Here is the opinion in the case captioned Canadian St. Regis Band Mohawk Indians v. State of New York (N.D. N.Y.):
News coverage here.
Magistrate report and recommendation here.
Objections and responses here:
St. Regis Mohawk Opening Brief
Akwesasne Mohawk Opening Brief
Canadian St. Regis Mohawk Response
State and Municipal Defendants Response
Canadian St. Regis Mohawk Reply
NY Power Authority & State Surreply
As expected, Madison and Oneida Counties filed a cert petition over the Second Circuit’s affirmation of the Oneida reservation boundaries. Here:
11-12-12 Madison v. NY Oneida Cert Petition
Question presented:
Does the 300,000-acre ancient Oneida reservation in New York still exist, neither disestablished nor diminished, despite (1) the federal government’s actions taken in furtherance of disestablishment (including, but not limited to, the 1838 Treaty of Buffalo Creek); (2) this Court’s holding in City of Sherrill v. Oneida Indian Nation of New York, 544 U.S. 197, 214 (2005) (“Sherrill”) that the Oneida Indian Nation of New York cannot exercise sovereignty over lands it purchases in the ancient reservation area; and (3) this Court’s finding in that case that land in the ancient reservation area has not been treated as an Indian reservation by the federal, state or local governments for nearly two centuries?
Lower court materials here.
Here are some interesting ironies of the reasoning and outcome in Patchak.
First, the prudential standing of David Patchak to sue the federal government to protect the rural character of his community (and related objections) — under Michigan law (I think) Patchak would have a much more difficult proof than he does under the conglomeration of statutes Patchak is using (APA, QTA, and I guess IGRA). Just a few weeks ago, the Michigan Court of Appeals (Tobin v City of Frankfort — thanks to B.A. for pointing this one out for me) rejected the standing of a landowner to challenge a development in Benzie County. Here were the injuries complained of:
Intervenor argues that it has established through its members’ affidavits that it has standing to intervene and pursue its member’s claims. The relevant declarations by FOBB members in their September 2000 affidavits primarily detail concerns about (1) increases in population, traffic, noise levels, lights, air pollution, and property taxes; (2) decreases in home values, aesthetics of the neighborhood, and environmental value caused by tree and vegetation removal attributable to the development; and (3) the potential presence of commercial establishments. The generalized concerns relating to environmental impacts, population increases, aesthetics, and pecuniary harm do not suffice to demonstrate “special damages . . . different in kind from those suffered by the community, so as to qualify [intervenor] as an aggrieved party.” Joseph, 5 Mich App at 571. Alternately phrased, development-related aesthetic changes, population increases, environmental impacts, and pecuniary harm will be experienced by other community members to the same extent as affiants.
But that’s not prudential standing, you say. True, but what an irony. This is Patchak’s list of alleged injuries in a nutshell:
To establish his standing to bring suit, Patchak contended that he lived “in close proximity to” the Bradley Property and that a casino there would “destroy the lifestyle he has enjoyed” by causing “increased traffic,” “increased crime,” “decreased property values,” “an irreversible change in the rural character of the area,” and “other aesthetic, socioeconomic, and environmental problems.”
Justice Kagan’s majority opinion then uses the Cohen Handbook as support for the proposition that since Interior takes land into trust for the benefit of Indian tribes (often economic benefit), then anyone seemingly opposed to tribal economies has standing (sorry for the long block quote):
Patchak’s suit satisfies that standard, because §465 has far more to do with land use than the Government and Band acknowledge. Start with what we and others have said about §465’s context and purpose. As the leading treatise on federal Indian law notes, §465 is “the capstone” of the IRA’s land provisions. F. Cohen, Handbook of Federal Indian Law §15.07[1][a], p. 1010 (2005 ed.) (hereinafter Cohen). And those provisions play a key role in the IRA’s overall effort “to rehabilitate the Indian’s economic life,” Mescalero Apache Tribe v. Jones, 411 U. S. 145, 152 (1973) (internal quotation marks omitted). “Land forms the basis” of that “economic life,” providing the foundation for “tourism, manufacturing, mining, logging, . . . and gaming.” Cohen §15.01, at 965. Section 465 thus functions as a primary mechanism to foster Indian tribes’ economic development. As the D. C. Circuit explained in the MichGO litigation, the section “provid[es] lands sufficient to enable Indians to achieve self-support.” Michigan Gambling, 525 F. 3d, at 31 (internal quotation marks omitted); see Morton v. Mancari, 417 U. S. 535, 542 (1974) (noting the IRA’s economic aspect). So when the Secretary obtains land for Indians under §465, she does not do so in a vacuum. Rather, she takes title to properties with at least one eye directed toward how tribes will use those lands to support economic development.
