Settlement master's report
Mar. 11, 2000

Here is the full text of Oneida Indian Nation land-claim settlement master Ronald Riccio’s recommendation to U.S. District Court Judge Neal P. McCurn. He submitted the report last month and recommended an impasse be declared in the year-long mediation talks. On March 10, the judge did just that.

Here is Riccio’s report:

This Status Report is respectfully submitted pursuant to paragraph 8 of this Court’s Order dated February 24, 1999, requiring the Settlement Master to “make such status reports to the Court concerning the progress” of the settlement process in the above captioned matter as “the Court may require.” I submit this Report in my capacity as the Neutral Settlement Master selected by the parties and appointed by the Court. At the outset I thank the Court and the parties for the opportunity to serve as Settlement Master and for the many courtesies that have been extended to me.

I agreed to serve as Settlement Master because I assumed that since this case had been pending for 25 years and because it was the parties who initiated and created the settlement process, all parties would be fully committed to participate in sincere and serious settlement efforts.

Unfortunately, some of the parties have not lived up to that assumption.

Since my appointment I have worked more than 500 hours in an effort to facilitate a settlement. I have presided over numerous formal and informal settlement sessions. I made visits to the land claim area, the New York Oneida Reservation, the Wisconsin Oneida Reservation in Green Bay, Wisconsin, and the Oneida Thames Band Reservation in London, Ontario. I have had meetings with countless Oneida and non-Oneida residents of both the land claim area and the three Oneida Reservations. I participated in public outreach programs initiated by the Counties of Madison and Oneida.

I have had nearly daily interaction with the print and electronic media. I have responded to individual communications from members of the public affected by the litigation. I conducted my own extensive factual and legal research. I regret to report that despite my efforts the current status of the settlement process is at an impasse and should either be suspended or terminated.
Throughout the settlement process I have been influenced by several overarching principles.

They are:

i) To remedy alleged violations of Federal law and Treaties committed by the State of New York and others against the Oneida people in connection with a series of land transactions and other events occurring between September 1795 and 1846.

ii) To remove any cloud on title to land that the Tribal Plaintiffs claim is their land in accordance with Treaties entered into more than two-hundred years ago even though that land has been openly occupied by non-Oneidas for many of those years.

iii) To account in any settlement for the delay of one-hundred seventy-five years between accrual of the Oneida cause of action and commencement of this action.

iv) To eliminate any adverse impact a settlement would have on the people and governments of Madison and Oneida Counties.

v) To account for the long-settled expectations and legitimate reliance interests of the Counties and other non-Oneida property owners whose title derived from the allegedly illegal 1795-1846 land transactions.

vi) To recognize and respect the sovereign status of all governments (Oneida and non-Oneida) affected by this controversy.

vii) To put a permanent end to the social, political, economic, cultural and tribal divisions that have plagued the parties to this controversy for nearly two-hundred years.

Settlement depends on agreement in three broad areas:

i) a monetary payment of some kind as well as other economic benefits to the tribal plaintiffs
;
ii) a mechanism by which some land within the land claim area would be restored to tribal ownership; and

iii) provision for the resolution of jurisdictional conflicts that will arise from the tribal acquisition of additional land.

All of the parties agree these are the three issues that need to be settled. There is, however, little else on which they agree. Although I have no doubt all the parties have negotiated in good faith, the settlement talks have been side-tracked by rhetoric, posturing, bickering, and maneuvering. For example, one party recently explained a complete reversal of a long held position on a crucial settlement issue by saying “that was then and this is now.” Such arbitrary responses are neither helpful nor indicative of a significant commitment to the settlement process.

Because it was the parties who requested the appointment of a Settlement Master, I am sure the Court expected, as did I, that all parties would have been willing to shed the adversarial litigation model for the conciliatory settlement model. That just has not happened. The settlement talks have been more like oral arguments in court than efforts to amicably resolve outstanding conflicts. Further, most parties have not been willing to subordinate their own self-interest to the overriding interest of the innocent Oneida and non-Oneida members of the public who are daily suffering fear and anxiety as a result of the pendency of this litigation.

In some cases the public’s fear and anxiety has given way to anger and hatred. This example will illustrate my point. After three days of intensive settlement talks on January 24, 25, and 26, I drafted a simple one page Term Sheet, which attempted to memorialize the meager conditional agreements reached on those dates. It was essentially a document that embodied nothing more than the good faith intentions of the parties.

