Second Circuit, over a Dissent, Denies En Banc Review of Shinnecock Casino Construction/Aboriginal Title Suit

Here is the dissent from the order denying en banc review:

CA2 Dissent from Denial of En Banc Petition — Shinnecock

The panel opinion and briefs are here.

Lower court materials are here and here.

Briefs in Shinnecock Second Circuit Gaming Case Now Available

We posted the opinion and lower court materials here.

And now the briefs:

Westwoods – Appellants

Westwoods – Appellees

Westwoods – Reply

Second Circuit Vacates Federal Court Injunction against Shinnecock Casino Construction in Southampton (Updated with Briefs)

Here is the opinion:


It’s the Second Circuit, so there are no briefs (unless someone sends them along). Here are the briefs:

Shinnecock Brief

State and Town Brief

An excerpt:

The Shinnecock Indian Nation and its tribal officials (collectively, the “Shinnecock” or the “Tribe”) appeal from a judgment of the United States District Court for the Eastern District of New York (Joseph F. Bianco, Judge). After a bench trial, the district court granted a permanent injunction prohibiting the Tribe from developing a casino on a plot of land known as Westwoods without complying with the laws of New York State and the Town of Southampton. The Shinnecock object to a number of the district court’s factual and legal conclusions, including its findings: (1) that tribal sovereign immunity from suit does not bar this action; (2) that the Shinnecock’s aboriginal title to the land at Westwoods was extinguished in the seventeenth century; (3) that even if aboriginal title had not been extinguished, equitable principles would prevent the Shinnecock’s development of a casino in violation of state and local law; and (4) that the federal Indian Gaming Regulatory Act (“IGRA”) supplanted any federal common law right the Tribe may have had to operate the casino. They also argue that the Bureau of Indian Affairs’s recent recognition of the Shinnecock Indian Nation moots the injunction.

We conclude that the district court lacked subject matter jurisdiction over this action, and thus do not reach the merits of this appeal.

Lower court materials are here and here.

Catskill Litigation Trust v. Harrah’s Cert Petition

Here it is — catskill-litigation-trust-cert-petition

This was filed in mid-January, and since the SCT denied cert in the CA9 case that the petitioners claim conflicts with this one, I bet this one has no chance of being granted.

Commentary on Harrah’s v. NGV Gaming Cert Petition

Here is the reply brief from Harrah’s, and so the certiorari briefing is concluded (the petition is here, and the opposition is here).

I was a little surprised that SCOTUSblog lists this case as a petition to watch. I don’t see any of the indicators that this would be the kind of case to make the discuss list (including either party employing a member of the Supreme Court “bar” suggested by Prof. Lazarus), except for the very superficial circuit split alleged by the petitioners. Maybe they know something I don’t. [I suppose that SCOTUSblog might think this case is similar to Carcieri and MichGO, but I doubt it.]

I say the circuit split is superficial, but in reality it is illusory. The claimed split is between the Ninth and Second Circuits over the definition of “Indian lands.” The CA2 looked at “Indian lands” as used in the Indian Gaming Regulatory Act (25 U.S.C. 2711), and the CA9 looked at “Indian lands” as used in Section 81 of Title 25. The CA2 said that IGRA’s “Indian lands” definition includes both lands already held in trust and lands that will go into trust. The CA9 says that Section 81’s “Indian lands” definition includes only lands already held in trust. Both courts seem to have spent some time reading the dictionary on these cases — 1 U.S.C. 1 et seq. Looks like a split, right?


Hopefully, the SCT and their clerks will realize that no split exists at all. There are two reasons. First, the purposes of each statute distinguish them, even though they use the same words. Second, the operation and implementation of the different statutes prevent them from conflicting. I really don’t think the Dictionary Act would trump either of these two arguments, or else someone better go back and reargue D.C. v. Heller.

