Case 6:08-cv LEK-DEP Document 58 Filed 05/08/09 Page 1 of 46

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1 Case 6:08-cv LEK-DEP Document 58 Filed 05/08/09 Page 1 of 46 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK CENTRAL NEW YORK FAIR BUSINESS ASSOCIATION, CITIZENS EQUAL RIGHTS ALLIANCE, and MICHAEL J. HENNESSY, Oneida County Legislator, Plaintiffs, AMENDED COMPLAINT Civil Action No. v. 6:08-cv LEK-GJD KENNETH L. SALAZAR, individually and in his official capacity as Secretary of the U.S. Department of the Interior, P. LYNN SCARLETT, in her official capacity as Deputy Secretary of the U.S Department of Interior, JAMES E. CASON, in his official capacity as the Associate Deputy Secretary of the Interior; FRANKLIN KEEL, the Regional Director for the Eastern Regional Office of the Bureau of Indian Affairs; and JAMES T. KARDATZKE, Eastern Regional Environmental Scientist; and ARTHUR RAYMOND HALBRITTER, as a real party in interest as the Federally Recognized Leader of the Oneida Indian Nation. Defendants. FIRST AMENDED COMPLAINT FOR ADMINISTRATIVE REVIEW, DECLARATORY AND INJUNCTIVE RELIEF AND CIVIL RIGHTS VIOLATIONS NATURE OF THE ACTION 1. Plaintiffs are seeking to reverse the final Record of Decision ( ROD ) of the Bureau of Indian Affairs ( BIA ) through the Secretary of the Department of the Interior ( DOI ), issued on May 20, 2008 and published in the Federal Register on May 23, 2008 (73 Fed. Reg , May 23, 2008), which seeks to place 13, acres of land in Central New York and owned in fee simple by the Oneida Indian Nation of New York ( OIN ) into federal trust on 1

2 Case 6:08-cv LEK-DEP Document 58 Filed 05/08/09 Page 2 of 46 behalf of the OIN pursuant to the Indian Reorganization Act of 1934 ( IRA ) 25 U.S.C. 465, et seq. This action by the DOI is a final agency action pursuant to 25 C.F.R. 2.6 and 5 U.S.C Plaintiffs assert that the ROD is contrary to existing law and that its implementation would cause permanent and irreparable harm to the environment, including the human environment as defined in the National Environment Policy Act ( NEPA), 42 U.S.C et seq; would create a jurisdictional nightmare for the state and local governments, and would aggravate the ongoing economic destruction of the state and local economies. 3. The DOI failed to apply a fair and unbiased analysis of the jurisdictional and human impacts as required by this agency action under the National Environmental Policy Act ( NEPA ), 42 USC 4321 et seq. and the plaintiff s also allege that the DOI has failed to withdraw the Final Environmental Impact Statement (FEIS) that wrongfully assumed that non- Indian interests did not require consideration against the interests of the OIN. 4. Plaintiffs assert that according to the administrative record the Oneida Indian Nation of New York was not a recognized Indian tribe in June 1934 now under federal jurisdiction as required by 25 U.S.C. 479 of the Indian Reorganization Act (IRA). The OIN is therefore not eligible for the benefits of the IRA that includes allowing the Secretary to take lands into trust under 25 U.S.C Carcieri v. Salazar, 129 S Ct (February 24, 2009). 5. Plaintiffs assert that based on the plain reading of the United States Constitution, Art. IV, Sec. 3, Cl.2, and the recent decisions of Carcieri v. Salazar and Hawaii v. Office of Hawaiian Affairs, 129 S Ct (March 31, 2009) and the previous cases of City of Sherrill v. Oneida Indian Nation, 544 U. S. 197 (2005) and Cayuga Indian Nation v. Pataki, 413 F. 3d 266 (2nd Cir. 2

3 Case 6:08-cv LEK-DEP Document 58 Filed 05/08/09 Page 3 of ), cert. denied, 2006 U.S. LEXIS 3949 (U.S., May 15, 2006), that the defendants have no authority to create federal public domain land or federal Indian land in the State of New York, an original Colony and sovereign state, which has retained its pre-emptive rights to all lands within its exterior boundaries. 6. The Secretary and OIN wrongly assume that the discussion of Section 465 and the Part 151 regulations at the end of the Sherrill opinion were an invitation to take lands into trust for the OIN through the Section 465 process and that aboriginal Indian title still exists in the OIN is utterly false. The aboriginal Indian title was ceded permanently and forever to the sovereign state of New York in the 1788 Treaty of Fort Schuyler. It is critically important to note that the Constitution of the United States was not in effect in 1788 when the OIN ceded all of its land rights, to the State of New York. 7. That at the time of the filing of this case, no lands in New York had ever been placed in federal trust status pursuant to 25 U.S.C Since then, 18 acres of the former radar station in Verona are claimed by Defendant Salazar to have been transferred into trust for the OIN. This asserted authority of the Secretary is similar to the authority claimed for fee to trust and is addressed in this amended complaint. 8. Plaintiffs assert that the holdings in Carcieri v. Salazar and Hawaii v. Office of Hawaiian Affairs actually prohibit the federal defendants from accepting any lands into federal trust status pursuant to 25 U.S.C. 465 for the OIN. 9. In Sherrill, the United States Supreme Court held, the Tribe cannot unilaterally revive its ancient sovereignty, in whole or in part, over the parcels at issue. The Oneidas long ago relinquished the reins of government and cannot regain them through open-market purchases 3

