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Date: 08-23-2021

Case Style:

Cayuga Nation, et al. v. Howard Tanner, et al

Case Number: 20-1310-cv



Plaintiff's Attorney: DAVID W. DEBRUIN (Zachary C. Schauf, on the brief), Jenner &
Block LLP, New York, NY

Defendant's Attorney:

New York, NY - Indian
Gaming Regulatory Act (“IGRA”) Lawyer Directory


New York, NY - Indian Gaming Regulatory Act (“IGRA”) lawyer represented defendant with a Indian Gaming Regulatory Act (“IGRA”) claim.

This case marks the latest installment of a decades-long dispute between
the Cayuga Nation (the “Nation”), a federally recognized Indian tribe, and the
Village of Union Springs, New York (the “Village”), concerning the Nation’s
ownership and use of a parcel of land located at 271 Cayuga Street (the “Parcel”),
which sits within the bounds of both the Village and the Cayugas’ historic
reservation. In 2003, the Nation sued the Village seeking declaratory and
injunctive relief on the theory that the reunification of the Nation’s aboriginal title
to the Parcel with the fee title revived the Nation’s sovereignty over it so as to
preclude the Village’s application of its laws to regulate construction occurring
there. After initially obtaining a judgment in its favor and while the Village’s
appeal of that judgment was pending before this Court, the Nation opened a
gambling parlor, Lakeside Entertainment (“Lakeside”), on the Parcel. Thereafter,
however, we remanded the case to the district court in light of the Supreme
Court’s decision in City of Sherrill v. Oneida Indian Nation, 544 U.S. 197, 221 (2005),
which had been decided while the Village’s appeal was pending. On remand, the
district court vacated its prior judgment, entered judgment for the Village, and
dismissed the Nation’s complaint. Following that judgment, the Nation shuttered
At least for a time. In July 2013, much to the Village’s chagrin (and in
apparent violation of its gambling laws), Lakeside reopened for business,
precipitating another round of litigation. Again, the Nation seeks to preclude the
application of Village law, but on a different, and narrower, basis than before.
Rather than claiming broad immunity based on its assertion of inherent
sovereignty, the Nation now argues that Indian Gaming Regulatory Act
(“IGRA”) preempts the Village’s anti-gambling laws. The Village contends that,
in light of the prior litigation, preclusion doctrines bar the federal courts from
considering the Nation’s latest theory and that, in any case, IGRA does not apply
to the Parcel because it does not qualify as “Indian lands,” which IGRA defines as
“all lands within the limits of any Indian reservation.” 25 U.S.C. § 2703(4)(A).
After considering the parties’ cross-motions for summary judgment, the
United States District Court for the Northern District of New York (David N.
Hurd, J.) agreed with the Nation. So do we. We therefore affirm the judgment of
the district court.
The history of relations between and among the federal and state
governments (and their respective predecessors) and the indigenous peoples of
North America, and the changing legal regimes that have governed those
relations, is far too complex and lengthy a topic to be described in detail within
the confines of a single judicial opinion. Nevertheless, because it is difficult to
understand the issues presented in this appeal without at least some appreciation
of the context underlying the dispute, we begin with a brief, and necessarily
incomplete, recitation of that history, drawing primarily from statutory history as
well as prior decisions of the Supreme Court and of this Court. We then turn to
the operative facts of this case, as established in the summary judgment record.
A. Historical Background
Prior to European settlement of North America, the Nation, one of the six
tribes of the Haudenosaunee Confederacy (also known as the Iroquois Nations),1
lived on lands now comprising, inter alia, central New York. In February 1789,
weeks before government under the Constitution began, members of the Nation
entered into a treaty with New York whereby the Nation ceded all of its land to
the State save for approximately 64,000 acres (the “Cayuga Reservation”). See
Cayuga Indian Nation of N.Y. v. Pataki, 413 F.3d 266, 268 (2d Cir. 2005). In 1794,
amidst rising federal concern over the potential for rekindled hostilities between
the Haudenosaunee Confederacy and the young United States, the federal
government and the Confederacy concluded the Treaty of Canandaigua; as is
relevant here, that treaty formally recognized the Cayuga Reservation and
The others being the Oneidas, the Mohawks, the Senecas, the Onondagas, and,
as of the early 18th century, the Tuscaroras. See Cayuga Indian Nation of N.Y. v.
Pataki, 413 F.3d 266, 268-69 n.1 (2d Cir. 2005).
provided that “the United States will never claim the same, nor disturb them or
either of the Six Nations . . . in the free use and enjoyment thereof.” Acts of Nov.
11, 1794, art. II, 7 Stat. 44,. The federal government today recognizes the Nation as
the same entity with which it concluded the Treaty of Canandaigua.
The promises in the Treaty of Canandaigua were backed up, at least in
theory, by the provisions of the Indian Trade and Intercourse Act, commonly
referred to as the Nonintercourse Act. Passed in 1790 pursuant to Congress’s
authority under the Indian Commerce Clause of the Constitution, the
Nonintercourse Act provided that “no sale of lands made by any Indians, or any
nation or tribe of Indians within the United States, shall be valid to any person or
persons, or to any state . . . unless the same shall be made and duly executed at
some public treaty, held under the authority of the United States.” Acts of July
22, 1790, ch. 33, § 4, 1 Stat. 137, 138.2
Despite these statutory protections for native
lands, however, New York purchased the entirety of the Cayuga Reservation in
The Nonintercourse Act remains on the books today. Amended over the course
of the Nation’s history, its present iteration states, 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.” 25 U.S.C. § 177
two transactions conducted in 1795 and 1807. See Pataki, 413 F.3d at 269. The
United States neither ratified nor interfered with these transactions. See id. As is
important for present purposes, however, the Village concedes that no Act of
Congress has disestablished the Cayuga Reservation in the intervening centuries.
See, e.g., McGirt v. Oklahoma, 140 S. Ct. 2452, 2462 (2020) (“To determine whether a
tribe continues to hold a reservation, there is only one place we may look: the
Acts of Congress.”).
The Nonintercourse Act and the Treaty of Canandaigua were
representative of federal Indian policy in the early days of the United States,
commonly referred to as the “treaty era.” In broad terms, the treaty era was
characterized by the establishment of treaties whereby a tribe would cede much
of its territory while retaining a small reservation over which the tribe would, at
least in theory, be permitted to exercise sovereignty without state interference.
