Mediation Termination Order
June 22, 2000

This court, by letter order dated May 26, 2000, directed all parties by their attorneys and representatives to appear before it on June 9, 2000, at which time a determination would be made as to whether to continue the mediation process previously approved by the court at the request of the parties, or whether to declare an impasse in the settlement negotiations, terminate the mediation, and discharge the mediator. The purpose of that session was for the court to guide the settlement negotiations in a final, last-ditch effort to resolve, short of full-blown litigation, this action which has been pending in the Northern District of New York for a quarter of a century. The court advised the parties that in the event agreement could not be made at that time, it would place the case on a schedule calling for the orderly progress of the litigation leading to the ultimate trial of the issues which are the subject of this litigation.

The court advised the parties that it was essential that on June 9 they reach agreement on three separate issues which seemingly had become an unsurmountable obstacle to any further movement towards settling this land claim litigation. The court decided to proceed in this way because during one and a half years of intense, active mediation efforts under the leadership of Settlement Master (Ronald) Riccio, it became readily apparent that the parties had been unable to come to a successful out-of-court resolution of the complex legal and factual questions involved herein. Central to such a resolution was, and remains, in the court’s opinion, a willingness by each of the parties to arrive at a mutually satisfactory accommodation of three vital issues: (1) the Instant Multi-Gaming (“IMG”) lawsuit currently pending before Judge McAvoy; (2) the cap on land acquisition: and (3) sales tax. the court noted that although each of these issues is clearly extraneous to the current land claim litigation, unfortunately, resolution of same had become a condition precedent to settlement by three of the parties, as well as by the State of New York (“the state”).

An on-the-record phone conference held on May 31, 2000, convinced the court that there was a reasonable possibility that a settlement agreement could be reached. that was not to be, however. The court scheduled a final negotiating session for June 9, 2000, which was attended by all of the counsel and their respective clients who had binding settlement authority. Unfortunately, due to illness, the court was unable to participate in that session, but as he has throughout the mediation process, Settlement Master Riccio ably handled the same. Although there seemed to be some possibility of potential agreement on the land cap and IMG issues, the sales tax issue could not be resolved to the satisfaction of at least three of the parties, that is, the Oneida Indian Nation of New York (“the N.Y. Oneida”) and the Counties of Oneida and Madison.

There is certainly enough blame to go around for the fact that following a full day of intense mediation efforts, on June 9, 2000, settlement efforts were halted. The court cannot help but observe, however, that on that day, as throughout much of the mediation process, not all of the parties were genuinely committed to settling this lawsuit. For example, the State has steadfastly refused to use its legal authority to demand that the N.Y. Oneida collect sales tax on sales to non-Indians, occurring on reservation land. But in the end, it was the failure of the N.Y. Oneida and the defendant Counties to work out a mutual accommodation of the sales tax issue which now prevents the is mediation form going forward.

There is no point in proceeding any further, despite the apparent readiness of the other parties (i.e., the Oneida of the Thames, the Oneida of the Wisconsin, and the United States (“the U.S.”) where necessary, to subordinate their respective self-interests to those of the innocent members of the public, Oneida and non-Oneida alike, and to move towards a final out-of-court settlement. Any further formal mediation efforts would be pointless because, as has been apparent to the Settlement Master for some time, and has become clear to this court more recently when, in late February 2000, an impasse seemed inevitable, in contrast to the other tribal plaintiffs and the U.S., the N.Y. Oneida area not, to any degree, willing to subordinate their own self-interests in an attempt to arrive at a fair settlement. The same is true of the Counties and State.

In the court’s opinion, it is not only the present leadership of the N.Y. Oneida, but also that of the State (particularly its Chief Executive), through its refusal to exercise its legal powers to assist the Counties in resolving the sales tax issue, which has frustrated this mediation process. This failed mediation effort is a tragedy for this community, which has becoming increasingly divided over this litigation. Not only this generation of community residents, but generations of same to come, will bear the bitter fruits of this intransigence. Accordingly, the court hereby terminates the mediation process and discharges Settlement Master Riccio with the sincere thanks and appreciation of the court. A litigation schedule will be imposed hereafter.

Hopefully during the course of this litigation, which undoubtedly will take years to run its course, those who will be called upon to bear the hardships inherent herein will be able to impress upon their current leadership, or upon successive leadership, the availability and feasibility of mutual consideration and accommodation of the interests of all involved to work out an acceptable and just out-of-court resolution. This court, and rest assured any future federal court with jurisdiction herein, will always remain available to assist in same.
It is so ordered.

Dated: June 22, 2000

Syracuse, New York.

Neal P. McCurn,
Senior U.S. District Judge