Oneida Indian Nation

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The Oneida Indian Nation is the Oneida tribe that resides in New York and currently owns a number of businesses and own tribal land in Verona, NY, Oneida, NY, and Canastota, NY.

Contents 1 Businesses 1.1 Turning Stone Casino & Resort 1.1.1 The Tribal-State Gaming Compact 1.1.2 Scope of the Gaming Compact 1.2 Other Business Ventures 1.3 SavOn 2 The Oneida Land Claim 3 Criticism 3.1 Tax Issues 4 References 5 External links

[edit] Businesses

In the early 1990s, the Oneida tribe originally opened a bingo house and one of its more active members, Ray Halbritter, opened a tax free gas station across the street, known as SavOn (not to be confused with a gas station chain & retail that exists in the western side of the US). The cheaper gasoline made the gas station popular among the community and eventually SavOn was bought out by the Oneida Indian Nation and expanded into multiple locations within the area.

[edit] Turning Stone Casino & Resort

The most profitable business is the Turning Stone Casino & Resort, which has been expanding continuously since its inception. It began as a bingo hall and quickly grew into a huge Class III gaming facility. The site includes nationally ranked hotels and restaurants. It performs many shows throughout the year and is now the host for a fall PGA tournament.

[edit] The Tribal-State Gaming Compact

The original gaming compact was executed in 1993 between then governor Mario Cuomo and the Oneida Indian Nation. In opposition to the Casino's operation in general, The Upstate Citizens for Equality helped to challenge the compact's validity on grounds that the state legislature failed to approve the compact pursuant to the New York State Constitution. In Peterman v Pataki^[1], the compact was declared unconstitutional because of the legislature's failure to approve the compact, despite Cuomo's representation and belief that legislative approval was unnecessary. The Oneida Indian Nation appealed this decision up to the Court of Appeals to no avail. The U.S. Supreme Court denied cert. This is not surprising given the nature of the case. The high court typically refrains from intervening in suits that pertain largely to state matters even though it would have jurisdiction to hear the case. Note that a denial of cert. is NOT a judgment on the case's merits and is not to be used as legal precedent. But the lower court's decision stands until overturned. Further, the Rules of Decision Act, as interpreted by Erie Railroad, requires federal courts to apply state law where there is no conflict between state and federal law. Where there is a conflict of laws, federal law preempts state law under the supremacy clause of the U.S. Constitution. The Indian Gaming Regulatory Act (IGRA) incorporates state laws into federal law, specifically 18 U.S.C. 1166 provides in pertinent part that "for purposes of Federal law, all State laws pertaining to the licensing, regulation, or prohibition of gambling, including but not limited to criminal sanctions applicable thereto, shall apply in Indian country in the same manner and to the same extent as such laws apply elsewhere in the State."^[2] The United States Court of Appeals for the Tenth Circuit has held that approval of a Compact by the Secretary of the U.S. Department of the Interior "did not and, under IGRA, could not, alter its validity or non-validity under state law."^[3] To date, the Second Circuit has not adopted this view in regards to the validity of a compact, however the Second Circuit has adopted the part of the Tenth Circuit's decision on waiver of sovereign immunity.^[4] But again, to date, the 2d Cir. has yet to hold that OIN waived its sovereign immunity.

The Oneida Indian Nation then appealed to the U.S. Department of the Interior Bureau of Indian Affairs. After many failed attempts to negotiate a settlement by an April 2007 deadline, the Department of the Interior launched its own investigation into the compact's validity. On June 13, 2007 when the Associate Deputy Secretary of the Interior declined to reconsider its approval of the compact, Mr. Cason stated, "the 1993 Compact continues to be in effect for purposes of the IGRA"^[5]. On August 7, 2007 in an action between New York and the Oneida Indian Nation, U.S. District Judge Kahn, upheld Magistrate Treece's order directing the depositions of high ranking officials and denying the State's motions. The decision also dismissed the Amended Complaint pleading, which attacked the Board's authority to amend the Compact due to Peterman and Seneca, on subject matter jurisdiction grounds. The fact that the amended complaint was dismissed on jurisdictional grounds deprived the court of the opportunity to address the compact's validity at the federal level. If the compact was invalid, then the Oneida Indian Nation would be violating federal law (operating a gaming facility without a tribal-state compact).^[6] Such a violation of federal law would have provided the requisite subject matter jurisdiction (federal question) to address the amended complaint. Even though the State sought to enjoin the Nation from operating Instant Multi Game ("IMG") based on its failure to adhere to the procedures in the Compact,^[7] the state has since dropped this case.^[8]

