in Fletcher v. Peck, 10 U.S. 87 (1810). This did not mean that federal government could not still assist the Indians on an individual basis. This special assistance was based on a general trust relationship with the Indians because of their race.

Any time it was believed that an "Indian" was being taken advantage of by White persons the United States could intervene on behalf of the "Indians." Plaintiffs do not dispute that the United States on two occasions assisted individual Oneida Indians in preserving their rights to the remaining state reservation in the Boylan litigation. U.S. v. Boylan, 256 F. 468 (N.D.N.Y 1919), aff'd 265 F. 165 (2nd Cir. 1920). But that individual assistance is not the same thing as recognizing a group of Indian individuals as a “tribe” nor did it place those individuals under federal jurisdiction.

In fact, after the Boylan litigation the United States Supreme Court held that individual Indian members of the Seneca Indian Nation could be criminally prosecuted in New York state courts confirming that they were under State and not federal jurisdiction. See U.S. ex rel. Kennedy v. Tyler, 269 U.S. 13 (1925).

This is particularly important because the strongest claim of remaining federal jurisdiction over any New York State reservation would be for the Seneca. This is the result of the Supreme Court decision in Fellows v. Blacksmith, 60 U.S. 366(1857) decided with the Dred Scott decision in mind. It was actually the second case on what counsel is describing as the plenary power case line even though it was published before the Dred Scott opinion.

Today we forget just how ill received the Dred Scott opinion was. The opinion was actually announced and read to the public several months before the written opinion was released. The case of Fellows v. Blacksmith has the

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Dubious distinction of being the first case where the Supreme Court did not adhere to the intent of Congress in adopting the Removal Act of 1830 and instead allowed the Executive Branch deference to determine when if ever the Seneca would be removed as they had agreed to in the Treaty of Buffalo Creek.

2.
Being Allowed to Vote on Whether to Accept the IRA did not “Recognize” or Place the Tribe under federal jurisdiction to make it eligible for the benefits of the IRA

Neither Congress or the Secretary has "Recognized" the Oneida Indian Nation of New York after it was terminated in 1840 per the Treaty of Buffalo Creek.

The closest the United States has come to formally recognizing the Oneida Indian Nation of New York in its modern incarnation is the letter from Commissioner Ada Deer to Ray Halbritter that these plaintiffs submitted to the Secretary to be considered in reviewing the application of Carcieri v. Salazar. AR Docs. 1--‐5.

Not even the Secretary claims that the Ada Deer letter was sufficient to create formal recognition. It just counts as more indicia of relations with the Oneida.

The Part 83 regulations are supposed to be the only way an Indian tribe can seek formal recognition. These regulations were adopted when Congress threatened to unrecognized many Tribes that appeared on the tribes eligible for federal benefits list in the federal register in 1979.

The Secretary without informing Congress had decided that it was within his power to "recognize" all of the Indian groups identified by the American Indian Policy Review Commission in 1977 as actually having continuing federal relations with the United States.

The Oneida of New York were not on this list. More than 200 tribes that were not on the lists prepared by the BIA in 1936--‐7 for tribes eligible for the benefits of the

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IRA were suddenly eligible according to the Secretary. This claimed authority to ignore 5 U.S.C. § 479 eventually led to the legal confrontation decided in Carcieri. The Oneida of New York did make the tribes eligible for federal benefits list in 1994 just after the Ada Deer letter has sent. Instead, the Secretary relies on the fact that the "federal government (specifically Congress) has plenary authority over Indian Affairs", and moreover such incorrect statements were insignificant when weighed against "the overriding evidence demonstrating a long history of interactions between the Oneida and the federal government." Citing AROD at 21, Fed Motion at 20. In other words, the Secretary has decided she has full use of the plenary power over Indians and she says that the Oneida of New York are a federally recognized tribe. Because this is plenary authority, this Court and all federal courts must give full Chevron deference to her decision. This summarizes both the arguments in the AROD and the M opinion. This is also the basis of the "recognition" authority.

