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THOMPSON v. COUNTY OF FRANKLIN

December 4, 1997

DANA LEIGH THOMPSON, Plaintiff,
v.
COUNTY OF FRANKLIN; and WILLIAM A. HUGHES, Treasurer of Franklin County, Defendants.



The opinion of the court was delivered by: MCCURN

 Introduction

 Familiarity with the prior proceedings in this action is presumed. In this most recent round of motions, plaintiff Dana Leigh Thompson, an enrolled member of the federally recognized St. Regis Mohawk Indian Tribe ("the St. Regis" or "the Tribe"), as well as the defendants, the County of Franklin and William A. Hughes, Treasurer of Franklin County (collectively referred to throughout as "the County"), are moving for summary judgment pursuant to Fed. R. Civ. P. 56. Plaintiff Thompson urges that since her property lies within the boundaries of the St. Regis Mohawk Reservation ("the St. Regis Reservation" or "the Reservation"), as created by the Treaty with the Seven Nations of Canada, 1796 ("the 1796 Treaty"), *fn1" it is "Indian country" *fn2" within the meaning of 18 U.S.C. § 1151(a), and thus is not subject to the County's ad valorem tax. Primarily on the basis of the foregoing, plaintiff has continuously refused to pay her property taxes.

 The County has filed a tax lien against plaintiff's property, contending that that property is taxable because it does not come within the definition of Indian country found in section 1151(a), in that it does not lie within the jurisdictional boundaries of the Reservation created by the 1796 Treaty. The County bases its argument upon the fact that in 1824 and 1825 the Tribe and the State of New York entered into two additional "treaties." *fn3" From the County's viewpoint, those agreements diminished the Reservation boundaries as originally created by the 1796 Treaty so that plaintiff's property no longer lies within the boundaries of the St. Regis Reservation. *fn4"

 Throughout this protracted litigation, as just explained, plaintiff's primary argument has been that her property lies within Indian country because it is within the Reservation boundaries as described in the 1796 Treaty, and those boundaries have not been diminished from that time to this. At the court's prompting, during oral argument plaintiff acknowledged that in the alternative she is arguing that if the court is not inclined to find that her property is located within Indian country because it lies within the boundaries of the St. Regis Reservation, then the court should find that her property lies within Indian country because it is located within a dependent Indian community *fn5" - the second enumerated definition of Indian country contained in section 1151. According to plaintiff Thompson, this court should be able to find, with little difficulty, that her property is part of a dependent Indian community because the Second Circuit has already determined the same, and "this ruling, . . . , is the law of the circuit and is binding in this proceeding." Plaintiff's Memorandum in Support of Motion for Summary Judgment ("Pl. Memo.") at 10-11 (footnote and citation omitted).

 Plaintiff's alternative argument can quickly be dismissed, according to the County, because "there is absolutely no evidence in the record to suggest that [her] property is within a dependent Indian community." Tr. at 11. Furthermore, from the County's perspective, the plaintiff's "law of the Circuit" argument is flawed because the cases upon which she is relying to support that argument are distinguishable in that the courts in those cases were not faced with the issue which is central here - whether or not the 1824 and 1825 conveyance agreements diminished the Reservation boundaries. What is more, even if that precise issue had been previously litigated, the County suggests, without any analysis, that such dependent Indian community determination would not be binding upon it because it was neither a party to those earlier actions, nor was it in privity with the defendants therein.

 Beyond the Indian country status of plaintiff's property, there is an additional issue which these motions present, and that is whether the County has authority to tax that property. Plaintiff maintains that because her property is within Indian country, it is not taxable unless there is an express act of Congress authorizing such taxation, and the County is unable to point to any such taxing authority. Assuming plaintiff Thompson's property is within Indian country, the County responds that it does have the power to tax her property because through the 1824 and 1825 conveyance agreements there was a cession of jurisdiction by the Tribe, and thus there is no legal impediment to the County's taxation of plaintiff's property. If eventually the court finds that plaintiff Thompson's property is not Indian country within the meaning of section 1151, then plaintiff concedes that ends the court's inquiry; there is no need for the court to look any farther for an act of Congress authorizing taxation of plaintiff's property. Tr. at 36. Thus, whether plaintiff's property is taxable by the County turns upon whether it constitutes Indian country within the meaning of section 1151, either because it is located within the boundaries of an Indian reservation or because it is part of a dependent Indian community.

 Background

 Resolution of the issue of whether plaintiff's property has continued to retain its reservation status requires the court to carefully examine not only the 1796 Treaty which created the St. Regis Reservation, *fn6" but also the 1824 and 1825 conveyance agreements, which the County contends had the effect of diminishing the Reservation's boundaries.