[edit] Scope of the Gaming Compact

Since the Compact's original approval, the Department of the Interior specifically stated "compact does not specifically refer to the site where . . . the Nation has built a major new facility in anticipation of being able to conduct gaming in the future. Since the compact tracks the [IGRA's definition of 'Indian lands'], we . . . take no position with regard to whether this new facility is on 'Indian land' as that term is used in IGRA"^[9]. This does not have any bearing on the actual Compact's validity, but it does deal with another issue involving the Compact: the Casino's authority to operate at its present location.

State law forbids Class III gaming on lands within New York State. For some time, it was believed that the land the Oneida Indian Nation once owned, sold, and since re-acquired automatically returned to its status as Indian Territory. In City of Sherrill v Oneida Indian Nation, Justice Ginsburg determined that the land the casino is on was part of the Oneidas' original tribal lands^[10]. The Court continued that although the land may be part of an ancient reservation land grant, 200+ years was too long a time period to be non-Indian territory for the Oneida Indian Nation to re-establish its immunity over those lands.

OIN supporters criticize the decision as asking more questions than it has answered. The issue in Sherrill was whether the city could collect property taxes on OIN's re-acquired tribal lands. The Supreme Court determined that the city of Sherrill could collect property taxes. But the court failed to overturn the Second Circuit's finding that the land qualified as Indian Territory. OIN supporters speculate that Sherrill stands only to say that the OIN cannot re-instate its tax immunity but that the land is still Indian Land. UCE and its supporters disagree and claim that Sherrill is a blanket approval to foreclose on all OIN property that has back taxes. Additionally, some UCE members wish to extend the case to bar the casino's operation as illegal and have it shut down until a new agreement can be reached.

To "re-establish sovereign authority" over the land purchased on the open market, the U.S. Supreme Court stated that the "proper avenue" for the Oneida Indian Nation was through § 465 of the Indian Reorganization Act and apply to the Department of the Interior to place the disputed lands into federal trust.^[11] On April 2005, the Oneida Indian Nation applied to have this land taken into trust. The Oneida Nation also took other legal steps to try to preserve Class III gaming at Turning Stone. On February 27, 2008, the BIA released its Final Environmental Impact Statement and recommended that 13,084 acres be placed into trust. After this announcement, the DOI gave a 30 day comment period and announced that it would have a decision on or after March 25, 2008.^[12]

Some government officials have expressed concern with creating a "patchwork of taxable and tax-exempt properties" in addition to a "jurisdictional nightmare." In opposing the OIN's land-into-trust application, New York has raised the question of whether the Indian Reorganization Act even applies to the Oneidas because they specifically rejected the Indian Reorganization Act 12 to 57 in a vote conducted on June 17, 1936.^[13] Initially the Oneida were considered not eligible, but in a reconsideration based on the discussion in the case of U.S. v. Boylan, the Department of Interior changed its position and conducted the referendum.^[14]

On March 2008, County Executive Anthony Picente held a public meeting to discuss the possibility of negotiating a settlement before the March 25th deadline. Congressman Arcuri pulled unprofessional backdoor politics to try and stall the decision. While criticized by both sides for killing any progress made between the two sides, Mr. Arcuri explained that it was his attempt to try to encourage negotiations. But there has not been any attempt to negotiate since then. It is interesting to note that on January 2008, Mr. Ray Halbritter sent a proposed settlement offer to the state and the county, but has not received a response to date.^[15] The Nation has offered to negotiate an agreement pertaining to future trust applications, but the state and local government have not responded to this offer.

