Second Circuit

Second Circuit Certifies Questions of Indian Taxation to N.Y. Court of Appeals

Matthew L.M. Fletcher1 Comment

Here is the opinion in City of New York v. Golden Feather Smokeshop: City of New York v Golden Feather

Here are the questions certified:

(1) Does N.Y. Tax Law § 471-e, either by itself or in combination with the provisions of § 471, impose a tax on cigarettes sold on Native American reservations when some or all of those cigarettes may be sold to persons other than members of the reservation’s nation or tribe?

(2) If the answer to Question 1 is “no,” does N.Y. Tax Law § 471 alone impose a tax on cigarettes sold on Native American reservations when some or all of those cigarettes may be sold to persons other than members of the reservation’s nation or tribe?

Schaghticoke Petition for Rehearing En Banc before Second Circuit

Matthew L.M. Fletcher

Here — STNRehearingPetition091125

Second Circuit Rejects Schaghticoke Federal Recognition Appeal

Matthew L.M. Fletcher1 Comment

From Indianz:

The 2nd Circuit Court of Appeals won’t give the Schaghticoke Tribal Nation of Connecticut another shot at federal recognition.

The tribe accused state and local officials of exerting “improper political influence” on the Bush administration. But the court said tribe lacked sufficient evidence to back up the claim.

The Bureau of Indian Affairs initially backed the tribe by relying, in part, on the state’s continuous recognition of the Schaghticokes. The agency reversed course after a challenge from the state of Connecticut.

The tribe could ask the 2nd Circuit to rehear the case or take the battle to the U.S. Supreme Court. “Whenever you have a governor, two senators, three congressional members and the attorney general try to take your recognition away, it’s hard to think there is not political influence,” Chief Richard Velky told The Danbury News-Times.

Attorney General Richard Blumenthal warned the tribe not to take the case any further. “An appeal to the U.S. Supreme Court — the only recourse left — would be futile and foolish, and we will fight it vigorously,” he said in a press release

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Second Circuit Summarily Dismisses Joe Frazier Suit against Oneida’s Turning Stone Casino

Matthew L.M. Fletcher1 Comment

Here is the opinion in Frazier v. Brophy — Frazier v Brophy CA2 Order

An excerpt:

An Indian Tribe is not a citizen of any state for the purposes of diversity jurisdiction. Romanella v. Hayward, 114 F.3d 15, 16 (2d Cir. 1997); Frazier, 254 F. Supp. 2d at 304. (“[T]he Court cannot assert diversity jurisdiction over this action as long as the Oneida Indian Nation (“Oneida Nation”) and the Casino are Defendants.”). Because an Indian Tribe is not a citizen of any state, the Oneida Nation’s presence as a party bars a federal court from hearing the matter under its diversity jurisdiction. Romanella, 114 F.3d at 16 (“[T]he diversity statute’s provisions for suits between citizens of different states, 28 U.S.C. § 1332(a), strictly construed, cannot be said to embrace suits involving Indian tribes.”); see also Newman-Green, Inc. v. Alfonzo-Larrain, 490 U.S. 826, 829 (1989) (holding that one stateless party destroys diversity jurisdiction). This accords with the treatment of other domestic sovereigns, such as states, which cannot sue or be sued in diversity. Romanella, 114 F.3d at 16. Given the continued presence of the Oneida Nation in this suit, the district court lacked subject matter jurisdiction to hear this case. We therefore remand with instructions to dismiss the matter.

And, importantly:

The dismissal of this suit from federal court does not foreclose all relief against the tribe, its casino, and its agents. The Oneida Nation has a trial and appellate court system staffed by former New York Court of Appeals Judges Stewart Hancock and Richard Simons. FACT SHEET: The Oneida Nation Court, http://www.oneidaindiannation.com/pressroom/factsheets/26965674.html (last visited October 2, 2009). To the extent Frazier has live claims against the tribe, its casino, or the casino’s employees, he could attempt to bring them there.

Schaghticoke Recognition Appeal to be Heard in Second Circuit

Matthew L.M. Fletcher

From ICT:

NEW YORK – Almost five years to the date after the BIA issued a devastating reversal of the Schaghticoke Tribal Nation’s federal acknowledgment, the 2nd Circuit Court of Appeals will hear oral arguments in the nation’s ongoing quest to restore its federal status.

The hearing will take place Oct. 8. The STN case is the last on a list of eight other cases to be heard that day.

The BIA recognized STN in a Final Determination Jan. 29, 2004, then reversed its decision on Columbus Day, Oct. 12, 2005, in an unprecedented Reconsidered Final Determination, taking away the federal acknowledgment of both the Schaghticoke and Eastern Pequot Tribal Nation.

While the Eastern Pequots have not challenged the reversal, STN has fought it since January 2006 through an Administrative Procedures Appeal in the U.S. District Court in New Haven. The appeal names the Interior Department and its top officials during the Bush administration as defendants.

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Second Circuit Holds that States Have Standing to Sue Polluters over Global Warming

Matthew L.M. Fletcher

Potentially good news for the Native Village of Kivalina plaintiffs…..

From How Appealing:

“States Can Sue Utilities Over Emissions”: This article appears today in The New York Times.

The Associated Press reports that “Pollution lawsuit against power companies revived.”

Reuters reports that “U.S. court reinstates emissions suit vs. utilities.”

And Dow Jones Newswires report that “US appeals court reinstates global warming lawsuits.”

You can access yesterday’s ruling of the U.S. Court of Appeals for the Second Circuit at this link.

Pyke v. Cuomo — Dismissal of Claims against State re: Mohawk Unrest

Matthew L.M. Fletcher

Here is the short, per curiam opinion in Pyke v. Cuomo — Pyke v Cuomo

An excerpt:

This case arises from widespread, violent unrest on a Mohawk Indian reservation in New York in the late 1980s and early 1990s. At issue is the response of certain New York officials to that crisis. Plaintiffs, as representatives of a class, argue that Defendants-all of whom are government officials with some responsibility for the policing of Indian lands-violated Plaintiffs’ rights under the Equal Protection Clause through their inadequate and at times harmful response to the unrest on the reservation. Plaintiffs allege that Defendants’ actions contributed to millions of dollars in property damage and the deaths of two young Mohawks.

***

The violence on the Mohawk reservation was an indisputable tragedy. But Plaintiffs have not shown that Defendants’ attempts to avert it, however unsuccessful they might have been, were a violation of the Equal Protection Clause. Accordingly, we AFFIRM the judgment of the District Court.

Catskill Development v. Park Place Entertainment — Gaming Development Dispute

Matthew L.M. Fletcher

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

catskill-development-v-park-place-ca2-opinion

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