16-1135No.

I- ’ FILED~

MAR - ~ 2017OFFiCe- OF THE aLE.aft

IN THE

CENTRAL NEW YORK FAIR BUSINESSASSOCIATION et al., PETITIONERS

V.

SALLY M.R. JEWELL, in her official capacity asSecretary of the U.S. Department of the Interior et aI.

PETITION FOR A WRIT OF CERTIORARI TO THEUNITED STATES CO URT OF APPEALS

FOR THE SECOND CIRCUIT

PETITION FOR WRIT OF CERTIORARI

JAMES J. DEVINE, JR.Counsel of Record128 Main StreetOneida, New York 13421JDevine@centralny. twcbc.com(315) 363-6600

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iQUESTION(S) PRESENTED

1) Does the Secretary of the Interior have unlimitedauthority pursuant to 25 U.S.C. § 465, 25 U.S.C. §9 and 43 U.S.C. § 1457 to promulgate and exercisethe 25 CFR Part 151 regulations to acquire any feeland from state jurisdiction and place it intofederal trust status?

2) Whether the Second Circuit misinterpreted the"fact" discussion in this Court’s majority opinion inCity of She~ill v. Oneida I~dian Nationupholding its prior decision that the Oneida stateIndian reservation was federal Indian countryaffecting the authority of the Secretary of theInterior to acquire 14,000 acres of fee land to placeinto federal trust in the Records of Decisionprejudicing these petitioners in applying 5 U.S.C.§ 706 in this case.

3) What is left of the Equal Footing Doctrine if theSecretary of the Interior can acquire fee land fromthe original colony of the State of New York andplace it into federal trust for an Indian tribe toexercise jurisdiction over it as federal territorialland?

iiPARTIES TO THE PROCEEDING

CENTRAL NEW YORK FAIR BUSINESSASSOCIATION; CITIZENS EQUAL RIGHTALLIANCE; DAVID R. TOWNSEND, New York StateAssemblyman; MICHAEL J. HENNESSY, OneidaCounty Legislator; D. CHAD DAVIS; MELVIN L.PHILLIPS, Petitioners

SALLY M.R. JEWELL, in her official capacity asSecretary of the U.S. Department of the Interior;MICHAEL L. CONNOR, in his official capacity asDeputy Secretary of the U.S. Department of Interior;ELIZABETH J. KLEIN, in her official capacity as theAssociate Deputy Secretary of the Interior; FRANKLINKEEL, the Regional Director for the Eastern RegionalOffice of the Bureau of Indian Affairs; CHESTERMcGHEE, in his official capacity as Eastern RegionalEnvironmental Scientist; ARTHUR RAYMONDHALBRITTER, as a real party in interest as theFederally Recognized Leader of the Oneida IndianNation, Respondents

o.o

TABLE OF CONTENTSPage

QUESTION(S) PRESENTED ...........................................................

PARTIES TO THE PROCEEDING .................................................. ii

TABLE OF AUTHOR ITI ES~ ............................................................ 1v"

OPINIONS ]~ELOW .........................................................................1

JURISDICTION ...............................................................................1

RELEVANT PROVISIONS INVOLVED ......................................... 1

STATEMENT ..................................................................................2

REASONS FOR GRANTING THE PETITION ............................... 12

CONCLUSION ...............................................................................28

APPENDIX

Circuit Cou~t Decision ...........................................................laDistrict Court Decision ..........................................................8aVevdict ....................................................................................42aDistrict Court Decision ........................................................44a

ivTABLE OF AUTHORITIES

Page

CASES

ABLEMAN V. BOOTH, 62 U.S. 506 (1859) ..................................20ALASKA V. NATIVE VILLAGE OF VENETIE, 522 U.S. 520

(1998) ........................................................................................22AMERICAN INSURANCE COMPANY V. CANTER, 26 U.S. 11

(1828) ........................................................................................20ARIZONA V. CALIFORNIA, 373 U.S. 546 (1963) .......................23CARCIERI V. SALAZAR, 555 U.S. 379 (2009) ..............................1CttEVRON, U.S.A., INC. V. NATURAL RES. DEF. COUNCIL,

467 U.S. 837, 842-3 (1984) .......................................................15CITY OF SHERRILL V. ONEIDA INDIAN NATION, 544 U.S. 197

(2005) ..................................................................................2, 3, 5ELK V. WILKINS, 112 U.S. 94 (1884) ...................................21, 27FLETCHER V. PECK, 10 U.S. 87 (1810) .....................................27HAWAII V. OFFICE OF HAWAIIAN AFFAIRS, 556 U.S. 163, 176

(2009) ........................................................................................26JOtlNSON V. MCINTOSH, 21 U.S. 543 (1823) .......................16, 27KOIIL v. UNITED STATES, 91 U.S. 367 (1875) .........................20NEBRASKA V. PARKER, 136 S.CT. 1072 (2016) ..........................6NEVADA V. HICKS, 533 U.S. 353 (2001) ....................................26ONEIDA COUNTY V. ONEIDA INDIAN NATION, 414 U.S. 661

(1974) ..........................................................................................9ONEIDA INDIAN NATION V. CITY OF SHERRILL, 337 F.3D 139

(2D CllL 2003) ........................................................................ 4, 6ONEIDA INDIAN NATION V. MADISON COUNTY, 665 F.31) 408

(21) CiR. 2011) .................................................................5, 11, 13POLLARD’S LESSEE V. HA(JAN, 44 U.S. 212 (1845) ................20PUERTO RICO V. SAN(~HEZ VALLE, 136 S.CT. 1863 (2016) ....25RASUL V. BUSII, 542 U.S. 446, 480-484 (2004) .........................17REMOVAL ACT OF 1830. SEE NEW YORK INDIANS V. UNITED

STATES, 170 U.S. 1, 10, FN 1 .............................................6, 11SAENZ V. ROE, 526 U.S. 489, 502-503, FN 15 (1999) ................25SANTA CI~ARA PU EBbO V. MARTINEZ, 436 U.S. 49(1978) .....27S(~()TT V. SANDF(.)RD, 60 U.S. 393, 443-444 (1857) ...............7, 18

SHELBY COUNTY V. HOLDER, 133 S. CT 2612 (2013) .............27

UNITED STATES V. DONNELLY, 228 U.S. 243 (1913) .............18

UNITED STATES V. KAGAMA, 118 U.S. 375 (1886) ...................21

UNITED STATES V. LARA, 541 U.S. 193,201 (2004) ................27

UPSTATE CITIZENS FOR EQUALITY, INC. V. UN ITEDSTATES, 841 F.3D 556 (2D CIr. 2016) ..........................

