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#904578 - 10/25/08 09:55 PM Trust Lawsuit
Rich_Tallcot Offline
Senior Member

Registered: 01/19/03
Posts: 4501
Loc: Greeneville, TN
Fee to Trust - UCE lawsuit - plain language
Lawsuit filed by Upstate Citizens for Equality, Inc. David Vickers, Scott Peterman, Richard Tallcot, and Daniel T. Warren.
Case # 08-CV-00633
http://www.upstate-citizens.org/USDC-UCE-v-US.htm

FIRST CLAIM FOR RELIEF - Plain language

The defendants have no authority to create federal public domain land or federal Indian land in the State of New York, an original Colony, which retains its preemptive rights to all lands within its exterior boundaries. For unknown reasons, New York State did not make this argument in their lawsuit.

Based upon the Indian Reorganization Act as passed into law, the Sherrill ruling as ruled upon by the U.S. Supreme Court, and the United States Constitution, the defendants are ignoring the law, defying the U. S. Supreme Court, violating the U.S. Constitution and acting in excess of their authority.

Only the acquisition methods under the IRA, as enacted by Congress, were delegated to the Secretary of the Interior to accept lands into federal trust status for an Indian tribe. This did not include any delegation of authority for lands purchased by an Indian Tribe to become federal trust lands.

Congress explicitly removed the provision from the original IRA allowing tribes to purchase their own lands, placed a limitation of land purchases only by Congress and only up to $2 million a year. This was done purposely to protect the non tribal interests. The DOI is accepting lands not purchased by Congress and exceeding $2 million a year. Subjecting the purchase of lands to be restored to Indian Tribes to express Congressional appropriations was and is an express limitation on the discretion of the Secretary of the Interior required by the Property Clause that vests sole discretion in the management of property and acquisition of territory in the Congress.

Furthermore, ONLY tribes that accepted and restructured under the IRA within one year, extended to two years, after its passage, would be allowed the benefits under it. The Iroquois tribes did not accept the IRA, so they do not qualify.

The IRA designates different requirements in Section 5 for acquired additional lands from Section 3 for "restored" lands. Restored lands pursuant to Section 3 could only be returned to their tribal territorial status under the Property Clause of the Constitution if it was deemed by the Secretary of the Interior to be in "the public interest." Is it in the public interest to remove Constitutional rights?

Property Clause Article 4 Section Three Clause 2 The Congress shall have power to dispose of and make all needful rules and regulations respecting the territory or other property belonging to the United States; and nothing in this Constitution shall be so construed as to prejudice any claims of the United States, or of any particular state.

The only other clause of the Constitution of the United States that allows the federal government to purchase land is the Enclave Clause.

Enclave Clause Art. I Sec. 8, Cl. 17 To exercise exclusive legislation in all cases whatsoever, over such District (not exceeding ten miles square) as may, by cession of particular states, and the acceptance of Congress, 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, dockyards, and other needful buildings;--
Lands purchased under the Enclave Clause require the consent of the Governor of the State for federal jurisdiction to vest. No other clauses exist in the Constitution for the federal government to acquire ownership of land.

Expanding the methods by which lands can be conveyed into trust status violates the plain meaning of the appropriative restriction of Section 5 of the IRA. Only Congress can extend the federal Indian trust to include lands purchased by or donated to an Indian tribe. Other acts of Congress cannot be interpreted by the Secretary of the Interior as authorizing an expansion of his authority to accept lands into trust.

Lands taken into federal trust that are not purchased pursuant to Section 5 of the IRA cannot restore tribal sovereignty unless the fee title to the lands and aboriginal title are assumed to become unified as described in the decision of City of Sherrill v. Oneida Indian Nation, (2005). SCOTUS explicitly rejected that theory.

The assumption that federal Indian common law authorized the Secretary of the Interior to accept lands purchased by an Indian Tribe into federal trust status was in reality, unilaterally promulgated by the Secretary of the Interior, without the proper authorization from Congress. The Secretary of the Interior wrote his own regulations without Congressional oversight.

In fact, accepting fee land into federal trust status was declared unconstitutional in Department of the Interior v. South Dakota, (1996). It was based on the remand of this case that the new regulations under were drawn.

The new regulations for were promulgated in 2004. The Sherrill decision cites explicitly to the new regulations as "Recognizing these practical concerns, Congress has provided a mechanism for the acquisition of lands for tribal communities that takes account of the interests of others with stake in the area's governance and well-being."

The Sherrill Court expressly cites to the 2004 regulations as "sensitive to the complex interjurisdictional concerns that arise when a tribe seeks to regain sovereign control over territory." These jurisdictional concerns are not addressed by the defendant's limited Final EIS.

Before approving an acquisition, the Secretary must consider, among other things, the tribe's need for additional land; the purposes for which the land will be used; the impact on the State and its political subdivisions resulting from the removal of the land from the tax rolls; and jurisdictional problems and potential conflicts of land use which may arise.

Lastly, the Oneidas like all Indians in New York were not subject to the allotment policy that the trust process was intended to reverse.

The United States Court of Appeals for the Eighth Circuit held "that an intelligible principle exists in the statutory phrase 'for the purpose of providing land for Indians' when it is viewed in the statutory and historical context of the IRA. The statutory aims of providing lands sufficient to enable Indians to achieve self-support and ameliorating the damage resulting from the prior allotment policy sufficiently narrow the discretionary authority granted to the Department. We therefore affirm the grant of summary judgment for the Department on the nondelegation doctrine challenge." South Dakota v. United States DOI, (8th Cir. 2005)

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

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#904609 - 10/25/08 10:55 PM Re: Trust Lawsuit [Re: Rich_Tallcot]
Rich_Tallcot Offline
Senior Member

Registered: 01/19/03
Posts: 4501
Loc: Greeneville, TN
Fee to Trust UCE's lawsuit - plain language: SECOND CLAIM FOR RELIEF

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

The Indian Commerce Clause's grant of authority to the federal government, and preemption of state authority, extends only to activities occurring in "Indian country."

Indian Commerce Clause art. I, Section 8, cl. 3 To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;

It has been held that Congress has no authority to abrogate a state's sovereign immunity from suit granted by the Eleventh Amendment of the U.S. Constitution pursuant to the Indian Commerce Clause. Congress' power under the Indian Commerce Clause should also be limited by the U.S. Const. in which the State's consent is a necessary element to the removal of land from a State's sovereign control particularly if the federal government's intent is to cede sovereign control to any degree to another sovereign.