See generally F. Cohen, Handbook of Federal Indian Law § 1.03 (2012)
(“Handbook”).3 That policy persisted until the latter half of the 19th century and
Though the overarching policy of forming treaties with tribes to establish
reservations persisted until at least the end of the Civil War, beginning in the first
half of the 19th Century, national expansion led to an increased use of the treaty
process to remove eastern and southern tribes onto newly created western
reservations. The best known example of this practice was the forcible removal of
formally came to an end with the passage of the Indian Appropriations Act of
1871. Acts of Mar. 3, 1871, ch. 120, 16 Stat. 544. That act, though affirming thenexisting treaty obligations, provided that “[n]o Indian nation or tribe within the
territory of the United States shall be acknowledged or recognized as an
independent nation, tribe, or power with whom the United States may contract
by treaty.” Id. at 566, codified at 25 U.S.C. § 71.
The conclusion of the treaty era marked the beginning of the allotment era,
which saw a shift in federal policy from forced segregation to forced assimilation
of Native Americans, culminating in the passage of the General Allotment Act of
1887, commonly referred to as the Dawes Act after its sponsor, then-Senator
Henry Dawes of Massachusetts. Acts of Feb. 8, 1887, ch. 119, 24 Stat. 388; see also
Handbook § 1.04. The Dawes Act was intended to facilitate “the eventual
assimilation of the Indian population and the gradual extinction of Indian
reservations and Indian titles.” Montana v. United States, 450 U.S. 544, 559 n.9
members of Cherokees, Muscogee, Seminole, Chickasaw, and Choctaw tribes to
land in modern-day Oklahoma. Some Cayugas who left New York with members
of other Iroquois tribes following the Treaty of Canandaigua and subsequent
transactions with New York were ultimately removed to Oklahoma as well;
today, they comprise part of the federally recognized Seneca-Cayuga Tribe of
Oklahoma. See Cayuga Indian Nation of N.Y. v. Carey, No. 80-cv-930, 1981 WL
380694, at *2-4 (N.D.N.Y. Nov. 9, 1981).
(1981) (cleaned up). To that end, the Dawes Act authorized the President to
divide existing reservation lands into “allotments” for individual tribal members,
“whenever in his opinion any reservation or any part thereof of such Indians is
advantageous for agricultural and grazing purposes.” Dawes Act § 1, 24 Stat. at
388. The allotments were to be held in trust for allottees by the United States for
25 years, after which alienable title would be conveyed to the allottees in fee
simple. Dawes Act § 5, 24 Stat. at 389; see also United States v. Pelican, 232 U.S. 442,
446 (1914). The Dawes Act also permitted reservation land not allotted to tribal
members to be sold to the federal government, which, in turn would sell the land
to non-Indian settlers. Dawes Act § 5, 24 Stat. 389-90.
In 1906, Congress amended the Dawes Act to permit the Secretary of the
Interior to “at any time . . . cause to be issued to [an] allottee a patent in fee
simple, and thereafter all restrictions as to sale, incumbrance, or taxation of said
land shall be removed.” Acts of May 8, 1906, ch. 2348, 34 Stat. 183. Thereafter,
Congress passed a series of acts concerning the allotment and division of surplus
lands on individual reservations. See, e.g., Solem v. Bartlett, 465 U.S. 463, 469-70
n.10 (1984) (discussing specific surplus lands acts). The net effect of these efforts
was to reduce tribal land holdings from approximately 156 million acres in 1881
to 48 million acres in 1934. See Handbook § 1.04; see also Hodel v. Irving, 481 U.S.
704, 706-09 (1987) (recounting history of allotment era and resultant harm to
tribal land interests).
The most recent shift in federal policy towards Native Americans came
with the passage of the Indian Reorganization Act (“IRA”) in 1934, which marked
the formal end of the allotment era. See Pub. L. No. 73-383, ch. 576, 48 Stat. 984,
codified as amended at 25 U.S.C. § 5101 et seq. “The intent and purpose of the
Reorganization Act was ‘to rehabilitate the Indian’s economic life and to give him
a chance to develop the initiative destroyed by a century of oppression and
paternalism.’” Mescalero Apache Tribe v. Jones, 411 U.S. 145, 152 (1973), quoting
H.R. Rep. No. 1804, 73d Cong., 2d Sess. 6 (1934). Among its many provisions, the
IRA prohibited future allotments, restored surplus lands to tribal ownership,
authorized the purchase (or repurchase) of land within or without the borders of
existing reservations to be held in trust by the federal government for the benefit
of tribes and the creation of new reservations, exempted tribal trust land from
state and local taxation, and restored tribal sovereignty. See generally IRA §§ 1-19,
codified as amended at 21 U.S.C. § 5101-5110. Though the IRA has been amended
and supplemented in the years since its enactment, federal-state-tribal relations
continue to operate under its broad framework.
Following the passage of the IRA and the quasi-restoration of the
reservation system, the issue of whether and to what extent allotment-era policies
had worked to diminish reservations established by treaty was a frequent topic of
litigation. The Supreme Court, while acknowledging that the allotment-era
Congress “anticipated the imminent demise of the reservation and, in fact,
passed the [surplus lands] [a]cts partially to facilitate that process” and,
accordingly, had “failed to be meticulous in clarifying whether a particular piece
of legislation formally sliced a certain parcel of land off [a] reservation,”
nonetheless has held that the division and allotment of tribal lands did not by
itself terminate existing treaty reservations. Solem, 465 U.S. at 468-69.
Instead, the Court has held that, because only Congress holds the power to
establish and terminate reservations, “[o]nce a block of land is set aside for an
Indian reservation and no matter what happens to the title of individual plots
within the area, the entire block retains its reservation status until Congress
explicitly indicates otherwise.” Id. at 470, citing United States v. Celestine, 215 U.S.
278, 285 (1909). Accordingly, treaty reservations persist unless Congress “clearly
evince[s] an intent to change [their] boundaries” through legislation. Id. (citation
and internal quotation marks omitted); compare also, e.g., Mattz v. Arnett, 412 U.S.
481, 506 (1973) (1892 act opening Klamath River Reservation to settlement under
Homestead Act did not disestablish reservation) with, e.g., Rosebud Sioux Tribe v.
Kneip, 430 U.S. 584, 597-98 (1977) (language in 1904 act providing that Rosebud
Sioux Tribe “do hereby cede, surrender, grant, and convey to the United States
all their claim, right, title, and interest in and to all that part of the Rosebud
Indian Reservation now remaining unallotted” disestablished reservation). Or, as
the Court put it more recently, “[i]f Congress wishes to break the promise of a
reservation, it must say so.” McGirt, 140 S. Ct. at 2462. Accordingly, many
reservations persist today notwithstanding that much of the land within them
has long since left tribal hands; for example, much of northeastern Oklahoma,
including most of the City of Tulsa, remains the Creek reservation, though nearly
all of the land comprising it is owned by non-Indians. See id.
