08-1194-cv(L) State of New York v. Shinnecock Indian Nation



### UNITED STATES COURT OF APPEALS 1 2 

### FOR THE SECOND CIRCUIT 3 4 5 

### At a stated term of the United States Court of Appeals 6 

### for the Second Circuit, held at the Daniel Patrick Moynihan 7 

### United States Courthouse, 500 Pearl Street, in th City of 8 

### New York, on the 28 **th** 

### day of November, two thousand twelve. 9 10



### - - - - - - - - - - - - - - - - - - - - - -x 11 12 

### STATE OF NEW YORK, NEW YORK STATE RACING AND 13 

### WAGERING BOARD, and NEW YORK STATE DEPARTMENT 14 

### OF ENVIRONMENTAL CONSERVATION, 15 16 

### Plaintiffs-Appellees **,** 17 18 

### TOWN OF SOUTHAMPTON, 19 20 

### Consolidated-Plaintiff-Appellee, 21 22 

### - v.- 08-1194-cv 23 24 

### SHINNECOCK INDIAN NATION, LANCE A. GUMBS, 25 

### RANDALL KING, KAREN HUNTER, and FREDERICK C. 26 

### BESS, 27 28 

### Defendants-Appellants
**.** 29 30



### - - - - - - - - - - - - - - - - - - - - -x 31 32 

### FOR PLAINTIFFS-APPELLEES: DENISE A. HARTMAN, Assistant 33 

### Solicitor General (Eric T. 34 

### Schneiderman, Attorney General 35 

### of the State of New York, 36 

### Barbara D. Underwood, Solicitor 37 

### General, Andrew D. Bing, Deputy 38 

### Solicitor General, on the 39 

### brief ), Albany, New York. 402 1 

### FOR CONSOLIDATED 2 

### PLAINTIFF-APPELLEE: MICHAEL S. COHEN (David M. 3 

### Schraver, David H. Tennant, on 4 

### the brief ), Nixon Peabody LLP, 5 

### Jericho, New York. 6 7 

### FOR DEFENDANTS-APPELLANTS: CHRISTOPHER H. LUNDING (Evan A. 8 

### Davis, Ashika Singh, on the 9 

### brief ), Cleary Gottlieb Steen & 10 

### Hamilton LLP, New York, New 11 

### York. 12 13 

### ORDER 14



### Following disposition of this appeal on June 25, 2012, 15 

### an active judge of the Court requested a poll on whether to 16 

### rehear the case in banc . A poll having been conducted and 17 

### there being no majority favoring in banc review, rehearing 18 

### in banc is hereby **DENIED**

. 19 20 

### Peter W. Hall, Circuit Judge , joined by José A. 21 

### Cabranes and Rosemary S. Pooler, Circuit Judges , dissents by 22 

### opinion from the denial of rehearing in banc

. 23 24



### FOR THE COURT: 25 

### CATHERINE O’HAGAN WOLFE, CLERK 26 27 28 291 Hall, Circuit Judge, with whom Judge Cabranes and Judge Pooler join, dissenting from the 1 denial of rehearing en banc : 2 3 I respectfully dissent from the majority’s vote to deny en banc review. This appeal has 4
raised a question of exceptional importance in our Circuit—and indeed, in the nation—regarding 5
Indian property rights and tribal access to federal courts when tribes are facing state or local 6
regulatory enforcement actions that, of necessity, i nvolve the status of abor iginal title to Indian7
held lands. The question presented is this: Can an Indian tribe remove to federal court a State8
initiated regulatory suit affec ting Indian property when the very essence of the controversy is 9
whether federal law deprives the State of any aut hority over that property? The district court 10
answered this question in the affirmative, deciding the case on the merits. A split panel of this 11
Court answered in the negative, v acated the decision of the district court, and instructed that the 12

case be remanded to state court. In so doing we have decreed th at in a class of cases involving 13
state and local enforcement of land use laws against Indian tribes, the status of a tribe’s title to 14
the affected real property will henceforth be d ecided by state courts, not federal courts. Such 15
decisions regarding title will be made in the context of cases in which the states will 16
understandably be at their most aggressive, seek ing to exercise control over how real property 17

