Free Memorandum in Support of Motion - District Court of Connecticut - Connecticut

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UNITED STATES DISTRICT COURT DISTRICT OF CONNECTICUT

: : : : v. : : : M. JODI RELL, GOVERNOR : OF THE STATE OF CONNECTICUT,ET AL., : Defendants. :

GOLDEN HILL PAUGUSSETT TRIBE OF INDIANS, Plaintiff,

Civil No. 2:92CV0738(JBA) CONSOLIDATED

AUGUST 2, 2006

MEMORANDUM OF LAW IN SUPPORT OF MOTION FOR JUDGMENT ON THE PLEADINGS OF DEFENDANT GOVERNOR OF THE STATE OF CONNECTICUT

DEFENDANT, M. JODI RELL, GOVERNOR OF THE STATE OF CONNECTICUT RICHARD BLUMENTHAL ATTORNEY GENERAL Mark F. Kohler (#ct 02272) Assistant Attorney General Susan Quinn Cobb (#ct 03850) Assistant Attorney General Office of the Attorney General 55 Elm Street, P.O. Box 120 Hartford, CT 06141-0120 (860)808-5270 (860)808-5385(fax) [email protected] [email protected]

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TABLE OF CONTENTS I. II. III. IV. Introduction .................................................................................. 1 Background .................................................................................. 2 Standard of Review ........................................................................ 6 Based on the BIA's Findings of Lack of Distinct Community, Lack of Political Authority, and Lack of Tribal Descent, to Which This Court Must Defer, the GHP Lacks Tribal Standing to Pursue Its Land Claims .............................. 7 A. Tribal Status Is Required Both for Standing and the Merits of a Claim Under the Nonintercourse Act .......................................... 8 In All Respects Material to the GHP, the Factual Inquiry for Determining Tribal Status under the Nonintercourse Act and Federal Tribal Acknowledgment Are Substantively the Same .............. 9 The BIA's Findings in the Final Determination Rejecting the GHP's Peitition for Federal Tribal Ackowledgment Demonstrate That the GHP Lacks Tribal Status for All Purposes ........................... 13 1. A Distinct Golden Hill Indian Community Has Not Existed Since the Early Nineteenth Century ................................... 14 There Has Been No Exercise of Political Authority or Influence in a Golden Hill Indian Community for At Least Two Centuries ............................................................ 15 The GHP Failed to Demonstrate That Its Members Are Descended from a Historical Indian Tribe ............................ 16

B.

C.

2.

3.

D.

This Court Should Defer to and Accept as Conclusive the BIA's Findings ............................................................................. 16 1. The GHP Had a Full and Fair Opportunity to Litigate the Issue of Tribal Status at the BIA ................................................ 17

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2.

Both as a Matter of the Deference That Must be Accorded the BIA's Findings Under the Primary Jurisdiction Doctrine and as a Matter of Collateral Estoppel, the GHP May Not Relitigate the BIA's Findings .....................................................

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E.

Applying the Montoya Test to the BIA's Findings, the GHP Unquestionably Lacks Standing to Pursue Its Land Claims ................

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V.

Because of the Long Passage of Time, the Legitimate Reliance of Subsequent Landowners on the Passage of Such Time, and the Extraordinarily Disruptive Nature of the Relief Sought, the GHP's Land Claims Are Barred as a Matter of Law Under the Recent Decisions in Sherrill and Cayuga ............ 29 A. B. C. City of Sherrill v. Oneida Indian Nation ........................................ 30 Cayuga Indian Nation v. Pataki ................................................. 32 The Application of the Sherrill-Cayuga Factors Require Dismissal of the GHP's Claims .................................................................. 34

VI.

Conclusion .................................................................................. 38

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I.

INTRODUCTION The Golden Hill tribe that allegedly occupied the lands that are the subject of the three

consolidated actions no longer exists. The plaintiff Golden Hill Paugussett ("GHP") is not an Indian tribe within the meaning of federal law and is not the successor ­ legal, historical, genealogical, anthropological or otherwise ­ of the Golden Hill tribe. Accordingly, the plaintiff lacks standing to pursue its land claims, and the consolidated actions must be dismissed for lack of subject matter jurisdiction.1 These cases were stayed under the doctrine of primary jurisdiction pending the resolution by the Bureau of Indian Affairs ("BIA") of the GHP's petition for federal tribal acknowledgment. Golden Hill Paugussett Tribe of Indians v. Weicker, 39 F.3d 51 (2d Cir. 1994). The BIA's administrative proceedings are completed, and the BIA resoundingly rejected the GHP's petition. Final Determination Against Federal Acknowledgment of the Golden Hill Paugussett Tribe (June 14, 2004) (Ex. A). In particular, the BIA found that the GHP has not existed as a distinct community or exercised political authority or influence for nearly two hundred years and that the GHP does not descend from a historical Indian tribe. The BIA's factual findings are compelling, and this Court must and should defer to them in making its legal determination as to whether the GHP is an Indian tribe with standing to
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At the time of the initiation of this lawsuit, Lowell P. Weicker, Jr. was Governor of the State of Connecticut. The Governor is now M. Jodi Rell. See Fed. R. Civ. P. 25(d). The two member cases consolidated with the lead case captioned Golden Hill Paugussett Tribe of Indians v. Rell, No. 2:92cv738(JBA) ("GHP v. Rell"), are Golden Hill Paugussett Tribe of Indians v. Nyzio, No. 3:93cv26(JBA) ("GHP v. Nyzio"), and Golden Hill Paugussett Tribe of Indians v. Bachyrycz, No. 3:93cv694(JBA) ("GHP v. Bachyrycz"). The Court's Order of Consolidation dated Feb. 23, 2000, requires all pleadings to be filed in the lead case. The motion for judgment on the pleadings is intended to apply to all three consolidated cases.

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pursue its land claims. In light of the BIA's findings, the only legal conclusion that this Court can reach is that the GHP lacks tribal status. In addition, under the recent watershed cases of City of Sherrill v. Oneida Indian Nation, 544 U.S. 197 (2005), and Cayuga Indian Nation of New York v. Pataki, 413 F.3d 266 (2d Cir. 2005), cert. denied, 126 S.Ct. 2021, 2022 (2006), the GHP's land claims and the relief sought therein are barred by the equitable defenses of laches, acquiescence and impossibility. As those cases hold, the GHP is precluded from obtaining any declaratory or monetary relief based on its alleged possessory rights because the intervening centuries since the allegedly unlawful transactions give rise to unparalleled inequities. The character of the land has profoundly changed. What was once essentially undeveloped lands are now filled with homes, businesses, and roads. The GHP's claims represent an overwhelmingly inequitable disruption to legitimate and longstanding expectations of land ownership. The claims must therefore be dismissed as a matter of law. II. BACKGROUND The GHP has brought three separate land claims actions, which the Court has consolidated. In the lead case, GHP v. Rell, the GHP sues to recover lands located in the City of Bridgeport. The GHP alleges that it is an Indian tribe that has resided in Connecticut since time immemorial. GHP v. Rell Amended Complaint dated July 19, 2006, ¶ 4. It further alleges that it had the exclusive use and occupancy of the lands it seeks to recover until the land was sold by the State of Connecticut ("State") without the consent of the United States in violation of the Indian Trade and Nonintercourse Act, 25 U.S.C. § 177 ("Nonintercourse

