Case 1:06-cv GLS-RFT Document 29 Filed 03/22/2007 Page 1 of 25

Case 1:06-cv-00095-GLS-RFT Document 29 Filed 03/22/2007 Page 1 of 25 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - x BGA, LLC and THE WESTERN MOHEGAN TRIBE AND NATION OF THE STATE OF NEW YORK, Plaintiffs, v. Index No. 06-CV-0095 (GLS)(RFT) ULSTER COUNTY, NEW YORK, a municipal corporation of the State of New York, Defendant. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - x PLAINTIFFS RESPONSE TO AMICUS CURIAE BRIEF OF THE UNITED STATES OF AMERICA Plaintiffs BGA, LLC ( BGA ) and The Western Mohegan Tribe and Nation of the State of New York (the Tribe" or Western Mohegan Tribe ), the plaintiffs herein ( Plaintiffs ), by and through their counsel, Todtman, Nachamie, Spizz & Johns, P.C., respectfully submit this Response to the Amicus Curiae Brief dated February 26, 2007 (the Amicus Brief ) filed by of the United States of America (the Government ). Also accompanying this Response to the Amicus Brief is the Response Affidavit of Chief Ronald A. Roberts, sworn to on March 22, 2007 (the Response Affidavit ). I. INTRODUCTION 1. The Government seeks to persuade this Court to refrain from exercising its jurisdiction and authority to decide this case. Many of the Government s arguments are contrary to the facts of the case or contrary to the law of this Circuit. The remaining arguments are simply irrelevant. 2. Under the law of this Circuit, this Court has the power to make the tribal status determination -- tribal status is not a non-justiciable political question. See The

Case 1:06-cv-00095-GLS-RFT Document 29 Filed 03/22/2007 Page 2 of 25 Golden Hill Paugussett Tribe of Indians v. Weicker, 39 F.3d 51, 60-61 (2d Cir. 1994) (federal district court has authority to determine the question of tribal status and decide the merits of tribe s Nonintercourse Act claims); New York v. Shinnecock Indian Nation, 280 F.Supp.2d 1, 9-10 (E.D.N.Y. 2003) (a federal district court has the power and jurisdiction to make the determination of whether a tribe meets the federal criteria for tribal status and to grant federal recognition to a tribe); New York v. Shinnecock Indian Nation, 400 F.Supp.2d 486, 492-93 (E.D.N.Y. 2005) (holding that the Shinnecocks, which were not recognized by the BIA, meet the criteria for tribal status set forth in Montoya v. United States, and recognizing the Shinnecocks as an Indian tribe). Contrary to the Government s assertions, the Tribe has never sought recognition from the BIA under the Code of Federal Regulations, and has never submitted an official documented petition under 25 C.F.R. 83.6. 3. There is no reason why this Court should decline to exercise its jurisdiction, as demonstrated below. On the other hand, if the Court declines to make the determination of whether the Tribe is an Indian tribe for purposes of the federal Nonintercourse Act, 25 U.S.C. 177, the Tribe will be unable to save its Property from foreclosure by the defendant, Ulster County. There is a substantial and immediate controversy between the Tribe and the County which warrants the issuance of the declaratory judgment requested by the Plaintiffs. 4. The Government has not disputed any of the evidence submitted by the Tribe in support of federal recognition by this Court. There exists no issue of material fact in this case, and Plaintiffs have demonstrated that they are entitled to the declaratory judgment that they have requested. Accordingly, this Court should grant 2

Case 1:06-cv-00095-GLS-RFT Document 29 Filed 03/22/2007 Page 3 of 25 Plaintiffs motion for summary judgment. See Greenblatt v. Prescription Plan Servs. Corp., 783 F.Supp. 814, 819-20 (S.D.N.Y. 1992) ( Speculation, conclusory allegations and mere denials are not enough to raise genuine issues of fact. ); Gallo v. Prudential Residential Servs., 22 F.3d 1219, 1223-24 (2d Cir. 1994) (The moving party may obtain summary judgment by showing that little or no evidence may be found in support of the non-moving party s case). II. ARGUMENT A. THIS ACTION CANNOT BE DECIDED ON THE BASIS OF THE AGREEMENTS BETWEEN THE PARTIES 5. The Government mischaracterizes this action as a mere contract dispute. The Government would have this Court believe that the dispute can be decided on the basis of the specific agreements between the parties. This is incorrect, as demonstrated below. 6. The Western-County Agreement 1 requires the Tribe to pay certain payments in lieu of taxes, and requires the County to accept those payments, and to not tax the Property. In violation of the County s Resolution and the Western-County Agreement, the County rejected the Tribe s payments in lieu of taxes, continued to tax the Property, and brought a foreclosure action in the Ulster County County Court (the County Court ). The Tribe defended on the grounds that foreclosure would transfer the Tribe s Property to the County without Congressional approval, in violation of the federal Nonintercourse Act, 25 U.S.C. 177, citing Oneida Indian Nation of New York v. 1 Capitalized terms which are not defined herein shall have the meanings given in the Affidavit of Chief Ronald A. Roberts sworn to on December 29, 2006 filed in support of Plaintiffs Motion for Summary Judgment. 3