 On May 31, 1796, an "important land cession" *fn7" occurred between the State of New York and the St. Regis, along with several other tribes. On that date, through the Treaty with the Seven Nations of Canada, the Indians agreed to "cede, release and quit claim to the people of the state of New-York, forever, all the claim, right, or title of them, . . . , to lands within the . . . state [New York] . . . ." Complaint, exh. C thereto; and Kappler 45. In addition, that Treaty "reserved" a "tract [of land] equal to six miles square, . . . to be applied to the use of the Indians of the village of St. Regis. . . ." Id. This 1796 Treaty further "reserved, to be applied to the use of the Indians of the said village of St. Regis, . . . , a tract of one mile square, . . . ." Id. The Treaty's proclamation date, or what is sometimes referred to as the date of "ratification," or the date upon which the President of the United States "formally confirm[s] the treaty, sign[s] it, and affixe[s] the great seal of the United States[,]" *fn8" was January 31, 1797. See AMERICAN INDIAN TREATIES 446. As a ratified treaty, this 1796 Treaty appears in the leading compilation of United States treaties with American Indian tribes, "which takes its text from the official publication in the United States Statutes at Large." *fn9" See Kappler 45-46.

 From the time of the 1796 Treaty until 1816, the St. Regis Reservation boundaries remained intact. Beginning in 1816, however, the state of New York and the St. Regis negotiated a series of agreements purporting to convey large tracts of land within the boundaries of the original Reservation. See Plaintiff's Statement of Undisputed Material Facts ("Pl. Undisputed Facts") at P 4; and Statement on Behalf of Defendants Pursuant to Local Rule § 7.1(f) at P 4 ("Def. Undisputed Facts"). Two of those agreements are relevant here. The County maintains that the 1824 and 1825 conveyance agreements not only extinguished title to the Indian lands previously reserved under the 1796 Treaty, but those agreements also diminished the jurisdictional boundaries of the Reservation as created by that Treaty.

 By virtue of the June 12, 1824 conveyance agreement, the St. Regis Tribe agreed to "sell and hereby convey" to the State of New York approximately one thousand (1,000) acres of land located within the tracts of land reserved for the Tribe in the 1796 Treaty. See Peebles Aff., exh. A thereto. In consideration, the State agreed to pay the St. Regis one thousand seven hundred and fifty dollars ($ 1,750.00), as well as annual payments of sixty dollars ($ 60.00) "forever hereafter. . . ." Id. There is no explicit mention of taxation in this agreement.

 By a second conveyance agreement, dated September 23, 1825, the St. Regis further agreed to "sell and hereby convey" to the State of New York an additional approximately eight hundred and forty (840) acres of land, also located within the tract of land originally reserved for the Tribe in the 1796 Treaty. Id., exh. B thereto. For that land, the State paid the Tribe two thousand one hundred dollars ($ 2,100.00) "in full for the same." Id. Taxation also is not expressly mentioned in this conveyance agreement.

 Because treaties enacted under the authority of the United States Constitution "by themselves were not sufficient for managing relations with the Indians[,]" between 1790 and 1834, Congress enacted a series of laws governing trade and intercourse with the Indians. See AMERICAN INDIAN TREATIES 100. Basically, the first Nonintercourse Act, enacted in 1790, codified the policy of federal restraints on alienation of tribal lands, *fn10" in that, among other things, it prohibited tribes from selling their lands unless the sale was "made and duly executed at some public treaty[] held under the authority of the United States." 1 Stat. 329, 330-31, § 8. See generally FRANCIS PAUL PRUCHA, AMERICAN INDIAN POLICY IN THE FORMATIVE YEARS: THE INDIAN TRADE AND INTERCOURSE ACTS, 1790-1834. Thus, in effect, "only the United States government could purchase Indian lands. . . ." HANDBOOK 111. Plaintiff Thompson concedes, as she must, *fn11" that both the 1824 and 1825 conveyance agreements were executed in conformity with the Nonintercourse Act, 25 U.S.C. § 177.

 Plaintiff further concedes that her property is located within the area of land which was conveyed to the State in the 1824 and 1825 agreements. Tr. at 19. Thus, if in the end the court agrees with the County that the 1824 and 1825 conveyance agreements diminished the original boundaries of the St. Regis Reservation, then plaintiff would be forced to acknowledge that her property does not come within the ambit of section 1151(a) because it is not located within the boundaries of an Indian reservation. To establish the Indian country status of her property, plaintiff would then be forced to rely on what clearly is her secondary argument, *fn12" which is that her property qualifies as Indian country because it is part of a dependent Indian community under 18 U.S.C. § 1151(b).

 Discussion

 I. Legal Standards

 Given that the parties as well as the court are quite familiar with the general principles which govern any summary judgment motion, there is no need to reiterate the same herein. *fn13" Suffice it to say that because, as the parties agree, *fn14" the issues presented by these cross-motions are purely legal, *fn15" this ...


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