The fact that the Carcieri decision directly implicates this authority and specifically denies Chevron deference because 25 U.S.C. § 479 is not ambiguous is the reason the Secretary now claims that any tribe that was eligible to vote on the IRA is eligible for the benefits of the IRA. The historical documents prove exactly the opposite was true. On September 29, 1934 the Indian Organization Division of the BIA sent to Field Representative Roy Nash of the Sacramento Regional Office a memorandum explaining that some Indian groups had been approved for voting on the IRA referendum and that it was his responsibility to encourage additional support through an educational campaign and

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Find more Indian groups that might possibly be able to vote. See Exhibit 2.

In California, there was a major debate on which Indian groups were eligible to vote. The big question being whether the Rancherias were to be considered bona fide Indian reservations. See Exhibit 3 letter of Roy Nash to the Indian Office Washington received November 9, 1934.

Being allowed to vote on the IRA referendum meant nothing. All of the decisions as to which Indian groups were actually tribes eligible for the benefits of the IRA were made later by the IOD. This was a national policy being decided in Washington directly under the authority of Commissioner John Collier. In New York all of the Indian groups were allowed to vote on the IRA find more Indian groups that might possibly be able to vote. See Exhibit 2.

Eventually it was decided that the Rancherias could vote if any Indians could be found on the Election date. In fact, 6 of the Rancherias had no voters appear for the election. See Exhibit 4.

Revised Tabulation of Election Returns, June 27, 1935. Even Indian groups in California that were allowed to vote on the IRA and accepted it were denied its benefits when the Indian Organization Division (IOD) decided to not allow any Indian group under 50 embers to organize. See Exhibits 5 and 6 to the Indians of the Santa Ynez reservation.

Being allowed to vote on the IRA referendum meant nothing. All of the decisions as to which Indian groups were actually tribes eligible for the benefits of the IRA were made later by the IOD. This was a national policy being decided in Washington directly under the authority of Commissioner John Collier.

In New York all of the Indian groups were allowed to vote on the IRA

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Describe the jurisdictional situation of assisting the Indians on the state land reservations but neither comes to any definitive conclusions that would be helpful. Both discuss trying to reach agreement with New York State over jurisdiction. Neither asserts anything about federal jurisdiction or recognition being assumed because the Indian groups were allowed to vote on whether to adopt the IRA. Counsel will scan the 44 pages if the Court or counsel for the United States requests copies.

As of 1942, the remaining Oneida reservation was only a state reservation and the remaining Oneida Indians were still under state jurisdiction. This means that there are two material facts in dispute that preclude this Court from granting the federal motion for summary judgment.

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#1447122 --- 05/09/14 08:55 PM Re: Trust Lawsuit [Re: Rich_Tallcot]
Rich_Tallcot Offline
Senior Member

Registered: 01/19/03
Posts: 5565
Loc: Greeneville, TN
Post 4 of 4

C.
The Secretary has No Authority to Remove Fee Lands from State Jurisdiction as Asserted in the Part 151 regulations

To place lands into trust for the OIN under the Part 151 regulations requires the Secretary to have the authority to remove these lands from state jurisdiction. The regulations assert that the primary reason for taking fee lands into trust is for the Indian tribe to have full tribal sovereignty over the acquired lands. 25 C.F.R. 151.3. The Supreme Court determined in Hawaii v. Office of Hawaiian Affairs, 556 U.S. 163 (2009) that even Congress itself cannot remove lands it ceded to a state from state jurisdiction. If Congress does not have authority to make a law authorizing the removal of state jurisdiction then the Secretary of Interior certainly does not have the authority to withdraw lands from state jurisdiction by placing those lands into trust status.

