15-1688, 15-1726
Upstate Citizens for Equality v. United States of America
United States Court of Appeals
FOR THE SECOND CIRCUIT
______________
August Term, 2016
(Argued: May 3, 2016 Decided: November 9, 2016)
Docket Nos. 15‐1688, 15‐1726
______________
UPSTATE CITIZENS FOR EQUALITY, INC., DAVID BROWN VICKERS, RICHARD TALLCOT, SCOTT
PETERMAN, DANIEL T. WARREN, TOWN OF VERNON, NEW YORK, TOWN OF VERONA,
ABRAHAM ACEE, ARTHUR STRIFE,
Plaintiffs‐Appellants,
–v.–
UNITED STATES OF AMERICA, INDIVIDUALLY, AND AS TRUSTEE OF THE GOODS, CREDITS AND
CHATTELS OF THE FEDERALLY RECOGNIZED INDIAN NATIONS AND TRIBES SITUATED IN THE
STATE OF NEW YORK, SALLY M.R. JEWELL, IN HER OFFICIAL CAPACITY AS SECRETARY OF THE
U.S. DEPARTMENT OF THE INTERIOR, MICHAEL L. CONNOR, IN HIS OFFICIAL CAPACITY AS
DEPUTY SECRETARY OF THE U.S. DEPARTMENT OF THE INTERIOR AND EXERCISING HIS
DELEGATED AUTHORITY AS ASSISTANT SECRETARY OF THE INTERIOR FOR INDIAN AFFAIRS,
ELIZABETH J. KLEIN, IN HER OFFICIAL CAPACITY AS ASSOCIATE DEPUTY SECRETARY OF THE
INTERIOR FOR INDIAN AFFAIRS, UNITED STATES DEPARTMENT OF THE INTERIOR,
Defendants‐Appellees.*
______________
B e f o r e :
LIVINGSTON, CHIN, AND CARNEY, Circuit Judges.
The Clerk of Court is directed to amend the caption as shown above.
*
______________
The Indian Reorganization Act of 1934 authorizes the federal government to take
land into trust on behalf of Indian tribes. Plaintiffs‐Appellants—two towns, a civic
organization, and several residents of central New York state—challenge the federal
government’s 2008 decision to take approximately 13,000 acres of land in central New
York into trust on behalf of the Oneida Indian Nation of New York (the “Tribe”). The
District Court granted summary judgment for the federal government defendants. On
appeal, Plaintiffs contend that the land‐into‐trust procedures are unconstitutional, and,
in the alternative, that the government’s exercise of those procedures on behalf of the
Tribe exceeded its authority under the statute. We disagree, and conclude that the
entrustment procedures lie within the federal government’s plenary authority over
Indian affairs and do not run afoul of the Constitution’s Enclave Clause. We further
decide that the Oneida Indian Nation of New York is eligible as a “tribe,” within the
meaning of 25 U.S.C. §§ 465 and 2201(1), to be the beneficiary of such an entrustment.
AFFIRMED.
______________
DAVID BROWN VICKERS, Fayetteville, NY, for Upstate Citizens
for Equality, Inc., David Brown Vickers, Richard Tallcot,
Scott Peterman and Daniel T. Warren.
CORNELIUS D. MURRAY, O’Connell and Aronowitz, Albany,
NY, for Town of Vernon, Town of Verona, Abraham Acee
and Arthur Strife.
J. DAVID GUNTER II (John C. Cruden, Steven Miskinis,
Jennifer Turner, on the brief), United States
Department of Justice, Washington, DC, for United
States of America, individually, and as trustee of the goods,
credits and chattels of the federally recognized Indian
nations and tribes situated in the State of New York, Sally
M.R. Jewell, in her official capacity as Secretary of the U.S.
Department of the Interior, Michael L. Connor, in his
official capacity as Deputy Secretary of the U.S.
Department of the Interior and exercising his delegated
authority as Assistant Secretary of the Interior for Indian
Affairs, Elizabeth J. Klein, in her official capacity as
Associate Deputy Secretary of the Interior for Indian
Affairs, United States Department of the Interior.
______________
SUSAN L. CARNEY, Circuit Judge:
This case is the latest in a long line of lawsuits in our Circuit regarding the efforts
of the Oneida Indian Nation of New York (“the Tribe”) to assert tribal jurisdiction over
a portion of its indigenous homeland in central New York State. 1 After the Supreme
Court rejected the Tribe’s claim to existing, historically‐rooted jurisdiction over a
portion of the homeland, see City of Sherrill v. Oneida Indian Nation, 544 U.S. 197 (2005),
the Tribe requested that the United States take approximately 17,000 acres of Tribe‐
owned land into trust on its behalf in procedures prescribed by § 5 of the Indian
Reorganization Act of 1934. The entrustment that the federal government approved in
2008 gave the Tribe jurisdiction over approximately 13,000 acres of land in central New
York, allowing the Tribe, among other things, to continue to operate its Turning Stone
casino in Verona, New York.
Plaintiffs‐Appellants—two towns, a civic organization, and several residents of
the area near the trust land—filed these lawsuits in an attempt to reverse the land‐into‐
1 We will use the term “Tribe” in this Opinion to refer only to the Oneida Indian Nation of New
York, the federally‐recognized tribe based in central New York. See Oneida Indian Nation of N.Y.
v. City of Sherrill, 337 F.3d 139, 144 n.1 (2d Cir. 2003), rev’d, City of Sherrill v. Oneida Indian Nation
of N.Y., 544 U.S. 197, 221 (2005). We use “Oneidas” or “the Oneida Nation” to refer to the
historic tribe of which the present‐day Tribe is a descendant. Id. at 146.
3
trust decisions. They now appeal from judgments of the Northern District of New York
(Lawrence E. Kahn, J.), granting the summary judgment motions of Defendants‐
Appellants, the United States and several federal officials.2 The District Court rejected
Plaintiffs’ claims that the land‐into‐trust procedures are unconstitutional and that
certain provisions of the Indian Land Consolidation Act (“ILCA”), adopted in 1983, bar
the United States from taking land into trust for the Tribe.
We agree with the District Court that the entrustment procedure generally, and
this entrustment in particular, lie within the federal government’s long‐recognized
“plenary” power over Indian tribes: Neither principles of state sovereignty nor the
Constitution’s Enclave Clause—which requires state consent for the broadest federal
assertions of jurisdiction over land within a state—prevents the federal government
from conferring on the Tribe jurisdiction over these trust lands. We further hold that
the Oneida Nation of New York is eligible as a “tribe” within the meaning of 25 U.S.C.
§§ 465 and 2201(1) for land to be taken into trust on its behalf.3 Accordingly, we
AFFIRM the judgments of the District Court.
2 The Tribe is not a party to either of these cases. It moved, however, for leave to file an amicus
brief in this consolidated appeal. Upstate Citizens for Equality v. United States, No. 15‐1688, Doc.
124 (filed Jan. 29, 2016). The motion is hereby granted.
3 Effective September 1, 2016, certain provisions from Chapter 14 of Title 25 of the United States
Code have been reorganized and transferred to three new chapters at the end of the Title. See
Office of the Law Revision Counsel, Editorial Reclassification Title 25, United States Code,
http://uscode.house.gov/editorialreclassification/t25/index.html. Consistent with the parties’
4
BACKGROUND
I. Land‐into‐Trust Procedures (§ 5 of the Indian Reorganization Act)
The origins of this dispute lie in the evolution of federal Indian policy in the late
19th and early 20th centuries. Beginning in the late 19th century, Congress began to
partition tribal lands and allocate parcels to individual Indians in a policy known as
“allotment.” Cty. of Yakima v. Confederated Tribes & Bands of Yakima Indian Nation, 502
U.S. 251, 253‐54 (1992). As the Supreme Court has described, “[t]he objectives of
allotment were simple and clear cut: to extinguish tribal sovereignty, erase reservation
boundaries, and force the assimilation of Indians into the society at large.” Id. at 254. In
the years in which the allotment policy was followed, Congress also stripped tribes of
their authority to govern themselves, instead providing that Indians residing on allotted
lands would eventually be subject to state civil and criminal jurisdiction. Id. at 254‐55.
