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Petitioners, V No. 12- IN THE Supreme Court of the United States MADISON COUNTY AND ONEIDA COUNTY, NEW YORK, Petitioners, v. ONEIDA INDIAN NATION OF NEW YORK, Respondent. STOCKBRIDGE-MUNSEE COMMUNITY, BAND OF MOHICAN INDIANS, Putative Intervenor. ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT PETITION FOR A WRIT OF CERTIORARI S. JOHN CAMPANIE DAVID M. SCHRAVER Madison County Attorney Counsel of Record P.O. Box 635 DAVID H. TENNANT Wampsville, New York 13163 ERIK A. GOERGEN (315) 366-2203 NIXON PEABODY LLP 1300 Clinton Square GREGORY J. AMOROSO Rochester, New York 14604 Oneida County Attorney (585) 263-1000 HARRIS J. SAMUELS, of Counsel dschraver@ County Offi ce Building nixonpeabody.com 800 Park Avenue Utica, New York 13501 (315) 798-5910 244440 A (800) 274-3321 • (800) 359-6859 i QUESTION PRESENTED Does the 300,000-acre ancient Oneida reservation in New York still exist, neither disestablished nor diminished, despite (1) the federal government’s actions taken in furtherance of disestablishment (including, but not limited to, the 1838 Treaty of Buffalo Creek); (2) this Court’s holding in City of Sherrill v. Oneida Indian Nation of New York, 544 U.S. 197, 214 (2005) (“Sherrill”) that the Oneida Indian Nation of New York cannot exercise sovereignty over lands it purchases in the ancient reservation area; and (3) this Court’s fi nding in that case that land in the ancient reservation area has not been treated as an Indian reservation by the federal, state or local governments for nearly two centuries?* *This Court twice previously granted petitions for certiorari in which the Oneida reservation disestablishment / diminishment question was framed as: “Whether the ancient Oneida reservation in New York was disestablished or diminished?” Madison County v. Oneida Indian Nation of New York, Docket No. 10-72, 131 S. Ct. 459, October 12, 2010, and “Whether the 1838 Treaty of Buffalo Creek, which required the New York Oneidas to permanently abandon their lands in New York, resulted in the disestablishment of the Oneidas’ alleged New York reservation,” Sherrill, Docket No. 03-855, 542 U.S. 936, June 28, 2004. ii LIST OF PARTIES All parties appear in the caption of the case on the cover page. The State of New York appeared as amicus curiae in the Second Circuit in support of the Counties. The United States appeared as amicus curiae in the Second Circuit at the request of the court. iii TABLE OF CONTENTS Page QUESTION PRESENTED . i LIST OF PARTIES . ii TABLE OF CONTENTS . iii TABLE OF APPENDICES . vi TABLE OF CITED AUTHORITIES . viii OPINIONS BELOW. 1 JURISDICTION . 1 STATEMENT OF THE CASE . 1 A. The Serious Question That Needs To Be Answered . 1 B. Procedural History . 4 1. Sherrill . 4 2. Post-Sherrill . 4 3. Madison County Docket No. 10- 72 (2010) and Remand to Court of Appeals . 5 iv Table of Contents Page REASONS FOR GRANTING THE PETITION. 8 I. THE COURT OF APPEALS’ RULING CONFLICTS WITH SHERRILL . 8 II. THE COURT OF APPEALS’ DISESTABLISHMENT ANALYSIS CONFLICTS WITH THIS COURT’S DISESTABLISHMENT PRECEDENT . 10 A. The Historical Record and Factual Findings Pertinent To Disestablishment / Diminishment . 10 B. The Court Of Appeals’ 2003 (Pre- Sherrill) Flawed Analysis of Disestablishment. 13 III. UNLESS CLARIFIED BY THIS COURT, THE “NOT DISESTABLISHED” RESERVATION WILL CONTINUE TO CONFOUND COURTS AND DISRUPT SETTLED EXPECTATIONS IN THE CLAIMED RESERVATION AREA. 16 A. The “Not Disestablished” Oneida Reservation Is A Legal Fiction Unrecognizable In Federal Indian Law . 16 v Table of Contents Page B. Perpetuating The Legal Fiction Of A “Not Disestablished” Reservation Is Highly Disruptive . 19 1. OIN Seeks To Exploit the Legal Fiction Of A “Not Disestablished Reservation” In Pending Litigation. 20 a. State Court Tax Assessment Litigation . 20 b. Federal Land-Into-Trust Litigation (N.D.N.Y.). 21 2. OIN Is Lobbying The U.S. Census Bureau To Re-Map Central New York To Depict An Extant 307,000 Acre Reservation . 22 3. The Legal Fiction Of A “Not Disestablished” Reservation Confounds The Administration Of Federal Laws Designed To Help Indians . 30 C. The Recurring And Continuing Litigation In New York State Regarding Ancient Indian Reservations . 32 CONCLUSION . 34 vi TABLE OF APPENDICES Page APPENDIX A — OPINION OF THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT, DECIDED OCTOBER 20, 2011 . 