7, 12, 16

STATUTES

18 U.S.C. § 1151 .......................................................................... 21~

25 U.S.C. § 461 .................................................................. ¯

465 ......................passim

25 U.S.C. § .............................................. 1, 8, 1525 U.S.C. § 479 ....................................................................25 U.S.C. § 9 ........................................................................

1, 8, 22

25 U.S.C. Part 151 ......................................................................261

28 U.S.C. § 1254(1) .........................................................................

4 Stat. 729 ......................................................................... ’

42 U.S.C. § 1981 ...................................................2

42 U.S.C. § 1983 .................................................................1457 ................

passim43 U.S.C. § ............................................43 U.S.C. §1457 .............................................................................

1

5USC §701 .......................................................2

5 U.S.C. § 706 .................................................................7 Star. 550 ............................................. . ............2380 Stat 378 .............................28 U.S.C. § 2201-2202 .................................................................Rev. Stat. § 2145 ......................................................................_~’~Rev. Stat. § 44 .............................................................1Rev. Stat. § 440 ........................................................................221643 U.S.C. § 1457 ...........................................................................

I~EGULATIONS

25 CFR Part 151 .................................................................passim

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1OPINIONS BELOW

The Opinion of the Second Circuit is not reported.Appendix (App.) la-7a. The Opinions of the districtcourt appear in App. 7a-49a.

JURISDICTION

The Judgment of the Second Circuit was enteredon December 9, 2016. The jurisdiction of this Court isinvoked under 28 U.S.C. § 1254(1).

RELEVANT PROVISIONS INVOLVED

Petitioners challenged under the AdministrativeProcedures Act (APA), 25 U.S.C. § 701-706 and theDeclaratory Judgments Act 28 U.S.C. § 2201-2202, thetwo Records of Decision to acquire approximately14,000 acres of fee land and convert it into federal trustland. The District Court concluded and the SecondCircuit affirmed that there is no limit on the authorityof the Secretary of the Interior to acquire federal titleto fee lands and place them into federal trust status asfederal territorial land under the 25 CFR Part 151regulations based on the authority of 25 U.S.C. § 465being interpreted with the additional authorityconferred by 43 U.S.C. §1457 and 25 U.S.C. § 9.Petitioners also challenged whether the Oneida of NewYork were eligible to have fee lands placed into federaltrust under 25 U.S.C. § 479 as interpreted in Carcieri v.Salazar, 555 U.S. 379 (2009). Both the trial court andSecond Circuit panel accepted the Secretary’sinterpretation of 25 U.S.C § 479 contained in the M-37029 opinion submitted in this case to alter thisCourt’s interpretation of the statute. Petitioners also

2raised 42 U.S.C. § 1981, 42 U.S.C. § 1983 and 42 U.S.C.§ 1985 in their complaints to challenge the authority ofthe Secretary of the Interior to create federal territoryby acquiring fee lands and placing them into trust in theState of New York. The constitutionality of 43 U.S.C. §1457 was challenged as the real source of authority forthe Records of Decision inthe Motion forReconsideration in the trial court. ~

STATEMENT

This case started pursuant to the AdministrativeProcedures Act (APA), 5 U.S.C. § 701 et seq., tochallenge the authority of the Secretary of the Interiorto acquire almost 14,000 acres of land into trust underthe Record of Decision of March 8, 2008. Petitionerschallenged the Secretary’s basis of authority asarbitrary, capricious and not in accordance with law topromulgate and apply the 25 CFR Part 151 regulationsto restore tribal sovereignty almost two hundred yearsafter it had ceased to exist in the original colony of NewYork and convert fee land into federal trust landdeemed to be under tribal jurisdiction of the OneidaIndian Nation. The application to take the fee land intotrust was filed after this Court’s decision in City ofSherrill v. Oneida Indian Nation, 544 U.S. 197 (2005).This Court rejected the unification theory andsubstantially altered the rendition of facts that hadbeen determined by the Second Circuit. Most notably,by accepting that in the Treaty of Fort Schuyler of 1788

~ I)etiti(mers realize that Ti~l~.~ 25 has bee~ rece~tly reco(lii~ed.Beca~s(~ this case’s opir~ions arid ~11 of the prece(l(mts citer} ~s(~ the

this

3

the Oneida had ceded all of their land interests to theState of New York before the Constitution was even ineffect, this Court implied that the state Indianreservation was not under federal jurisdiction. Id. at203. Then it unfortunately suggested in the Sherriltopinion that Congress had created a process under 25U.S.C. § 465 that was the proper avenue to pursue forplacing fee lands under state jurisdiction into federaltrust status.

Apparently not realizing that fee to trust is basedon the exact same legal analysis as the unificationtheory~, this Court contradicted itself making its City ofSherrill opinion indiscernible as to whether theunderlying state reservation was or was not federalIndian country. Federal territorial land reserved for anIndian tribe is almost always federal Indian country.Whether a state Indian reservation could be consideredfederal Indian country and therefore under federaljurisdiction was an extension of the same territorialwar powers that were the basis of the unificationtheory and fee to trust that were not addressed by thisCourt. While the Second Circuit applied the doctrine oflaches to the land claim litigation from the majorityopinion the result was the ending of the land claimcases while opening a whole new set of cases to decidewhether the same lands could be placed into federaltrust status under the 25 CFR Part 151 regulations. Soinstead of the Secretary and tribe having to sueindividual landowners as they had in the land claimlitigation, now the fight was between the federalgovernment and tribe on one side asserting the right to

~ Botch the unif~cati(m theory ~md t~e to t,rust are based on the"inevitable (~onse(l~*e~we oI’ l, he right to a(:q~i~’e te~’itory" langt~age~,}nlai~ed i~ .%.oll ,,. ~,t~lbrd, (;0 U.S. ;~93,444 (1857).

