701 F.3d 101 (2nd Cir. 2012), 08-1194-cv, State of New York v. Shinnecock Indian Nation

Docket Nº:08-1194-cv.
Citation:701 F.3d 101
Party Name:State of NEW YORK, New York State Racing and Wagering Board, and New York State Department of Environmental Conservation, Plaintiffs-Appellees, v. SHINNECOCK INDIAN NATION, Lance A. Gumbs, Randall King, Karen Hunter, and Frederick C. Bess, Defendants-Appellants. Town of Southampton, Consolidated-Plaintiff-Appellee,
Attorney:Denise A. Hartman, Assistant Solicitor General (Eric T. Schneiderman, Attorney General of the State of New York, Barbara D. Underwood, Solicitor General, Andrew D. Bing, Deputy Solicitor General, on the brief), Albany, NY, for Plaintiffs-Appellees. Michael S. Cohen (David M. Schraver, David H. Te...
Judge Panel:Peter W. Hall, Circuit Judge, joined by Jos
Case Date:November 28, 2012
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit

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701 F.3d 101 (2nd Cir. 2012)

State of NEW YORK, New York State Racing and Wagering Board, and New York State Department of Environmental Conservation, Plaintiffs-Appellees,

Town of Southampton, Consolidated-Plaintiff-Appellee,


SHINNECOCK INDIAN NATION, Lance A. Gumbs, Randall King, Karen Hunter, and Frederick C. Bess, Defendants-Appellants.

No. 08-1194-cv.

United States Court of Appeals, Second Circuit.

November 28, 2012

Denise A. Hartman, Assistant Solicitor General (Eric T. Schneiderman, Attorney

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General of the State of New York, Barbara D. Underwood, Solicitor General, Andrew D. Bing, Deputy Solicitor General, on the brief), Albany, NY, for Plaintiffs-Appellees.

Michael S. Cohen (David M. Schraver, David H. Tennant, on the brief), Nixon Peabody LLP, Jericho, NY, for Consolidated-Plaintiff-Appellee.

Christopher H. Lunding (Evan A. Davis, Ashika Singh, on the brief), Cleary Gottlieb Steen & Hamilton LLP, New York, NY, for Defendants-Appellants.


Following disposition of this appeal on June 25, 2012, an active judge of the Court requested a poll on whether to rehear the case in banc. A poll having been conducted and there being no majority favoring in banc review, rehearing in banc is hereby DENIED.

Peter W. Hall, Circuit Judge, joined by José A. Cabranes and Rosemary S. Pooler, Circuit Judges, dissents by opinion from the denial of rehearing in banc.

HALL, Circuit Judge, with whom Judge CABRANES and Judge POOLER join, dissenting from the denial of rehearing en banc :

I respectfully dissent from the majority's vote to deny en banc review. This appeal has raised a question of exceptional importance in our Circuit— and indeed, in the nation— regarding Indian property rights and tribal access to federal courts when tribes are facing state or local regulatory enforcement actions that, of necessity, involve the status of aboriginal title to Indian-held lands. The question presented is this: Can an Indian tribe remove to federal court a State-initiated regulatory suit affecting Indian property when the very essence of the controversy is whether federal law deprives the State of any authority over that property? The district court answered this question in the affirmative, deciding the case on the merits. A split panel of this Court answered in the negative, vacated the decision of the district court, and instructed that the case be remanded to state court. In so doing we have decreed that in a class of cases involving state and local enforcement of land use laws against Indian tribes, the status of a tribe's title to the affected real property will henceforth be decided by state courts, not federal courts. Such decisions regarding title will be made in the context of cases in which the states will understandably be at their most aggressive, seeking to exercise control over how real property within the boundaries of state borders may be used.

As our precedent now stands, should a question arise in the context of a state or local regulatory enforcement action concerning aboriginal title to Indian-held lands, Indian tribes in Connecticut, New York, and Vermont no longer have access to a federal forum under 28 U.S.C. § 1331 to resolve questions of title. In fact, the majority's decision ensures that every state or local regulatory enforcement action brought against an Indian tribe occupying tribe-owned land but alleged to be occupying non-" Indian land," 1 whether

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commenced initially in federal court or commenced in state court and removed to federal court, will be dismissed for want of federal subject-matter jurisdiction. The net effect is that questions regarding Indian-land status will necessarily be resolved by a state court— a result clearly at odds with over two-hundred years of federal Indian law jurisprudence, which has evolved in large part to address and accommodate the historically thorny nature of tribal-state relations and a fear of " home-cooking" in state courts, particularly as to issues involving the assertion of state jurisdiction over Indian tribes and tribal land. See Organized Village of Kake v. Egan, 369 U.S. 60, 71-75, 82 S.Ct. 562, 7 L.Ed.2d 573 (1962) (surveying the evolution of " [t]he relation between the Indians and the States" over the course of United States history and the attendant metamorphosis of state jurisdiction over tribes); cf. Arizona v. San Carlos Apache Tribe of Ariz., 463 U.S. 545, 559 n. 10, 103 S.Ct. 3201, 77 L.Ed.2d 837 (1983) (describing legislative intent behind 28 U.S.C. § 1362, which provides original federal court jurisdiction over civil actions brought by Indian tribes, as " reflect[ing] a congressional policy against relegating Indians to state court when an identical suit brought on their behalf by the United States could have been heard in federal court" (emphasis added)). These concerns should inform our interpretation of § 1331, which Congress passed at a time when states were often (quite literally) the " deadliest enemies" of Indian tribes. United States v. Kagama, 118 U.S. 375, 384, 6 S.Ct. 1109, 30 L.Ed. 228 (1886); see Act of Mar. 3, 1875, § 1, 18 Stat. 470.

