Here are briefs for Red Earth and amici:
And the amicus brief for the states:
Second Circuit
Second Circuit Rejects Constitutional Challenge to Tobacco Master Settlement Agreement
Here is the opinion in Freedom Holdings v. Cuomo — Freedom Holdings.
Opening Briefs in Red Earth v. US — PACT Act Appeal
US DOJ Opposes Suits against Greenhouse Gas Emitters
Has implications, one would think, in the Native Village of Kivalina case….
From SCOTUSBlog:
This week the Acting Solicitor General filed a brief on behalf of the Tennessee Valley Authority in American Electric Power Co. v. Connecticut, urging the Court to vacate a Second Circuit ruling that would permit lawsuits against greenhouse gas emitters for their contributions to climate change. The New York Times covered the filing (via Gabriel Nelson of Greenwire), as does the San Francisco Chronicle’s Bob Egelko, the Washington Post’s Steven Mufson, and Stephen Power of the Wall Street Journal’s Washington Wire.
More News Coverage of Oneida Land Claim Case
From How Appealing:
“Legal battles over land claims possibly helped Oneidas”: Today’s edition of The Post-Standard of Syracuse, New York contains an article that begins, “The Oneida Indian land claim might be dead after an appeals court decision last week, but the 40-year legal battle might have helped lay the seeds of the prosperity the New York tribe now enjoys.”
News Coverage on Oneida Land Claim
From How Appealing:
“Appeals court dismisses Oneida Indians’ 40-year-old land claim”: The Syracuse Post-Standard contains this article today.
The Oneida Daily Dispatch reports today that “Appeals court dismisses land claim.”
And The Utica Observer-Dispatch contains an article headlined “Court: No need for state to compensate Oneidas on land; Appeals judges reverse key element of ’07 claim ruling.”
You can access yesterday’s ruling of a divided three-judge panel of the U.S. Court of Appeals for the Second Circuit at this link.
Commentary on the Oneida Land Claim Debacle in the Second Circuit
As Indianz reported yesterday, the Second Circuit has once again applied the so-called Sherrill defenses to the New York land claims, this time to the Oneida Indian Nation (opinion here, briefs here).
First, it is all but certain that the once mighty Eastern land claims based on the Non-Intercourse Act violations of the late 18th century are all but dead. There may come a scenario where the Second Circuit sitting en banc or perhaps the First or Third Circuits issue an opinion declining to apply the Sherrill defenses to a NIA claim, but it’s doubtful. And even if that happened, Supreme Court review is virtually guaranteed (both because of the resulting split in authority and because of the state interests involved), with the predictable 5-4 result (assuming the tribal interests can persuade even that many to dissent).
Land claims and other claims based on treaty rights seem to have been successful for the time being, but time will tell on those claims.
Frankly, a new strategy is needed, and perhaps it’s time to review why the Eastern land claims were relatively successful in the first place. I believe it’s the federal government’s fear of United States liability for failing to prevent the fraudulent land sales and illegal tax foreclosures of Indian lands. The entire face of Indian land claim statutory law is based on this fear, including the 1982 statute passed to eliminate the statute of limitations for Indian land claims (28 U.S.C. 2415(a)). Maybe it’s time to remind Congress and the DOJ of the government’s potential liability, though the Cobell settlement, the American Indian farmer and African-American farmer settlements indicate Congress could really care less about liability. One thing in which the Rehnquist/Roberts Courts have been incredibly successful is preserving and bolstering federal and state (and even tribal) sovereign immunity.
Why the Oneida Foreclosure Case Will Not Go to the Supreme Court
Despite much speculation at Indianz, and grandstanding by Judge Cabranes and the anti-tribal parties, it seems very unlikely the Supreme Court will agree to grant a petition for cert in Oneida Indian Nation v. Madison County. To be sure, the question whether tribal sovereign immunity can prevent foreclosure actions against tribally-owned fee lands is certworthy, and there may already be a split in authority of sorts (the Second Circuit and the Mass. Supreme Judicial Court in a case involving the Aquinnah Wampanoag a few years back), but the Oneida case doesn’t seem to be the vehicle.
In short, this case is all but moot. And the Second Circuit nearly passed on the underlying question because the land in question may soon go into trust (perhaps after a few years litigation). Consider part of the early portion of the majority opinion in OIN v. Madison County:
Since this Court heard oral argument in this matter, there have been several developments that affect the practical implications of this Court’s decision on Madison and Oneida Counties. While these developments do not render moot any of the issues before this Court on appeal, we think it useful to describe them briefly.
Oneida v. Madison County News Coverage
From How Appealing:
“Court: Oneida Indian Nation can ignore tax collector.” Today’s edition of The Post-Standard of Syracuse, New York contains an article that begins, “When the U.S. Supreme Court ruled in 2005 that the Oneida Indian Nation had to pay property taxes, much of Madison and Oneida counties rejoiced. A federal appeals court on Tuesday, however, stripped the counties of the power to actually collect those taxes. A panel of the 2nd Circuit Court of Appeals said that, while the tribe might owe taxes, it can’t be taken to court because it’s sovereign.”
The Oneida Daily Dispatch reports today that “Court rules that Madison and Oneida counties can’t foreclose on Oneida Indian Nation land.”
And The Utica Observer-Dispatch contains an article headlined “US judges: Counties can’t foreclose on Oneidas.”
Second Circuit Affirms Oneida Indian Nation’s Immunity from County Land Foreclosure Efforts
Here is the opinion in Oneida Indian Nation v. Madison County: Oneida v Madison County et al 05-6408
Turtle Talk 
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