4restore tribal sovereignty and the State, counties,towns and a couple of citizens groups trying to preventthe loss of state sovereignty and their justifiableexpectations of the state government processes.

This Court quickly found out that it had not evenresolved the issue of the property taxes in City ofSherrill as the city and counties sued the Oneida IndianNation for back taxes claiming the right to foreclose onthe land. The Second Circuit remanded the case back tothe trial court. Judge Hurd then wrongly concludedthat even though the tribal sovereignty of the Oneidahad long ago grown cold that the underlying statereservation was still somehow subject to federaljurisdiction because this Court had not overruled theSecond Circuit opinion. Then the Second Circuitconcluded that the Oneida Tribe could claim sovereignimmunity because the former reservation was Indiancountry. See Oneida Indian Nation v. City of Sherrill,337 F.3d 139 (2d Cir. 2003). This Court again acceptedthe petition for certiorari to decide if the Oneida tribecould claim sovereign immunity to prevent the taxationenforcement. Just before the opening brief was filed theOneida Indian Nation waived its sovereign immunity toprevent this Court from deciding that issue.

Just three years later, the same taxation issuerose up again this time within the fee to trustproceedings over the land status and specificallywhether the Treaty of Buffalo Creek had precluded theIndian and federal claims that the state reservation wasIndian country in 1838. All of the facts presented andarguments made by petitioners in the District Courtwere deemed already decided by the express findingsof the Second Circuit in O~eida I~dia~ Nation v. Cityof Sherrill, 337 F.3d 139, 167 (2d Cir. 2003). The SecondCircuit opined that their finding of facts was not

5overruled by the United States Supreme Court in 544U.S. 197 (2005). See Oneida Indian Nation v. MadisonCounty, 665 F.3d 408 (2d Cir. 2011). In this opinion theSecond Circuit states it "does not have the authority tooverrule a prior panel of Judges that concluded that theOneida Indian reservation was subject to federaljurisdiction and was never diminished or disestablishedby Congress." Id. at 443. Again this Court wasinterested in the petition for certiorari ordering theUnited States to file a response brief in the case. Justbefore the United States brief was due and aftermeeting with the Solicitor General’s office, the State ofNew York and counties accepted a settlement of claimsagain blocking review by this Court.

This petition is now the third time since the Cityof Sh.errill decision in 2005 by this Court that the issueof whether the former state reservation for the Oneidais federal Indian country, or is otherwise under federaljurisdiction, has come to this Court. The "fact" that theSecond Circuit had determined that the state Oneidareservation was federal Indian country prevented theplaintiffs below from having any of their contrary factsfrom their initial complaint forward accepted as true oreven contradictory to the federal Indian countrydetermination of the Second Circuit. As argued in theiropening brief to the Second Circuit, the fact that noneof their oppositional facts were accepted or evenconsidered prevented the trial court from applying thenormal standards of judicial review for all of theirpleadings prejudicing their challenge to the Secretary’sRecords of Decision under 5 U.S.C. § 706.

This reality was starkly presented to the SecondCircuit after the attorney for CERA/CERF foundseveral documents in the National Archives whileresearching for the amic,ts curiae brief filed by CERF

6

in Nebraska v. Parker, 136 S.Ct. 1072 (2016). Thesefederal historical documents clearly demonstrate thatthe Treaty of Buffalo Creek in 1838 was executed inconformity to the Removal Act of 1830. See New YorkIndians v. United States, 170 U.S. 1, 10, Fn 1, Finding10 and p. 21 (1898) They explain how the Civil War andthe new federal Indian policy of 1871 stopped theexecution of the Treaty of Buffalo Creek and thenexplain how the United States was going to finallyexecute the treaty. Unlike the United States andOneida Tribe asserted in the land claim litigation, theprocess for completing the execution of the Treaty wasall finished ceding all federal interest to the statereservation. If this petition is accepted, petitioners willproperly lodge these documents for this Court toexamine.

The Second Circuit rejected the petitioner’smotion to supplement the record on appeal. Petitioner’sfiled a motion for reconsideration which was alsodenied. While there are many "facts" in the priorlitigation that are contradictory or misconstrued, forpurposes of this petition the most prejudicial "fact" isthat the remaining 32 acre Oneida reservation is underfederal jurisdiction. Only this Court can determinewhether its majority opinion overruled the SecondCircuit decision in City of Sherrill, 337 F.3d 139 thatthe Oneida Indian reservation was subject to federaljurisdiction and was never diminished or disestablishedby Congress.

Because the Second Circuit has asserted since2003 that the state rese~wation is federal Indiancountry under federal jurisdiction, it now believes inthis ease there is no harm to the justifiable expectationsof the surrounding non-Indian community to place14,000 acres of state fee land into federal trust status.

7State sovereignty and federalism are not even concernsas discussed in the published opinion in a parallel casethat issued weeks prior to the summary affirmance inthis case. See Upstate Citizens for Equality, Inc. v.United States, 841 F.3d 556 (2d Cir. 2016). Thispublished opinion is cited in the summary affirmanceorder at App. 5a as affirming and extending the twoprior precedents and is the reason that the panel wouldnot address the factual and constitutional issues raisedby these petitioners.

Essentially, the newly published opinion is thethird ruling by the Second Circuit that the state Indianreservation was and is subject to federal jurisdictionand can only be diminished or disestablished by act ofCongress. According to the Second Circuit, since theland was already removed from state jurisdiction thedecision to place the lands into trust was well withinthe authority of the Secretary of the Interior. TheSecond Circuit in the conclusion of the publishedopinion as a direct result of its erroneous conclusionthat the land is federal Indian country, grants anunlimited power to the Secretary to remove any landsfrom the state and acquire them as federal territory.Upstate Citizens for Equality at. It is eerily similar tothe reasoning of Chief Justice Taney in Scott v.Sandford, describing the authority of the federalgovernment to acquire land as federal territory withoutany limitations. See Scott v. Sandford, 60 U.S. 393, 443-444 (1857).