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Act"). 2 The transactions that are alleged to have violated the Nonintercourse Act occurred in the early to mid-nineteenth centuries. GHP v. Rell Amended Complaint, ¶¶ 23-25. The lands sought in the lead case are located generally in downtown Bridgeport and have been highly developed over the last two centuries. The lands that the GHP seeks from the State include parts of what is now highway Routes 8 and 25. Id., ¶ 42. In addition, the land claim includes the former "Hi-Ho Mall" in downtown Bridgeport, id., ¶ 41, which is now the site of the State's Housatonic Community College. Similar allegations are asserted in the two companion cases. In GHP v. Nyzio, the GHP claims lands located in the Town of Trumbull alleged to have been conveyed in 1854 in violation of the Nonintercourse Act. GHP v. Nyzio Complaint, ¶¶ 17-18. The Trumbull lands include part of Route 8 and residential properties. Id., ¶¶ 19-26. In GHP v. Bachyrycz, the GHP seeks to recover lands located in Orange alleged to have been conveyed in 1825 in violation of the Nonintercourse Act. GHP v. Bachyrycz Complaint, ¶¶ 16-17. The lands claimed in Orange appear to be presently residential properties.3 Id., ¶¶ 18-78. As remedies in all three consolidated actions, the GHP seeks (1) judgment declaring that it is the owner of the land and restoring immediate possession of the land to it; (2) an
2

The Amended Complaint also seeks recovery of additional lands in Bridgeport that the GHP alleges were conveyed in violation of the Proclamation of 1763 of King George III of Great Britain. GHP v. Rell Amended Complaint, ¶¶ 19-20, 30, 43, 45-158. The claims with respect to these lands were dismissed in 1993. GHP v. Weicker, 839 F. Supp. 130, 135-39 (D. Conn. 1993) (Dorsey, J.). The GHP did not appeal the dismissal of these claims. GHP v. Weicker, 39 F.3d 51, 55 (2d Cir. 1994). The dismissal of those claims, therefore, is the law of the case. See Rezzonico v. H & R Block, Inc., 182 F.3d 144, 148 (2d Cir. 1999), cert. denied, 528 U.S. 1189 (2000). Even if that were not the case, the grounds for dismissal raised in this motion ­ lack of tribal standing and equitable defenses ­ would apply equally to the claims under the Proclamation of 1763.

The Governor was not named as a defendant in GHP v. Bachyrycz, but was named as a third-party defendant in a third-party complaint dated June 18, 1993.

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accounting of all tax funds paid by possessors of the land; (3) money damages representing fair market value of land; (4) money damages representing fair rental value and profits of the land; and (5) attorney's fees and costs.4 GHP v. Rell Amended Complaint, at 43. The defendant Governor filed an Answer to the Amended Complaint (dated Nov. 4, 1992) on January 15, 1993, and an Answer to the Amended Complaint (dated July 19, 2006) on July 28, 2006. Among the defenses raised are laches, inequitable delay, long acquiescence, and other principles based on long possession. Governor's Answer dated July 28, 2006. The defendant Governor and other defendants filed motions to dismiss the GHP's action for lack of subject matter jurisdiction. The district court (Dorsey, J.) dismissed without prejudice the GHP's Nonintercourse Act claims for failure to exhaust administrative remedies in light of the GHP's petition for federal tribal acknowledgment then pending before the U.S. Department of Interior ("DOI"), Bureau of Indian Affairs ("BIA"). GHP v. Weicker, 839 F. Supp. 130, 134-35, 139 (D. Conn. 1993). On appeal, the Second Circuit reversed, holding that, although exhaustion of the administrative acknowledgement process was not required to assert a Nonintercourse Act claim, the doctrine of primary jurisdiction nonetheless counseled that the land claims be stayed pending the BIA's resolution of the GHP's acknowledgment petition. GHP v. Weicker, 39 F.3d 51, 58-60 (2d Cir. 1994). The court emphasized that BIA's factual findings

The GHP had sought to add as an additional prayer for relief trespass damages in the amount of fair rental value of the land for the entire period of its alleged dispossession. The Court denied this part of the requested amendment. Ruling on Plaintiffs' Motion for Leave to Amend Complaint datedJuly 13, 2006 (Doc. 323).

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on tribal status "will be of considerable assistance to the district court in ultimately deciding [the GHP's] Nonintercourse Act claims." Id. at 60. With the land claims stayed, the BIA proceeded to address the GHP's acknowledgment petition. During the lengthy administrative process, the GHP had numerous opportunities, of which it took advantage, to submit evidence, expert reports, and arguments in response to BIA advice and proposed decisions.5 On June 14, 2004, the BIA issued its final determination that the GHP did not satisfy the administrative criteria to be acknowledged as an Indian tribe under federal law. Final Determination Against Federal Acknowledgment of the Golden Hill Paugussett Tribe (June 14, 2004) ("GHP FD") (Ex. A). Specifically, the BIA found that the GHP failed to meet four of the seven mandatory criteria for federal acknowledgment: (1) identification as an American Indian entity since 1900, id. at 21-23; (2) continuous existence as a distinct community, id. at 91-92; (3) continuous exercise of political authority or influence, id. at 102-04; and (4) descent from a historical Indian tribe, id. at 12829. The GHP's factual deficiencies were expansive and overwhelming. Indeed, the BIA conclusively found that the GHP had not existed as a social or political community for nearly all of the last two centuries and that the GHP's members could not even prove that they descended from a historical Indian tribe.6 The GHP's subsequent requests for review by the Interior Board of Indian Appeals and the Secretary of the Interior have been rejected. See Exs. B & C. The BIA's final determination is a final and effective agency action. See 25 C.F.R. § 83.11(h). The GHP

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For a detailed description of the administrative proceedings, see § IV.D.1 below. For a detailed discussion of the BIA's findings, see § IV.C below.

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have not filed a court appeal of the final determination under the Administrative Procedures Act, 5 U.S.C. § 701 et seq. III. STANDARD OF REVIEW In addressing a Rule 12(c) motion for judgment on the pleadings, a court must dismiss the action if, accepting the allegations contained in the complaint as true and drawing all reasonable inferences in favor of the plaintiff, the plaintiff can prove no set of facts that would entitle it to relief, and the defendant is entitled to judgment as a matter of law. Greco v. Trauner, Cohen & Thomas, LLP, 412 F.3d 360, 363 (2d Cir. 2005); Sheppard v. Beerman, 18 F.3d 147, 150 (2d Cir.), cert. denied, 513 U.S. 816 (1994). Rule 12(c) motions generally are limited to the facts alleged in the complaint and must be converted into a motion for summary judgment if the court considers materials outside the pleadings. Fed. R. Civ. P. 12(c). However, a court may, without converting the motion into one for summary judgment, consider documents that are attached to, incorporated by reference in, or integral to the complaint, as well as any matters that are subject to judicial notice. Sira v. Morton, 380 F.3d 57, 59 (2d Cir. 2004); Chambers v. Time Warner, Inc., 282 F.3d 147, 152-53 (2d Cir. 2002). The only materials outside of the pleadings relied on for this motion are the BIA's final determination on the GHP's federal acknowledgment petition (Ex. A) and other administrative orders or decisions of the DOI and the BIA relating to the petition. (Exs. B, C, E). The court may take judicial notice of these documents. See Kavowras v. New York Times Co., 328 F.3d 50, 57 (2d Cir. 2003); Opoka v. INS, 94 F.3d 392, 394 (7th Cir. 1996). In addition, to the extent that it is necessary to the Court's resolution of the equitable defenses raised in this motion, see § V below, the Court may take judicial notice of the present nature and character of the land at issue. Fed. R. Evid. 201; see Central Green Co. v. United States,