Because Indians could still sell their allotted lands to non‐Indians, however,
“many of the early allottees quickly lost their land through transactions that were
unwise or even procured by fraud.” Id. at 254. For this and other reasons, the allotment
policy “came to an abrupt end in 1934.” Id. at 255. The Indian Reorganization Act of
1934 (“IRA”)—including its § 5, originally codified at 25 U.S.C. § 465—“fundamentally
briefs, the District Court’s opinions, and prior opinions in this area, we use the original
numbering of the Chapter 14 subsections. For the reader’s reference, 25 U.S.C. § 465 is now
codified at 25 U.S.C. § 5108; 25 U.S.C. § 478 is now codified at 25 U.S.C. § 5125; and 25 U.S.C.
§ 479 is now codified at 25 U.S.C. § 5129.
5
restructured the relationship between Indian tribes and the federal government,
reversing the Nineteenth Century goal of assimilation and embodying ‘principles of
tribal self‐determination and self‐governance.’” Connecticut ex rel. Blumenthal v. U.S.
Dep’t of the Interior, 228 F.3d 82, 85 (2d Cir. 2000) (“Connecticut”) (quoting Cty. of Yakima,
502 U.S. at 255). The IRA repudiated the allotment policy and aimed to restore to tribes,
or replace, the lands and related economic opportunities that had been lost to them
under it. See Felix S. Cohen, Handbook of Federal Indian Law § 15.07[1][a] (2012) (“Cohen,
Handbook”).
The IRA therefore authorized the Secretary of the Interior, in her discretion, to
acquire land and other property interests “within or without existing reservations . . .
for the purpose of providing land for Indians.” Pub. L. No. 73‐383, § 5, 48 Stat. 984, 985
(1934) (codified at 25 U.S.C. § 465).4 “Title to any lands or rights acquired pursuant to
this Act,” it provides, “shall be taken in the name of the United States in trust for the
4 Early uses of the term “reservation” in the field of Indian law referred to land reserved for
Indian use from an Indian cession to the federal or state government. Cohen, Handbook
§ 3.04[2][c][ii]. The term’s use later grew to encompass federally protected Indian tribal lands
without regard to their legal origins. Id. Tribal jurisdiction—that is, the rights of the tribe and
the federal government to assert jurisdiction over territory, largely displacing state
government—generally follows from the land’s reservation status. See Alaska v. Native Vill. of
Venetie Tribal Gov’t, 522 U.S. 520, 526‐27& n.1 (1998). But the legal implications of the term vary:
The Supreme Court has held that a state’s long‐standing exercise of jurisdiction over reservation
land can preclude a tribe from reasserting its right to exercise tribal jurisdiction on that
reservation land. See Sherrill, 544 U.S. at 216‐19.
6
Indian tribe or individual Indian for which the land is acquired.” Id. Land held by the
federal government in trust for Indians under this provision “is generally not subject to
(1) state or local taxation; (2) local zoning and regulatory requirements; or, (3) state
criminal and civil jurisdiction [over Indians], unless the tribe consents to such
jurisdiction.” Connecticut, 228 F.3d at 85‐86 (citations omitted). Under the IRA as passed
in 1934, tribes were entitled to opt out of its provisions, including the land‐into‐trust
provisions of § 5, by majority vote.5 See Pub. L. No. 73‐383, § 18, 48 Stat. 984, 988 (1934)
(codified at 25 U.S.C. § 478).
The IRA’s implementing regulations, promulgated by the U.S. Department of the
Interior, create a process by which tribes and individual Indians can request that the
Department take land into trust on their behalf. See 25 C.F.R. § 151.9. Upon receiving
such a request, the Secretary must provide notice to state and local governments whose
rights would be affected by the acquisition and give them an opportunity to respond.
See § 151.10. In making her final decision, the Secretary is to consider enumerated
criteria, including the tribe’s need for land “to facilitate tribal self‐determination,
economic development, or Indian housing,” § 151.3(a)(3), and “the impact on the State
and its political subdivisions resulting from the removal of the land from the tax rolls,”
5 As we will discuss below, in 1936 the Oneidas elected to opt out of the IRA by a tribal vote.
7
§ 151.10(e). The Secretary is also directed to consider jurisdictional problems and
conflicts of land use that would be created by an entrustment. Id.
II. Factual Background6
For more than four decades, the Tribe has clashed with state and local
governments and residents in upstate New York over its efforts to regain governmental
authority with respect to a portion of its extensive indigenous homeland. Prior
opinions of this Court and the Supreme Court have detailed the complex history of the
relationship between New York and the Tribe, and in particular their disputes regarding
the Tribe’s jurisdiction over its reservation in central New York. See Oneida Indian Nation
of N.Y. v. Cty. of Oneida, 414 U.S. 661, 663‐65 (1974) (“Oneida I”); Cty. of Oneida v. Oneida
Indian Nation of N.Y., 470 U.S. 226, 230‐32 (1985) (“Oneida II”); City of Sherrill v. Oneida
Indian Nation of N.Y., 544 U.S. 197, 203‐11 (2005) (“Sherrill”); Oneida Indian Nation of N.Y.
v. City of Sherrill, 337 F.3d 139, 146‐52 (2d Cir. 2003) (“Oneida III”), rev’d, Sherrill, 544 U.S.
at 221. We offer only a brief summary of that history here, to provide context for our
decision.
The Tribe is a federally recognized Indian tribe and “a direct descendant of the
[Oneida Nation], ‘one of the six nations of the Iroquois, the most powerful Indian Tribe
6 The relevant facts of this case are undisputed, and the appeal presents only questions of law.
We draw this account of the Oneidas’ history largely from prior opinions of the Supreme Court
and our Court.
8
in the Northeast at the time of the American Revolution.’” Sherrill, 544 U.S. at 203
(quoting Oneida II, 470 U.S. at 230). The “aboriginal homeland” of the Oneida Nation
“comprised some six million acres in what is now central New York.” Id. But under the
1788 Treaty of Fort Schuyler, the Oneida Nation ceded “all their lands”—save for a
reservation of about 300,000 acres—to New York State in exchange for payments in
money and in kind. Id.
In a pivotal development, “[w]ith the adoption of the Constitution, Indian
relations came exclusively under federal authority.” Oneida III, 337 F.3d at 146. In the
1790 Nonintercourse Act, Congress prohibited selling tribal land without the
acquiescence of the federal government. Id. at 146‐47; see also 25 U.S.C. § 177 (restricting
alienability of Indian land). Then, in 1794, the federal government entered into the
Treaty of Canandaigua with the Six Iroquois Nations. The Treaty “acknowledge[d] the
Oneida Reservation as established by the Treaty of Fort Schuyler and guaranteed the
Oneidas’ free use and enjoyment” of the reservation. Sherrill, 544 U.S. at 204‐05.
Notwithstanding the Nonintercourse Act and the Canandaigua Treaty, however,
New York State continued to purchase land from the Oneidas, largely without federal
interference. Id. at 205. Beginning in 1838, the federal government for a while
encouraged the Oneidas to relocate to a new reservation in Kansas. Although the Tribe
never completely relocated to that site, id. at 206, the Oneidas who remained in New
9
York by 1920 owned only 32 acres of the reservation’s original 300,000. Id. at 207.
Nonetheless, the Oneidas’ original reservation was never officially “disestablished.” See
Oneida Indian Nation of N.Y. v. Madison Cty., 665 F.3d 408, 443‐44 (2d Cir. 2011).7
In the 1990s, the Tribe began to repurchase New York reservation land in open‐
market transactions and to use those lands for various commercial enterprises. In those
years, the Tribe took the position that because the purchased parcels lay within the
boundaries of the reservation originally occupied by the Oneidas, the properties were
exempt from local property taxes. The Tribe opened and operated the Turning Stone
Resort Casino on a portion of the newly‐purchased land.