On May 20, 2008, the DOI announced that it intends to take 13,004 acres into trust.^[16] Reactions from both sides were to be as expected, the Oneida Indian Nation offering to negotiate and settle the issues involved, the state and county officials promising more costly litigation in lieu of negotiation.

It is of further interest to note the case currently before the U.S. Sup. Ct. where Rhode Island officials are suing on grounds that the IRA is unconstitutional. Oral arguments are slated for the Fall.

[edit] Other Business Ventures

The Oneida Indian Nation has also purchased a marina on the south eastern shore of Oneida Lake and many plots of land in the area.

The Oneida Indian Nation is the largest employer of the area with approximately 5,000 jobs total.

Disputes have arose as of 2007 pertaining to the economic disadvantage of having the Class III gaming remain in operation. Vernon Downs opened a casino to attempt to compete with Turning Stone. Vernon Downs's operation has had little opposition, mainly because it is taxed. But Vernon Downs struggles to remain in operation and in late 2007, many of its original investors pulled out of the venture. UCE and supporters attribute this to the fact that OIN's casino is not taxed. OIN supporters attribute Vernon Downs's troubles to the fact that it has to pay 54% in tax revenue, making profitability extremely difficult. The so-called "multiplier effect" has allegedly failed to work, and is blamed on the lack of taxes collected from the OIN. If more cooperation occurred, there would be a significant "multiplier effect," as evidenced from the successful fall PGA Tournament OIN hosted in September 2007.

The Nation consistently re-invests in the local economy and aids its neighboring cities. The Oneidas helped pay for and fix Verona's water problems. The Oneidas have worked hard to win the host for a PGA tournament in the Fall of 2007 after a successful BC Open in the summer of 2006. When expanding their businesses or improving their current assets, the Indian Nation will look first to local companies before expanding beyond the tri-county area. Before all the recent turmoil between the Indian Nation, UCE, state and county officials, the Indian Nation also donated millions to local school districts in its Silver Covenant Chain of Education Grants Program. Since the onslaught of political posturing, the Nation has since discontinued that program. Many are hopeful that after the turbulence settles down the Nation will restart the program and enter an agreement with the local politicians to make the program a more permanent fixture for the schools to rely on.

[edit] SavOn

SavOn is a chain of gas stations and convenience stores located in Oneida and Madison Counties of New York, which is owned and operated by the Oneida Indian Nation, through its business arm, Oneida Nation Enterprises.

[edit] The Oneida Land Claim

The Oneida Indian Nation of New York, Oneida Nation of Wisconsin, and the Oneida Nation of the Thames commenced actions to reclaim land that allegedly was taken from them without the approval of the United States in 1970 and 1974 in the United States District Court for the Northern District of New York. In 1970, the Oneidas filed a “test” case in federal court, suing Oneida and Madison counties for 2 years rent (1968-69) on county owned acreage amounting to $16,694. The United States District Court for the Northern District of New York dismissed the action and the Oneidas appealed. On July 12, 1972, the U.S. Second Circuit Court of Appeals^[17] affirmed the District Court’s decision. The OIN petitioned the U.S. Sup. Ct. to grant cert. In Oneida Indian Nation v. County of Oneida,^[18] the Court decided in the Oneida Indian Nation's favor. On July 12, 1977, on remand to the District Court with Judge Edmund Port presiding, the Court sided with the Oneidas. The counties then appealed to the Second Circuit, which affirmed Judge Port's decision.^[19] The counties next petitioned the U.S. Supreme Court for a writ of cert., which the court granted. On March 4, 1985, the U.S. Sup. Ct. opined in the Oneidas' favor in a 5 to 4 vote.^[20] In a 5-4 decision, the Court ruled that the Oneidas had a common law right to sue in federal courts and that such claims were justiciable. Additionally, the Court decided that there was no state or federal statute of limitations that would bar such claims. The majority opinion contains the following footnote: "The question whether equitable considerations should limit the relief available to the present day Oneida Indians was not addressed by the Court of Appeals or presented to this Court by petitioners. Accordingly, we express no opinion as to whether other considerations may be relevant to the final disposition of this case should Congress not exercise its authority to resolve these far-reaching Indian claims." Justice Stevens, wrote in his dissent: "This decision upsets long-settled expectations in the ownership of real property in the Counties of Oneida and Madison, New York, and the disruption it is sure to cause will confirm the common law wisdom that ancient claims are best left in repose. The Court, no doubt, believes that it is undoing a grave historical injustice, but in so doing it has caused another, which only Congress may now rectify." In 1998, the United States intervened in the lawsuits on the plaintiff's behalf in order for the claim to proceed against New York State because the state asserted its immunity under the Eleventh Amendment to the United States Constitution.^[21] Based on City of Sherrill v. Oneida Indian Nation and Cayuga Indian Nation v. New York, the Defendants moved for summary judgment.^[22] On May 21, 2007 Judge Kahn dismissed the Oneidas' possessory land claims and allowed the non-possessory claims to proceed.^[23]