within the boundaries of stat e borders may be used. 18
As our precedent now stands, should a question arise in the context of a state or local 19
regulatory enforcement action concer ning aboriginal title to Indian -held lands, Indian tribes in 20
Connecticut, New York, and Vermont no longer ha ve access to a federal forum under 28 U.S.C. 21
§ 1331 to resolve questions of title. In fact, the majority’s deci sion ensures that every state or 22
local regulatory enforcement action brought agains t an Indian tribe occupying tribe-owned land 232 but alleged to be occupying non-“Indian land,” 1 whether commenced initially in federal court or 1

commenced in state court and removed to federal court, will be dismissed for want of federal 2
subject-matter jurisdiction. The net effect is that questions regarding Indian-land status will 3
necessarily be resolved by a stat e court—a result clearly at odds with over two-hundred years of 4
federal Indian law jurisprudence, which has evol ved in large part to address and accommodate 5
the historically thorny nature of tribal-state relations and a f ear of “home-cooking” in state 6
courts, particularly as to issues involving the assertion of state ju risdiction over Indian tribes and 7

tribal land. See Organized Village of Kake v. Egan , 369 U.S. 60, 71–75 (1962) (surveying the 8

evolution of “[t]he relation between the Indians and the States” over the c ourse of United States 9
history and the attendant metamorphosis of state jurisdiction over tribes); cf. Arizona v. San 10
Carlos Apache Tribe of Ariz. , 463 U.S. 545, 559 n.10 (1983) (describ ing legislative intent behind 11
28 U.S.C. § 1362, which provides or iginal federal court jurisdic tion over civil actions brought by 12

Indian tribes, as “reflect [ing] a congressional policy against relegating Indians to state court 13
when an identical suit brought on their behalf by the United States could have been heard in 14
federal court” (emphasis added)). These conc erns should inform our interpretation of § 1331, 15
which Congress passed at a time wh en states were often (quite l iterally) the “deadliest enemies” 16

of Indian tribes. United States v. Kagama , 118 U.S. 375, 384 (1886); see Act of Mar. 3, 1875, 17

§ 1, 18 Stat. 470. 18

1 Federal law defines “Indian lands” as “(A) all lands within the limits of any Indian reservation; and (B) any lands title to which is either held in trust by the United States fo r the benefit of any Indian tribe or individual or held by any Indian tribe or individual subject to restriction by the United States government against alienation and over which an Indian tribe exercises governmental power.” 25 U.S.C. § 2703(4); see also 18 U.S.C. § 1151 (defining “Indian country” as “(a) all land w ithin the limits of any Indian reservation under the jurisdiction of the United States, notwithstanding the issuance of any patent, and, including rights-of-way running through the reservation, (b) all dependent Indian communities within the borders of the United States whether within the original or subsequently acquired territory thereof, and whether within or without the limits of a state, and (c) all Indian allotments, the Indian titles to which have not been extinguished, including rights-of-way running through the same”); Okla. Tax Comm’n v. Chickasaw Nation , 515 U.S. 450, 453 n.2 (1995) (applying the definition of “Indian country” in the federal criminal code to a dispute regarding state regulatory authority).3 Because this case involves a question of ex ceptional importance—i.e., whether, in the 1
context of a regulatory enforcemen t action brought by state and local authorities, a challenge to a 2
tribe’s claim of aboriginal title to tribe-held land raises a federal question—we should have 3

revisited the issue en banc

. 2 We should also have answered the question in the affirmative. 4
As precedent, the result in this case has a sign ificant impact on the right s of other tribes in 5
our Circuit to access a federal forum to resolve ques tions of title when the core issue in play is 6
whether under federal law that pr operty is Indian land. Even wors e, this precedent now puts into 7
question whether tribes may bring anticipatory suits seeking declarator y judgments concerning 8
their land rights. By refusing to proceed en banc and rectify this result, we now risk that lower 9
courts will read the majority op inion as requiring dismissal for lack of jurisdiction under § 1331 10
in any such declaratory action arising either in response to or in anticipation of a state 11
enforcement action affecting tribal land. See Franchise Tax Bd. v. Constr. Laborers Vacation 12