OK, the first point. Section 2711 is about management contracts that tribes might sign to manage a gaming facility. Tribes will and do sign these contracts long before any land is taken into trust, and even before a tribe owns a single acre. So it is the National Indian Gaming Commission’s responsibility to review these contracts could kick in before any land is taken into trust, making the CA2’s outcome reasonable. Section 81, on the other hand, is about tribes collateralizing lands held in trust for the tribes by the Secretary of Interior. There’s no reason to review a contract that potentially encumbers tribal trust land unless that land is already in trust, making the CA9’s decision reasonable.

Which leads to the second point, closely related — the Secretary cannot take land into trust without first determining that there are no encumbrances on the land (25 U.S.C. 465). So under Section 81, the Secretary doesn’t need to review a contract that might encumber trust land. In other words, the Secretary will never review a contract that might encumber “Indian lands” under Section 81 unless the land is already in trust. So, the CA9’s decision is the only decision possible. Conversely, IGRA expressly allows for the NIGC to review a contract regarding lands that will go into trust, often because the contract itself will provide the tribe funds to buy lands and ask the Secretary to take the land into trust.

And so, no circuit split.

I hope the Court isn’t confused by this one.

Harrah’s v. NGV a Petition to Watch

This is for the January 23 conference (today, the Court will consider the MichGO v. Kempthorne petition).

From SCOTUSblog:

Docket: 08-655
Title: Harrah’s Operating Company, Inc. v. NGV Gaming, Ltd.
Issue: Whether the term “Indian lands” in 25 U.S.C. 81(a) applies only to land currently held in trust by the United States or also to land that will be held in trust.

Harrah’s v. NGV Gaming Cert Petition

The questions presented are:

1. Does the Dictionary Act’s rule that words used in the present tense also include the future tense, unless the context indicates otherwise, only apply if the statutory text at issue is ambiguous?

2. Does the term. “Indian lands” as used in 25 U.S.C. §§ 81 and 2701-2721 include both land that “is held by the United States in trust for an Indian tribe” and land that “will be held in trust by the United States for an Indian tribe”?

Here is the brief — harrahs-v-ngv-gaming-cert-petn

And here is the lower court opinion — guidiville-band-v-ngv-gaming

Catskill Development v. Park Place Entertainment — Gaming Development Dispute

The Second Circuit affirmed the dismissal of tortious interference with contract claims relating to a failed casino venture with the St. Regis Mohawk Tribe.


A related $3 Billion tribal court judgment is pending (materials here).

Shinnecock Loses Rule 59 Motion; Permanent Injunction Granted on IGRA Claim

New York successfully defended a judgment in its favor from last November (noted here) from a Rule 59 motion to modify the judgment. Also, the district court issued a permanent injunction against the Shinnecock Indian Nation, preventing them from opening a gaming operation under the Indian Gaming Regulatory Act.

Here are the materials:

DCT Order Issuing Permanent Injunction

Continue reading

Pokagon Band and Notre Dame

From the Notre Dame Observer:

Pokagon Band part of ND history, land

Relationship with Potawatomi tribe celebrated during Native American Heritage Month
By: Katie Peralta

While driving around South Bend, students might notice Potawatomi Park, Potawatomi Zoo and Pokagon Street – places all named after former residents of the area, the Potawatomi American Indian tribe and its local division, the Pokagon Band.

But not all passers-by may be aware that the land upon which Notre Dame was built once belonged to the Pokagon Band.

As a part of Native American Heritage Month, Notre Dame’s Multicultural Student Programs and Services (MSPS) will host a series of events bringing members of the Potawatomi tribe to campus to relay the history between the tribe and the University. As part of this series, MSPS will host a dinner Dec. 4 featuring members of the Potawatomi tribe to share their history.

Before Notre Dame founder Father Edward Sorin claimed this plot of land on Nov. 26, 1842, the land had been inhabited by the Pokagon Band, said Kevin Daugherty, educational resource developer for the Pokagon Band.