4 Case 6:08-cv LEK-DEP Document 58 Filed 05/08/09 Page 4 of 46 from current titleholders. Sherrill at 198. The court also recognized that there is no federal common law right in an Indian tribe or the United States to: Argue that because the Court in Oneida II recognized the Oneida s aboriginal title to their ancient reservation land and because the Tribe has now acquired specific parcels involved in this suit in the open market, it has unified fee and aboriginal title and may now assert sovereign dominion over the parcels, Sherrill at The Part 151 regulations promulgated by the Secretary of the Interior are beyond his statutory authority as applied in New York to Indian tribes under state jurisdiction. 25 U.S. C. 232 and The asserted authority of the Secretary that he can convert fee lands under state jurisdiction into federal Indian territorial lands under exclusive federal jurisdiction to remove the state process rights of all non-indian citizens in violation of the Civil Rights Acts of 1866 and 1871 is based on the unification theory (the unification theory allowed the Secretary to restore to any Indian tribe a land base and sovereign status) that was specifically rejected in Sherrill. This theory became a central part of federal Indian policy with the Nixon Indian Message to Congress of July 8, The specific theme of the Message was Tribal self-determination without termination. 12. Attached as Exhibit 1 is a draft legal memorandum prepared for Leonard Garment, Chief Legal Counsel to President Nixon and initially to President Ford, just weeks after President Nixon resigned. The memorandum titled The Native American: What Level Sovereignty? is a synopsis of the Nixon Indian policy. The memorandum explains how the affirmative action type policy of the IRA was perverted into a federal weapon to promote tribal sovereignty. 4

5 Case 6:08-cv LEK-DEP Document 58 Filed 05/08/09 Page 5 of This ROD represents a direct attack at the sovereignty of the State of New York in furtherance of the Nixon Indian policy to disrupt the taxation and regulatory powers of the State and local governments in violation of the constitutionally required separation of powers. 14. The ROD is an overreach of the power designated to the Secretary under the IRA. In point of fact, the Secretary is acting outside of the scope of his authority and beyond his discretion by claiming he has the authority to take fee lands into trust in New York. 15. The ROD is: arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; contrary to the constitutional right, power and privilege or immunity; in excess of statutory jurisdiction, authority, or limitations, or short of statutory right; without observance of procedure required by law and all other relevant provisions of 5 USC 706 of the Administrative Procedures Act ( APA ). The ROD is also in violation of 42 U.S.C. 4321, et seq, and in violation of the relevant statute and regulations governing land into trust under 25 U.S.C. 465, 25 C.F.R. 151 et seq. Accordingly, the ROD is unlawful; and by virtue of the same, this action on the part of the agency must be set aside, as provided for under 5 U.S.C JURISDICTION AND VENUE 16. The jurisdiction of this court is invoked pursuant to 28 U.S.C. 1331, 5 U.S.C. 500 et seq., 5 U.S.C et seq. and 28 U.S.C and 2202; 42 U.S.C. 1981, 1983, 1985 and 1986; 42 U.S.C 1343 et seq. The United States waives sovereign immunity from suit under 5 U.S.C. 702 and 28 U.S.C. 2209(a). The United States is liable under the Civil Rights Act of 1866 like any private party and under the Civil Rights Act of 1871 if the asserted federal action claims the authority of state action. The federal defendants are claiming the authority to remove state jurisdiction and create federal jurisdiction over land that has always 5

6 Case 6:08-cv LEK-DEP Document 58 Filed 05/08/09 Page 6 of 46 been under the sovereignty of New York since the adoption of the Constitution of the United States in There now exists a controversy between the parties that evokes the jurisdiction of this court, as the decision to take the aforesaid land into trust constitutes a final decision of the Secretary of the Interior that is subject to review by this court. 17. The notice of the ROD was published in 73 F.R on May 23, Pursuant to 25 C.F.R (b) this notice was appealed within 30 days. The ROD does not comply with 25 C.F.R. 2.6 (c) that requires the signature of the Assistant Secretary of Indian Affairs to be a final decision of the DOI. Plaintiffs filed notice of appeal to the Interior Board of Indian Appeals ( IBIA ) on June 10, 2008, challenging the ROD as a final decision under 25 C.F.R. 2.6(c). On June 13, 2008, the IBIA docketed the appeal as IBIA A and issued an Order dismissing the appeal for lack of jurisdiction. The IBIA found that No regulation or delegation grants the Board the authority to review a decision by the Deputy Secretary or the Associate Deputy Secretary. The Board s jurisdiction is limited to the authority vested in it by regulation or otherwise delegated to it by the Secretary of Interior. See 43 C.F.R. 4.1 (b)(2). Pursuant to 25 C.F.R. 2.6 and 4.315(c) the IBIA order is a final agency action amenable to judicial review. No further federal administrative appeal is necessary. All federal administrative remedies are exhausted as required by 5 U.S.C. 704 for judicial review. 18. Venue is proper in this court under 28 U.S.C. 1391(b)(2) and 1391(e), 5 U.S.C The property that is the subject of this fee to trust decision is located in this judicial district and the plaintiff s reside in the district and/or are lawfully elected to serve the residents of these districts. PARTIES 6