In this case the State of New York not only withheld its consent, it opposed the taking of the subject land into trust by the United States.

The central question of how modern Courts were to view the Indian Commerce Clause had its roots, ironically enough, in criminal law (ruling that federal laws don't apply to Indian reservations if the State in question hasn't granted its legislative permission for the federal government to exercise jurisdiction).

The overwhelming conclusion was that the federal laws could pre-empt State laws only if the federal legislation could be justified on Indian "commerce" grounds and only if the State in question had granted jurisdictional authority over otherwise sovereign State controlled land, usually granted in the State's application for Statehood. The State cession of jurisdiction component has been ignored by the BIA, since the BIA has engaged in preferential pro-Indian hiring practices since the early 1970's. The BIA and the decision-makers therein are really Indian advocates, not guardians of proper federal responsibilities vis a vis the States.

The first sentence of the body of the United States Constitution provides that, "All legislative Powers herein granted shall be vested in a Congress of the United States . . . ." According to the nondelegation doctrine, "Congress may not constitutionally delegate its legislative power to another branch of Government". The nondelegation doctrine is an underpinning of separation of powers jurisprudence. Congress is therefore not permitted to abdicate or to transfer to other branches of government its essential legislative function.

The Indian Reorganization Act states that, "[t]he Secretary of the Interior is hereby authorized, in his discretion, to acquire . . . any interest in lands . . . within or without existing reservations . . . for the purpose of providing land for Indians." Designating legislative authority to the Executive branch without Congressional oversight is unconstitutional.

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#904616 - 10/25/08 11:11 PM Re: Trust Lawsuit [Re: Rich_Tallcot]
Rich_Tallcot Offline
Senior Member

Registered: 01/19/03
Posts: 4501
Loc: Greeneville, TN
Fee to Trust UCE's lawsuit - plain language: THIRD CLAIM for Relief

Defendants acted in an arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law and without observance of procedure required by law in rendering its determination;

The Indian Reorganization Act of 1934 is not properly before the Defendants in that the application was presented by Raymond Halbritter as Nation Representative, who was removed from this position on or about May 21, 1995.

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

According to the BIA, they represent only the interests of the Indian tribe as defined by the Tribe submitting the fee to trust application. This qualifies as a conflict of interest and compromised the objectivity and integrity of the administrative process to such an extent that the presumption of agency regularity is rebutted and more exacting scrutiny should be used to review its determination herein.

The application was incorrectly filed as on reservation since the land the OIN seeks to have taken into trust is not within an existing reservation.

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

As reflected in the Defendants own land to trust regulations, an "Indian reservation" is an area in which a tribe is "recognized by the United States as having governmental jurisdiction . . .".

By deciding that the OIN has no right to exercise tribal sovereignty on fee land within the former reservation, the Supreme Court found that the land lacked reservation (and Indian country) status. The Court's language, which repeatedly characterized the reservation in the past tense, is entirely consistent with that conclusion (See Sherrill (describing OIN land as land "that once composed the Tribe's historic reservation"); Even before Sherrill the United States had repeatedly recognized that with the possible exception of the 32 acres addressed in United States v. Boylan, the area set aside in the Treaty of Fort Schuyler is not today a reservation. Indeed, Justice Stevens, in dissent, recognized that the majority had "effectively proclaimed a diminishment of the Tribe's reservation." Sherrill.

The Second Circuit decision in Cayuga Indian Nation v. Pataki, (2d Cir. 2005), confirms that the Sherrill decision should not be narrowly cabined but should be accorded its necessary and logical import. As the Second Circuit recognized, Sherrill "dramatically altered the legal landscape against which we consider plaintiff's claims." (Cayuga). The Court there read Sherrill to read that there is also no Cayuga Indian reservation in Cayuga or Seneca Counties.

There is no valid statutory authority for the Defendants to take the land into trust that the OIN seeks to have them to.

Removing over 13,000 acres of land from local tax rolls so that the OIN can operate a massive illegal casino and entertainment complex that produces $100 million of annual revenue for a tribe with a claimed membership of approximately 1,000 hardly fulfills the intended function of § 465 if it is even applicable. The OIN has the capacity to use the land it owns in an economically productive way without having it held in trust status.

There is no reason why the OIN needs to, or should, enjoy the significant economic advantages over surrounding non-Indian business that come with having its land exempt from state and local taxes and, potentially, state and local regulatory requirements.

The OIN's application omits any mention of the fact that some of the land which it seeks to have taken into trust is the site of a Class III gaming facility that is being operated in blatant violation of the Indian Gaming Regulatory Act. The OIN's operation of the casino is unlawful because it is being operated without a valid tribal-state compact and on land that is not gaming.

The Record of Decision in addressing the loss of tax revenue states that taxing the Turning Stone Casino & Resort is "contrary to the spirit, purpose, and letter of The Indian Gaming Regulatory Act" (IGRA). However it fails to consider that this facility is on fee land on which the OIN has no right to exercise tribal sovereignty on and which is not gaming eligible land and in the absence of a valid tribal-state compact as required. Since this facility is not authorized by IGRA, IGRA cannot prohibit its taxation.

Additionally the Record of Decision fails to adequately address the payment of taxes levied against the subject property prior to the United States taking title sufficiently for clean title to pass.

The laws of the State of New York require one who challenges the amount of property taxes due to pay first, litigate later, not provide bond or letter of credit, litigate later. Until these taxes are paid and satisfied they act as a lien on the property which must be satisfied in order to pass title to the property.

Defendants failed to adequately consider the loss of taxes actually assessed and paid on the property as required. "In order to show consideration with respect to Appellant, BIA must, at a minimum, discuss whether Appellant has taxing authority; what, if any, taxes were assessed by Appellant in regard to these properties, or what, if any, taxes were received by Appellant in regard to each property; and the impact, if any, on Appellant of the removal of the tracts from the tax rolls."

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

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#904621 - 10/25/08 11:21 PM Re: Trust Lawsuit [Re: Rich_Tallcot]
Rich_Tallcot Offline
Senior Member

Registered: 01/19/03
Posts: 4501
Loc: Greeneville, TN
Fee to Trust UCE's lawsuit - plain language: FOURTH CLAIM for Relief

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

Under IGRA, an Indian tribe may conduct Class III if - and only if - it does so in conformance with a "tribal-state compact" entered into between the tribe and the state. Absent a compact, gambling is illegal under New York and federal law.

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

Defendants have nonetheless proceeded with their plans to take land into trust for Class II and Class III gambling without addressing this legal problem. A person suffering a legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review under the Administrative Procedures Act (APA).

