F:\Onondaga\Pleadings

$F:\Onondaga\Pleadings$ UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK THE ONONDAGA NATION, Plaintiff, v. Civil Action No. 05-CV-314 (LEK/DRH) THE STATE OF NEW YORK, et al., Defendants. PLAINTIFF’S RESPONSE TO DEFENDANTS’ STATEMENT OF MATERIAL FACTS Because they style their motions as ones falling under Rule 12(b)(6), Defendants have not submitted a Statement of Material Facts, which would be required by Local Rule 7.1(a)3 if the motions are converted to motions for Summary Judgment pursuant to Rule 12(b), Fed. R. Civ. Proc. Because facts beyond the First Amended Complaint are in issue in this case, this Court may decide to convert Defendants’ motions to motions for summary judgment. Plaintiff therefore submits this Response to Statement of Material Facts in opposition to summary judgment. Local Rule 7.1(a)3. The purported facts that are assumed by Defendants and which they ask this Court to accept without proof are entirely incorrect. Thus, Plaintiff contests those of Defendants’ purported facts which pertain to the issues of laches, acquiescence, impossibility, and disruptiveness, as well as the issues of the Onondaga Nation’s presence in the area, the character of the area, the alleged improvements to the area, the effect of a declaration of title and other issues listed below. I. DEFENDANTS’ STATEMENT OF UNCONTESTED MATERIAL FACTS 1. Plaintiff delayed unreasonably in filing this law suit. Denied. 2. Plaintiff acquiesced in the taking of its lands by Denied. New York State. 3. Defendants have been prejudiced by the alleged Denied. delay in filing suit 4. More than 200 years have elapsed since 1790, when Admitted. the first actionable wrong by New York State occurred. 5. The area has a “non-Indian character.” Denied. 6. The area in issue has been improved by Defendants. Denied. 7. This law suit is disruptive. Denied. 8. The Onondaga Nation does not have a presence in Denied. the area. II. PLAINTIFF’S RESPONSE TO STATEMENT OF MATERIAL FACTS A. The Federal and State Courts Were Closed to the Onondaga Nation Until 1974 1. Plaintiff did not delay in filing this suit. From 1788 to 1974, Plaintiff had no legal opportunity to file this or any similar suit. Declaration of Dr. Lindsay Robertson (Robertson Declaration) passim. 2 2. The federal courts did not have jurisdiction to entertain such suits before 1974. Robertson Declaration ¶¶ 44-49. 3. The original jurisdiction of the United States Supreme Court was not available to Indian tribes because the Court ruled in 1831 that the Cherokee Nation did not constitute a “foreign state” for purposes of Article III original jurisdiction. Robertson Declaration ¶ 44. 4. The jurisdiction of the lower federal courts, which was established in 1789, was limited to suits between citizens of different states. Unless citizenship were acquired by other means, individual Indians did not become United States citizens until 1924. The members of the Onondaga Nation were not considered citizens before 1924. Indian tribes are not clearly entitled to claim citizenship for diversity purposes. Robertson Declaration ¶ 45. 5. Even if the Onondaga Nation were held to be a citizen of New York for diversity purposes, complete diversity would have been defeated for a land claim action because the defendants would have been citizens of New York State as well. Robertson Declaration ¶ 46. 6. Federal question jurisdiction, which was established in 1875, was not available as a legal basis for an Onondaga land claim in federal court because the first time the issue was raised the United States Supreme Court foreclosed this option. Taylor v. Anderson, 234 U.S. 74 (1914). The Second Circuit Court of Appeals in 1929 likewise ruled the federal courts did not have jurisdiction over Indian claims challenging the unlawful taking of tribal lands. Deere v. New York, 22 F.2d 851 (1927), aff’d, 32 F.2d 550 (2d Cir. 1929). Robertson Declaration ¶ 48. 7. Deere remained the applicable law in the Second Circuit until 1974, when the United States Supreme Court ruled that federal question jurisdiction over land claims based on 3 the Trade and Intercourse Act existed. Oneida Indian Nation v. County of Oneida, 414 U.S. 661 (1974). Robertson Declaration ¶ 48. 8. Until relatively recently, New York State denied Indian nations legal capacity to maintain lawsuits in their own names; instead, the State legislature provided for the appointment of state-funded attorneys or agents to bring or defend such legal actions. Robertson Declaration ¶¶ 7-15. 9. New York State courts construed the appointment of attorneys for Indian nations as the exclusive means by which legal actions could be prosecuted to assert Indian interests and claims. Jackson ex dem Van Dyke v. Reynolds, 14 Johns. 335 (1817). The court found that denying Indian tribes the right to sue in their own names benefits them because “if left at liberty to resort to any attorney they please, they may be involved in ruinous litigation. .” Robertson Declaration ¶ 20. 