7 Case 6:08-cv LEK-DEP Document 58 Filed 05/08/09 Page 7 of Plaintiff, Central New York Fair Business Association ( CNYFBA ), is a nonprofit corporation incorporated under the laws of the State of New York and has members who own homes and operate businesses in and around the areas that are included in the DOI s ROD. 20. Plaintiff, Citizens Equal Rights Alliance ( CERA ), is a non-profit 501 (c)(4) corporation incorporated in South Dakota. CERA has members in 22 states including members throughout New York State. Three CERA board members own property in New York. One board member resides in Oneida County within one mile of parcels to be taken into trust by the ROD. 21. Plaintiff, Michael J. Hennessy, is an Oneida County Legislator for the 2 nd District and resides near parcels to be taken into trust and represents thousands of residents who also reside near the lands to be taken into trust by the ROD. 22. The Defendants are the Secretary of the Interior, Kenneth L. Salazar 1 ; the Deputy Secretary of the Interior, P. Lynn Scarlett; the Associate Deputy Secretary of the Department of the Interior, James E. Cason; Franklin Keel, Eastern Regional Director of the Bureau of Indian Affairs; Arthur Raymond Halbritter, as a real party in interest as the federally recognized leader of the Oneida Indian Nation of New York. All, except the real party in interest Halbritter, are being sued in their official and individual capacity and are named defendants as a result of the actions and decisions of the DOI for which they bear the responsibility. STATEMENT OF FACTS 23. The ROD dated May 20, 2008 and filed May 23, 2008, adopts Alternative I- as the Preferred Alternative to accept 13, acres into trust status for the OIN. 1 Secretary Kenneth L. Salazar was nominated and confirmed for the Obama administration and has been substituted for former Secretary Dirk Kempthorne pursuant to Fed. Rule Civ. Pro.25(d). 7

8 Case 6:08-cv LEK-DEP Document 58 Filed 05/08/09 Page 8 of In describing the proposed action, Defendants acknowledge that as a result of its decision to acquire the land in trust, such land would be subject to tribal sovereignty, and immune from New York State and local governmental taxation and regulations. See Record of Decision ( ROD ) at The ROD states in Section 1.4 that the authority for its actions are Section 5 of the IRA (25 U.S.C. 465) and 25 C.F.R. Part 151 (ROD at 8). 26. The ROD also wrongly asserts that the parcels of land to be acquired in trust were part of OIN s reservation implying that the land was under federal jurisdiction when in fact this was a state reservation and, therefore, should be subject to the more stringent two-part review applicable to off-reservation lands to be acquired into trust under 25 C.F.R The ROD, in Section 1.3 states, the purpose of the Proposed Action is to help address the Nation s need for cultural and social preservation and expression, political selfdetermination, self-sufficiency and economic growth by preserving a tribal land base and homeland. 28. The Sherill Court did not analyze or discuss the applicability of 25 U.S.C. 465 to New York, it simply stated that it was the only proper avenue available for taking land into trust. 29. In effect, the defendants are asserting the authority to create a federal Indian reservation in New York where no federal Indian reservation has ever existed. 30. The Oneida Indian Nation ( OIN ), an actual party to the Sherrill case, is a direct descendant of the Six Nations of the Iroquois. Id. at 230. The new administration has not yet nominated anyone for the positions of Deputy Secretary or Associate Deputy Secretary to replace the named parties. 8

9 Case 6:08-cv LEK-DEP Document 58 Filed 05/08/09 Page 9 of Prior to the birth of the United States, the Oneida Nation's aboriginal homeland comprised some six million acres in what is now central New York. Ibid.; Oneida Indian Nation of N. Y. v. County of Oneida, 414 U.S. 661, (1974) (Oneida I). 32. As set forth in paragraph one of the 1788 Treaty of Fort Schuyler, for payments in money and kind, the Oneidas ceded to New York "all their lands." Paragraph two then established a state use right reservation of 300,000 acres for the cultivation, hunting and occupation of the Oneidas allowing them to rent the land for periods of not more than 20 years. This paragraph also reserved to the Oneidas a usufructary hunting and fishing right on the ceded lands and waterways. 33. The Federal Government initially pursued a policy protective of the New York Indians, undertaking to secure the Tribes' rights to the remaining reserved state lands. See Oneida II, 470 U.S., 470 at ; Oneida I, 414 U.S., at 667; F. Cohen, Handbook of Federal Indian Law (1942 ed.); F. Cohen, Handbook of Federal Indian Law (1982 ed.) (hereinafter Handbook). 34. In 1790, Congress passed the first Indian Trade and Intercourse Act, commonly known as the Nonintercourse Act. Act of July 22, 1790, ch. 33, 1 Stat In 1793, Congress specifically removed language that attempted to apply the statute to, any state, whether having pre-emption to such lands or not. Act of March 2, 1793, 8, 1 Stat. 329, In 1794, in further pursuit of its protective policy, the United States entered into the Treaty of Canandaigua with the Six (Iroquois) Nations. Act of Nov. 11, 1794, 7 Stat. 44. That treaty both "acknowledge[d]" the Oneida Reservation as established by the Treaty of Fort Schuyler and guaranteed the Oneidas' "free use and enjoyment" of the reserved state land. The 9

10 Case 6:08-cv LEK-DEP Document 58 Filed 05/08/09 Page 10 of 46 Oneidas in turn agreed they would "never claim any other lands within the boundaries of the United States." 36. In the 1794 Treaty of Canandaigua, the Federal Government acknowledged the state reservation. Article 2 states: The United States acknowledge the lands reserved to the Oneida, Onondaga and Cayuga Nations, in their respective treaties with the state of New York, and called their reservations, to be their property; and the United States will never claim the same, nor disturb them or wither of the Six Nations, nor their Indian friends residing thereon and united with them, in the free use and enjoyment thereof: but of said reservations shall remain theirs, until they choose to sell the same to the people of the United States, who have the right to purchase. (emphasis added). 37. Also in 1794, the Jay Treaty with Great Britain, November 19, 1794, 8 Stat. 116, confirmed the right of free passage on the waterways to all Indians. 38. New York State continued to purchase the use right from the Oneidas on specific parcels of state land reserved for their benefit. 39. The administration of George Washington initially objected to the purchases by New York. Later administrations, however, "[made not] even a pretense of interfer[ing] with [the] State's attempts to negotiate treaties [with the Oneidas] for land cessions." Oneida Nation of N. Y. v. United States, 43 Ind. Cl. Comm'n 373, 385 (1978). 40. As recounted by the Indian Claims Commission in 1978, early 19th-century federal Indian agents in New York State did not simply fail to check New York's land purchases, they "took an active role... in encouraging the removal of the Oneidas... to the west." Oneida Nation of N. Y., 43 Ind. Cl. Comm'n, at 390; see id., at 391 (noting that some federal agents were "deeply involved" in "plans... to bring about removal of the [Oneidas]" and the State's acquisition of Oneida land). 10