The Town of Sherrill eventually moved to evict the Tribe from land within the
Town’s boundaries for nonpayment of property taxes. In response, the Tribe sought an
injunction barring both the eviction and the assessment of property taxes. The District
Court held, and our Circuit agreed, that the Tribe’s land was exempt from property
taxes because it lay within the boundaries of the reservation established for it by the
Fort Schuyler and Canandaigua treaties. See Oneida Indian Nation of N.Y. v. City of
Sherrill, New York, 145 F. Supp. 2d 226, 266 (N.D.N.Y. 2001), aff’d by Oneida III, 337 F.3d at
167.
7 Congress may “disestablish” a reservation by enacting a law that makes designated tribal land
fully alienable. See Alaska, 522 U.S. at 532‐33.
10
But the Supreme Court rejected the Tribe’s claim, reasoning that the Oneidas had
as a practical matter lost rights to their land more than two hundred years earlier. See
Sherrill, 544 U.S. at 216‐17. During those two centuries, state and local governments
continuously exercised sovereignty over the putative reservation land, and the character
of the land changed dramatically. Id. As a result, the Court held, equitable
considerations precluded restoration of the Tribe’s sovereign rights over land since
purchased on the market. Id. at 221. The Court pointed out, however, that an
alternative was available to the Tribe: “Congress has provided a mechanism for the
acquisition of lands for tribal communities that takes account of the interests of others
with stakes in the area’s governance and well‐being.” Id. at 220. Describing the land‐
into‐trust provisions enacted in § 5 of the IRA, the Court suggested that § 5 offered “the
proper avenue for [the Tribe] to reestablish sovereign authority over territory last held
by the Oneidas 200 years ago.” Id. at 221.
On April 4, 2005, almost immediately after the Supreme Court’s decision in
Sherrill and in accordance with the Court’s suggestion, the Tribe requested that the
Secretary of the Interior take more than 17,000 acres of land in central New York into
trust for the Tribe. All of the land was already owned by the Tribe. Its government,
health, educational, and cultural facilities were located in the tract, as were tribal
housing, businesses, and hunting lands, and the Tribe‐operated Turning Stone casino.
11
Three years later, in May 2008, and over the objection of state and local
governments, the Department of the Interior announced its decision to accept into trust
for the Tribe approximately 13,000 of the 17,000 acres requested. See U.S. Dep’t of the
Interior, Record of Decision: Oneida Indian Nation of New York Fee‐to‐Trust Request
(May 2008) (“Record of Decision”), Joint Appendix (“J.A.”) 550‐621. The Secretary
found that the entrustment was necessary to support tribal self‐determination, tribal
housing, and economic development. Record of Decision, J.A. 551, 585. It
acknowledged that the acquisition “may negatively impact the ability of state and local
governments to provide cohesive and consistent governance,” id., J.A. 570, and would
incrementally increase the demand for local government services, id., J.A. 573. But it
concluded that those negative effects did not warrant denying the entrustment. Id.
III. Procedural History
Plaintiffs‐Appellants moved quickly in 2008 to challenge the Secretary’s land‐
into‐trust decision in federal district court. See Upstate Citizens for Equality, Inc. v. United
States, No. 5:08‐cv‐633 (N.D.N.Y., filed June 16, 2008); Town of Verona v. Salazar, No. 6:08‐
cv‐647 (N.D.N.Y., filed June 19, 2008).8 Invoking federal jurisdiction pursuant to the
8 New York State and Madison and Oneida Counties filed a similar challenge to the agency’s
decision. That lawsuit was settled in 2014. See New York v. Jewell, No. 6:08‐cv‐644, 2014 WL
841764, at *8‐12 (N.D.N.Y. March 4, 2014) (approving settlement). Plaintiffs in this case
unsuccessfully sued in state court to invalidate the Jewell settlement in state court, see Town of
Verona v. Cuomo, 22 N.Y.S.3d 241, 246 (App. Div. 3d Dep’t 2015), leave to appeal denied by Town of
Verona v. Cuomo, 27 N.Y.S.3d 908 (2016).
12
Administrative Procedure Act, 5 U.S.C. § 702, Plaintiffs contended that the statutory
land‐into‐trust mechanism exceeds the federal government’s constitutional authority
and unlawfully infringes on state sovereignty. The Verona and Vernon Plaintiffs also
argued that the Department’s statutory authority does not extend to taking land into
trust for the Tribe.
In the following year, while the challenges were still pending, the Supreme Court
issued its decision in Carcieri v. Salazar, 555 U.S. 379 (2009). In Carcieri, the Court held
that only tribes “under federal jurisdiction” when the land‐into‐trust law was passed in
1934 are eligible to avail themselves of the entrustment procedures. Id. at 381. The
District Court in the litigation now before us accordingly remanded these cases to the
Department for an initial determination of whether the Oneidas were “under federal
jurisdiction” in 1934. New York v. Salazar, No. 6:08‐cv‐644, 2012 WL 4364452, at *14
(N.D.N.Y. Sept. 24, 2012). And, in December 2013, the agency issued an addendum to
its Record of Decision on the Tribe’s entrustment request, ruling that the Oneidas were
indeed “under federal jurisdiction” in 1934. J.A. at 810.9
The government moved for summary judgment in both cases, asserting the
legality of the land‐into‐trust decision under both the Constitution and the applicable
statutes, and its availability with respect to the Tribe. The District Court granted the
9 Plaintiffs contested that determination before the District Court, but do not press the challenge
on appeal.
13
motions. Town of Verona v. Salazar, No. 6:08‐cv‐647, 2009 WL 3165556, at *2‐4 (N.D.N.Y.
Sept. 29, 2009); Upstate Citizens for Equality v. Jewell, No. 5:08‐cv‐0633, 2015 WL 1399366,
at *7 (N.D.N.Y. March 26, 2015). The court ruled that Congress’s power under the
Indian Commerce Clause encompassed taking the land into trust for the Tribe, and that
principles of state sovereignty did not prevent the action. The court further held that
New York’s consent to the entrustment was not needed because the federal government
did not fully oust the state of jurisdiction over the entrusted lands, and therefore the
Constitution’s Enclave Clause was not implicated. Jewell, 2015 WL 1399366, at *8‐9. The
court rejected the Verona Plaintiffs’ argument that the federal government could not
take land into trust for the Tribe because the Oneidas had opted out of qualifying for
that remedy in 1936. Salazar, 2009 WL 3165556, at *9‐11. And the court held that
Plaintiff Upstate Citizens for Equality (“UCE”) lacked standing to dispute the
legitimacy of the Tribe’s leadership in the context of its legal attack on the land‐into‐
trust decision. Jewell, 2015 WL 1399366, at *9.
The instant appeals followed.
DISCUSSION
Plaintiffs challenge the Secretary’s decision to take land into trust on behalf of the
Oneida Tribe of New York as violative of the Constitution, the Indian Removal Act, and
the Indian Land Consolidation Act. We review de novo the District Court’s rejection of
14
those legal arguments on summary judgment. See Citizens Against Casino Gambling in
Erie Cty. v. Chaudhuri, 802 F.3d 267, 279 (2d Cir. 2015).
I. Standing
As a threshold matter, the government contends that Plaintiff UCE lacks
standing to challenge the land‐into‐trust decision on appeal because it has dropped
some of the claims it pursued before the District Court, where its standing was
undisputed.10
Standing is an “irreducible constitutional minimum” that must be satisfied for a
federal court to exercise jurisdiction over a case. Chabad Lubavitch of Litchfield Cty., Inc. v.
Litchfield Historic Dist. Comm’n, 768 F.3d 183, 201 (2d Cir. 2014) (quoting Lujan v. Defs. of
Wildlife, 504 U.S. 555, 560 (1992)). To establish standing, a plaintiff must show (1) that it
“suffered an injury in fact,” (2) “a causal connection between the injury and the conduct
complained of,” and (3) that it is “likely, as opposed to merely speculative, that the
injury will be redressed by a favorable decision.” Lujan, 504 U.S. at 560‐61 (internal
quotation marks omitted). An “injury in fact” consists of “an invasion of a legally
protected interest which is (a) concrete and particularized, and (b) actual or imminent,
not conjectural or hypothetical.” Id. at 560 (internal citations and quotation marks
omitted).