A. Statutory Framework of Fee to Trust

Since the first fee to trust regulations wereadopted by the Secretary in 1978 the Secretary hasimplied that 25 U.S.C. § 465 was the Congressional

8delegation of the authority to the Secretary to acquireland from state jurisdiction and effectively turn it backinto federal territorial land. In doing the research intothe passage of the Indian Reorganization Act (IRA), 25U.S.C. § 461 et seq., CERA discovered the original billsand numerous memoranda written by John Collier, theprimary author of the proposed IRA. The original billand the accompanying memorandum clearlydemonstrate that a separate fee to trust provision wasincluded in the original draft of the IRA bill and thatprovision was specifically removed by Congress fromthe later drafts and was not included in the full billsubstitute that became the IRA. These facts aredirectly alleged in the amended complaint and wereconsistently raised in all the subsequent pleadings.

Knowing this fact, CNYFBA and CERAchallenged the authority of the Secretary to promulgatethe 25 CFR Part 151 regulations in their amendedcomplaint claiming that the regulations are ult~u viresand that the fee to trust decision in New York is"arbitrary, capricious and not in accordance with law"under 5 U.S.C. § 706 of the APA. Petitioners alsoclaimed that the Secretarial power to use fee to trustwas only for those tribes eligible for the benefits of theIRA in 1934 and that the Oneida of New York were andare not eligible as a tribe recognized in 1934 pursuant tothe opinion in Carcieri v. Salazar, interpreting 25U.S.C. § 479. Instead of granting CERA victory onthese points against the RODs, the district court in itsorder of March 2015 essentially agreed that 25 U.S.C. §465 is not the actual basis of the Part 151 fee to trustregulations. In the opinion the district court cites 25U.S.C. § 9 and 43 U.S.C. § 1457 as additional authorityfor the Part 151 regulations. App..The Secretary neverclaimed either of these statutes as being the source of

9authority for fee to trust in any of the briefing or in theCarcieri M-37029 opinion submitted in this case beforethe district court’s grant of summary judgment.

The petitioner’s immediately filed a motion forreconsideration claiming that 43 U.S.C. § 1457 is anunconstitutional statute as an unlimited territorial warpower that was copied directly from 1 Rev. Stat. 441and the Indian policy of 1871. Petitioners directlyargued that the majority opinion in Scott v. Sandfordhad removed all of the limitations on the territorial warpower. The district court ordered the Secretary toanswer the motion for reconsideration. The Secretary’sanswer does not deny that 43 U.S.C. § 1457 is the truesource of authority for fee to trust and admits there isno limit to the authority that can be claimed by theSecretary under this law. The district court then deniedthe motion for reconsideration because the Part 151regulations had authority and because the district courtwas bound by the prior precedents of the SecondCircuit. App. 44a-49a.

B. Factual Background

It is impossible to imagine a case where the facts aremore contradictory or just plain wrong than they are inthis case. This happened over more than 40 years ofland claim litigation in New York that started with thisCourt’s decision in O~e,ida County v. Oneida I~d’ianNation, 414 U.S. 661 (1974) (Oneida I). The Records ofDecision in this case do not contain original documents.Instead they are based on compilations of variousfederal court and agency rulings since the land claimlitigation began. Setting aside the fact that there aremultiple contradictory district court orders, petitionerswere faced with two wrongly decided Second Circuit

10precedents that came from all the confusionsurrounding this Court’s majority opinion in City ofShe~~rill as discussed in the Statement above.

The land claim case began as an assertion that theState of New York had not properly acquired theformer Oneida Indian reservation and had violated theNon-Intercourse Act, 25 U.S.C. § 177, by acquiring thereservation lands from the Indians. Somehow in all thelitigation the State of New York, with Madison andOneida counties never asserted that the Oneida Indianreservation was a state reservation of land made beforethe Constitution went into effect pursuant to theTreaty of Fort Schuyler of 1788.

It was not until the tiny City of Sherrill pursued itsclaim to the property taxes of the lands reacquired bythe Oneida in fee that this Court accepted certiorari onthe petition and completely recast the "facts" as theyhad been argued in the land claim litigation byacknowledging the Treaty of Fort Schuyler betweenthe New York Indian tribes and the State of New Yorkin 1788. The finding that all of the Indian land had beenceded to the State of New York before the Constitutionwas in effect was the basis for determining that theembers of tribal sovereignty had long ago grown coldand that the people of New York had justifiableexpectations to the continuance of state jurisdiction.Sherrill at 199, 215 and 216. This Court however, neverdecided or addressed in the majority opinion of City ofSherrill whether the former Oneida Indian reservationwas federal Indian country, under federal jurisdictionor could only be diminished or disestablished byCongress. This Court assumed incorrectly that lawyersand judges in the original colony of Ne~v York wouldunderstand that the acknowledgement of the Treaty ofFort Schuyler of 1788 changed the land status. After 40

11years of being barraged by whatever theory the UnitedStates could think up to recast the land status in NewYork the assumption was unfair and resulted increating an even bigger factual mess than wasoriginally presented in City of Sherrill.

Petitioners also contested the facts surrounding the"recognition" of the Oneida Indian Nation submittingthe lists prepared by the Department of the Interiorbetween 1934-1936 that were first attached to theCERF amicus brief in Carcieri. The Oneida IndianNation of New York does not appear on any of the lists.This fact caused the trial court to order the Secretaryto make the determination as to whether the Oneidawere actually recognized and eligible to have landsplaced into trust status. The result was the M-37029opinion and the second ROD. More of this will bediscussed below.

In addition, Petitionet~ also raised the fact that the1838 Treaty of Buffalo Creek, 7 Stat. 550, wasnegotiated between the United States, State of NewYork and the remaining bands of former OneidaIndians according to its own language. Petitioners alsochallenged the conclusion of the Second Circuit that theTreaty of Buffalo Creek had not been negotiated andexecuted pursuant to the Removal Act of 1830, 4 Stat.411, citing the actual Senate ratification that cites tothe authority being from the Removal Act. See NewYork Indians v. United States, 170 U.S. 1 10, Fn.1,Finding 10 and p. 21 (1898)

All of these "facts" were deemed previously decidedin the Second Circuit precedents rendering theallegations made in the amended complaintinapplicable. See Oneida Indian Nation v. Madiso.~County, 665 F.3d 408, 443 (2d Cir. 2011) (quoti.~g@~eida [~dian Natio.~ of N. ]~: ~,. City of Sher)~ill, N.Y.,

12337 F.3d 139, 167 (2d Cir. 2003)). Now there is a thirdprecedent further affirming these erroneous facts,Upstate Citizens for Equality v. United States, 841F.3d 556 (2d Cir. 2016).

