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STANDARD FOR SUMMARY JUDGMENT
Rule 56(a) of the Federal Rules of Civil Procedure provides that summary judgment is appropriate where “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.”
As explained by the Second Circuit, "Summary
Judgment is appropriate only if, after drawing all permissible factual inferences in favor of the non--‐moving party, there is no genuine issue of material fact and the moving party is entitled to summary judgment as a matter of law." O’Hara v. Nat’l Union Fire Ins. Co., 642 F.3d 110, 116 (2d Cir. 2011); see also Miller v. Wolpoff & Abramson, LLP, 321 F.3d 292, 300 (2d Cir. 2003) (same).
As plaintiffs have said, this case has two material facts in dispute which render summary judgment inappropriate as a matter of law.
REVIEW OF AGENCY ACTION UNDER THE APA
Section 706(2)(A) of the APA permits a court to set aside agency action only where it finds the action “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law."
Plaintiffs' amended complaint alleges that the Record of Decision (ROD) and by implication the Amended ROD is arbitrary, capricious, an abuse of discretion and not in accordance with law pursuant to section 706 of the Administrative Procedure Act (APA), 5 U.S.C. §§ 701--‐706.
In addition, plaintiffs challenge whether the 25 CFR Part 151 fee to trust regulations are within the scope of authority of the Secretary of the Interior to promulgate. Plaintiffs claim the Secretary of Interior acted ultra vires in promulgating the Part 151 regulations.
The burden of proof is on plaintiffs under the APA to win their case. However the burden of proof for the motion for summary judgment is on the United States.
SUMMARY OF ARGUMENT
Plaintiffs defend the Amended Complaint and explain to this Court that it is presented with a simple but very important choice. If the Court applies Carcieri v. Salazar the Oneida Indian Nation is a state tribe that was not a "tribe now under federal
jurisdiction" as of June 1934. This means they are not eligible for the fee to trust benefit of the IRA. The opposite choice is not to uphold this Court’s prior order directing the Secretary to apply Carcieri and allow the Secretary Chevron deference to reinterpret 25 U.S.C. § 479. This would contradict the holding in Carcieri that 25 U.S.C. § 479 was not ambiguous and therefore not entitled to deference under Chevron. Id. At 390--‐1.
Allowing the Secretary to use the plenary power authority to avoid the Carcieri ruling will also ensure that the United States will assume any lands it takes into trust for the Oneida Indian Nation will be treated as federal territorial lands also known as Indian country. Effectively, this would remove any lands taken into federal trust status from
ARGUMENT A, This Court is Bound to Apply Carcieri v. Salazar to Determine Whether the Oneida of New York was an Indian tribe “now under federal jurisdiction” as of June 1934
The Secretary and federal defendants do quite a song and dance to avoid applying Carcieri as this Court ordered. Then they use every means possible to claim that the AROD and M opinion must be given Chevron deference by this Court.
The reality is that whether the Oneida of New York are eligible for fee to trust benefits is entirely dependent on meeting the definition of “tribe” in Sec. 19, 25 U.S.C. § 479 of the IRA. Unless they meet the definition of tribe in the
IRA they are not eligible for the fee to trust benefits of Sec. 5, 25 U.S.C. § 465 of the IRA. Justice Thomas said this even more bluntly in the majority opinion of Carcieri.
"Thus, although we do not defer to Commissioner Collier's interpretation of this unambiguous statute, see Estate of Cowart v. Nicklos Drilling Co., 505 U. S. 469, 476 (1992), we agree with his conclusion that the word "now" in § 479 limits the definition of "Indian,"
and therefore limits the exercise of the Secretary's trust authority under § 465 to those members of tribes that were under federal jurisdiction at the time the IRA was enacted." Carcieri at 390--‐1.
Eight out of nine Justices agreed that the phrase "now under federal jurisdiction" in 25 U.S.C. § 479 was not ambiguous and was therefore not entitled to Chevron deference. (5 in the majority, Justice Breyer with his concurring opinion and Justices Souter and Ginsburg in their very short concurring in part and dissenting in part opinion.)
All eight of the Justices also concluded that the definition of tribe in Section 479 was an intentional restriction placed into the statute by Congress to limit the application of the IRA. The Justices also agreed that 25 U.S.C. § 2 of the Indian Lands Consolidation Act did not amend or alter the definition of Indian in 25 U.S.C. § 479. Id. at 394--‐5. Justices Breyer, Souter and Ginsburg all also agreed with the majority that the Narragansetts could not meet the definition of being a “tribe” in 1934.