[edit] Criticism

The Oneida Indian Nation has both internal and external opposition. Internally, members of the Wolf Clan in particular protest Halbritter's assumption of power and dissolving of the traditional Oneida government^[24]. According to Shenandoah v. United States DOI, 159 F.3d 708, (2d Cir. 1998), there are serious question as to the legitimacy and authority of Ray Halbritter to act on behalf of the Oneida Indian Nation of New York. Specifically, “In 1977, members of the Oneida Nation appointed Halbritter and two other Nation members as interim representatives of the Nation. On April 25, 1993, the Grand Council, consisting of representatives from all six Iroquois nations, including the Oneida Nation, purported to remove Halbritter from his position as interim Nation representative. The Department acknowledged the removal on August 10, 1993, but the next day stayed its acknowledgment pending BIA review. After requesting the Nation to conduct a referendum to select a representative, the Department agreed to Halbritter's proposal to submit "statements of support" from Nation members. On February 4, 1994, the Department notified Halbritter that it would continue to recognize him as the Nation's permanent representative until such time as he resigned or was removed by the Nation in accordance with certain procedures. According to plaintiffs, on May 21, 1995 the Nation once again removed Halbritter from his position as Oneida representative. Although informed of Halbritter's alleged second removal, the Department had not acted upon that notification by the time of oral argument, and as of the time of this opinion, we have received no information to the contrary.”

External opposition comes from groups like the Upstate Citizens for Equality, a group which opposes Haudenosaunee land claims in upstate New York as well as the tax free basis that the tribe's enterprises can operate under despite the nation's limited sovereignty^[25].

[edit] Tax Issues

Land owned by the Oneida Indian Nation was generally thought to be tax free until City of Sherrill v Oneida Indian Nation, 544 US 197 (2005). Previous promises given by the State of New York to allow Native American owned businesses to sell goods tax free created a price advantage for their gas stations, which has led to all but a few local gas stations being unable to compete and being bought out by the Oneida. In 2004 the Oneida tribe made an agreement to charge an Oneida tax on their gas, giving other gas stations more price equivalence with non Native American owned gas stations in the area.

The Oneida Indian Nation has asserted that it made up for this lack of land tax by donating to local schools in amounts that exceed the taxes that the county would normally receive from the land plots, known as Silver Covenant Chain Education Grants^[26]. In recent years, due to the increased tensions between the local governments, the state government, and the Oneida Indian Nation, the amount of donations have either significantly decreased or stopped. Stockbridge Valley school has several Oneida Indian children, and yet the nation refuses to give them any money because of the views of one teacher^[27].

[edit] References

[edit] External links

• Oneida Indian Nation
• Oneida Indian Nation
• Turning Stone Casino & Resort