The government makes no challenge to the standing of the Towns or the individual Plaintiffs‐
10
Appellants.
15
UCE asserts that it has standing to challenge the Secretary’s action based on
harms that it contends are or will be caused to its members by the Tribe’s assertion of
jurisdiction over the entrusted land. Among other harms, its complaint asserts that the
casino’s continued operation on the entrusted land will cause its members “loss of
enjoyment of the aesthetic and environmental qualities of the agricultural land
surrounding the casino site,” “loss of tax revenue currently generated by the
agricultural land that comprises the casino site,” and “the loss of business and
recreational opportunities, such as retail stores and restaurants, that will be forced out
by the casino.” UCE First Am. Compl. ¶ III.18, J.A. 292. As relief it seeks, among other
remedies, an injunction requiring the government to “take enforcement action” against
unlawfully operating casinos—presumably including Turning Stone. Id. ¶ VI.18, J.A.
343.
The government argues that these alleged injuries no longer confer standing on
UCE because the group has now abandoned its claim that the Turning Stone casino
operates in violation of the Indian Gaming Regulatory Act (“IGRA”).11 On appeal, UCE
challenges only the Secretary’s decision to take land into trust on behalf of the Tribe.
The casino’s operation will be lawful regardless of whether the underlying land is taken
11 In the District Court, UCE raised a number of claims under the IGRA, see Upstate Citizens for
Equality, Inc. v. United States, No. 5:08‐cv‐633, Doc. 35 at 41‐49 (N.D.N.Y. filed Jan. 29, 2009)
(amended complaint). On appeal, it has not pursued arguments related to those claims.
16
into trust, the government argues, and therefore UCE lacks standing to pursue this
appeal: The casino’s operation—on which UCE’s asserted harms rest—will be
undisturbed no matter how the entrustment decision is resolved.
We disagree with the government that the lawfulness of the casino’s operations
will not be affected by the result in this case. Under the IGRA, Turning Stone is a Class
III casino, meaning that it may offer a wide range of gaming activities. 25 U.S.C.
§ 2703(8). The IGRA allows Class III gaming activities to be conducted “on Indian
lands,” however, only if the activities are authorized by “the governing body of the
Indian tribe having jurisdiction over such lands.” 25 U.S.C. § 2710(d)(1)(A)(i) (emphasis
added). Thus, as we recently observed, “[A]ny tribe seeking to conduct gaming on land
must have jurisdiction over that land.” Chaudhuri, 802 F.3d at 279. “Jurisdiction,” in
this context, means “tribal jurisdiction”—“a combination of tribal and federal
jurisdiction over land,” to the exclusion (with some exceptions) of state jurisdiction. Id.
at 279‐80; see infra 29 n.19.
The Supreme Court has already rejected the Tribe’s claim that it may exercise
tribal jurisdiction over the Turning Stone land without the Department first taking the
land into trust on the Tribe’s behalf. See Sherrill, 544 U.S. at 220‐21. Indeed, among the
stated purposes of the Department’s land‐into‐trust decision is to “provid[e] a tribal
land base and homeland that . . . is subject to tribal sovereignty.” Record of Decision,
17
J.A. 557.12 If the land‐into‐trust decision is reversed, the Tribe will be stripped of tribal
jurisdiction over the Turning Stone casino site, and the Tribe’s operation of the casino
may become unlawful.
Because UCE’s attack on the land‐into‐trust decision will have repercussions for
the lawfulness of the Turning Stone casino’s operations, and because the organization
has plausibly alleged that the casino’s operations cause them injury‐in‐fact (allegations
that the government does not dispute), we conclude that UCE has standing to pursue
this appeal, and we turn to the merits of the parties’ substantive arguments.
II. Constitutionality of Land‐into‐Trust Procedures
A. Scope of Constitutional Authority
UCE contends that the federal government lacks authority under the
Constitution to take this land into trust for the Tribe pursuant to § 5 of the IRA. Their
position is, primarily, that the Indian Commerce Clause does not permit the federal
government to take action with respect to tribes when that action would take place
entirely within a single state.13
12 In this context, we understand “tribal sovereignty” to imply “tribal jurisdiction” over the land.
See Record of Decision, J.A. 570, 604 (discussing effects of restoring tribal jurisdiction over trust
land).
The Indian Commerce Clause grants Congress the power to regulate “Commerce . . . with the
13
Indian Tribes.” U.S. Const. art. I § 8, cl. 3.
18
UCE’s argument is at odds with the Supreme Court’s longstanding general view
that the federal government’s power under the Constitution to legislate with respect to
Indian tribes is exceptionally broad. See United States v. Lara, 541 U.S. 193, 200 (2004)
(“[T]he Constitution grants Congress broad general powers to legislate in respect to
Indian tribes, powers that we have consistently described as ‘plenary and exclusive.’”
(quoting Washington v. Confederated Bands and Tribes of Yakima Nation, 439 U.S. 463, 470‐
71 (1979))); see also Seminole Tribe v. Florida, 517 U.S 44, 62 (1996) (“[T]he States . . . have
been divested of virtually all authority over Indian commerce and Indian tribes.”). This
expansive power has been understood to originate in two Constitutional provisions: the
Indian Commerce Clause, U.S. Const., Art. I § 8, cl. 3, and the treaty power, Art. II § 2, cl.
2. Lara, 541 U.S. at 200. Thus, the “central function of the Indian Commerce Clause is to
provide Congress with plenary power to legislate in the field of Indian affairs.” Cotton
Petroleum Corp. v. New Mexico, 490 U.S. 163, 192 (1989) (emphasis added). The treaty
power, pursuant to which the executive branch entered into treaties with Indian
tribes—until 1878, when Congress prohibited the practice—has been construed to give
Congress the related authority to legislate in furtherance of those treaties that were
lawfully consummated. Lara, 541 U.S. at 201. Congress has long used the powers
arising under these provisions to legislate extensively in the matter of Indian affairs,
19
including with respect to tribal property rights. See, e.g., id. at 202; see also Cohen,
Handbook § 5.01.
UCE urges us to disregard that lengthy line of authority, however, and instead to
import restrictions developed with respect to the Interstate Commerce Clause into the
Indian Commerce Clause context. In particular, UCE contends that Congress’s
“plenary” authority to legislate with respect to Indian tribes—analogous to Congress’s
power vis‐à‐vis interstate commerce—is limited to the regulation of trading activities
that cross state borders. Under UCE’s theory, if an Indian tribe’s lands are (like the
Tribe’s) located entirely within the boundaries of a single state, then that tribe is subject
to state legislation only.
This argument has some superficial appeal. The two commerce‐related
provisions are tightly intertwined in the constitutional text:
The Congress shall have Power . . . To regulate Commerce
with foreign Nations, and among the several States, and
with the Indian Tribes.
U.S. Const. art. I § 8, cl. 1, 3. And some historical research suggests that the
contemporaneous understanding may have been that Congressional authority over
Indian affairs was not so expansive as the word “plenary” suggests. See Adoptive Couple
v. Baby Girl, 133 S. Ct. 2552, 2569‐70 (2013) (Thomas, J., concurring) (arguing that
ratifiers of Constitution understood Indian Commerce Clause to regulate only “trade
20
with Indian tribes living beyond state borders”); Robert Natelson, Original
Understanding of the Indian Commerce Clause, 85 Denv. U. L. Rev. 201, 243‐44 (2007)
(arguing that Indian Commerce Clause confers power only to regulate trade with
Indian tribes).