Case 1:06-cv-00095-GLS-RFT Document 29 Filed 03/22/2007 Page 4 of 25 Madison County, 2005 WL 2810537 (N.D.N.Y. 2005) (Hurd, J.) (holding that if Madison County were to proceed with the foreclosure, title to an Indian tribe s land would be transferred without Congressional approval, in violation of the Nonintercourse Act). The County Court rejected this argument on the grounds that the Tribe is not a BIA federally recognized tribe. After entry of the Judgment of Foreclosure, the parties entered into a temporary Settlement Agreement which provided, inter alia, for vacatur of that Judgment and for certain payments to be made to the County. The County did not, however, agree that it would refrain from seeking property taxes or from pursuing another foreclosure action in the future. 7. The County continues to demand payments from the Plaintiffs in the amount that would be owed if the Property were to be taxed. The County also continues to threaten another foreclosure action against the Tribe if such payments are not made to the County. It is clear, therefore, that if this Court were to enforce the parties obligations under their agreements, but not address the issue of whether the Western Mohegans are a sovereign Indian tribe (and therefore protected under the Nonintercourse Act), there would still be a dispute between the parties as to whether the County has the right to foreclose on the Property. This dispute needs to be resolved before the County commences another foreclosure action against the Tribe, as explained below. 8. The Western Mohegans defense to a future foreclosure action by the County is based on the Nonintercourse Act, which provides that land owned by an Indian tribe is inalienable except with the approval of Congress. In order [t]o establish a prima facie case based on a violation of the [Nonintercourse] Act, a plaintiff must 4

Case 1:06-cv-00095-GLS-RFT Document 29 Filed 03/22/2007 Page 5 of 25 show that (1) it is an Indian tribe, (2) the land is tribal land, (3) the United States has never consented to or approved the alienation of this tribal land, and (4) the trust relationship between the United States and the tribe has not been terminated or abandoned. Golden Hill, 39 F.3d at 56. 9. Pursuant to agreement between the parties, Plaintiffs are not seeking damages against the County in this action based on any previous violation of the Nonintercourse Act. However, in a future foreclosure action, the Western Mohegans would need to establish that they are an Indian tribe in order to invoke a Nonintercourse Act claim. See Golden Hill, 39 F.3d at 56. Since the State and County courts have no authority to make the tribal status determination, the Western Mohegans will be unable to stop a future foreclosure by the County which will quickly ensue if this Court declines to make the tribal status determination. The County Court would almost certainly grant the County a foreclosure judgment against the Property, as it did in the County s 2002 foreclosure action. As stated above, the County Court rejected the Tribe s argument that the Nonintercourse Act prohibited the foreclosure, on the grounds that the Western Mohegans are not a BIA federally recognized tribe. (A copy of the County Court s December 15, 2005 Decision denying the Tribe s motion for reargument is annexed to the Roberts Response Aff. as Exhibit A.) 10. Based on the above, this action cannot be decided on the basis of the agreements between the parties. It is necessary for this Court to exercise its authority to make the tribal status determination. It is clear that, contrary to the Government s assertions, there exists a substantial controversy, between parties having adverse legal interests, of sufficient immediacy and reality to warrant the issue of a declaratory 5

Case 1:06-cv-00095-GLS-RFT Document 29 Filed 03/22/2007 Page 6 of 25 judgment. MedImmune, Inc. v. Genetech, Inc., 127 S.Ct. 764, 771 (2007). B. THE TRIBE DID NOT FILE A PETITION WITH THE BIA FOR FEDERAL RECOGNITION UNDER 25 C.F.R. PART 83 11. The Government argues that the Western Mohegans previously invoked the primary jurisdiction of the Department of the Interior (the DOI ) by filing a petition there for recognition as an Indian tribe under 25 C.F.R. Part 83. This is factually incorrect, as demonstrated below. 12. It is evident that even without the usual and customary documents and format required under its own regulations, the BIA took it upon itself to treat the Tribe s letter to the President of the United States as a Petition for Acknowledgment under the 25 CFR Regulations. And, even after the Tribe s many clear requests to withdraw the document from the BIA acknowledgment process, the BIA, on its own, still claims that the Western Mohegans seek BIA acknowledgment. It is ludicrous to witness such conduct by a Federal agency. 13. As set forth in Plaintiffs moving papers, on August 20, 1997, the Tribe sent a First Amendment Petition for Redress of Grievances (the First Amendment Petition ) to then-president Clinton. 2 The First Amendment Petition requested reaffirmation of the Tribe s sovereignty and pre-existing relationship with the Federal Government. The First Amendment Petition was not a request for recognition under federal law. This is extremely clear from the language of the First Amendment Petition, 2 A copy of the First Amendment Petition is annexed to the Lawson Report as Exhibit 59 and is also annexed to the Roberts Response Aff. as Exhibit B. 6