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531 U.S. 425, 434 (2001); Tucker v. Outwater, 118 F.3d 930, 935 (2d Cir.), cert. denied, 522 U.S. 997 (1997); Farmland Preservation Ass'n v. Goldschmidt, 611 F.2d 233, 237 (8th Cir. 1979). If, however, the court concludes that it is necessary nonetheless to convert the defendant Governor's Rule 12(c) motion into a Rule 56 motion for summary judgment, the defendant Governor maintains that there are no genuine issues of material fact as to the issues raised and that she is entitled to entry of judgment as a matter of law. Fed. R. Civ. P. 56; Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986); Westinghouse Credit Corp. v. D'Urso, 278 F.3d 138, 145 (2d Cir. 2002). IV. BASED ON THE BIA'S FINDINGS OF LACK OF DISTINCT COMMUNITY, LACK OF POLITICAL AUTHORITY, AND LACK OF TRIBAL DESCENT, TO WHICH THIS COURT MUST DEFER, THE GHP LACKS TRIBAL STANDING TO PURSUE ITS LAND CLAIMS. The BIA has resoundingly rejected the GHP's petition for federal acknowledgment. In particular, the BIA found that the GHP has not existed as a distinct community or exercised political authority or influence for nearly two hundred years and that the GHP does not descend from a historical Indian tribe. The BIA's factual findings are compelling, and this Court must defer to them in making its legal determination as to whether the GHP is an Indian tribe with standing to pursue its land claims. See Astoria Fed. Sav. & Loan Ass'n v. Solimino, 501 U.S. 104, 107-08 (1991); Ricci v. Chicago Mercantile Exchange, 409 U.S. 289, 305-06 (1973). In light of the BIA's findings, the only legal conclusion that this Court can reach is that the GHP lacks tribal status.7 Although the GHP's claims pursuant to the Proclamation of 1763 have already been dismissed for want of jurisdiction, see note 2 above, the same conclusion as to tribal standing would apply to those claims as well.
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A.

Tribal Status Is Required Both for Standing and the Merits of a Claim Under the Nonintercourse Act.

The plaintiff brings this action to recover land pursuant to the Nonintercourse Act. This Act places certain restrictions on transfers of land "from any Indian nation or tribe of Indians." 25 U.S.C. § 177. Both to have standing to pursue such a claim and to establish a violation of the Nonintercourse Act, the plaintiff must demonstrate that it was and continues to be an Indian tribe. Delaware Nation v. Pennsylvania, 446 F.3d 410 (3d Cir. 2006); Seneca Nation of Indians v. New York, 382 F. 3d 245, 258 (2nd Cir. 2004); GHP v. Weicker, 39 F. 3d at 56, 57; Mashpee Tribe v. New Seabury Corp., 592 F.2d 575, 579, 581 (1st Cir. 1979), cert. denied, 444 U.S. 866 (1979). As standing is a jurisdictional prerequisite, the lack of tribal status deprives the court of subject matter jurisdiction. See United States v. Hays, 515 U. S. 737, 742 (1995); LaFleur v. Whitman, 300 F.3d 256, 269 (2nd Cir. 2002). The GHP is not a federally recognized Indian tribe. Indeed, the federal government has expressly denied the GHP's petition for federal acknowledgment. GHP FD (Ex. A). For most purposes, courts have held that the federal administrative acknowledgment process is an administrative remedy that must be exhausted by an unrecognized tribe before seeking judicial relief as an Indian tribe. United Tribe of Shawnee Indians v. United States, 253 F.3d 543, 550-51 (10th Cir. 2001); Western Shoshone Business Council v. Babbitt, 1 F.3d 1052, 1057 (10th Cir. 1993); James v. U.S. Dept. of Health & Human Servs., 824 F.2d 1132, 1137 (D.C. Cir. 1987); Native American Mohegans v. United States, 184 F. Supp. 2d 198, 222-23 (D. Conn. 2002). However, as the Second Circuit noted, "tribal status for purposes of obtaining federal benefits is not necessarily the same as tribal status under the Nonintercourse Act." GHP v. Weicker, 39 F.3d at 57. Nonetheless, it is one thing for a court to evaluate a

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plaintiff's purported tribal status in the absence of a federal administrative determination of tribal acknowledgment. See Joint Tribal Council of Passamaquoddy Tribe v. Morton, 528 F.2d 370, 377 (1st Cir. 1975) (lack of formal recognition by federal government does not necessarily preclude tribal status under the Nonintercourse Act, but executive view on tribal status is of "great significance"). It is a wholly different matter, as demonstrated below, when the plaintiff has sought acknowledgment through the administrative process, and the federal government has explicitly rejected tribal acknowledgment. B. In All Respects Material to the GHP, the Factual Inquiry for Determining Tribal Status under the Nonintercourse Act and Federal Tribal Acknowledgment Are Substantively the Same.

In land claims actions under the Nonintercourse Act, courts have applied the so-called Montoya test for determining tribal status in the absence of federal acknowledgment. United States v. Candelaria, 271 U.S. 432, 441-42 (1926); Mashpee, 592 F.2d at 582; Passamaquoddy, 528 F.2d at 377. The Montoya test, which was developed long before the formal administrative process for recognition was established, requires a four-part showing: a plaintiff must demonstrate that it is (a) "a body of Indians of the same or similar race," (b) "united in a community," (c) "under one leadership or government," and (d) "inhabiting a particular though sometimes ill-defined territory." Montoya v. United States, 180 U.S. 261, 266 (1901). Although at first blush the Montoya standard appears relatively simple and broadly stated, judicial applications of the standard have provided further content to the four requirements. First, to be "united in a community," a tribe must exist distinct and apart from others. United States v. Washington, 641 F.2d 1368, 1373 (9th Cir. 1981), cert. denied, 454 U.S. 1143 (1982); Mashpee, 592 F.2d at 586. Although a tribe must be "Indians of the same

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or similar race," a tribe cannot be based solely on a racial or ethnic basis. United States v. Antelope, 430 U.S. 641, 645 (1977). Tribal status must be based on the existence of a political community. Rice v. Cayetano, 528 U.S. 495, 518-20 (2000); Morton v. Mancari, 417 U.S. 535, 553 (1974). Thus, a tribe is more than just a private, voluntary organization of individuals of Indian descent; it is a distinct community with authority or influence over internal and social relationships among its members. United States v. Mazurie, 419 U.S. 544, 557 (1975). To be "under one leadership or government," a tribe must have some degree of control or influence over its own internal affairs and the relations between its leaders and members. Mashpee, 592 F.2d at 582-83. Political leadership must be meaningful in that it must extend beyond just a core group of involved members to include a predominant portion of the membership of the group. Id. at 584. Although a formal government complete with coercive or binding authority is not required, tribal status is dependent on the exercise of a significant degree of influence on significant issues in the lives of members. Id. at 584-85. Moreover, sporadic, crisis-oriented leadership is insufficient. There must be a sustained continuity of tribal leadership. Id. 583, 585. Without such leadership or at least informal political influence, a tribe does not exist under the Montoya standard. Id. at 585. Finally, a tribe must have continuously maintained itself as a distinct community with a political organization or structure. Washington, 641 F.2d at 1373. The requirement of continuity is essential to tribal status. It reflects the need for a group to maintain its distinct community and the exercise of its authority throughout history to retain its tribal sovereignty. Id.; United Tribe of Shawnee Indians, 255 F.3d at 548; see also Montana v. Blackfeet Tribe of Indians, 471 U. S. 759, 764 (1985).