Separately, as will become relevant in this case, in the wake of the Supreme
Court’s decision in Bryan v. Itasca Cty., 426 U.S. 373 (1976), in which the Court
reaffirmed that states generally lack authority to regulate Native Americans on
reservation land, tribes began experimenting with gambling facilities as a means
of generating revenue. See Handbook § 12.01. By the 1980s, tribal gaming had
become both a significant source of revenue for many tribes and a considerable
source of tension between tribes running gambling operations and the
governments of the states in which their reservations were located. See id.
Against that backdrop, Congress enacted IGRA in 1988 “to provide a statutory
basis for the operation of gaming by Indian tribes as a means of promoting tribal
economic development, self-sufficiency, and strong tribal governments.” Pub. L.
No. 100-497, § 3, 102 Stat. 2467, codified at 25 U.S.C. § 2702(1). IGRA preempts all
state and local regulatory authority over certain classes of gambling conducted
on “Indian lands,” defined, in relevant part, as “all lands within the limits of any
Indian reservation.” 25 U.S.C. § 2703(4)(A). Most importantly for the present case,
IGRA’s regulatory and preemption scheme extends to the type of electronic
bingo that the Nation offers customers at Lakeside, which falls within the
statutory category of class II gaming.4 See id. § 2703(7) (defining “class II
“IGRA divides gaming into three classes, subjecting the classes to varying
degrees of regulatory control.” United States v. Cook, 922 F.2d 1026, 1033 (2d Cir.
1991). Class II gaming includes, in relevant part, “the game of chance commonly
known as bingo (whether or not electronic, computer, or other technologic aids
are used in connection therewith) . . . including (if played in the same location)
pull-tabs, lotto, punch boards, tip jars, instant bingo, and other games similar to
bingo.” 25 U.S.C. § 2703(7)(A). Contemporary electronic bingo machines such as
those featured at Lakeside, outwardly resemble slot machines (which fall within
the more stringently regulated category of class III gaming, see id. §§ 7(B), 8) but
gaming”); § 2710(a)(2) (“Any class II gaming on Indian lands shall continue to be
within the jurisdiction of the Indian tribes, but shall be subject to the provisions
of this chapter.”). In short, the tribes decide whether to undertake class II gaming,
subject to regulation by the federal government, not the states.
B. Prior Litigation and The Sherrill Decision
Perhaps because the affected tribes were dispossessed of their lands long
before allotment even began, no allotment era legislation (nor any legislation
passed since) disestablished the Cayuga Reservation or any of the other
reservations established through the Treaty of Canandaigua, including the
Oneida Nation’s reservation (the lands comprising which New York State
acquired in the early 19th century, again without federal ratification). See Oneida
Indian Nation v. Oneida Cty., 719 F.3d 525, 528-29 (2d Cir. 1983). Accordingly,
beginning in the 1970s, the Cayuga and Oneida Nations (along with other tribes,
discussion of which we omit) filed a series of cases in federal court seeking
various remedies under the theory that the transactions through which New
determine results differently from standard slot machines. See generally, e.g.,
United States v. 162 MegaMania Gambling Devices, 231 F.3d 713 (10th Cir. 2000)
(examining similar class II gaming device and holding that it was not class III slot
York acquired their respective reservations were void ab initio because they
violated the Nonintercourse Act. The Oneida Nation first pursued – and
ultimately succeeded on – a fairly narrow claim for damages in the form of fairmarket rental value for the land comprising its reservation for the two years prior
to the initiation of its action. That dispute wound up before the Supreme Court
twice. In its first decision, the Court reversed the district court’s dismissal for lack
of federal jurisdiction. See Oneida Indian Nation v. Oneida Cty., 414 U.S. 661, 665
(1974). In its second decision, the Court affirmed that the Oneida Nation could
pursue a claim for wrongful dispossession while leaving open “[t]he question [of]
whether equitable considerations should limit the relief available to the present
day Oneida Indians.” Oneida Cty. v. Oneida Indian Nation, 470 U.S. 226, 253 n.27
Building on this early success, the Oneida Nation pursued another strategy
The Cayuga Nation filed a separate action seeking considerably broader relief
including, inter alia, a declaration of its ownership rights over the Cayuga
Reservation, ejectment, and trespass damages in the form of fair rental value
from the time of the Nation’s dispossession through the date of judgment. See
Cayuga Indian Nation of N.Y. v. Cuomo, 565 F. Supp. 1297, 1306 (N.D.N.Y. 1983).
That action remained pending for over two decades and was ultimately resolved
in the State’s favor following the Supreme Court’s decision in Sherrill, discussed
infra. See Pataki, 413 F.3d at 268.
to reassert its rights over its historic reservation: purchasing land within the
reservation’s bounds in open market transactions. The Oneida Nation then
refused to pay local property taxes levied on the properties it had purchased on
the theory that its repurchase of the properties had unified the fee titles to the
properties with the Oneida Nation’s aboriginal title and thus worked a
restoration of its sovereignty to the exclusion of local regulation. In February
2000, the Oneida Nation sued the City of Sherrill, which was attempting to evict
the Oneida Nation from one such property for unpaid taxes, in the Northern
District of New York. The Oneida Nation sought a declaration that the parcel in
question qualified as “Indian country” within the meaning of the Major Crimes
Act, 18 U.S.C. § 1151 et seq. (the “MCA”), and was thus exempt from state and
local taxation.6 See Oneida Indian Nation of N.Y. v. City of Sherrill, 145 F. Supp. 2d
The MCA defines Indian country as, in relevant part, “all land within the limits
of any Indian reservation under the jurisdiction of the United States Government,
notwithstanding the issuance of any patent, and, including rights-of-way running
through the reservation.” 18 U.S.C. § 1151. Although the MCA itself governs the
prosecution of certain crimes committed in Indian country, the Supreme Court
has recognized that its definition of Indian country “generally applies as well to
questions of civil jurisdiction.” DeCoteau v. District Cty. Ct. for Tenth Judicial Dist.,
420 U.S. 425, 427 n.2 (1975) (citations omitted). Accordingly, it has long been the
rule that tribal land in Indian country is not subject to state or local taxation. See,
e.g., Oklahoma Tax Comm’n v. Chickasaw Nation, 515 U.S. 450, 458 (1995) (collecting
226, 237 (N.D.N.Y. 2001). That case (along with other related cases with which it
was consolidated) was assigned to Judge Hurd, who, in 2001, entered judgment
for the Oneida Nation on the tax immunity claim. Id. at 267-68. In 2003, a divided
panel of this Court affirmed that judgment. See Oneida Indian Nation of N.Y. v. City
of Sherrill, 337 F.3d 139, 145-46 (2d Cir. 2003). The City of Sherrill petitioned the
Supreme Court for a writ of certiorari, which the Court granted in June 2004. City
of Sherrill, N.Y. v. Oneida Indian Nation of N.Y., 542 U.S. 936 (2004) (granting
petition for writ).
