1 12

‐ 4544 (L)

Schaghticoke Tribal Nation v. Kent School Corp. Inc., et al.

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

SUMMARY ORDER

R ULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT

. C ITATION TO A SUMMARY ORDER FILED ON OR AFTER

J ANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY F EDERAL R ULE OF A PPELLATE P ROCEDURE 32.1 AND THIS COURT ’ S

L OCAL R ULE 32.1.1. W HEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT

, A PARTY MUST CITE EITHER

THE F EDERAL A PPENDIX 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 15 th 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,2 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

America:

For Defendants

‐ Appellees Kent School

Corporation, Preston Mountain Club,

Connecticut Light & Power Company,

and Town of Kent:

For Defendant

‐ Appellee Sam Kwak: JOHN B. HUGHES, Assistant United

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.

DAVID J. ELLIOTT, Day Pitney LLP,

Hartford, CT (Jaime Bachrach, John W.

Cerreta, Day Pitney LLP, Hartford, CT;

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 ).

Paul N. Gilmore, Updike, Kelly &

Spellacy, P.C., Hartford, CT.

* The Clerk of the Court is directed to amend the caption as above.3 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 254 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).5 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 Golden6 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 1996.7 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