But the Supreme Court has already rejected the proposed correspondence
between the Interstate and Indian Commerce Clauses. In its 1989 decision in Cotton
Petroleum Corp., the Court observed that the purpose of the Interstate Commerce Clause
was to “maintain[] free trade among the States even in the absence of implementing
federal legislation,” whereas the purpose of the Indian Commerce Clause was to
“provide Congress with plenary power to legislate in the field of Indian affairs.” 490
U.S. at 192. Consistent with those purposes, the Court explained, Interstate Commerce
Clause case law “is premised on a structural understanding of the unique role of the
States in our constitutional system that is not readily imported to cases involving the
Indian Commerce Clause.” Id. On this reasoning, the Court concluded that the Indian
Commerce Clause does not contain an implicit “interstate” limitation. Although Justice
Thomas has urged a more restrictive reading of the Clause in recent concurrences, see,
e.g., Adoptive Couple, 133 S. Ct. at 2569‐70 (Thomas, J., concurring); Lara, 541 U.S. at 224‐
26 (Thomas, J., concurring), the Supreme Court majority has continued to adhere to the
21
view that the Indian Commerce Clause vests Congress with plenary power over Indian
tribes and that this power is not delimited by state boundaries.14
UCE argues in the alternative that § 5 is unconstitutional because the acquisition
of land for Indian use is not a “regulat[ion] [of] commerce” within the meaning of the
Indian Commerce Clause. Again, however, precedent deprives this argument of any
traction. The Supreme Court has ruled that Congress may purchase or exercise eminent
domain over land within state boundaries as an exercise of its general constitutional
power to regulate commerce. See Monongahela Navigation Co. v. United States, 148 U.S.
312, 335‐37 (1893); Cherokee Nation v. S. Kansas Ry. Co., 135 U.S. 641, 656‐59 (1890).
Further, the Court has established that, when exercising Indian Commerce Clause
powers, the federal government may, by acquiring land for a tribe, divest a state of
important aspects of its jurisdiction, even if a state previously exercised wholesale
jurisdiction over the land and even if “federal supervision over [a tribe] has not been
continuous.” United States v. John, 437 U.S. 634, 653 (1978) (limiting state criminal
14 UCE makes a related argument that, even if the Indian Commerce Clause permits land to be
taken into trust in some states, it does not apply in New York because of the nature of New
York’s pre‐Constitution dealings with Iroquois tribes. UCE Br. at 33. This position was rejected
by the Supreme Court in Oneida I, however. Oneida I made clear that, for Indian Commerce
Clause purposes, the Court will draw no distinction between the federal government’s power
vis‐à‐vis the original states (and New York in particular) and all other states. See Oneida I, 414
U.S. at 670; see also New York Indians, 72 U.S. (5 Wall.) 761, 771‐72 (1866) (voiding New York’s
taxation of Seneca reservation land).
22
jurisdiction over reservation land); see also Cohen, Handbook §§ 5.02[4], 15.03. We
therefore reject this alternative argument as well.
B. State Sovereignty
Both groups of Plaintiffs contend that, even if permitted under Congress’s broad
Indian Commerce Clause powers, the land‐into‐trust procedures violate underlying
principles of state sovereignty.15 When the federal government takes land into trust for
an Indian tribe, the state that previously exercised jurisdiction over the land cedes some
of its authority to the federal and tribal governments. The parties disagree about
whether, by implicitly requiring that cession, the entrustment unconstitutionally
infringes on New York’s sovereign rights.
Principles of state sovereignty do impose some limits on Congress’s power,
otherwise plenary, over Indian affairs. Thus, in Seminole Tribe v. Florida, 517 U.S 44
(1996), the Supreme Court considered whether Congress could permit Indian tribes to
sue a state and its officials in federal court to enforce the state’s duty to negotiate with
the tribe “in good faith” regarding a tribal‐state gambling compact. Id. at 50. The state
15 As noted above, New York State has settled its own challenge to the lawfulness of the land‐
into‐trust decision and no longer contends that the entrustment violates its sovereignty. See New
York v. Jewell, 2014 WL 841764, at *8‐12. This development does not eliminate Plaintiffs’ standing
to raise these arguments, however, because “an individual has a direct interest in objecting to
laws that upset the constitutional balance between the National Government and the States
when the enforcement of those laws causes injury that is concrete, particular, and redressable.”
Bond v. United States, 564 U.S. 211, 222 (2011).
23
maintained that to allow such a federal‐court remedy would violate the Eleventh
Amendment’s directive that “[t]he Judicial power of the United States shall not be
construed to extend to any suit . . . commenced or prosecuted against one of the United
States by Citizens of another State.” U.S. Const. amend. XI. The Court agreed: “Even
when the Constitution vests in Congress complete lawmaking authority over a
particular area, the Eleventh Amendment prevents congressional authorization of suits
by private parties against unconsenting States.” Seminole Tribe, 517 U.S. at 72.
The linchpin of the decision in Seminole Tribe, however, was the Eleventh
Amendment’s express protection of the states from the unconsented‐to exercise of
federal judicial power. No equivalent constitutional provision shields the states’
exercise of jurisdiction over Indian land within their borders. To the contrary, “[t]he
States’ inherent jurisdiction on reservations can of course be stripped by Congress.”
Nevada v. Hicks, 533 U.S. 353, 365 (2001) (citing Draper v. United States, 164 U.S. 240, 242‐
43 (1896)); see also 18 U.S.C. § 1152 (creating exclusive federal and Indian jurisdiction for
criminal offenses committed in “Indian country”16).
As used in § 1152, the phrase “Indian country” means, in sum: all land on any Indian
16
reservation that is under federal jurisdiction, whether or not the fee owner is an Indian;
dependent Indian communities; and Indian allotments whose Indian titles have not been
extinguished. See 18 U.S.C. § 1151 (defining “Indian country” for certain criminal law
purposes); Cty. of Yakima, 502 U.S. at 260.
24
The Supreme Court’s 1978 decision in United States v. John is instructive in this
regard. John concerned whether the federal government, the Mississippi state
government, or both, had jurisdiction to prosecute a Choctaw man for a violent crime
committed against a non‐Indian on a Choctaw reservation in Mississippi. John, 437 U.S.
at 635‐38. The dispute arose because the federal government had in the 19th century
removed many—although not all—of the Choctaws from their traditional homeland in
Mississippi. Id. at 639‐41. Following the removals, the state of Mississippi exercised
civil and criminal jurisdiction over the tribe’s former territory and those Choctaws who
remained there. Id. at 639‐40. Decades later, in the 1920s, the federal government began
to purchase land in Mississippi for use by those remaining Choctaws, eventually
declaring that the land thus acquired would be held “in the United States in trust for”
the tribe and proclaiming the land to be a “reservation.” Id. at 644‐46. Despite the
federal proclamation, Mississippi claimed continuing criminal jurisdiction over the
Choctaw lands. Id. at 651‐52.
In an argument similar to that made by Plaintiffs here—although not framed
precisely in terms of state “sovereignty”—Mississippi asserted that the federal
government lacked the power to displace state criminal law authority over the new
reservation lands. It contended that “since 1830 the Choctaws residing in Mississippi
have become fully assimilated into the political and social life of the State, and . . . the
25
Federal Government long ago abandoned its supervisory authority over these Indians.”
Id. at 652. As a result, Mississippi urged, the state had established an irrevocable right
to exercise criminal jurisdiction over the tribe’s former territory. Id.
The Supreme Court conclusively rejected this argument. “[T]he fact that federal
supervision over [the Choctaws] has not been continuous” does not “destroy[] the
federal power to deal with them,” it declared. Id. at 653. Because the land had once
been “set apart for the use of the Indians as such, under the superintendence of the
Government,” id. at 649, the federal government retained the power (the Court held) to
oust the state of criminal jurisdiction over the territory and to assert federal criminal
jurisdiction there. Id. at 654.
The Court’s reasoning in United States v. John comports with its later favorable
assessment—albeit in dicta—of the land‐into‐trust procedure and the procedure’s
“sensitiv[ity] to the complex interjurisdictional concerns that arise” when land is
transferred from state to tribal authority. Sherrill, 544 U.S. at 220‐21. We therefore
conclude that underlying principles of state sovereignty do not impair the federal
government’s power under the IRA to acquire land on behalf of the Tribe even if, by
doing so, New York’s governmental power over that land is diminished.
