United States District Court

Northern District of New York

Upstate Citizens for Equality, Inc., David Vickers, Scott Peterman, Richard Talcott, and Daniel T. Warren

                                     Plaintiffs,

                  vs.

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;

 

Dirk Kempthorne in his official capacity as Secretary of the U.S. Department of the Interior;

 

P. Lynn Scarlett in her official capacity as Deputy Secretary of the U.S. Department of the Interior and exercising her delegated authority as Assistant Secretary of the Interior for Indian Affairs;

 

James Cason, in his official capacity as the

Associate Deputy Secretary of the U.S. Department of the Interior and exercising his delegated authority as Assistant Secretary of the Interior for Indian Affairs;

 

United States Department of the Interior;

 

Philip N. Hogen, in his capacity as Chairman of the National Indian Gaming Commission;

 

National Indian Gaming Commission;

 

Michael B. Mukasey, in his capacity as Attorney General of the United States

                                     Defendants

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Verified

Civil Complaint

 

Case # 08-CV-00633

 

I. Jurisdiction and Venue

 

1.                  Plaintiffs bring this action under the Administrative Procedure Act (APA), 5 U. S. C. § 551 et. seq.; Indian Gaming Regulatory Act (IGRA), 25 U.S.C. §§ 2701 et seq.; Indian Reorganization Act of 1934 (IRA), 25 .U.S.C. § 471, et seq.; Indian Land Consolidation Act of 1983 (ILCA), 25 U.S.C. §§ 2201–2219; NEPA, 42 U.S.C. § 4321, et seq.; and Article I, Section 1 of the United States Constitution; Article 1, § 8, Clause 3 of the United States Constitution (Indian Commerce Clause); 5th and 10th Amendments to the United States Constitution. This Court has subject matter jurisdiction over this action under 28 U.S.C. §§ 1331, 1361 and may issue declaratory relief and reverse, delay, or postpone Defendants' actions or otherwise issue an injunction under 28 U.S.C. § 2201 and 5 U.S.C. §§ 702, 705.

2.                  Defendants' May 23, 2008, notice states that Defendants will place the land into trust after thirty days. (73 Fed. Reg. 30144 (May 23, 2008)). The thirty-day period "allows interested parties to seek judicial or other review under the Administrative Procedures Act and applicable regulations." 25 CFR § 151.12(b). Plaintiffs are filing this action for review within the thirty-day period.

3.                  The May 19, 2008, Record of Decision as announced in the federal register on May 23, 2008, of the application of the Oneida Indian Nation to have land taken into trust is final agency action (25 CFR § 2.6; 5 U.S.C. § 704).

4.                  The June 13, 2007, determination of the Defendants that the 1993 tribal-state compact between the State of New York and the Oneida Indian Nation of New York remains in effect under the Indian Gaming Regulatory Act dated June 13, 2007, and the NIGC’s approval of the Oneida Indian Nation’s Gaming Ordinance dated January 3, 1994 are final agency actions (25 CFR § 2.6; 5 U.S.C. § 704).

5.                  It should be noted that the publication requirement of 25 C.F.R. § 151.12(b) does not come into play until administrative remedies have been exhausted. State of South Dakota and Mellette County v. Aberdeen Area Director, Bureau of Indian Affairs, 35 IBIA 16, 23 (2000).

6.                  The Interior Board of Indian Appeals does not have jurisdiction to review the determination issued by the Associate Deputy Secretary or Deputy Secretary (County of Amador v. Associate Deputy Secretary of the Interior, et al, (44 IBIA 4)) the Assistant Secretary of Indian Affairs (State of South Dakota & Town of Oacoma v. Aberdeen Area Director, Bureau of Indian Affairs, 22 IBIA 126 (1992)).

7.                  Alternatively if one or more of the challenged determinations is determined not to be final agency action then exhaustion should not be required because any further administrative appeals would be futile since this action challenges not only whether the determinations are arbitrary and capricious, but that the acts that purportedly authorized the Defendants to act in such a manner is constitutional or even if constitutional the actions were contrary to law and in excess of the Defendants authority.  The Interior Board of Indian appeals has consistently held that, as part of the Executive Branch of government, it does not have the authority to declare an act of Congress unconstitutional. See, e.g., County of Mille Lacs, Minnesota v. Midwest Regional Director, 37 IBIA 169 at 171; Oklahoma Petroleum Marketers Ass’n et al. v. Acting Muskogee Area Director, 35 IBIA 285, 287 (2000), and cases cited therein.  Additionally exhaustion should not be required because Plaintiffs’ interests in judicial review outweigh the government's interests in the efficiency or administrative autonomy that the exhaustion doctrine is designed to further. West v. Bergland, 611 F.2d 710, 715 (citing Weinberger v. Salfi, 422 U.S. 749, 766, 95 S.Ct. 2457, 45 L.Ed.2d 522 (1975); United States v. Newmann,  478 F.2d 829, 831 (8th Cir. 1973))

8.                  Defendants have waived sovereign immunity to actions, such as the instant action, seeking judicial review of agency action, declaratory and injunctive relief pursuant to 5 U.S.C. § 702.

9.                  Venue is proper in this Court pursuant to 28 U.S.C. § 1391(e) and 5 U.S.C. § 703 because this is an action in which the Defendants are officers and employees of the United States acting in their official capacities, and a substantial part of the events or omissions giving rise to the claims herein have occurred or will occur in this judicial district.

II Nature of Claim

 

10.              Plaintiffs allege the following:

(a)    The Defendants are acting, have acted and will continue to act:

                                                               i.      in excess of statutory jurisdiction, authority, or limitations, or short of statutory right in taking any land identified in the Defendants’ notice of intent into trust under the Indian Reorganization Act of 1934;

                                                             ii.      contrary to constitutional right, power, privilege, or immunity in taking any land in the State of New York into trust under the Indian Reorganization Act of 1934;

                                                            iii.      Acted in an arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law in rendering its determination dated May 20, 2008, to take land into trust under the Indian Reorganization Act of 1934;

                                                           iv.      without observance of procedure required by law in rendering its determination dated May 20, 2008 to take land into trust under the Indian Reorganization Act of 1934.

(b)   The Defendants determination that the 1993 tribal-state compact between the State of New York and the Oneida Indian Nation of New York remains in effect under the Indian Gaming Regulatory Act dated June 13, 2007, and the NIGC’s approval of the Oneida Indian Nation’s Gaming Ordinance dated January 3, 1994 is:

                                                               i.      contrary to constitutional right, power, privilege, or immunity;

                                                             ii.      in excess of statutory jurisdiction, authority, or limitations, or short of statutory right;

                                                            iii.      arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law;

                                                           iv.      without observance of procedure required by law.

(c)    Defendants have failed to adhere to and/or promulgate their own regulations and policies, make regular inspections, or take vigorous inspections in order to carry out their enforcement duties under the Indian Gaming Regulatory Act of 1988 (25 U.S.C. § 2701, et seq.) and a writ of mandamus should issue directing them to carry out these duties.

III. Parties

 

 

11.              Plaintiff, Upstate Citizens for Equality, Inc. (UCE), is a nonprofit corporation incorporated under the laws of the State of New York having members that own homes and do business in and around the area of western and central New York and included in the area claimed by the Oneida Indian Nation that is part of its trust application.

12.              Plaintiff Richard Tallcot is a member and officer of UCE working and residing in the area of the Cayuga Indian Tribes’ fee to trust application.

13.              Plaintiff Daniel T. Warren is a member and officer of UCE working and residing in the area of the Seneca Nation of Indians land acquisitions.

14.              Plaintiff Scott Peterman is a member and officer of UCE working and residing in the area of the Oneida Indian Nation of New York’s fee to trust application.

15.              Plaintiff David Vickers is a member and officer of UCE working and residing in the area of the Oneida Indian Nation of New York’s fee to trust application and has an office in the land claimed by the Onondaga land rights action (See USDC, NDNY 05-CV-0314).

16.              UCE is a New York non-profit corporation that seeks to protect the citizenry and quality of life in its community by opposing the proliferation of prohibited gambling venues and the violation of laws in the State of New York, regardless of whether the offense occurs on “Indian land” or not in the State of New York.

17.              UCE's members and supporters include homeowners, business owners, clergy, retirees, and many others. Many of these people reside in Madison and Oneida Counties, including Verona, the cities of Oneida and Sherrill, and other areas within driving distance of the land that is intended to be taken into trust by the Oneida and Cayuga Indian Nations. These areas will be disproportionately impacted if the land is placed in trust and an illegal casino is allowed to continue to be operated there.

18.              UCE has standing to bring this action based on the interests of its individual members. Defendants' actions threaten to injure UCE's members in a way that is different from the citizenry at large, since they have been and will be exposed to and injured by the negative effects of operating and expanding a massive illegal casino in their community. These effects include, among others, (a) an irreversible change in the rural character of the area; (b) loss of enjoyment of the aesthetic and environmental qualities of the agricultural land surrounding the casino site; (c) increased traffic; (d) increased light, noise, air, and storm water pollution; (e) increased crime; (f) loss of tax revenue currently generated by the agricultural land that comprises the casino site; (g) diversion of police, fire, and emergency medical resources; (h) decreased property values; (i) the loss of business and recreational opportunities, such as retail stores and restaurants, that will be forced out by the casino; (j) loss of consumer spending at area businesses; (k) increased bankruptcies; (l) continued diversion of community resources to the treatment of gambling addiction; (m) continued weakening of the family atmosphere of the community; and (n) other aesthetic, socioeconomic, and environmental problems associated with an illegal gambling casino and Indian land and (o) the unequal application of law based on status as tribal member or non-tribal member in the State of New York.

19.              These concerns and this litigation are germane to UCE’s organizational purpose and will enhance its central missions.

20.              UCE's members include its president David Vickers and Scott Peterman, who live in the vicinity of the illegal casino and are committed to stopping the proliferation of illegal casino gambling and other legal abuses across New York. These members will be injured by the Defendants condoning and permitting the operation of the Turning Stone Casino and Resort, which they believe is both economically and politically repugnant and contrary to the best interests of the State and their individual communities.

21.              UCE's membership, which include its president David Vickers and Scott Peterman, also comprises people who have lived in Verona for many years that make their homes from 1/8 to 3/4 of a mile from the casino site and land that is subject to the OIN’s fee to trust application. These UCE members value the quiet lives they lead and fear what the expansion, construction and operation of a huge illegal casino and the taking of the subject lands into trust for the Oneida Indian Nation of New York would do to it. If the illegal casino is expanded and allowed to operate, they will be the ones who have to deal with the visual impact of the illegal casino facilities every time they drive past or go for walks in the vicinity of the casino, who will have to tolerate the increased traffic, noise, light, and air pollution that will come from more than 3.1 million visitors a year, and who will have to deal with the increase in gambling addiction, crime, and other social ills that come with the casino. These are the people who will have to deal with the confusion and chaos that will result from a checkerboard of police and other jurisdictional boundaries.  These are the people who will not know if the Oneida Nation security force has jurisdiction to stop them on New York public roads.  These changes would severely impact these residents' rural lifestyles and land uses. For some UCE members, these concerns are business-related as well as personal.

