Upstate Citizens for Equality, Inc., David Brown Vickers, Richard Tallcot, Scott Peterman, Daniel T. Warren, Town of Vernon, New York, Town of Verona, Abraham Acee, Arthur Strife, Plaintiffs-Appellants,
United States of America, individually, and as trustee of the goods, credits and chattels of the federally recognized Indian nations and tribes situated in the State of New York, Sally M.R. Jewell, in her official capacity as Secretary of the U.S. Department of the Interior, Michael L. Connor, in his official capacity as Deputy Secretary of the U.S. Department of the Interior and exercising his delegated authority as Assistant Secretary of the Interior for Indian Affairs, Elizabeth J. Klein, in her official capacity as Associate Deputy Secretary of the Interior for Indian Affairs, United States Department of the Interior, Defendants-Appellees.
Argued: May 3, 2016
Indian Reorganization Act of 1934 authorizes the federal
government to take land into trust on behalf of Indian
tribes. Plaintiffs-Appellants-two towns, a civic
organization, and several residents of central New York
state-challenge the federal government's 2008 decision to
take approximately 13, 000 acres of land in central New York
into trust on behalf of the Oneida Indian Nation of New York
(the "Tribe"). The District Court granted summary
judgment for the federal government defendants. On appeal,
Plaintiffs contend that the land-into-trust procedures are
unconstitutional, and, in the alternative, that the
government's exercise of those procedures on behalf of
the Tribe exceeded its authority under the statute. We
disagree, and conclude that the entrustment procedures lie
within the federal government's plenary authority over
Indian affairs and do not run afoul of the Constitution's
Enclave Clause. We further decide that the Oneida Indian
Nation of New York is eligible as a "tribe, "
within the meaning of 25 U.S.C. §§ 465 and 2201(1),
to be the beneficiary of such an entrustment.
Brown Vickers, Fayetteville, NY, for Upstate Citizens for
Equality, Inc., David Brown Vickers, Richard Tallcot, Scott
Peterman and Daniel T. Warren.
Cornelius D. Murray, O'Connell and Aronowitz, Albany, NY,
for Town of Vernon, Town of Verona, Abraham Acee and Arthur
David Gunter II (John C. Cruden, Steven Miskinis, Jennifer
Turner, on the brief), United States Department of Justice,
Washington, DC, for United States of America, individually,
and as trustee of the goods, credits and chattels of the
federally recognized Indian nations and tribes situated in
the State of New York, Sally M.R. Jewell, in her official
capacity as Secretary of the U.S. Department of the Interior,
Michael L. Connor, in his official capacity as Deputy
Secretary of the U.S. Department of the Interior and
exercising his delegated authority as Assistant Secretary of
the Interior for Indian Affairs, Elizabeth J. Klein, in her
official capacity as Associate Deputy Secretary of the
Interior for Indian Affairs, United States Department of the
Before: Livingston, Chin, and Carney, Circuit Judges.
L. CARNEY, CIRCUIT JUDGE.
case is the latest in a long line of lawsuits in our Circuit
regarding the efforts of the Oneida Indian Nation of New York
("the Tribe") to assert tribal jurisdiction over a
portion of its indigenous homeland in central New York State.
After the Supreme Court rejected the Tribe's claim to
existing, historically-rooted jurisdiction over a portion of
the homeland, see City of Sherrill v. Oneida Indian
Nation, 544 U.S. 197 (2005), the Tribe requested that
the United States take approximately 17, 000 acres of Tribe-
owned land into trust on its behalf in procedures prescribed
by § 5 of the Indian Reorganization Act of 1934. The
entrustment that the federal government approved in 2008 gave
the Tribe jurisdiction over approximately 13, 000 acres of
land in central New York, allowing the Tribe, among other
things, to continue to operate its Turning Stone casino in
Verona, New York.
towns, a civic organization, and several residents of the
area near the trust land-filed these lawsuits in an attempt
to reverse the land-into- trust decisions. They now appeal
from judgments of the Northern District of New York (Lawrence
E. Kahn, J.), granting the summary judgment motions
of Defendants-Appellants, the United States and several
federal officials. The District Court rejected
Plaintiffs' claims that the land-into-trust procedures
are unconstitutional and that certain provisions of the
Indian Land Consolidation Act ("ILCA"), adopted in
1983, bar the United States from taking land into trust for
agree with the District Court that the entrustment procedure
generally, and this entrustment in particular, lie within the
federal government's long-recognized "plenary"
power over Indian tribes: Neither principles of state
sovereignty nor the Constitution's Enclave Clause-which
requires state consent for the broadest federal assertions of
jurisdiction over land within a state-prevents the federal
government from conferring on the Tribe jurisdiction over
these trust lands. We further hold that the Oneida Nation of
New York is eligible as a "tribe" within the
meaning of 25 U.S.C. §§ 465 and 2201(1) for land to
be taken into trust on its behalf. Accordingly, we AFFIRM the
judgments of the District Court.