REASONS FOR GRANTING THE PETITION

THIS IS THE ONLY COURT THAT HASJURISDICTION TO SORT OUT WHETHERTHE STATE INDIAN RESERVATION WASOR IS FEDERAL INDIAN COUNTRY

From the filing of their initial complaint petitionersalleged that the land status of the remaining stateIndian reservation had been wrongly interpreted bythe Second Circuit as Indian country following the Cityof Sherrill ruling of this Court. In the trial courtpetitioners refused to file cross motions for summaryjudgment to preserve their right to contest theerroneous "facts." In pleading after pleading petitionersexplained why the Second Circuit got the land statuswrong. All the way through the Second Circuit appealnone of their facts, even with evidentiary proof, wereeven considered, being overshadowed by theprecedents of the Second Circuit that the reservationwas under federal jurisdiction.

This Court is the only forum that can decidewhether the Second Circuit properly applied its priorruling in City of Sherrill and correct the facts and lawin this case. Then the case can either be remanded orthis Court can decide whether the Secretary has theauthority to do fee to trust. Either way this Court mustdetermine whether the Secretary has the authority toplace these fee lands from the original colony of New

13York, where no federal territory has ever existed, intofederal trust status as federal territorial land.

The Second Circuit has wrongly decided inthree precedents that there was FederalIndian country across the State Indianreservation and made numerous otherfactual errors.

The reality of these proceedings in the DistrictCourt and Second Circuit is that after almost fifty yearsof litigation attempting to restore tribal sovereignty inNew York by the United States there has never beenan impartial disclosure of "facts" by the Secretary ofthe Interior or the United States. These petitioners arejust the latest to be denied a neutral forum in which tochallenge the representation of the United Statesagainst their justifiable expectations of land ownershipand governance. Appellants do not in any way blameSenior Judge Lawrence Kahn for this reality.

Judge Kahn attempted to be as impartial as theprecedents of the Second Circuit allowed him to be. Butas clearly stated in Judge Kahn’s granting of the federalmotion for summary judgment in his Order of March 26,2015, plaintiffs were not allowed to argue that federaljurisdiction over the Oneidas was extinguished by theRemoval Act of 1830 and the Treaty of Buffalo Creekbecause it remains the law in the Second Circuit that"the Oneidas’ reservation was not disestablished."Oneida Indian Nation v. Madison County, 665 F.3d408, 443 (2d Cir. 2011) (quoting Oneida Indian Nationof N.Y.v. City of Sherrill, N.Y., 337 F.3d 139, 167 (2dCir. 2003)). This same precedent wrongly decided thatthe Oneida reservation was also federal "Indiancountry." Id. at 156. These "precedents" prevented the

14trial court from being able to fairly adjudicate this casebelow because the land status and tribal status hadalready been decided and those "facts" could not becontested. From the very beginning of the litigationagainst the Secretary’s Record of Decision claiming hehad the authority to take fee lands in New York intotrust plaintiffs-appellants were trying to fight against acompletely stacked deck of "facts" against them. Factsthat were assumed to be accurate but which were nevertruly litigated.

Even raising the completely new argument fromCarcieri v. Satazar that the Oneida Indian tribe wasnot a recognized tribe under federal jurisdiction in 1934when the Indian Reorganization Act was adopted andtherefore not eligible for the benefit of having landplaced into federal trust status was not allowed to beheard. Judge Kahn tried to hear it and granted thesepetitioner’s motion that the facts surrounding therecognition of the New York Oneida were unclear andordered the Secretary of the Interior to make a finaldetermination as to whether the New York Oneida’swere recognized in 1934 or not.

Initially, the Secretary challenged the authority ofthe trial court and requested that all of the parties,except the Secretary, be required to disclose what"facts" they had about the Oneida’s recognition. Thesepetitioners provided federal documents that onlydefendant Halbritter had been recognized as the leaderof the New York Oneida Nation by Commissioner AdaDeer. They also submitted federal documents fromCalifornia that said that an Ada Deer letter recognizinga tribal leader was not recognition of an Indian tribe bythe department. The Secretary responded to the trialcourt’s order for a specific finding of tribal recognitionwith the M-37029 opinion claiming that this Court’s

15interpretation of 25 U.S.C. § 479 was incorrect inCarcieri and that the Secretary has her own authorityto make her own determination as to the meaning of thestatute. The M-opinion even claims it is entitled to thedeference given in Chevron, U.S.A., Inc. v. NaturalRes. Def. Council, 467 U.S. 837, 842-3 (1984) in allfederal courts and that the trial court was bound toaccept its determination of recognition of the Oneida’sunder the binding new policy of M-37029 now known asthe department’s Carcieri Memorandum. The trialcourt also cites this Court’s decision in City of Sherrillthat stated that the OIN is a federally recognized tribe.City of Sherrill at 203. App. 10a.

The Oneida Indian Nation has never been formallyrecognized since 1838 when the Treaty of Buffalo Creekwas negotiated with the remaining separate parties oftribal members. Petitioners also submitted documentsthey obtained in the National Archives regarding thedecision to allow all of the New York Indian tribes tovote on the adoption of the Indian Reorganization Act.The decision was to allow all of the former New Yorktribes to vote after a major investigation into theirstatus as being primarily under state jurisdiction. All ofthe New York tribes resoundingly rejected theadoption of the IRA including the remaining Oneida.This is apparently why the M-opinion states specificallythat a former rejection of the IRA by a tribe can beignored by the Secretary. This Carcieri M-opinion hasbeen applied in every contested fee to trust situationacross the United States since it was released in thiscase.

These petitioners also submitted many federaldocuments indicating that the Treaty of Buffalo Creekwas executed pursuant to the Removal Act of 1830.Citing the specific language of the Nixon Memorandum

16that was submitted to the trial court as evidence thatthe United States had deliberately misconstrued the"facts" surrounding the treaty of Buffalo Creek and theRemoval Act made no difference. This argument wasspecifically disallowed in the trial court because of thecontrary rulings of the Second Circuit precedents.