1.
The Indian Reorganization Act

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Section 5 of the IRA, 25 U.S.C. § 465 does not say anything about removing state jurisdiction from lands placed into trust status. The statute, 25 U.S.C. § 465, only requires that lands taken into trust be considered tax exempt. The fact that the United States takes title to the fee lands renders them tax exempt. The purpose of Section 465 was for the United States to give additional lands to Indians. Nothing is said in the IRA about extending tribal sovereignty over those lands. Plaintiffs in their amended complaint specifically allege that 25 C.F.R. Part 151, the fee to trust regulations are ultra vires because they exceed the statutory authority of the IRA. In Commissioner John Collier’s draft bill for the IRA as submitted to Congress there was an express fee to trust provision that was removed by Congress. See PRESS MEMO, Exhibit 7.

The PRESS MEMO says that landless Indians were going to be assisted through the Wheeler--‐Howard Bill "through various devices of relinquishment, purchase and exchange, for restoring allotted and inherited lands to community ownership.". It was in the congressional discussion of these “various devices” that the expansive vision of Commissioner Collier was expressly limited by Congress. One of these “devices” was the idea of the Indians purchasing their own lands or having other persons or entities purchase lands for them that could then be added to or create new Indian reservations.

This fee to trust device was originally in Section 5 of the IRA. The BULLETIN of the Mission Indian Agency of April 16, 1934, Exhibit 8, in Paragraph 10 states: “The bill authorizes an appropriation of two million dollars of Federal funds each year for the purchase of land, which will be assigned to Indians who need land. In addition, any tribe or community may use tribal funds to buy new lands to be assigned or leased to needy

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members.” (underlined added to indicate words deleted from final act). This BULLETIN was released almost three months before the IRA bill was passed by Congress. The device we now call “fee to trust” in the original bill was expressly removed by Congress before it passed the IRA. Therefore, as passed by Congress, the only way to add additional lands under Section 5 of the IRA, 25 U.S.C. § 465, is for Congress to make a specific appropriation to purchase lands. Congress expressly did not intend Section 5 of the IRA to delegate any authority to the Secretary to accept fee lands into Indian trust status.

In 1941, the Attorney General imposed an order that prevented the Department of the Interior and all other Departments from claiming to remove lands from state jurisdiction without express state consent. Letter from Attorney General Jackson to Secretary of the Interior Harold Ickes, dated March 31, 1941, No. 151695, Record Group 75, Entry 132B, Departmental Memo, Box 1, BIA Orders. The 1941 position of the Attorney General was opposed by the IOD with an express Solicitor’s Opinion, 58 Interior Dec. 32 (1942). The Letter clearly cites the Enclave Clause, Art. I, Sec. 3, Cl. 17 as the basis for the 3 types of federal land holdings that could result from the United States acquiring fee property that was under state jurisdiction. First, the state could consent with legislative approval ceding exclusive jurisdiction to the federal government as a true federal enclave. The now closed Griffiss Air Force Base was ceded this way for a specific purpose. Second, if the United States condemned the land the Governor was requested to approve some cession of state jurisdiction giving the federal government concurrent jurisdiction over the fee property. Lastly, if the fee property acquired was a small purchase like for a post office it would just become property tax exempt but remain under state jurisdiction. The Letter

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Simply states the basics of the law for the federal government acquiring fee property as constitutionally permitted under the Enclave Clause. While this case directly concerns Section 5, 25 U.S.C. § 465, of the IRA, the other land provisions in the IRA concern further acquisitions of federal public domain territorial land for Indians and change the law for federal lands that had been allotted to individual Indians preserving the trust period indefinitely to prevent those lands from ever being fee patented to come under state jurisdiction. So even though the Congress removed most of the extreme positions of Commissioner Collier, it did allow the plenary power case law to expand the authority of the United States with the IRA over public domain lands and over the lands allotted to Indians.

Allotted lands that had not received their patents were placed in a permanent limbo between state and federal jurisdiction. Only recently has the Supreme Court at least partially defined the competing jurisdiction over the allotted lands in Plains Commerce Bank v. Long Family Land and Cattle Co., 544 U.S. 316 (2008). Attorney General Jackson’s position on land acquisition was an attempt to prevent the ever expanding federal authority over the federal territorial lands from disrupting the settled law in the non—public land states. His position officially lasted until the Congress commissioned a new report in 1965 over the public lands. See One Third of the Nation's Lands, 1970. And website.