Case 1:06-cv-00095-GLS-RFT Document 29 Filed 03/22/2007 Page 7 of 25 which explicitly stated that the Tribe was not seeking recognition under 25 C.F.R. 83 and was not requesting any federal benefits. 3 Nevertheless, the Clinton White House mistakenly interpreted it as a petition for Federal acknowledgment of the Tribe under 25 C.F.R. 83. Accordingly, it sent the First Amendment Petition to the Office of the Solicitor General of the DOI (the Solicitor s Office ). The Solicitor s Office then turned the Petition over to the BIA for evaluation. 14. Because the Administration was taking no further action on the First Amendment Petition, the Western Mohegan Tribal Council decided to allow the BIA to evaluate the documents to see if the BIA would reaffirm the Tribe s status as a sovereign Indian nation without requiring the Tribe to go through the recognition application process under the C.F.R. In a September 5, 1997 letter to then BIA Director 3 The First Amendment Petition states, in pertinent part: Dear President Clinton: Pursuant to the 1 st Amendment right to petition the Government for a redress of grievances I am writing to request a letter from you acknowledging the existence of the Western Mohegan Tribe & Nation of New York so that we can fulfill our rightful role as participants in the life of the Hudson River valley.... I am not writing so that this native nation can become a welfare recipient of programs and services under federal law. These we do not want and will not accept. I am writing to you so that we can regain our liberty under anterior and superior natural, international and constitutional law.... The court s phrase federal recognition is the key to comprehending precisely how the genocide of native Americans today is implemented by the United States.... As a matter of bureaucratic assumption and convention, the adjective federal in the crucial phrase federal recognition is taken to signify that the recognition specifically be by the federal Bureau of Indian Affairs (BIA) or Congress.... Therefore, we are not willing to attorn to the genocidally illegal assumption of jurisdiction over us by the United States pursuant to the spurious doctrine of federal plenary jurisdiction, by implicitly accepting the application of federal law by applying for federal recognition under 25 CFR in order to secure the special programs and services on offer.... These are the reasons, then, that I request from you (a) a letter recognizing the domestic dependent nation status of the Western Mohegan Tribe & Nation of New York under natural, international and constitutional law and (b) instructions to the Bureau of Indian Affairs that it cooperate either to settle jurisdictional disputes with this nation without litigation or, if litigation is necessary, that same be submitted for independent and impartial third-party adjudication or arbitration. First Amendment Petition (emphasis added). 7

Case 1:06-cv-00095-GLS-RFT Document 29 Filed 03/22/2007 Page 8 of 25 Deborah Maddox, the Tribe requested to be advised as to whether its First Amendment Petition raises a situation capable of being dealt with other than as a run-of-the-mill application under section 151.2(b) of Title 25 of the Code of Federal Regulations, which limits the concept Tribe to entities recognized by the Secretary as eligible for the special programs and services from the Bureau of Indian Affairs. 4 (A copy of the Tribe s September 5, 1997 letter is annexed to the Response Affidavit as Exhibit C.) 15. By letter dated September 9, 1997, the Tribe wrote to the Solicitor s Office regarding the First Amendment Petition. The Tribe s September 9, 1997 letter enclosed the First Amendment Petition and the September 5, 1997 letter to BIA Director Maddox, and stated that the legal point of the enclosed petition is to apprehend the genocide of traditional natives that is taking place through the agency of the Bureau of Indian Affairs (BIA). It did not request recognition by the BIA. (A copy of the Tribe s September 9, 1997 letter, without the exhibits, is annexed to the Government s Amicus Brief as Exhibit A.) 16. The Assistant Solicitor, Scott Keep, at the Solicitor s Office wrote to the Tribe by letter dated October 3, 1997, encouraging the Tribe to seek acknowledgment by the BIA. (A copy of the October 3, 1997 letter is annexed to the Response Affidavit as Exhibit D.) 17. The BIA Office of Tribal Services subsequently wrote to Chief Roberts by letter dated January 2, 1998, directing that the Tribe provide a certification stating that 4 The September 5, 1997 letter goes on to state that since the Tribe had already been recognized (prior to the Revolutionary War), and since we expressly and explicitly have indicated that we do not want and will not accept the special programs and services from the Bureau of Indian Affairs, we do not think that your recommendation need take long to process. 8

Case 1:06-cv-00095-GLS-RFT Document 29 Filed 03/22/2007 Page 9 of 25 the materials provided by the Tribe under its September 9, 1997 letter is the group s official documented petition under 25 C.F.R. 83.6. (A copy of the BIA Office of Tribal Services letter dated January 2, 1998 is annexed to the Response Aff. as Exhibit E.) 18. The Tribe responded by submitting a Certification of Documented Petition dated January 8, 1998 (the Certification ). (A copy of the Tribe s Certification is annexed to the Amicus Brief as Exhibit B and is also annexed to the Response Aff. as Exhibit F.) According to the Amicus Brief, the Tribe s Certification explicitly stated that this is the group s official documented petition under 25 CFR 83.6. (Amicus Brief, p.7) This is not true. The Tribe s Certification did not make such statement. Rather, it stated that the Office of Tribal Services January 2, 1998 letter has directed the Tribe to file a certification containing that language. The Tribe s Certification essentially states the opposite of what was required by the Office of Tribal Services. Indeed, the Certification states that the Tribe is not making any attornment to the jurisdiction under federal legislation of the Bureau of Indian Affairs.... In the Certification, the Western Mohegans clearly expressed their desire to not be encumbered with the BIA acknowledgment process and the myriad of rules and regulations imposed on BIA recognized tribes, as they did not want any of the government handouts for Indians. 19. The Tribe sent a letter to the Secretary of the Interior dated April 30, 1998 to withdraw the First Amendment Petition. The BIA Office of Tribal Services acknowledged receipt of the Tribe s April 30, 1998 letter and responded by stating that it needed to receive a clear request signed by the Council members to withdraw the Western Mohegans petition from the petitioning process. (Attached to the Response 9