So in Michigan, someone who objects to development can’t sue because no one has adopted a statute specifically authorizing such development. In Indian law, someone who objects to tribal development can sue because Congress specifically did adopt a statute authorizing land purchases. The fact that Section 5 exists to remedy incredible tribal land dispossession and poverty is irrelevant.
Second, the land development question — Gun Lake Casino is up and running, and the State of Michigan and the local units of government (well, and the Tribe), are raking in millions upon millions. Patchak wants that to end (because apparently he didn’t care that Wayland’s football players were under a pay-to-play arrangement; more details here).
Two things immediately spring to mind on the denial of the Oneida land claims petitions.
The first is that the federal government’s persuasive oomph (with the OSG as the so-called “Tenth Justice”) loses a ton of force when siding with tribal interests. No big surprise to me there. But it must be a little strange for the Justices to see the United States so vehemently demanding to be let off the hook for their breaches of trust toward Indian tribes in Tohono O’odham and Jicarilla and almost in the same breath ask for the Court to review Indian land claims dismissals. The government’s filings before the Court in Indian affairs are two-sided, even a little schizophrenic.
Second, Justice Ginsburg seems to be stepping in Justice Stevens’ role as the the most senior Justice with an interest in limiting the damage to tribal interests in the Supreme Court. And like Justice Stevens, she wrote some negative opinions against tribal interests. But her earlier opinions appear to have swaths of broad dicta that lower courts and the Supreme Court are now leaping at in order to reject more recent tribal claims. I’m thinking of her opinion in Strate, which technically applied only to non-Indian lands on reservation, which Justice Scalia attempted to expand to Indian lands in Hicks; and also now her opinion in Sherrill, which was ostensibly about taxation immunities but now applies broadly (at least in the Second Circuit) to all tribal land claims. Both times she appears to be trying to reel in the Court in applying her dicta in earlier cases, and both times unsuccessfully.
Also, Justice Sotomayor backs up her statement about Indian law being a focus for her.
Kathryn Fort has posted a draft of her paper, Disruption and Impossibility: New Laches and the Unfortunate Resolution of the Iroquois Land Claims in Federal Court, forthcoming in the Wyoming Law Review as part of an Indian law symposium, on SSRN.
Here is the abstract:
That the law changes over time is no secret. That the law changes based on the parties involved is less obvious, but still no secret. In the case of the Haudenosaunee land claims cases, however, the law shifted dramatically and quickly based entirely on the identity of the parties. In less than five years, the federal appellate courts changed the law so drastically to all but end more than thirty years of modern litigation, reversing years of relative fairness at the district court level. These actions required a fundamental shift in the law of equity: the creation of a new equitable defense for governments against Indian land claims. How the courts accomplished so much in such a short amount of time requires a close reading of the cases and a few logical leaps.
The first part of this article will give a brief history of the New York land claims, focusing on the Oneida Indian Nation and the Cayuga Indian Nation of New York. While the tribes have been fighting the status of this land since the original agreements were signed in the late eighteenth and early nineteenth century, this article looks to the modern era of land claims in the federal courts. The second part of this article will review how a decision in the Oneida claims case directly informed City of Sherrill v. Oneida Indian Nation. The third part will focus on the Cayuga Nation line of cases and how Cayuga Indian Nation of New York v. Pataki changed the fundamental understanding of the equitable defense of laches into a new defense used to defeat tribal land claims. Finally, the fourth part of this article will look closely at the most recent loss, Oneida Indian Nation v. County of Oneida, where the court admits the creation of a new equitable defense. This defense, identified as “new laches” or “Indian law laches” is a defense that can prevent even the bringing of a land claim in the courts. The defense is no longer traditional laches, but rather an equitable defense that follows none of the rules of equity, and exists only in federal Indian law.