11 Case 6:08-cv LEK-DEP Document 58 Filed 05/08/09 Page 11 of Beginning in 1817, the Federal Government accelerated its efforts to remove Indian tribes from their east coast homelands. F. Cohen Handbook 78-79, n Pressured by the removal policy to leave their ancestral lands in New York, some 150 Oneidas, by 1825, had moved to Wisconsin. 42. The Federal Government ended its policy of protecting the aboriginal title of the eastern tribes and other east coast Indian concerns with the Removal Act of 1830, May 28, 1830, 4 Stat As part of the policy to remove the remaining Indian tribes west of the Mississippi River, Congress amended the Trade and Intercourse Act definition of Indian country to exclude the States east of the Mississippi. June 30, 1834, 4 Stat By removing the Indian country designation for all former Indian lands east of the Mississippi River, Congress relinquished any remaining Indians and Indian lands to state jurisdiction. Exhibit 1, Part 2 at p The Indian Commerce Clause, Art. I, Sec. 3, Cl. 8, traditionally only applies in areas designated as Indian country. Removing the designation allows persons of Native American descent who are no longer federal wards to be treated equally under state and federal law. 46. In furtherance of the Removal Act policy, in 1838, the Oneidas and the United States entered into the Treaty of Buffalo Creek, which envisioned removal of all remaining New York Indians to Kansas. Act of Jan. 15, 1838, 7 Stat The Indians who stayed on in New York after the proclamation of the Buffalo Creek Treaty continued to diminish in number and, during the 1840's, sold most of their remaining lands to the State. New York Indians v. United States, 40 Ct. Cl. 448, 458, (1905). 11

12 Case 6:08-cv LEK-DEP Document 58 Filed 05/08/09 Page 12 of The eastern Indian policy was partly addressed in the Indian Policy of 1871 that ended making treaties with the Indian tribes because the Five Civilized Tribes removed to Oklahoma fought for the Confederate States during the Civil War. 49. The Reconstruction era Indian Policy of 1871 contained in the Revised Statutes at Large is a military policy that was used to suppress the remaining Indian tribes by force and confine them to military reservations. 50. The Indian Policy of 1871 had no direct application in New York because there were no Indian tribes remaining in New York. New York Indians, 173 U.S. 464 (1899). 51. The individual Indian sale of the use right of occupied state lands to the State of New York continued through the 1890 s and into the Twentieth Century. 52. The consistent policy of the United States was to allow the State of New York complete civil and criminal jurisdiction over the Indian descendants remaining on the small state land reservations. See United States ex rel Kennedy v. Tyler, 269 U.S. 13 (1925); 25 U.S.C. 232, In 1887, Congress reacted to the harshness of the Indian Policy of 1871 and enacted the Dawes (General Allotment) Act. 25 U.S.C. 331 et seq. The Dawes Act signaled a return to the assimilation policy that predated the Civil War for tribes that had ceased hostilities with the United States. 54. Under the Dawes Act, the Secretary disposed of vast tracts of federal public domain land reserved to western Indian tribes as individual allotments. 55. Federal public domain land is land acquired as territory by the United States under the Property Clause that contains complete sovereign title and has never been under state 12

13 Case 6:08-cv LEK-DEP Document 58 Filed 05/08/09 Page 13 of 46 jurisdiction. 56. New York as one of the thirteen original colonies has never had any federal public domain land within its borders. 57. The federal policy of allotment under the Dawes Act has never been applicable to any of the state lands reserved for Indians in New York. 58. As part of this policy, the President was expressly prohibited from making any more Indian reservations. See Indian Appropriations Act of 1919, Section 27, 41 Stat. 3, Congress reserved to itself in the same act in 1919 the exclusive right to make a new Indian reservation, but only on lands under federal superintendence. 60. In 1924, Congress made the policy of assimilation permanent by passing the Indian Citizenship Act making all Indians full citizens of the United States whether they reside on or off federal Indian reservations. 61. The IRA was enacted in 1934 to end the allotment of Indian lands pursuant to the Dawes Act of 1887, ( The policy of allotment came to an abrupt end in 1934 with the passage in 1934 of the [IRA] ); F.S. Cohen, Handbook of Indian Law (1941) at As originally proposed by John Collier, the IRA was a sweeping restoration of tribal sovereignty. 63. The IRA of 1934, Public Law 383, 48 Stat. 984, 25 U.S.S. 461et seq., as passed by Congress did not and could not include the state reservation lands still in existence in New York and other original colonies. 13