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The acknowledgment standards promulgated and administered by the BIA are quite similar if not identical in pertinent respects to the judicial standards. Federal acknowledgment or recognition of an Indian tribe is the formal political act of acknowledging and confirming the continual existence through history of a tribe as a distinct political community entitled to a government-to-government relationship with the federal government. 25 C.F.R. § 83.2; COHEN'S HANDBOOK OF FEDERAL INDIAN LAW § 3.02[3], at 138 (2005). Although historically, Indian tribes have been recognized in many different ways, including by treaty, congressional enactment, executive or administrative action, or, in rare instances, court decision, see id., §§ 3.02[5], 3.02[6], since 1978 federal acknowledgment has been delegated to an administrative process within DOI. 25 C.F.R. Part 83. In 1978, the DOI adopted regulations establishing a process for federal recognition of Indian tribes. 43 Fed. Reg. 39,361 (Sept. 5, 1978). The regulations were amended in 1994.8 59 Fed. Reg. 9280 (Mar. 28, 1994). In promulgating the acknowledgment regulations in 1978, DOI stated: The Department must be assured of the tribal character of the petitioner before the group is acknowledged. Although the petitioners must be American Indians, groups of descendants will not be acknowledged solely on a racial basis. Maintenance of tribal relations ­ a political relationship ­ is indispensable.

The amendments to the regulations provided for a reduced burden of proof for petitioners with evidence of previous federal acknowledgment, 25 C.F.R. § 83.8; independent review of a final determination by the Interior Board of Indian Appeals, including the opportunity for a hearing before an administrative law judge, id. § 83.11; and other procedural changes. 59 Fed. Reg. 9280 (1994). The amendments were not intended to "result in the acknowledgment of petitioners which would not have been acknowledged under the previously effective acknowledgment regulations" or "to result in the denial of petitioners which would have been acknowledged under the previous regulations. Id. The substantive criteria remained the same. The GHP's petition was decided under the amended regulations.

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43 Fed. Reg. 39361, 39362 (Sept. 5, 1978). Moreover, the acknowledgment regulations are explicitly derived from and are to be interpreted in light of case law concerning tribal status. 59 Fed. Reg. 9286, 9287 (Mar. 28, 1994). As the BIA has stated in describing the intent of the acknowledgment regulations: The legal and policy precedents for acknowledgment are codified in the regulations. These precedents also provide the fundamental basis for interpreting the regulations. The acknowledgment criteria are based on and consistent with the past determinations of tribal existence by Congress, the courts, and the Executive Branch. These past determinations have required that to be acknowledged as having tribal status a group must have maintained social solidarity and distinctness and exercised political influence or authority throughout history until the present. Final Determination That the Miami Nation of Indians of the State of Indiana., Inc. Do Not Exist as an Indian Tribe, at 1 (June 9, 1992) (Ex. H), aff'd, Miami Nation of Indians of Indiana, Inc. v. Babbitt, 112 F.Supp. 2d 742 (N.D. Ind. 2000), aff'd, 255 F.3d 342 (7th Cir. 2001), cert. denied, 534 U.S. 1129 (2002). Indeed, in doing so, it specifically referenced the Montoya standard. Id. The acknowledgement regulations establish seven "mandatory" criteria that a petitioning group must satisfy: (a) identification as an American Indian entity since 1900 (25 C.F.R. § 83.7(a)); (b) continuous existence as a distinct community since historical9 times (id., § 83.7(b)); (c) continuous maintenance of political influence or authority over members as an autonomous entity since historical times (id., § 83.7(c)); (d) a governing document including membership criteria (id., § 83.7(d)); (e) descent from a historical Indian tribe and membership list (id., § 83.7(e)); (f) membership is composed principally of persons not members of an

"Historical" is defined as dating from first sustained contact with non-Indians. 25 C.F.R. § 83.1.

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acknowledged tribe (id., § 83.7(f)); (g) no congressional legislation terminating or forbidding acknowledgement (id., § 83.7(g)).10 Some of these seven are not explicit parts of the Montoya standard ­ for example, criterion (d), which requires a governing document, or criterion (g), which requires that Congress has not terminated tribal status ­ but would nonetheless be relevant to Montoya's inquiry. However, the three core criteria ­ (b) continuous existence as a distinct community, (c) continuous maintenance of political influence or authority, and (e) descent form a historical Indian tribe ­ are substantively the same as the central components of the Montoya test. Significantly, it is those three criteria that the BIA determined that the GHP failed to satisfy. GHP FD, at 18 (Ex. A). C. The BIA's Findings in the Final Determination Rejecting the GHP's Petition for Federal Tribal Ackowledgment Demonstrate That the GHP Lacks Tribal Status for All Purposes.

As the Second Circuit stated, the Montoya test and the regulatory criteria "both have anthropological, political, geographical and cultural bases and require, at a minimum, a community with a political structure." 39 F.3d at 59 (emphasis added). Although the two may not always necessarily yield the same results, in all material respects for the GHP, the BIA's findings demonstrate that the GHP lacks tribal status for purposes of both federal acknowledgment and the Nonintercourse Act. In particular, the BIA found (1) a lack of a distinct community for the last 180 years; (2) a lack of political authority for the last 200 years; and (3) the present GHP membership does not descend from the historical Golden Hill

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The regulations provide a detailed, nonexclusive description of how each of the criteria can be satisfied. The regulations are set forth in full in Exhibit D.

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tribe.11 GHP FD, at 91-92, 102-04, 128-29 (Ex. A). Indeed, the factual determinations were not even close questions. As described below, the evidentiary deficiencies were profound and insurmountable. Under such circumstances, there is no basis to conclude that the GHP has tribal status for purposes of the Nonintercourse Act. 1. A Distinct Golden Hill Indian Community Has Not Existed Since the Early Nineteenth Century.