Caitlin Halligan argued on behalf of the State of New York (argument is here). She is an Obama nominee to the D.C. Circuit (and apparently authored a law school note that may or may not be controversial). This is not to imply an objection to her candidacy, but to note her experience in Indian law.
Update: Ironically, even Ms. Halligan declined to take advantage of Justice O’Connor’s suggestion that tribal sovereignty could be lost through the passage of time. Here is the beginning of her argument:
Argument of Caitlin J. Halligan
Mr. Halligan: Justice Stevens, may it please the Court:
The state of New York was granted time to address the third question regarding the 1838 treaty which we believe requires reversal of the decision below because it disestablish the Oneida reservation.
Respondents claim that there is not exercised sovereignty over any part of land they buy within a vast 300,000 tract in Central new York.
This has long been inhabited–
Justice O’Connor: Is sovereignty something that the tribes can lose by inaction over a period of time?
Mr. Halligan: –I believe that it is, Your Honor, for the reasons that are laid out in petitioner’s brief but regardless of what the Court decides about that question, the Treaty of 1838 clearly disestablishes the reservation which terminates all sovereignty prospectively.
The argument from there is largely treaty-based.
As Indianz reported yesterday, the Second Circuit has once again applied the so-called Sherrill defenses to the New York land claims, this time to the Oneida Indian Nation (opinion here, briefs here).
First, it is all but certain that the once mighty Eastern land claims based on the Non-Intercourse Act violations of the late 18th century are all but dead. There may come a scenario where the Second Circuit sitting en banc or perhaps the First or Third Circuits issue an opinion declining to apply the Sherrill defenses to a NIA claim, but it’s doubtful. And even if that happened, Supreme Court review is virtually guaranteed (both because of the resulting split in authority and because of the state interests involved), with the predictable 5-4 result (assuming the tribal interests can persuade even that many to dissent).
Land claims and other claims based on treaty rights seem to have been successful for the time being, but time will tell on those claims.
Frankly, a new strategy is needed, and perhaps it’s time to review why the Eastern land claims were relatively successful in the first place. I believe it’s the federal government’s fear of United States liability for failing to prevent the fraudulent land sales and illegal tax foreclosures of Indian lands. The entire face of Indian land claim statutory law is based on this fear, including the 1982 statute passed to eliminate the statute of limitations for Indian land claims (28 U.S.C. 2415(a)). Maybe it’s time to remind Congress and the DOJ of the government’s potential liability, though the Cobell settlement, the American Indian farmer and African-American farmer settlements indicate Congress could really care less about liability. One thing in which the Rehnquist/Roberts Courts have been incredibly successful is preserving and bolstering federal and state (and even tribal) sovereign immunity.
David Bogen and Leslie F. Goldstein have published “Culture, Religion, and Indigenous People” in the Maryland Law Review. The abstract:
The Constitution treats culture, religion, and government as separate concepts. Different clauses of the First Amendment protect culture and religion from government. For several decades, the Supreme Court of the United States interpreted the First Amendment as offering religion greater protection against interference than was offered to culture, but the Supreme Court largely dissolved these constitutional differences when confronted with issues posed by the religious practices of Native Americans. With some indigenous Americans, the lines between culture, religion, and even government blur–challenging the Supreme Court’s assumptions about the Constitution. The uniqueness of the claims of Native Americans pushed the Supreme Court toward recognition of a common constitutional standard for religion and cultural protection, but also justified political exemptions targeted at tribal behavior that do not extend to other religions or cultures.
And the Washington Law Review published a comment by Charlene Koski called “The Legacy of Solem v. Bartlett: How Courts Have Used Demographics to Bypass Congress and Erode the Basic Principles of Indian Law.” Here is that abstract:
Turtle Talk 
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