26
C. The Enclave Clause
Plaintiffs’ final constitutional challenge rests on text that is known as the Enclave
Clause. This rarely invoked constitutional provision provides that Congress has the
following power:
[to] exercise exclusive Legislation in all Cases whatsoever,
over such District . . . as may . . . become the Seat of the
Government of the United States, and to exercise like
Authority over all Places purchased by the Consent of the
Legislature of the State in which the Same shall be, for the
Erection of Forts, Magazines, Arsenals, dock‐Yards and other
needful Buildings.
U.S. Const. art I § 8, cl. 17.17 The clause is intended to ensure that “places on which the
security of the entire Union may depend” are not “in any degree dependent on a
particular member of it.” Fort Leavenworth R.R. Co. v. Lowe, 114 U.S. 525, 530 (1885)
(quoting The Federalist No. 43 (James Madison)). Plaintiffs argue that, in its essence,
the clause requires Congress to obtain the state legislature’s express consent—as it
typically does when establishing a military base in a state, for example—before it can
take state land into trust for Indians. Although in deciding whether to take land into
trust, the Department of the Interior must take into account the effects of the
17 Although the clause speaks of land to be “purchased” by the federal government, the clause’s
reach is not cabined to land that is “purchased . . . in the narrow trading sense of the term.”
Humble Pipe Line Co. v. Waggonner, 376 U.S. 369, 372 (1964). Instead, “the crucial question” in
assessing the legality of such an acquisition is whether the state freely ceded its jurisdiction over
the land. Id.
27
entrustment on state and local government, see 25 C.F.R. § 151.10, neither the IRA nor its
associated regulations currently require the state’s express consent to the entrustment.
Case law construing the clause instructs that state consent is needed only when
the federal government takes “exclusive” jurisdiction over land within a state. See Paul
v. United States, 371 U.S. 245, 263 (1963). “Exclusive” jurisdiction for Enclave Clause
purposes is equivalent to the sweeping power that Congress exerts over the District of
Columbia, the first subject of the clause. Id. After exclusive jurisdiction is assumed,
newly‐enacted state laws have no effect on the federal enclave.18 See Pacific Coast Dairy,
Inc. v. Dep’t of Agric. of Cal., 318 U.S. 285, 294 (1943). But federal control is not
exclusive—and state consent is not needed—when the state in which the federal
property sits is, for instance, “free to enforce its criminal and civil laws on those lands.”
Kleppe v. New Mexico, 426 U.S. 529, 543 (1976).
When land is taken into trust by the federal government for Indian tribes, the
federal government does not obtain such categorically exclusive jurisdiction over the
entrusted lands. See Surplus Trading Co. v. Cook, 281 U.S. 647, 650‐51 (1930) (Indian
reservation is not federal enclave because state civil and criminal laws still apply to non‐
18 State laws in place at the time of the federal government’s acquisition of the land may remain
in effect, however, as long as they do not interfere with “the carrying out of a national purpose.”
James Stewart & Co. v. Sadrakula, 309 U.S. 94, 103‐04 (1940). This saving principle ensures “that
no area however small will be left without a developed legal system for private rights.” Id. at
100.
28
Indians); see also Carcieri v. Kempthorne, 497 F.3d 15, 40 (1st Cir. 2007) (Enclave Clause
does not bar application of IRA land‐into‐trust procedures), rev’d on other grounds,
Carcieri, 555 U.S. at 395‐96. States retain some civil and criminal authority on
reservations, subject to the caveat that in exercising that authority they may not
“infringe[] on the right of reservation Indians to make their own laws and be ruled by
them.” Fisher v. Dist. Court of Sixteenth Judicial Dist. of Mont., 424 U.S. 382, 386 (1976)
(per curiam). States may, for instance, require Indians to collect state sales taxes on
goods sold on the reservation to nonmembers. Washington v. Confederated Tribes of
Colville Indian Reservation, 447 U.S. 134, 151, 159‐60 (1980). Also, their agents may enter
the reservation to execute a search warrant related to off‐reservation conduct. Hicks, 533
U.S. at 364‐65.19
19 Plaintiffs assert that our recent decision in Citizens Against Casino Gambling v. Chaudhuri, 802
F.3d 267 (2d Cir. 2015), holds that the state retains no jurisdiction at all over land taken into
trust, and thereby means that the consent requirement of the Enclave Clause must apply to the
taking of land into trust. Verona Reply Br. at 8‐9. In Chaudhuri, quoting language from the
Cohen Handbook, we observed that “[b]ecause of plenary federal authority in Indian affairs,
there is no room for state regulation.” Id. at 280 (quoting Cohen, Handbook § 6.03[1][a]).
Although read literally this declaration appears to be unqualified, the Handbook makes clear that
it is in fact subject to exceptions, including that states may continue to regulate the activities of
nonmembers on tribal land, and that states may demand assistance from tribal members in the
exercise of that regulatory authority. See Cohen, Handbook § 6.03[1][b]; see also Moe v.
Confederated Salish and Kootenai Tribes of Flathead Reservation, 425 U.S. 463 (1976) (upholding state
regulation requiring smoke shops located on Indian reservation to collect cigarette tax from
sales to non‐Indians). We do not read Chaudhuri to suggest otherwise. The relevant portion of
our decision in Chaudhuri concerned whether a particular piece of land was subject to tribal
jurisdiction at all, not the extent or existence of the state’s authority on tribal land. For that
reason, we decline to treat the quoted portion of Chaudhuri as dispositive of the Enclave Clause
question at issue here.
29
State jurisdiction is thus only reduced, and not eliminated, when the federal
government takes land into trust for a tribe. Because federal and Indian authority do
not wholly displace state authority over land taken into trust pursuant to § 5 of the IRA,
the Enclave Clause poses no barrier to the entrustment that occurred here.
III. Tribe’s Eligibility for Land‐into‐Trust Procedures
Plaintiffs’ remaining arguments challenge the government’s interpretation of the
terms “Indians” and “tribe” in the IRA and related statutes. In their view, the Oneida
Indians of New York are not a “tribe” eligible to be the beneficiary of land taken into
trust by the United States, both because they are excluded from the benefits of the IRA
by the terms of that 1934 statute, and because the language of the 1983 Indian Land
Consolidation Act does not reach them.
A. Definitions of “Tribe”
We begin by reviewing the applicable statutes. As noted above, § 5 of the IRA
authorizes the Secretary of the Interior to acquire land in trust “for the purpose of
providing land for Indians.” 25 U.S.C. § 465. The statute defines “Indians” for
purposes of this section as “all persons of Indian descent who are members of any
recognized Indian tribe now under Federal jurisdiction”; it defines “tribe” as “any
Indian tribe, organized band, pueblo, or the Indians residing on one reservation.” 25
30
U.S.C. § 479.20 At the time of its enactment, tribes could opt out of the IRA’s provisions,
including § 5, by vote at a special election. See 25 U.S.C. § 478. As we have mentioned,
the Oneidas did so in 1936 by a tribal vote.
In 1983, however, acting in response to requests by tribes that had earlier opted
out but since changed their views, Congress overrode the tribes’ opt‐out votes with the
Indian Land Consolidation Act (“ILCA”), Pub. L. No. 97‐459, 96 Stat. 2517 (1983)
(codified at 25 U.S.C. §§ 2201, et seq.). The ILCA directs that § 5 of the IRA “shall apply
to all tribes notwithstanding the [opt‐out] provisions of section 478.” 25 U.S.C. § 2202
(emphasis added). The ILCA further defines “tribes” as “any Indian tribe, band, group,
pueblo, or community for which, or for the members of which, the United States holds
lands in trust.” § 2201(1).
B. Applicability of the 1934 IRA to New York Indians
In Plaintiffs’ view, Congress did not intend in 1934 to make the New York Indian
tribes eligible for the § 5 land‐into‐trust procedures established by the IRA. Those
procedures, they assert, were intended to remedy the specific effects of the 19th‐century
allotment policy—and in particular, the Dawes Act of 1887.21 The Dawes Act authorized
The requirement that a tribe be “now under federal jurisdiction” refers to its status in 1934,
20
when Congress enacted that language as part of the IRA. See Carcieri, 555 U.S. at 395.