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

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

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#904626 - 10/25/08 11:39 PM Re: Trust Lawsuit [Re: Rich_Tallcot]
Rich_Tallcot Offline
Senior Member

Registered: 01/19/03
Posts: 4501
Loc: Greeneville, TN
Fee to Trust UCE's lawsuit - plain language: FIFTH CLAIM for Relief

Defendants have violated the statutory procedures mandated by IGRA for permitting gambling without a tribal-state compact on Indian lands acquired after October 17, 1988.

In Saratoga County Chamber of Commerce v. Pataki, the New York Court of Appeals held that entering into a tribal-state compact with an Indian tribe involved making policy choices that epitomized legislative powers, and the Governor could not do so without legislative authorization or approval.

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

The New York Court of Appeals determination that only the legislature can authorize tribal gaming is controlling for purposes of IGRA. The federal courts addressing the issue of whether a state has validly bound itself to a compact, including who within the state government has the authority to bind the state, have found that the issue is strictly one of state law.

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

Section 2719 of IGRA creates a broad prohibition against gambling on land taken into trust after October 17, 1988.

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

The exception is not applicable to the Oneidas because they had a reservation on October 17, 1988. The Defendants have previously taken the position that the 32 acres at issue in Boylan was an Oneida [State] reservation as of October 17, 1988.

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

The statute permits gambling on newly acquired lands where the lands are taken into trust as part of "a settlement of a land claim". The Oneidas land claim has been dismissed in part and to date there has been no settlement. Therefore this exception is not applicable.

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

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

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

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

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

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#904629 - 10/25/08 11:55 PM Re: Trust Lawsuit [Re: Rich_Tallcot]
Rich_Tallcot Offline
Senior Member

Registered: 01/19/03
Posts: 4501
Loc: Greeneville, TN
Fee to Trust UCE's lawsuit - plain language: SIXTH CLAIM for Relief

The Department of Interior Secretary's decision that the 1993 Nation-State Compact between the Oneida Indian Nation of New York and the State of New York is still in effect for purposes of the Indian Gaming Regulatory Act As a final agency action is arbitrary, capricious, an abuse of discretion, and not in accordance with law.

Every federal court and agency has inherent authority (unless abrogated by Congress) to re-examine its decisions if asked to do so within a reasonable time,

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

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

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

The Second Circuit has ruled that "an agency - cannot simply adopt inconsistent positions without presenting 'some reasoned analysis.

"Such explanation, the court has said, is necessary so that the reviewing court may 'be able to understand the basis of the agency's action so that it may judge the consistency of that action with the agency's mandates. Ramaprakash v. F.A.A., (D.C. Cir. 2003) (stated that an agency's "failure to come to grips with conflicting precedent constitutes an inexcusable departure from the essential requirement of reasoned decision making" and that in changing course, an agency must "provide a reasoned analysis indicating that prior policies and standards are being deliberately changed, not casually ignored").

Defendants Hogen and NIGC failed to make an Indian lands determination prior to the approval of the Oneida Indian Nation's Gaming Ordinance dated January 3, 1994.

Defendants Hogen and National Indian Gaming Commission's determination approving a gaming ordinance permitting gaming under a tribal-state compact that is not lawfully in effect as required because the State Defendants did not have the authority under state law to enter into it. This determination and Defendants refusal to reopen and reconsider it in light of the changes in circumstances is arbitrary, capricious, an abuse of discretion, and not in accordance with law.

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#904633 - 10/26/08 12:27 AM Re: Trust Lawsuit [Re: Rich_Tallcot]
Rich_Tallcot Offline
Senior Member

Registered: 01/19/03
Posts: 4501
Loc: Greeneville, TN
Fee to Trust UCE's lawsuit - plain language: SEVENTH CLAIM and final for Relief

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

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

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

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

As testified by Penny Coleman, Acting General Counsel of the National Indian Gaming Commission before the U.S. Senate Committee on Indian Affairs on July 28, 2005, "The Commission and the Department have been criticized by the Department's Office of Inspector General for failing to decide the Indian lands questions before a facility opens and for failing to have a systematic approach to making such decisions."

Despite her testimony above Penny Coleman, Acting General Counsel of the National Indian Gaming Commission in a letter to Richard Platkin, Esq. as Counsel to Governor Pataki dated October 27, 2005, that it was the view of the NIGC that despite the lack of OIN sovereignty over the land, it is still reservation land. This is inconsistent with the clear intent of the statute, but also NIGC's own practice. Recognizing the essential link between sovereignty and reservation status, in determining whether a tribe has jurisdiction on land for purposes of IGRA the NIGC "presumes" jurisdiction where the land is reservation land. Here there is no jurisdiction as a result of Sherrill and the land cannot be considered reservation land.

The position set forth In Ms. Coleman's October 27, 2005 letter is also inconsistent with her letter dated February 7, 2008 letter to Chairman Kawaykla of the Fort Sill Apache Tribe.

On or about February 1, 2006 a hearing was held before the U.S. Senate Committee on Indian Affairs at which George T. Skibine, the Bureau of Indian Affairs official in charge of gaming, testified that he has circulated proposed regulations to cure the aforementioned deficiencies.

Senator McCain stated "I don't see how we can effectively regulate Indian gaming, and certainly exercise Congressional oversight, unless there's regulations to implement the law we passed. . ."

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

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

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

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

These systemic issues have resulted in the Federal Defendants approving gaming ordinances and tribal-state compacts prior to a proper determination as to whether gaming is permitted and/or prior to a proper determination as to whether or not gaming on land acquired, or to be acquired, is permitted.

United States Code provides that "The Commission shall, when such information indicates a violation of Federal, State, or tribal statutes, ordinances, or resolutions, provide such information to the appropriate law enforcement officials."

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

United States Code provides that "The Attorney General shall investigate activities associated with gaming authorized by this Act which may be a violation of Federal law."

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

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

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

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

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

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#904637 - 10/26/08 12:57 AM Re: Trust Lawsuit [Re: Rich_Tallcot]
Rich_Tallcot Offline
Senior Member

Registered: 01/19/03
Posts: 4501
Loc: Greeneville, TN
Fee to Trust National Grid's lawsuit ' plain language:
Found at http://www.upstate-citizens.org/National-Grid-Complaint.pdf

FIRST CAUSE OF ACTION seeks a declaration that Section 5 of the Indian Reorganization Act ("IRA"), 25 U.S.C. § 465 ("Section 465") constitutes an unconstitutional delegation of Congressional authority to the Secretary of the Interior.