14 Case 6:08-cv LEK-DEP Document 58 Filed 05/08/09 Page 14 of The IRA was intended by Congress to be an affirmative action type program that respected tribal affiliations to assist the Indians in transitioning to the responsibilities of full citizenship. 65. John Collier, Commissioner of the BIA and primary author of the IRA, had requested that all of the Indian Policy of 1871 be repealed before the enactment of the IRA. 66. When it became apparent that the sweeping IRA proposed by Collier was not going to pass, only specific provisions of the Indian Policy of 1871 in the Revised Statutes were repealed by Congress. Act of May 21, 1934, Ch. 321, 48 Stat A very downsized version of the IRA was finally passed on June 18, Beginning in 1935 with the tribal voting on whether to accept the IRA, Commissioner Collier was accused by Senators on the Indian Committee of attempting to expand the IRA to encompass all of the aspects that Congress had denied. 69. The Senators threatened to repeal the IRA unless Commissioner Collier stopped exceeding his authority. 70. In 1935, a crisis over allotted land in Oklahoma created by the discovery of oil caused Congress to enact laws to restrict the sale of allotted lands that were no longer in trust status. 71. Privately owned Indian land not held in trust or otherwise subject to restriction was defined in 1937 as being federal instrumentalities to prevent sales and contracts from cheating the individual Indians out of the oil revenue. Act of May 19, 1937, Ch. 227, 50 Stat

15 Case 6:08-cv LEK-DEP Document 58 Filed 05/08/09 Page 15 of While not an amendment to the IRA, John Collier decided to integrate this federal instrumentality war power to achieve his original ideas for the IRA that had been specifically rejected by Congress. See Board of Creek County Commissioners v. Seber, 318 U.S. 705 (1943). 73. Congress reacted negatively to the Seber decision and President Roosevelt responded by firing Commissioner John Collier. 74. With the firing of Collier, the strong promotion of the IRA ended until The Indian Reorganization Act (IRA) requires in 25 USC 465, that: Title to any lands or rights acquired pursuant to this Act... shall be taken in the name of the United States in trust for the Indian tribe or individual Indian for which the land is acquired, and such lands or rights shall be exempt from State and local taxation. 76. Until 1978, all lands restored to tribal sovereignty under the IRA were acquired by direct appropriation of Congress under the Property Clause, Art. IV, Sec. 3, Cl. 2 or Enclave Clause, Art. I, Sec. 8, Cl No other clauses exist in the Constitution for the federal government to acquire ownership of land. 78. The federal government has admitted in legal briefs that neither the Property Clause, nor the Enclave Clauses apply to Indian land here in New York. CNYFBA et al v. Kempthorne, 2007 U.S.Dist. LEXIS (6:06-cv-1501), Brief of Department of Justice, page 22, filed April 9, The State of New York must consent to cede its jurisdiction for lands purchased by Congress under the Enclave Clause to vest federal jurisdiction over the federal personnel and federal purpose of the site. 15

16 Case 6:08-cv LEK-DEP Document 58 Filed 05/08/09 Page 16 of Unlike most fee to trust applications that are for small parcels of land to be added to an existing federal Indian reservation, the OIN fee to trust application is for more than 17,000 acres of lands that have been under continual state jurisdiction for more than two hundred years. 81. To now place these lands into federal trust status, is essentially creating a federal Indian reservation in New York where none have ever existed. 82. No other act of Congress can be interpreted to authorize the Secretary of the Interior to place lands into trust status for an Indian tribe. 83. 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, which was rejected in the Sherrill decision. 84. Under the Enclave Clause Congress may by act appropriate land for a tribe and remove it from state jurisdiction with state consent. 85. The Secretary has no authority under the IRA to remove lands from the State or local tax base. See Hynes v. Grimes Packing Co., 337 U.S. 86, (1949), See also Mescalero Apache Tribe v. Jones, 411 U.S. 145 (1973). 86. The assumption that the IRA authorized the Secretary of the Interior to recognize any tribe contemporaneously and then grant them all of the benefits of the IRA and other Indian laws was a product of the Nixon Indian Policy. See Exhibit 1, Part 4 at p The question of whether the Oneidas of New York are eligible to receive the benefits of the IRA which includes the authority of the Secretary to take lands into trust under 25 U.S.C. 465 must now be expressly decided by this court following the decision of the United States Supreme Court in Carcieri v. Salazar, 129 S Ct (2009), as a preliminary matter to 16

17 Case 6:08-cv LEK-DEP Document 58 Filed 05/08/09 Page 17 of 46 determine whether the ROD is even within the authority of the Secretary. FIRST CLAIM FOR RELIEF The Record of Decision is arbitrary and capricious, and abuse of discretion, and otherwise not in accordance with law because it fails to adequately assess the environmental impacts in accordance with the National Environmental Policy Act (NEPA) 88. Plaintiffs repeat and reallege paragraphs 1 through 87, inclusive, of this Amended Complaint as if fully set forth herein. 89. Immediately after the Sherrill decision, the OIN applied to have 17,000 plus acres taken into trust by the Secretary of the Interior. Through DOI, the Bureau of Indian Affairs ( BIA ) began its NEPA review. 90. The DOI, through the BIA prepared a Draft Environmental Impact Statement which was completed on November 24, The BIA then solicited comments and conducted public comment sessions throughout the impacted region. 91. Throughout the process, OIN and its representatives threatened the closure of the Casino as among one of the dire events that would take place if land were not placed in trust. This sentiment is echoed in the Final Environmental Impact Statement ( FEIS ). 92. The DOI analyzed the various alternatives. The Preferred Alternative, Alternative I, called for 13, 086 acres of OIN s 17,000 acre request to be placed in trust, including (a) all of the 3,428 acres in Oneida County where OIN operates the Class III Turning Stone casino, gamingrelated activities and hotel, five adjacent golf courses, and a Sav-On gas station and convenience store; (b) approximately 6,475 acres in both Madison and Oneida County, including the location of the OIN s government, health, education and cultural facilities and activities, member housing, hunting lands, numerous non-gaming Nation enterprises, including 12 Sav-On gas stations and 17