Trust , 463 U.S. 1, 16 (1983) (noting that “ Skelly Oil has come to stand for the proposition that 13
‘if, but for the availability of the declaratory judgment procedure, the federal claim would arise 14
only as a defense to a state created action, jurisdiction is lacki ng’” (citation omitted)). 15
Neither party having incentive to pursue this issue further, 3 I am troubled that this Court 16
has chosen not to preserve the federal forum to which Indian tribes are entitled when they face 17
state enforcement actions affecting tribe-owne d property. Federal policy has consistently 18

2 I also note that en banc review would have provided us the opportunity to seek an amicus brief from the Bureau of Indian Affairs and the Department of Justice whose Offi ce of Tribal Justice is responsible for the federal government’s policies and litigation positions concerning the status of Indian-held lands.

3 Despite the possible long term damage to Indian law jurisprudence, there is no real impetus for the parties to pursue Supreme Court review in this case. The Shinnecock have little or no incentive to seek certiorari given the unfavorable merits determination at trial. Because the appellate majority dismissed for want of jurisdiction and vacated the district court’s decision, the Tr ibe now gets another bite at the apple, albeit in state court. The State, too, has little incentive to seek certiorari since it merely will c ontinue its action in the state court where it commenced the action in the first instance. This is yet one more reason that the Court should have engaged in en banc review.4 recognized the importance “of Indian sovereignt y and the congressional goal of Indian self1
government, including its ‘overriding goal’ of en couraging tribal self-s ufficient and economic 2
development.” California v. Cabazon Band of Mission Indians , 480 U.S. 202, 216 (1987) 3
(quoting New Mexico v. Mescalera Apache Tribe , 462 U.S. 324, 334–35 (1983)); see also 25 4

U.S.C. § 450; 25 U.S.C. § 1451. Our reluctan ce to assess “arising under” federal-question 5
jurisdiction under Grable & Sons Metal Products, Inc. v. Darue Engineering & Manufacturing
, 6
545 U.S. 308 (2005), on en banc review should not insulate from review the majority’s 7
abandonment of our longstanding recognition that “‘[u]nquestionably it has been the policy of 8
the federal government from the beginning to resp ect the Indian right of occupancy, which could 9
only be interfered with or determined by the United States.’” See Oneida Indian Nation of N.Y. 10
State v. County of Oneida , 414 U.S. 661, 668–69 (1974) (quoting Cramer v. United States , 261 11
U.S. 219, 227 (1923)). Worse, I believe th at we have now potentially disturbed Oneida in a way 12
the Supreme Court did not in Oklahoma Tax Commission v. Graham , 489 U.S. 838 (1989) (per 13
curiam). Questions involving the possessory right s of tribes with respect to lands held by 14
aboriginal title are not the equiva lent of wielding tribal immunity as an affirmative defense. See 15

Oneida , 414 U.S. at 667–70 (holding that questions c oncerning the “possessory rights of Indian 16
tribes to their aboriginal lands ” arise under federal law within the meaning of 28 U.S.C. § 1331). 17
The jurisdictional question presented in this case takes on special importance given the 18
significant and dispositive federal issues appear ing on the face of the State of New York’s and 19
Town of Southampton’s complaints. When, as here , there is a complaint that “assert[s] a current 20
right to possession conferred by federal la w, wholly independent of state law,” see id. at 666, 21

