Upstate Citizens for Equality, Inc. v. United States

          Argued: May 3, 2016

         The 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.

         Affirmed.

          David 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 Strife.

          J. 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 Interior.

          Before: Livingston, Chin, and Carney, Circuit Judges. ^[*]

          SUSAN L. CARNEY, CIRCUIT JUDGE.

         This 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. ^[1] 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.

         Plaintiffs-Appellants-two 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.^[2] 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 the Tribe.

         We 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.^[3] Accordingly, we AFFIRM the judgments of the District Court.

         BACKGROUND

         I. Land-into-Trust Procedures (§ 5 of the Indian Reorganization Act)

         The 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.

         Because 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[1][a] (2012) ("Cohen, Handbook").

         The IRA 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).^[4] "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.^[5] See Pub. L. No. 73-383, § 18, 48 Stat. 984, 988 (1934) (codified at 25 U.S.C. § 478).

         The 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.

         II. Factual Background^[6]

         For 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.

         The 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. Id.

         In a 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.

         Notwithstanding 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. 2011).^[7]

         In the 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.

         The 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.

         But the 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.

         On 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.

         Three 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. Id.

         III. Procedural History

         Plaintiffs-Appellants 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).^[8] 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 .

         In the 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.^[9]

         The 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.

         The instant appeals followed.

         DISCUSSION

         Plaintiffs 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. 2015).

         I. Standing

         As a 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 before ...