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Indian Nations Law Update - November 2011

November 16, 2011

Potawatomi Solar Array Powers Tribal Administration Building

The Forest County Potawatomi Community (Tribe) recently completed the installation of a 30-kilowatt solar photovoltaic array on the roof of its administration building in Milwaukee, Wisconsin. The solar array is part of the Tribe's larger effort to implement energy efficiency and renewable energy projects, with the ultimate goal of energy independence and a zero carbon footprint. Godfrey & Kahn assisted the Tribe in securing grant incentives to help offset a large portion of the cost of the installation, including support from the U.S. Department of Energy, Wisconsin Focus on Energy, and the local utility.

The federal government, most states and many local governments offer financial assistance and other incentives for the development of renewable energy. For more information on how your tribe can take advantage of these programs and achieve its long term clean energy goals, contact Brian Pierson.

Courts Signal the End of Eastern Land Claims

Recent decisions of the U.S. Supreme Court and the Second Circuit Court of Appeals will have a profoundly negative impact on tribes' efforts to obtain redress for historic grievances. Since the early 1970s, the Oneida tribes of Wisconsin, Ontario and New York, together with the Stockbridge Munsee Tribe, have pursued land claims seeking relief for the loss of approximately 250,000 acres of land conveyed to New York in the late 18th and early 19th centuries in violation of the Indian Nonintercourse Acts (INA) (currently codified at 25 U.S.C. § 177). The Supreme Court had issued two preliminary rulings, in 1974 and 1985, upholding the Oneidas' right to pursue land claims in federal court. Several other tribes filed similar land claims. In 2005, however, the Court ruled that the tribe could not assert jurisdiction over lands acquired in the 1990s to avoid state property taxes, holding that "a contrary conclusion would seriously disrupt the justifiable expectations of the people living in the area." City of Sherrill v. Oneida Indian Nation of New York, 544 U.S. 197 (2005).

While the City of Sherrill decision did not directly affect the tribes' principal land claims, the New York federal courts subsequently applied its underlying principles to those claims. In 2010, the Second Circuit Court of Appeals held that "standards of federal Indian law and federal equity practice" barred the Oneidas from seeking damages for conveyances of Oneida land in violation of the federal Nonintercourse Act in the late 18th and early 19th centuries because to recognize those claims would be "disruptive." (See September 2010 Update.) The court reached the same conclusion with respect to several other tribes' land claims. On October 17, 2011, the Supreme Court denied the petition of the Oneida Nation of New York for review of the Second Circuit's decision Madison County v. Oneida Indian Nation, 617 F.3D 114 (2nd Cir. 2010). 2011 WL 1933740, 79 USLW 3674 (2011).

On October 20, 2011, the Second Circuit handed down its decision in Oneida Indian Nation of New York v. Madison County, 2011 WL 4978126 (2nd Cir. 2011), the property tax foreclosure case that the Supreme Court had considered in City of Sherrill in 2005.

On remand from the Supreme Court, the district court enjoined the counties from pursuing foreclosures based on unpaid property taxes, ruling that the Tribe's sovereign immunity protected it, that the foreclosures were barred by the INA, that the foreclosure proceedings violated Due Process for lack of notice and that foreclosure was prohibited by a state law that "[t]he real property in any Indian reservation owned by the Indian nation, tribe or band occupying them shall be exempt from taxation." After Second Circuit affirmed solely on the sovereign immunity ground, see Oneida Indian Nation of N.Y. v. Madison County, 605 F.3d 149 (2d Cir. 2010) (See May 2010 Update), the Supreme Court granted the counties' certiorari petition. In order to prevent a second review by the Supreme Court, the OIN unilaterally waived its immunity and persuaded the Supreme Court to remand to the Second Circuit.

On remand, a three-judge panel of the Second Circuit (1) vacated the district court's previous rulings in the Tribe's favor on the issues of sovereign immunity and the INA and instructed the district court to dismiss those claims with prejudice, (2) rejected the OIN's due process argument, (3) reaffirmed its earlier ruling that the OIN reservation had not been disestablished and (4) vacated the district court's judgment relating to the state law claim, with instructions to dismiss without prejudice so that the OIN could make its claim in New York courts. The OIN may still avoid state property taxes based on state law. The State, however, has asked the entire Second Circuit to review the three-judge panel's holding that the Oneida Reservation was not disestablished.

Tribal eastern land claims based on illegal transfers of Indian land the late 18th and early 19th centuries in violation of the INA began in the 1970s and provided the backdrop for various congressional land claim settlements act and, in some cases, re-recognition of tribes. The recent above-described actions of the Second Circuit and the Supreme Court suggest that these claims, once formidable, are no longer viable. The change in the composition of the U.S. Supreme Court since the 1970s likely accounts for this result.

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