Oneida Indian Nation files foreclosure brief
Published: Friday, February 04, 2011
by CAITLIN TRAYNOR
Dispatch Staff Writer

NEW YORK -- The Oneida Indian Nation submitted its brief in the foreclosure case currently before the Second Circuit Court of Appeals Wednesday, drawing parallels with a cigarette tax case.

The Supreme Court vacated the Second Circuit’s prior decision and remanded the case back to the lower court after the Nation waived its sovereign immunity. The Supreme Court accepted Madison and Oneida counties’ petition to hear the foreclosure case after the Second Circuit upheld a district court ruling barring foreclosure proceedings against the Nation.

The counties, along with New York state, submitted briefs to the court Jan. 26. The counties will have an opportunity to reply to the Nation’s arguments by Feb. 7. No date has been scheduled yet for the two parties to face off in the courtroom.

In the Nation’s brief, it argues that the issue of sovereign immunity is now moot and urges the court to address the remaining issues, particularly the tax exemption of the Nation’s land under New York state tax law.

In background information offered on the case, the Nation asserts that within a week of the Supreme Court’s Sherrill decision in 2005, the Nation applied to have its lands taken into trust and in doing so, “committed to pay Madison and Oneida counties any and all property taxes, penalties and interest that are held to be lawfully due on the properties at issue here and it posted irrevocable letters of credit to secure that commitment.”

Despite those letters of credit “securing tax payments, Madison and Oneida counties remain steadfast in their effort to foreclose on the Nation’s property,” the Nation’s brief says.

The district court that handled the case first placed an injunction on the foreclosures on the grounds that the Nation has sovereign immunity from suit, that foreclosure would violate the Nonintercourse Act’s restrictions on alienation of Indian land, the counties failed to give notice of foreclosure and the land is exempt from tax as it is tribally-owned land.

The Second Circuit affirmed the district court’s decision on the sole ground that the Nation is immune from suit and did not address the other issues. Now that the Nation has waived its sovereign immunity, the main issue the Second Circuit needs to resolve is the taxability of Nation land under New York State tax law, it says.

The Nation points to district court rulings that have sided with Indian tribes, barring counties and the state from taxing tribal lands. In its brief it also draws parallels with the Cayugas’ cigarette tax case, saying the Second Circuit “held that the New York tax exemption for on-reservation cigarette sales applied to two parcels of land situated in the Cayuga reservation, even though the land had been alienated from the tribe for roughly 200 years and recently reacquired by the Cayugas in open-market transactions.”

That reasoning allows for the conclusion to be drawn that reacquired land within its federally recognized reservation is exempt from foreclosure, the Nation says. Continued...

Drawing on previous district court rulings, the Nation says the courts have already established that “the counties failed to give the Nation adequate notice of the foreclosure redemption period and thereby violated the Nation’s due process rights.”

The Nation also maintains that the district court properly ruled that the counties’ foreclosures on its property would violate the Nonintercourse Act. After waiving its sovereign immunity the Nation says that violation is no longer an issue.

“In light of that representation, the Nation no longer invokes the Nonintercourse Act’s statutory restrictions on the alienation of Indian land as a defense to tax foreclosures.”

Key documents:

Letters and waiver of tribal immunity: http://www.scribd.com/doc/48166369

Petioner's Brief: http://www.scribd.com/doc/48166375

Respondents Brief:: http://www.scribd.com/doc/48179992

State of New York Amicus Curiae Brief: http://www.scribd.com/doc/48166376

espondents Supreme Court Brief: http://www.scribd.com/doc/48166384
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"OUR COUNTRY IS IN MOURNING, A SOLDIER DIED TODAY."