Land-into-Trust Procedures (§ 5 of the Indian
origins of this dispute lie in the evolution of federal
Indian policy in the late 19th and early 20th centuries.
Beginning in the late 19th century, Congress began to
partition tribal lands and allocate parcels to individual
Indians in a policy known as "allotment." Cty.
of Yakima v. Confederated Tribe s & Bands of Yakima
Indian Nation, 502 U.S. 251, 253-54 (1992). As the
Supreme Court has described, "[t]he objectives of
allotment were simple and clear cut: to extinguish tribal
sovereignty, erase reservation boundaries, and force the
assimilation of Indians into the society at large."
Id. at 254. In the years in which the allotment
policy was followed, Congress also stripped tribes of their
authority to govern themselves, instead providing that
Indians residing on allotted lands would eventually be
subject to state civil and criminal jurisdiction.
Id. at 254-55.
Indians could still sell their allotted lands to non-Indians,
however, "many of the early allottees quickly lost their
land through transactions that were unwise or even procured
by fraud." Id. at 254. For this and other
reasons, the allotment policy "came to an abrupt end in
1934." Id. at 255. The Indian Reorganization
Act of 1934 ("IRA")-including its § 5,
originally codified at 25 U.S.C. §
465-"fundamentally restructured the relationship between
Indian tribes and the federal government, reversing the
Nineteenth Century goal of assimilation and embodying
'principles of tribal self-determination and
self-governance.'" Connecticut ex rel.
Blumenthal v. U.S. Dep't of the Interior, 228 F.3d
82, 85 (2d Cir. 2000) ("Connecticut")
(quoting Cty. of Yakima , 502 U.S. at 255). The IRA
repudiated the allotment policy and aimed to restore to
tribes, or replace, the lands and related economic
opportunities that had been lost to them under it.
See Felix S. Cohen, Handbook of Federal Indian
Law § 15.07[a] (2012) ("Cohen,
therefore authorized the Secretary of the Interior, in her
discretion, to acquire land and other property interests
"within or without existing reservations . . . for the
purpose of providing land for Indians." Pub. L. No.
73-383, § 5, 48 Stat. 984, 985 (1934) (codified at 25
U.S.C. § 465). "Title to any lands or rights
acquired pursuant to this Act, " it provides,
"shall be taken in the name of the United States in
trust for the Indian tribe or individual Indian for which the
land is acquired." Id. Land held by the federal
government in trust for Indians under this provision "is
generally not subject to (1) state or local taxation; (2)
local zoning and regulatory requirements; or, (3) state
criminal and civil jurisdiction [over Indians], unless the
tribe consents to such jurisdiction."
Connecticut, 228 F.3d at 85-86 (citations omitted).
Under the IRA as passed in 1934, tribes were entitled to opt
out of its provisions, including the land-into-trust
provisions of § 5, by majority vote. See Pub.
L. No. 73-383, § 18, 48 Stat. 984, 988 (1934) (codified
at 25 U.S.C. § 478).
IRA's implementing regulations, promulgated by the U.S.
Department of the Interior, create a process by which tribes
and individual Indians can request that the Department take
land into trust on their behalf. See 25 C.F.R.
§ 151.9. Upon receiving such a request, the Secretary
must provide notice to state and local governments whose
rights would be affected by the acquisition and give them an
opportunity to respond. See § 151.10. In making
her final decision, the Secretary is to consider enumerated
criteria, including the tribe's need for land "to
facilitate tribal self-determination, economic development,
or Indian housing, " § 151.3(a)(3), and "the
impact on the State and its political subdivisions resulting
from the removal of the land from the tax rolls, "
§ 151.10(e). The Secretary is also directed to consider
jurisdictional problems and conflicts of land use that would
be created by an entrustment. Id.
more than four decades, the Tribe has clashed with state and
local governments and residents in upstate New York over its
efforts to regain governmental authority with respect to a
portion of its extensive indigenous homeland. Prior opinions
of this Court and the Supreme Court have detailed the complex
history of the relationship between New York and the Tribe,
and in particular their disputes regarding the Tribe's
jurisdiction over its reservation in central New York.