22.              UCE’s members that reside near and around the other parcels of land that are the subject of the challenged land to trust application will be affected by the changes in the land use absent compliance with zoning and environmental procedures, building standards, code enforcement, the increase in traffic and its attendant risks, air pollution and noise as well as other negative environmental, health, economic and social consequences that are attendant by the proposed action and eventual development and use of the subject lands and are also concerned of the affect that such an action will have on the value of their respective properties.

23.              IGRA and the IRA and their respective regulations provides for the consideration of effects on surrounding communities and the consideration of land use conflicts and NEPA requirements. (i.e., 5 U.S.C. § 2719(b)(1)(A); 25 C.F.R. §§ 151.10(f),(h), 151.11(a).

24.              The injuries and grievances of UCE's members were caused, facilitated, or made possible by the activities that form the basis of this Complaint, and will be redressed by a ruling in UCE's favor. UCE's interests fall within the zone of interests protected by the laws sought to be enforced in this action.

25.              Defendant Dirk Kempthorne in his official capacity as Secretary of the U.S. Department of the Interior is charged with the duty of carrying out the declared trust responsibility of the United States towards Indian nations and tribes. Under the Indian Gaming Regulatory Act (“IGRA”), 25 U.S.C. § 2701, et seq., the Secretary has the authority to approve or disapprove Indian gaming compacts that are governed by the Act, or to allow such compacts to be considered to have been approved.  Under the Indian Reorganization Act of 1934, 25 U.S.C. § 461 et seq., the Secretary has the authority to acquire lands for particular Indian nations and tribes from funds appropriated by Congress in accordance with established procedures for that purpose.

26.              Defendant P. Lynn Scarlett is the Deputy Secretary of the Interior for Indian Affairs exercising delegated authority of the Assistant Secretary of the Interior for Indian Affairs. In that capacity she oversees the Bureau of Indian Affairs within the U.S. Department of the Interior, and she may exercise the Secretary of the Interior’s delegated authority for decisions affecting Indian Affairs.

27.              Defendant James Cason is the Associate Deputy Secretary of the Interior for Indian Affairs exercising delegated authority of the Assistant Secretary of the Interior for Indian Affairs. In that capacity he oversees the Bureau of Indian Affairs within the U.S. Department of the Interior, and he may exercise the Secretary of the Interior’s delegated authority for decisions affecting Indian Affairs.

28.              Defendant United States Department of the Interior is a Cabinet-level agency of the United States government.

29.              Defendant Philip N. Hogen is the Chairman of the National Indian Gaming Commission (“NIGC”). The Chairman has the authority to approve tribal ordinances authorizing Class III gaming on “Indian lands” under Section 11 of the IGRA, 25 U.S.C. § 2710.  The NIGC is also charged with the development of regulations and administrative enforcement of IGRA.

30.              Defendant National Indian Gaming Commission is a federal agency established within the U.S. Department of the Interior by Section 5 of the IGRA, 25 U.S.C. § 2704.

31.              The State of New York would be a proper party to this action but is not joined due to its sovereign immunity guaranteed by the Eleventh Amendment of the U.S. Constitution.  Their joinder is not necessary and they are not indispensible parties because to the extent that their interests are adverse to Plaintiffs those interests would be adequately protected by the Defendants.  Also since the United States is a party to this action it may implead the State of New York.

32.              The Oneida Indian Nation of New York would be a proper party to this action but is not joined due to its contemplated assertion of tribal sovereign immunity.  Although Plaintiffs do not concede that the Oneida Indian Nation of New York possesses the requisite sovereign immunity to act as a bar to this action their joinder is not necessary and they are not indispensible parties because to the extent that their interests are adverse to Plaintiffs those interests would be adequately protected by the Defendants. Also since the United States is a party to this action it may implead any Indian nation or tribe.

 

IV. Statement of Facts

 

33.              Five federally recognized Indian tribes in New York (Oneida Indian Nation of New York, Wisconsin Oneidas, Cayuga Indian Nation, St. Regis Mohawks, Seneca Cayuga of Oklahoma) have made fee to trust applications pursuant to the Indian Reorganization Act of 1934 to the Defendants since the ruling in the Sherrill decision (City of Sherrill v. Oneida Indian Nation, 544 U.S. 197, 2005) including the Oneida Indian Nation (OIN), an actual party to the Sherrill case.

34.              All five federally recognized Indian Tribes that have made trust applications are direct descendants “of the six nations of the Iroquois." Id. at 230.

35.              At the birth of the United States, the Oneida Nation's aboriginal homeland comprised some six million acres in what is now central New York. Ibid.; Oneida Indian Nation of N. Y. v. County of Oneida, 414 U.S. 661, (1974) (Oneida I). Paragraph one of the 1788 Treaty of Fort Stanwix (Fort Schuyler) ceded all of the Oneida lands to the State of New York. Paragraph two then established a state use right reservation for the cultivation, hunting and occupation of the Oneidas allowing them to rent the land for periods of not more than 21 years. In the 1794 Treaty of Canandaigua, the Federal Government acknowledged the state reservation. Article 2 states:

 

“The United States acknowledge the lands reserved to the Oneida, Onondaga and Cayuga Nations, in their respective treaties with the state of New York, and called their reservations, to be their property; and the United States will never claim the same, nor disturb them or either of the Six Nations, nor their Indian friends residing thereon and united with them, in the free use and enjoyment thereof: but of said reservations shall remain theirs, until they choose to sell the same to the people of the United States, who have the right to purchase.” Treaty of 1794.

 

36.              As set forth in the Treaty of Fort Schuyler, for payments in money and kind, the Oneidas ceded to New York "all their lands." Of the vast area conveyed, "[t]he Oneidas retained a reservation of about 300,000 acres," Oneida II, 470 U.S., at 231. "for their own use and cultivation."

37.              In 1790, Congress passed the first Indian Trade and Intercourse Act, commonly known as the Nonintercourse Act. Act of July 22, 1790, ch. 33, 1 Stat. 137 (hereinafter “TIA”).

38.              The 1790 act was, by its plain terms, applicable "to any state, whether having the right of pre-emption to such lands or not." See Act of July 22, 1790, § 4, 1 Stat. 137, 138. When Congress revised the TIA in 1793, it expressly removed that language, thereby eliminating any manifestation of an intent to continue to bind the original thirteen states, which held the right of preemption. See Act of March 2, 1793, § 8, 1 Stat. 329, 330. By deleting the prior reference to the states, Congress freed the states to purchase Indian lands within their borders without any federal participation or approval. Notably, the Supreme Court has held that, because the TIA contains no clear expression of congressional intent to impose statutory restrictions on the federal government, the TIA is inapplicable to the United States. See Federal Power Comm. v. Tuscarora Indian Nation, 362 U.S. 99, 120 (1960). Therefore since it also lacks a clear expression of congressional intent to impose restrictions on the states it is inapplicable to them as well.

39.              The 1793 Act specifically recognized that it was limited to interstate trade with Indians and not intrastate trade in section 13 where it provides "That nothing in this act shall be construed to prevent any trade or intercourse with Indians living on lands surrounded by settlements of the citizens of the United States, and being within the jurisdiction of any of the individual states."

40.              In 1794, in further pursuit of its protective policy, the United States entered into the Treaty of Canandaigua with the Six (Iroquois) Nations. Act of Nov. 11, 1794, 7 Stat. 44. That treaty both "acknowledge[d]" the Oneida Reservation as established by the Treaty of Fort Schuyler and guaranteed the Oneidas' "free use and enjoyment" of the reserved territory. Id., at 45, Art. II. The Oneidas in turn agreed they would "never claim any other lands within the boundaries of the United States." Id., at 45, Art. IV.

41.              New York State nonetheless continued to purchase reservation land from the Oneidas. The Washington administration objected to New York's 1795 negotiations to buy 100,000 acres of the Oneidas' Reservation without federal supervision. County of Oneida v. Oneida Indian Nation of N. Y., 470 U.S. 226 at 229, 232 (Oneida II). Later administrations, however, "[made not] even a pretense of interfer[ing] with [the] State's attempts to negotiate treaties [with the Oneidas] for land cessions." Oneida Nation of N. Y. v. United States, 43 Ind. Cl. Comm'n 373, 385 (1978).

42.              The Federal Government's policy soon veered away from protection of New York and other east coast reservations. In lieu of the commitment made in the Treaty of Canandaigua, the United States pursued a policy designed to open reservation lands to white settlers and to remove tribes westward. 

43.              As recounted by the Indian Claims Commission in 1978, early 19th-century federal Indian agents in New York State did not simply fail to check New York's land purchases, they "took an active role ... in encouraging the removal of the Oneidas ... to the west." Oneida Nation of N. Y., 43 Ind. Cl. Comm'n, at 390; see id., at 391 (noting that some federal agents were "deeply involved" in "plans ... to bring about removal of the [Oneidas]" and in the State's acquisition of Oneida land).

44.              Beginning in 1817, the Federal Government accelerated its efforts to remove Indian tribes from their east coast homelands. F. Cohen Handbook of Federal Indian Law (1982 edition) 78-79, and n. 142 (herein after HANDBOOK). Pressured by the removal policy to leave their ancestral lands in New York, some 150 Oneidas, by 1825, had moved to Wisconsin.

45.              In 1838, the Oneidas and the United States entered into the Treaty of Buffalo Creek, which envisioned removal of all remaining New York Indians, to Kansas. Act of Jan. 15, 1838, 7 Stat. 550. The United States eventually abandoned its efforts to remove the New York Indians to Kansas. In 1860, the Federal Government restored the Kansas lands to the public domain, and sold them thereafter. New York Indians v. U S, 170 U.S. 614 at 24, 28-29, 31. The Indians who stayed on in New York after the proclamation of the Buffalo Creek Treaty continued to diminish in number and, during the 1840's, sold most of their remaining lands to the State. New York Indians v. United States, 40 Ct. Cl. 448, 458, 469-471 (1905).

46.              A change in Federal Indian Policy resulted in the enactment of the Indian Reorganization Act of 1934 (IRA).

47.              The IRA was intended to put a stop to allotment of Indian lands pursuant to a policy established by the Dawes Act of 1887, 25 U.S.C. § 331 et seq., and to redress the loss of Indian lands under the allotment system (See e.g., Hearings before the Senate Committee on Indian Affairs, 73d Cong., 2d Sess. 1934 (“Hearings”) at 26 (Act “aims to prevent further alienation and dissipation of Indian lands” through the alienation system and “to restore to landless Indians some of the lands improvidently alienated in the administration of the allotment system . . .”).  The IRA halted further allotments and extended indefinitely the existing periods of trust applicable to already allotted (but not yet fee-patented) Indian lands. See 25 U.S.C. §§ 461, 462. In addition, the Act provided for restoring unallotted surplus Indian lands to tribal ownership, see 25 U.S.C. § 463.   See also County of Yakima v. Yakima Indian Nation, 502 U.S. 251, 255 (1992) (“The policy of allotment came to an abrupt end in 1934 with the passage in 1934 of the [IRA]”); F.S. Cohen, Handbook of Indian Law (1941) at 84.

