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Petition for Cert No. 10- IN THE Supreme Court of the United States CAYUGA COUNTY SHERIFF DAVID S. GOULD, SENECA COUNTY SHERIFF JACK S. STENBERG, CAYUGA COUNTY DISTRICT ATTORNEY JON E. BUDELMANN, and SENECA COUNTY DISTRICT ATTORNEY RICHARD E. SWINEHART, Petitioners, v. CAYUGA INDIAN NATION OF NEW YORK, Respondent. _______________________________ ON PETITION FOR A WRIT OF CERTIORARI TO THE COURT OF APPEALS OF NEW YORK PETITION FOR A WRIT OF CERTIORARI PHILIP G. SPELLANE Counsel of Record KARL J. SLEIGHT DANIEL J. MOORE SVETLANA K. IVY JAMES P. N ONKES HARRIS BEACH PLLC Attorneys for Petitioners 99 Garnsey Road Pittsford, New York 14534 (585) 419-8800 [email protected] 231374 A (800) 274-3321 • (800) 359-6859 i QUESTIONS PRESENTED FOR REVIEW I. Whether the New York State Court of Appeals in its 4-3 decision in Cayuga Indian Nation of New York v. Gould, 14 N.Y.3d 614 (2010), properly interpreted federal law on a matter it believed the United States Supreme Court had not yet addressed in holding that two parcels of land purchased by a successor to the historic Cayuga Indian Nation in 2003 and 2005 were exempt from New York’s cigarette sales and excise taxes after two hundred years of non-Indian ownership and governance. II. Whether in that decision the New York Court of Appeals properly held both that (i) the Cayuga Indian Nation possessed a federal reservation pursuant to the 1794 Treaty of Canandaigua despite the fact that the Cayuga Indian Nation had ceded all of its land to New York State in 1789; and (ii) the United States did not subsequently disestablish any purported federal reservation. ii PARTIES TO THE PROCEEDING BELOW The parties to the proceeding below are Plaintiff- Respondent Cayuga Indian Nation of New York (the “Nation”) and Defendants-Appellants Cayuga County Sheriff David S. Gould, Seneca County Sheriff Jack S. Stenberg, Cayuga County District Attorney Jon E. Budelmann, and Seneca County District Attorney Richard E. Swinehart (collectively, the “Counties”). Amicus curiae in the proceeding below on behalf of the Counties are the New York State Attorney General, the New York City Corporation Counsel, the New York Association of Counties, New York State Senator Jeffrey D. Klein, the District Attorneys Association of the State of New York, and the American Cancer Society. Amicus curiae in the proceeding below on behalf of the Nation are the Seneca Nation of Indians, the United States Department of Justice, and Day Wholesale, Inc. iii TABLEAuthorities OF CONTENTS Page QUESTIONS PRESENTED FOR REVIEW . i PARTIES TO THE PROCEEDING BELOW . ii TABLE OF CONTENTS . iii TABLE OF APPENDICES . v TABLE OF AUTHORITIES . vii DECISIONS BELOW . 1 BASIS FOR JURISDICTION . 1 APPLICABLE REGULATIONS, STATUTES, TREATIES, AND CONSTITUTIONAL PROVISIONS . 1 STATEMENT OF THE CASE . 2 REASONS FOR GRANTING THE PETITION . 8 I. The Court of Appeals Decided Cayuga Indian Nation of New York v. Gould Under an Incorrect Interpretation of Sherrill and Its Progeny. 8 A. Sherrill Rejected Attempts to Revive Tax Exemptions and Other Sovereign Rights on Repurchased Land. 8 iv AuthoritiesContents Page B. The Court of Appeals Rejected the Plain, Unambiguous Holding of Sherrill When it Granted the Nation a Tax Exemption. 13 II. The Court of Appeals Incorrectly Applied Federal Treaties and Statutes in Cayuga Indian Nation of New York v. Gould and Mistakenly Concluded that a Federal Cayuga Reservation Exists. 18 A. The Nation Never Possessed a Federal Reservation. 18 B. If a Federal Reservation Ever Existed, It Has Been Disestablished. 23 C. The Treaty of Buffalo Creek Confirmed That No Federal Reservation Existed. 27 CONCLUSION . 28 v TABLE OFAuthorities APPENDICES Page Appendix A — Opinion Of The Court Of Appeals Of New York Decided May 11, 2010 . 1a Appendix B — Opinion Of The Supreme Court Of The State Of New York, Appellate Division, Fourth Judicial Department Decided July 10, 2009 . 59a Appendix C — Decision And Order Of The Supreme Court Of New York, Monroe County Dated And Decided December 9, 2008 . 93a Appendix D — New York Tax Law § 470(16) . 124a Appendix E — February 25, 1789 Treaty Between The Cayugas And New York State . 125a Appendix F — 1794 Treaty Of Canandaigua, 7 Stat. 44 . 128a Appendix G — July 27, 1795 Treaty Between The Cayugas And New York State . 134a Appendix H — May 30, 1807 Treaty Between The Cayugas And New York State . 137a Appendix I — Treaty Of Buffalo Creek (7 Stat. 550, Jan. 15, 1838) . 139a Appendix J — 1793 Indian Trade And Intercourse Act . 