See Oneida Indian Nation of N.Y. v. Cty. of Oneida,
414 U.S. 661, 663-65 (1974) ("Oneida I");
Cty. of Oneida v. Oneida Indian Nation of N.Y., 470
U.S. 226, 230-32 (1985) ("Oneida II");
City of Sherrill v. Oneida Indian Nation of N.Y.,
544 U.S. 197, 203-11 (2005) ("Sherrill");
Oneida Indian Nation of N.Y. v. City of Sherrill,
337 F.3d 139, 146-52 (2d Cir. 2003) ("Oneida
III"), rev'd, Sherrill, 544
U.S. at 221. We offer only a brief summary of that history
here, to provide context for our decision.
Tribe is a federally recognized Indian tribe and "a
direct descendant of the [Oneida Nation], 'one of the six
nations of the Iroquois, the most powerful Indian Tribe in
the Northeast at the time of the American
Revolution.'" Sherrill, 544 U.S. at 203
(quoting Oneida II, 470 U.S. at 230). The
"aboriginal homeland" of the Oneida Nation
"comprised some six million acres in what is now central
New York." Id. But under the 1788 Treaty of
Fort Schuyler, the Oneida Nation ceded "all their
lands"-save for a reservation of about 300, 000 acres-to
New York State in exchange for payments in money and in kind.
pivotal development, "[w]ith the adoption of the
Constitution, Indian relations came exclusively under federal
authority." Oneida III, 337 F.3d at 146. In the
1790 Nonintercourse Act, Congress prohibited selling tribal
land without the acquiescence of the federal government.
Id. at 146-47; see also 25 U.S.C. §
177 (restricting alienability of Indian land). Then, in 1794,
the federal government entered into the Treaty of Canandaigua
with the Six Iroquois Nations. The Treaty
"acknowledge[d] the Oneida Reservation as established by
the Treaty of Fort Schuyler and guaranteed the Oneidas'
free use and enjoyment" of the reservation.
Sherrill, 544 U.S. at 204-05.
the Nonintercourse Act and the Canandaigua Treaty, however,
New York State continued to purchase land from the Oneidas,
largely without federal interference. Id. at 205.
Beginning in 1838, the federal government for a while
encouraged the Oneidas to relocate to a new reservation in
Kansas. Although the Tribe never completely relocated to that
site, id. at 206, the Oneidas who remained in New
York by 1920 owned only 32 acres of the reservation's
original 300, 000. Id. at 207. Nonetheless, the
Oneidas' original reservation was never officially
"disestablished." See Oneida Indian Nation of
N.Y. v. Madison Cty., 665 F.3d 408, 443-44 (2d Cir.
1990s, the Tribe began to repurchase New York reservation
land in open- market transactions and to use those lands for
various commercial enterprises. In those years, the Tribe
took the position that because the purchased parcels lay
within the boundaries of the reservation originally occupied
by the Oneidas, the properties were exempt from local
property taxes. The Tribe opened and operated the Turning
Stone Resort Casino on a portion of the newly-purchased land.
Town of Sherrill eventually moved to evict the Tribe from
land within the Town's boundaries for nonpayment of
property taxes. In response, the Tribe sought an injunction
barring both the eviction and the assessment of property
taxes. The District Court held, and our Circuit agreed, that
the Tribe's land was exempt from property taxes because
it lay within the boundaries of the reservation established
for it by the Fort Schuyler and Canandaigua treaties. See
Oneida Indian Nation of N.Y. v. City of Sherrill, New
York , 145 F.Supp.2d 226, 266 (N.D.N.Y. 2001),
aff'd by Oneida III, 337 F.3d at 167.
Supreme Court rejected the Tribe's claim, reasoning that
the Oneidas had as a practical matter lost rights to their
land more than two hundred years earlier. See
Sherrill, 544 U.S. at 216-17. During those two
centuries, state and local governments continuously exercised
sovereignty over the putative reservation land, and the
character of the land changed dramatically. Id. As a
result, the Court held, equitable considerations precluded
restoration of the Tribe's sovereign rights over land
since purchased on the market. Id. at 221. The Court
pointed out, however, that an alternative was available to
the Tribe: "Congress has provided a mechanism for the
acquisition of lands for tribal communities that takes
account of the interests of others with stakes in the
area's governance and well-being." Id. at
220. Describing the land- into-trust provisions enacted in
§ 5 of the IRA, the Court suggested that § 5
offered "the proper avenue for [the Tribe] to
reestablish sovereign authority over territory last held by
the Oneidas 200 years ago." Id. at 221.
