Law360 Article: Feds Urge Justices To Reject Petition Over Oneida Land 7/10/17

Feds Urge Justices To Reject Petition Over Oneida Land

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Law360, New York (July 10, 2017, 7:50 PM EDT) — The federal government has urged the U.S. Supreme Court not to review a Second Circuit decision that the U.S. Department of the Interior properly took land surrounding New York’s Turning Stone Resort and Casino into trust for the Oneida Indian Nation, saying the law authorizing the land acquisition isn’t unconstitutional.

New York nonprofit Upstate Citizens for Equality Inc. argued in an April 26 petition to the high court that a Second Circuit panel’s November decision wrongly approved the DOI’s decision to intrude on state sovereignty and violate the U.S. Constitution’s enclave and commerce clauses by taking thousands of acres of land into trust for the tribe under the Indian Reorganization Act.

In its June 30 brief in opposition to the petition, the government said that neither clause prevented Congress from delegating authority to the department to take tribal land into trust under Section 5108 of the IRA, and that Congress’ authority with respect to tribes has “consistently been understood to include power over the acquisition, sale, and regulation of Indian land.”

“Given the long, unbroken history of federal supervision of tribal lands, it would be surprising for the courts to entertain any doubt about the constitutionality of Section 5108,” the government said. “And, in fact, the courts of appeals have uniformly upheld Section 5108 against various constitutional challenges.”

A unanimous three-judge Second Circuit panel found in November that neither state sovereignty nor the U.S. Constitution prevented the federal government from taking more than 13,000 acres of land in central New York on behalf of the Oneida tribe, even if doing so affected the state’s jurisdiction over the area.

The decision was a blow to two consolidated lawsuits filed against the DOI and its secretary in 2008 by the Upstate Citizens for Equality and several state residents, as well as the New York towns of Verona and Vernon.

In January, the Second Circuit denied a petition for panel rehearing or rehearing en banc that the group asked for regarding its November decision.

In its April petition, Upstate Citizens contended that the circuit court’s decision would grant “near tyrannical power” to unelected federal agencies and tribes and would expand the concepts of regulation and commerce well beyond their original meaning.

“The Second Circuit will have made tribal entities the beneficiaries of legislative favoritism to the point where tribes would be allowed to operate virtually any business in any state and avoid that state’s employment law, health and safety law, tax law, environmental protection law and on and on,” the group said in its petition. “It is up to the Supreme Court to correct this blatant and unconstitutional injustice.”

The group also contended that the Oneida reservation, which was created by a 1794 federal treaty, had later been disestablished by Congress.

The government insisted in its brief that Congress didn’t exceed its constitutional authority in enacting the IRA’s land-into-trust provisions.

Many of the cases relied on by the group deal with the interstate commerce clause of the Constitution, but that clause is different in purpose and application from the Indian commerce clause, which is designed to give Congress plenary power to enact legislation dealing with Indian issues, the government said.

And the group provides “no authority for the novel proposition” that the IRA’s land-into-trust provision violates state sovereignty, according to the brief.

While the Constitution’s enclave clause limits federal power in relation to state power, that limitation doesn’t apply to Indian reservation lands because the state retains authority over them, the government said.

In addition, the group waived its claim that the Oneida reservation was disestablished by failing to make that argument to the Second Circuit, the government said. But even if it hadn’t, that issue wouldn’t impact the result of the current case because the interior secretary has authority over both on-reservation and off-reservation tribal land-into-trust requests, and specifically noted that the Oneida tribe’s request satisfied criteria for either type of acquisition, the government said.

And the Supreme Court already ruled in a 2005 decision that the Oneida reservation hadn’t been disestablished or diminished, according to the brief.

Representatives for the parties were not immediately available for comment Monday.

On June 23, the New York town of Vernon also filed a petition with the Supreme Court seeking to overturn the Second Circuit’s ruling, claiming that tribal trust lands are used to build and operate casinos, and that the revenues from those operations are used to purchase even more land that the tribes seek to take into trust at the expense of local and state governments.

A petition by the Central New York Fair Business Association of another Second Circuit decision that was based on the same New York district court decisions as the current cases was rejected by the Supreme Court in May.

Upstate Citizens for Equality is represented by David Brown Vickers.

The federal government is represented by Jeffrey B. Wall, Jeffrey H. Wood and J. David Gunter II.

The case is Upstate Citizens for Equality Inc. et al. v. United States et al., case number 16-1320, in the U.S. Supreme Court.

–Additional reporting by Adam Lidgett, Dorothy Atkins and Zachary Zagger. Editing by Katherine Rautenberg.