48.              The Dawes Act – and the federal policy of allotment – have never been applied in New York.  See Laurence M. Hauptman, The Iroquois and the New Deal (1981) at 22 (“In New York, where the Dawes Act had not been applied . . .”).  The Dawes Act specifically excepted the Seneca Nation of Indians (the only tribe in New York with any significant land holdings at the time) from the Act’s application (25 U.S.C. § 339).  Therefore the IRA including 25 U.S.C. § 465 was not directed at New York.  This is also evidenced by the fact that no Indian land in New York has ever been held in trust status for the Oneidas or any other group.  In the original 13 States, Indian lands are typically held in restricted fee, not trust. See City of Sherrill, N.Y. v. Oneida Indian Nation of New York, 544 U.S. 197, 125 S.Ct. 1478, 1484 n.2 (2005). 

49.              In 1948 Congress enacted 25 U.S.C. § 232 granting New York criminal jurisdiction over Indian land situated within its exterior borders. It was enacted after the Court in United States v. Forness, 125 F.2d 928 (2nd Cir. 1942) questioned the longstanding presumption that Indian tribes in New York was under the State’s general jurisdiction. (see Hearings on S.1686, S.1687 Before the Subcomm. On Indian Affairs of the Senate Comm. On Interior Affairs, 80th Cong. 2d Sess. 13 (1948), Comment, The New York Indians’ Right to Self-Determination, 22 Buffalo L. Rev. 985, 992 (1973).

50.              There are serious questions whether in 1934 Defendants recognized the Oneidas in New York as a tribe (See John R. T. Reeves Report to the Commissioner of Indian Affairs, Dec. 26, 194; Nat’l Archives, Record Group 75, file New York, 100086-14-03, at pp. 1,4 (reporting that Oneidas had “sold all their land except 30 about 350 acres to the State . . . as a tribe, these Indians are known no more in that state.”). 

51.              This raises the question whether or not the IRA empowers the Secretary to take land into trust for Indian tribes that were not recognized and under federal jurisdiction in 1934.

52.              Section 18 of the IRA (25 U.S.C. § 478) conditions application of the IRA on a vote of the affected Indians.  When a majority of the adult Indians in a reservation “shall vote against application” of the Act, it “shall not apply.” (25 U.S.C. § 478)  Following adoption of the IRA, the Oneidas and all other New York Indians voted to reject the IRA.  See Michael T. Smith, Memorandum to Director, Office of Indian Services, Bureau of Indian Affairs, dated Feb. 24, 1982, at 8 (“Initially the Oneida were considered not eligible, but in a reconsideration based on the discussion in the case of U.S. v. Boylan, the Department of Interior changed its position and called for a referendum on June 17, 1936 . . . [t]he vote rejected the IRA 12 to 57”) 

53.              This conclusion is not altered by the Indian Land Consolidation Act, 25 U.S.C. § 2201, et seq (“ILCA”).  The Record of Decision cites as statutory authority for its taking this land into trust 25 U.S.C. § 2202.  This statutory provision cannot act as a basis because the Oneida Indian Nation of New York, and all other Indian nations and tribes in New York, do not meet the definition of “tribe” in 25 U.S.C. § 2201(1) because the United States does not, and never did, hold any of their land in trust.

54.              The Indian Gaming Regulatory Act also does not provide any authority for the Secretary to take land into trust, rather it imposes additional requirements for taking such action when the land is to be used for gaming.  See e.g. 25 U.S.C. § 2719(b)(1)(a); Artichoke Joe’s California Grand Casino v. Norton, 278 F. Supp. 2d 1174, 1883 (E.D. Cal. 2003) (Stating that § 2719 “imposes additional requirements for gaming on lands acquired in trust . . .”)

55.              According to Shenandoah v. United States DOI, 159 F.3d 708, (2d Cir. 1998), there are serious question as to the legitimacy and authority of Ray Halbritter to act on behalf of the Oneida Indian Nation of New York.  Specifically, “In 1977, members of the Oneida Nation appointed Halbritter and two other Nation members as interim representatives of the Nation. On April 25, 1993, the Grand Council, consisting of representatives from all six Iroquois nations, including the Oneida Nation, purported to remove Halbritter from his position as interim Nation representative. The Department acknowledged the removal on August 10, 1993, but the next day stayed its acknowledgment pending BIA review. After requesting the Nation to conduct a referendum to select a representative, the Department agreed to Halbritter's proposal to submit "statements of support" from Nation members. On February 4, 1994, the Department notified Halbritter that it would continue to recognize him as the Nation's permanent representative until such time as he resigned or was removed by the Nation in accordance with certain procedures. According to plaintiffs, on May 21, 1995 the Nation once again removed Halbritter from his position as Oneida representative. Although informed of Halbritter's alleged second removal, the Department had not acted upon that notification by the time of oral argument, and as of the time of this opinion, we have received no information to the contrary.” Id. at 710.

56.              Upon information and belief the U.S. Department of Interior has still not acted upon the notification of Mr. Halbritter’s second removal.

57.              In 1993 a tribal-state compact was purportedly entered into between the State Of New York and the Oneida Indian Nation of New York.  In its June 4, 1993 letter of approval of the Compact between the Oneida Indian Nation of New York and New York State the U.S. Department of the Interior specifically stated that the approval was for the 32 acres currently occupied by the OIN and that the DOI noted that "The Compact authorizes gaming on Nation lands in general terms that paraphrases the IGRA definition of 'Indian lands.' These lands include the Nation's 32 acre tract in Madison County near the City of Oneida where gaming is currently being conducted. The compact does not specifically refer to the site where we understand the Nation has built a major new facility in anticipation of being able to conduct gaming in the future. Since the Compact tracks the 'Indian lands' definition of IGRA, we need not decide and take no position with regard to whether this new facility is on 'Indian land' as that term is used in IGRA."

58.              The “major new facility” referred to in the June 4, 1993, approval letter is the current location of the Turning Stone Casino and Resort.  The land that the Turning Stone Casino and Resort is situated on is two of the parcels covered by the challenged determinations of the Defendants.

59.              In a July 13, 1993 article that appeared in The Buffalo News entitled “LAND-STATUS ISSUE PUTS FUTURE OF ONEIDAS' CASINO IN QUESTION” by Associated Press reporter William Kates, Michael Cox, then general counsel of the National Indian Gaming Commission stated in regards to the status of the land where the Turning Stone Casino is situated “It's a matter that needs to be resolved because it has interesting ramifications. . . It could open a whole new way for Indian tribes to get into gaming and have a major impact on where their gaming operations are located.”  Mr. Cox further stated that “It is an issue we are going to look into. . . We can't just not decide it.”  In regards to questions relating to the NIGC possibly closing the Turning Stone Casino Mr. Cox stated “We are not interested in testing our authority.”

60.              The property upon which the Turning Stone Casino and Resort is situated upon was acquired after October 17, 1988 and gambling on this land is prohibited since the land does not fall into any exception of the prohibition set forth in 25 U.S.C. § 2719 nor has a two part discretionary determination has been made pursuant to 25 U.S.C. § 2719(b)(1)(A).

61.              Attached hereto and marked as Exhibit “A” is the July 9, 2003 testimony of Aurene Martin, Acting Assistant Secretary – Indian Affairs before the United States Senate Committee on Indian Affairs.  In this testimony Assistant Secretary Martin testified that only three section 20(b)(1)(a) approvals have been granted since the enactment of the IGRA (Ex. A page 3 ¶ 4).  She further testified that those three approvals were for “the Forest County Potawatomi gaming establishment in Milwaukee, Wisconsin; the Kalispel Tribe gaming establishment in Airway Heights, Washington; and the Keweenaw Bay Indian Community gaming establishment near Marquette, Michigan.” (Ex. A page 3 ¶ 2).

62.              By letter dated May 21, 2004 Plaintiffs requested that Defendant Hogen and Glenn S. Suddaby, Esq., as the United States Attorney for the Northern District of New York to take action against the Oneidas’ Turning Stone Casino and the St. Regis Mohawk’s Akwesasne Casino.  Attached hereto and marked as Exhibit “B” is a true copy of this letter.

63.              It has been held that "the unilateral actions of then Governor Cuomo in entering into the Compact without legislative approval clearly violated the doctrine of separation of powers recognized by Articles 3-5 of the Constitution of the State of New York (see N.Y. Const., art. III, § 1; art. IV, § 1; art. VI, § 1)" and the Court declared the 1993 Compact invalid. (Peterman v. Pataki, 798 N.Y.S. 2d 347, 4 Misc. 3d 1028A, 2004 WL 2222278 (N.Y. Sup. Ct. 2004) affirmed Peterman v. Pataki, 21 AD3d 1388, 801 NYS2d 212, 2005 N.Y. App. Div. LEXIS 10373 (N.Y. App. Div. 4th Dep't, 2005) Appeal denied by Peterman v. Pataki, 24 AD3d 1328, 806 NYS2d 442, 2005 N.Y. App. Div. LEXIS 14706 (N.Y. App. Div. 4th Dep't, 2005) Appeal denied by Peterman v. Pataki, 6 NY3d 713, 849 NE2d 971, 816 NYS2d 748, 2006 N.Y. LEXIS 1271 (2006) US Supreme Court certiorari denied by Oneida Indian Nation v. Peterman, 127 S Ct 730, 166 L Ed 2d 562, 2006 U.S. LEXIS 9260 (U.S., Dec. 4, 2006)).

64.              The Federal Courts are bound by the Rules of Decision Act, 28 U.S.C. § 1652, to the New York Courts’ holding that former Governor Cuomo lacked the authority under State law to enter into the tribal-state compact with the Oneida Indian Nation of New York pursuant to the Indian Gaming Regulatory Act (See United States v. Santee Sioux Tribe of Nebraska, 135 F.3d 558).

65.              Under New York Penal Law § 240.45 a place of illegal gambling is a criminal nuisance and by operation of 18 U.S.C. §§ 1166(a), 1955 is a criminal nuisance under federal law.

66.              By letter dated June 10, 2005, Defendant Associate Deputy Secretary Cason advised Ray Halbritter that the “Department of Interior’s (“DOI”) position with respect to certain issues related to the status of OIN lands . . . we do not agree with[the] assertion that the Court’s ruling in Sherrill recognizes the continuation of restriction on alienation protections over recently re-acquired lands . . . it is our opinion that Court in City of Sherrill unmistakably held that the lands at issue (property interests purchased by OIN on the open market) are subject to real property taxes.  In the event these taxes are not paid, we believe such lands are subject to foreclosure.  Further, please be advised that the BIA is in the process of taking appropriate action to clarify that its recordation of OIN deeds does not have the legal effect of designating these lands as restricted against alienation pursuant to 25 U.S.C. 177.”  Attached hereto and marked as Exhibit “C” is true copy of this letter.

67.              Even under N.Y. Executive Law § 12 the Governor of the State of New York lacks the authority to enter into any tribal-state compact with any Indian nation or tribe to allow Class III gaming on the land where the Turning Stone Casino and Resort is situated on.

68.              Again by letter dated July 7, 2005 Plaintiffs complained to Defendant Cason regarding the illegal Class III gaming being conducted at the Turning Stone Casino by the OIN.  Attached hereto and marked as Exhibit “D” is a true copy of this letter.

