How Sherrill won its case
April 7 , 2005

By KRISTA J. KARCH

SHERRILL -- To attorney Charlie King, the city's historic victory in U.S. Supreme Court last week can only be described as "magic."

"It's a tremendous American story," he said, basking in the afterglow of the case he stumbled upon while stumping for public office.

The state's smallest city is hardly a place known for making national news, but if there's one thing residents are hard-headed about, it's land.

King was running for state lieutenant governor when he met Sherrill City Manager Dave Barker and then-Mayor Dwight Evans in 1999. They took King and another attorney, Ira Sacks, on a tour of the land-claim region and told their story.

When the Oneida Indian Nation, owner of the Turning Stone Resort and Casino, purchased property for two businesses in the late 1990s, city officials decided it wouldn't get any breaks. After all, they reasoned, the Nation's businesses weren't any different than Ebeneezer's Cafe and Creamery, where babies are encouraged to utter "Ebeneezer's" before any other word, or Booksprite, where a resident hound rumbles at visitors from behind the counter.

The city sent a bill for property taxes, launching a legal battle that ended last week with the historic Supreme Court decision that every Nation-owned property off its 32-acre reservation is subject to public taxes and regulations.

County, city, town and village officials read the opinion, rubbed their eyes, and realized the impossible had come true: Taxes could be collected on every Nation-owned gas station. Agricultural standards could be enforced for the farmland that grows ceremonial crops. Most of all, sales and property tax could be collected on the Turning Stone Resort and Casino.

King called Sherrill a tight-knit community torn apart over a gas station and a T-shirt factory -- the Nation's two businesses within the city limits. They brought jobs and discounted fuel, but shaved about $8,000 each year off the city's tax base.

"It wasn't just the taxes," Evans said. "They wouldn't obey local ordinances, they wouldn't obey zoning regulations and the quality of life in Sherrill would be put in jeopardy. We really had no choice but to join this legal battle."

With a city budget already stretched thin, he knew a lengthy battle with the wealthy Nation would drain the city's coffers and frustrate its residents. But King and Sacks, refreshed with the city's insistence that justice be served and inspired by working for the underdog, offered to work for free.

"We said, 'Why don't we stand up for the citizens of Sherrill and see what happens?'" King said. "'If we believe Sherrill's entitled to these taxes, let's go out and collect them.'"

King left the case in 2000 when President Bill Clinton appointed him to a federal job, but Sacks continued to carry the torch.

When the city began foreclosure proceedings, the Nation took the dispute to court. U.S. District Court Judge David Hurd in Utica heard oral arguments in March 2001 and ruled that Nation property is not subject to taxes and issued an injunction against the city's collection attempts.

The Second Circuit Court affirmed Hurd's ruling, but city officials believed the losses could actually work in their favor. If the U.S. Supreme Court accepted the appeal, it would only be to reverse the decision, Evans said.

The city rejoiced the day its case went on the docket. That was the turning point, city advocates say, and Nation advocates say that was the day they realized things had changed.

"The only reason they took the case, it seems to me, was to reverse it," said Robert Odawi Porter of Syracuse University's Center for Indigenous Law, Governance & Citizenship. "It just highlights the degree to which the court is intent on doing what it wants to do."

Many landowners were just as certain Sherrill would win, said David Vickers, president of Upstate Citizens for Equality, a group long critical of the Nation's tax exemptions.

"For anybody's who's really been following the case, as we have, it didn't come as a surprise," Vickers said.

Neither lower court considered the city's arguments, he said. Hurd said the land in question was Indian country and was therefore tax exempt. The Second Circuit Court ruled only that Hurd did not abuse his discretion in his ruling, and didn't consider the arguments.

When the Supreme Court heard the case, Vickers said, it was the first time the city's arguments were truly considered.

"They made a decision based on equitable considerations and common sense," Vickers said.

That decision came months before anyone expected it -- in late March, instead of May or June. Vickers believes the decision was in fact made when the court went against the advice of the U.S. Solicitor General and accepted the case.

"This kind of patchwork, checkerboard jurisdictional tax evasion stuff is not what Indian sovereignty was meant to be all about," he said. "I think they already had their minds made up about that."

Advocates for Indian tribes say the ruling is a sign of a changing paradigm toward Indian issues.

"I've been in this business 35 years, and I would certainly say that over the last 20 years, the courts have been less sympathetic to Indian issues," said Tim Weaver, an attorney for the Yakima Indian Tribe in Washington state who has argued on Indian issues before the Supreme Court twice.

As Indian tribes succeed economically, many people believe they no longer need the protection of the federal government, he said.

"That's mistaken," he said.

Indian land was stolen, and now that steps are being taken to remedy that, no one wants to pay the bill, Odawi Porter said. The ruling criticized the practice of "checkerboarding" Indian Country, but Odawi Porter said the court has, in the past, affirmed the practice.

"I think that's the inherent bias of a system that is designed to further the interests of settlers," he said.

But King says there's no bias.

"To come on now and say, 'We're going to take it off the tax roll,' that's not the equitable thing to do," he said.

With the decision in hand, communities are making plans to start collecting taxes from the Oneidas. The Verona Town Board voted Tuesday to hire a private appraiser to estimate the value of Turning Stone Resort and Casino so the town can collect property taxes on the complex.

"It's to be continued," said King, now a Democratic candidate for state attorney general. "This is America's history. Sherrill made America's history."

Contact Krista J. Karch at kkarch@utica.gannett.com