In its petition materials, the GHP had described itself variously as a group made up of descendants from (a) the historical Golden Hill Indians, (b) a combination of the historical Golden Hill Indians and Turkey Hill Indians, and (c) some broader group of Paugussett Indians. GHP FD, at 27-34 (Ex. A). Despite the submission of thousands of pages of documents and a multiplicity of divergent theories offered by the GHP, the BIA concluded that the evidence was woefully insufficient to establish a continuing distinct community, however characterized. Indeed, the BIA found that the Golden Hill Indians ceased to exist as a distinct community after 1823. Id. at 24, 91-92. There was no evidence that a combined Golden Hill-Turkey Hill or broader Paugussett community existed after that date either. Id. at 39-40, 55, 66, 91-92. Instead, the BIA found that the Golden Hill Indians lost social cohesion in the 1820s. Id. at 24-25, 92. From that point on, there was but one family, the Shermans, who claimed but could not prove that they were Golden Hill Indians. Id. at 66-91. In any event, one family cannot constitute a tribe. Id. at 115-16. The GHP's efforts at showing a broader group are all discussed in detail and rejected in the Final Determination. Id. at 34-91.

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The BIA also found that the GHP failed to meet criterion (a), identification as an American Indian entity since 1900. GHP FD, at 21-23. Although this is not an express requirement of the Montoya standard, it is fully supportive of the lack of tribal existence under that standard.

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In sum, the BIA found that the GHP are not now and have not been for almost 200 years a distinct community. 2. There Has Been No Exercise of Political Authority or Influence in a Golden Hill Indian Community for At Least Two Centuries.

The GHP's evidentiary shortcomings were even more striking with regard to criterion (c), political authority or influence. There is simply a complete absence of evidence of political leadership or activity, formal or informal, that could satisfy either the acknowledgement regulations or the Montoya standard. After 1802, there is no evidence of any form of political influence or authority. GHP FD, at 92-96, 102-03 (Ex. A). After 1850, the group consisted solely of the Sherman family, with no evidence of any relationships, political, social or otherwise, with a broader membership. Id. at 96-98. From 1973 to the present, there have been self- or family-appointed leaders, but whatever political leadership or influence that may have been exercised has only been within the single family group. Id. at 98-102. The complete lack of evidence of political authority and influence is fatal to the GHP's claim of tribal status. Evidence of political leadership and activity, in the sense of having meaningful influence over a broad membership, is essential to tribal status. Mashpee, 592 F.2d at 584-85. Without it, the GHP was properly denied federal acknowledgment, and should be denied tribal status here.

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3.

The GHP Failed to Demonstrate That Its Members Are Descended from a Historical Indian Tribe.

What is particularly telling, and troubling, about the GHP's claim of tribal status is that it was unable, despite multiple opportunities, to prove that its members in fact descend from the historical Golden Hill Indians or any other historical tribe. The key figure in the GHP's lineage is William Sherman, who lived from 1825 to 1886 and from whom a portion of the GHP's claimed membership descends. GHP FD, at 114-15 (Ex. A). However, the BIA found that there was no contemporaneous identification of William Sherman as a Golden Hill Indian and that there was no primary documentation to link William Sherman with a known Golden Hill ancestor. GHP FD, at 116-24 (Ex. A). The BIA similarly concluded that there was a lack of evidence of descent as to purported Turkey Hill Indian ancestors. Id. at 124-26. As discussed below, the GHP was given a full and fair opportunity to present evidence that could establish descent. Nonetheless, the GHP's efforts fell demonstrably short, and the BIA found that the evidence did not establish that the GHP's current membership represents descendants of a historical Indian tribe. Id. at 127-29. In sum, the GHP's evidence is overwhelmingly insufficient. In the face of this patently deficient evidentiary record, the GHP have used every effort to obscure the real issues, including attacking its opponents as motivated by discriminatory animus and the process as unfair and politically biased. The plain and simple truth is that the GHP is not an Indian tribe. D. This Court Should Defer to and Accept as Conclusive the BIA's Findings.

In invoking the doctrine of primary jurisdiction in this case, the Second Circuit noted that "the creation in 1978 of the acknowledgment process currently set forth in 25 C.F.R. Part

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83 ­ a comprehensive set of regulations, the BIA's experience and expertise in implementing these regulations, and the flexibility of the procedures weigh heavily in favor of a court's giving deference to the BIA." 39 F.3d at 60 (emphasis added). Therefore, "[t]he BIA's resolution of the factual issues regarding tribal status will be of considerable assistance to the district court in ultimately deciding [the GHP's] Nonintercourse Act claims." Id. As it turns out, the BIA's findings not only are of "considerable assistance," but should make this Court's task short and simple. 1. The GHP Had a Full and Fair Opportunity to Litigate the Factual Issues Underlying Tribal Status at the BIA.

The BIA gave the GHP every reasonable opportunity to make its case. Although the BIA's administrative process is not identical to that of a court's, it provided the GHP with a full and fair opportunity to develop, present and argue its evidence supporting its petition for federal acknowledgment as an Indian tribe. Further proceedings for the discovery or submission of additional evidence are unnecessary and unjustified. The BIA's administrative process begins with the filing of a letter of intent by a petitioning group to be followed by the submission of a documented petition with evidence to show that the petitioning group satisfies the seven mandatory criteria. 25 C.F.R. §§ 83.4, 83.6. Upon receipt of a documented petition, the BIA conducts a preliminary review of the petition evidence and provides "technical assistance" to the petitioner to assist the petitioner in supplementing or revising its petition. Id., §§ 83.10(a), (b). The BIA may then issue a "letter of obvious deficiencies" to the petitioner calling attention to such deficiencies in the petition evidence, after which the petitioner may again supplement or revise its petition or may request and receive additional technical assistance. Id., § 83.10(b). Thereafter, the

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petition will be placed on "active consideration." Id., § 83.10(f). The BIA issues a proposed finding, and the petitioner and interested parties may receive technical assistance and have the opportunity to submit arguments and evidence to rebut or support the proposed finding. Id., §§ 83.10(g), (i), (j). The petitioner may reply to any submissions by interested parties. Id., § 83.10(k). The BIA then issues a final determination on the petition. Id., § 83.10(m). A petitioner or interested party may request independent review and reconsideration of a final determination with the Interior Board of Indian Appeals ("IBIA"), with the availability of a hearing before an administrative law judge on disputed issues of fact. Id., § 83.11. Additional review is available from the Secretary of the Interior. Id., § 83.11(f). After exhaustion of the administrative process, a final determination may be subject to judicial review pursuant to the Administrative Procedures Act (APA), 5 U.S.C. § 701 et seq.; see Miami Nation of Indiana, Inc. v. U.S. Dept. of Interior, 255 F.3d 342, 348-49 (7th Cir. 2001), cert. denied, 534 U.S. 1129 (2002). The GHP was afforded and took advantage of every aspect of the BIA's process. It submitted its documented petition to the BIA on April 12, 1993. See Ex. E, at 3. The BIA conducted a technical assistance review of the petition and sent the GHP an obvious deficiency letter, dealing principally with the defect that the GHP claimed descent from one person rather than from a historical Indian tribe. Id. The GHP responded and a second technical assistance review was provided. The GHP provided additional documentation and requested the petition be placed on active consideration. Id. The BIA decided to process the petition under 25 C. F. R §83.10 (e), which permits an expedited negative proposed finding where there is little or no evidence to demonstrate that the petitioner can satisfy criterion (e), descent from a historical Indian tribe. The BIA issued a