Oneida instructs that such claims “[do] not arise sole ly in anticipation of a defense,” especially 22
“[g]iven the nature and source of the possessory rights of Indian trib es to their aboriginal lands . . 235 . .” Id. at 666–67; see also J.A. 60, && 45, 47 (State’s complaint); id. at 3993, & 7 (Town’s 1
complaint). For Oneida to retain its meaning, such questi ons of possessory rights must be 2
understood to trigger federal-ques tion jurisdiction in pr operty actions regardless of a tribe’s 3
status as plaintiff or defendant. The majority holds otherwise, citing Graham , 489 U.S. at 841, in 4
which the Supreme Court, too, did not disturb Oneida . Unlike in Graham , however, we are not 5
considering here what a state can or cannot do with respect to m oneys held by a tribe or whether 6
it can regulate or tax tribal enterprises. I con cede that if the Shinnecock had already built their 7
casino on Westwoods, their pleading immunity from a state tax on the proceeds would be an 8
insufficient basis for federal subj ect-matter jurisdiction. The issue key to this case, however, is 9
not tribal immunity pleaded in defense to a stat e tax or commercial regulat ory action. Rather, it 10
is squarely the resolution of a substantial question of federa l law—namely, whether Westwoods 11
is “Indian land” within the meaning of 25 U. S.C. § 2703(4) and 18 U.S.C. § 1151, such that it 12
lies beyond the State’s regulatory authority. Thus, to extend Graham to property actions 13
involving the delicate issues of I ndian possessory rights ignores th e nature of the “Indian land” 14
inquiry and conflates it with tr ibal immunity in a way never be fore done by this Court or the 15
Supreme Court, especially in act ions involving a state’s efforts to frustrate those rights. For 16
these reasons, and the reasons that follow, I resp ectfully dissent from the Court’s decision not to 17

examine these issues en banc

. 18
Background 19
The following facts are drawn largely from the majority’s opinion and are not disputed. 20

In 2003, the Shinnecock undertook the construc tion of a 61,000-square-f oot casino on 80 acres 21
of land it owned in the town of Southampton, New York. The land is known as Westwoods. 22
The Tribe did not obtain any permits from the St ate of New York or the Town of Southampton. 236 On or about June 29, 2003, the St ate of New York, the New Yo rk State Racing and Wagering 1
Board, and the New York State Department of En vironmental Conservation (collectively, “the 2
State”) brought suit against the Tribe in New Yo rk State Supreme Court. The State sought to 3
prevent the Tribe from going forw ard with the casino in light of the Tribe’s alleged failure to 4
comply with certain state laws. The State assert ed five claims, the most significant of which 5
alleges that the planned casino violates state la w and is outside the scope of the Indian Gaming 6
Regulation Act (“IGRA”)—a federal act, codified at 25 U.S.C. § 2701 et seq. , that authorizes 7
tribal gaming under certain conditions—because, at that time, the Tribe was not federally 8
recognized and Westwoods was not, according to the State, “Indian lands.” The State sought (1) 9
to enjoin the Tribe from constructing and opera ting a casino at Westwoods and (2) a declaration 10
that, among other things, the Tribe may not pursue gambling activities at the site until it complies 11

with state law or the IGRA. 12
The Tribe removed the case to federal court on the basis that the State’s complaint 13
pleaded issues of federal law. In the Tribe’s answ er to the complaint, it asserted that neither the 14
State nor the Town has the power to regulate ac tivities at Westwoods because the Tribe has 15
aboriginal title to the land. Initially, the State moved to rema nd the action to state court. 16
Disputing that it had articulated a federal question on the face of its complaint, the State argued 17
that its complaint is based entirely on violati ons of New York state la w, and that the Tribe’s 18

removal of the case to federal court was base d on the complaint’s anticipation of certain 19
defenses. The district court rejected the Stat e’s argument and held that the State’s complaint 20

asserts a violation of the IGRA and raises fede ral questions about the possessory rights of the 21
tribe with respect to Westwoods. New York v. Shinnecock Indian Nation , 274 F. Supp. 2d 268 22
(E.D.N.Y. 2003). The Town’s enforcement actio n, which was filed before the remand ruling 237 issued, was ultimately consolidated with the State’s ac tion. After a bench trial, which focused on 1
the history of the Shinnecock and their aborig inal title to the land at Westwoods and on the 2
casino’s potential impact on neighboring landowners and the Town of Southampton, the district 3

court found that the Shinnecock tribe did not hold aboriginal title to the land in question. It 4
granted the State’s and Town’s requests to enjoin the construc tion of the casino. 5
On appeal, having lost at trial in federal cour t, the Shinnecock reversed course and asked 6

us to revisit the district cour t’s conclusion that the underlying complaints raised questions of 7
federal law. The panel majority then held that the complaints plead nothing more than state law 8
claims and that the dispositive federal question in this case, whether the Tribe holds aboriginal 9

title to Westwoods, arises only in the context of the Tribe’s defenses such that it is an insufficient 10
basis for federal-que stion jurisdiction. 11