This report changed the whole concept of disposing of the public domain lands and proposed keeping them permanently using the plenary authority that began with our Civil War just as Commissioner Collier had established for the Indians in the IRA. The report did note the major changes in water law that came from being able to expand the Winter's doctrine of federal reserved water rights that developed in Indian

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law into applying to the now permanently reserved federal public domain. See Winters v. United States, 207 U.S. 564 (1908) and Cappaert v. United States, 426 U.S. 128 (1976). The assertion that Indian lands and federal public domain land can be permanently reserved in federal territorial status changed the effect of the plenary powers. When the Kagama Court ruled in 1886 it was assuming that these plenary powers would only be used as long as needed to stop the Indian raids. Like the public domain they were considered temporary intrusions on our individual rights until States were formed and the full advantages of our constitutional structure were realized. Permanent plenary powers have a very insidious effect because bureaucrats and politicians get used to unlimited authority and begin reaching for more and more.

Counsel for the plaintiffs believes this is why the Department of the Interior and not just the BIA have become so arrogant. That arrogance is very much reflected now in the Department of Justice that is used to winning these cases because they have the plenary power behind them. This arrogance is now the issue in this case that the DOI and DOJ do not believe they must follow the Supreme Court ruling in Carcieri v. Salazar that imposes a limit on what they consider their unlimited authority. They are liked spoiled children being told no. They don’t believe their parents won't give in if they scream enough. Comparing Commissioner John Collier’s PRESS MEMO to the recently released letter to Congress from the Indian Law and Order Commission is telling. See Exhibit 9.

Virtually everything that they assert was in the original IRA legislation that Congress would not agree to. The Special federal Indian Court, tribal court authority over non--‐Indians and federal money to fund it were all in the legislation submitted by Commissioner Collier for

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the IRA. There is no limit to these plenary powers unless the federal courts enforce the statutory and constitutional structural limitations as the Court did in Carcieri and Hawaii.

2.
Permanent Plenary Powers threaten the Constitutional Structure and our natural Individual Rights

Using the plenary powers the Secretary has arbitrarily decided that because she is required in one federal statute to treat all Indian tribes equally that all Indian land must have the same tribal sovereign rights attached to it. This is not just the application of 25 CFR 1.4 being applied to the Part 151 regulations as was previously argued against the first federal motion for summary judgment. Plaintiffs naively assumed that the Secretary was still agreeing that there were two clauses in the Constitution allowing federal land ownership. This was our specific cause of action in the Amended Complaint over the radar station not being subject to disposal or transfer like it was federal territory because it was an official federal enclave.

This Court has dismissed this cause of action. We will be appealing that decision because now that same exact issue has become the question of what any fee lands taken into trust will be classified as by the United States. We know the answer to this question because the Village of Hobart v. Oneida Tribe of Wisconsin, 732 F.3d 837 (7th Cir. 2013), case which has been cited throughout these proceedings is already before the Supreme Court with a petition for certiorari.
The Seventh Circuit in that case has ruled that the fee lands taken into trust by United States for the Oneida Indian Tribe of Wisconsin are identical to and have all the attributes of federal territorial land. We also now know that the United States supports that decision because it has filed its opposition to the petition.

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The main argument of the United States in their opposition uses the City of Sherrill decision. “The statutorily authorized process by which the United States takes land into trust for an Indian tribe, See 25 U.S.C. 465 ‘provides the proper avenue for (a tribe) to reestablish sovereign authority over territory' that it previously held and lost. City of Sherrill v. Oneida Indian Nation of N.Y., 544 U.S. 197, 221 (2005).” Hobart U.S. Opp. Brf at 11. The United States added the words “that it previously held and lost” changing the whole meaning of the first part of the case that used an expanded laches doctrine to finally end the thirty years of tribal attempts to restore the lands taken away from their original reservation. In the context of the Sherrill opinion it makes more sense to read Justice Ginsburg's approval of 25 U.S.C. § 465 as being the proper process because the Part 151 regulations purportedly protect the interests of the non--‐Indians and the local government.

