        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

35
CA 16-01009
PRESENT: SMITH, J.P., DEJOSEPH, NEMOYER, TROUTMAN, AND SCUDDER, JJ.


RICHARD E. KAPLAN, PLAINTIFF-APPELLANT,

                    V                             MEMORANDUM AND ORDER

STATE OF NEW YORK, DEFENDANT-RESPONDENT.


RICHARD E. KAPLAN, UTICA, PLAINTIFF-APPELLANT PRO SE.

ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL, ALBANY (ROBERT M. GOLDFARB OF
COUNSEL), FOR DEFENDANT-RESPONDENT.


     Appeal from an order and judgment (one paper) of the Supreme
Court, Oneida County (Bernadette T. Clark, J.), entered March 3, 2016.
The order and judgment, among other things, declared that defendant
did not violate article XVI, § 1 of the New York State Constitution.

     It is hereby ORDERED that the order and judgment so appealed from
is unanimously affirmed without costs.

     Memorandum: Plaintiff, a citizen taxpayer, commenced this
declaratory judgment action alleging that defendant State of New York
ceded its taxation authority to the Federal government by entering
into the Oneida Settlement Agreement (Agreement), thereby violating
article XVI, § 1 of the State Constitution. Plaintiff seeks a
declaration that the Agreement is null and void and that Executive Law
§ 11, which incorporates the Agreement, and Indian Law § 16 are
unconstitutional. Defendant moved to dismiss the complaint on various
grounds, including failure to state a cause of action pursuant to CPLR
3211 (a) (7), and Supreme Court granted the motion. We note at the
outset that, “[u]pon a motion to dismiss for failure to state a cause
of action, a court may reach the merits of a properly pleaded cause of
action for a declaratory judgment where no questions of fact are
presented [by the controversy] . . . Under such circumstances, the
motion to dismiss the cause of action for failure to state a cause of
action should be taken as a motion for a declaration in the
defendant’s favor and treated accordingly” (North Oyster Bay Baymen’s
Assn. v Town of Oyster Bay, 130 AD3d 885, 890 [internal quotation
marks omitted]).

     Plaintiff alleges that Section VI B (1-5) of the Agreement
violates article XVI of the State Constitution, which prohibits the
State from surrendering, suspending or contracting away its power of
taxation. Section VI B (1-5) provides that the State will not oppose
a future application by the Oneida Indian Nation (Nation) to transfer
                                 -2-                            35
                                                         CA 16-01009

to the United States up to 12,366 acres of land to be held in trust
pursuant to 25 USC § 5108 (formerly § 465). The land at issue was
formerly part of the 300,000-acre reservation, which was established
in the 1788 Treaty of Fort Schuyler (see City of Sherrill, N.Y. v
Oneida Indian Nation of N.Y., 544 US 197, 203), and which the Nation
has reacquired through open-market transactions (see id. at 211). In
2008, the United States Secretary of the Interior accepted the
transfer into trust of 13,004 acres of reacquired land owned by the
Nation, over defendant’s objection. We conclude that the court
properly declared that Section VI B (1-5) does not violate the State
constitutional provision prohibiting defendant from surrendering or
contracting away its power of taxation. Indeed, the determination
whether to accept additional land owned by the Nation into trust rests
solely with the United States Secretary of the Interior, who “must
consider, among other things, the [Nation’s] need for additional land;
‘the purposes for which the land will be used’; ‘the impact on the
State and its political subdivisions resulting from the removal of the
land from the tax rolls’; and ‘[j]urisdictional problems and potential
conflicts of land use which may arise’ ” (id. at 221, quoting 25 CFR
151.10 [f]).

     To the extent that plaintiff contends that Executive Law § 11 and
Indian Law § 16 violate article XVI of the State Constitution, we
reject that contention. “[T]here exists a strong presumption of
constitutionality which accompanies legislative actions . . . This is
not to say, of course, that such actions must always be sustained
without question . . . ; they are, however entitled to the benefit of
the presumption, and will be sustained absent a clear showing of
unconstitutionality” (Wein v Beame, 43 NY2d 326, 331 [internal
citations omitted]), which plaintiff has not made here.




Entered:   February 3, 2017                     Frances E. Cafarell
                                                Clerk of the Court