Because this case involves a question of exceptional importance— i.e., whether, in the context of a regulatory enforcement action brought by state and local authorities, a challenge to a tribe's claim of aboriginal title to tribe-held land raises a federal question— we should have revisited the issue en banc. 2 We should also have answered the question in the affirmative.

As precedent, the result in this case has a significant impact on the rights of other tribes in our Circuit to access a federal forum to resolve questions of title when the core issue in play is whether under federal law that property is Indian land. Even worse, this precedent now puts into question whether tribes may bring anticipatory suits seeking declaratory judgments concerning their land rights. By refusing to proceed en banc and rectify this result, we now risk that lower courts will read the majority opinion as requiring dismissal for lack of jurisdiction under § 1331 in any such declaratory action arising either in response to or in anticipation of a state enforcement action affecting tribal land. See Franchise Tax Bd. v. Constr. Laborers Vacation Trust, 463 U.S. 1, 16, 103 S.Ct. 2841, 77 L.Ed.2d 420 (1983) (noting that "

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Skelly Oil [ v. Phillips Petroleum Co., 339 U.S. 667, 70 S.Ct. 876, 94 L.Ed. 1194 (1950) ] has come to stand for the proposition that ‘ if, but for the availability of the declaratory judgment procedure, the federal claim would arise only as a defense to a state created action, jurisdiction is lacking’ " (citation omitted)).

Neither party having incentive to pursue this issue further,3 I am troubled that this Court has chosen not to preserve the federal forum to which Indian tribes are entitled when they face state enforcement actions affecting tribe-owned property. Federal policy has consistently recognized the importance " of Indian sovereignty and the congressional goal of Indian self-government, including its ‘ overriding goal’ of encouraging tribal self-sufficient and economic development." California v. Cabazon Band of Mission Indians, 480 U.S. 202, 216, 107 S.Ct. 1083, 94 L.Ed.2d 244 (1987) (quoting New Mexico v. Mescalero Apache Tribe, 462 U.S. 324, 334-35, 103 S.Ct. 2378, 76 L.Ed.2d 611 (1983)); see also 25 U.S.C. § 450; 25 U.S.C. § 1451. Our reluctance to assess " arising under" federal-question jurisdiction under Grable & Sons Metal Products, Inc. v. Darue Engineering & Manufacturing, 545 U.S. 308, 125 S.Ct. 2363, 162 L.Ed.2d 257 (2005), on en banc review should not insulate from review the majority's abandonment of our longstanding recognition that " ‘ [u]nquestionably it has been the policy of the federal government from the beginning to respect the Indian right of occupancy, which could only be interfered with or determined by the United States.’ " See Oneida Indian Nation of N.Y. State v. County of Oneida, 414 U.S. 661, 668-69, 94 S.Ct. 772, 39 L.Ed.2d 73 (1974) (quoting Cramer v. United States, 261 U.S. 219, 227, 43 S.Ct. 342, 67 L.Ed. 622 (1923)). Worse, I believe that we have now potentially disturbed Oneida in a way the Supreme Court did not in Oklahoma Tax Commission v. Graham, 489 U.S. 838, 109 S.Ct. 1519, 103 L.Ed.2d 924 (1989) (per curiam). Questions involving the possessory rights of tribes with respect to lands held by aboriginal title are not the equivalent of wielding tribal immunity as an affirmative defense. See Oneida, 414 U.S. at 667-70, 94 S.Ct. 772 (holding that questions concerning the " possessory rights of Indian tribes to their aboriginal lands" arise under federal law within the meaning of 28 U.S.C. § 1331).

The jurisdictional question presented in this case takes on special importance given the significant and dispositive federal issues appearing on the face of the State of New York's and Town of Southampton's complaints. When, as here, there is a complaint that " assert[s] a current right to possession conferred by federal law, wholly independent of state law," see id. at 666, 94 S.Ct. 772, Oneida instructs that such claims " [do] not arise solely in anticipation of a defense," especially " [g]iven the nature and source of the possessory rights of Indian tribes to their aboriginal lands...." Id. at 666-67, 94 S.Ct. 772; see also J.A. 60, ¶ ¶ 45, 47 (State's complaint); id. at 3993, ¶ 7 (Town's complaint). For Oneida to retain its meaning, such questions of possessory rights must be understood to trigger federal-question jurisdiction in property actions regardless of a tribe's

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status as plaintiff or defendant. The majority holds otherwise, citing Graham, 489 U.S. at 841, 109 S.Ct. 1519, in which the Supreme Court, too, did not disturb Oneida. Unlike in Graham, however, we are not considering here what a state can or cannot do with...

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