The Sheet said that “[t]he foregoing intentions are not binding agreements and merely reflect the good faith intentions of the parties subject to further negotiation and agreement.” Of the seven parties to the settlement process, one signed the Sheet without change, two signed after making changes, one signed by printing the word REJECTED, and three refused to sign. Needless to say, this was a discouraging conclusion to what all parties had been told in advance would be my “last ditch” effort, after nearly one year of work, to facilitate settlement.

Despite my judgment that the settlement process is at an impasse, various parties have told me they think significant progress has been made. I do not agree with their assessment. I will summarize in general terms the current status of the settlement process and why I believe the parties are at an impasse.

A. Money.

An offer of money has been made to create a settlement fund. The amount of the fund is acceptable to all parties. The division of the fund would give one party 50 percent, another party 40 percent, another party 5 percent and the remaining party 5 percent. I stated to all parties that I considered the division of the fund unfair to one party who had been allocated only 5 percent.

Notwithstanding my concern about fairness, with the exception of one party receiving 5 percent, all the other parties were willing to go forward with the settlement process, at least conditionally.

Even if unfair agreements were ultimately to be approved in terms of division of a settlement fund, many other economic issues have been raised. Those issues pertain to gaming, loan guarantees, relaxation of regulatory requirements, exemptions from fees and assessments, impact aid, and the like. All of those agreements, if they could ever be reached, would then be subject to an elaborate ratification and approval process that could require an Act of Congress, action by the New York State Legislature, waiver of sovereign immunity, appropriation of funds, and ultimate approval by the Governor of New York and the President of the United States.
Given the way the settlement process has gone to date, I do not believe the parties are anywhere near settlement of the money issue, nor do I believe there is a reasonable prospect of settlement in the foreseeable future.

B. Land.

For all Oneida people, the land that is the subject matter of this lawsuit is their Mother Earth. It is an integral part of Oneida heritage, a source of great pride and reverence. It is a symbol of their hope and prosperity for future generations. In many ways the land claim itself is in Oneida eyes the embodiment of the many injustices they feel were inflicted on the Oneida by European settlers and the State of New York.

The story of the Oneida land claim has been handed down from generation to generation of Oneida and it has achieved a life of its own. In 1985 a part of the Oneida land claim was upheld by the United States Supreme Court when it ruled that a 1795 agreement between the Oneida and State of New York violated the Federal Nonintercourse Act of 1793. More than any single event, the land claim symbolizes the Oneida struggle to survive as a Nation and a people.

For the citizens of Madison and Oneida Counties the land has been a place where their own histories have been forged, where their families have lived - some for over two-hundred years - and where they have created homes and close knit communities. They believe they have cleared the land, paid taxes, built roads, established schools and churches, enjoyed fellowship with their neighbors, and exercised dominion throughout the entire land claim area. In their eyes they developed the land. They dispute that the 1985 Supreme Court decision is binding in this lawsuit. They believe the land claim area is their Homeland as much as the Oneida believe the land is theirs.

These strongly held beliefs of the Oneida People and County residents deserve our utmost respect and sensitivity. There are grave injustices being felt on both sides. Their feelings are sincere and throughout the settlement process I have always taken those feelings into account.

Some progress, but hardly enough, was made during negotiations over land. For example, all parties agreed there would be no eviction, ejectment, or trespass damages against any private non-Oneida residents in the land claim area. The matter of sole jurisdiction and sovereign authority over the New York Reservation was resolved. Further acquisition of land in the land claim area would only be from private residents on a “willing seller” basis. Land outside the land claim area would be provided. That land came to be known as the “Footprint.” Negotiations over the location, size, status, and use of the Footprint were heated. No agreement was reached.

Equally heated were negotiations over the final size (“cap” as it came to be called) of the New York Reservation. Some believed they were being asked to expand the Reservation, while others believed they were shrinking the Reservation. The issue was compounded by the fact that many wanted concessions totally extraneous to the issued in the lawsuit in consideration of their agreement to reduce and expand the final size of the New York Oneida Reservation. Many of these concessions relate to difficult questions of sovereignty, independence, self-determination, and future socioeconomic development within an area of land regarded by both as their Homeland.

As with the money issue, the parties are nowhere near settlement on the land issue. My conclusion would change if the parties were willing to reserve for another context at another time resolution of their differences over the extraneous concessions each have demanded. This appears highly unlikely.

