Opponents of Oneidas’ deal raise jurisdictional concerns

By: Elizabeth Cooper

As the agreement between the Oneida Indian Nation and New York state and Madison and Oneida counties awaits a decision by U.S. District Court Judge Lawrence Kahn, some residents are mounting a last-ditch attempt to bring it down.

“This happened so fast that I’m not sure that they were fully cognizant of what they were adopting,” Oneida County Legislator Chad Davis, D-Clinton, said of the Board of Legislators’ decision to approve the document. “I think the concerns are real.”

Davis, and a cadre of other residents of the two counties, said the agreement opens the door to some undesirable possibilities and to a host of unknowns. Some just want answers while others want a stop to the agreement outright.

Among their concerns:

ä Could land owned by non-Indians that is encircled by land the Oneidas plan to put into federal Indian trust enter a jurisdictional limbo in which local and state laws are superseded by federal or Oneida Indian law?

ä Could the Nation engage in hydraulic fracturing on its federal Indian trust lands even if New York state bans it?

Oneida County Executive Anthony Picente called the jurisdictional concerns “nonsense.”

“This is insulting to the entire process,” he said. “Do you think the governor and everyone else would have agreed if that were the case?”

Under the agreement, signed in May, the Nation would get exclusive gaming rights in the region but must share 25 percent of its yearly slot machine revenue with the state and counties.

Also, the state and counties will not object to Nation plans to put up to 25,000 acres of its land into federal Indian trust. Such lands are not subject to state and local taxes and regulations.

“I don’t even know what these guys are thinking,” said Lana Marcussen, the legal consultant for the nationwide Citizens Equal Rights Alliance, which focuses on Indian issues.

Davis, Marcussen and CERA Board Chairman Judy Bachman of Vernon point to cases in other states where non-Indian homeowners within borders of historic Indian reservations have been subjected to federal laws rather than the laws of their states.

Assistant Oneida County Attorney Harris Samuels said that’s not the case here.

“We won the land claim,” he said, referring to the U.S. Supreme Court’s 2011 decision not to hear a case over whether the Nation was owed as much as $500 million in damages for the loss of the land.

Oneida Nation spokesman Joel Barkin pointed to portions of the agreement that state that the Nation would take no more than 25,000 acres into trust. He did not comment on the jurisdictional issues.

“For the avoidance of any doubt, the Nation shall not submit an application to Reacquired Lands taken into trust, above the 25,370 acres,” the agreement states.

Asked about whether the Nation might frack on trust lands, Barkin pointed to comments he made in fall of 2013.

“The Nation does not frack now and has no plans to frack,” he said in a September interview. “The Nation has always prioritized environmental concerns, and met or exceeded any existing environmental standards. That’s because they live here.”

A 2004 story in the Oneida Daily Dispatch stated that the Nation had 123 gas well leases in Madison County.

“The Nation no longer holds those leases,” Barkin said.

Madison County officials confirmed they now have no record of the Nation holding any gas leases.