18 Case 6:08-cv LEK-DEP Document 58 Filed 05/08/09 Page 18 of 46 convenience stores, a newspaper operation, three marinas and agricultural operations, and ( c) approximately 7,467 acres in both Oneida and Madison Counties which were characterized in the Final Environmental Impact Statement as generally underdeveloped, active and inactive agricultural lands. 93. NEPA requires that all agencies of the Federal Government shall include in every recommendation or report on major Federal actions significantly affecting the quality of the human environment, a detailed statement by the responsible official. 42 U.S.C. 4332(2)(c). When enacting NEPA, Congress: recogniz(ed) the profound impact of man s activity on the interrelations of all components of the natural environment, particularly the profound influences of population growth, high-density urbanization, industrial expansion, resource exploitation, and new and expanding technological advances and recognize(ed) further the critical importance of restoring and maintaining environmental quality to the overall welfare and development of man, (and) declare(d) that it is the continuing policy of the Federal Government, in cooperation with the State and local governments, and other concerned public and private organizations, to use all practicable means and measures, including financial and technical assistance, in a manner calculated to foster and promote the general welfare to create and maintain conditions under which man and nature can exist in productive harmony, and fulfill the social, economic, and other requirements of present and future generations of Americans. 42 U.S.C. 4331(a). 94. Plaintiffs interest in the environmental and economic well-being of the State of New York are among the interests to be considered under 25 C.F.R (f), (h) before land is placed into trust. See, e.g., TOMAC v. Norton, 193 F. Supp. 2d 182 (D.D.C. 2002) aff d, 433 F.3d 852 (D.C.Cir. 2006) (holding that a community group had standing to challenge the BIA s decision to take land into trust for the construction of a casino under the Indian Gaming Regulatory Act) and 25 C.F.R (f), (h); see also Citizens Exposing Truth About Casinos 18

19 Case 6:08-cv LEK-DEP Document 58 Filed 05/08/09 Page 19 of 46 v. Norton, 2004 U.S. Dist. LEXIS 27498, at *6 & n.3 (D.D.C. Apr. 23, 2004) (holding that a citizen s group had standing under the Indian Reorganization Act, found at 25 U.S. C , to challenge a trust acquisition because the Act s implementing regulations provide for consideration of land use conflicts and NEPA requirements). Cf. City of Sherrill v. Oneida Indian Nation, 544 U.S. 197 (2005) ( If (the Tribe) may unilaterally reassert sovereign control and remove these parcels from the local tax rolls, little would prevent the Tribe from initiating a new generation of litigation to free the parcels from local zoning or other regulatory controls that protect all landowners in the area.. ) 95. Under the Departmental Manual of the BIA for the application of NEPA in the fee to trust process, the BIA allows the tribes making the fee to trust applications to act as lead agency for the completion of the NEPA documentation. This presents an inherent conflict of interest in terms of producing a fair and unbiased report which takes into consideration the needs of the surrounding communities. 96. The BIA only represents the interests of the Indian tribe as defined by the Tribe submitting the fee to trust application. 97. This position of the BIA on NEPA is based on federal common law district court rulings that held that the state and local governments did not have standing to sue against the fee to trust applications of Indian tribes because they were not within the zone of interests to be protected by the IRA and 25 U.S.C See City of Tacoma et al v. Andrus et al, 458 F. Supp. 465 (D.D.C. 1978) and City of Sault Ste. Marie v. Andrus, 458 F. Supp. 465 (D.D.C. 1978). 98. Because non-indians were consistently denied prudential standing in federal court to question actions taken by the Secretary on behalf of Indian tribes, the BIA did not apply its own 19

20 Case 6:08-cv LEK-DEP Document 58 Filed 05/08/09 Page 20 of 46 NEPA regulations or the Part 151 regulations to assess any of the jurisdictional or economic impacts on the non-indian human environment in the FEIS or the ROD as required by statute. See Santa Ynez Valley Concerned Citizens v. Pacific Regional Director, 42 IBIA 189, (2006), aff d after limited reopening, Preservation of Los Olivos v. Pacific Regional Director, 45 IBIA 98 (2007), appeal pending Preservation of Los Olivos v. Department of the Interior, No. CV AHM (C.D. Cal. July 9, 2008). ROD p. 25, Footnote As prepared, the Final EIS for the fee to trust applications of the OIN does not address any of the factors deemed part of the justifiable expectations of the local non-indian residents or state and local governments identified in the Sherrill decision as disruptive The regulatory and cumulative jurisdictional impacts of removing thousands of acres from the sovereign control of state and local governments has not been adequately addressed in the FEIS The FEIS also fails to provide support for the ROD s conclusion that 13, acres in trust is necessary to satisfy the tribe s goal of self-determination and other similar needs of the tribe The FEIS fails to adequately assess the impact this determination has on the local communities which is required by 25 C.F.R (e) and the NEPA analysis The FEIS fails to adequately address the concerns of the local communities The two Santa Ynez IBIA orders that were the basis for the federal defendants claiming they could ignore all of the economic impacts and its own regulations to not address any concerns of non-indians in the FEIS were overruled by Federal District Court Judge A. Howard Matz (Central District of California) in his preliminary ruling of May13, 2008, one week before 20