The non-delegation doctrine prohibits Congress from making unbridled delegations of authority.

When Congress delegates its authority to an agency, Congress must provide some guidance in the manner in which the agency id to exercise that authority or the delegation of that authority is unconstitutional. Section 465 does not provide any guidance to the Secretary of the Interior ("the Secretary") in the exercise of the Secretary's discretion. Absence any such guidance, Section 465 is unconstitutional.

SECOND CAUSE OF ACTION seeks a declaration that Section 465, as applied to in this trust application, is unconstitutional.

Guidance, if any provided to the Secretary with respect to the Secretary's discretion under Section 465 would be found in the legislative history and structure of the Indian Reorganization Act. The statute itself provides absolutely no guidance.

According to the statute's legislative history, the intent and purpose of the IRA was "to rehabilitate the Indian's economic life and give him a chance to develop the initiative destroyed by a century of oppression and paternalism."

Representative Howard, the sponsor of the bill in the House of Representatives indicated that the act would help remedy the problem by preventing "any further loss of Indian lands" and permitting "the purchase of additional lands for landless Indians." (June 12, 1934) (statement of Senator Wheeler, sponsor of the bill in the Senate, echoing the remedial goals in relation to Indian lands.)

In the Instant case, the Secretary discounts even the minimal guidance provided by the legislative history. That section states that:

As a threshold matter, the Department finds that the Nation's financial wherewithal and competence to manage its affairs do not render it ineligible for placement of land into trust. Section 5 of the IRA is not limited to landless or impoverished tribes, or to tribes that are incompetent to handle their own affairs.

The Secretary's rejection of the guidance renders the application of Section 465 to the instant trust applications contrary to the law and unconstitutional.

THIRD CAUSE OF ACTION seeks a declaration that Section 465 is not applicable to the New York Oneida's trust application in that any diminishment of the New York Oneida's reservation and/or land holdings was not due to the Allotment Act of 1887.

The IRA was enacted in 1934 to end the allotment policy initiated in 1887 under the General Allotment Act of 1887. The General Allotment Act of 1887 had no force or effect in the State of New York because, at the time of its enactment, there were no federal Indian reservations in the state of New York.

The parcels covered by the New York Oneidas' trust application were not allotments and, thus, were not covered by the General Allotment Act. The New York Oneidas did not lose title to those parcels through operation of the General Allotment Act. Absent coverage of the State of New York by the General Allotment Act, the IRA has no force of effect in the State of New York or the New York Oneidas' parcels.

Interior's application of Section 465 to the New York Oneidas; trust application was arbitrary, capricious, an abuse of discretion and otherwise not in accordance with law.

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#904639 - 10/26/08 01:06 AM Re: Trust Lawsuit [Re: Rich_Tallcot]
Rich_Tallcot Offline
Senior Member

Registered: 01/19/03
Posts: 4501
Loc: Greeneville, TN
Fee to Trust National Grid's lawsuit - plain language:

FOURTH CAUSE OF ACTION seeks declaratory judgment and injunctive relief under the Administrative Procedures Act.

The Secretary of Interior's Record of Decision (ROD) is arbitrary, capricious, an abuse of discretion and otherwise not in accordance with law in that the Interior considered the parcels covered by the application to be part of the New York Oneidas' reservation.

For example, the ROD states that under the Proposed Action, the Secretary would accept into trust approximately 17, 370 acres located within the Oneida reservation as confirmed by the 1794 Treaty of Canandaigua."

The ROD discuses the alternative of creating a New York State reservation and states that "this alternative would apparently entail disestablishment of the existing Federal reservation, contrary to the fact that "only Congress can divest a reservation of its status and diminish its boundaries."

The ROD states that:
Land may be acquired for a tribe in trust status:
(1) When the property is located within the exterior boundaries of the tribe's reservation or adjacent thereto, or in a tribal consolidation area; or
(2) When the tribe already owns an interest in the land [i.e., the tribe owns an interest in an off-reservation asset and seeks to consolidate that interest]; or
(3) When the Secretary determines that the acquisition of the land is necessary to facilitate tribal self-determination, economics development, or Indian housing.

The Secretary claims that this requirement is satisfied because the Nation's request is for acquisition of lands located within the exterior boundary of its "Indian Reservation" as defined in 25 CFR § 151.2(f).

C.F.R. § 151.2 states that: Unless another definition is required by the Act of Congress authorizing a particular trust application, "Indian reservation means that area of land over which the tribe is recognized by the United States as having governmental jurisdiction, except that, in the State of Oklahoma or where there has been a final judicial determination that a reservation has been disestablished or diminished, "Indian reservation" means that area of land constituting the former reservation of the tribe as defined by the Secretary.

The United States has never recognized that the New York Oneidas have governmental jurisdiction over the parcels being sought to be taken into trust. In fact, the United States Supreme Court, in its City of Sherrill decision (2005)), held that the New York Oneidas could not exercise governmental jurisdiction over its off-reservation parcels absent those parcels being taken into trust.

Nor is there any final judicial determination that any reservation held by the New York Oneidas has been disestablished or diminished. The parcels contained in the New York Oneidas' trust application, therefore, do not constitute a "reservation" as that term is defined by the IRA.

Interior's treatment of the parcels as the New York Oneidas' reservation is arbitrary, capricious, an abuse of discretion and otherwise not in accordance with law.

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#904640 - 10/26/08 01:12 AM Re: Trust Lawsuit [Re: Rich_Tallcot]
Rich_Tallcot Offline
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Registered: 01/19/03
Posts: 4501
Loc: Greeneville, TN
Fee to Trust National Grid's lawsuit - plain language:

FIFTH CAUSE OF ACTION seeks declaratory judgment and injunctive relief under the Administrative Procedures Act.

Interior's decision to accept certain parcels of property located within Madison and Oneida Counties into trust was arbitrary, capricious, an abuse of discretion and otherwise not in accordance with law.

National Grid, as a public utility, is subject to numerous Federal and State laws and regulations that govern the operation of the utility. Those laws and regulations require National Grid, among other things, to provide safe and continuous electric and gas service to customers within its franchise territory.

National Grid, in order to fulfill these requirements, has certain easements, rights of way and franchise rights on parcels of land located within Madison and Oneida Counties, including many of those parcels approved for fee-to-trust acquisition.