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proposed finding declining to acknowledge petitioner as an Indian tribe on June 8, 1995, because the evidence established that it did not prove descent from a historical tribe. GHP FD, at 5 (Ex. A). The GHP submitted evidence and argument in response to the 1995 proposed finding as well as comments in reply to submissions by interested parties. On September 16, 1996, the BIA issued a final determination affirming the proposed finding that the GHP failed to prove descent from a historical Indian tribe. Id.. The GHP filed a request for reconsideration with the IBIA on December 26, 1996. The IBIA affirmed the BIA's final determination not to acknowledge the GHP, but referred to the Secretary of the Interior certain issues outside its jurisdiction. Id.; see 25 U.S.C. § 83.11(f). The Secretary of the Interior, without deciding the merits, requested the BIA to address these issues and to issue a reconsidered determination. GHP FD, at 5 (Ex. A). The BIA issued a reconsidered decision, vacating its 1996 final determination and ordering that the petition be evaluated under all seven mandatory criteria.12 Id. The GHP made extensive additional submissions. Id. at 6, 26-33, 80-90, 95. On January 29, 2003, the BIA issued a proposed finding under all seven criteria, finding that the GHP had failed to meet the mandatory criteria. Summary Under the Criteria for the Proposed Finding on the Golden Hill Paugussett Tribe, at 6-38 (Ex. E). At the GHP's request, the BIA extended the comment period to provide the GHP's researchers additional time, and the GHP subsequently submitted its comments. On June 14, 2004, the BIA issued a final determination declining to acknowledge the GHP because of the failure to satisfy criteria (a) identification as an American Indian entity, (b) distinct community, (c) political influence The decision was issued by the Deputy Assistant Secretary ­ Indian Affairs as the Assistant Secretary ­ Indian Affairs had recused himself because he had previously represented the GHP.
12

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and authority, and (e) descent from a historic Indian tribe. Id. at 18, 21, 91-92, 102-03, 12829. The GHP subsequently filed a request for reconsideration with the IBIA, which IBIA dismissed for failure to state a ground for reconsideration within its jurisdiction. Ex. B. The IBIA referred issues not within its jurisdiction to the Secretary. After receiving comments from the GHP, the State and BIA, on May 18, 2005, the Secretary declined to refer any of the issues raised by the GHP to the BIA for reconsideration. Ex. C. The BIA's final determination became an effective final agency action as of that date. See 28 C.F.R. § 83.11(h). The GHP has apparently elected not to seek judicial review of the final determination under the APA. See 5 U.S.C. § 701 et seq. In light of the expansive process the BIA conducted, the GHP received a full and fair opportunity to litigate the issue of its tribal status, and no further proceedings are required in this Court to develop or submit evidence. 2. Both as a Matter of the Deference That Must be Accorded the BIA's Findings Under the Primary Jurisdiction Doctrine and as a Matter of Collateral Estoppel, the GHP May Not Relitigate the BIA's Findings.

The BIA's findings should control this Court's resolution of the GHP's tribal status under the Montoya standard. In applying the doctrine of primary jurisdiction, courts have avoided hard-and-fast rules, instead evaluating its application on a case-by-case basis. United States v. Western Pacific RR Co., 352 U.S. 59, 64 (1956); Tassy v. Brunswick Hospital Center, Inc., 296 F.3d 65, 68 (2d Cir. 2002). In the unique context of this matter, primary jurisdiction requires that the Court defer to and accept as conclusive the BIA's factual findings underlying its decision not to acknowledge the GHP. In addition, the principles of

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collateral estoppel apply fully to the BIA's findings. Under either doctrine, the GHP is precluded from relitigating the BIA's findings. First, the GHP should not be permitted to collaterally attack the BIA's findings in this litigation. The proper vehicle to challenge the BIA's findings would be an appeal under the APA. 5 U.S.C. § 701 et seq.; see Miami Nation of Indiana, 255 F.3d at 348-49. Moreover, as the Supreme Court stated in applying the doctrine of primary jurisdiction, an agency's determination, itself subject to judicial review, "would obviate any necessity for the [district] court to relitigate the issues actually disposed of by the agency decision." Ricci v. Chicago Mercantile Exchange, 409 U.S. 289, 305-06 (1973). The GHP has opted to proceed in this land claim case without availing itself of judicial review of the BIA's final determination. This action is not a substitute for judicial review under the APA, and the GHP cannot use this case to relitigate any of the factual findings the BIA made. Id.; Port of Boston Marine Terminal Ass'n v. Rederiaktiebolaget Transatlantic No. 99, 400 U.S. 62, 72 (1970). In fact, permitting relitigation of the facts in this action would contravene the Second Circuit's justifications for invoking the primary jurisdiction doctrine ­ the BIA's superior expertise and authority to make the relevant factual determinations and the need for consistency in results. GHP v. Weicker, 39 F.3d at 59-60; see also Ellis v. Tribune Television Co., 443 F.3d 71, 81-82 (2d Cir. 2006); Tassy, 296 F.3d at 67-68. The twin justifications for primary jurisdiction ­ agency expertise and uniformity ­ demand that this court accept as settled the BIA findings. As the Supreme Court articulated: Uniformity and consistency in the regulation of [a subject matter] entrusted to a particular agency are secured, and the limited functions of review by the judiciary are more rationally exercised, by preliminary resort for ascertaining and interpreting the circumstances underlying legal issues to agencies that are better equipped than courts

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by specialization, by insight gained through experience, and by more flexible procedure. Far East Conf. v. United States, 342 U.S. 570, 574 (1952); see also Federal Maritime Bd. v. Isbrandtsen Co., 356 U.S. 481, 498 (1958). In other words, under the doctrine of primary jurisdiction and the deference due the BIA thereunder, what is left for this Court is to apply the relevant law ­ the Montoya standard ­ to the facts found by the BIA. Moreover, the doctrine of collateral estoppel also precludes the GHP from relitigating the factual issues found by the BIA. It is well-established that preclusion may apply to factual issues decided by an administrative agency. The courts generally "favor[] application of the common-law doctrines of collateral estoppel (as to issues) and res judicata (as to claims) to those determinations of administrative bodies that have attained finality." Astoria Fed. Sav. & Loan Ass'n v. Solimino, 501 U.S. 104, 107 (1991). Precluding relitigation of issues decided by an administrative agency is justified on the sound and obvious principle of judicial policy that a losing litigant deserves no rematch after a defeat fairly suffered, in adversarial proceedings, on an issue identical in substance to the one he subsequently asks to raise. To hold otherwise would, as a general matter, impose unjustifiably upon those who have already shouldered their burdens, and drain the resources of an adjudicatory system with disputes resisting resolution. Id. at 107-08. Absent evidence of a contrary statutory intent, it is presumed that Congress expected that the common law rules of collateral estoppel would apply to an agency's decisions. Id. at 108. The principles courts have followed in giving collateral estoppel effect to agency determinations are not unlike that for court decisions. Collateral estoppel should apply (1) to issues of fact properly before and necessarily resolved by the agency, (2) which the parties have had an adequate opportunity to litigate, (3) where the agency is acting in an adjudicative

