12‐4544 (L) Schaghticoke Tribal Nation v. Kent School Corp. Inc., et al.
UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 15th day of December, two thousand fourteen.
PRESENT: RICHARD C. WESLEY, PETER W. HALL, GERARD E. LYNCH, Circuit Judges. ____________________________________________
SCHAGHTICOKE TRIBAL NATION,
Plaintiff‐Appellant,
SCHAGHTICOKE INDIAN TRIBE,
Intervenor‐Plaintiff,
‐v.‐ Nos. 12‐4544, 12‐4587, 13‐4756
KENT SCHOOL CORP. INC., PRESTON MOUNTAIN CLUB, CONNECTICUT LIGHT & POWER COMPANY, TOWN OF KENT, LORETTA E. BONOS,
1 ADMIN OF ESTATE OF FLORENCE E.M. BAKER BONOS, ESTATE OF EUGENE L. PHELPS, SAM KWAK, UNITED STATES OF AMERICA,
Defendants‐Appellees,
APPALACHIAN TRAIL CONFERENCE INC., BARBARA G. BUSH, NEW MILFORD SAVINGS BANK,
Intervenors‐Defendants.* ____________________________________________
For Plaintiff‐Appellant: BENJAMIN HEYWARD GREEN, Zeichner Ellman & Krause LLP, Greenwich, CT.
For Defendant‐Appellee United States of JOHN B. HUGHES, Assistant United America: States Attorney (Michelle L. McConaghy and Sandra S. Glover, Assistant United States Attorneys, on the brief), for Deirdre M. Daly, United States Attorney for the District of Connecticut, New Haven, CT.
For Defendants‐Appellees Kent School DAVID J. ELLIOTT, Day Pitney LLP, Corporation, Preston Mountain Club, Hartford, CT (Jaime Bachrach, John W. Connecticut Light & Power Company, Cerreta, Day Pitney LLP, Hartford, CT; and Town of Kent: Richard L. Street, Carmody & Torrance, Waterbury, CT; Jeffrey B. Sienkiewicz, Sienkiewicz & McKenna P.C., New Milford, CT; James R. Fogarty, Fogarty Cohen Selby & Nemiroff, LLC, Old Greenwich, CT, on the brief).
For Defendant‐Appellee Sam Kwak: Paul N. Gilmore, Updike, Kelly & Spellacy, P.C., Hartford, CT.
* The Clerk of the Court is directed to amend the caption as above.
For Amicus Curiae State of Connecticut: Mark F. Kohler, Assistant Attorney General, for George Jepsen, Attorney General, Hartford, CT.
Consolidated appeals from the United States District Court for the District of Connecticut (Thompson, J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,
ADJUDGED AND DECREED that the judgment is AFFIRMED.
These appeals arise from three consolidated actions. The common claim
made by the Schaghticoke Tribal Nation (“STN”) in each case is that it is an
Indian tribe that has been dispossessed of Indian land without the approval of
Congress in violation of the Indian Nonintercourse Act, 25 U.S.C. § 177. That
statute provides, in relevant part, that “[n]o purchase, grant, lease, or other
conveyance of lands, or of any title or claim thereto, from any Indian nation or
tribe of Indians, shall be of any validity in law or equity, unless the same be
made by treaty or convention entered into pursuant to the Constitution.” Id.
The consolidated cases were stayed in 1999 to allow STN to complete the
Department of the Interior’s (“DOI”) federal acknowledgment process – a formal
regulatory process by which DOI decides whether a petitioning group is entitled
to certain privileges and benefits provided to officially recognized tribes. See 25
3 C.F.R. § 83.2. In 2005, DOI concluded that STN did not meet all of the criteria for
federal acknowledgement and its determination was upheld on appeal.
Schaghticoke Tribal Nation v. Kempthorne, 587 F.3d 132, 134 (2d Cir. 2009).
Following that determination, the Defendants‐Appellees moved for judgment on
the pleadings in district court, which the court granted. STN appeals from the
district court’s ruling.1
To establish a prima facie case of a violation of the Nonintercourse Act, a
plaintiff must 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 Paugussett Tribe of Indians v.
Weicker, 39 F.3d 51, 56 (2d Cir. 1994). To constitute an Indian tribe within the
meaning of 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.” United States v. Candelaria, 271 U.S. 432, 442 (1926) (quoting Montoya v.
1 We review a “judgment under Federal Rule of Civil Procedure 12(c) de novo, accepting the complaint’s factual allegations as true and drawing all reasonable inferences in the plaintiff’s favor.” Kirkendall v. Halliburton, Inc., 707 F.3d 173, 178 (2d Cir. 2013).