National Grid utilizes these easements, rights of way and franchise rights to service that portion of its franchise territory that extends across parts of Oneida and Madison Counties by providing gas and/or electric service to customers in those counties including those located on the Nation’s trust acquisition lands and those located on other property that will not be taken into trust.

The Company's utility infrastructure in Oneida and Madison Counties includes high voltage electric transmission facilities, overhead and underground electric distribution facilities, high pressure natural gas pipelines, gas distribution facilities, and gas regulator stations.

Taking into trust those parcels on which National Grid's utility easements, rights of way and franchise rights are located jeopardizes the Company's ability to operate and maintain the existing utility infrastructure used to serve its franchise territory including both customers located on fee-to-trust acquisition lands and those customers whose land is not subject to the trust application.

Taking into trust those parcels on which the National Grid's utility easements, rights of way and franchise rights are located jeopardizes the Company's ability to provide ongoing utility service to customers on the Nation's trust acquisition lands, adjacent properties, and the entire region.

National Grid's existing utility easements, rights of way and franchise rights cross many of the properties to be taken into trust.

National Grid's inability to access these utility easements, rights of way and franchise rights will impermissibly interfere with the Company's ability to comply with requirements of Federal and State laws and the regulatory requirements contained in tariffs.

The ROD failed to consider whether the Nation's lands are subject to existing easements, rights of way and franchise rights and failed to condition the taking of parcels of land into trust upon an enforceable protective mechanism for the easements, rights of way and franchise rights including a waiver of sovereign immunity by the New York Oneidas and the United States.

Interior's failure to address these concerns and to impose such conditions on the New York Oneidas to ensure adequate regulation over National Grid’s gas and electric utility infrastructure is arbitrary, capricious, an abuse of discretion and otherwise not in accordance with law.

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#904641 - 10/26/08 01:18 AM Re: Trust Lawsuit [Re: Rich_Tallcot]
Rich_Tallcot Offline
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Registered: 01/19/03
Posts: 4501
Loc: Greeneville, TN
Fee to Trust National Grid's lawsuit - plain language:

SIXTH CAUSE OF ACTION seeks declaratory judgment and injunctive relief under the Administrative Procedures Act.

Interior's decision to accept certain parcels of property located within Madison and Oneida Counties into trust was arbitrary, capricious, an abuse of discretion and otherwise not in accordance with the law.

National Grid, as a public utility, has certain rights under State and Federal law, including, but not limited to, provisions enacted to protect the Company's infrastructure, provisions designed to protect underground facilities and overhead structures and provisions to enable the Company to meet its service requirements.

The placement of parcels into trust would exempt these parcels from those requirements and increase the risk of danger to the Company's infrastructure as well as increase the danger to the public.

Such a concern is based upon previous experiences, not on mere speculation as to what might happen.

On one occasion, the New York Oneidas sought to prevent National Grid from accessing major natural gas pipeline which runs under a Nation-owned golf course after it was damaged by the Nation while installing a golf course drainage pipe. Rather than granting National Grid immediate access to the pipeline to repair the damage and to diminish the risk and dangers associated with such damage, the New York Oneidas asked the Company to delay repairing the pipeline until after completion of the golf season. The Nation's excavation ignored New York State law which requires that underground utilities be marked out before any excavation is undertaken.

On a separate occasion, the New York Oneidas constructed a landing for the Turning Stone's Casino helicopter traffic ("the Heli-Pad") which included drainage installations that encroached upon a National Grid-owned natural gas pipeline right of way. This excavation was conducted without regard to the Company's right of way and without regard to State laws and regulations enacted to ensure storm water runoff/collection basins are graded in a manner that maintains a minimum distance from natural gas pipelines and other utility facilities. The Heli-Pad was also constructed without regard to the risk of danger and injury associated with landing and fueling multi-ton helicopters next to a natural gas pipeline.

Unregulated construction and excavation on the Nation's lands that encroach on the Company's utility easements, rights of way and franchise rights without conformance to New York State laws and regulations interfere with National Grid's existing utility infrastructure used to serve its customers and threaten the public health and safety.

Absent any requirement that New York Oneidas and the United States recognize those State statutes and regulations designed to protect the Company's infrastructure and designed to protect the public health and safety, the ROD is arbitrary, capricious, an abuse of discretion and otherwise not in accordance with the law.

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#904642 - 10/26/08 01:22 AM Re: Trust Lawsuit [Re: Rich_Tallcot]
Rich_Tallcot Offline
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Registered: 01/19/03
Posts: 4501
Loc: Greeneville, TN
Fee to Trust National Grid's lawsuit - plain language:

SEVENTH CAUSE OF ACTION seeks declaratory judgment and injunctive relief under the Administrative Procedures Act.

Interior's decision to accept certain parcels of property located within Madison and Oneida Counties into trust was arbitrary, capricious, an abuse of discretion and otherwise not in accordance with the law.

Interior's ROD states that the New York Oneidas have a history of entering into agreements respecting the costs of infrastructure and services.

Interior's ROD fails to acknowledge or address the New York Oneidas refusal to enter into an agreement with the National Grid to recognize the Company's right to locate, construct, operate, maintain, repair and replace existing and new utility facilities on the nation's trust acquisition lands.

Interior's ROD states that "the Nation has stated that it intends for all rights-of-way, including those used to access utility infrastructure, to remain in effect after placement of lands into trust."

In the absence of continued regulation governing utility service on the New York Oneidas, the continued provision of service to customers on the New York Oneidas lands and downstream lands cannon be assured.

The approval of the fee-to-trust acquisition of lands without the protection of National Grid's rights to access its natural gas transmission and distributive facilities, which include 14.3 miles of high pressure natural gas pipelines located on or in the immediate vicinity of the New York Oneida's land, could adversely impact Cities of Rome and Oneida and the Villages of Munnsville and Canastota and the Vernon area.

If the land is taken into trust without protection of National Grid's right to locate, operate and maintain its utility facilities on the fee-to-trust acquisition lands, thousands of National Grid customers and potential customers could be adversely affected.

Interior's failure to address these concerns and to impose such conditions on the New York Oneidas to insure adequate regulation over National Grid’s gas and electric facilities is arbitrary, capricious, an abuse of discretion and otherwise not in accordance with the law.

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#904643 - 10/26/08 01:26 AM Re: Trust Lawsuit [Re: Rich_Tallcot]
Rich_Tallcot Offline
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Registered: 01/19/03
Posts: 4501
Loc: Greeneville, TN
Fee to Trust National Grid's lawsuit - plain language:

EIGHTH CAUSE OF ACTION seeks declaratory judgment and injunctive relief under the Administrative Procedures Act.

