The Second Circuit's Troubling Refusal To Consider Federal Indian Law Issues

The Case

New York v. Shinnecock Indian Nation, decided by the Second Circuit Court of Appeals on June 25, 2012

The Key Legal Issue

The issue whether a state has jurisdiction over a tribe is a question of federal law. See, e.g., White Mountain Apache Tribe v. Bracker, 446 U.S. 132 (1980). It is important that tribes have access to the federal courts to challenge state encroachments on the tribal right of self-government. Section 1362 of the Judiciary Act gives federal district courts "original jurisdiction of all civil actions, brought by any Indian tribe or band with a governing body duly recognized by the Secretary of the Interior, wherein the matter in controversy arises under the Constitution, laws, or treaties of the United States." Section 1362 reflects a "congressional policy against relegating Indians to state court when an identical suit brought on their behalf by the United States could have been heard in federal court." Arizona v. San Carlos Apache Tribe, 463 U.S. 545, 561 n. 10, (1983). In Moe v. Salish & Kootenai Tribes, 425 U.S. 463 (1976), for example, the Supreme Court held that Section 1362 permitted the tribal plaintiff to challenge the State of Washington's attempts to impose various taxes within the tribe's reservation. See also Montana v. Blackfeet Tribe, 471 U.S. 759, 763 n. 2 (1985) ("a suit by an Indian tribe to enjoin the enforcement of state tax laws is cognizable in district court under 28 U.S.C. § 1362 despite the general ban in 28 U.S.C. § 1341 against seeking federal injunctions of such laws.")

The State's Claim

New York State (State) agencies and municipalities sued the Shinnecock Tribe and tribal officials in state court seeking to enjoin them from constructing a casino and conducting gaming on a parcel of non-reservation property on Long Island. The Tribe removed the case to federal court on the basis that the State's complaint had pleaded issues of federal law and that the outcome depended on whether, based on the Tribe's aboriginal title, the proposed site was "Indian land." The district court denied the State's motion to remand the case to state court, found that the Indian Gaming Regulatory Act provided federal jurisdiction and ruled against the Tribe on the merits. On appeal, neither the Tribe nor the State contested federal court jurisdiction.

What the Court Decided

Although neither party challenged its jurisdiction, the Court, in a 2-1 decision, ordered the case remanded to the state court for lack of...