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capacity. United States v. Utah Constr. & Mining Co., 384 U.S. 394, 422 (1966); Metromedia Company v. Fugazy, 983 F.2d 350, 365-66 (2d Cir. 1992), cert. denied, 508 U.S. 952 (1993); Delamater v. Schweicker, 721 F.2d 50, 53-54 (2d Cir. 1983). The first two requirements are plainly met. The factual issues ­ the continuing existence of a distinct community, the continuing existence of political leadership, and tribal descent ­ were properly before the BIA and were obviously necessary to its resolution of the GHP's acknowledgment petition. As demonstrated above, see § IV.D.1, the GHP had a full and fair opportunity to litigate these issues. The only question, then, is whether the BIA was acting in an adjudicative capacity when it issued the final determination on the GHP petition. "An action taken by an administrative agency to grant or deny a benefit is not an adjudicated action unless the agency has made its decisions using procedures substantially similar to those employed by the courts." Delamater, 721 F.2d at 53-54. The Restatement (Second) of Judgments, on which the Second Circuit has relied on this issue, id., identifies the following factors for assessing whether an administrative action is adjudicatory for purposes of preclusion: (a) Adequate notice to persons who are bound by the adjudication. . .; (b) The right on behalf of a party to present evidence and legal argument in support of the party's contentions and fair opportunity to rebut the evidence and argument of opposing parties; (c) A formulation of issues of law and fact in terms of the application of rules with respect to specified parties concerning a specific transaction, situation, or status, or a specific series thereof; (d) A rule of finality, specifying a point in the proceeding when presentations are terminated and a final decision is rendered; and (e) Such other procedural elements as may be necessary to constitute the proceeding a sufficient means of conclusively determining the matter in question, having regard for the magnitude and complexity of the matter in question, the urgency with which the matter must be resolved, and the opportunity of the parties to obtain the evidence and formulate legal contentions.

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Restatement (Second) of Judgments, § 83(2). Although the BIA administrative process does not replicate judicial proceedings in all details, it is sufficiently similar to the essential procedures courts employ to justify collateral estoppel. Each of the five Restatement factors is present in the BIA process. Plainly, the GHP had adequate notice, having initiated the BIA's proceedings. Similarly, as described above, the GHP had ample opportunity to present evidence and argument both in support of its petition and to rebut evidence and argument of others. 25 C.F.R. §§ 83.6, 83.10. The issues were formulated with application of the acknowledgment criteria to the petitioner's evidence, and there was a final decision issued. Id., §§ 83.7, 83.10(m). In this fundamental sense, the BIA proceedings on the GHP petition was adjudicatory: a petition was filed, evidence and argument was submitted, opportunity to respond to other parties' evidence and argument was provided, and a final decision was made applying established regulatory criteria to the specific facts of the petition. There are, of course, differences between the BIA's process and court proceedings. For example, there is no compulsory discovery available. However, there are significant benefits to a petitioner in the administrative process that are not available in court proceedings. In particular, as described above, the GHP received substantial technical advice from the BIA on how to improve its petition and supporting evidence. 25 C.F.R. §§ 83.10(b), (c), (j). In addition, the acknowledgment process affords, and the GHP had the advantage of, the opportunity to comment on and respond to proposed decisions, id, § 83.10(h), (i), (j), (k), and independent administrative review, id., § 83.11. The latter in particular reflects the adjudicatory nature of the process. Independent review before the IBIA is conducted before administrative law judges. 43 C.F.R. § 4.1(a). Proceedings before the IBIA includes briefing

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by the parties with the availability of a hearing on material disputed facts or to otherwise augment the record. 25 C.F.R. § 83.11(e). It thus closely parallels a judicial process.13 The BIA process is crafted for the unique nature of the factual inquiry required for tribal acknowledgment. The factual determinations are highly dependent on historical documentary evidence and on anthropological, historical and genealogical analysis and expertise. It requires an examination that may span multiple centuries. Although it is possible to submit such an inquiry to a traditional judicial process, it certainly would pose an extraordinary and unwieldy task. It is safe to say that the Federal Rules of Civil Procedure were not developed with this kind of inquiry in mind. By contrast, the BIA process was expressly designed to handle the exceptionally complex, detailed and expansive evaluation of hundreds of years of history, anthropological data and genealogical information. The BIA assigns staff with expertise in each of these fields. Given this context, the differences that exist between the BIA process and traditional court procedures are fully justified, and the differences in procedure are more than compensated for by the unique procedures available in the administrative process. Therefore, the BIA process is sufficiently adjudicatory in nature, for purposes of applying collateral estoppel, to preclude the GHP from relitigating the BIA's factual findings. Finally, given the exceptional significance of deciding whether to establish a government-to-government relationship between the federal government and an acknowledged Indian tribe and all else that federal tribal acknowledgment entails, see United Tribe of Shawnee Indians, 253 F.3d at 550-51; James, 824 F.2d at 1137, the application of
13

The GHP's request before the IBIA was dismissed for failure by the GHP to articulate a basis for review within the IBIA's jurisdiction. Ex. B.

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collateral estoppel here is entirely consistent with the congressional intent to have such decisions made by the BIA through the administrative process. See Astoria 501 U.S. at 10811; Duvall v. Attorney General, 436 F.3d 382, 387-88 (3d Cir. 2006). Indeed, it is precisely the result that the Second Circuit contemplated when it invoked the primary jurisdiction doctrine in this case. Although the ultimate legal determination of tribal status through the application of the Montoya standard rests with the court, that decision should be predicated on the BIA's findings. See GHP v. Weicker, 43 F.3d at 60. E. Applying the Montoya Test to the BIA's Findings, the GHP Unquestionably Lacks Standing to Pursue Its Land Claims.

Application of the Montoya test here is a straightforward task with a straightforward result: The GHP is not an Indian tribe within the meaning of the Nonintercourse Act. The BIA found that there was insufficient evidence of a distinct community (however defined by the GHP) since the 1820s. GHP FD, at 91-93 (Ex. A). Therefore, the GHP have not been and are not now "united in a community." Second, the BIA found that there was insufficient evidence of political authority or influence for the last two centuries. Id. at 10203. Thus, the GHP has not been and are not now a community "under one leadership or government." Third, the GHP is not descended from a historical Indian tribe and in particular is not descended from the historical Golden Hill tribe. Id. at 128-29. Thus, the GHP is not "a body of Indians of the same or similar race." The only conclusion that this Court can reach is that the GHP is not a group that has continuously maintained itself as a distinct social and political community and does not have standing as an Indian tribe. Montoya, 180 U.S. at 266; Washington, 641 F.3d at 1373; Mashpee, 592 F.2d at 585-86.