While that case was wending its way through the judicial system, the
Cayuga Nation pursued similar efforts, which we recount in greater detail.
Beginning in 2002, the Nation began purchasing properties within the bounds of
the Cayuga Reservation in open-market transactions. In April 2003, the Nation
purchased the Parcel, which had most recently been used as an auto parts store.
In early October 2003, the Cayugas appointed a tribal code officer and began
construction on the Parcel; the Nation did not consult the Village or otherwise
engage in the ordinary permitting process established by state and local law
before beginning construction. Soon after the Nation began construction, the
Village issued a series of stop work orders citing the lack of required permits. The
last such order was dated October 15, 2003.
On October 19, 2003, the Nation sued the Village, the Town of Springport,
and the County of Cayuga in the Northern District of New York. See Complaint,
Cayuga Indian Nation of N.Y. v. Vill. of Union Springs, No. 03-cv-1270 (N.D.N.Y.
Oct. 19, 2003), ECF No. 1 (the “2003 Complaint” and “2003 Litigation”). The 2003
Complaint sought a declaration that the Village’s attempts to regulate the
Nation’s activity on the Parcel “violate the 1794 Treaty of Canandaigua; the
Nation’s sovereignty, which derives from Article I, Section 8 and Article II,
Section 2, Clause 2 of the United States Constitution and from federal common
law, and the Nonintercourse Act (25 U.S.C. § 177); and 25 C.F.R. 1.4” id. ¶ 32, and
an injunction against future enforcement actions. That complaint did not
reference IGRA or any plans to conduct gambling on the Parcel. In its answer and
counterclaim, the Village alleged that “the Village Clerk received an anonymous
telephone call indicating that the Nation was planning on opening a gaming
operation on the [Parcel].” 2003 Litigation, ECF No. 9 ¶ 86. The case was assigned
to Judge Hurd, who had also presided over the Oneida Nation’s tax immunity
On November 12, 2003, the Nation adopted a class II gaming ordinance, a
prerequisite for tribes seeking to operate class II gaming facilities on Indian land
under IGRA. See 25 U.S.C. § 2710(b)(1)(B). Six days later, the National Indian
Gaming Commission (“NIGC”), the agency within the Department of the Interior
that regulates IGRA gambling, approved the Nation’s gaming ordinance. On
December 11, 2003, the Nation moved for summary judgment. The following
month, the NIGC’s acting general counsel sent a letter to the Village’s thenMayor advising him that the NIGC had approved the Nation’s gaming
On February 10, 2004, the Village cross-moved for summary judgment in
that action or, in the alternative, for a preliminary injunction barring the Nation
from operating a class II gaming facility on the Parcel until the Nation had
complied with IGRA. The Village also argued that, assuming it could not
generally regulate the Parcel without infringing upon the Nation’s sovereignty,
the Parcel’s proximity to a school coupled with the Nation’s apparent plans to
open a gaming facility thereon constituted exceptional circumstances justifying
the application of local law.7
This marked the first appearance of IGRA in the
Though states broadly lack authority to regulate the activity of tribal members
on reservation lands, the Supreme Court has held that “in exceptional
circumstances a State may assert jurisdiction over the on-reservation activities of
2003 Litigation. The Nation argued in opposition that the Village had no standing
to seek relief under IGRA and that exceptional circumstances did not exist
because IGRA provides a comprehensive federal regulatory scheme that would
govern any gaming that might occur on the Parcel.
On April 27, 2004, the district court granted summary judgment to the
Nation, reasoning that the Parcel qualified as “Indian country” within the
meaning of the MCA and, accordingly, was exempt from state jurisdiction. See
Cayuga Indian Nation of N.Y. v. Vill. of Union Springs, 317 F. Supp. 2d 128
(N.D.N.Y. 2004) (“Union Springs I”). The district court further agreed that the
Parcel’s proximity to a school was not an exceptional circumstance because “[t]he
Nation correctly points out that it is governed by IGRA, which preempts state
and local attempts to regulate gaming on Indian lands and thus, such a
consideration is irrelevant here.” Id. at 148. The district court further denied the
Village’s motion for a preliminary injunction because it had not made the
requisite showing of irreparable harm. Id. at 149-50.
On May 31, 2004, while the Village’s appeal of that decision was pending,
tribal members.” New Mexico v. Mescalero Apache Tribe, 462 U.S. 324, 331-32 (1983),
citing Puyallup Tribe v. Washington Game Dept., 433 U.S. 165 (1977).
the Nation opened Lakeside and began conducting class II gaming on the Parcel.
The NIGC exercised its authority to regulate gaming at Lakeside, conducting
regular site visits and requiring the payment of quarterly fees.
On March 29, 2005, however, the Supreme Court reversed this court’s
decision in the Oneida Nation’s tax immunity case. See Sherrill 544 U.S. at 221.
Though the Court did not disturb the conclusion that the Oneida Nation’s
reservation qualified as Indian country within the meaning of the MCA, it
concluded that permitting the Oneida Nation to revive “present and future
Indian sovereign control, even over land purchased at market price, would have
disruptive practical consequences.” Id. at 219. Accordingly, the Court held that
the tribe’s “long delay in seeking equitable relief against New York or its local
units . . . evoke[d] the doctrines of laches, acquiescence, and impossibility, and
render[ed] inequitable the piecemeal shift in governance [that] suit [sought]
unilaterally to initiate.” Id. at 221.8
In dictum, the Court observed that “Congress has provided a mechanism for the
acquisition of lands for tribal communities that takes account of the interests of
others with stakes in the area’s governance and well being. Title 25 U.S.C. § 465
authorizes the Secretary of the Interior to acquire land in trust for Indians and
provides that the land ‘shall be exempt from State and local taxation.’” Id. at 220,
quoting Cass Cty. v. Leech Lake Band of Chippewa Indians, 524 U.S. 103, 114-15
(1988). Perhaps stimulated by this dictum, weeks after Sherrill was decided, the
Thereafter, we remanded the Village’s still-pending appeal of Union
Springs I for reconsideration in light of Sherrill. The Village did not invoke IGRA
in its brief on remand and instead took the position that, under Sherrill, it was
entitled to apply its laws to all activities on the Parcel. The Nation endeavored to
distinguish Sherrill but did not invoke IGRA except to emphasize that it had not
brought a claim under IGRA, that it was not seeking relief under IGRA, and that
no IGRA-related issues were before the district court. The Nation also did not
make any arguments specifically related to Lakeside or to gambling. Ultimately,
the district court concluded that the Nation’s efforts to preclude the application
of zoning and other local land use laws was “even more disruptive” than the
Oneida Nation’s efforts to avoid the payment of local taxes and, accordingly,
vacated the prior judgment entered for the Nation and entered judgment for the
Village. Cayuga Indian Nation of N.Y. v. Vill. of Union Springs, 390 F. Supp. 2d 203,
206 (N.D.N.Y. 2005) (“Union Springs II”). The Nation did not appeal, and
Lakeside shut its doors.