21 Case 6:08-cv LEK-DEP Document 58 Filed 05/08/09 Page 21 of 46 this ROD was issued The judgment of Judge Matz in July 9, 2008 overruling the two IBIA orders and requiring the BIA to apply their own regulations for the NEPA and fee to trust processes was made final when the Department of the Interior dismissed their appeal on January 23, The ROD does not adequately address the OIN application in terms of the factors deemed part of the justifiable expectations of the local non-indian residents or state and local governments identified in the Sherrill decision as disruptive. SECOND CLAIM FOR RELIEF The Record of Decision violates the Administrative Procedures Act, 5 U.S.C. 706, by concluding that the Indian Reorganization Act of 1934 ( IRA ) is applicable in New York for the Oneida Indian Nation Plaintiffs repeat and reallege paragraphs 1 through 106, inclusive, of this Amended Complaint as if fully set forth herein Defendants cite Section 5 of the IRA (25 U.S.C. 465) and 25 C.F.R. part 151 for their authority to take these fee owned OIN lands into trust. (ROD at 8) As held in Carcieri v. Salazar, Congress intended to limit the application of the IRA by defining Indian and Indian tribe in Section 479 of the IRA to only those Indian tribes that were now under federal jurisdiction in Even though the OIN is an historical Indian tribe, it was not now under federal jurisdiction in In fact, until 1992 the United States considered the OIN to be under the primary jurisdiction of the State of New York. See Exhibit There is no evidence to support the fact that OIN was a recognized tribe now under federal jurisdiction at the time of the enactment of the IRA in

22 Case 6:08-cv LEK-DEP Document 58 Filed 05/08/09 Page 22 of The Sherrill decision, which involved OIN, specifically held that the lands that are the subject of this ROD are not Indian Country and are not considered reservation lands for purposes of sovereignty and taxation Section 18 of the IRA (25 U.S.C. 478) mandates that a vote of the adult members of the Tribes be taken to decide if the IRA is accepted by the tribe Section 18 states, This Act shall apply to any reservation wherein a majority of the adult Indians, voting at a special election duly called by the Secretary of the Interior, shall vote against its application After the passage of the IRA a list of tribes eligible to vote on the IRA was prepared by the BIA All of the Indian tribes on this original list were situated on federal Indian reservations of reserved public domain land More than 60 per cent of the eligible tribes rejected the IRA in The BIA then expanded the eligibility of the IRA in 1936 to Indian tribes that received any kind of federal benefit Under this expanded definition the Oneidas and all the other New York Indians voted against the application of the IRA in Congress reacted to the manipulations of the IRA and threatened to repeal the act if BIA did not confine it as originally intended The BIA then corrected the voting eligibility by removing all tribes that were not located on federal Indian reservations The ROD acknowledges that OIN had opted out of the applicability of the IRA 22

23 Case 6:08-cv LEK-DEP Document 58 Filed 05/08/09 Page 23 of 46 pursuant to 25 U.S.C. 478 (ROD at 33), but then Defendants asserted that under the provisions of 25 U.S.C of the Indian Lands Consolidation Act (ILCA), Section 465 of the IRA nevertheless applied to the OIN (ROD at 34). at 36) The ROD further asserts that OIN has 32 acres under its sovereign authority. (ROD 126. The assumption by the federal defendants that Section 2202 of the ILCA would be viewed as an amendment to Section 479 of the IRA to extend the right to vote to any recognized tribe contemporaneous to its recognition was clearly rejected by eight Justices of the Supreme Court in Carcieri v. Salazar, 129 S Ct. at (2009) The United States Supreme Court in Carcieri v. Salazar completely rejected the contemporaneously recognized argument of the Secretary and confined the enactment of the ILCA to only those tribes who were originally eligible to vote on the IRA but that had previously rejected it. Carcieri at The OIN is not eligible to have lands placed into trust status pursuant to Section 465 because it was not an Indian tribe now under federal jurisdiction in 1934 rendering the ROD arbitrary, capricious and an abuse of discretion that is not in accordance with law There is no act, statute or regulation in existence that authorizes the Secretary to take the 13, acres of land that is the subject of this ROD into trust on behalf of the OIN The failure of the defendants to correct this erroneous action by the BIA is arbitrary, capricious, an abuse of discretion, and otherwise not in accordance with law. THIRD CLAIM FOR RELIEF The Part 151 Regulations promulgated by the Secretary of the Interior in 2004 exceed his statutory authority under 25 U.S.C. 465 and 479 and are ultra vires as applied to this 23

24 Case 6:08-cv LEK-DEP Document 58 Filed 05/08/09 Page 24 of 46 ROD for the OIN under 5 U.S.C Plaintiffs repeat and reallege paragraphs 1 through 130, inclusive, of this Amended Complaint as if fully set forth herein As currently defined, the federal regulation that asserts the discretion of the Secretary of the Interior to accept lands owned in fee by the Tribe into federal trust status is 25 C.F.R : Land acquisition policy. Land not held in trust or restricted status may only be acquired for an individual Indian or a tribe in trust status when such acquisition is authorized by an act of Congress. No acquisition of land in trust status, shall be valid unless the acquisition is approved by the Secretary. (A) Subject to the provisions contained in the acts of Congress which authorize land acquisition, 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 within a tribal consolidation area; or (2) When the tribe already owns an interest in the land; or (3) When the Secretary determines that the acquisition of the land is necessary to facilitate tribal self-determination, economic development, or Indian housing 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. Citing 25 C.F.R (2004). Sherrill at In spite of the Sherrill ruling, the Defendants wrongfully accepted this application under 25 C.F.R as an on reservation application in order to avoid the stricter scrutiny under the two-part determination required for off-reservation applications under 25 C.F.R Without the Indian definition from Section 479 restricting Section 5 of the IRA, 24