Interior's decision to accept certain parcels of property located within Madison and Oneida Counties into trust was arbitrary, capricious, an abuse of discretion and otherwise not in accordance with the law.

Although the Department considered certain issues with respect to National Grid's comments concerning easements necessary to operate and maintain the Company's gas and electric utility facilities, the Department failed to consider operational issues such as the right to engage in essential repairs and maintenance including the rights to trim both dangerous trees and other essential operating and maintenance activities on the Nation's land that directly abuts the Company's utility facilities. Failure to acknowledge National Grid's right to repair or maintain these properties could interfere with or incapacitate existing utility infrastructure used to serve the Nation's land and downstream customers.

Interior's failure to address these concerns and to impose such conditions on the New York Oneidas to ensure adequate regulation over National Grid's gas and electric utility easements, rights of way and franchise rights is arbitrary, capricious, an abuse of discretion and otherwise not in accordance with the law.

NINTH CAUSE OF ACTION seeks a declaration that the Interior's decision to take certain parcels into trust for the benefit of the New York Oneidas without adequately protecting National Grid's property rights in those parcels constitutes an impermissible taking without just compensation in violation of the Fifth Amendment to the United States Constitution.

National Grid, in order to fulfill its service obligations, has obtained certain easements, rights of way and franchise rights necessary to provide service to its customers.

Those rights constitute a property right for the benefit of the National Grid.

Absent necessary protections of those rights, National Grid will lose all beneficial use of those property rights when the parcels are taken into trust by the United States.

Such uncompensated takings violate the Fifth Amendment of the United States Constitution.

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#904644 - 10/26/08 01:44 AM Re: Trust Lawsuit [Re: Rich_Tallcot]
Rich_Tallcot Offline
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Registered: 01/19/03
Posts: 4501
Loc: Greeneville, TN
PRELUDE
In as much as the Oneida trust application lawsuits have the same arguments as the Cayuga situation, I will present the points made. While the fee to trust process is founded entirely on a different basis than the Cayuga's lost land claim or the Oneida land claim still in the Second Circuit Court of Appeals, some of the same arguments come into play because the tribes have to show some kind of justification for their applications.

There are additional factors to consider in the Cayuga situation. They sided with the British in the American Revolution, the Cayuga have not had a presence here for 200 years, the 1926 International Tribunal encompassed all factions of the tribe - ruled the 1789, 1790, 1795 and 1807 transactions to be one contract and ordered Congress to pay $100,000 disparity to the Cayuga in Canada, which was only one of many final settlements. The Cayuga have a reservation in Canada and perpetual use right lands on the Cattaraugus Reservation.

Arguments in Oneida regarding the casino issue are also relative, because Cayuga's applications include use for gambling. Even Class II has to be approved in accordance with IGRA (Indian Gaming Regulatory Act) on eligible Indian lands.

While the Cayuga land claim was dismissed and is over, the tribal arguments for justifying placing lands into trust for them are similar. So there are compound arguments against the trust application procedures coupled with arguing against there justifications.

The Bureau of Indian Affairs (BIA) and Dept. of Interior (DOI) held hearings in both areas for months. Based on those hearings they issued a record of decision almost a year later, in the Oneida process, to accept over 13,000 acres into trust. Oddly enough, while they felt the input justified such a disruptive nature in May of 2008, they have refused to disclose the input justifications for their decision and, upon challenge in court, asked for an extension September 11, 2008 for the first hearing to justify their reasoning. The Bureau of Indian Affairs has agreed that the land will not go into trust while the appeals are pending, an agreement either side can cancel with 30 days' notice.

They have used this extension, not to validate their erroneous reasoning, but October 9, 2008 applied to the Second Circuit Court of Appeals for removal of all the Constitutional arguments against them by the plaintiffs. Obviously, upon reading the lawsuits against them, the Department of Interior realized it could not win in court against the Constitutional challenges being presented.

The newspapers reported three Constitutional challenges, which are in the State's lawsuit. If we win on any one of these points, we win the whole case. If we lose these arguments, there are still multiple issues to defeat it.

U.S.C. is United States Code, which is law passed by Congress. Title 25 deals with Indians, Section 465 deals with acquisition of lands, water rights or surface rights; appropriation; title to lands; tax exemption. Section 465 is the result of the Indian Reorganization Act (June 18, 1934) but the DOI regularly does not follow the law as it's written.

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#904645 - 10/26/08 01:50 AM Re: Trust Lawsuit [Re: Rich_Tallcot]
Rich_Tallcot Offline
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Registered: 01/19/03
Posts: 4501
Loc: Greeneville, TN
Lawsuit by the State of New York, Oneida County and Madison County.

From the state's lawsuit: http://www.upstate-citizens.org/oneidas_lawsuit.pdf

The three complaints being challenged by the DOI are 1,2 & 17

The delegation of authority from Congress to the Bureau of Indian Affairs is unconstitutional. FIRST CAUSE OF ACTION 25 U.S.C. § 465 IS AN UNCONSTITUTIONAL DELEGATION OF LEGISLATIVE AUTHORITY

It is fundamental that Congress may not delegate its policymaking functions to an administrative agency in the absence of an "intelligible principle" that limits the agency's exercise of that authority.

Section 465 violates these precepts by giving the Secretary of the Interior unbounded discretion to acquire land "for the purpose of providing land for Indians." The statute contains no limiting standards. The regulations, which cannot in any event provide a standard where the statute contains none, are similarly lacking in any meaningful standard. Those regulations merely list factors that the Secretary should consider when taking land into trust, but place no boundaries upon that authority.
The delegation of unbounded discretion to the DOI is particularly offensive to the Constitution because the DOI is a federally mandated trustee of Indian lands. The lack of any statutory limits on the Secretary's exercise of discretion when deciding to take land into trust, when considered together with the DOI's institutional bias in favor of Indians, creates a decision-making process that is unbalanced and unfair.

As a result, Section 465 is an unconstitutional delegation of legislative authority, is in violation of the separation of powers principles contained in the Constitution, and is invalid.

The second also refers to the delegation of authority, this time as it relates to the Tenth Amendment in the Constitution. "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." SECOND CAUSE OF ACTION 25 U.S.C. § 465, AS APPLIED, VIOLATES THE TENTH AMENDMENT

The Tenth Amendment reserves to the States, or the People, those powers not granted to the United States by the U.S. Constitution.