Nation applied to the Department of the Interior to have the Parcel and other
lands within its reservation taken into trust. The Department ultimately denied
the application in July 2020. See July 31, 2020 Letter from Tara Sweeney to Clint
Halftown, Dkt. No. 75.
B. Subsequent Developments and The Proceedings Below
Some years later, the Nation determined that it was time to try its hand at
gaming again. On May 30, 2013, the Nation informed the NIGC that it had
renewed Lakeside’s class II gaming license and, in accordance with NIGC
regulations, provided the agency with various environmental, public health, and
safety attestations as well as background check materials on various employees.
On July 3, 2013, Lakeside re-opened for business. That same day, the Nation,
through its counsel, wrote to various state and local officials advising them of
Lakeside’s reopening and of the Nation’s position that the class II gaming that
the Nation would offer at Lakeside was governed by IGRA to the exclusion of
state and local regulation because Lakeside sat on “Indian land” as defined
Six days later, the Village issued the Nation an order to remedy zoning
violations premised on the Nation’s operation of a bingo facility without a
Village-issued license in violation of a 1958 games of chance ordinance (the “1958
Ordinance”). On August 8, the Nation wrote Defendant-Appellant Howard
Tanner, Union Springs’ zoning officer, requesting the issuance of a certificate of
occupancy. Tanner responded by letter seeking additional information and
advising that the 1958 Ordinance required the Nation to seek a license to run a
bingo operation. The Nation submitted a new application for a certificate of
occupancy that addressed the issues that Tanner had identified save for the
alleged violation of the 1958 Ordinance the following December. Four days after
that, the Village served additional orders to remedy citing the Nation’s lack of a
certificate of occupancy authorizing a change in use of the Parcel and the
Nation’s purported violation of the 1958 Ordinance.
On February 21, 2014, Tanner visited Lakeside and identified three
building code issues. The Nation addressed the identified issues, and on a March
7 return visit, Tanner advised representatives of the Nation that Lakeside met
code standards for fire/life safety. On March 24, however, Tanner sent a letter
advising the Nation that he could not issue a certificate of occupancy for
Lakeside because it was in violation of the 1958 Ordinance and because the
Nation had not obtained a use variance. Shortly thereafter, the Nation, through
counsel, responded by letter setting forth its position that it need not obtain a use
variance under local zoning law and, in any event, to the extent that the Village
believed that the use variance was required under the 1958 Ordinance, IGRA
preempted that requirement. On October 27, the Village advised the Nation of its
intent to take enforcement action against Lakeside and Nation officials.
The next day, the Nation and its officials (then styled as John Doe
Plaintiffs) brought this action against the Village, its board, and various Village
officials in the Northern District of New York, where the matter was assigned to
Judge Hurd. The Nation sought a declaration that: (1) the 1958 Ordinance is
preempted by IGRA, (2) even if the 1958 Ordinance itself is not preempted by
IGRA, IGRA’s criminal enforcement provisions vest the federal government with
exclusive jurisdiction to enforce the 1958 Ordinance, and (3) any civil action
against the Nation or its officials to force compliance with the 1958 Ordinance
would be barred by sovereign immunity. The Nation also sought injunctive relief
precluding the Village from taking further action against it or its officials. Soon
after filing the complaint, the Nation sought and obtained a temporary
restraining order, which the parties extended by joint stipulation throughout the
course of the action.9
Early on in the litigation, The Cayuga National Unity Council, which claims to
be the legitimate leadership of the Nation, moved to intervene and have the suit
dismissed. Although the Council was denied leave to intervene, the district court
granted the Village’s early motion to dismiss, reasoning that the Nation’s
standing to sue on behalf of the tribe was intertwined with questions of tribal law
that the federal courts lacked jurisdiction to resolve. Cayuga Nation v. Tanner, No.
14-cv-1317, 2015 WL 2381301, at *3-4 (N.D.N.Y. May 19, 2015). The district court
While the action was pending, the Nation continued to expand its footprint
in the Cayuga Reservation. In 2018, the Nation promulgated a penal code,
created a police force and court system to enforce it, and contracted for a prison
to incarcerate those convicted of violating it. In a 2019 letter, the director of the
Bureau of Indian Affairs affirmed the federal government’s position that the
Nation was entitled to enforce its penal code against Native Americans within
the boundaries of the Cayuga Reservation because the Reservation constituted
“Indian country” under the MCA. That same year, the chairman of the NIGC
determined that the NIGC would again regulate gaming at Lakeside; since then,
the NIGC has conducted regular site visits and has accepted the Nation’s
payment of quarterly fees pursuant to IGRA and its implementing regulations.
On May 22, 2019, the Nation amended its complaint; the amended
complaint identified named tribal officials as Plaintiffs and alleged facts
also held that the individual plaintiffs – who at that point were still styled as John
Does – also lacked standing because they had failed to plead a credible threat of
imminent prosecution. Id. at *5 n.8. On appeal, we reversed that dismissal,
reasoning that it was appropriate to defer to the Bureau of Indian Affair’s
decision to recognize Clint Halftown, who brought both this suit and the 2003
Litigation on behalf of the tribe, as the Nation’s authorized representative. See
Cayuga Nation v. Tanner, 824 F.3d 321, 328 (2d Cir. 2016). We further concluded
that the individual plaintiffs had satisfied the low threshold to bring a preenforcement challenge. Id. at 330-33.
occurring since the Nation filed suit in 2014 but sought no additional relief. On
September 4, the parties cross-moved for summary judgment. On March 24, 2020,
the district court granted summary judgment to the Nation. Cayuga Nation v.