What Justice Ginsburg did not want to believe is that the Secretary and United States are only representing the interests of the tribal government. She seems to think this is supposed to be a neutral federal lands decision the way it was before the plenary power was allowed by the Supreme Court to apply to all Indian land decisions at the end of 1963 in Arizona v. California, 363 U.S. 546 (1963). That decision allowed the Secretary to represent only the interests of the five Indian tribes on the lower Colorado River against all existing private property rights. The United States then cites Nevada v. Hicks as it has done throughout this case in virtually every pleading. “It is true that States are not stripped of all jurisdiction when the federal government takes land into trust. See e.g. Nevada v. Hicks, 533 U.S. 353, 361 (2001);

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Mescalero Apache Tribe, 462 U.S. at 331--‐332. Hobart U.S. Opp. Brf at 16. In re--‐reading Nevada, counsel realized that the Justices are actually treating the federal Indian reservation reserved before statehood on real territorial lands in Nevada as a federal enclave. This is one very possible way that the Supreme Court could define the remaining permanently reserved public domain lands to end the federal plenary power. Treating fee to trust lands in New York as a federal enclave would have been a workable solution before the Settlement Agreement. But in the Settlement Agreement New York has conceded the plenary power authority to the OIN. Even if these lands were declared by a federal court to be like or actually a federal enclave would now not prevent the complete loss of the state political processes and individual rights that are about to happen unless this Court denies the federal government the authority to take the fee lands into trust under the AROD.

Denying the fee to trust would void parts of the Settlement Agreement as it is presently written. It would not necessarily void the whole agreement because it could be treated either as a gaming compact or just as a tribal/state compact under New York law. Nothing says that the State of New York cannot make the lands under the Turning Stone tax exempt if there is another form of compensation to the State. Every State does this all the time to encourage big corporations to bring in jobs. But as presently construed the consequences to the vast majority of residents in the area are catastrophic because any lands taken into trust will be treated by the United States as territorial lands of the Oneida, a land status that has never existed in the State of New York. The non--‐Indian citizens will be completely disrupted in their daily processes and may

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very well be subject to the Oneida police and court systems under this agreement. These police and courts are not bound by either the Constitution of the United States or the Constitution of the State of New York. See Santa Clara Pueblo v. Martinez, 436 U.S. 39 (1978). For an Oneida Indian like plaintiff Melvin Phillips it may mean the loss of all his rights of any kind as a citizen of New York or of the United States. See Elk v. Wilkins, 112 U.S. 94 (1884).

The tribe will control the land he lives on, they will control where and if he will be allowed to vote or have any other rights. They can deny him access to any tribal function, building gathering, office and even the tribal courts without him having any recourse. They can turn off the utilities to his home or disrupt the utility rights of way that provide services. Counsel for CERA has seen with her own eyes these things happen to reservation Indians in the Western States. The fact is that requiring the Indian tribes as political sovereigns to be treated equally deprives everyone else of individual rights. It literally turns the Framer’s concept of popular sovereignty on its head. This result happened because Morton v. Mancari made the historically racial trust into a political trust relationship. See Morton v. Mancari, 417 U.S. 535 (1974). Morton must be overruled for anyone to have enforceable individual rights against these plenary powers. For this reason plaintiffs will be appealing the dismissal of their civil rights causes of action. Lastly, plaintiffs request the Court allow this federal motion to be supplemented if the Supreme Court makes a major ruling in either Michigan v. Bay Mills Indian Tribe, Docket No. 12--515, argued December 2, 2013 or Bond v. United States, Docket No. 12--‐158,

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argued November 5, 2013. Both of these cases have issues that could change the arguments made by both sides in this litigation. Plaintiffs also point out that for the first time in Schuette v. BAMN, Docket No. 12--‐682, Decided April 22, 2014, the affirmative action case decided earlier this week, that Justice Scalia of the Supreme Court noted that there are actually two separate case lines running in civil rights law. Enforcement of civil rights under Section 5 of the Fourteenth Amendment has included the plenary powers since Elk v. Wilkins, 112 U.S. 94 (1884).