C. Jurisdictional Conflicts.

It is extremely difficult for residents of the land claim area to recognize after two-hundred years a rapidly expanding Indian Nation within the borders of their existing government. It is perceived by a multitude of non-Oneida as a serious threat for a multitude of different reasons. The formation of large citizen groups in the land claim area evidence the intensity of feelings. As a result of the pendency of this litigation innocent non-Oneida residents of the land-claim area have seen the peaceful possession, occupancy, and use of their land dramatically disrupted. For many that ordeal is perceived as a human tragedy.

It is at least equally difficult for the Oneida to accept any modifications to Treaties that they believe give them legal rights to the land in question. They believe those Treaties are sacred and have not been lawfully extinguished. They believed their basic rights have been violated by others. They cite the United States Supreme Court decision as support for their position. To exacerbate matters, anonymous threats of violence have been made against the Oneida on a regular basis. The simple pursuit of happiness by innocent Oneida people living in New York state as a result of the public reaction to the pendency of this litigation has been seriously and materially disrupted. For many Oneida too that ordeal is perceived as a human tragedy.

The jurisdictional conflicts arise on many levels — legal, emotional, social, political, spiritual, and economic. But while the problem is complex, it is not insoluble. Numerous Indian Nations around the country do peacefully coexist with surrounding local and state governments. The Wisconsin Oneida, for example, are doing quite well solving their jurisdictional conflicts in Wisconsin. Their success should be a model for the New York Oneida Reservation. But that has not occurred nor are all the parties willing to follow the lead of the Wisconsin Oneida in this regard.

On September 17, 1999, I received reports from parties summarizing weeks of meetings they had conducted to discuss jurisdictional conflicts. Those discussions actually related to concessions demanded in return for agreements to reduce/expand the size of the New York Oneida Reservation. The parties assured me the process was quite helpful. They said they had reached some tentative or conditional agreements and they identified other issues or proposals that required further investigation.

But as a result of our sessions on January 24, 25, and 26, as well as intervening events since then, I cannot conclude the earlier process was helpful. Just the opposite appears to me to be the case — so much so that I see no reasonable prospect in the foreseeable future for amicably disposing of the jurisdiction conflicts. Some of the more difficult jurisdictional issues include:

i) disputes regarding amendment of Federal law to repeal or modify 25 U.S.C. &232 and 233;

ii) disputes regarding exemption of the New York Oneida Nation from any obligation to collect or remit any State sales tax or to pay any local property, transaction, income, or other tax, including New York Thruway tolls;

iii) disputes regarding modifying the role of New York State Police within the boundaries of the New York Oneida Reservation;

iv) disputes regarding agreements among the Counties, State, and New York Oneida over land use, building codes, environment protection, fishing and hunting, fire protection, emergency medical services, joint economic and business development, and motor vehicle regulation; and

iv) business fairness and competitive advantage as between the Counties and New York Oneida.

D. Recommendation.

When I agreed to take on this assignment, I was certain settlement could be reached given the skilled counsel I would be working with and given that it was the parties who requested appointment of a Settlement Master. In fact, I have put forth several reasonable proposals that easily could produce a settlement if the parties were serious about compromising. To my dismay, those proposals have all been rejected.

I remain convinced beyond all doubt that settlement is best for the parties and the public. The parties say they feel the same, but their actions say otherwise. Based on my experience settling more than twenty complex lawsuits over the past ten years, I know that settlement of complex cases occurs only when all the parties and their counsel not only say they are fully committed to the process but act accordingly. That has not happened. Some of the parties, despite protestations to the contrary, have convinced me by their actions during the past year that they are not, or due to circumstances beyond their control cannot be, fully committed to the settlement process.

Given the tortured history of this litigation and the claims asserted therein, I suppose this failed settlement attempt will be recorded as just another chapter in the saga of the Oneida diaspora. But there are literally thousands of totally innocent Oneida and Non-Oneida alike who hoped, indeed prayed, that the outcome of this exercise would have been the final chapter.

All of those innocent persons deserve a better outcome that this. I am sorely disappointed the parties during the settlement process have not appeared to be as concerned about those innocent persons as they should have been. While counsel have an obligation to their clients, they also have an obligation to the Court, the public, and themselves
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I remain willing to assist the Court and the parties in whatever way I can. But I believe the process is at an impasse. I, therefore, recommend that the Court, pursuant to paragraphs 6 and 8 of this Court’s Order of Reference, order all parties to show cause within ten (10) days of the date hereof why the settlement process should not be suspended or terminated.

Respectfully submitted,
RONALD J. RICCIO
SETTLEMENT MASTER
Dated: February 25, 2000