Tanner, 448 F. Supp. 3d 217 (N.D.N.Y. 2020). The district court rejected the
Village’s argument that issue and claim preclusion barred the Nation’s suit and,
on the merits, concluded that the Parcel qualified as “Indian lands” under IGRA,
thus preempting the 1958 Ordinance and divesting the Village of jurisdiction to
regulate gaming thereon. The district court further agreed that IGRA’s criminal
enforcement provisions separately divested the Village of jurisdiction to enforce
the 1958 Ordinance and that the Nation enjoyed sovereign immunity from any
civil suit to enforce the 1958 Ordinance. This appeal followed.
We review a grant of summary judgment de novo. See, e.g., Mitchell v. City
of New York, 841 F.3d 72, 77 (2d Cir. 2016). Ordinarily, “[w]here cross-motions for
summary judgment are filed, a court must evaluate each party’s own motion on
its own merits, taking care in each instance to draw all reasonable inferences
against the party whose motion is under consideration.” Hotel Employees & Rest.
Employees Union, Local 100 of N.Y. v. City of N.Y. Dep’t of Parks & Recreation, 311
F.3d 534, 543 (2d Cir. 2002) (internal quotation marks omitted). In this case,
however, the parties have stipulated to the operative facts; they disagree only as
to the proper application of specific legal doctrines to those facts, namely the
applicability of claim/issue preclusion and the appropriate construction of IGRA,
which are issues that we review de novo. See, e.g., Nielsen v. AECOM Tech. Corp.,
762 F.3d 214, 218 (2d Cir. 2014) (“Our review of a district court’s interpretation of
a statute, a pure question of law, is . . . de novo.”); Uzdavines v. Weeks Marine, Inc.,
418 F.3d 138, 143 (2d Cir. 2005) (applicability of estoppel doctrines presents pure
question of law reviewed de novo).
For the reasons discussed herein, we agree with the district court that
neither claim nor issue preclusion bars this action and that the Parcel sits on
“Indian lands” within the meaning of IGRA. We therefore affirm the judgment of
the district court.
I. Preclusion Doctrines
The Village asserts, as threshold defenses, both issue and claim preclusion,
contending that IGRA preemption was actually litigated in 2003 or, in the
alternative, that the Nation was required to litigate it then and cannot do so now.
Like the district court, we disagree.
A. Issue Preclusion
Issue preclusion, also referred to as collateral estoppel, bars “successive
litigation of an issue of fact or law actually litigated and resolved in a valid court
determination essential to [a] prior judgment.” New Hampshire v. Maine, 532 U.S.
742, 748-49 (2001). “The preclusive effect of a federal-court judgment is
determined by federal common law.” Taylor v. Sturgell, 553 U.S. 880, 891 (2008). A
party may invoke issue preclusion only if: “(1) the identical issue was raised in a
previous proceeding; (2) the issue was actually litigated and decided in the
previous proceeding; (3) the party [raising the issue] had a full and fair
opportunity to litigate the issue [in the prior proceeding]; and (4) the resolution
of the issue was necessary to support a valid and final judgment on the merits.”
Marvel Characters, Inc. v. Simon, 310 F.3d 280, 288-89 (2d Cir. 2002) (citation and
internal quotation marks omitted).
To support its argument that IGRA preemption was both litigated and
decided in the prior action, the Village points to an isolated passage of Union
Springs I in which, holding that the Parcel’s proximity to a school was not an
exceptional circumstance justifying the application of local law, the district court
observed that “[t]he Nation correctly points out that it is governed by IGRA,
which preempts state and local attempts to regulate gaming on Indian lands, and,
thus, such a consideration is irrelevant here.” 317 F. Supp. 2d at 148. As the
Village tells it, that passage demonstrates that “the district court’s 2004 opinion
relied on the Cayugas’ articulation of IGRA preemption as blocking state and
local laws,” Appellants’ Br. at 29, and that, therefore, Union Springs II, which
resolved the 2003 Litigation in the Village’s favor, implicitly resolved the issue of
IGRA preemption in its favor as well.
But the district court’s passing reference to IGRA in Union Springs I did not
decide whether IGRA preempted any specific local law. Indeed, there was no
need for it to do so. The 2003 Litigation arose out of the Nation’s claim of tribal
immunity from the Village’s jurisdiction to enforce its zoning laws, and the
district court ruled for the Nation on that issue. The Nation had not begun
gaming, the Village had not invoked the 1958 Ordinance, and the Nation did not
premise its immunity claim on preemption.
Further, even assuming, arguendo, that Union Springs I actually had decided
IGRA preemption, that judgment was later vacated, and "[a] judgment vacated or
set aside has no preclusive effect." Stone v. Williams, 970 F.2d 1043, 1054 (2d Cir.
1992). And the final order and judgment that did emerge from the 2003 Litigation
– Union Springs II – does not even mention IGRA. Notwithstanding, the Village
posits that, since Union Springs II was decided in its favor, the IGRA issue was
decided in its favor as well because the Nation “waive[d] and abandon[ed] . . .
the IGRA preemption argument” by failing to assert it at that stage of the
litigation. Appellants’ Br. at 30. But that argument strains credulity.
True, the Nation affirmatively invoked IGRA during the 2003 Litigation; it
did so, however, in response to the “exceptional circumstances” argument that
the Village raised in support of its summary judgment motion. The Nation’s
argument was premised on the mere existence of IGRA’s comprehensive
regulatory scheme as opposed to the scope of any of its specific provisions. On
remand after Sherrill, the Village, buoyed by a favorable change of law,
abandoned the exceptional circumstances argument altogether; there was,
indeed, no reason for the Village to invoke it, nor, therefore, for the Nation to
pursue its response to that point. The district court, limiting itself to the claims
made by the Nation and the arguments advanced by both sides, held that, under
Sherrill, the Nation could not invoke its inherent sovereignty to claim immunity
from local zoning and land use laws. Union Springs II, 390 F. Supp. 2d at 206.
Nothing about that simple holding implicates IGRA.
Of course, issue preclusion extends not only to issues that are expressly
decided but also to those issues that are “by necessary implication adjudicated in
the prior litigation.” Rezzonico v. H&R Block, Inc., 182 F.3d 144, 148 (2d Cir. 1999).
But the Village cites no authority for the novel proposition that a judgment can be
deemed to have implicitly resolved an issue that was not the basis of, or
otherwise intertwined with, any claim that was actually asserted in the
underlying litigation. To the contrary, “[i]t is well established that although an
issue was fully litigated and a finding on the issue was made in the prior
litigation, the prior judgment will not foreclose reconsideration of the same issue
if that issue was not necessary to the rendering of the prior judgment.” Halpern v.
Schwartz, 426 F.2d 102, 105 (2d Cir. 1970). The 2003 Litigation was resolved on the
straightforward holding that Sherrill defeated the Nation’s claims of sovereignty.