1a APPENDIX B — OPINION OF THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT, DECIDED APRIL 27, 2010 . 71a APPENDIX C — OPINION OF THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT, DECIDED JULY 21, 2003 . 102a APPENDIX D — MEMORANDUM DECISION AND ORDER AND PERMANENT INJUNCTION OF THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF NEW YORK, DECIDED JUNE 2, 2006 . 173a APPENDIX E — MEMORANDUM DECISION AND ORDER AND PERMANENT INJUNCTION OF THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF NEW YORK, DECIDED OCTOBER 27, 2005 . 190a vii Table of Appendices Page APPENDIX F — ORDER DENYING PETITION FOR REHEARING EN BANC OF THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT, DATED AUGUST 16, 2012 . 216a APPENDIX G — 1788 TREATY OF FORT SCHUYLER, SEPTEMBER 22, 1788 . 218a APPENDIX H — 1794 TREATY OF CANANDAIGUA, NOVEMBER 11, 1794. 223a APPENDIX I — 1838 TREATY OF BUFFALO CREEK, JANUARY 15, 1838. 229a viii TABLE OF CITED AUTHORITIES Page CASES Ariz. Health Care Cost Containment Sys. v. McClellan, 508 F.3d 1243 (9th Cir. 2007). 30 Carcieri v. Salazar, 555 U.S. 379 (2009) . 21 Cayuga Indian Nation of New York v. Gould, 14 N.Y.3d 614 (2010). 32, 33 Cayuga Indian Nation of New York v. Seneca County, No. 11-CV-6004, 2012 U.S. Dist. LEXIS 117245 (W.D.N.Y. August 20, 2012) . 32, 33 Choctaw Nation v. Oklahoma, 397 U.S. 620 (1970) . 11 City of Sherrill v. Oneida Indian Nation of New York, 544 U.S. 197 (2005) . passim County of Oneida v. Oneida Indian Nation of New York, 470 U.S. 226 (1985) . 2 Hagen v. Utah, 510 U.S. 399 (1994) . 13 ix Cited Authorities Page Louisiana v. Mississippi, 516 U.S. 22 (1995) . 7 Madison County v. Oneida Indian Nation of New York, Docket No. 10-72, 131 S. Ct. 459 (October 12, 2010) . 5, 28, 33 Merrion v. Jicarilla Apache Tribe, 455 U.S. 130 (1982) . 7, 29 Minnesota v. Mille Lacs Band of Chippewa Indians, 526 U.S. 172 (1999) . 11 Montana v. United States, 450 U.S. 544 (1981) . 29 Morton v. Mancari, 417 U.S. 535 (1974). 7, 30 Nevada v. Hicks, 533 U.S. 353 (2001) . 29 New York v. Salazar, No. 08-cv-644 (N.D.N.Y. Feb. 12, 2009) . 21 New York Indians v. United States, 40 Ct. Cl. 448 (1905) . 12 x Cited Authorities Page Oneida Indian Nation of New York v. Oneida County, 199 F.R.D. 61 (N.D.N.Y. 2000) . 25 Oneida Nation of New York v. United States, 43 Ind. Cl. Comm. 373 (1978) . 10 Polar Tankers, Inc. v. City of Valdez, 557 U.S. 1 (2009) . 7 Rosebud Sioux Tribe v. Kneip, 430 U.S. 584 (1977) . 13 Solem v. Bartlett, 465 U.S. 463 (1984) . 13, 14, 28 United States v. Mazurie, 419 U.S. 544 (1975) . 7 Yankton Sioux Tribe v. Gaffey, 188 F.3d 1010 (8th Cir. 1999) . 13 STATUTES 7 U.S.C. § 2012 . 17 16 U.S.C. § 797 . 30 16 U.S.C. § 803 . 30 18 U.S.C. § 1151 . 17, 20, 28 xi Cited Authorities Page 23 U.S.C. § 101 . 31 23 U.S.C. § 140(d). 30 25 U.S.C. § 465. 4, 35 25 U.S.C. § 476 . 30 25 U.S.C. §§ 1651-58 . 30 25 U.S.C. § 1677 . 30 25 U.S.C. §§ 1931-1933 . 30 25 U.S.C. § 2004(e). 30 26 U.S.C. § 45A . 30 28 U.S.C. § 1254(1). 1 33 U.S.C. § 1377(h) . 17 40 U.S.C. § 523. 4, 22 1830 Removal Act (4 Stat. 411). 11 Indian Land Consolidation Act . 22 Indian Trade and Intercourse Act . 20 N.Y. Indian Law § 6. 20 xii Cited Authorities Page N.Y. Real Prop. Tax Law § 454 . 20 REGULATIONS 13 C.F.R. § 126.103 . 30 25 C.F.R. § 151.10. 21 25 C.F.R. § 151.11. 21, 22 25 C.F.R. § 286.7 . 30 40 C.F.R. § 49.6 . 31 TREATIES 1788 Treaty of Fort Schuyler . 10 1794 Treaty of Canandaigua . 1838 Treaty of Buffalo Creek . passim OTHER AUTHORITIES Census Bureau’s Tribal Statistical Areas Program (TSAP) for the 2010 Census, http://www.census.gov/geo/www/tsap2010/ tsap2010_po.html . 26 Cohen’s Handbook of Federal Indian Law § 6.02 (2012 ed.). 29 xiii Cited Authorities Page Department of the Interior Appellees Brief, Village of Hobart, Wisconsin v. Acting Midwest Regional Director, Nos. IBIA 10-91, 10-92, 10-107 (IBIA Sept. 27, 2010) (submitted in New York v. Salazar, No. 08-cv-644 (N.D.N.Y. Nov. 15, 2011) . 13 EPA, Tribal Assumption of Federal Environmental Laws, available at http:// www.epa.gov/tribalcompliance/airresources/ arregsdrill.html#assumption . 31 Felix S. Cohen, Federal Indian Law (1958). 12 Felix S. Cohen, Handbook of Federal Indian Law (1942). 12 Glenn Coin, Map dumbfounds Madison County, Syracuse Post-Standard, Jan. 20, 2011. 25 Jeff Wise, The New Revolution Ford Fusion Hybrid 2010, My Ford, Fall 2009 . 23 Laurence M. Hauptman, Conspiracy of Interests 213-14 (1999). ..
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