VII.
CONCLUSION
This Court should apply Carcieri v. Salazar and deny the federal motion for summary judgment .

Dated April 25, 2014
_/s/______________________________
James J. Devine,
Bar No. 01492 128
Main Street
Oneida, NY 13421
Attorney for Plaintiffs

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#1447198 --- 05/11/14 05:03 AM Re: Trust Lawsuit [Re: Rich_Tallcot]
kyle585 Offline
Gold Member

Registered: 02/18/09
Posts: 19801
Loc: Somewhere out there
by DAVID L. SHAW
dshaw@fltimes.com

UNION SPRINGS –– A Saturday morning attempt by Unity Council members totake over the Cayuga Indian Nation’s operationsin Cayuga County caused a standoff with the Clint Halftown faction.

In the end –– after involvement by lawyers and the Cayuga County judge –– the Unity Council agreed to back down and allow the current arrangement to continue until the two sides meet in court May 20. The Cayuga Nation’s Lakeside Trading gas station and convenience store and Lakeside Entertainment gaming hall, both on Route 90 in Union Springs, were closed for a few hours Saturday morning before reopening early in the afternoon.

The Seneca Falls gas station and convenience store –– controlled by the Unity Council since April 28 –– was unaffected. Unity Council member Justin Bennett said a delegation went to the Cayuga Nation’s Lakeside Trading facility and gambling hall in Union Springs. Saturday morning “in an effort to enforce the tribe’s consensus decision to remove Clint Halftown as president and CEO of Nation businesses.”

Bennett said the group was met by Halftown-hired security personnel and employees, who called Halftown and were told not to yield to the Unity Council. “We proposed they were no longer Nation employees and there be a 90-day cooling off period for those employees, but they would not leave at Mr. Halftown’s direction and a standoff ensued,” Bennett said.

Bennett said lawyers for both sides were called to meet with Cayuga County Judge Thomas Leone in his Auburn office. According to Bennett, Unity County lawyer Joseph Heath and Halftown lawyer Daniel French came from Syracuse and presented their positions to Leone, who asked that the status quo be maintained until he hears the court case May 20. Bennett said Heath told the Unity Council of Leone’s request and they agreed to it. There was no physical contact or arrests resulting from the standoff, he said.

An assistant store manager in Union Springs declined to discuss the day’s events. Halftown could not be reached on his cell phone and his voice mailbox was full and could not accept new messages.


Edited by kyle585 (05/11/14 05:12 AM)
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#1447216 --- 05/11/14 11:39 AM Re: Trust Lawsuit [Re: Rich_Tallcot]
Blue_man Offline
Member

Registered: 08/29/00
Posts: 423
Loc: Required, FD
Tldr
What's the upshot of the decision?

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#1447249 --- 05/11/14 09:46 PM Re: Trust Lawsuit [Re: Rich_Tallcot]
Rich_Tallcot Offline
Senior Member

Registered: 01/19/03
Posts: 5565
Loc: Greeneville, TN
Oneida Dispatch
Opinion Column: Why I'm voting to reject Sherrill's cut of the Oneida Indian Nation settlement
By Mike Hennessy, Sherrill Commissioner
05/10/14
Sherrill Commission to Vote on agreement

Monday's Sherrill City Commission meeting's agenda includes voting on accepting the county’s offer of $160,000 to offset losses associated with tribal properties going into trust in Sherrill. The agreement is between the county and the City of Sherrill. Yet, the agreement depends on third parties (Oneida Indian Nation and the State of New York) to fulfill their obligations.

Based solely on the dollar amounts offered by the county to the various impacted communities, one can understand why local elected officials are willing to take the money. With state spending caps placed on local governments and our local schools, financing services and programs is becoming more difficult.