Thus, no IGRA ruling was “necessary to the rendering of [that] judgment,” id.,
such that issue preclusion would not bar its relitigation in this case even if Union
Springs II had decided it which, as discussed, it did not.
By any measure, thus, the Village’s assertion of issue preclusion fails.
B. Claim Preclusion
The Village argues in the alternative that, even if the issue of IGRA
preemption was not actually litigated and decided in the 2003 Litigation, the
Nation was required to raise it at that time and cannot do so now. Again, we
“Under the doctrine of . . . claim preclusion, a final judgment on the merits
of an action precludes the parties or their privies from relitigating issues that
were or could have been raised in that action.” TechnoMarine SA v. Giftports, Inc.,
758 F.3d 493, 499 (2d Cir. 2014) (internal quotation marks omitted). Of course,
given the liberal rules regarding joinder of claims, see Fed. R. Civ. Pro. 18, claim
preclusion does not bar every claim that could have been raised in a prior action.
Rather, for claim preclusion to apply, the later suit must “involv[e] the same
cause of action” as the earlier suit. EDP Med. Computer Sys., Inc. v. United States,
480 F.3d 621, 624 (2d Cir. 2007) (internal quotation marks omitted). “Suits involve
the same claim (or ‘cause of action’) when they arise from the same transaction,
or involve a common nucleus of operative facts. Lucky Brand Dungarees v. Marcel
Fashions Grp., 140 S. Ct. 1589, 1595 (2020) (citations and internal quotation marks
The Village argues that, even though the Nation had not begun gaming
(nor had it passed a gaming ordinance that the NIGC would need to approve
before the Nation could legally commence gaming under IGRA) when it filed the
2003 Complaint, it had formed an intention to do so and, accordingly, was
required to interpose an IGRA preemption claim at that point. Under this view,
the “transaction” is the Nation’s course of conduct from its purchase of the Parcel
until the opening (and closing, and reopening) of Lakeside. But even assuming
that the pre-enforcement challenge proposed by the Village would have been
ripe – a contention that the Nation rejects but that we need not and thus do not
resolve – the Village’s argument reaches too far.
We and several of our sister circuits have long held that, for the purpose of
analyzing claim preclusion, “the scope of the litigation is framed by the
complaint at the time it is filed.” Computer Assocs. Int’l v. Altai, Inc., 126 F.3d 365,
369-70 (2d Cir. 1997) (cleaned up).10 Consequently, “[w]here the facts that have
10 The Village argues that this rule “evolved in the context of serial violations of
copyright, trademark, securities, antitrust and other laws perpetrated by a serial
wrongdoer . . . [and] is properly limited to serial violation cases.” Appellants’ Br.
at 36-37. While the Village may be correct that we have most frequently applied
this facet of claim preclusion doctrine in serial violation cases, neither we nor our
sister circuits have ever understood it to be limited to those contexts. Nor would
limiting the rule in that fashion serve its underlying purpose, i.e., to bring
“certainty and predictability” to this area of the law by avoiding “disputes about
whether plaintiffs could have amended their initial complaints to assert claims
based on later-occurring incidents.” Morgan v. Covington Twp., 648 F.3d 172, 178
(3d Cir. 2011) (collecting cases).
accumulated after the first action are enough on their own to sustain the second
action, the new facts clearly constitute a new ‘claim,’ and the second action is not
barred by [claim preclusion].” Storey v. Cello Holdings, LLC, 347 F.3d 370, 383 (2d
Cir. 2003); see also Whole Woman’s Health v. Hellerstedt, 136 S. Ct. 2292, 2305 (2016)
(“[D]evelopment of new material facts can mean that a new case and an
otherwise similar previous case do not present the same claim.”).
Here, the current litigation arises out of facts that have accumulated since
the first action that are more than enough on their own to support it. When the
2003 Complaint was filed, the Nation had not begun gaming, and the Village had
not sought to enforce the 1958 Ordinance. Instead, the Village cited the Nation for
failing to comply with altogether different regulations – those relating to zoning
and construction – and the Nation claimed complete immunity from local
jurisdiction. IGRA, notably, would not have provided the Nation with a defense
against any of the ordinances that the Village was seeking to enforce, none of
which related to gambling.
By 2013, the state of play had changed significantly. The Supreme Court’s
decision in Sherrill having undermined its claim to broad immunity from local
regulation, the Nation had endeavored to comply with various applicable
building codes and the like – the precise sort of regulations from which it had
claimed immunity in 2003 – but was actively conducting a gambling operation on
the Parcel. It was at that point that the Village sought to enforce the 1958
Ordinance; in response to that enforcement effort, the Nation sought a
declaration not that it is immune from Village law as a quasi-sovereign entity, but
that the specific sliver of local law that the Village was attempting to enforce is
preempted by a specific federal statute. Although the two proceedings may
“involve[] the same parties, similar or overlapping facts, and similar legal
issues,” Interoceanica Corp. v. Sound Pilots, Inc., 107 F.3d 86, 91 (2d Cir. 1997)
(citation omitted), we readily conclude that the two sets of threatened
enforcement actions represent discrete transactions so as to render claim
preclusion inapplicable.
Nor does our decision in Waldman v. Village of Kiryas Joel command a
contrary result. 207 F.3d 105 (2d Cir. 2000). There, we affirmed the dismissal of
certain claims in Waldman’s third complaint against the Village of Kiryas Joel
after concluding that it was barred by his two prior suits against the same
municipality, even though the relief that he sought in the third case – an order
dissolving the Village of Kiryas Joel – was distinct from the relief that he had
sought in the prior cases. Id. at 112-14. But while the Village of Union Springs
argues that the situation is essentially identical here, it ignores the fact that our
decision in that case was premised on the fact that the incidents giving rise to the
claims at issue in the third complaint had already occurred when the prior
complaints were filed. Id. at 110-12. We therefore concluded that Waldman could
not avoid preclusion merely by including some new facts while also “claim[ing]
that the Village [of Kiryas Joel] may be dissolved solely on the basis of facts that
have existed for over two decades.” Id. at 112 (emphasis in original). In contrast,
as we held in Computer Associates, “[w]ithout a demonstration that the conduct
complained of in the [second] action occurred prior to the initiation of the [first]
action, [claim preclusion] is simply inapplicable.” 126 F.3d at 369. As already
discussed, the claims in this case arise out of events that entirely postdate the
2003 Complaint. Consequently, Waldman is inapposite.
Ultimately, the Village mistakes its plausible argument that the Nation
could have litigated this claim in 2003 as providing support for its assertion that
the Nation therefore was required to litigate this claim in 2003. But claim
preclusion has never been so broad as to require a party to do what the Village
insists that the Nation should have done in 2003: comb the books for every
ordinance that could be enforced against any use the Nation might make of the
property and challenge them all or forever forego the right to challenge any of
them. Thus, while we do not foreclose the possibility that claim preclusion might
appropriately bar a case where a party “launch[es] a series of lawsuits to
challenge different local laws . . . despite the lawbreaker knowing the full
universe of laws that apply to its actions,” Appellants’ Br. at 36, the litigation
history between the parties here falls short of that characterization. We therefore
reject the Village’s assertion of claim preclusion.