Case 1:06-cv-00095-GLS-RFT Document 29 Filed 03/22/2007 Page 10 of 25 Affidavit as Exhibit G is the second page of the Office of Tribal Services response.) 5 20. Senator Alfonse N. D Amato, Senator Daniel Patrick Moynihan, Congressman Benjamin A. Gilman and Congressman Maurice B. Hinchey submitted a letter to the President dated August 17, 1998 which expressed the desire of the Tribe to have its implicit prior federal recognition now confirmed by an explicit re-affirmation. (A copy of the August 17, 1998 letter is annexed to the Response Affidavit as Exhibit H.) 6 21. The Tribe submitted a letter dated August 28, 1998 to the BIA Office of Tribal Services stating that the Tribe: does look forward to receiving the technical assistance review document, as a step toward the settlement of this native nation s outstanding 1 st Amendment grievance petition and related litigation, specifically by the modernization of the existing treaty relationship with the United States.... the said grievance and litigation expeditiously can be settled simply by revising the existing treaties instead of making an entirely new one (A copy of the Tribe s August 28, 1998 letter is annexed to the Response Affidavit as Exhibit I.) 5 The Tribe could not locate the first page of that response or the Tribe s April 30, 1998 letter. Page 2 of the Office of Tribal Services response quotes from the Tribe s April 30, 1998 letter, stating: By letter to Secretary Babbitt dated April 30, 1998, you and Bruce Clark stated that you have to withdraw from [BIA involvement] because you believe that your stipulated purpose for engaging in [BIA involvement] was not for federal recognition under federal law but rather to inform the President via the BIA of the facts and law in order that the President might be making a revised treaty in response to a first amendment grievance petition that you had filed. 6 The August 17, 1998 letter also stated that Muhheakunnuk interests in recognition will allow its people and the residents of New York to realize and experience the Mohegan history the history which is embedded in the Hudson Valley and continues today with the stewardship of the Hudson River. We would welcome your review of this important matter and re-affirmation of Muhheakunnuk as a federally recognized tribe. 10

Case 1:06-cv-00095-GLS-RFT Document 29 Filed 03/22/2007 Page 11 of 25 22. On September 24, 1998, the BIA issued a Technical Assistance letter (the TA Letter ) to the Tribe suggesting and outlining steps that might be taken to supplement and strengthen the First Amendment Petition. The TA Letter indicated that the First Amendment Petition was deficient and not ready for evaluation. The TA Letter stated that the Tribe had certain options with respect to the Petition, including the right to withdraw the Petition. See TA Letter, p.21. (A copy of the TA Letter is annexed to the Amicus Brief as Exhibit C.) 7 23. In a Re-Affirmation of Cancellation Notice dated September 29, 1998 addressed to DOI, the Tribe again requested cancellation of the First Amendment Petition. The Re-Affirmation of Cancellation Notice was signed by the Western Mohegan Tribal Council, and stated that the Tribe: hereby re-affirms the cancellation of the said certification made by the Sachem under letter dated April 30, 1998 (true copy annexed), since the Bureau illegally insists upon disregarding the said previous cancellation. (Copies of the Tribe s September 29, 1998 Re-Affirmation of Cancellation Notice and the Tribe s September 29, 1998 cover letter are annexed to the Response Aff. as Exhibit J.) 24. The Tribe again requested withdrawal of its First Amendment Petition in a November 2, 1998 letter to President Clinton. That letter states: The 1 st Amendment 7 The TA Letter further stated that: the Government has not made a decision concerning your case, and this TA review is not a preliminary determination of your case. At this point in the process, the BIA does not make conclusions that an evaluation of your petition will result in a positive or negative decision. TA Letter, p.20-21. 11

Case 1:06-cv-00095-GLS-RFT Document 29 Filed 03/22/2007 Page 12 of 25 grievance petition of Muhheakunnuk is abandoned. (A copy of the Tribe s November 2, 1998 letter is annexed to the Response Aff. as Exhibit K.) C. THE BIA HAS IGNORED THE TRIBE S REQUESTS FOR WITHDRAWAL OF THE FIRST AMENDMENT PETITION 25. Although the Tribe never filed a petition for recognition under the C.F.R., it is important to note that an Indian tribe which does file a petition for recognition, retains the right to withdraw that petition. See 25 C.F.R. 8.10(b)(2) ( After the technical assistance review, the Assistant Secretary shall... provide the petitioner with an opportunity to withdraw the documented petition... ). 26. As detailed above, the Tribe made various requests for withdrawal or cancellation of its First Amendment Petition. Yet, the BIA has chosen not to honor those requests. The Tribe cannot help but wonder why the BIA has honored other tribes withdrawals of their documented petitions, but has refused to recognize the Western Mohegan Tribe s right to withdraw its First Amendment Petition. In fact, the DOI s last published Status Summary of Acknowledgment Cases, annexed to the Response Aff. as Exhibit L, indicates that as of February 15, 2007, at least four petitions for federal recognition were deemed withdrawn at the petitioner s request. Id. at p.6. Incredibly, to this day, the Government maintains the Western Mohegan Tribe on the list of tribes seeking recognition. 8 8 The Tribe is listed as no. 173 on the DOI s Register of Incomplete Petitions. See Id. at p.8. 12