Discussion 12
It is well-settled that federal-question jurisdiction exists where, inter alia , it is clear from 13
the face of the complaint that “the plaintiff’s righ t to relief necessarily depends on resolution of a 14
substantial question of federal law.” Franchise Tax Bd. , 463 U.S. at 28. To be clear, from the 15
record and on the face of pleadings, the Tribe is fee simple owner of Westwoods and occupies 16
that tract of land outright, invoki ng at the outset of the case a presumption that Westwoods is 17
Indian land and is thus beyond th e regulatory purview of the Stat e. Only by demonstrating (1) 18

that the Tribe does not hold abor iginal title to the land and (2 ) that Westwoods in fact is not 19
Indian land within the meaning of 25 U.S.C. § 2703(4) and 18 U.S.C. § 1151—two issues that 20
are irrefutably questions of federal law and one s reflecting an important national interest—can 21
the State and Town assert the right to regulat e the tribe’s construction project in the first 22

instance. See Oneida , 414 U.S. at 667–70 (holding that que stions concerning the “possessory 238 rights of Indian tribes to thei r aboriginal lands” arise under th e Constitution, laws, or treaties of 1
the United States within the meaning of 28 U.S.C. § 1331). 2
The majority has focused its attention on th e Tribe’s defenses to regulation and the 3
Plaintiffs’ anticipation of those defenses. As acknowledged in the dissent, resolving whether 4

Westwoods is Indian land or is he ld by aboriginal title is necessary also to adjudicating the 5
Tribe’s defenses or anticipated defenses, but fede ral-question jurisdiction exists in this case not 6
because of these anticipated defenses but because the Plaintiffs, in order to establish that they 7
have any authority over the Tribe’s activities at issue, must prove in their case-in-chief that 8

Westwoods is not Indian land . The majority ignores the antecedent nature of this inquiry and 9

overlooks the fact that the Pl aintiffs’ authority to regulat e the Tribe’s act ivities on the 10
Westwoods parcel necessarily turns on whether th e Tribe holds aboriginal title to the land in 11
question and ultimately whether Westwoods is Indian land

C issues plainly arising under the laws 12

of the United States. 13
In its complaint, the State affirmatively pl eads that the Tribe o ccupies and holds fee 14
simple title to the land at issue. The State, however, also avers that the Tribe’s property is 15
“subject to the jurisdiction of New York State” and declares that the State will prove, in order to 16
prevail on its claims, that Westwoods is not “Indian Country.” J.A. 60, & 47; see also id.
, & 45. 17
The State also pleads that “the site of the pla nned casino is not ‘Indian Country’ as defined in 18

federal law and in [the Indi an Gaming Regulatory Act],” id. at 63 & 76; and that “the defendant’s 19
property which is the subject of this action, th e gaming site, does not constitute ‘Indian lands,’” 20

id. at 66 & j. The Town, in its complaint, pleads that the Tribe is the fee simple owner of the 21

land at issue. Id. at 3993, & 7. Because the Tribe owns and occ upies Westwoods, and that parcel 22
is prima facie Indian land, the To wn’s and State’s right to relief— i.e. , regulation of 239 Westwoods—necessarily depends on the resoluti on of a substantial question of federal law— 1
namely, whether Westwoods is “Indian land” w ithin the meaning of 25 U.S.C. § 2703(4) and 18 2

U.S.C. § 1151. See Franchise Tax Bd.
, 463 U.S. at 27–28. Indeed, unless the Plaintiffs can 3

demonstrate that Westwoods is not Indian land, the State’s and th e Town’s authority to regulate 4

the Tribe’s activities in this case is a dead letter. See Cohen’s Handbook of Federal Indian Law 5
§ 6.03[1][a] (Nell Jessup Newton et al. eds., 2005) (“A state ordinarily may not regulate the 6
property or conduct of tribes or tribal-mem ber Indians in Indian country.” (citing The Kansas 7