69.              By letter dated August 31, 2005, Michael Olsen, in his capacity as Acting Principal Deputy Assistant Secretary – Indian Affairs, replied that “It is our understanding that the National Indian Gaming Commission (NIGC) is presently considering the issue of whether the Oneida Nation of New York is operating Turning Stone Casino in compliance with Federal and State Law following the U.S. Supreme Court’s decision in City of Sherrill v. Oneida Nation of New York (2005).  We will advise you of the NIGC’s decision as soon as we have received it.”  A true copy of this letter is attached hereto and marked as Exhibit “E”.

70.              On or about July 27, 2005, Penny Coleman, Acting General Counsel of Defendant National Indian Gaming Commission testified before the Senate Committee on Indian Affairs.  Attached hereto and marked as Exhibit “F” is a copy of her testimony.

71.              On or about July 27, 2005, George T. Skibine, Acting Deputy Assistant Secretary – Indian Affairs For Policy And Economic Development of Defendant Department of Interior, testified before the Senate Committee on Indian Affairs.  Attached hereto and marked as Exhibit “G” is a copy of his testimony.

72.              In or about July 2005 the Defendants NIGC launched a full-scale review of every tribal casino to ensure they are operating within the law.

73.              That prior to July 2005 the Defendants did not have a system to track the land status of all 404 tribal casinos and identify new concerns. The goal of this full-scale review is to determine whether the casinos are operating on Indian lands as defined by the Indian Gaming Regulatory Act of 1988.

74.              Upon information and belief, the comprehensive review comes in response to Defendants’ internal criticisms. In a report, the Interior Department's Inspector General found at least 10 instances of tribes operating casinos on land that was taken into trust without following the IGRA process.

75.              Plaintiffs made numerous complaints and submissions to the Defendants.

76.              On or about July 29, 2005 Plaintiff sent an e-mail to Penny Coleman, Acting General Counsel for Defendant National Indian Gaming Commission.  Attached hereto and marked as Exhibit “H” is a true copy of this e-mail.

77.              On or about August 14, 2005 plaintiff received a response to his FOIA request for “all records pertaining to all decisions, determinations, or rulings that gaming on lands acquired after October 17, 1988 is permitted for the land occupied by the Turning Stone Casino and Resort and the Seneca Niagara Casino along with any supporting documents submitted” from the Records Access Officer of Defendant National Indian Gaming Commission.  Attached hereto and marked as Exhibit “I” is a true copy of this response.

78.              By letter dated March 15, 2007, Lawrence J. Jensen as Deputy Solicitor for Defendant U.S Department of the Interior, notified Oneida Nation Representative Halbritter and New York Governor Spitzer that he was “notifying you that the Secretary is reconsidering the 1993 approval of the Nation-State Compact” and that the “Secretary intends to issue his reconsidered decision whether to approve or disapprove the 1993 compact 45-days later”   Attached hereto and marked as Exhibit “J” is a true copy of this letter.

79.              By letter dated March 21, 2007, Cornelius E. Murray, Esq. as Counsel for Plaintiff Upstate Citizens for Equality, Inc. submitted their position on the reconsideration of the 1993 approval of the Compact between the Oneida Indian Nation of New York and the State of New York. Attached hereto and marked as Exhibit “K” is a true copy of this letter.

80.              By letter dated June 13, 2007, Defendant U.S. Department of the Interior issued its determination that is the subject of this complaint.  This letter constitutes final agency action reviewable under 5 U.S.C. § 704. Attached hereto and marked as Exhibit “L” is a true copy of this letter.

81.              On or about January 4, 2008, Defendants denied the applications of the Seneca-Cayuga of Oklahoma and the St. Regis Mohawks.

82.              On or about February 22, 2008, Defendants published the FEIS required by NEPA relative to the application of the Oneida Indian Nation of New York 73 Fed. Reg. 9823-9824 (2008)).

83.              On or about May 20, 2008 Defendants rendered their determination on the application of the Oneida Indian Nation of New York for the Defendants to take into trust over 17,000 acres of land current held by them in fee simple title under the Indian Reorganization Act of 1934.

84.              The State of New York did not consent to the cession of the property that is the subject of the aforementioned land to trust applications under the Indian Reorganization Act of 1934.

85.              To transfer the exclusive political jurisdiction and dominion contemplated by article, I, section 8, clause 17 of the Constitution over land acquired by the Federal Government, the State in which it is situate must either consent to the acquisition or legislatively cede such jurisdiction.

86.              Still pending before Defendants is the application of the Cayuga Indian Nation of New York to have land taken into trust under the Indian Reorganization Act of 1934.

87.              Plaintiffs’ interest in the environmental and economic well-being of their communities and the State of New York are among the interests to be considered under 25 C.F.R. § 151.10(f), 151.10 (h) before land is placed into trust. See, e.g., TOMAC v. Norton, 193 F. Supp. 2d 182 (D.D.C. 2002) aff’d, 433 F.3d 852 (D.C.Cir. 2006) (holding that a community group had standing to challenge the BIA’s decision to take land into trust for the construction of a casino under the Indian Gaming Regulatory Act and 25 C.F.R. § 151.10 (f), (h); see also Citizens Exposing Truth About Casinos v. Norton, 2004 U.S. Dist. LEXIS 27498, at *6 & n.3 (D.D.C. Apr. 23, 2004) (holding that a citizen’s group had standing under the Indian Reorganization Act, found at 25 U.S. C. § 461-475, to challenge a trust acquisition because the Act’s implementing regulations provide for consideration of land use conflicts and NEPA requirements). Cf. City of Sherrill v. Oneida Indian Nation, 544 U.S. 197; 125 S. Ct. 1478, 1493; 161 L. Ed. 2d 386 (2005) (“If (the Tribe) may unilaterally reassert sovereign control and remove these parcels from the local tax rolls, little would prevent the Tribe from initiating a new generation of litigation to free the parcels from local zoning or other regulatory controls that protect all landowners in the area.”)

 

V. Claims for Relief

As and for their First Claim for Relief

Defendants acted in excess of statutory jurisdiction, authority, or limitations, or short of statutory right in taking any land identified in the Defendants’ notice of intent into trust under the Indian Reorganization Act of 1934

 

88.              Plaintiff incorporates all previous allegations

89.              Plaintiffs assert under the Laws and Constitution of the United States that Defendants and based on the recent decisions of City of Sherrill v. Oneida Indian Nation, 544 U. S. 197 (2005); Cayuga Indian Nation v. Pataki, 413 F. 3d 266 (2nd Cir. 2005), cert. denied, 2006 U.S. LEXIS 3949 (U.S., May 15, 2006) and Oneida Indian Nation v. New York, 500 F. Supp. 2d 128 (NDNY 2007) have no current authority to create federal public domain land or federal Indian land in the State of New York, an original Colony, which retains its preemptive rights to all lands within its exterior boundaries. No lands in any of the 13 original colonies has ever been placed into federal trust status pursuant to 25 U.S.C. § 465. 

90.              A fundamental element of tribal sovereignty in addition to federal intent is an affirmative cession of jurisdiction by the state as set forth in Joseph D. Matal, A Revisionist History of Indian Country, 14 Alaska L. Rev. 283.  Attached hereto and marked as Exhibit “M” is a true copy of this article.

91.              The Indian Reorganization Act (“IRA”) requires in relevant part 25 USC § 465, that: “Title to any lands or rights acquired pursuant to this Act ... 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, and such lands or rights shall be exempt from State and local taxation.”

92.              The plain meaning of Section 5 of the IRA was that only the acquisition methods, as enacted by Congress, were delegated to the Secretary of the Interior to accept lands into federal trust status for an Indian tribe. This does not include any delegation of authority for lands purchased by an Indian Tribe to become federal trust lands.

93.              Section 18 of the IRA conditions application of the IRA on a majority vote of the affected Indian nation or tribe within one year of the effective date of the act (25 U.S.C. 478).

94.              Until 1978, all lands restored to tribal sovereignty under the IRA were acquired by direct appropriation of Congress under the Property Clause, Art. IV, Sec. 3, Cl. 2.

95.              Section 5 of the IRA is expressly limited to Congressional appropriations of no more than $2 million per year.  In fact one Court has noted that: “The Indian Reorganization Act (Wheeler-Howard Act), ch. 576, 48 Stat. 984 (1934), (codified as amended at 25 U.S.C. § 461 et. seq.), was supposed to reconsolidate Indian lands and reverse the allotment process, but the land reclamation effort prescribed by that statute was never properly funded and never materialized. Instead, the Act succeeded only in ending the creation of new allotments and, for allotted lands already held in trust, extending the trust period indefinitely. Cobell v. Norton, 283 F. Supp. 2d 66, 75 (D.D.C. 2003).” Cobell v. Kempthorne, 532 F. Supp. 2d 37, 41 (D.D.C. 2008)

96.              The IRA designates different requirements in Section 5 for acquired additional lands from Section 3 for “restored” lands either surplused or otherwise disestablished from a federal Indian reservation of federal public land reserved by treaty, Executive order or act of Congress.

97.              Restored lands pursuant to Section 3 could only be returned to their tribal territorial status if it was deemed by the Secretary of the Interior to be in “the public interest.”

98.              As intended by Congress in passing the IRA, subjecting the purchase of lands to be restored to Indian Tribes to express Congressional appropriations was and is an express limitation on the discretion of the Secretary of the Interior required by the Property Clause that vests sole discretion in the management of property and acquisition of territory in the Congress.

99.              The only other clause of the Constitution of the United States that allows the federal government to purchase land is the Enclave Clause, Art. I Sec. 8, Cl. 17.

100.          Lands purchased under the Enclave Clause require the consent of the Governor of the State for federal jurisdiction to vest.

101.          No other clauses exist in the Constitution for the federal government to acquire ownership of land.

102.          Neither Section 5 of the IRA nor 25 U.S.C. § 465 have been substantially amended by Congress since 1934. Only two minor amendments for specific Indian tribes have been added.

103.          As currently defined, the federal regulation that asserts the discretion of the Secretary of the Interior to accept lands owned in fee by the Tribe into federal trust status is 25 C.F.R.§ 151.3:

 

“Land acquisition policy. Land not held in trust or restricted status may only be acquired for an individual Indian or a tribe in trust status when such acquisition is authorized by an act of Congress. No acquisition of land in trust status, shall be valid unless the acquisition is approved by the Secretary. (A) Subject to the provisions contained in the acts of Congress which authorize land acquisition, land may be acquired for a tribe in trust status: (1) When the property is located within the exterior boundaries of the tribe’s reservation or adjacent thereto, or within a tribal consolidation area; or (2) When the tribe already owns an interest in the land; or (3) When the Secretary determines that the acquisition of the land is necessary to facilitate tribal self-determination, economic development, or Indian housing.”

 

104.          Expanding the methods by which lands can be conveyed into trust status violates the plain meaning of the appropriative restriction of Section 5 of the IRA.

105.          Only Congress can extend the federal Indian trust to include lands purchased by or donated to an Indian tribe.

106.          Other acts of Congress including 46 Stat. 1106, as amended by 82 Stat. 171, codified as 25 U.S.C. § 451 but not adopted as part of the Johnson-O’Malley Act or as part of the Indian Self-Determination and Education Assistance Act, cannot be interpreted by the Secretary of the Interior as authorizing an expansion of the Indian trust or his authority to accept donated or transferred Indian lands into trust status pursuant to 25 U.S.C. § 465.