The State has continuously exercised jurisdiction over its lands since the adoption of the U.S. Constitution, including the lands which are the subject of the Determination, and has never consented to the removal of such land from State jurisdiction.

The U.S. Constitution does not grant to the United States the authority to remove land from a State's jurisdiction for the purpose of providing such land to an Indian tribe without first obtaining the consent of the affected State.

The U.S. Constitution clearly enumerates those limited instances where the United States has the authority to remove lands from a State's jurisdiction. For example, Article I, Section 8, Clause 17 of the U.S. Constitution grants Congress the power "to exercise exclusive Legislation in all Cases whatsoever... 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." (emphasis added). Similarly, no other provision of the U.S. Constitution authorizes the Secretary to remove the subject lands from the State’s jurisdiction without its consent.

The State has not consented to the Secretary's decision to remove the subject lands from its jurisdiction.

Article I, Section 8, Clause 3 of the U.S. Constitution confers upon Congress the power "to regulate "commerce ... with the Indian tribes" but regulation of commerce with Indian tribes does not extend to removal of land located within states from state and local jurisdiction.

Section 465 far exceeds the power granted to Congress to regulate commerce with the Indian tribes, is unauthorized by any other provision of the U.S. Constitution, and deprives the State of its sovereignty with respect to lands taken into trust.

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#904646 - 10/26/08 01:55 AM Re: Trust Lawsuit [Re: Rich_Tallcot]
Rich_Tallcot Offline
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Registered: 01/19/03
Posts: 4501
Loc: Greeneville, TN
Lawsuit by the State of New York, Oneida County and Madison County.

The other complaint in the suit relates to the Indian Gaming Regulatory Act, which requires a two-step process. The state is arguing that the decision exceeds the authority of the DOI and that the decision cannot be made without the governor of the state and the secretary of the interior agreeing. SEVENTEENTH CAUSE OF ACTION THE DETERMINATION EXCEEDED THE SECRETARY'S STATUTORY AUTHORITY AND IS OTHERWISE NOT IN ACCORDANCE WITH LAW BECAUSE IT VIOLATES 25 U.S.C. § 2719(b) IN THAT IT PURPORTS TO TAKE LAND INTO TRUST FOR CLASS III GAMING WITHOUT THE CONSENT OF THE GOVERNOR OF NEW YORK

The OIN offers casino-type gaming at Turning Stone Casino and clearly intends to continue to offer such gaming at Turning Stone Casino if the subject land is taken into trust.

The land that the Secretary has determined to take into trust includes the land on which Turning Stone Casino is located.

Subject to certain limited exceptions, IGRA prohibits the Secretary from taking land into trust for the purpose of gaming after the October 17, 1988 enactment of the IGRA.

The only exception with any conceivable application to the OIN and its Turning Stone Casino requires the Secretary to determine that gaming on the subject land would be "in the best interest of the Indian tribe and its members," "not be detrimental to the surrounding community," and, crucially, requires the Governor of the State in which the gaming activity is to be conducted to concur with such determinations of the Secretary.

DOI guidelines mandate that such determinations regarding the advisability of gaming and efforts to obtain the concurrence of the Governor of the State in which the gaming activity is to be conducted occur independently from the notification process for land into trust applications prescribed by 25 C.F.R. § 151. See Office of Indian Gaming Management, Checklist for Gaming Acquisitions, Gaming-Related Acquisitions and IGRA Section 20 Determinations, dated March 2005, at 8.

The Secretary has not made the findings mandated by Section 2719(b) nor has he attempted to obtain the concurrence of the Governor of New York with respect to such findings as required by that section.

Instead, the ROD claims that "the casino is situated within the Oneida reservation on Indian lands as required by IGRA" evidently attempting to invoke Section 2719(a) which permits land to be taken into trust for gaming after 1988 if such "…lands are located within or contiguous to the boundaries of the reservation of the Indian tribe on October 17, 1988." The implication in the ROD – that Turning Stone Casino is located “within or contiguous” to lands that were a reservation of the OIN on October 17, 1988 - is fundamentally at odds with the DOI definition of Indian reservation contained in the regulations governing land into trust applications. Since the OIN is not recognized as having sovereignty over the casino property that land is not an Indian reservation under the DOI regulations.

As a result, the Secretary's decision to take land to be used by the OIN for casino type gaming is in clear contravention of IGRA and the DOI's own regulations and therefore exceeds the Secretary's statutory authority and is otherwise not in accordance with law.

The state will respond that the points are valid forcing the DOI to argue those issues before the rest of the complaints are addressed.

The request to dismiss the complaints that argue the constitutionality of the DOI decision is scheduled to be heard by Judge Lawrence Kahn in Albany on Nov. 7.

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#904815 - 10/26/08 11:42 AM Re: Trust Lawsuit [Re: Rich_Tallcot]
grinch Offline
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Registered: 08/28/01
Posts: 4530
Loc: New York State
It will take sometime to digest all of that info. Perhaps it is best I leave it to the lawyers.

Weaving through some of the information, I noted references to "with the consent of the governor".

Can they take land into trust with his consent, or do they also need the legislature and the consent of the locals?

I would hope he looks way, way down the road and past the current financial crisis in the state and he does not agree with land into trust.

In my opinion agreeing to land into trust is a furthur weakening of State's Rights, and of our country.

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#904838 - 10/26/08 12:44 PM Re: Trust Lawsuit [Re: grinch]
Rich_Tallcot Offline
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Registered: 01/19/03
Posts: 4501
Loc: Greeneville, TN
Originally Posted By: grinch
Weaving through some of the information, I noted references to "with the consent of the governor".

Can they take land into trust with his consent, or do they also need the legislature and the consent of the locals?
First: State law ten bars the Governor from relinquishing state sovereignty. So, legally, he can't do it. However, with the spineless legislature we have refusing to initiate impeachment proceedings against him for failing to do his job and party politics involved, we couldn't guarantee the state not to sell us out.

25 C.F.R. § 151.10(b) directs the Secretary of Interior to consider the tribe's need for the additional land. Now HERE is where we come into conflict with the State. At this point the state has already argued that the feds just cannot do what they are trying to do. There are multiple reasons why the tribe would not qualify under need.

But the state's reasoning relates to the casino on line 150 of their lawsuit. "Turning Stone Casino and related facilities, which are located on 225 acres of land, are more than sufficient to secure the economic self-sufficiency of the OIN and its members."