Indians , 72 U.S. 737 (1867); Worcester v. Georgia , 31 U.S. 515 (1832); Okla. Tax Comm’n v. 8

Sac & Fox Nation , 508 U.S. 114, 125 (1993))). 9
Furthermore, the Plaintiffs’ challenge to th e Tribe’s right to po ssession and use of the 10
land in the manner the Tribe is proposing is prem ised on the State’s allegation that aboriginal 11
title has been extinguished. It is a well-settled principle that the Tribe’s right of occupancy is 12
“entitled to the protection of federal law and with respect to Indian title based on aboriginal 13
possession, ‘the power of Congress . . . is supreme.’” Oneida , 414 U.S. at 669 (quoting United 14

States v. Santa Fe Pac. R.R. Co. , 314 U.S. 339, 347 (1941)). That being the case, a challenge to 15
that right to occupancy is also governed by federal law and “‘coul d only be . . . determined by 16

the United States.’” Id. at 668 (quoting Cramer v. United States , 261 U.S. 219, 227 (1923)). 17
Accordingly, before reaching the merits of the Plaintiffs’ underlying stat e law claims, the court 18
deciding this matter must first determ ine whether Westwoods is Indian land, i.e. , whether the 19
Tribe holds aboriginal title to the land—a subs tantial federal issue present on the face of the 20
complaint. Id. at 670. 4 21

4 The majority’s attempt to distinguish the finding of jurisdiction in Oneida from the instant case fails. The majority overlooks that the Oneida court found multiple bases for federal subject-matter jurisdiction, including the existence of a possessory land claim by a tribe in the complaint. The Court in Oneida also observed “that federal law now protects, and has continuously protected from the time of the formation of the United States, possessory rights to10 The Supreme Court has also determined th at jurisdiction pursuant to § 1331 will be 1
satisfied in actions arising under state law, such as the state regulatory enforcement action here, 2

where “a state-law claim necessari ly raise[s] a stated federal issue, actually disputed and 3
substantial, which a federal forum may ente rtain without disturbi ng any congressionally 4
approved balance of federal and st ate judicial responsibilities.” Grable & Sons Metal Prods.
, 5
545 U.S. at 314. Under the Supreme Court’s test in Grable , federal-question jurisdiction is 6

satisfied here because the determination of whethe r the Tribe holds aborigin al title to Westwoods 7

is an essential element of the State’s claims a nd an implicit component of the Town’s right to 8
regulation. If Westwoods is “Indian land,” then the Plaintiffs’ enforcement authority will not 9
extend to the land in question. In other words, the State can plead facially viable claims in the 10
present case only by pleading that the Tribe doe s not hold aboriginal title to Westwoods—an 11

issue of federal law that is act ually in dispute by virtue of th e Tribe’s pre-suit ownership and 12
occupation of Westwoods as if th e Tribe does hold Indian title. 13

In Grable, the plaintiff sued to quiet title to real property that had been seized and sold by 14
the IRS to satisfy the plaintiff’s federal tax delinquency. 545 U.S. at 310. The plaintiff argued 15

that the tax sale to the defenda nt was invalid because the IRS ha d not given him (the plaintiff) 16
valid notice as required by the federal statute governing IRS tax sales. Id. The defendant 17
removed the case to federal court arguing that the plaintiff’s state law quiet title action presented 18
a federal question because the plaintiff’s claim of title depended on an interpretation of federal 19

law. Id. at 311. The Supreme Court held that the pl aintiff’s state law claim arose under federal 20
law for purposes of federal question subject-matter jurisdiction because “[w]hether [the plaintiff] 21

tribal lands . . . .” 414 U.S. at 67 7. Finally, the Supreme Court noted that 25 U.S.C. § 233, which enumerates a number of grounds for state court jurisdiction over certain civil actions and proceedings involving Indians, left intact the availability of a federal forum for reso lving disputes concerning Indian land. Id. at 680–81; see 25 U.S.C. § 233 (“[N]othing herein contained shall be construed as conferring jurisdiction on the courts of the State of New York or making applicable the laws of the State of New York in civil actions involving Indian lands . . . .”).11 was given notice within the meaning of the federal st atute is . . . an essential element of its quiet 1
title claim, and the meaning of the fede ral statute is actual ly in dispute.” Id. at 315. 2