Justices Souter and Ginsburg would have let them attempt to make an argument that because they had been formally recognized under the Part 83 process as a continually existing tribe in 1983 that they be allowed to at least try to make an argument they were under federal jurisdiction in 1934. Carcieri at 400. Eight Justices in Carcieri determined that the intent of Congress in 25 U.S.C. § 479 was to allow all federally recognized tribes as of June 1934 to have the benefits of the IRA. What this interpretation prevented was exactly what Congress did not accept in John Collier’s proposed IRA legislation—a continuing power in the Secretary and BIA to create or revive Indian tribes that no longer existed. If this statutory interpretation of Congressional intent by the Supreme Court was incorrect our elected representatives in
Congress could rewrite the law. See United States v. Lara, 541 U.S. 193 (2004).
This protects Congress’ ultimate authority to make the law. The Supreme Court says what the law is and means subject to the authority of Congress to rewrite the law. Marbury v. Madison, 5 U.S. 137 (1803). Congress has been bombarded by Carcieri fix proposals and has not adopted any of them in five years. See Congressional Research Services Report April 2014. Exhibit 1. The fact is Congress is very aware that the Carcieri decision protects the authority of Congress to set federal Indian policy.
Congress has not abdicated this authority to the Executive Branch and is very unlikely to do so in the future. Only Congress has the constitutional authority to change 25 U.S.C. § 479 to moot the majority opinion in Carcieri and it has refused to do so. As an opinion of the court, under the doctrine of stare decisis this Court is bound to apply Carcieri v. Salazar to determine whether the Oneida Indian Nation meets the requirements of 25 U.S.C. § 479.
The disagreement of the Justices over the application of Section 479 came not from the phrasing of Section 479 but from defining what it meant and means to be “under federal jurisdiction.” The fact is that the Supreme Court itself had allowed “under Federal jurisdiction” to be reinterpreted during the Nixon administration to allow federal courts subject matter jurisdiction to hear federal claims that had long ago grown cold. That case was Oneida Indian Nation v. County of Oneida, 414 U.S. 661 (1974).
This case created more than 40 years of federal litigation over trying to reestablish the sovereignty of the OIN that had ceased to exist before the Treaty of Buffalo Creek in 1838. Counsel for plaintiffs will not belabor this point because this Court knows on a first hand
basis the effects of allowing this reinterpretation of 25 U.S.C. § 177 and federal treaties through a modern refracted lens of the federal Indian trust relationship. The Supreme Court certainly did not intend to disrupt the settled expectations of thousands of property owners when it unanimously ruled for the Oneida to be able to try
to reclaim their historical reservation in 1974.
The Justices of the Supreme Court like most Americans wanted to "help the Poor Indians." They had no idea that the Executive Branch was working to exploit this sympathy to expand its own power.
City of Sherrill v. Oneida Indian Nation, 544 U.S. 197 (2005), ended the land claims but did not overrule the 1974 Oneida case and opened the door to this fee to trust litigation.
Until the Indians are subject to the equal protection of the laws under the Fourteenth Amendment of the Constitution the Executive branch will continue to use their separate status to increase Executive authority over Congress, the Courts and the States.
The real mistake was the Supreme Court separating the Indians from the rest of the people in order to try to justify slavery. Dred Scott v. Sandford, 60 U.S. 393 (1857). This mistake created its own federal Indian Law case line.
There Are Two Federal Indian Law Case Lines
Carcieri v. Salazar follows a direct line of cases where the Supreme Court has assumed the authority to make federal Indian common law dating from the adoption of the Constitution. In Carcieri v. Salazar, the Supreme Court ruled that when Congress passed the pared down Indian Reorganization Act (IRA) in June 1934 that it deliberately limited the application of the IRA to only those “tribes now recognized and under federal jurisdiction.”
Congress was following the original case line of federal Indian common law that
distinguished between tribes under state jurisdiction and those tribes that were under federal jurisdiction.
Eight Justices of the Supreme Court acknowledged that the Narragansett Tribe had been an Indian tribe under the sole jurisdiction of the State of Rhode Island until they were federally recognized in 1983.
This original case line assumes regular principles of law apply to the Indians because the
Indians are all citizens and will eventually lose their tribal relations to become part of the people of the United States and of the State wherein they reside. Carcieri v. Salazar applies this line of cases.
Events in our history led to the creation by the Supreme Court of a second line of Indian cases that started with the decision in Dred Scott v. Sandford, 60 U.S.
This second line of federal Indian cases assumes that the Indians will always maintain their tribal relations as separate people from the people of the United States. It also always applies the Indian canons of construction. AROD at 4, first paragraph. The AROD and the M opinion follow this second case line.
This second line is based on the territorial war power authority that was developed around our Civil War and preserved through keeping the Indians separate from the rest of the people of the United States.