The law was formally entitled, “An act to provide for the allotment of lands in severalty to
21
Indians on the various reservations, and to extend the protection of the laws of the United States
and the Territories over the Indians, and for other purposes.” 24 Stat. 388 (1887).
31
the President to transfer ownership of Indian tribal lands from the tribes to individual
Indians in “allotments,” in furtherance of the policy we described above. See 24 Stat.
388 § 1 (1887). In 1934, responding to the ill effects of the Act, Congress repudiated the
allotment policy by adopting the IRA and creating the land‐into‐trust procedures,
giving the federal government a tool with which to reestablish tribal land holdings. See
Cohen, Handbook § 16.03[2][c].
The Oneidas lost their land not through the Dawes Act or the allotment policy,
but rather through repeated land sales made by the tribe to New York State in violation
of federal law. See Sherrill, 544 U.S. at 206‐07. But nothing in the IRA’s text limits its
remedial reach to tribes affected by the Dawes Act. Indeed, the IRA’s definition of
“Indians” is notably far‐reaching: It covers “all persons of Indian descent who are
members of any recognized Indian tribe now under Federal jurisdiction.” 25 U.S.C.
§ 479. When Congress intended to exclude a geographic area or a particular tribe from
the statute’s reach, it did so explicitly. For example, the IRA land‐into‐trust procedures
by their terms do not apply to land in “the Territories, colonies, [and] insular
possessions of the United States,” except for the then‐territory of Alaska. 25 U.S.C.
§ 473. It also excludes certain named Indian tribes (not including the Oneidas) from
some of its provisions. Id. That, in contrast, Congress excluded neither New York nor
any of its tribes from the statute’s reach implies that Congress in fact intended the
32
IRA—including § 5—to embrace New York and tribes located there, including the
Oneidas. See Doe v. Bin Laden, 663 F.3d 64, 70 (2d Cir. 2011) (applying expressio unius est
exclusio alterius canon of construction in declining to read additional exceptions into
statute). We comfortably conclude that the IRA unambiguously permits the United
States to take land into trust for tribes unaffected by the Dawes Act, including tribes in
New York.
In reaching this conclusion, we do not rely on the IRA’s legislative history, but we
note that so much of it as is available provides further confirmation of our conclusion.
As UCE points out in its brief, the New York Indians were shut out of the IRA’s land‐
into‐trust provisions in an early draft of the bill. See Hearings Before the Committee on
Indian Affairs on H.R. 7902, 73rd Cong. 133 (1934) (statement of John Collier, Comm’r of
Indian Affairs). Commissioner Collier testified that the New York Indians were omitted
from the draft because they “[did] not want [land reform] and their condition [was]
entirely peculiar.” Id. But that provision was removed from the bill as “unnecessary
and inadvisable” later in the legislative process and replaced with the voluntary opt‐out
procedure of 25 U.S.C. § 478, which was made available to all tribes. Id. at 198. The
legislative record is thus consistent with our conclusion, based on the text and scheme
of the IRA, see Hess v. Cohen & Slamowitz LLP, 637 F.3d 117, 120 (2d Cir. 2011), that the
33
IRA contains no implicit exclusion of the New York tribes. See Doe v. Chao, 540 U.S. 614,
622‐23 (2004).
C. Effect of the ILCA
Even if the IRA as passed applied to the Oneidas, Plaintiffs argue, the ILCA does
not override opt‐out votes except as to “tribes” “for which, or for the members of which,
the United States holds lands in trust.” 25 U.S.C. § 2201(1). Observing that the United
States did not hold land in trust for the Tribe in 2008 when the Secretary made the land‐
into‐trust decision, Plaintiffs contend that the Oneidas’ 1936 opt‐out vote is still valid
and that the Tribe is therefore not eligible for the IRA’s land‐into‐trust procedures.
The United States interprets the IRA and the ILCA differently. The government
first contends that the “tribes” referred to in § 2202 of the ILCA (overriding past opt‐out
votes) should not be limited to groups meeting the narrowest definition of “tribes”
presented in § 2201(1) because that reading would incongruously undermine the ILCA’s
broad remedial purpose. Section 2201, it says, should instead be governed by the
definition of “tribes” set forth in § 479. It further asserts that its view is embraced by
agency interpretations that are entitled to this Court’s deference. See 25 C.F.R.
§ 151.2(b); U.S. Dep’t of the Interior, Office of the Solicitor, The Meaning of “Under
Federal Jurisdiction” for Purposes of the Indian Reorganization Act, at 21 (March 12,
2014); New York v. Acting E. Reg’l Dir., Bd. of Indian Affairs, 58 I.B.I.A. 323, 331‐34 (2014)
34
(applying broader definition in context of related land‐into‐trust decision).22 The
government argues second and in the alternative that construing § 2202 in light of a
broader reading of § 2201(1) would similarly restore the Tribe’s eligibility for the land‐
into‐trust procedures of § 465. It rejects Plaintiffs’ reading of § 2201(1) and instead
construes the last clause of § 2201(1) to apply only to the word “community.”
i. Deference to Agency Interpretations
We first consider what, if any, deference we owe to the agency pronouncements
presented in support of the first argument. We may defer to an agency’s interpretation
of the statute it administers only if the statute is ambiguous in relevant part. Estate of
Landers v. Leavitt, 545 F.3d 98, 104‐05 (2d Cir. 2009). If, however, the statute “is silent or
ambiguous with respect to the specific issue, the question for the court is whether the
agency’s answer is based on a permissible construction of the statute.” Chevron, U.S.A.,
Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 843 (1984). An interpretive regulation
“qualifies for Chevron deference when it appears that Congress delegated authority to
22 The government also urges us to affirm the District Court’s decision on the basis that, between
2008 (when this lawsuit was filed) and 2013 (when the Department issued its Amended Record
of Decision (see J.A. 1571)), the United States took land into trust for the Tribe under the “excess
real property” provisions of 40 U.S.C. § 523. See Gov’t Br. 62‐65. Thus, the government submits,
even under Plaintiffs’ interpretation of § 2201(1), by 2013 the Tribe was eligible for additional
land to be taken into trust pursuant to § 5 of the IRA. Although we are free to affirm on
grounds “not relied upon by the district court,” Olsen v. Pratt & Whitney Aircraft, 136 F.3d 273,
275 (2d Cir. 1998) (internal quotation marks omitted), we elect not to do so here, and we express
no view on the merits of this alternative argument.
35
the agency generally to make rules carrying the force of law, and that the agency
interpretation claiming deference was promulgated in the exercise of that authority.”
Estate of Landers, 545 F.3d at 105.
The agency interpretations identified by the government as bearing on the
question do not, upon closer examination, actually address the interplay of the
definitions at issue here, even were we to consider them ambiguous. First, the United
States contends that it has promulgated its view—that § 2201(1)’s definition of “tribe”
does not limit the effect of § 2202—in a regulation adopted pursuant to statute and
through notice‐and‐comment rulemaking, see 45 Fed. Reg. 62,034 (Sept. 18, 1980), and
therefore that the interpretation is entitled to Chevron deference. See 25 C.F.R. § 151.2(b)
(defining “tribe” for purposes of land‐into‐trust regulation as “any Indian tribe, band,
nation, pueblo, community, rancheria, colony, or other group of Indians . . . which is
recognized by the Secretary as eligible for the special programs and services from the
Bureau of Indian Affairs”). This definition does not, however, purport to define the
scope of the agency’s land‐into‐trust authority; indeed, the next section of the agency’s
regulations acknowledges that “[l]and 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.” 25 C.F.R. § 151.3 (emphasis added).
36
The origins of the regulation further support our understanding that § 151.2(b)
does not interpret the effect of § 2201(1) on the scope of the agency’s land‐into‐trust
authority. The regulatory definition of “tribe” set forth in § 151.2(b) has not changed
since it was promulgated in 1980, before the ILCA’s passage in 1983. See 45 Fed. Reg.
62,034, 62,036 (Sept. 18, 1980). Moreover, although the DOI has amended the C.F.R.