Here, as in Grable , federal law is not “precluding” or “providing” the State’s causes of 3

action, but rather dictates whether the Plaintiffs may assert regulatory aut hority over Westwoods. 4
Pursuant to the analysis set out in Grable , therefore, federal subject-m atter jurisdiction because, 5
at the very least, the Plaintiffs must demonstrate, as part of their case-in-chief, that Westwoods is 6

not Indian land in order to assert any regulatory authority over the Tr ibe’s activities at that site. 7

See also Oneida , 414 U.S. at 677 (“[T]he assertion of a fe deral controversy does not rest solely 8
on the claim of a right to possession derived from a federal grant of title whose scope will be 9
governed by state law. Rather, it rests on th e not-insubstantial claim that federal law now 10
protects, and has continuously protected from the time of the formation of the United States, 11
possessory rights to tribal lands, wholly apart from the application of state law principles which 12
normally and separately protect a valid right of possession.”). Moreover, in Grable
, the Supreme 13

Court identified a number of cons iderations warranting federal juri sdiction: (1) the federal issue 14
is one that “sensibly belongs in federal court; ” (2) the issue “appears to be the only legal or 15
factual issue contested in the case;” (3) there exis ts an important national interest in providing a 16
federal forum for adjudicating th e dispute; and (4) recognizing federal jurisdiction under the 17
circumstances would not disrupt federal-stat e comity. 545 U.S. at 315. Each of the Grable 18
considerations is present in this case and informs the view that (1) the dist rict court properly held 19
that it had federal subject-matter jurisdiction over the instant matter and that (2) the majority’s 20

conclusion is in error. 21

As stated in the dissent: 22
The issue of aboriginal title and ther efore the propriety of state and local 23 regulation over that land A appears to be the only legal or factual issue 2412 contested in the case. @ Id. There is also an import ant and historic interest 1 in providing Indian tribes with a fe deral forum for adjudicating their land 2 disputes with states, and the risk th at recognizing federal jurisdiction over 3 this case will open the floodgates for cases involving state casino 4 permitting disputes is minimal at best. See id. In sum, whether 5 Westwoods is Indian land is an important national issue that has 6 historically and routinely been resolved by federal courts and is a question 7 that must be resolved before reaching all other aspects of the state’s case. 8 See generally McClanahan v. State Tax Comm’n of Ariz. , 411 U.S. 164, 9 168-69 (1973) (“‘The policy of leaving Indians free from state jurisdiction 10 and control is deeply rooted in the Nation’s history.’” Rice v. Olson , 324 11 U.S. 786, 789 (1945)). “This policy was first articulated by this Court 141 12 years ago when Mr. Chief Justice Marsha ll held that Indi an nations were 13 ‘distinct political communities, having territorial boundari es, within which 14 their authority is exclusive, and having a right to all the lands within those 15 boundaries, which is not only acknowl edged, but guarantied [sic] by the 16 United States.’” McClanahan , 411 U.S. at 168 (citing Worcester v. 17 Georgia , 6 Pet. 515, 557 (1832)). 18 New York v. Shinnecock Indian Nation , 686 F.3d 133, 146–47 (2d Cir. 2012) (Hall, J., 19 dissenting). 20 21 “[T]here is no good reason to shirk from federal jurisdiction over the dispositive and 22

contested federal issue at the heart” of this case, Grable , 545 U.S. at 319–20, and whether the 23
Tribe holds aboriginal title to Westwoods is “an important issue of federal law that sensibly 24
belongs in a federal court,” id. at 315. In my view, the majority’s decision will wreak great 25
havoc on tribal possessory claims, especially th ose arising in the context of state and local 26
regulatory actions. The matter is one, therefore, of exceptional importance that should have been 27
revisited by the Court as a whole. See Fed. R. App. P. 35(a)(2). I respectfully dissent. 28