Case 1:06-cv-00095-GLS-RFT Document 29 Filed 03/22/2007 Page 13 of 25 D. THE BIA CANNOT OR WILL NOT EVALUATE PETITIONS FOR RECOGNITION WITHIN A REASONABLE PERIOD REASONABLE PERIOD OF TIME 27. The Administrative Procedures Act (the APA ) imposes a general but non-discretionary duty upon an administrative agency to pass upon a matter presented to it within a reasonable time. 5 U.S.C. 555(b); Mashpee Wampanoag Tribal Council, Inc. v. Norton, 336 F.3d 1094, 1101 (D.C. Cir. 2003). Under the APA, the time that the BIA takes to act upon a petition for tribal recognition must satisfy the rule of reason. Mashpee, 336 F.3d at 1100. 28. Even if the Western Mohegan Tribe were to seek federal recognition as an Indian tribe pursuant to 25 C.F.R. Part 83 (which it has not), the Government s own data shows that the BIA cannot or will not evaluate recognition petitions in a reasonable period of time. Indeed, the Office of Federal Acknowledgment s ( OFA ) Status Summary of Acknowledgment Cases states that as of February 15, 2007, there were 324 petitioning groups that had come before the DOI since October 1978 (when 25 C.F.R. Part 83 became effective) and that only 43 of the 324 cases had been resolved by the DOI. (See Response Aff, Exhibit L at p. 1.) It is a sad reflection on our Government that in 30 years only 43 cases have been resolved by the BIA. 9 29. The OFA s Status Summary of Acknowledgement Cases further shows that as of February 15, 2007, there were 9 tribes with ready petitions waiting for active 9 This is an average of only 1.33 petitions per year. 13

Case 1:06-cv-00095-GLS-RFT Document 29 Filed 03/22/2007 Page 14 of 25 consideration by the BIA. Id. Those tribes have waited for many, many years to get to that point, and most of them will continue to wait for many more. 10 30. If the Tribe were now compelled to seek federal recognition by the BIA, the Tribe would be at the end of a very long list, and would be forced to wait an unreasonably long time for evaluation of its Petition. 11 31. The BIA s lack of resources and the slow pace at which the BIA reviews tribal recognition petitions is widely known. The Second Circuit Court of Appeals has taken note of the fact that applications for BIA acknowledgement have been languishing in the BIA for many years. 12 The D.C. Circuit Court of Appeals also recently addressed the BIA s slow pace and shortage of resources and noted that in recent years, interested parties have turned repeatedly to the Congress to request additional resources, to no avail. See Mashpee, 336 F.3d at 1101. In Mashpee, the tribal council brought an action against the Secretary of the DOI and others, alleging unreasonable delay by the BIA in issuing a decision regarding its petition for federal recognition completed almost six (6) years earlier. The Court of Appeals sent the case back to the district court for a full and fresh evaluation of whether the delay Mashpee is encountering should be deemed unreasonable. Id. at 1102. 10 A comparison of the OFA s 2006 Status Summary of Acknowledgement Cases (annexed to the Response Affidavit as Exhibit M ) shows that only two petitions were resolved by the BIA or DOI between February 3, 2006 and February 15, 2007. 11 See generally 25 C.F.R. 83.10(d) ( the order of consideration of documented petitions shall be determined by the date of the Bureau s notification to the petitioner that it considers that the documented petition is ready to be placed on active consideration. ). 12 See Shinnecock, 400 F.Supp.2d at 493 (the "Second Circuit remanded this and all similar questions to this Court for determination (because of the BIA's inability to reach these decisions for some twenty years from that date))", citing New York v. Shinnecock Indian Nation, No. 03-7996 (2d Cir. Nov. 26, 2003). 14

Case 1:06-cv-00095-GLS-RFT Document 29 Filed 03/22/2007 Page 15 of 25 32. Based on the above, it would be extremely inappropriate and would cause irreparable harm to require the Tribe to wait numerous years for acknowledgement by the BIA under the threat of loss of its Reservation by foreclosure. E. THE GOVERNMENT S ARGUMENT THAT THE TRIBE S PETITION WILL BE EVALUATED BY THE BIA IS DISINGENUOUS 33. The Government argues that the Tribe s petition will be evaluated pursuant to the agency s regulations at 25 C.F.R. Part 83. (Amicus Brief, p. 1.) This argument is disingenuous given that the BIA has deviated from 25 C.F.R. 8.10(b)(2) by refusing to recognize the Tribe s various requests for withdrawal of the First Amendment Petition. 34. Moreover, the fact that the BIA took the lead role in the criminal investigation of Chief Roberts, and the fact that the Government spends several pages discussing Chief Roberts trial, would seem to indicate that the Government may have some animus toward Chief Roberts and may be content to allow the Tribe s First Amendment Petition to languish at the end of the long list of unresolved petitions. 13 F. THIS ACTION IS NOT PRECLUDED BY THE POLITICAL QUESTION DOCTRINE 35. The Government s Argument in the Amicus Brief begins with Section I, entitled Federal Recognition Of An Indian Tribe May Only Be Conferred By the Political Branches Of The Government. Section I, from beginning to end, is replete with false and inaccurate statements of the law. 13 The details of Chief Roberts trial should be considered irrelevant to this action because the Tribe does not rely upon any of the documents which were at issue in the trial, and because Chief Roberts guilty plea has absolutely no relevance to the issue of whether the Tribe is a sovereign Indian nation. Furthermore, the Government has not refuted or even disputed any of the Tribe s evidence submitted in this action. 15