Part 151 “Land Acquisition” regulations on one occasion, in 1995, that amendment did
not affect § 151.2(b), and the DOI has not revisited Part 151 regulations in light of
§ 2202. See Land Acquisitions, 45 Fed. Reg. 62,034 (Sept. 18, 1980); 60 Fed. Reg. 32,874
(June 23, 1995). Tellingly, in the Record of Decision, the DOI seemed to rely on the
language of § 2202 itself, rather than on any regulation. No one disputes that, in 1980,
the government could not take land into trust for tribes that, like the Oneidas, had
opted out of the IRA. Accordingly, we decline to treat § 151.2(b) as reflecting a
statutory interpretation to which we owe deference.
Second, we find similarly inapt the Solicitor’s legal opinion of March 2014 and
the decision of the Interior Board of Indian Appeals to which the government also
points. Both of these analyses focus on the meaning of “under Federal jurisdiction” in
the IRA’s definitional provision and the effect of Carcieri v. Salazar, 555 U.S. 379 (2009),
on the agency’s authority to take land into trust. See U.S. Dep’t of the Interior, The
Meaning of “Under Federal Jurisdiction” at 16‐20; State of New York, 58 I.B.I.A. at 331‐34.
37
The analyses presented in these documents simply do not address the ILCA’s definition
of “tribe” in § 2201(1) or whether that definition might cabin the effect of the ILCA on
the IRA’s entrustment procedures.
ii. Interpreting “Tribe”
Because the agency’s proffered interpretations do not answer the question before
us in this litigation, we interpret the statutes de novo.
In general, “statutory definitions control the meaning of statutory words.”
Burgess v. United States, 553 U.S. 124, 129 (2008) (internal quotation marks omitted). In
the ILCA, therefore, absent any indication that this general rule does not hold, see
Lawson v. Suwannee Fruit & Steamship Co., 336 U.S. 198, 201 (1949), § 2201(1) defines
“tribe” for purposes of § 2202, cf. Carcieri, 555 U.S. at 394 n.9 (“[Section] 2201 is, by its
express terms, applicable only to Chapter 24 of Title 25 of the United States Code [i.e.,
the ILCA].”). Thus, a group that lost its eligibility for the land‐into‐trust procedures of
§ 465 through its § 478 vote has its land‐into‐trust eligibility restored by § 2202—which
states that § 465 “shall apply to all tribes notwithstanding” § 478—if and only if the
group meets the definition of “tribe” in § 2201(1).
As noted above, Plaintiffs argue that the ILCA’s definition of “tribe” in
§ 2101(1)—“any Indian tribe, band, group, pueblo, or community for which, or for the
members of which, the United States holds lands in trust”—should be read so that “for
38
which . . . holds land into trust” applies to “tribe, band, group, [and] pueblo,” not just
“community.” Under this reading, a purported tribe would only have its land‐into‐trust
eligibility restored if, at the time the group is seeking to have the United States take land
into trust on its behalf, the United States already holds land in trust for that group.
We agree with the government that Plaintiffs’ reading of § 2201(1) is inconsistent
with the ILCA scheme and would produce anomalous results. As the Supreme Court
has explained, § 2202, “by its terms[,] simply ensures that tribes may benefit from § 465
even if they opted out of the IRA pursuant to § 478, which allowed tribal members to
reject the application of the IRA to their tribe.” See Carcieri, 555 U.S. at 393‐94. Limiting
the ILCA’s remedial effect to groups for which the United States already held land in
trust would be a very strange outcome in light of the ILCA’s restorative aim. Plaintiffs’
interpretation would mean that the ILCA restores land‐into‐trust eligibility only to
those tribes that, despite having voted under § 478 to reject land‐into‐trust eligibility,
somehow did have land held in trust by the government on their behalf.
Instead, we read “for which, or for the members of which, the United States
holds lands in trust” in § 2201(1) to apply only to “community.” This reading is
supported by the last‐antecedent rule, most recently reaffirmed in Lockhart v. United
States, 136 S.Ct. 958, 962 (2016). The District Court relied on this rule to reach the same
reading—correctly, we believe. To hold otherwise would both give inadequate weight
39
to the apparent grammar of the sentence, with a serial comma separating “community”
from “Indian tribe, band, group, [and] pueblo,” and undercut the ILCA’s intended effect
of restoring land‐into‐trust eligibility.
To be sure, a tribe that opted out of the IRA must satisfy both the requirements of
§ 2201(1) and § 465 to have its land‐into‐trust eligibility restored. And, under our
preferred reading, § 2201(1) affords a broader definition of “tribe” than does its
counterpart in the IRA, § 479. Section 479 defines “tribe” as “any Indian tribe,
organized band, pueblo, or Indians residing on one reservation,” but limits the term
“Indian” to “all persons of Indian descent who are members of any recognized Indian
tribe now under Federal jurisdiction.” This definition of “Indian” restricts § 465’s
application. See Carcieri, 555 U.S. at 388 (“The parties are in agreement, as are we, that
the Secretary’s authority to take the parcel in question into trust [pursuant to § 465]
depends on whether the Narragansetts are members of a ‘recognized Indian Tribe now
under Federal jurisdiction.’”). Section 2201(1) does not repeated this date‐sensitive
federal jurisdiction requirement. In § 2202, however, Congress took care to note that
“nothing in this section is intended to supersede any other provision of Federal law
which authorizes, prohibits, or restricts the acquisition of land for Indians with respect
to any specific tribe, reservation, or state(s).” Id. § 2202. Accordingly, the Secretary
must also apply § 479 in determining whether a tribe that has opted out, with that opt‐
40
out effectively nullified pursuant to § 2202, is eligible for a land‐into‐trust arrangement
pursuant to § 465. Because the ILCA defines “tribe” and “Indian” more broadly than
does the IRA, however, this two‐step analysis should not prevent any otherwise eligible
tribe, i.e., any recognized tribe under federal jurisdiction at the time of the IRA’s
enactment, from requesting a land‐into‐trust arrangement pursuant to § 465.
We therefore conclude that the United States did not exceed its statutory
authority by taking land into trust for the Tribe—a tribe that indisputably qualifies as a
“tribe” within our reading of § 2201(1) and, since it was under federal jurisdiction in
1934, within the meaning of § 465 as well.
IV. Authority of Tribal Leadership
Finally, we reject UCE’s cursory argument that the United States may not take
land into trust on behalf of the Tribe because of what Plaintiffs allege to be the Tribe’s
illegitimate leadership. According to UCE, tribal leader Arthur Raymond Halbritter has
improperly restructured tribal governance to protect his power base. Plaintiffs do not,
however, detail how this assertion bears on their claim that the United States may not
take land into trust for the Tribe. They do not, for example, question the validity of the
Tribe’s request that land be entrusted on its behalf. Moreover, even if the legitimacy of
the tribal government were somehow related to Plaintiffs’ current claims regarding the
entrustment, federal courts “lack authority to resolve internal disputes about tribal
41
law.” Cayuga Nation v. Tanner, No. 15‐1667, 2016 WL 3093259, at *4 (2d Cir. June 2, 2016).
When there is such a dispute, we will “defer to the BIA’s recognition of an individual as
authorized to act on behalf of the Nation.” Id. at *6. Here, the agency received and
acted on the Tribe’s request that it take land into trust, implicitly recognizing—at least
for these purposes—the legitimacy of tribal leadership. That ends our inquiry.
CONCLUSION
In sum, we conclude that the federal government’s plenary power over Indian
affairs extends to taking historic reservation land into trust for a tribe. That the
entrustment deprives state government of certain aspects of jurisdiction over that land
does not run afoul of general principles of state sovereignty, the Indian Commerce
Clause, or the specific guarantees of the Enclave Clause. The Tribe became eligible for
such an entrustment in 1983, when Congress invalidated the Oneidas’ earlier decision
to opt out of the land‐into‐trust regime, and the Department of the Interior’s 2008
decision (reaffirmed in 2013) to take the land into trust for the Tribe lies within that
agency’s statutory authority. For these reasons, we AFFIRM the judgments of the
District Court.
42