The Chicago Treaty of 1833, however, ordered the removal of Indians in the northern Indiana region, Daugherty said. Leopold Pokagon, a prominent Potawatomi leader and the spokesperson after whom the Pokagon Band is named, negotiated the right to stay on the land and was given a sum of money, Daugherty said. Pokagon used this money to buy land northwest of modern-day Dowagiac, Mich., where Daugherty said many members of the band still reside today.

During the 17th and 18th centuries, Potawatomi land stretched from what is now Chicago to Detroit, Daugherty said.

Many different villages populated this region and considered themselves Potawatomi, sharing a common language and culture. Such villages had alliances but operated independently on a local level.

The Pokagon Band of the Potawatomi Indians resided in the southwest Michigan and northern Indiana region, including the grounds where campus is now.

“They of course moved around a bit,” Daugherty said. “They moved along the St. Joseph River to farm, hunt and gather.”

Notre Dame anthropology professor Mark Schurr led an archaeological survey along the St. Joseph River about five years ago. The survey, a joint effort of a Notre Dame field school and the Pokagon Band, lasted about three years and revealed a few village sites along the river, Schurr said.

American settlers began moving west and consequently pushed for removal of American Indians by the U.S. government, Daugherty said.

In compliance with settlers’ demands for westward migration, the Indian Removal Act of 1830 dictated that all native peoples east of the Mississippi River move to present day states of Kansas and Oklahoma, said Ben Secunda, a Notre Dame history professor.

Just as the Cherokee’s removal was called the “Trail of Tears,” Secunda said, the Potawatomi called their removal the “Trail of Death.” The Potawatomi tribe, along with sympathetic whites such as the Catholic missionaries and traders friendly to the Indians, strongly protested it.

Secunda noted that violent roundups, led by governmental officials like Indian agent John Tipton, occurred throughout the Midwest except in the area of Michigan where Leopold Pokagon had secured land for his people. Pokagon’s land, Secunda said, became a safe haven for refugees evading the removal to Kansas. Baptist missionaries in the area supported such removals, he said.

To resist such removal, Leopold Pokagon, in 1830, trekked to Detroit to the Catholic headquarters to make an appeal, Secunda said. He asked for a Catholic priest to come back with him, one who would aid in removal resistance, convincing Father Stephen Badin and the Catholic missionaries to come down to the South Bend area, Secunda said.

Badin and the missionaries came and worked out of Pokagon’s log chapel, the famous historic landmark next to Saint Mary’s Lake, Secunda said. This became their base of operations.

Essentially, he said, out of Leopold Pokagon’s appeal came Notre Dame.

“The Pokagon band, Roman Catholic Church and Notre Dame priests supplemented each other at a key point in their history,” Schurr said. “Since then the groups have gone their separate ways. None would be as successful as they are now.”

Badin and the other Catholic missionaries successfully replaced the other pro-removal missionaries.

“The forerunners of the University did the right thing,” Secunda said. “With their help, the Potawatomi people were able to maintain a level of self-sufficiency, avoid removal, become Catholic and basically survive as a people.”

When Sorin arrived in the area in fall of 1841, “the Pokagons and the Catholics were interacting readily,” Daugherty said.

From the beginning, the Potawatomi in the area coexisted peacefully with the new settlers, Schurr said.

In fact, he said, Badin and the other priests shared many meals with the tribe members. They also lived in close proximity with the tribe.

The Pokagon Band today is scattered throughout Midwest. This dispersal is not totally unprecedented, Daugherty said.

“We have never had a land base or tribal ownership,” he said.

Though there is dispersal, the largest Pokagon population today is located in northern Indiana and southwestern Michigan.

About 3,300 members are in the Band today, and Daugherty said roughly 40 percent live within about 30 miles of Dowagiac. There is also a large concentration of people in the Kalamazoo area, with the remainder scattered across the Midwest.

Native American Heritage Month at Notre Dame includes a number of programs. In addition to the Dec. 4 dinner, the agenda includes a workshop in black ash basketry on Nov. 26. A visual display on contemporary American Indians will be displayed in the library for the remainder of the month.