It requires all Indian land to be classified as "Indian country" which is defined as federal territorial land. This is the federal Indian policy promoted by the Nixon Indian policy.
According to the Nixon Indian policy as defined in the Nixon Memorandum "What Level Sovereignty?" the President can on his own authority reinterpret the Indian trust relationship and interpret all existing federal law from the perspective of his interpretation of that trust relationship. See Nixon Memo at www.citizensalliance.com.
What this means is that the Executive Branch can decide that the way a still existing federal law was applied in
the past was not in accord to the current interpretation of the federal Indian trust relationship.
Then using the resources of the United States to promote their version of what should have happened they sue on behalf of the Indian tribe to restore what they think was wrongfully taken. This was exactly the power that Congress was not willing to give the Secretary of the Interior when it rejected Commissioner John Collier's expansive Indian Reorganization Act legislation in 1934.
President Nixon did inform Congress of his change of interpretation of the Indian trust relationship in his Executive Memorandum to Congress of July 8, 1970. That Memorandum to Congress was the President’s pronouncement to Congress that the Executive and not Congress now exercised the plenary power over the Indians the Supreme Court had defined in Lone Wolf v. Hitchcock, 187 U.S. 553 (1903), United States v. Kagama, 118 U.S. 375 (1886) and Elk v. Wilkins, 112 U.S. 94 (1884) that expressly follow the Dred Scott line of cases.
The Nixon Indian Policy claims the authority to reinterpret the IRA as part of its assumed plenary power. The Nixon Indian Policy was designed to permanently preserve the plenary power over Indians keeping them forever separate from the States and people.
Without informing the courts, Congress or anyone else, the Nixon White House began promoting this permanent tribal sovereignty through direct legal help to tribal claimants from the moment they took office.
One of the first cases to receive this direct assistance from the White House was Oneida Indian Nation v. County of Oneida, 414 U.S. 661 (1974) that started this entire mess in New York.
As defined in Kagama, the plenary power over Indians is based on three clauses of the Constitution: the Property Clause (Art. IV, Sec. 3, Cl. 2), the Indian Commerce Clause
(Art. I, Sec. 8, Cl. 3) and the Treaty Clause (Art. VI, Cl. 2).
These are the same exact list of powers asserted in the AROD in this case. The AROD openly claims the authority to "define the Federal Government’s unique and evolving relationship with the Indian tribes." Citing its power as ‘plenary and exclusive’ as based on the Treaty Clause and Indian Commerce Clause. AROD at p. 4.
Unlike in the original Record Of Decision that also cited the Property Clause for this authority and claimed the Oneida Reservation was a federal Indian reservation, the AROD lists all the powers that derive from the territorial power including the war power authority over territories of the United States starting with the paragraph following its direct Treaty and Indian Commerce assertions and not ending until it finishes the contemporaneous rewrite of the holding in Johnson v. M'Intosh, 21 U.S. 543 (1823) on p. 5.
It is generally not hard to distinguish which line of federal Indian cases one is using. If the case dates from before 1857, the year of the Dred Scott decision it is on the original case line and not on the plenary power line.
Many of the original cases have been reinterpreted in later cases. When this has happened it is usually reflected in the case citation. For purposes of this case there are two cases that must be clearly defined as to whether they fall on the original case line or the plenary power case line.
The first case is Oneida Indian Nation v. Oneida County from 1974 cited above as one of the first cases that received covert federal assistance from the White House. A cursory reading of the case is enough to demonstrate how old laws can be reinterpreted by expanding the nature of the federal trust relationship with the Indian tribes. The decision cites cases clearly on the plenary power case line side, including Holden v. Joy, 84 U.S. 211
(1872), that made the territorial war power connections to the Treaty Clause and Indian Commerce Clause. The other case that must be defined is City of Sherrill v. Oneida Indian Nation, 544 U.S. 197 (2005). City of Sherrill like almost all recent Supreme Court decisions reflects more of the original case line than the plenary power case line. This is true of most of the cases that follow Montana v. United States, 450 U.S. 544 (1981). In City of Sherrill, Justice Ginsburg was willing to rebalance the equities and apply laches to end the land claims but it is still a hybrid in how it defers to the Secretary’s authority under the Part 151 regulations.
It is not until Carcieri and the Hawaii decision that followed two weeks later that the Supreme Court decided to attempt to impose actual limits on secretarial discretion as it had done in pre--‐Civil War times to protect the authority of Congress over Indian affairs. This Court can avoid the plenary power case line by applying Carcieri v. Salazar and its express holding that 25 U.S.C. § 479 is not ambiguous and is therefore not entitled to Chevron deference.