Case 1:06-cv-00095-GLS-RFT Document 29 Filed 03/22/2007 Page 16 of 25 36. Even the title of Section I is incorrect. It is absolutely untrue that only the political branches may confer federal recognition on an Indian tribe. The law is clear in the Second Circuit that a federal court has the authority to make the tribal status determination. See Golden Hill, 39 F.3d at 60-61 (2d Cir. 1994) (federal district court has authority to determine the question of tribal status and decide the merits of tribe s Nonintercourse Act claims); Shinnecock Indian Nation, 280 F.Supp.2d at 9-10 (E.D.N.Y. 2003) (a federal district court has the power and jurisdiction to make the determination of whether a tribe meets the federal criteria for tribal status and to grant federal recognition to a tribe); Shinnecock Indian Nation, 400 F.Supp.2d at 492-93 (E.D.N.Y. 2005) (recognizing the Shinnecock Indian Nation as an Indian tribe). 37. The Government s argument that federal recognition may only be conferred by the political branches of the Government is not only erroneous, but is also belied by the DOI s own literature. Indeed, the BIA Official Guidelines to the Federal Acknowledgment Regulations, 25 CFR 83 states at page 5 that The Federal Courts have the power to acknowledge tribes through litigation. (Copies of the relevant pages of the BIA Official Guidelines are annexed to the Response Affidavit as Exhibit N.) Moreover, Assistant Solicitor Scott Keep s October 3, 1997 letter to the Tribe, annexed to the Response Aff. as Exhibit D, states that Acknowledgment as an Indian tribe can occur by legislation, by judicial action, or by action of the Executive branch. 38. The Government also errs in arguing that tribal status is a non-justiciable political question. Although some courts have considered the tribal status determination to be a non-justiciable political question, that is certainly not the law in the Second 16

Case 1:06-cv-00095-GLS-RFT Document 29 Filed 03/22/2007 Page 17 of 25 Circuit. The Government relies upon case law from other circuits, most of it old, 14 and completely ignores the more recent Second Circuit case law which holds to the contrary. 39. The Government mischaracterizes the Second Circuit s holding in Golden Hill and then makes the erroneous argument that Golden Hill is consistent with the rule of nonjusticiability of tribal recognition decisions. 40. The Government s position that the tribal status determination is nonjusticiable is, in fact, completely contradicted by the holding in Golden Hill. Implicit in the Second Circuit s holding that the District Court could make the tribal status determination (if such determination was not made by the BIA within the specified time period), is the recognition that the tribal status determination is justiciable. 41. The Government s characterization of the tribal status determination as a political question is also flawed. That the power to regulate Indian tribes as provided for in the Constitution has been called political power is true, but it does not mean that an exercise of judicial power that affects Indians automatically becomes an exercise of political power by the Court. Legislative decisions often are political decisions. By contrast, making findings of fact and conclusions of law based upon the U.S. Constitution and federal statutes and the resulting federal common law relating to Indians, is a clear judicial function - - it is not a political decision. There is no political question in this case, as demonstrated below. 42. The political question doctrine may apply where it would be difficult to gather and assess, by the customary judicial methods of litigation, which facts should be 14 See, e.g. United States v. Sandoval, 231 U.S. 28, 36 (1913). 17

Case 1:06-cv-00095-GLS-RFT Document 29 Filed 03/22/2007 Page 18 of 25 relevant to such a decision or difficult to formulate a legal construct to govern the decision. (See Amicus Brief, pp. 12-13, citing Miami Nation of Indians, Inc. v. Department of the Interior, 255 F.3d at 347.) That is not the case here. The Second Circuit dealt with this issue in Golden Hill when it recognized that there are specific judicially required criteria which need to be established to prove tribal status in the context of a Nonintercourse Act claim: Golden Hill, 39 F.3d at 59. Federal courts have held that to prove tribal status under the Nonintercourse Act, an Indian group must show that it is a body of Indians of the same or a similar race, united in a community under one leadership or government, and inhabiting a particular though sometimes ill-defined territory. See, e.g., United States v. Candelaria, 271 U.S. 432, 442, 46 S.Ct. 561, 563, 70 L.Ed. 1023 (1926) (quoting Montoya v. United States, 180 U.S. 261, 266, 21 S.Ct. 358, 359-60, 45 L.Ed. 521 (1901)); Catawba Indian Tribe, 718 F.2d at 1298; Passamaquoddy, 528 F.2d at 377 n. 1. 43. In Shinnecock, the District Court similarly stated that the cases identified in Golden Hill, beginning with Montoya and continuing to the present, establish a federal common law standard for determining tribal existence. Shinnecock, 400 F.Supp.2d at 492 (holding that the Shinnecocks satisfy the federal common law standard, and are an Indian Tribe). 44. Due to the fact that the Second Circuit employs specific criteria in determining tribal existence under the Nonintercourse Act, it is easy to distinguish the instant case from Samish Indian Nation v. United States, 419 F.3d 1355, 1372 (Fed. Cir. 2005)(concluding that, with respect to tribal recognition decisions, the court had no judicially discoverable or manageable criteria by which to afford federal recognition ). For the foregoing reasons, the Government s reliance upon Samish (see Amicus Brief, 18