25 Case 6:08-cv LEK-DEP Document 58 Filed 05/08/09 Page 25 of 46 the asserted authority of the Secretary of the Interior to accept lands into federal trust status as currently defined in 25 C.F.R is unlimited The Secretary of the Interior in 1980 unilaterally promulgated new regulations reinterpreting Section 465 to allow fee lands into trust status for any recognized Indian tribe. 25 C.F.R. 120a In fact, these unilaterally expanded regulations that included accepting fee land of the tribes into federal trust status, were declared unconstitutional in South Dakota v. Babbitt, 519 U.S. 919 (1996) The new regulations for 25 U.S.C. 465 were promulgated in C.F.R requires that land may be taken into trust only when the acquisition is authorized by Congress The Sherrill decision cites explicitly to 25 U.S.C. 465 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. Sherrill at The Sherrill Court expressly cites to the 2004 regulations implementing 465 as sensitive to the complex interjurisdictional concerns that arise when a tribe seeks to regain sovereign control over territory. Sherrill at 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; 25

26 Case 6:08-cv LEK-DEP Document 58 Filed 05/08/09 Page 26 of 46 and jurisdictional problems and potential conflicts of land use which may arise. Citing 25 C.F.R (2004). Sherrill at These jurisdictional concerns are not addressed by the defendant s limited FEIS, nor are they addressed in the ROD as explained in the previous section of this amended complaint In the case of Hawaii v. Office of Hawaiian Affairs, 129 S Ct (2009) a unanimous Supreme Court concluded that federal public lands once they pass to a State cannot be restored to federal jurisdiction by a federal act that purports to change the nature of the original grant to the state This limitation protects the sovereignty of the state over the ceded lands from federal encroachment The same limitation protects the lands that have always been under state jurisdiction in the original thirteen colonies by preventing the Secretary from claiming a federal statute can allow him to encroach or attempt to remove the land from state jurisdiction As Justice Alito opined it would raise grave constitutional concerns if Congress sought to cloud Hawaii s title to its sovereign lands after it had joined the Union. We have emphasized that Congress cannot, after statehood, reserve or convey lands that have already been bestowed upon a state Hawaii v. Office of Hawaiian Affairs, 129 S Ct. 1436, -- (2009). Quote from March 31, 2009 article Court rules against claim to Hawaiian Lands in L.A. Times, by David G. Savage The Secretary s assumption that fee lands under state jurisdiction can be conveyed into federal trust status and made back into Indian country under the Part 151 regulations for the OIN is arbitrary, capricious and not in accordance with law. 26

27 Case 6:08-cv LEK-DEP Document 58 Filed 05/08/09 Page 27 of 46 FOURTH CLAIM FOR RELIEF The Secretary s Misapplication of 25 U.S.C. 465 and 40 U.S.C. 523 in New York violates the Separation of Powers Doctrine 149. Plaintiffs repeat and reallege paragraphs 1 through 149, inclusive, of this Amended Complaint as if fully set forth herein The ROD states that it derives its power from the Indian Commerce Clause, U.S. Constitution, Article I, 8, Clause The Indian Commerce Clause grant of authority to Congress does not empower the executive branch to remove land from state jurisdiction Attempting to create federal Indian land for the first time in New York State violates the separation of powers between the federal branches and between the federal government and the states known as federalism The Secretary is subverting the exclusive authority of the Congress pursuant to the Property Clause by attempting to establish sovereign rights in the Oneidas that were not reserved to them before New York attained statehood Attempting to establish sovereign rights in the Oneida Tribe on lands that were ceded to the state of New York more than 220 years ago in the Treaty of Fort Schuyler (1788) would clearly disrupt the settled governance of New York Since 1970, the Executive branch through the United States Department of the Interior and the Department of Justice have been thwarted in their attempts to restore sovereign lands to the New York Indian tribes in land claim cases that have been litigated for more than 30 years and have cost the taxpayers of New York millions of dollars to defend Now in this ROD the Executive branch asserts that the Secretary may take more than 27

28 Case 6:08-cv LEK-DEP Document 58 Filed 05/08/09 Page 28 of 46 13, 000 acres into trust status through 25 U.S.C. 465 and the Part 151 regulations And this is not the end. According to the Secretary there is no limit on the amount of land that can be taken into trust for the Oneida or any other tribe in New York As part of the continual effort to create sovereign Indian land in New York, the Secretary accepted 18 acres in the Town of Verona, Oneida County, New York from the former Air Force radar station into trust pursuant to 40 U.S.C. 523 without any public notice as a fait accompli on December 30, The Secretary claims that this transfer was mandatory under 40 U.S.C The Secretary is without authority to transfer the 18 acres based on 40 U.S.C. 523 unless the former reservation boundaries created by the Treaty of Fort Schuyler with the State of New York in 1788 created a federal Indian reservation as reserved by the federal Treaty of Canandaigua and Jay Treaty in U.S.C. 523 says: Section 523. Excess real property located on Indian reservations (a) Procedures for Transfer. - The Administrator of General Services shall prescribe procedures necessary to transfer to the Secretary of the Interior, without compensation, excess real property located within the reservation of any group, band, or tribe of Indians that is recognized as eligible for services by the Bureau of Indian Affairs. (emphasis added). (b) Property Held in Trust. - (1) In general. - Except as provided in paragraph (2), the Secretary shall hold excess real property transferred under this section in trust for the benefit and use of the group, band, or tribe of Indians, within whose reservation the excess real property is located. (emphasis added). 28