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The recent decision of the district court in New York v. Shinnecock Indian Nation, 400 F. Supp. 2d 486 (E.D.N.Y. 2005), does not alter this conclusion. In that case, the court found that the plaintiff had tribal standing under the Nonintercourse Act despite the fact that a petition for acknowledgment was pending with the BIA. Id. at 493. The circumstances of Shinnecock are easily distinguishable from this case. First, and most obviously, the GHP have been denied acknowledgment by the BIA, whereas the BIA had not yet reached a determination on the Shinnecock acknowledgment petition. Second, the Shinnecock court found that there was evidence of two hundred years of continuous leadership and of descent from the historical tribe. Id. at 489-90. As reflected in the BIA's findings, nothing of the sort exists here. The Shinnecock court also relied on New York's recognition of the Shinnecock as an Indian tribe. Id. at 489. Although the GHP is recognized by the State, see Conn. Gen. Stat. § 47-59a, Connecticut's relationship with the GHP is not probative of GHP's tribal status under federal law. See Conn. Gen. Stat. § 47-66h(b) ("Nothing in this chapter shall be construed to confer tribal status under federal law on the indigenous tribes named in section 47-59a. . . ."). The Shinnecock court's reasoning as to state recognition is not only readily distinguished, but is also thoroughly misguided and inconsistent with federal law. As the BIA found in rejecting the GHP's acknowledgment petition, the State's relationship with the GHP was for most of the last two hundred years minimal and uneven. GHP FD, at 13-14 (Ex. A). During most of that time, the State did not recognize or interact with GHP leaders, and to the extent that there was any state interaction, it was with members of a single family, not a tribal community. Id. at 14-15. The State's relationship therefore can not make up for the otherwise massive evidentiary gaps and deficiencies in the GHP's evidence. Id. at 15-16.

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Moreover, the very basis for using state recognition as evidence of community or political authority has since been rejected by the Department of the Interior. In reviewing the final determinations of the acknowledgment petitions of the Eastern Pequot and Schaghticoke groups, the IBIA has concluded that state recognition of an Indian group, on its own, is not probative evidence of tribal existence. In re Federal Acknowledgment of the Historical Eastern Pequot Tribe, 41 IBIA 1 (May 12, 2005) (Ex. F); In re Federal Acknowledgment of the Schaghticoke Tribal Nation, 41 IBIA 30 (May 12, 2005), appeal pending, Schaghticoke Tribal Nation v. Norton, No. 3:06cv81(PCD) (Ex. G). Evidence of the State's relationship with an Indian group is probative for purposes of federal tribal status only to the extent that it shows the existence of actual, not merely presumed, social interactions and relationships within a distinct community and the existence of actual, not merely presumed, political activity and leadership.14 Eastern Pequot, 41 IBIA at 18-21 (Ex. F). Oddly, the Shinnecock court justified its use of state recognition by construing the federal government's decision not to participate in the litigation, despite the court's invitation to do so, as acquiescence to the plaintiff's tribal status. Shinnecock, 400 F. Supp. 2d at 49091. The appropriateness of such an inference appears doubtful, but in any event the opposite is obviously the case here. Not only has the BIA rejected the GHP's tribal status, but the In the GHP FD, the BIA distinguished the nature of the State's relationship with the GHP from its relationship with the Eastern Pequot and the Schaghticoke. GHP FD, at 15. In the latter two cases, the BIA had improperly used state recognition to make up for otherwise insufficient evidence of community and political authority. Id. That use of state recognition was subsequently rejected by the IBIA, Eastern Pequot, 41 IBIA at 18-21 (Ex. F); Schaghticoke, 41 IBIA at 34 (Ex. G); and the BIA, on reconsideration, has concluded that, without the improper weight of state recognition, neither the Eastern Pequot nor the Schaghticoke satisfied the acknowledgment criteria. Eastern Pequot Reconsidered Final Determination, 70 Fed. Reg. 60,099 (Oct. 14, 2005); Schaghticoke Reconsidered Final Determination, 70 Fed. Reg. 60,101 (Oct. 14, 2005), appeal pending, Schaghticoke Tribal Nation v. Norton, No. 3:06cv81(PCD).
14

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United States has appeared and opposes the GHP's claims in this litigation. Even assuming the validity of the Shinnecock court's reasoning with regard to (a) the decision not to await the BIA's determination of the acknowledgment petition under the doctrine of primary jurisdiction; (b) the court's factual findings as to tribal status; and (c) the court's improper use of state recognition and its treatment of the federal government's nonparticipation as acquiescence as to tribal status ­ all of which are likely to be matters raised in later appeals ­ none of these factors are present in this case. In conclusion, after according the BIA's findings the deference they are due under the doctrine of primary jurisdiction or their preclusive effect under the rules of collateral estoppel, the GHP lacks tribal standing as a matter of law, and its action must be dismissed for lack of subject matter jurisdiction. V. BECAUSE OF THE LONG PASSAGE OF TIME, THE LEGITIMATE RELIANCE OF SUBSEQUENT LANDOWNERS ON THE PASSAGE OF SUCH TIME, AND THE EXTRAORDINARILY DISRUPTIVE NATURE OF THE RELIEF SOUGHT, THE GHP'S LAND CLAIMS ARE BARRED AS A MATTER OF LAW UNDER THE RECENT DECISIONS IN SHERRILL AND CAYUGA. In addition to the plaintiff's clear lack of tribal standing, the GHP's claims must be dismissed as a matter of law under the equitable doctrines of laches, long acquiescence, and impossibility. As the Second Circuit remarked in Cayuga Indian Nation of New York v. Pataki, 413 F.3d 266 (2d Cir. 2005), cert. denied, 126 S.Ct. 2021, 2022 (2006), "[t]he Supreme Court's recent decision in City of Sherrill v. Oneida Indian Nation, 544 U.S. 197 (2005), has dramatically altered the legal landscape against which we consider" Indian land claims. 413 F.3d at 273. Under the two watershed cases of Sherrill and Cayuga, the GHP ­

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even if they could somehow establish tribal standing, which they cannot ­ are barred from pursuing their claims.15 In Oneida Indian Nation v. County of Oneida, 414 U.S. 661 (1974) ("Oneida I"), the Supreme Court held that federal subject matter jurisdiction existed to hear an Indian tribe's possessory land claims. In County of Oneida v. Oneida Indian Nation, 470 U.S. 226 (1985) ("Oneida II"), the Court held that an Indian tribe has a federal common law right of action for violation of its possessory rights and such an action was not barred by any statute of limitations. Neither Oneida I nor Oneida II addressed the question whether equitable defenses such as laches are available against such claims. Indeed, Oneida II expressly left open the question. Oneida II, 470 U.S. at 253 n.27; see Sherrill, 544 U.S. at 213. The Supreme Court's decision in Sherrill and the Second Circuit's decision in Cayuga Nation answer that question in the affirmative. A. City of Sherrill v. Oneida Indian Nation

In Sherrill, a federally recognized Indian tribe claimed that its acquisition of fee title in various parcels of lands that were part of its historic reservation restored its sovereignty over the land and precluded a town from imposing property taxes on the land. 544 U.S. at 202-03. The lands were alleged to have been conveyed to the State of New York from 1795 to 1805 without congressional approval in violation of the Nonintercourse Act. The Court rejected the claim, holding that equitable defenses of laches, long acquiescence and impossibility "preclude the Tribe from rekindling embers of sovereignty that long ago grew cold." Id. at 214.
15

Although the GHP's claims pursuant to the Proclamation of 1763 have already been dismissed for want of jurisdiction, see note 2 above, the same conclusion as to equitable defenses would apply to those claims as well.

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The Supreme Court emphasized that the rel