Case 1:06-cv-00095-GLS-RFT Document 29 Filed 03/22/2007 Page 19 of 25 p. 13) is wholly misplaced. 45. The Government attempts to distinguish Golden Hill by stating that the Plaintiffs invoke the Nonintercourse Act in passing. (Amicus Brief, p. 14-15). The Government ignores the justiciable issue that brought the Tribe to this Court in the first place, that is, the imminent and unlawful taking of its Property by foreclosure. The Government also ignores the fact that the Tribe s primary defense lies under the Nonintercourse Act. As set forth above, the County Court of Ulster County rejected that defense because the Tribe lacks BIA federal recognition. Since the State Courts and the County Court lack jurisdiction to make the tribal status determination, this Court must reject the Government s suggestion that the Tribe should seek other remedies, such as an action to enforce the agreements between the parties, or an appeal of the County Court foreclosure judgment. (See Amicus Brief, p.23.) 46. This Court is not being asked to make a political determination. It is only being asked to apply the existing law and factors identified by the Second Circuit that govern the determination of whether an Indian tribe is a tribe for purposes of the Nonintercourse Act. 47. Applying such law and factors is certainly something that this Court is wellequipped to do. The Court should therefore reject the Government s argument that the tribal status determination is not well-suited to resolution in court. 48. The Government s reliance on Baker v. Carr, 369 U.S. 186, 217 (1962), Miami Nation, 255 F.3d at 347-48 and Western Shoshone Bus. Council v. Babbitt, 1 F.3d 1052, 1057 (10 th Cir. 1993) (see Amicus Brief, p.12) is misplaced because those cases have nothing to do with the issue of whether a federal court may make the tribal 19

Case 1:06-cv-00095-GLS-RFT Document 29 Filed 03/22/2007 Page 20 of 25 status determination. Instead, they hold that courts should defer to determinations made by the executive and legislative branches as to tribal recognition. Here, the political branches have not made any official determinations as to whether the Western Mohegan Tribe is an Indian tribe. (The Federal Government has, however, given de facto recognition to the Tribe, as demonstrated in the Tribe s summary judgment moving papers.) 49. The Government argues that the tribal status determination implicates the Constitutional powers of Congress and the Executive branches. This is untrue. The treaty power and the power to regulate commerce with Indian tribes are textually committed by the Constitution to the political branches. Samish, 419 F.3d at 1372. The power to make the tribal status determination, however, is not. Although Congress has delegated to the Executive Branch the authority to recognize Indian tribes, see 25 U.S.C. 2, that authority is not exclusive. This is clear from the List Act, discussed below. G. THE LIST ACT AFFIRMS THIS COURT S AUTHORITY TO MAKE THE TRIBAL STATUS DETERMINATION AND TO ESTABLISH A GOVERNMENT-TO-GOVERNMENT RELATIONSHIP 50. The Government is correct that federal recognition establishes a governmentto-government relationship between the group and the United States. See Pub. L. No. 103-454 103(2) (... the United States has a trust responsibility to recognized Indian tribes, maintains a government-to-government relationship with those tribes, and recognizes the sovereignty of those tribes ). The Government, however, chooses to bury the fact that federal recognition of an Indian tribe may come from a decision of a United States Court. See Pub. L. No. 103-454, 103(3). 51. The Federally Recognized Indian Tribe List Act of 1994 (the List Act ), 20

Case 1:06-cv-00095-GLS-RFT Document 29 Filed 03/22/2007 Page 21 of 25 Pub.L. No. 103-454, 108 Stat. 4791 (1994) (codified at 25 U.S.C. 479a) provides, in section 103, that: The Congress finds that - - (1) the Constitution, as interpreted by Federal case law, invests Congress with plenary authority over Indian Affairs; (2) ancillary to that authority, the United States has a trust responsibility to recognized Indian tribes, maintains a government-to-government relationship with those tribes, and recognizes the sovereignty of those tribes; (3) Indian tribes presently may be recognized by Act of Congress; by the administrative procedures set forth in part 83 of the Code of Federal Regulations denominated Procedures for Establishing that an American Indian Group Exists as an Indian Tribe; or by a decision of a United States Court. 25 U.S.C. 479a (note) (emphasis added). * * * * 52. Under the express language of the List Act, Indian tribes may be recognized by a decision of a United States court, and federal recognition establishes a government-to-government relationship." See Pub. L. No. 103-454, 103(2),(3). 53. The stated Background of the List Act provides, in pertinent part: Recognized is more than a simple adjective; it is a legal term of art. It means that the government acknowledges as a matter of law that a particular Native American group is a tribe by conferring a specific legal status on that group, thus bringing it within Congress legislative powers. This federal recognition is no minor step. A formal political act, it permanently establishes a government-to-government relationship between the United States and the recognized tribe as a domestic dependent nation... H.R. Rep. 103-781 (emphasis added). 54. The Government tries to diminish the importance of section 103(3) by 21

Case 1:06-cv-00095-GLS-RFT Document 29 Filed 03/22/2007 Page 22 of 25 stating that it is not part of the statute, and is only contained in the Congressional Findings. The Government s argument should be disregarded because Congressional findings are entitled to substantial deference. See e.g. Turner Broadcasting System, Inc. v. F.C.C., 520 U.S. 180, 117 S.Ct. 1174 (1997). Moreover, various courts have cited the List Act for the proposition that a federal court has authority to make the tribal status determination. See e.g., Cherokee Nation of Oklahoma v. Norton, 389 F.3d 1074, 1076 (10 th Cir. 2004)( The law governing Federal recognition of an Indian tribe is, today, clear. The Federally Recognized Indian Tribe List Act of 1994 provides Indian tribes may be recognized by "a decision of a United States court."); Richmond v. Wompanoag Tribal Court Cases, 431 F.Supp.2d 1159, 1163 (D. Utah 2006). 15 55. The Government s arguments that this Court cannot establish a government-to-government relationship between the United States and the Tribe are without foundation, as demonstrated above. 56. It should be noted that of the seven (7) federally recognized tribal entities based in New York, 16 none have gone through the DOI recognition process. 17 The history of Indian lands in the State of New York is quite unique in that there are no Indian lands held in federal trust in the State of New York. See November 4, 2003 letter 15 In addition, as discussed above, the DOI s own literature admits that a federal court can confer tribal status. 16 These federally recognized New York tribes are the Cayuga Nation, Oneida Nation, Onondaga Nation, St. Regis Band of Mohawk Indians, Seneca Nation, Tonawanda Band of Seneca Indians and Tuscarora Nation. 17 The Office of Federal Acknowledgment s 2006 Status Summary of Acknowledgment Cases lists 15 tribes that have been acknowledged through the BIA recognition process. None of those are based in New York. Nor are there any New York tribes listed among the 23 tribes that have been denied acknowledgment through the BIA process. 22