107.          Without the appropriative restriction of Section 5 of the IRA, the asserted authority of the Secretary of the Interior to accept lands into federal trust status as currently defined in 25 C.F.R. § 151.3 is unlimited.

108.          Lands taken into federal trust that are not purchased pursuant to Section 5 of the IRA cannot restore tribal sovereignty unless the fee title to the lands and aboriginal title are assumed to become unified as described in the decision of City of Sherrill v. Oneida Indian Nation, 544 U.S. 197; 125 S. Ct. 1478, 1493; 161 L. Ed. 2d 386 (2005).

109.          In fact, without a direct act of Congress to appropriate land for a tribe and remove it from state jurisdiction, the Secretary has no authority under the IRA to remove lands from the State or local tax base. See Hynes v. Grimes Packing Co., 337 U.S. 86, 101-06 (1949), See also Mescalero Apache Tribe v. Jones, 411 U.S. 145, 157 (1973).

110.          The assumption that federal Indian common law authorized the Secretary of the Interior to accept lands purchased by an Indian Tribe into federal trust status was in reality, unilaterally promulgated by the Secretary of the Interior, without the proper authorization from Congress. 25 C.F.R. § 120a (1980).

111.          In fact, accepting fee land of the tribes into federal trust status was declared unconstitutional in Department of the Interior v. South Dakota, 519 U.S. 919 (1996). The full opinion was withdrawn at the request of the Clinton administration because it was based on challenging the delegation of authority contained in Sec.5 of the IRA to the Secretary of the Interior. It was based on the remand of this case that the new regulations under 25 C.F.R. Part 151 were drawn.

112.          The new regulations for 25 U.S.C. § 465 were promulgated in 2004.

113.          The Sherrill decision without deciding its applicability to the Oneidas cites explicitly to 25 U.S.C.§ 465 as “Recognizing these practical concerns, Congress has provided a mechanism for the acquisition of lands for tribal communities that takes account of the interests of others with stake in the area’s governance and well-being.” Sherrill at 220.

114.          The Sherrill Court expressly cites to the 2004 regulations implementing § 465 as “sensitive to the complex interjurisdictional concerns that arise when a tribe seeks to regain sovereign control over territory.” Sherrill at 220-1. These jurisdictional concerns are not addressed by the defendant’s limited Final EIS

115.          Before approving an acquisition, the Secretary must consider, among other things, the tribe’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 jurisdictional problems and potential conflicts of land use which may arise. Citing 25 C.F.R.§ 151.10 (2004). Sherrill at 221.

116.          The Indian Reorganization Act of 1934 is not applicable to take any land into trust for the Oneida Indian Nation of New York or any other tribe that affirmatively voted to reject the act in accordance to Section 18 of the Indian Reorganization Act of 1934 (25 U.S.C. § 478).

117.          Lastly, the Oneidas like all Indians in New York were not subject to the allotment policy that the IRA and ILCA were intended to reverse.

118.          In upholding the IRA over a claim that it violates the nondelegation doctrine and is therefore unconstitutional the United States Court of Appeals for the Eighth Circuit held  “that an intelligible principle exists in the statutory phrase ‘for the purpose of providing land for Indians’ when it is viewed in the statutory and historical context of the IRA. The statutory aims of providing lands sufficient to enable Indians to achieve self-support and ameliorating the damage resulting from the prior allotment policy sufficiently narrow the discretionary authority granted to the Department. We therefore affirm the grant of summary judgment for the Department on the nondelegation doctrine challenge.”  South Dakota v. United States DOI, 423 F.3d 790, 799 (8th Cir. 2005)

119.          Since the IRA and ILCA were intended to “ameliorating the damage resulting from the prior allotment policy” and the Oneidas were not subject to, and did not suffer harm from, the “prior allotment policy” it follows that the Defendants are acting in excess of their lawfully delegated powers.

 

As and for their Second Claim for Relief

Defendants acted contrary to constitutional right, power, privilege, or immunity in taking any land in the State of New York into trust under the Indian Reorganization Act of 1934 in that 25 U.S.C. § 465 violates the nondelegation doctrine of the United States Constitution and is in excess of the powers conferred to Congress by the Indian Commerce Clause

 

120.          Plaintiff incorporates all previous allegations.

121.          The Indian Commerce Clause's (U.S. const. art. I, § 8, cl. 3) grant of authority to the federal government, and preemption of state authority, extends only to activities occurring in "Indian country," i.e., Indian lands within the territory of the United States and therefore cannot be the source of any power to expand Indian lands within the territory of the United States. See 18 U.S.C. § 1151; Mescalero Apache Tribe v. Jones, 411 U.S. 145, 148-49 (1973); cf. Okla. Tax Comm'n v. Chickasaw Nation, 515 U.S. 450, 458-59 (1995).

122.          Although Congress’ power under the Indian Commerce Clause has been characterized as broad, it is not unlimited.  In fact it has been held that Congress has no authority to abrogate a state's sovereign immunity from suit granted by the Eleventh Amendment of the U.S. Constitution pursuant to the Indian Commerce Clause of Article I of the Constitution. See Seminole Tribe v. Florida, 517 U.S. 44 at 47.  Congress’ power under the Indian Commerce Clause should also be limited by the U.S. Const. Art. I, § 8, cl. 17 & Art IV, § 3, cl 2 in which the State’s consent is a necessary element to the removal of land from a State’s sovereign control particularly if the federal government’s intent is to cede sovereign control to any degree to another sovereign.

123.          Absent special legislation capacity to acquire and hold real property in the State of New York is limited to citizens,  aliens, or Ambassadors and consuls of foreign governments (N.Y. Real Property Law § 10).

124.          The United States and the Oneida Indian Nation are not citizens, aliens or foreign governments within the meaning of N.Y. Real Property Law § 10 (In re Estate of Willis, 68 Misc. 2d 1; United States v. Fox, 94 U.S. 315).

125.          In this case the State of New York not only withheld its consent, it opposed the taking of the subject land into trust by the United States. (See the letter dated January 30, 2006 from Richard Platkin, Esq. to Franklin Keel.)

126.          Modern Courts have put limits on the scope of both the Commerce Clause (US v. Lopez, 514 U.S. 549 (1995); New York v. United States, 505 U.S. 144 (1992); Printz v. United States, 521 U.S. 898 (1997); US v. Morrison, 529 U.S. 598 (2000)) and the Indian Commerce Clause (Seminole, 517 US 44 (1996)), but this is by no means new.

127.          The central question of how modern Courts were to view the Indian Commerce Clause had its roots, ironically enough, in criminal law (U.S. v. Kagama, 118 U.S. 375  (1886);  United States v. McBratney, 104 U.S. 621 (1881) (ruling that federal laws don't apply to Indian reservations if the State in question hasn't granted its legislative permission for the federal government to exercise jurisdiction).  These early decisions wrestled with the proper scope of federal legislation in historically State matters.  The overwhelming conclusion was that the federal laws could pre-empt State laws only if the federal legislation could be justified on Indian "commerce" grounds and only if the State in question had granted jurisdictional authority over otherwise sovereign State controlled land, usually granted in the State's application for Statehood.  The State cession of jurisdiction component has been ignored by the BIA, since the BIA has engaged in preferential pro-Indian hiring practices since the early 1970's.  The BIA and the decision-makers therein are really Indian advocates, not guardians of proper federal responsibilities vis a vis the States.

128.          The First Circuit’s decision to the contrary in Carcieri v. Kempthorne, 497 F.3d 15, is erroneous and should not be followed. 

129.          The first sentence of the body of the United States Constitution provides that, "All legislative Powers herein granted shall be vested in a Congress of the United States . . . ." U.S. Const. Art. I, § 1.

130.          According to the nondelegation doctrine, "Congress may not constitutionally delegate its legislative power to another branch of Government." Touby v. United States, 500 U.S. 160, 165 (1991).

131.          The nondelegation doctrine is an underpinning of separation of powers jurisprudence. Mistretta v. United States, 488 U.S. 361, 371 (1989). The Constitution vests “[a]ll legislative Powers herein granted . . . in a Congress of the United States,” U.S. Const. art. I, §1, and the “text permits no delegation of those powers.” Whitman v. American Trucking Assn. Inc., 531 U.S. 457, 472 (2001). Congress is therefore not permitted to abdicate or to transfer to other branches of government its essential legislative function. Panama Refining Co. v. Ryan, 293 U.S. 388, 421 (1935).

132.          The Indian Reorganization Act states that, "[t]he Secretary of the Interior is hereby authorized, in his discretion, to acquire . . . any interest in lands . . . within or without existing reservations . . . for the purpose of providing land for Indians." 25 U.S.C. § 465.

133.          A delegation of power to an agency is overbroad if "there is an absence of standards for the guidance of the Administrator's action, so that it would be impossible in a proper proceeding to ascertain whether the will of Congress has been obeyed." Yakus v. United States, 321 U.S. 414, 426 (1944).

134.          In the present case, the statute authorizing the Secretary to take land into trust (if not limited as set forth in Plaintiffs’ First Claim for Relief) provides no standards to guide the agency's actions, stating little more than that the Secretary shall take land for Indians. Under the statute as written, the Secretary could take any amount of land into trust at any time and for any purpose -- for instance, to provide a summer cottage in the Hamptons for a politically faithful tribal officer. Therefore, as at least one court has held, the statute violates the nondelegation doctrine and must be deemed void. See South Dakota v. United States Dep't of the Interior, 69 F.3d 878 (8th Cir. 1995), vacated and remanded on other grds. 519 U.S. 919 (1996).

135.          According to Defendants the only limitation on the Secretary's authority as delegated by IRA is the Secretary's own good judgment. But the Supreme Court has made it clear that an agency's self-imposed limitations cannot operate to save an otherwise impermissible delegation of power. See Whitman v. American Trucking Ass'n, Inc., 531 U.S. 457, 473 (2001). The focus is on what Congress did to limit the agency's power, not what the agency has done to limit itself through regulations or otherwise. See id. In this case, because Congress failed to abide by these strictures when it passed IRA, the delegation of power under Section 465 is unconstitutionally overbroad.

 

As and for their Third Claim for Relief

Defendants acted in an arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law and without observance of procedure required by law in rendering its determination dated May 20, 2008 to take land into trust under the

Indian Reorganization Act of 1934;

 

136.          Plaintiff incorporates all previous allegations.

137.          Upon information and belief the application to take land into trust under the Indian Reorganization Act of 1934 is not properly before the Defendants in that the application was presented by Raymond Halbritter as Nation Representative, who was removed from this position on or about May 21, 1995.

138.          The Defendants only considered and responded to the comments from only governmental entities that it sent specific notices to and not the general public and citizens groups such as UCE despite their duty to consider the effect of its decision on the community at large.

139.          According to the BIA, they represent only the interests of the Indian tribe as defined by the Tribe submitting the fee to trust application.

140.          This qualifies as a conflict of interest and compromised the objectivity and integrity of the administrative process to such an extent that the presumption of agency regularity is rebutted and more exacting scrutiny should be used to review its determination herein.

141.          The application, if at all, should be considered under 25 CFR 151.11 (as opposed to 25 CFR 151.10) since the land the OIN seeks to have taken into trust is not within an existing reservation.  This is clearly demonstrated by the Secretary’s own regulations and relevant case law.