10. Between 1790 and 1845, only one reported case asserting a land claim could be found that was brought by an Indian tribe, and that case failed. St. Regis Indians v. Drum, 19 Johns. 127 (N.Y. Sup.Ct. 1810). Robertson Declaration ¶ 22. 11. In 1806, the Onondaga Nation petitioned the State of New York for the appointment of an attorney to represent it. Robertson Declaration ¶ 15. 12. On April 7, 1806, the New York Legislature authorized the Council of Appointments to appoint and commission an attorney for the Onondagas, and Curtis Medad was appointed for that purpose. Robertson Declaration ¶ 15. 13. Because Mr. Medad proved ineffectual in asserting or protecting Onondaga land rights, the New York Legislature abolished the office of Onondaga attorney and appointed 4 Ephraim Webster as agent/attorney in Mr. Medad’s stead, with identical responsibilities and duties. Robertson Declaration ¶ 15. 14. Ephraim Webster acted contrary to the needs and interests of his client. He facilitated the unlawful conveyance of Onondaga land to the State by acting as interpreter during the treaty negotiations in 1817 and 1822; the Onondagas complained to Governor DeWitt Clinton that Webster had deceived them, but the State refused to replace him. Robertson Declaration ¶ ¶ 17-18. 15. Neither Curtis Medad, Ephraim Webster, nor any other attorney or agent for the Onondaga Nation agreed to file suit against New York State concerning the State’s acquisition of Onondaga land in violation of the Trade and Intercourse Act. Robertson Declaration ¶ 21. 16. In 1841, the New York Legislature abolished the office of Onondaga Agent, directing that the Onondaga Nation should look to the local district attorney to bring legal actions on the Nation’s behalf; the district attorney was empowered to prosecute only trespass actions on their behalf arising from lands then possessed by the Nation. Robertson Declaration ¶ 23. 17. When the office of Onondaga Agent was restored in 1843, the Legislature refused to authorize the prosecution of legal actions as part of the agent’s duties, and subjected the agent’s duties to the specific direction of the Governor. Robertson Declaration ¶ 24. 18. The requirement to obey the Governor’s instructions as a practical matter precluded any Indian agent for the Onondaga Nation from initiating legal action, even if such authority could be found, to challenge the validity of New York’s acquisition of Onondaga lands. Robertson Declaration ¶ 24. 5 19. None of the New York State agents appointed by the State for the Onondaga Nation filed any legal action to recover Onondaga lands. Robertson Declaration ¶ 24. 20. One New York State case suggests individual tribal members could sue in state court to prevent injury to tribal lands, but this right was limited to suits for injunctive relief to protect possessory rights to land within the boundaries of state-recognized reservations, and did not extend to suits on behalf of the tribe to assert rights to land to which others claimed title or occupied. Strong v. Waterman, 11 Paige Ch. 607 (1845). Robertson Declaration ¶¶ 25-28. 22. New York law provided that Indian nations lacked capacity to sue generally in the absence of authorizing legislation by the New York State Legislature. Robertson Declaration ¶ 38. 23. The New York State Legislature never enacted a statute of general applicability enabling the Onondaga Nation to sue, and state courts confirmed that in the absence of such authorization, neither the Nation nor its members had capacity to sue in state court. Onondaga Nation v. Thacher, 7 Bedell 584, 169 N.Y. 584 (1901), aff’d, 189 U.S. 306 (1903). In 1940, the Legislature granted a limited exception to this rule and authorized the Nation to sue the Tully Pipeline Company with regard to damage to the Nation’s cemetery caused by salt and salt-brine from the Company’s pipeline. Robertson Declaration ¶¶ 37-39. This is the only enabling statute for the Onondaga Nation that has been found. 24. The New York State Legislature amended its Indian Law in 1953 to provide state court jurisdiction over civil actions between Indians and other persons, but it was not until 1987 that state courts suggested that the statute accorded state court jurisdiction over civil actions involving Indian tribes. Oneida Indian Nation v. Burr, 522 N.Y.S.2d 742 (1987). In 1995, 6 however, the New York Court of Appeals intimated that this suggestion may be wrong. People v Anderson, 137 A.D.2d 259, 529 N.Y.S. 2d 917 (1998). The question of tribal capacity to sue in New York courts remains unsettled today. Robertson Declaration ¶¶ 41-42. 25. In 1958, the New York Legislature amended its Indian Law to provide that the governing body of an Indian nation or tribe may maintain an action to recover lands unlawfully occupied by others.

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