145a vi AppendicesAuthorities Page Appendix K — 1802 Indian Trade And Intercourse Act . 146a Appendix L — Nonintercourse Act, 25 U.S.C. § 177 (1834) . 148a Appendix M — U.S. Constitution, Amend. V . 149a vii TABLE OFAuthorities AUTHORITIES Page Cases Block v. North Dakota ex rel. Bd. of Univ. & School Lands, 461 U.S. 273 (1983) . 22 Cayuga Indian Claims, 20 AM. J. INT’L L. 574 (Am. & Br. Claims Arb. Trib. 1926) . 19, 26 Cayuga Indian Nation of N.Y. v. Cuomo, 730 F. Supp. 485 (N.D.N.Y. 1990) . 24, 26, 27 Cayuga Indian Nation v. Cuomo, 667 F. Supp. 938 (N.D.N.Y. 1987) . 25 Cayuga Indian Nation of N.Y. v. Gould, 14 N.Y.3d 614 (2010) . passim Cayuga Indian Nation v. Pataki, 413 F.3d 266 (2d Cir. 2005), cert. denied, 547 U.S. 1128 (2006) . passim Cayuga Indian Nation v. United States, 36 Ind. Cl. Comm. 75 (1975) . 26 Cayuga Indian Nation v. Vill. of Union Springs, 317 F. Supp.2d 128 (N.D.N.Y. 2004) . 12, 24 Cayuga Indian Nation v. Vill. of Union Springs, 390 F. Supp.2d 203 (N.D.N.Y. 2005) . 12, 14, 15 viii Authorities Page City of Sherrill, New York 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) . 25 Goodtitle v. Kibbe, 50 U.S. 471 (1850) . 21 Oneida Indian Nation of New York v. New York, 860 F.2d 1145 (2d Cir. 1988) . 19 Oneida Indian Nation v. Madison County and Oneida County, 605 F.3d 149 (2d Cir. 2010) . 17 Oneida Indian Nation v. New York, 691 F.2d 1070 (2d Cir. 1982) . 19 Seneca Nation of Indians v. United States, 173 Ct. Cl. 917 (1965) . 21 Southview Assocs. v. Bongartz, 980 F.2d 84 (2d Cir. 1992) . 22 Three Affiliated Tribes v. World Engineering, P.C., 467 U.S. 138 (1984) . 7 United States v. Dow, 357 U.S. 17 (1958) . 23 United States v. Minnesota, 270 U.S. 181 (1926) . 21 ix Authorities Page Constitutional Provisions U.S. CONST. AMEND. V . 22 Statutes 25 U.S.C. § 465 . 11 28 U.S.C. § 1257 . 1 Indian Law § 6 . 13 New York Tax Law § 1814 . 3 New York Tax Law § 470(16) . 1 New York Tax Law § 470(16)(a) . 4, 5, 13 New York Tax Law § 471 . 3 Nonintercourse Act, 25 U.S.C. § 177 . 1, 24, 25 Real Property Tax Law § 454 . 13 1 DECISIONS BELOW The decisions below are attached in the appendix hereto. They are the May 11, 2010 Opinion of the New York State Court of Appeals (App. A); the July 10, 2009 Opinion and Order of the Supreme Court of the State of New York, Appellate Division (4th Judicial Department) (App. B); and the December 9, 2008 Decision and Order of the Supreme Court of the State of New York (Monroe County) (App. C). BASIS FOR JURISDICTION The New York State Court of Appeals, the state’s court of last resort, issued its decision on May 11, 2010. Jurisdiction of this Court is invoked pursuant to 28 U.S.C. § 1257. APPLICABLE REGULATIONS, STATUTES, TREATIES, AND CONSTITUTIONAL PROVISIONS Applicable regulations, statutes, treaties, and constitutional provisions at issue on this appeal and are attached in the appendix hereto. They are: New York Tax Law § 470(16) (App. D); February 25, 1789 Treaty between the Cayugas and New York State (App. E); 1794 Treaty of Canandaigua, 7 Stat. 44 (App. F); July 27, 1795 Treaty between the Cayugas and New York State (App. G); May 30, 1807 Treaty between the Cayugas and New York State (App. H); 1838 Treaty of Buffalo Creek, 7 Stat. 550 (App. I); Nonintercourse Act, 25 U.S.C. § 177 (App. J); 1793 Indian Trade and Intercourse Act (App. K); 1802 Indian Trade and Intercourse Act (App. L); and U.S. Constitution, amend. V (App. M). 2 STATEMENT OF THE CASE The issue on this petition for writ of certiorari is whether each of the two parcels of land recently purchased by the Nation in central New York after two hundred years of non-Indian ownership qualifies under New York’s Tax Law as a “reservation” on which the Nation may sell cigarettes tax free. The Court of Appeals held that the outcome depended on whether each of the parcels was considered a “reservation” under federal law. It is respectfully submitted that the Court of Appeals erred in applying and interpreting the relevant federal law because land which long ago had been abandoned by the Cayugas is not a “reservation.” Even if it were, however, federal law holds that such land does not provide to the Nation any exemptions from state and local governance. In 1789, New York State treated with the original Cayuga tribe whereby the Cayugas ceded all of their lands to the State which then set aside a 64,015 acre state reservation in central New York for the Cayugas’ use. That historic tract of land sits at the north end of Cayuga Lake and extends down the lake’s eastern and western shores.
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