Case 1:06-cv-00095-GLS-RFT Document 29 Filed 03/22/2007 Page 23 of 25 by BIA Eastern Region Director, quoted in Sherrill, 137 F.Supp.2d at 144. These are just some of the reasons why deference to the DOI recognition process is inappropriate. 57. It is apparent that because of the unique facts and circumstances of the New York and other eastern tribes (who have operated independently of the BIA for numerous years and long before the 1978 BIA acknowledgment regulations), this Circuit has developed its current criteria in resolving recognition issues as well as Nonintercourse Act issues. See Shinnecock and Oneida, supra. H. THE GOVERNMENT S DISCUSSION ABOUT FEDERAL BENEFITS IS IRRELEVANT BECAUSE THE TRIBE IS IS NOT SEEKING SUCH BENEFITS 58. The Government correctly states that there are various benefits that are accorded only to tribes that are recognized by the DOI recognition process. See 25 C.F.R. 83.2 ( Acknowledgment of tribal existence by the Department is a prerequisite to the protection, services, and benefits of the Federal government available to Indian tribes by virtue of their status as tribes. ) The Government s lengthy discussion about those benefits is irrelevant here because, as the Tribe has made abundantly clear, the Tribe is not seeking any such benefits. 59. The Tribe is seeking federal recognition by this Court (not by the DOI recognition process) and has demonstrated in its summary judgment moving papers and brief that it has satisfied the federal common law standards for tribal recognition. I. THIS COURT HAS NO REASON TO DEFER TO THE DEPARTMENT OF THE INTERIOR 60. The Government, in an apparent attempt to protect its turf, struggles to convince this Court to defer to the DOI. 23 In the instant case, deference to the DOI

Case 1:06-cv-00095-GLS-RFT Document 29 Filed 03/22/2007 Page 24 of 25 recognition process is wholly inappropriate for the numerous reasons described in this Response. Those reasons can be succinctly summarized as follows. First, no petition for recognition was ever filed by the Tribe with the DOI or the BIA. 18 Second, the Tribe is not seeking any benefits from the DOI. Third, the Court is well-equipped to make the tribal status determination and does not need the DOI s expertise. Fourth, the recognition process is unreasonably slow and it would undoubtedly take many, many years for the Tribe s Petition to be evaluated. Fifth, the Tribe needs a prompt recognition of its tribal status to prevent foreclosure of its Property. Sixth, the BIA has demonstrated possible animus towards the Tribe. Based on the above, there is absolutely no reason to defer to the expertise of the DOI for resolution of factual issues regarding tribal status. 61. The instant case must be distinguished from Golden Hill, 39 F.3d 51, wherein it was reasonable for the Second Circuit Court of Appeals to give the BIA some extra time to complete the recognition process. The Golden Hill tribe s petition was being evaluated by the BIA and the Court of Appeals was advised that a determination by the BIA could take up to two (2) years. The Court of Appeals expressed its concern regarding additional delays and recognized the public interest in reasonably prompt adjudication of plaintiff s claims. The Court of Appeals remanded the action, directing the Connecticut District Court to stay the action to permit Golden Hill to reapply to the trial court for a ruling on the merits, if within 18 months the BIA has not then ruled on plaintiff s tribal status. If no ruling by the BIA was made within this time frame, the BIA 18 Cf. Golden Hill, 39 F.3d at 60 ( We need not decide whether deference would be appropriate if no recognition application were pending, but deferral is very warranted here where the plaintiff has already invoked the BIA s authority. ). 24

Case 1:06-cv-00095-GLS-RFT Document 29 Filed 03/22/2007 Page 25 of 25 or the defendants could show why the stay should be extended. Upon failure to make such a showing or to resolve the question of tribal status within the 18-month period, the District Court would be allowed the reach the merits of the case, including deciding whether the tribe should receive federal recognition. Id. at 60-61. The BIA denied the plaintiff s acknowledgment petition. Thus, the District Court did not ultimately make the tribal status determination. The District Court then applied the doctrine of collateral estoppel to the BIA s factual findings. See Golden Hill v. Rell, 463 F.Supp. 2d 192 (D. Conn. 2006). 62. Here, unlike in Golden Hill, there is no reason for the Court to defer to the DOI. III. CONCLUSION 63. Based on the above, it is respectfully submitted that this Court should exercise its authority to reaffirm the Tribe as a sovereign Indian Nation and to issue the declaratory relief requested by Plaintiffs in their motion for summary judgment. Dated: New York, New York March 22, 2007 TODTMAN, NACHAMIE, SPIZZ & JOHNS, P.C. Attorneys for Plaintiffs BGA LLC and The Western Mohegan Tribe And The Nation of the State of New York By: s/jill L. Makower Jill L. Makower (JM-4842) 425 Park Avenue New York, NY 10022 (212) 754-9400 25