142.          As to seven parcels in the Town of Vienna, Oneida County, the land is not even within the boundaries of the area set aside for the Oneidas in the 1788 Treaty of Fort Schuyler and acknowledged in the 1794 Treaty of Canandaigua.

143.          As reflected in the Defendants own land to trust regulations, an “Indian reservation” is an area in which a tribe is “recognized by the United States as having governmental jurisdiction . . .” (25 CFR § 151.12).  The definition contained in the regulations is consistent with the cases which have repeatedly recognized that one of the distinguishing characteristics of an Indian reservation is the right of the tribe to exercise sovereignty over the land (See United States v. Mazurie, 419 U.S. 544, 557 (1975) (“Indian tribes are unique aggregations possessing attributes of sovereignty over both their members and their terrirory”)).  As the Supreme Court noted in United States v. Santa Fe Pac. R. Co., “Indian nations [are] distinct political communities having territorial boundaries, within which their authority is exclusive . . .” 314 U.S. 339, 348 (1942) (inner quotations and citations omitted).

144.          The central feature of Indian country, which is defined to include Indian reservations (See 18 U.S.C. § 1151(a)), is also the tribe’s sovereignty within the land so designated.  (See generally Indian Country, U.S.A., Inc. v. Oklahoma, 829 F.2d 967, 973 (10th Cir. 1987) (“The Indian country classification is the benchmark for approaching the allocation of federal, tribal and state authority with respect to Indians and Indian lands”); Felix S. Cohen, Handbook of Federal Indian Law 27 (Rennard Strickland ed., 1982)(“[F]or most jurisdictional purposes the governing legal term is ‘Indian country’”)).

145.          By deciding that the OIN has no right to exercise tribal sovereignty on fee land within the former reservation, the Supreme Court found in substance that the land lacked reservation (and Indian country) status.  The Court’s language, which repeatedly characterized the reservation in the past tense, is entirely consistent with that conclusion (See Sherrill, 125 S.Ct at 1483 (describing OIN land as land “that once composed the Tribe’s historic reservation”)(emphasis added); see also id. At 1488; Even before Sherrill the United States had repeatedly recognized that with the possible exception of the 32 acres addressed in United States v. Boylan, 265 F. 165 (CA2 1920), the area set aside in the Treaty of Fort Schuyler is not today a reservation (S. Rep. No. 1836, 81st Cong., 2d Sess. (1950) at 3,5)).  Indeed, Justice Stevens, in dissent, recognized that the majority had “effectively proclaimed a diminishment of the Tribe’s reservation.” Sherrill, 125 S.Ct at 1496.

146.          The Second Circuit decision in Cayuga Indian Nation v. Pataki, 413 F.3d 266 (2d Cir. 2005), confirms that the Sherrill decision should not be narrowly cabined but should be accorded its necessary and logical import.  As the Second Circuit recognized, Sherrill “dramatically altered the legal landscape against which we consider plaintiff’s claims.” (Cayuga, 413 F.3d at 273).  The Court there read Sherrill broadly, holding that “the broadness of the Supreme Court’s statements indicates to us that Sherrill’s holding is not narrowly limited to claims identical to that brought by the Oneidas . . . but rather, those equitable defenses apply to ‘disruptive’ Indian land claims more generally.” (Id. at 274).

147.          Under Sherrill, the land which is the subject of the OIN’s application is not recognized as land on which the OIN exercises governmental jurisdiction, and consequently cannot be considered a reservation.

148.          On January 3, 2008, Assistant Secretary Carl Artman, issued a memorandum the subject of which is “Guidance on taking off-reservation land into trust for gaming purposes”  A copy of this document is attached hereto and marked as Exhibit “N”.

149.          According to this memo the “reviewer must give greater weight to the concerns of the state and local governments no matter what distance is between the tribe’s reservation and the proposed off-reservation acquisition.  This is the second part of the two part review required by section 151.11(b).”

150.          25 CFR § 151.10(a) requires the Defendants to consider the existence of statutory authority for the acquisition.  As set forth above there is no valid statutory authority for the Defendants to take the land into trust that the OIN seeks to have them to.

151.          The OIN has shown no need for the quantity of land at issue.  The Defendants’ policy favoring tribal economic development is not a license to make small tribal groups wealthy at the expense of the surrounding non-Indian communities, which is precisely what the OIN seeks to accomplish here.

152.          Removing over 13,000 acres of land from local tax rolls so that the OIN can operate a massive illegal casino which is a criminal nuissance and entertainment complex that produces $100 million of annual revenue for a tribe with a claimed membership of approximately 1,000 hardly fulfills the intended function of § 465 if it is even applicable.  The OIN has the capacity to use the land it owns in an economically productive way without having it held in trust status.  There is no reason why the OIN needs to, or should, enjoy the significant economic advantages over surrounding non-Indian business that come with having its land exempt from state and local taxes and, potentially, state and local regulatory requirements.

153.          The OIN’s application omits any mention of the fact that some of the land which it seeks to have taken into trust is the site of a Class III gaming facility that is being operated in blatant violation of the Indian Gaming Regulatory Act, 25 U.S.C. § 2701 et seq.  The OIN’s operation of the casino is unlawful because it is being operated without a valid tribal-state compact and on land that is not gaming eligible as detailed more fully below.

154.          Land into trust applications were not intended by Congress to assist Indian tribes in escaping compliance with existing regulatory laws or to facilitate an ongoing violation of federal criminal law.

155.          The Record of Decision in addressing the loss of tax revenue states that taxing the Turning Stone Casino & Resort is “contrary to the spirit, purpose, and letter of IGRA. See, e.g., 25 U.S.C. §§ 2710(d)(4) (IGRA provides no authority to a state or its political subdivisions to impose any tax, fee, charge, or other assessment), 2710(d)(7)(B)(iii)(II) (a demand by a state for taxation of a tribe or of Indian lands in a gaming compact shall be considered as evidence of lack of good faith); White Mountain Apache Tribe v. Bracker, 448 U.S. 136 (1980) (holding that a state fuel tax was impliedly preempted by the Federal objective of guaranteeing Indians the benefit of profits from timber resources); Cabazon Band of Mission Indians v. Wilson, 37 F.3d 430 (9th Cir. 1994) (holding that the express objectives of IGRA, combined with the tribe’s interests, precluded application of a state license fee on off-track betting).”  However it fails to consider that this facility is on fee land on which the OIN has no right to exercise tribal sovereignty on and which is not gaming eligible land under 25 U.S.C. § 2719 and in the absence of a valid tribal-state compact as required by 25 U.S.C. § 2710.  Since this facility is not authorized by IGRA, IGRA cannot prohibit its taxation.

156.          Additionally the Record of Decision fails to adequately address the payment of taxes levied against the subject property prior to the United States taking title sufficiently for clean title to pass.  The laws of the State of New York require one who challenges the amount of property taxes due to pay first, litigate later, not provide bond or letter of credit, litigate later.  Until these taxes are paid and satisfied they act as a lien on the property which must be satisfied in order to pass title to the property.

157.          Defendants failed to adequately consider the loss of taxes actually assessed and paid on the property as required (Rio Arriba, New Mexico, Board of County Comm'rs v. Acting Southwest Regional Director, 36 IBIA 14 at 22). "In order to show consideration under 25 C.F.R. § 151.10(e) with respect to Appellant, BIA must, at a minimum, discuss whether Appellant has taxing authority; what, if any, taxes were assessed by Appellant in regard to these properties, or what, if any, taxes were received by Appellant in regard to each property; and the impact, if any, on Appellant of the removal of the tracts from the tax rolls." City of Eagle Butte, South Dakota v. Aberdeen Area Director, Bureau of Indian Affairs, 33 IBIA 246 (1999).

158.          The Defendants have acted without due regard to the arguments raised by the State Of New York, Madison County, Oneida County, Plaintiffs and other citizens in their respective submissions as to the factors to be considered under 25 CFR Part 151.

As and for their Fourth Claim for Relief

In the absence of a valid tribal-state gambling compact, any Class III gambling by the Oneida Indian Nation of New York would violate IGRA, and any decision by Defendants to place the casino site into trust for such a purpose is arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.

 

159.          Plaintiff incorporates all previous allegations.

160.          The Oneida Indian Nation of New York has asked for the site upon which the Turning Stone Casino and Resort is situated upon to be taken into trust for both Class II and III gambling.

161.          Under IGRA, an Indian tribe may conduct Class III (sometimes called "Las Vegas" or "casino-style" gambling) if -- and only if -- it does so in conformance with a "tribal-state compact" entered into between the tribe and the state. See 25 U.S.C. § 2710(d)(1)(C). Absent a compact, gambling is illegal under New York and federal law. See New York Penal Law article 225; 18 U.S.C. § 1166, 15 U.S.C. § 1171 et seq. A tribe may conduct Class II gambling without a compact, but IGRA limits class II gaming to bingo and other similar games. Some tribes have attempted to achieve the functional equivalent of Class III casino gambling without a compact by stretching Class II bingo beyond all recognized bounds. The Oneidas have suggested it will pursue this Class II strategy in the absence of a compact.

162.          The text of IGRA, and applicable IGRA regulations spell out the distinction between Class II and Class III gambling. Class II gaming is generally confined to bingo and similar games. See 25 C.F.R. § 502.3. In particular, IGRA and its regulations explicitly exclude "slot machines of any kind" from Class II bingo. 25 U.S.C. § 2703(7)(B)(ii); 25 C.F.R. § 502.4. Thus, IGRA expressly prohibits any sort of "slot machines" at a Class II bingo facility.

163.          In this case, the Oneida Indian Nation of New York does not have a valid gambling compact with the State of New York, and therefore cannot offer Class III gambling, including purported Class II   bingo games that are in reality Class III games, even if it obtains land in trust for other purposes.

164.          On information and belief, the Oneidas, even if it is determined that it has no valid gambling compact, intends to offer allegedly Class II gambling in the form of machines indistinguishable from "slot machines" and other Class III gambling devices. Such action would subject the Plaintiffs’ members and others in the host community to Class III gambling unauthorized by IGRA and a gambling compact.

165.          Defendants have nonetheless proceeded with their plans to take land into trust for Class II and Class III gambling without addressing this legal problem. A person suffering a legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review under the APA. See 5 U.S.C. § 702.

166.          The APA empowers this court to "hold unlawful and set aside agency action, findings, and conclusions found to be: (A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; . . . (C) in excess of statutory jurisdiction, authority, or limitations, or short of statutory right; [or] (D) without observance of procedure required by law; . . . ." 5 U.S.C. § 706.

167.          Defendants' decision to take land into trust without ensuring that there will never be illegal gambling at the site violates the law and the applicable standard of review under the APA.

 

As and for a Fifth Claim for Relief

 

Defendants have violated the statutory procedures mandated by IGRA §§ 2710, 2719 for permitting gambling without a tribal-state compact on Indian lands acquired after

October 17, 1988.

 

168.          Plaintiff incorporates all previous allegations.

169.          In Saratoga County Chamber of Commerce v. Pataki, 798 N.E.2d 1047 cert. den. 540 U.S. 1017, the New York Court of Appeals held that entering into a tribal-state compact with an Indian tribe involved making policy choices that epitomized legislative powers, and the Governor could not do so without legislative authorization or approval.