Just a few weeks before the summary affirmance inthis case the Second Circuit issued its publishedmemorandum decision against the other remainingparties opposing the same Records of Decision to placethe 14,000 acres into federal trust for the Oneida tribein Upstate Citizens for Equatity v. United States, 841F.3d 556 (2d Cir. 2016). This brand new precedentfurther compounded the factual errors from the earlierprecedents and granted to the Secretary essentiallyunlimited authority to take any lands anywhere intofederal trust for an Indian tribe as summarized in theconclusion of the opinion. Id. at 48-49.

This Court Should Determine whether thereis a Legitimate Source of Federal Authorityto Acquire Federal Territorial Land Within aState.

To examine the current sources of the federalauthority to acquire land within a State a small amountof background from Eighteenth Century common law isrequired. At common law a sovereign could acquire newterritorial lands by discovery, conquest or by purchasewith a treaty of cession. These authorities were allbased upon the authority of the sovereign to wage war.See Johnson v. Mclntosh, 21 U.S. 543 (1823). Usuallya combination of these authorities was used. The Navyor special envoy would discover a new island orcontinent that was occupied by uncivilized natives that

17either were suppressed by force or given major goodsor services for a written cession of land, sometimesboth. Any way these powers are looked at under thecommon law they are true war powers not intended tobe used as normal domestic law. The war powers bydefinition displace the normal domestic laws of acivilized government including its constitutionalprovisions and statutes. See Rasul v. Bush, 542 U.8.446, 480-484 (2004).

Because of this historical reality there was greatconcern by the Founding Fathers and even more by theFramers of the Constitution as to how to prevent thesewar powers to acquire new territory from being used todisrupt the newly asserted concept of self-governance.The first governing documents of the alliance ofcolonies to conduct the Revolutionary War and makethe Articles of Confederation deliberately chose not tomake a strong central government that couldindependently exercise these traditional war powers.

When it became dear that the Articles ofConfederation did not create a workable system of jointgovernance the Framers altered their orders from theirrespective States and took it upon themselves to workout a new kind of constitution with sufficiently dividedpowers to prevent tyranny and to allow a republicanform of government. To do this they divided thetraditional common law war powers between theExecutive, Congress and the States by prohibiting astanding federal army and requiring state militias to beorganized for federal use. Primarily at the request ofGeorge Mason, the Framers strategically placedconstitutional constraints on every conceivable use ofthe war powers. Mason was convinced that the slaveryissue would cause these war powers preserved and inuse in the law regarding slavery and Native Americans

18to overcome whatever constitutional safeguards weremade. See Preface in War Powers by William Whiting(43rd edition). In 1857, the issue of slavery boiled overwith the opinion in Dred Scott v. Sandford, 60 U.S. 393.

The Real Source of Authority for Fee toTrust is the Dred Scott decision

As the attorney for CERA/CERF has beenexplaining to this Court for many years in over fifteenamicus curiae briefs in various Indian cases, the CivilWar Amendments did not reverse the holding in ChiefJustice Taney’s majority opinion in Dred Scott thatnullified the Property Clause, Northwest Ordinanceand Missouri Compromise. Id. at 443-444. The PropertyClause and Ordinance of 1787 were supposed to be themajor restraints set by the Framers to limit the use ofthe territorial war powers.

As previously explained many times, the definitionof Indian country was first developed as a term todenote the temporary loss of control because of Indianhostilities. See generally United States v. Donnelly, 228U.S. 243 (1913); see also Indian Trade and Intercourseact of 1834, 4 Stat. 729. The term was not considered tobe a permanent removal of state jurisdiction.Temporary war powers to deal with specificemergencies do not threaten the constitutionalstructure. Similarly temporary loss of individual rightsand liberties are also allowed. It is only when the use ofthe war powers becomes a permanent or normaldomestic power that self-governance is threatened.

As applied by the Second Circuit in their precedentsin New York, the term Indian country is being appliedas a permanent land status. It is being applied as if itexisted from before the Constitution was even in effect.

19It is no accident that the unification theory flowed outof this definition of Indian country in New York. ThisCourt may not have intended with its decision inOneida I to open this federal full scale assault on theoriginal sovereignty of the State of New York but thatwas the result.

Since the Nixon administration the United Stateshas asserted in litigation that there is no limitation onthe use of the territorial war powers. Previously,CERA has explained this through the deliberatepreservation of these powers by Secretary of WarEdwin Stanton following the Civil War in the Indianpolicy of 1871. See War Powers by William Whiting(43ra edition) p. 470-478. CERA has always stated thatthe source of these unlimited territorial powers was theDred Scott decision.

In the Scott majority opinion, Chief Justice Taneymethodically removed most of the safeguards set up socarefully by the Framers to prevent the nationalgovernment from exercising the war powers as normaldomestic authority. Beginning with the interpretationthat the Property Clause, Art. IV, Sec. 3, C1. 2, onlyapplied to the original colonies and the lands expresslyceded by them, Taney dismantled the requirement "todispose of the territories" that insured that theterritorial war powers could not be permanent. Id. 443-444. He then used this interpretation to reverse theOrdinance of 1787 that had been the contemporaneousinterpretation by the Framers of the Property Clauseas applied in the lands ceded by Virginia and the othercolonies to allow the federal government to be formed.This had to be done by the Chief Justice to change thefact that the slave Dred Scott had lived in a freeterritory technically making him a free man under theterms of the Northwest Ordinance of 1787. Chief

2OJustice Taney then addresses the Missouri Compromiseapplying his interpretation of the Property Clause torule that Congress had no authority to constrict thetaking of the property of slaves into any federalterritory.

The Chief Justice then constructs his own newtheory on the authority of the United States to acquirenew lands that includes a policy to protect slavery2 The13th Amendment ended Taney’s slavery policy but didnothing to alter or address the nullification of theProper~y Clause and the unleashing of unlimitedauthority to acquire land that could be treated asterritory. The Scott opinion is a legal source of theunlimited territorial war power that Taney defined as"the inevitable consequence of the right to acquireterritory." Id. at 444. This is probably the true source ofthe power of the Secretary of the Interior to acquire feelands under state jurisdiction and turn them back intofederal territorial lands even in an original colony thatnever had any federal territory.