4 United States, 180 U.S. 261, 266 (1901)) (emphasis added). Under the DOI
regulations, on the other hand, a group constitutes an Indian tribe if it meets
seven mandatory criteria. Two of the requirements, relevant here, are: (1) “[a]
predominant portion of the petitioning group comprises a distinct community
and has existed as a community from historical times until the present;” and (2)
“[t]he petitioner has maintained political influence or authority over its members
as an autonomous entity from historical times until the present.” 25 C.F.R.
§§ 83.7(b), (c).
Our decision in Golden Hill provides the framework for the interaction
between the common law standard and the DOI criteria and the role of primary
jurisdiction in that interaction. The primary jurisdiction doctrine is “[a] judicial
doctrine whereby a court tends to favor allowing an agency an initial
opportunity to decide an issue in a case in which the court and the agency have
concurrent jurisdiction.” Black’s Law Dictionary 1310 (9th ed. 2009). The doctrine
is applicable where “a claim is originally cognizable in the courts, but
enforcement of the claim requires, or is materially aided by, the resolution of
threshold issues, usually of a factual nature, which are placed within the special
competence of the administrative body.” Golden Hill, 39 F.3d at 58‐59. In Golden
5 Hill, we concluded that “[t]he Department of the Interior’s creation of a
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12‐4544 (L) Schaghticoke Tribal Nation v. Kent School Corp. Inc., et al.
UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 15th day of December, two thousand fourteen.
PRESENT: RICHARD C. WESLEY, PETER W. HALL, GERARD E. LYNCH, Circuit Judges. ____________________________________________
SCHAGHTICOKE TRIBAL NATION,
Plaintiff‐Appellant,
SCHAGHTICOKE INDIAN TRIBE,
Intervenor‐Plaintiff,
‐v.‐ Nos. 12‐4544, 12‐4587, 13‐4756
KENT SCHOOL CORP. INC., PRESTON MOUNTAIN CLUB, CONNECTICUT LIGHT & POWER COMPANY, TOWN OF KENT, LORETTA E. BONOS,
1 ADMIN OF ESTATE OF FLORENCE E.M. BAKER BONOS, ESTATE OF EUGENE L. PHELPS, SAM KWAK, UNITED STATES OF AMERICA,
Defendants‐Appellees,
APPALACHIAN TRAIL CONFERENCE INC., BARBARA G. BUSH, NEW MILFORD SAVINGS BANK,
Intervenors‐Defendants.* ____________________________________________
For Plaintiff‐Appellant: BENJAMIN HEYWARD GREEN, Zeichner Ellman & Krause LLP, Greenwich, CT.
For Defendant‐Appellee United States of JOHN B. HUGHES, Assistant United America: States Attorney (Michelle L. McConaghy and Sandra S. Glover, Assistant United States Attorneys, on the brief), for Deirdre M. Daly, United States Attorney for the District of Connecticut, New Haven, CT.
For Defendants‐Appellees Kent School DAVID J. ELLIOTT, Day Pitney LLP, Corporation, Preston Mountain Club, Hartford, CT (Jaime Bachrach, John W. Connecticut Light & Power Company, Cerreta, Day Pitney LLP, Hartford, CT; and Town of Kent: Richard L. Street, Carmody & Torrance, Waterbury, CT; Jeffrey B. Sienkiewicz, Sienkiewicz & McKenna P.C., New Milford, CT; James R. Fogarty, Fogarty Cohen Selby & Nemiroff, LLC, Old Greenwich, CT, on the brief).
For Defendant‐Appellee Sam Kwak: Paul N. Gilmore, Updike, Kelly & Spellacy, P.C., Hartford, CT.
* The Clerk of the Court is directed to amend the caption as above.
For Amicus Curiae State of Connecticut: Mark F. Kohler, Assistant Attorney General, for George Jepsen, Attorney General, Hartford, CT.
Consolidated appeals from the United States District Court for the District of Connecticut (Thompson, J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,
ADJUDGED AND DECREED that the judgment is AFFIRMED.
These appeals arise from three consolidated actions. The common claim
made by the Schaghticoke Tribal Nation (“STN”) in each case is that it is an
Indian tribe that has been dispossessed of Indian land without the approval of
Congress in violation of the Indian Nonintercourse Act, 25 U.S.C. § 177. That
statute provides, in relevant part, that “[n]o purchase, grant, lease, or other
conveyance of lands, or of any title or claim thereto, from any Indian nation or
tribe of Indians, shall be of any validity in law or equity, unless the same be
made by treaty or convention entered into pursuant to the Constitution.” Id.