170.          Based on the above ruling in Saratoga the tribal-state compact between the OIN and the State of New York was held to be invalid.(Peterman v. Pataki, supra).

171.          The New York Court of Appeals determination that only the legislature can authorize tribal gaming is controlling for purposes of IGRA.  The federal courts addressing the issue of whether a state has validly bound itself to a compact, including who within the state government has the authority to bind the state, have found that the issue is strictly one of state law.  (Pueblo of Santa Ana v. Kelly, 104 F.3d 1546, 1557-58 (10th Cir. 1997)

172.          Even if taking the land on which Turning Stone Casino sits into trust would address – on a prospective basis only – the status of the land, it does nothing to alter the fact that gaming at the Casino is not conducted pursuant to a valid compact.

173.          Section 2719 of IGRA creates a broad prohibition against gambling on land taken into trust after October 17, 1988. See 25 U.S.C. § 2719(a) ("Except as provided in subsection (b) of this section, gaming regulated by this chapter shall not be conducted on lands acquired by the Secretary in trust for the benefit of an Indian tribe after October 17, 1988 . . . .").

174.          Under IGRA, gambling on lands taken into trust after 1988 ("newly acquired lands") is permitted only pursuant to certain narrowly defined exceptions. First, the statute provides that gambling on newly acquired lands is permissible if "such lands are located within or contiguous to the boundaries of the reservation of the Indian tribe on October 17, 1988." 25 U.S.C. § 2719(a)(1).   The land upon which the Turning Stone Casino and Resorts is situated upon (“casino site”) is not located within or contiguous to the boundaries of the Oneida’s reservation but rather 9 miles away from their reservation.

175.          25 U.S.C. § 2719(a)(2) is not applicable to the Oneidas because they had a reservation on October 17, 1988.  The Defendants have previously taken the position that the 32 acres at issue in Boylan was an Oneida [State] reservation as of October 17, 1988 (See 53 Fed. Reg., No 165, at 32462 (August 25, 1988).

176.          Next, the statute says such gambling is also permissible if the Secretary, after consultation with the tribe and state and local officials, determines that "a gaming establishment on newly acquired lands would be in the best interest of the Indian tribe and its members, and would not be detrimental to the surrounding community, but only if the Governor of the State in which the gaming activity is to be conducted concurs in the Secretary's determination." 25 U.S.C. § 2719(b)(1)(A).  There has been no two part determination made as required by this provision for the site upon which Turning Stone Casino and Resort is situated on since the Secretary has made no finding that the casino "would not be detrimental to the surrounding community," nor obtained the concurrence of the state's governor.

177.          The statute permits gambling on newly acquired lands where the lands are taken into trust as part of " a settlement of a land claim" 25 U.S.C. § 2719(b)(1)(B)(i).  The Oneidas land claim has been dismissed in part and to date there has been no settlement (Oneida Indian Nation v. New York, 500 F. Supp. 2d 128).  Therefore this exception is not applicable.

178.          The statute permits gambling on newly acquired lands where the lands are taken into trust as part of "the initial reservation of an Indian tribe acknowledged by the Secretary under the Federal acknowledgment process . . . ." 25 U.S.C. § 2719(b)(1)(B)(ii).  The site upon which the Turning Stone Casino and Resort is situated on is not being taken into trust as part “the initial reservation” of the Oneida Indian Nation of New York because it has been federally recognized and has had a reservation in the State of New York since at least 1788 (See City of Sherrill v. Oneida Indian Nation, 544 U.S. 197 (U.S. 2005))

179.          In this case, none of the exceptions to IGRA's general ban on using new land for casino gambling is applicable. Subsection (a)(1), referring to land within or contiguous to the tribe's reservation, is inapplicable here since the proposed casino site is clearly not within or  contiguous to any tribal reservation existing in 1988. Subsection (b)(1)(A) is likewise inapplicable, since the Secretary has made no finding that the casino "would not be detrimental to the surrounding community," nor obtained the concurrence of the state's governor.

180.          The exception created by subsection (b)(1)(B)(ii) is also inapplicable. The site upon which the Turning Stone Casino and Resort is situated on is not being taken into trust as part of the Oneida Nation's "initial reservation," as required by the statute. The application of the Oneidas consist of hundreds of different and predominantly non-contiguous parcels, this newly acquired property is separate from the 32 acres that was the subject of United States v. Boylan, 265 F. 165 (2nd Cir. 1920), error dismissed, 257 U.S. 614 (1921) (the 32 Acres). While this newly acquired property is located within the area that was once occupied by the Oneida people before the nineteenth century, it is not property over which the present OIN can assert sovereignty. Rather, this property is within the sovereign jurisdiction of the State of New York.

181.          The exception created by subsection (b)(1)(B)(iii) is also inapplicable because the Oneida Indian Nation of New York has not been restored to federal recognition within the meaning of this provision.

182.          In short, none of the exceptions provided by IGRA for gambling on newly acquired Indian lands is available here. In the absence of such an exception, the Oneidas cannot legally operate a casino on the casino site. Under the APA, Defendants have therefore acted "without observance of procedure required by law" or otherwise "not in accordance with the law." See 5 U.S.C. § 706(2)(A) and (D). The land in trust decision must therefore be set aside.

 


As and for a Sixth Claim for Relief

The decision dated June 13, 2007 that the 1993 Nation-State Compact between the Oneida Indian Nation of New York and the State of New York is still in effect for purposes of the Indian Gaming Regulatory Act is a final agency action under 5 U.S.C. § 704 is arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law

 

 

183.          Plaintiff incorporates all previous allegations.

184.          The Secretary’s decision of June 13, 2007 that the 1993 Nation-State Compact between the Oneida Indian Nation of New York and the State of New York is still in effect for purposes of the Indian Gaming Regulatory Act is a final agency action under 5 U.S.C. § 704.

185.          "If for any reason the agency reopens a matter and, after reconsideration, issues a new and final order, that order is reviewable on its merits, even though the agency merely reaffirms its original decision." Sendra Corp. v. Magaw, 111 F.3d 162 at 167; ICC v. Brotherhood of Locomotive Eng'rs, 482 U.S. 270 at 278.

186.          This determination is arbitrary, capricious, an abuse of discretion, and not in accordance with law.

187.          Every federal court and agency has inherent authority (unless abrogated by Congress) to re-examine its decisions if asked to do so within a reasonable time, Glass, Molders, Pottery, Plastics & Allied Workers Int'l Union, AFL-CIO, CLC, Local 182B v. Excelsior Foundry Co., 56 F.3d 844, 847 (7th Cir. 1995); In re Met-LWood Corp., 861 F.2d 1012, 1018 (7th Cir. 1988); Isle Royale Boaters Ass'n v. Norton, 330 F.3d 777, 786 (6th Cir. 2003); Dun & Bradstreet Corp. Foundation v. United States Postal Service, 946 F.2d 189, 193-94 (2d Cir. 1991).

188.          According to defendants’ March 15, 2007, letter they were compelled on their own to reconsider their June 4, 1993, determination based on the New York State court rulings that former Governor Cuomo lacked the authority under State law to negotiate and enter into the tribal-state compact with the Oneida Indian Nation of New York and solicited input from the OIN and the State of New York.

189.          In light of the New York State court rulings that former Governor Cuomo lacked the authority under State law to negotiate and enter into the tribal-state compact with the Oneida Indian Nation of New York the tribal-state compact is not in effect under the Indian Gaming Regulatory Act.

190.          Despite the lengthy and reasoned decision set forth in its determination to reconsider the validity of the tribal-state compact between the Oneidas and the State of New York the final determination is inconsistent and tersely reverses its position.

191.          The Second Circuit has ruled that "an agency … cannot simply adopt inconsistent positions without presenting 'some reasoned analysis.' Huntington Hosp. v. Thompson, 319 F.3d 74, 79 (2d Cir. 2003). "Such explanation, [the court] ha[s] said, is necessary so that the reviewing court may 'be able to understand the basis of the agency's action so that it may judge the consistency of that action with the agency's mandate."' Fox Television Stations, Inc. v. Federal Commc'ns Comm'n, 489 F.3d 444 at 470 (quoting Mr. Sprout, Inc. v. United States, 8 F.3d 118, 129 (2d Cir. 1993)). See also Ramaprakash v. F.A.A., 358 U.S. App. D.C. 146, 346 F.3d 1121, 1124-25 (D.C. Cir. 2003) (stating that an agency's "failure to come to grips with conflicting precedent constitutes an inexcusable departure from the essential requirement of reasoned decision making" and that in changing course, an agency must "provide a reasoned analysis indicating that prior policies and standards are being deliberately changed, not casually ignored").

192.          Defendants Hogen and NIGC failed to make an Indian lands determination prior to the approval of the Oneida Indian Nation’s Gaming Ordinance dated January 3, 1994 (See Citizens Against Casino Gambling in Erie County v. Kempthorne, 471 F.Supp.2d 295).

193.          Defendants Hogen and National Indian Gaming Commission’s determination approving a gaming ordinance permitting gaming under a tribal-state compact that is not lawfully in effect as required by 25 U.S.C. § 2710(d)(1)(C) because the State Defendants did not have the authority under state law to enter into it. (5 U.S.C. § 706(2)(A, C & D)).

194.          This determination and Defendants refusal to reopen and reconsider it in light of the changes in circumstances is arbitrary, capricious, an abuse of discretion, and not in accordance with law.

 

As and for a Seventh Claim for Relief

A Writ of Mandamus Should Issue Compelling Defendants to Carry Out Their Statutory Duties

 

195.          Plaintiff incorporates all previous allegations.

196.          Defendants are charged with the duty to promulgate and implement the United States trust responsibility towards Indian Nations and tribes and their members which include when and how lands acquired by the various Indian nations and tribes will be taken into trust or restricted fee status and the duty to make the necessary determinations relative to gaming on Indian lands and, if permitted, the monitoring and regulation of the on-going conduct of such gaming.

197.          Defendants are charged to carry out this duty consistent with the Constitution and Laws of the United States which includes, but is not limited to, the duty to carry out its duties according to due process of law.

198.          The failure of Defendants to adhere to what regulations they have promulgated and their failure to promulgate and implement regulations setting forth their longstanding policies that are necessary to carry out their duties has resulted in ad hoc and irrational, arbitrary and capricious decisions in determining land status and the applicability of the provisions of the IGRA.

199.          As testified to by Earl E. Devaney, the Inspector General for the Department of the Interior before the U.S. Senate Committee on Indian Affairs on April 27, 2005 “We determined that neither the BIA nor NIGC has a systematic process for identifying converted lands or for determining whether the IGRA exemptions apply. Therefore, unless a tribe abides by the rules and applies for approval, conversion of trust lands to gaming purposes goes essentially unchecked. Neither the Department nor NIGC has a way to ensure that Indian gaming is being conducted only on approved lands.”  Attached hereto and marked as Exhibit “O” is a true copy of this testimony.

200.          As testified by Penny Coleman, Acting General Counsel of the National Indian Gaming Commission before the U.S. Senate Committee on Indian Affairs on July 28, 2005, “The Commission and the Department have been criticized by the Department’s Office of Inspector General for failing to decide the Indian lands questions before a facility opens and for failing to have a systematic approach to making such decisions. We share the Inspector General’s concern on this. Good government requires that regulators know the extent of their jurisdiction. Furthermore, if we decide that a tribe should not have opened a facility because the lands did not qualify for gaming under the Act, extensive litigation is guaranteed and, if the Commission is correct, the tribe will have incurred millions of dollars in debt with few options for repaying the debt.”