The phrase "the inevitable consequence of the rightto acquire territory" was quickly applied in the case ofAbleman v. Booth, 62 U.S. 506 (1859) to limit statecourt jurisdiction and state sovereignty against thefugitive slave act. The phrase survived the Civil Warand was applied to give the United States directauthority for federal eminent domain in Kohl v. UnitedStates, 91 U.S. 367 (1875) just as Taney had stated inthe Scott opinion. Eight years later, at the same time

:~ Because Chief Justice Taney (~reated his own tangentialinterpretation of the Property Clause he did not, address oroverrule any of the prior ruling’s tha~ atx,. the basis (~f l~d~ralismsuch as A’~erica~ l~s~ran(~e (?o~pa~y ~,. Ca ~ler, 26 [J.S. 11 (1828)or Pollard~ Lessee ~.,. Hog~. 44 U.S. 212 (1845).

21Congress was trying to get around the harshness of the1871 Indian policy for the Omaha and Oneida tribes,this same language was used to justify the plenaryauthority over Indian affairs in Congress in UnitedStates v. Kagarna, 118 U.S. 375 (1886) and then Elk v.Wilkins, 112 U.S. 94 (1884). Today, this tangential caseline on federal territorial authority is identifiable byciting as its main precedent one of these four cases.

This language from Dred Scott is also the source ofthe 1871 Indian war power policy codified in theRevised Statutes as 1 Rev. Stat. § 440 et seq. It is thecontinuing and unchecked authority to acquire federalterritory from the Scott opinion that allows the CivilWar powers to be used continuously even after the endof the Civil War was declared. Taney deliberatelycreated a continuing war power authority to preserveslavery into the future, knowingly overriding alldomestic law. This is important in this case because 43U.S.C. § 1457 is an exact copy of 1 Rev. Stat. § 441 witheven more executive heads named to exercise what areunlimited territorial war powers from the 1871 Indianpolicy.

Because of the division created in common lawbetween the domestic and war powers it is likely that asingle Supreme Court opinion deliberately crossing theline to bring the war powers into domestic use coulddominate all other laws. There may have been a reasonthe British called domestic law the law of the land.

Petitioners admit that this is not a normal petitionfor certiorari. How does any lawyer or evenconstitutional scholar fight against a war power thatliterally suspends due process of law.

22This Petition should be granted to examinethe constitutionality of 43 U.S.C. § 1457.

Just as Judge Kahn ruled below 25 U.S.C. § 465 isnot the real source for the 25 CFR Part 151 regulationsunless 25 U.S.C. § 9 and 43 U.S.C. § 1457 are includedwithin the authority of the Secretary to create andexercise fee to trust. App. 19a. Statute 25 U.S.C. § 9speaks of the Indian trust relationship. Generally, thespecial Indian trust relationship in and of itself is not adanger to the constitutional structure or the liberty ofall Americans. Nor is the definition of Indian country.As was explained in the Nebraska amicus brief byCERF last year, the 1871 policy also changedsignificantly the definition of Indian country to what isgenerally used today in 18 U.S.C. § 1151. See 2 Rev.Stat. § 2145. With this Court’s opinion in Alaska v.Native Village of Venetie, 522 U.S. 520 (1998) theIndian country definition from the 1871 policy wasspecifically limited and has been adhered to by theSecretary of the Interior.

Trying to protect the Indians was and is a laudablegoal. For almost 100 years following the Civil War andReconstruction these war powers were sparingly used.Certainly, the unlimited authority to acquire territoryis the real source of what we now call the federalreserved rights doctrine. But even this power wassparingly used until the mid 1950’s when VicePresident Nixon and William Veeder in theDepartment of Justice connected.

CERA/CERF has written a great deal in amicusbriefs about how Nixon and Veeder combined to alterour government using the 1871 Indian policy before weknew the exact connection into how it was expanded toaffect all domestic law. That exact connection is 43

23

U.S.C. § 1457 that is part of the GovernmentReorganization Act of 1965, 80 Stat. 378 et seq. This lawwith 43 U.S.C. § 1457 as its linchpin has the authority todestroy the States using the 1871 Indian policy as itsauthority.~

II. THIS CASE FROM THE ORIGINAL COLONYOF NEW YORK PRESENTS A UNIQUEOPPORTUNITY TO RESET THE PROPERTYCLAUSE

This Court has the ultimate remedy foroverruling the Dred Scott v. Sandford interpretation ofthe Property Clause that was laid out by AbrahamLincoln himself in his most famous debate with SenatorStephen Douglas in Galesburg, Illinois. Lincolnarticulated how a federal constitutional amendmentrequiring government to equally protect all citizenswould overrule and correct the Scott opinion. This goalbecame reality with the passage of the 14th

Amendment. The only exception was that the Indianswere deliberately left out to preserve the powers usedin the Civil War as engineered after Lincoln’sassassination by Edwin Stanton, the Secretary of War.

CERA understands that applying the 14th

Amendment as requested in the complaints in this caseby petitioners and especially for Melvin Phillips, the

4 The attorney for CERA was surprised that Nixon was involvedin a 1965 law. Leonard (]arment wrote of how Senator RobertKennedy and President Johnson req~ested Nixon’s assist:ante tofind a way to authorize Medi(:are and Medicaid. CERA has notflmnd proof of William Vceder’s direct inw)lwm~ent bnt 43 U.S.C. ~1457 is the statutory w~rsion of t:he expansion of the reservedrights do~.trinc that Veeder dew,loped t~n’ Arizo’na ,,. (7,/~/br,ia,o7o U.S. 546 (1963).

24last full blood New York Oneida Indian and petitionerin this case, could be an overwhelming change in federalIndian policy. CERA wants current federal Indianpolicy changed and for all Native Americans to haveequal rights but is very concerned about a drasticalteration that would disrupt all current federal law.

The reason New York was such an important targetfor the Nixon Indian policy gives this Court an almostunique opportunity to correct what Chief Justice Taneydeliberately broke with this case. In the Scott opinion,Taney said the only place the Property Clause wasintended to apply was within the original colonies. Scottat 443. This Court can use this case to define how theoriginal meaning of the Property Clause applies in NewYork. In this case the fee to trust authority of theSecretary under 43 U.S.C. § 1457 is openly stated. Title43 is the federal public land law title that should notapply in New York if the Property Clause is given itsoriginal meaning.