When I vote against this agreement I recognize my point of view will be questioned and my vote will be in the minority.

That's fine because I'm confident that in time this agreement will cause us greater concerns than we face today.
In reading this contract, one sees how one-sided it is and how costly it would become if we tried to break this never-ending agreement.

If we were to end the agreement and brought legal actions against parties to this agreement, we would have to repay the county "ALL MONIES RECEIVED," plus interest! An example, after receiving money for three years, the city would have received $480,000. If, for whatever reason, Sherrill needed to end the agreement, it would have to repay the $480,000 plus interest within 30 days. If Oneida County did not pay us on time they would have six more months, and if it's still unpaid, the city could file a notice of payment, but the county would have another three months to answer.

Knowing the past relationships among these various parties. Should I feel comfortable, as a city commissioner, in budgeting and spending this money knowing that a problem could cause irreparable harm to our city's finances?

In Sherrill, the impact of the county's OIN agreement is a yearly property tax loss of about $28,000 -- about 5 percent of the city's budget. Certainly, simple budgetary changes could offset the loss of those revenues.

Secondly, I know that the taxpayers of Sherrill pay county, town and school taxes. Before we rush to judgment on our city agreement we should have a full understanding of how it affects our taxpayers' bottom line.

Thirdly, this agreement has no ending date, nor a date set to review terms and perhaps increase future payouts.
Finally, there are federal statutes that are cited in the terms of this agreement that make me concerned that this agreement will open up more land to be placed into the trust in excess of the 25,000 acres stated in the county agreement.

The money found in this agreement should not be the reason for accepting or defeating it. Rather, does this agreement make common sense and should we be forced by our county executive to a take-it-or-leave it offer that seems like a form of blackmail from a county executive who should be looking out for our interests.

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#1448065 --- 05/19/14 11:45 AM Re: Trust Lawsuit [Re: bluezone]
Timbo Offline
Silver Member

Registered: 07/18/12
Posts: 14300
Loc: CNY
Originally Posted By: bluezone
No Trust land in NY.

And that statement cuts to the very heart of your anti-indian arguments, doesn't it?
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#1450476 --- 06/12/14 07:06 AM Re: Trust Lawsuit [Re: Timbo]
bluezone Offline
Diamond Member

Registered: 12/19/04
Posts: 32535
Loc: USA
Originally Posted By: Timbo
Originally Posted By: bluezone
No Trust land in NY.

And that statement cuts to the very heart of your anti-indian arguments, doesn't it?


feel free to show us the 'treaty' that references 'trust land'

yawn...
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#1450491 --- 06/12/14 08:59 AM Re: Trust Lawsuit [Re: bluezone]
Timbo Offline
Silver Member

Registered: 07/18/12
Posts: 14300
Loc: CNY

What in the world are you babbling about, now?
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Everyone's entitled to their own opinions, but not their own facts.

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#1452709 --- 07/04/14 10:02 AM Re: Trust Lawsuit [Re: Blue_man]
Rich_Tallcot Offline
Senior Member

Registered: 01/19/03
Posts: 5565
Loc: Greeneville, TN
Originally Posted By: Blue_man
Tldr
What's the upshot of the decision?

Simply put, Summary Judgment was not granted.

Summary Judgment is a ruling by the court whereby all parties agree to all facts presented which thereby establish the foundation for all future rulings. So when the incompetent attorneys misrepresenting the State agree to a summary judgment, they accept tribal arguments as facts rather than clarifying that all the Treaty of Canandaigua did was accept all prior State treaties as valid. It did so legally under the Articles of Confederation before it joined the Union. The prior State treaties purchased ALL the lands which made them State lands before the State joined the union and, “OF the ceded lands”, emphasizing they were and are State lands, the tribes were allowed a use right to occupy. But the lands themselves did not belong to the tribes which is why only the State had authority to purchase those use rights back.