201.          Despite her testimony above Penny Coleman, Acting General Counsel of the National Indian Gaming Commission in a letter to Richard Platkin, Esq. as Counsel to Governor Pataki dated October 27, 2005, that it was the view of the NIGC that despite the lack of OIN sovereignty over the land, it is still reservation land.  This is inconsistent with the clear intent of the statute, but also NIGC’s own practice.  Recognizing the essential link between sovereignty and reservation status, in determining whether a tribe has jurisdiction on land for purposes of IGRA the NIGC “presumes” jurisdiction where the land is reservation land. (See e.g. Gaming on Fee Land at Pyramid Lake Paiute Indian Reservation, August 12, 2005, at p. 4.  Here there is no jurisdiction as a result of Sherrill and the land cannot be considered reservation land.

202.          The position set forth In Ms. Coleman’s October 27, 2005 letter is also inconsistent with her letter dated February 7, 2008 letter to Chairman Kawaykla of the Fort Sill Apache Tribe a copy of which is attached hereto and marked as Exhibit “P”.

203.          On or about February 1, 2006 a hearing was held before the U.S. Senate Committee on Indian Affairs at which George T. Skibine, the Bureau of Indian Affairs official in charge of gaming, testified that he has circulated proposed regulations to cure the aforementioned deficiencies.  After further questioning by the Committee, Senator McCain, the Chairman of the Committee, stated to Mr. Skibine “I'm a little dispirited when you, sort of as an aside, said, 'Well, we haven't begun a consultation with the Indian tribes over proposed regulations,'. . . That means that we have a long way to go.”  Senator McCain further stated "I don't see how we can effectively regulate Indian gaming, and certainly exercise Congressional oversight, unless there's regulations to implement the law we passed. . ." 

204.          Senator Dorgan, Vice-Chairman of the Senate Committee on Indian Affairs at the February 1, 2006 hearing stated “This is a controversial and difficult issue and I think regulations are necessary, uniform interpretations are necessary. . .”

205.          Mr. Skibine testified at the February 1, 2006 hearing before the Senate Committee on Indian Affairs "As we do the consultation, we have not as this point figured out exactly how we are going to proceed . . . At this point we haven't come up with a plan yet, except that we will do it, for sure."

206.          At this Febraury 1, 2006 hearing Sen. John McCain and Sen. Byron Dorgan expressed frustration with the slow-moving pace. They said it was unacceptable that the rules aren't in place 17 years after the passage of the Indian Gaming Regulatory Act.

207.          In or about Fall 2006, Interior Department Inspector General Earl Devaney testified before Congress that "simply stated, short of a crime, anything goes at the highest levels of the Department of the Interior."

208.          Additionally the Defendants’ own internal criticism prompted a review of all 404 casinos to make sure they are operating legally. 

209.          These systemic issues have resulted in inconsistent, arbitrary and capricious decisions such is the case at bar by failing to follow a procedure which satisfies elementary standards of fairness and reasonableness essential to the due conduct of the proceeding which Congress has authorized.

210.          These systemic issues have resulted in the Federal Defendants approving gaming ordinances and tribal-state compacts prior to a proper determination as to whether gaming is permitted under 25 U.S.C. § 2710(d)(1)(C) or § 2710(d)(1)(b) and/or prior to a proper determination as to whether or not gaming on land acquired, or to be acquired, is permitted under 25 U.S.C. § 2719.

211.          25 U.S.C. § 2716(b) provides that “The Commission shall, when such information indicates a violation of Federal, State, or tribal statutes, ordinances, or resolutions, provide such information to the appropriate law enforcement officials.” (emphasis added)

212.          Upon information and belief, Defendant NIGC, although in receipt of information that indicates a violation of Federal, State, or tribal statutes, ordinances, or resolutions, have not provided such information to the appropriate law enforcement officials.

213.          25 U.S.C. § 2716(c) provides that “The Attorney General shall investigate activities associated with gaming authorized by this Act which may be a violation of Federal law.” (emphasis added)

214.          Upon information and belief, Defendant Attorney General, although in receipt of information that indicates a violation of Federal law has not investigated the activities associated with gaming authorized by the Indian Gaming Regulatory Act.

215.          Despite the aforementioned rulings, statutes and complaints from plaintiffs and others the Defendants have failed to take any action on this blatant and obviously illegal gambling.

216.          Defendants Hogen and the National Indian Gaming Commission has reduced its duty to review and approve tribal gaming ordinances to a perfunctory approval with no real or hard look at the proposed ordinances to determine if it in fact complies with the IGRA including boiler plate language which merely states that the gaming must not be inconsistent with the provisions of the IGRA which is the very thing it is suppose to determine.

217.          It appears that the Federal Defendants despite being given guidelines for the agency to follow in exercising its enforcement powers under the IGRA and have failed to follow them and/or they have conspicuously and expressly adopted a general policy that is so extreme as to amount to an abdication of its statutory responsibilities.

218.          The defendants have failed to adhere to their own regulations and policies, make regular inspections, or take vigorous inspections in order to carry out their enforcement duties under the Indian Gaming Regulatory Act of 1988 (25 U.S.C. § 2706) and the United States Trust Obligation toward the Indian nations and tribes.

 

VI. Prayer for Relief

 

WHEREFORE, Plaintiff respectfully requests that the Court issue an Order and Judgment:

  1. Declaring the Indian Reorganization Act of 1934 as unconstitutional and in violation of the non-delegation doctrine and as being unconstitutionally overbroad and in excess of Congress’ authority under the Indian Commerce Clause.
  2. Declaring that the Indian Reorganization Act of 1934 does not apply to lands situated within the State of New York.
  3. Declaring that the United States has not held any land in trust for the Oneida Indian Nation of New York.
  4. Declaring that the Oneida Indian Nation of New York is not an “Indian tribe” as that term is defined in 25 U.S.C. § 2201.
  5. Declaring Defendants have exceeded their authority under the Indian Reorganization Act of 1934 by considering and acting upon an application to have land taken into trust by an Indian nation or tribe that had affirmatively voted to reject its application to them and their descendents.
  6. Declaring that the Nation-State Compact entered into between the State of New York the Oneida Indian Nation of New York is invalid and not in effect for purposes of the Indian Gaming Regulatory Act.
  7. Declaring that the Secretary’s decision dated June 13, 2007 is in excess of statutory jurisdiction, authority, or limitations, or short of statutory right and contrary to the IGRA and is arbitrary, capricious, an abuse of discretion, and not in accordance with law.
  8. Setting aside the Secretary’s decision of June 13, 2007 that the Nation-State Compact between the Oneida Indian Nation of New York and the State of New York is still in effect for purposes of the Indian Gaming Regulatory Act.
  9. Declaring that Defendant NIGC’s determination dated January 3, 1994 failed to make an Indian lands determination prior to approving the Oneida Indian Nation’s Gaming Ordinance and is arbitrary, capricious, an abuse of discretion, and not in accordance with law.
  10. Setting aside the NIGC’s approval of the Oneida Indian Nation’s Gaming Ordinance dated January 3, 1994.
  11. Declaring that the Secretary’s decision to take any land into trust under the Indian Reorganization Act of 1934 for the Oneida Indian Nation of New York is in excess of statutory jurisdiction, authority, or limitations, or short of statutory right and contrary to the IRA and is arbitrary, capricious, an abuse of discretion, and not in accordance with law.
  12. Declaring that the Secretary’s decision to take any land into trust under the Indian Land Consolidation Act for the Oneida Indian Nation of New York is in excess of statutory jurisdiction, authority, or limitations, or short of statutory right and contrary to the ILCA and is arbitrary, capricious, an abuse of discretion, and not in accordance with law.
  13. Setting aside the Secretary’s decision to take any land into trust under the Indian Reorganization Act of 1934 for the Oneida Indian Nation of New York.
  14. Setting aside the Secretary’s decision to take any land into trust under the Indian Land Consolidation Act for the Oneida Indian Nation of New York.
  15. Enjoining the NIGC when it has information that indicates a violation of Federal, State, or tribal statutes, ordinances, or resolutions, to provide such information to the appropriate law enforcement officials.
  16. Enjoining the Attorney General of the United States to investigate activities associated with gaming authorized by the Indian Gaming Regulatory Act which may be a violation of Federal law.
  17. Enjoining Defendants from taking any actions which would condone, allow, permit or otherwise further Class III gaming that is not operating under a valid tribal-state compact that has been lawfully entered into with the State wherein the activity is occurring  or on land that is not gaming eligible under 25 U.S.C. § 2719.
  18. Enjoining Defendants to take enforcement action against any facility engaged in Class III gaming under their respective jurisdictions that is not operating under a valid tribal-state compact that has been lawfully entered into by the State of New York or on land that is not gaming eligible under 25 U.S.C. § 2719.
  19. Awarding Plaintiffs attorney’s fees, expert witness fees and costs in this action pursuant to the Equal Access to Justice Act.
  20. Granting such other and further relief that the Court deems proper.

Dated         June 14, 2008

                  Buffalo, New York

                                                                                    /S/ David B. Vickers_________

                                                                                    David B. Vickers, Esq.

                                                                                    Attorney for Plaintiffs

244 Salt Spring Street

Fayetteville, New York 13066

                                                                                    (315) 637-5130


Verification

 

I, Daniel T. Warren, am a Plaintiff in the within action.  I declare and affirm under the penalty of perjury that I have read the foregoing complaint and know the contents thereof.   The contents are true to my own knowledge except as to matters therein stated to be alleged upon information and belief, and as to those matters I believe them to be true.

 

Executed on: June 14, 2008 in Buffalo, New York

 

 

                                                                                    /S/ Daniel T. Warren____________

                                                                                    Daniel T. Warren


 

Verification

I, Scott Peterman, am a Plaintiff in the within action.  I declare and affirm under the penalty of perjury that I have read the foregoing complaint and know the contents thereof.   The contents are true to my own knowledge except as to matters therein stated to be alleged upon information and belief, and as to those matters I believe them to be true.

 

Executed on: June 14, 2008 in Buffalo, New York

 

 

                                                                                    /S/ Scott Peterman____________

                                                                                    Scott Peterman


 

Verification

I, Richard Talcott, am a Plaintiff in the within action.  I declare and affirm under the penalty of perjury that I have read the foregoing complaint and know the contents thereof.   The contents are true to my own knowledge except as to matters therein stated to be alleged upon information and belief, and as to those matters I believe them to be true.

 

Executed on: June 14, 2008 in Buffalo, New York

 

 

                                                                                    /S/ Richard Talcott_____________

                                                                                    Richard Talcott


 

Verification

I, David Vickers, am a Plaintiff in the within action.  I declare and affirm under the penalty of perjury that I have read the foregoing complaint and know the contents thereof.   The contents are true to my own knowledge except as to matters therein stated to be alleged upon information and belief, and as to those matters I believe them to be true.

 

Executed on: June 14, 2008 in Buffalo, New York

 

 

                                                                                    /S/ David Vickers_______________

                                                                                    David Vickers