The way to restore the constitutional structure andsovereignty of the State of New York is simply to applythe original meaning of the Property Clause and say itapplies in New York or any other original colony.Explaining how the state Indian reservations in NewYork cannot be federal Indian country or subject todiminishment or disestablishment by Congress underthe corrected Property Clause analysis would overrule"the inevitable consequence of the right to acquireterritory" language that is the real authority for fee totrust and the 25 CFR Part 151 regulations. TheProperty Clause should prevent the federalgovernment from acquiring federal territory in asovereign state.

Given the current political atmosphere, reversingthis language in the Scott opinion by itself may not be

25sufficient to enforce an opinion overruling the 25 CFRPart 151 regulations as unconstitutional. This changes ifa reinvigorated Property Clause is linked to therequirement of the equal protection of the laws asLincoln opined. CERA respectfully suggests thatinstead of applying a full scale 14th Amendment analysisto completely overrule this part of the Scott opinionthat this Court simply cite its prior decision in Saenz v.Roe, 526 U.S. 489, 502-503, Fn 15 (1999) that hasalready applied the 14~h Amendment to the Scottopinion in a footnote. This Court also has its recentdecision in Puerto Rico v. Sanchez Valle, 136 S.Ct. 1863(2016) to use to back up such a ruling. This case doesnot require a full application of the 14~ Amendment tobe set right. All this case requires is for the 14thAmendment to be used to reinforce the limitations inthe Property Clause.

The restored limitations in the Property Clausethen can become the basis for finding the 25 CFR Part151 regulations ultra vires. The Property Clauseexpressly requires Congress to dispose of theterritories. This clause was traditionally interpreted torequire all federal territorial land ~vithin a state to besold once the state was admitted to the union. Allowingthe Secretary of the Interior or Congress to removestate jurisdiction over land and make it back intofederal territory defeats the limitation to dispose of theterritories. Petitioners fully acknowledge that this is noway would alter how the United States can acquireneeded land under the Enclave Clause, Art. I, Sec. 8,C1. 17.

III.26

THE SECRTARY CANNOT HAVEUNLIMITED AUTHORITY TO ACQUIREFEDERAL TERRITORY IF THE EQUALFOOTING DOCTRINE STILL EXISTS.

The Secretary of Interior asserts the same powersused to protect slavery before the Civil War forasserting the plenary authority to promote tribalsovereignty. As long as the 1871 Indian war powerpolicy is the basis of the federal authority the Secretaryis exercising through 43 U.S.C. § 1457 the federalsolicitors will continue to ignore all other laws and theopinions of this Court as they did in this case with theCarcieri M-37029 opinion.

Congress may also not want to have these plenarypowers limited. This Court has known for more than 20years that the Nixon Indian policy was threateningstate sovereignty and state jurisdiction. See Nevada v.Hicks, 533 U.S. 353 (2001). This Court has realized theconstitutional consequences of allowing Congress toreclassify land it has given to a state back into beingfederal territory. This Court has already ruled thatCongress has no authority to alter grants of territorialland made to States and warned about the significantconstitutional issues raised by such a claim of power. InHawaii v. Office of Hawaiian Affairs, 556 U.S. 163, 176(2009), this Court stated the Congressional Act at issue"would raise grave constitutional concerns if itpurported to ’cloud’ Hawaii’s title to its sovereign landsmore than three decades after the State’s admission tothe Union."

There is technically no difference between theHawaii analysis and allowing the Secretary to piece bypiece remove land from state jurisdiction under the 25U.S.C. Part 151 regulations. As this Court knows the

27"pieces" being removed under fee to trust started as afew acres and under the Obama administration grew tobe hundreds of thousands of acres.

This Court limited Congressional authority tocontinue an anachronism by preventing the Congressfrom continuing to treat the Southern States as unequalsovereigns over voting laws in Shelby County v.Holder, 133 S. Ct 2612 (2013). Shelby County struckdown as unconstitutional the Voting Rights Actprovision requiring preclearance. The 1871 Indian warpower policy is now an anachronism that preventsNative Americans from having any constitutionalrights. See Santa Clara Pueblo v. Martinez, 436 U.S.49(1978) citing Elk v. Wilkins, 112 U.S. 94 (1884). The1871 Indian Policy is contrary to the historical specialtrust relationship between the United States andIndian tribes. See generally United States v. Lara, 541U.S. 193, 201 (2004).

The authority to acquire federal territory underthe Dred Scott analysis is the only legal basis for thefederal government to be able to treat a sovereign stateunequally by citing how it was admitted to the union orretroactively changing how it was admitted as hasactually happened after 50 years of litigation in NewYork. Under the current case law of the Second Circuitwhen New York was admitted to the union the stateIndian reservations were federal Indian country. Thiscompletely negates Fletclter v. Peck, 10 U.S. 87 (1810)which stated that the original colonies were theguardians over their Indian tribes and the receivers ofthe preemptive authority or Indian title. Under theBritish doctrine of discovery conquered lands remainedunder military control as long as the right ofpreemption was maintained. Jol~,~zson v. McI.~ztosl~, 21U.S. 543, 588-90 (1823).

28If the original states cannot protect their

sovereignty from this unlimited power of the federalgovernment to acquire federal territory within theirboundaries what is left of Equal Footing Doctrine toprotect any states admitted by Congress into theunion?

This Court can apply its analysis from ShelbyCounty to overrule the 1871 Indian policy and 43 U.S.C.§ 1457 as an anachronism that should not exist in the21~t Century. As in Shelby County it can then apply itsown interpretation of the 14th Amendment protectionsto rebalance the national versus state interests. Unlessthis Court does something significant to confront theunlimited authority to acquire federal territory, everyopinion this Court writes in Indian law that is not whatthe United States wants will be subject to the sameconstant barrage of new legal arguments that NewYork has faced for more than 40 years.

CONCLUSION

The petition for a writ of certiorari should begranted.

Respectfully submitted,

James J. Devine, Jr.Counsel of Record128 Main StreetOneida, New York 13421(315) 363-6600