April 4, 2005, almost immediately after the Supreme
Court's decision in Sherrill and in accordance
with the Court's suggestion, the Tribe requested that the
Secretary of the Interior take more than 17, 000 acres of
land in central New York into trust for the Tribe . All of
the land was already owned by the Tribe . Its government,
health, educational, and cultural facilities were located in
the tract, as were tribal housing, businesses, and hunting
lands, and the Tribe-operated Turning Stone casino.
years later, in May 2008, and over the objection of state and
local governments, the Department of the Interior announced
its decision to accept into trust for the Tribe approximately
13, 000 of the 17, 000 acres requested. See U.S.
Dep't of the Interior, Record of Decision: Oneida Indian
Nation of New York Fee-to-Trust Request (May 2008)
("Record of Decision"), Joint Appendix
("J.A.") 550-621. The Secretary found that the
entrustment was necessary to support tribal
self-determination, tribal housing, and economic development.
Record of Decision, J.A. 551, 585. It acknowledged that the
acquisition "may negatively impact the ability of state
and local governments to provide cohesive and consistent
governance, " id., J.A. 570, and would
incrementally increase the demand for local government
services, id., J.A. 573. But it concluded that those
negative effects did not warrant denying the entrustment.
moved quickly in 2008 to challenge the Secretary's land-
into-trust decision in federal district court. See
Upstate Citizens for Equality, Inc. v. United States,
No. 5:08-cv-633 (N.D.N.Y., ; Town of Verona v.
Salazar, No. 6:08-cv-647 (N.D.N.Y., filed June 19,
2008). Invoking federal jurisdiction pursuant to
the Administrative Procedure Act, 5 U.S.C. § 702,
Plaintiffs contended that the statutory land-into-trust
mechanism exceeds the federal government's constitutional
authority and unlawfully infringes on state sovereignty. The
Verona and Vernon Plaintiffs also argued that the
Department's statutory authority does not extend to
taking land into trust for the Tribe .
following year, while the challenges were still pending, the
Supreme Court issued its decision in Carcieri v.
Salazar, 555 U.S. 379 (2009). In Carcieri, the
Court held that only tribes "under federal
jurisdiction" when the land-into-trust law was passed in
1934 are eligible to avail themselves of the entrustment
procedures. Id. at 381. The District Court in the
litigation now before us accordingly remanded these cases to
the Department for an initial determination of whether the
Oneidas were "under federal jurisdiction" in 1934.
New York v. Salazar, No. 6:08-cv-644, 2012 WL
4364452, at *14 (N.D.N.Y. Sept. 24, 2012). And, in December
2013, the agency issued an addendum to its Record of Decision
on the Tribe's entrustment request, ruling that the
Oneidas were indeed "under federal jurisdiction" in
1934. J.A. at 810.
government moved for summary judgment in both cases,
asserting the legality of the land-into-trust decision under
both the Constitution and the applicable statutes, and its
availability with respect to the Tribe. The District Court
granted the motions. Town of Verona v. Salazar, No.
6:08-cv-647, 2009 WL 3165556, at *2-4 (N.D.N.Y. Sept. 29,
2009); Upstate Citizens for Equality v. Jewell, No.
5:08-cv-0633, 2015 WL 1399366, at *7 (N.D.N.Y. March 26,
2015). The court ruled that Congress's power under the
Indian Commerce Clause encompassed taking the land into trust
for the Tribe, and that principles of state sovereignty did
not prevent the action. The court further held that New York
's consent to the entrustment was not needed because the
federal government did not fully oust the state of
jurisdiction over the entrusted lands, and therefore the
Constitution's Enclave Clause was not implicated.
Jewell, 2015 WL 1399366, at *8-9. The court rejected
the Verona Plaintiffs' argument that the federal
government could not take land into trust for the Tribe
because the Oneidas had opted out of qualifying for that
remedy in 1936. Salazar, 2009 WL 3165556, at *9-11.
And the court held that Plaintiff Upstate Citizens for
Equality ("UCE") lacked standing to dispute the
legitimacy of the Tribe's leadership in the context of
its legal attack on the land-into- trust decision.
Jewell, 2015 WL 1399366, at *9.
instant appeals followed.
challenge the Secretary's decision to take land into
trust on behalf of the Oneida Tribe of New York as violative
of the Constitution, the Indian Removal Act, and the Indian
Land Consolidation Act. We review de novo the
District Court's rejection of those legal arguments on
summary judgment. See Citizens Against Casino Gambling in
Erie Cty. v. Chaudhuri, 802 F.3d 267, 279 (2d Cir.
threshold matter, the government contends that Plaintiff UCE
lacks standing to challenge the land-into-trust decision on
appeal because it has dropped some of the claims it pursued