The consolidated cases were stayed in 1999 to allow STN to complete the
Department of the Interior’s (“DOI”) federal acknowledgment process – a formal
regulatory process by which DOI decides whether a petitioning group is entitled
to certain privileges and benefits provided to officially recognized tribes. See 25
3 C.F.R. § 83.2. In 2005, DOI concluded that STN did not meet all of the criteria for
federal acknowledgement and its determination was upheld on appeal.
Schaghticoke Tribal Nation v. Kempthorne, 587 F.3d 132, 134 (2d Cir. 2009).
Following that determination, the Defendants‐Appellees moved for judgment on
the pleadings in district court, which the court granted. STN appeals from the
district court’s ruling.1
To establish a prima facie case of a violation of the Nonintercourse Act, a
plaintiff must 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 Paugussett Tribe of Indians v.
Weicker, 39 F.3d 51, 56 (2d Cir. 1994). To constitute an Indian tribe within the
meaning of 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.” United States v. Candelaria, 271 U.S. 432, 442 (1926) (quoting Montoya v.
1 We review a “judgment under Federal Rule of Civil Procedure 12(c) de novo, accepting the complaint’s factual allegations as true and drawing all reasonable inferences in the plaintiff’s favor.” Kirkendall v. Halliburton, Inc., 707 F.3d 173, 178 (2d Cir. 2013).
4 United States, 180 U.S. 261, 266 (1901)) (emphasis added). Under the DOI
regulations, on the other hand, a group constitutes an Indian tribe if it meets
seven mandatory criteria. Two of the requirements, relevant here, are: (1) “[a]
predominant portion of the petitioning group comprises a distinct community
and has existed as a community from historical times until the present;” and (2)
“[t]he petitioner has maintained political influence or authority over its members
as an autonomous entity from historical times until the present.” 25 C.F.R.
§§ 83.7(b), (c).
Our decision in Golden Hill provides the framework for the interaction
between the common law standard and the DOI criteria and the role of primary
jurisdiction in that interaction. The primary jurisdiction doctrine is “[a] judicial
doctrine whereby a court tends to favor allowing an agency an initial
opportunity to decide an issue in a case in which the court and the agency have
concurrent jurisdiction.” Black’s Law Dictionary 1310 (9th ed. 2009). The doctrine
is applicable where “a claim is originally cognizable in the courts, but
enforcement of the claim requires, or is materially aided by, the resolution of
threshold issues, usually of a factual nature, which are placed within the special
competence of the administrative body.” Golden Hill, 39 F.3d at 58‐59. In Golden
5 Hill, we concluded that “[t]he Department of the Interior’s creation of a
structured administrative process to acknowledge ‘nonrecognized’ Indian tribes
using uniform criteria, and its experience and expertise in applying these
standards, has now made deference to the primary jurisdiction of the agency
appropriate.” Id. at 60. Thus, while the “federal court, of course, retains final
authority to rule on a federal statute,” it should nonetheless “avail itself of the
agency’s aid in gathering facts and marshaling them into a meaningful pattern.”
Id.
That is precisely what occurred in the case now before us. The district
court deferred to the factual findings of the DOI, but “agree[d] that it must
independently apply applicable law to the factual findings.” United States v.
43.47 Acres of Land, 896 F. Supp. 2d 151, 157 (D. Conn. 2012). And it did.
Ultimately, the district court concluded that the evidence submitted by STN was
insufficient to satisfy the Montoya standard requiring that the group be “united in
a community under one leadership or government.” Montoya, 180 U.S. at 266. In
so deciding, it relied on DOI’s conclusions that STN had presented insufficient
direct evidence of a distinct tribal community from 1920 to 1967 and after 1996,
and of political authority over tribal members from 1801 to 1875 and after 1996.
6 It was appropriate for the district court to rely on the DOI’s factual findings. To
hold to the contrary would require the district court to conduct the independent,
complex evidentiary hearing that this Court sought to avoid in Golden Hill.
Finally, because we find that the district court appropriately deferred
under the doctrine of primary jurisdiction to DOI’s factual findings in concluding
that STN did not satisfy the Montoya criteria, we need not address whether the
doctrine of collateral estoppel applies in this case.
For the reasons stated above, the judgment of the district court is
AFFIRMED.
FOR THE COURT: Catherine O’Hagan Wolfe, Clerk