Tribal arguments claiming those use rights were instead a “set aside”, which would mean the State did not own the land, and that the Treaty of Canandaigua federalized such lands were accepted as fact by Nixon Peabody in the Oneida case when they accepted Summary Judgment. When they did that they basically lost the case. So it is just as well that they dropped their lawsuit.

UCE and CERA are not that stupid and the four point posts which I made giving the reply CERA made to the federal request for Summary Judgment explains why.

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#1453269 --- 07/10/14 12:51 AM Re: Trust Lawsuit [Re: Rich_Tallcot]
Rich_Tallcot Offline
Senior Member

Registered: 01/19/03
Posts: 5565
Loc: Greeneville, TN
Vernon and Verona will fight federal land trust because 'we are a nation of laws'

The following letter represents the views of the members of the town councils of Vernon and Verona. It was written by Ken Regner, a member of the Verona Town Council.

To the Editor:

Our founding fathers created this exceptional nation on one basic principle: that we would be a nation of laws, not a nation of men.

In the spirit of our July 4 weekend, our choice over two centuries ago to rule ourselves is based on the idea that no one man -- or one level of government -- should possess unlimited authority.
We would be a nation of laws, not a nation of men.

It is this principle that guides the decision of the Towns of Verona and Vernon to continue legal action preventing the national government from placing land into federal trust. There has not been one federal court decision -- zero, zip -- that has given the green light to the federal Department of the Interior to set the dangerous precedent of usurping New York State sovereignty by reclassifying property rights within our town borders to satisfy the state and Oneida County's narrow agenda.

Yet those with more influence than two small rural towns continued to push for a final resolution, without allowing the taxpayers with the most to lose representation at the negotiating table. What person would agree to sign any business deal in which he had no right to a voice in the negotiations?

Nobody.

And neither will the Verona and Vernon townships under the same circumstances. We don't like the behind-the-doors process in which the contract was reached. And we towns have a right to challenge that process.
Gov. Andrew Cuomo circumvented federal court decisions and Vernon and Verona's taxpayers and strong-armed a deal in exchange for increased tax revenue by expanding casino gambling across the state. The state Legislature follows by quickly greasing the legislation - voting on a pact that included blank fill-in-the-details-later pages with little thought to the long-term impact this deal will have on school, property, sales and bed tax revenues on our taxpayers.

But we are a nation of laws, not of men.

What person would agree to sign any business deal in which he had no right to a voice in the negotiations? Nobody.

The Verona and Vernon town councils can take the easy route and become obediently dependent on anticipated state and county payments from Cuomo's pact. We can trust that payments will continue without interruption. We can hope that future payments will increase to cover the rate of inflation, unfunded state mandates, and make up for the lost revenue when a majority of the taxable properties are taken and placed into federal trust.
We can ignore the small print of the pact and not question the impact reclassifying land rights by the federal government will have on us and our municipal home rule rights.

But we, the town councils, cannot make our decisions based solely on speculated revenue and vague legal consults from our elected county representatives. We must consider the impacts this deal will have on all of us 10, 20, even 50 years down the road.

When our Constitution was written, it was agreed that a federal system of government would serve its people best. The vision was not to place the majority of the decision-making with the national government -- nor even the states -- but rather with the local governments. A central, state and county government that becomes so powerful that is can ignore its own laws and the decisions of the federal courts, does not honor the principle that established this nation.

But we still are a nation of laws, not men.

The towns of Verona and Vernon will continue to protect are our rights as decided by the federal courts. We will continue to fight for a voice for our taxpayers. Our towns may have become expendable - just dry up and blow away with the wind -- in the eyes of our national and state and county governments. But we feel we have an important responsibility to the future of our communities -- those to whom we are accountable.

Town of Verona
Owen Waller, Supervisor
Town Council:
Ken Regner
Scott Musacchio
Ken Brewer
Fritz Scherz
Town of Vernon
Myron Thurston, Supervisor
Town Council:
Michael McDonough
J. Randall Watson
Eugene Bennati
Stephen Adamkowski

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