There is more to this than pro or anti casino. The state WOULD allow trust land to be established and even ASKED for it to be established in the Catskills for a now failed casino deal with the Mohawk tribe. If the feds only approved that 225 acres for trust, or even a thousand acres, I think we'd have to sue the state to challenge them to file a lawsuit to defend sate sovereignty. So you can be happy the feds tried to grab 13,000 acres. But you should be aware that the state would be willing to cut a deal if it meant casino money, even if it meant setting precedent in allowing trust land to be established in New York State. None of the 13 colony states have any trust lands. There are some lands designated as restricted fee as agreed to by those states. Technically there is a difference because those states agreed to a settlement. But such lands still come under tribal jurisdiction.

THAT is why the UCE, CERA , and CNYFBA lawsuits are so important! They are the only non-governmental entities filing lawsuits and as long as they have appeals ongoing in the courts, the DOI cannot take lands into trust. We HAD to do this as a safeguard to prevent the state from making a deal.

I note this prior to the state's argument number seven - which I have yet to post. Our arguments are in conflict with the State's.

Such lands are not accepted until they are logged in the federal register.

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#904881 - 10/26/08 02:18 PM Re: Trust Lawsuit [Re: grinch]
Rich_Tallcot Offline
Senior Member

Registered: 01/19/03
Posts: 4501
Loc: Greeneville, TN
Originally Posted By: grinch
It will take sometime to digest all of that info. Perhaps it is best I leave it to the lawyers.
Feel free to ask questions. My objective here is to help people understand the arguments and expose people like Congressman Arcuri for being the idiots they are in promoting settlement by creating and expanding reservations and eliminating Constitutional rights.

Why on earth would anyone be opposed to the courts ruling on the laws as they are written when, if enforced, should result in equality under the law unless they didn't understand the arguments or were either a complete idiot or a corrupt bought off public official? Cong. Arcuri has HAD the arguments explained to him many times verbally and in writing by both myself and the President of CERA.

His opponent, Richard Hanna, recognizes the corrumption that has ensued can only be resolved through the courts Constitutional interpretation of the laws.

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#904888 - 10/26/08 02:27 PM Re: Trust Lawsuit [Re: Rich_Tallcot]
Rich_Tallcot Offline
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Registered: 01/19/03
Posts: 4501
Loc: Greeneville, TN
Fee to Trust plain language: lawsuit by the state, Madison & Oneida Counties continued.

Abbreviations: Environmental Impact Study (EIS), Oneida Indian Nation (OIN), Memorandum Of Understanding (MOI), Indian Reorganization Act (IRA), Record Of Decision (ROD), Freedom Of Information Act (FOIA), Supreme Court Of The Unites States (SCOTUS)

Note: The Dawes Act of 1887 broke up reservations and issued land allotments to individual Indians in fee simple (private property) title. Many Indians became homeless because they couldn't pay the taxes and their lands were foreclosed upon. The Indian Reorganization Act of 1934 reversed that procedure by allotting federal public domain lands to tribes who could prove a need provided they accept the IRA and reorganize under it.

Note: Sherrill refers to the U.S. Supreme Court ruling whereby the Oneida tribe alleged that the lands they sold were still reservation in accordance with the 1794 Treaty of Canandaigua and they, therefore, did not have to pay taxes on lands purchased.

From the Sherrill case:
http://www.oyez.org/cases/2000-2009/2004/2004_03_855/
Question presented to the United States Supreme Court
Were land parcels once owned by the Oneida Nation, sold in 1807 but repurchased in the 1990s by the Nation's descedant tribe, part of an Indian Reservation and thus exempt from local taxes?

Conclusion of the United States Supreme Court
NO. In an 8-1 opinion delivered by Justice Ruth Bader Ginsburg, the Court held that standards of federal Indian law and federal equity precluded the Tribe from unilaterally reviving its ancient sovereignty over the land at issue. The Court pointed to the "longstanding, distinctly non-Indian character of central New York and its inhabitants" and the fact that regulatory authority over the land had been exercised by state and local government for 200 years. By giving up the land in the early 19th century, the Oneidas had "relinquished governmental reins and could not regain them through open-market purchases from current titleholders."

Based on this ruling in March of 2005, the Cayuga tribe's land claim was ruled invalid by the Second Circuit Court of Appeals. Thus, SCOTUS has ruled that this is not a reservation nor is it Indian Country. But the tribes have filed their trust applications under "on reservation" status.

Continuing with the state's arguments:

THIRD CAUSE OF ACTION 25 U.S.C. § 465 DOES NOT APPLY TO THE OIN
Section 465 was enacted as part of the IRA. That statute was intended to put a stop to allotment of Indian lands pursuant to the federal policy set forth in the Dawes Act of 1887, and to redress the loss of Indian land under the allotment system.

The provisions of Section 18 of the IRA condition application of the IRA on a vote of the affected Indians. When a majority of the adult Indians in a reservation "shall vote against application" of the Act, it "shall NOT apply." Following the adoption of the IRA, the Oneidas (as well as other New York Indians) voted to reject the IRA.

Therefore, trust benefits are not available to the OIN. By purporting to take land into trust for the OIN, the Secretary acted in excess of his authority and not in accordance with law.

Although the ROD cites 25 U.S.C. § 2202, which states that "the provisions of Section 465 of this Title shall apply to all tribes notwithstanding the provisions of Section 478 of this Title," it does not mention 25 U.S.C. § 2201, which defines "tribe" to mean "any Indian tribe, band, group, pueblo, or community for which, or for the members of which, the United States holds lands in trust."

Since the United States held no OIN land in trust prior to the time of the trust application, the OIN was not a "tribe" within the meaning of Section 2202, and Section 2201 therefore makes Section 465 unavailable to the OIN.

Section 465 does not authorize the Secretary to take land into trust for the benefit of the OIN for the separate reason that Section 465 authorizes the acquisition of lands only "for the purpose of providing land for Indians."

25 U.S.C. § 479 defines "Indians" for purposes of the IRA to "include all persons of Indian descent who are members of any recognized tribe NOW under federal jurisdiction." The OIN does not meet this requirement as the OIN was not a "recognized tribe now under federal jurisdiction" as of the date of the IRA's enactment in 1934. [This argument is being challenged in the Rhode Island case being heard by SCOTUS this fall.]

Notably, the ROD does not consider in a meaningful or complete way the absence of statutory authority as required by its own regulations. In light of the fact that there is no statutory authority for the Secretary to take land into trust for the OIN, the Determination was arbitrary and capricious, an abuse of discretion, in excess of the Secretary's statutory authority, and otherwise not in accordance with law.

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