II. The Merits
This case turns on a straightforward question of statutory interpretation.
As we and our sister circuits have held, IGRA preempts all state and local
legislation and regulation relating to gambling conducted on “Indian lands,” as
defined in that statute. See Mashantucket Pequot Tribe v. Town of Ledyard, 722 F.3d
457, 469-70 (2d Cir. 2013) (noting that IGRA “was intended to expressly preempt
the field in the governance of gaming activity on Indian lands”), quoting Gaming
Corp. of Am. v. Dorsey & Whitney, 88 F.3d 536, 544 (8th Cir. 1996); see also, e.g.,
Pueblo of Pojoaque v. New Mexico, 863 F.3d 1226, 1235 (10th Cir. 2017) (IGRA
“expressly preempt[s] state regulation of gaming activity that occurs on Indian
lands”) (emphasis omitted). The dispositive question, thus, is whether the Parcel
sits on Indian lands within the meaning of IGRA. We readily conclude that it
“In interpreting a statute, we look first to the language of the statute itself.
When the language of the statute is unambiguous, judicial inquiry is complete.”
Marvel, 310 F.3d at 289-90 (cleaned up). Here, we need look no further than the
plain language of IGRA.
IGRA defines “Indian lands” as:
(A) all lands within the limits of any Indian reservation;
(B) any lands title to which is either held in trust by the
United States for the benefit of any Indian tribe or
individual or held by any Indian tribe or individual
subject to restriction by the United States against
alienation and over which an Indian tribe exercises
governmental power.
25 U.S.C. § 2703(4). That definition is notably expansive, encompassing “all lands
within the limits of any Indian reservation.” Taken alone or in combination, the
terms “any” and “all” convey nearly limitless breadth. See, e.g., United States v.
Gonzales, 520 U.S. 1, 5 (1997) (“Read naturally, the word ‘any’ has an expansive
meaning, that is, ‘one or some indiscriminately of whatever kind.’”), quoting
Webster’s Third New International Dictionary 97 (1976). Moreover, “Congress
did not add any language limiting the breadth of [these words], so we must read
[IGRA] as referring to all [reservations].” Id. As the parties have stipulated, and
as every state and federal court to consider the issue has concluded,11 the Cayuga
Reservation has not been disestablished and persists today within the boundaries
set forth in the Treaty of Canandaigua. The Parcel sits within those boundaries.
That would seem to be the end of the matter.
In the face of this clear language, the Village contends that the term
“reservation” implies the exercise of tribal jurisdiction, which, the Village
reasons, the Cayugas cannot lawfully do within their reservation under Sherrill.
But we need not resolve whether the Nation’s apparent exercise of, at a
minimum, concurrent jurisdiction over the Parcel and other property that it owns
within the Cayuga Reservation (represented, for example, by its police force and
court system) may be logically squared with Sherrill’s holding because the
relevant definition of “Indian lands” contains no requirement that a tribe exercise
jurisdiction or other governmental power over reservation property. That
11 See, e.g., Cayuga Indian Nation of N.Y. v. Gould, 14 N.Y.3d 614, 639-40 (2010)
(collecting cases).
conclusion is reinforced by the fact that IGRA’s secondary definition of Indian
lands, which applies to restricted fee and trust lands, does contain a requirement
that the tribe “exercise[] governmental power” over those lands. 25 U.S.C.
§ 2703(4)(B). And “[w]here Congress includes particular language in one section
of a statute but omits it in another section of the same Act, it is generally
presumed that Congress acts intentionally.” Russello v. United States, 464 U.S. 16,
23 (1983) (internal quotation marks omitted).12 We presume that intention here
and thus discern no basis to read extratextual limitations into the statute.
Equally unpersuasive is the Village’s contention that Congress could not
have intended the term “reservation” to encompass what it characterizes as a
“not disestablished ancient reservation that is stripped of tribal jurisdiction.”
Appellants’ Br. at 45. Setting aside the basic principle that we have “no roving
license, in even ordinary cases of statutory interpretation, to disregard clear
language simply on the view that . . . Congress must have intended something
12 Of course, another provision of IGRA limits class II gaming to “Indian lands
within such tribe’s jurisdiction,” 25 U.S.C. § 2710(b)(1). However, that provision
is relevant only to whether gaming is legal under IGRA, which the Village lacks
authority to enforce. Accordingly, we need not address the Village’s arguments
regarding that provision. To the extent that the Village takes issue with the
NIGC’s decision to authorize and regulate gambling at Lakeside, its remedy is to
seek judicial review of that decision. See 25 U.S.C. § 2714.
[narrower],” Michigan v. Bay Mills Indian Cmty., 572 U.S. 782, 794 (2014), the
backdrop against which IGRA was enacted does not support the Village’s
position in any case. By 1988, it was well understood that “[o]nce a block of land
is set aside for an Indian Reservation and no matter what happens to the title of
individual plots within the area, the entire block retains its reservation status until
Congress explicitly indicates otherwise.” Solem, 465 U.S. at 470 (emphasis added).
Moreover, the Cayuga Reservation’s existence had not been forgotten to history:
claims concerning the Oneida Nation’s reservation, established by the Treaty of
Canandaigua and acquired by New York State thereafter, had twice reached the
Supreme Court within the preceding 15 years, and the Cayuga Nation was
actively pursuing claims related to its own reservation. And, as countless Acts of
Congress make clear, when Congress wishes to exclude specific reservations
from the scope of legislation, it knows how to do so. See, e.g., Dawes Act § 8, 24
Stat. at 390. Much as the Village may argue otherwise, it plainly did not do so
Finally, the Village’s position is irreconcilable with the Supreme Court’s
recent decision in McGirt v. Oklahoma, in which the Court held that the Creek
reservation, encompassing a significant portion of northeastern Oklahoma,
including much of the city of Tulsa, remained “Indian country” under the MCA
and, accordingly, that the State of Oklahoma lacked authority to prosecute
Native Americans for crimes committed against other Native Americans
committed thereon. 140 S. Ct. at 2476-82. The Village attempts to dismiss McGirt
as merely a case concerning the interpretation of specific treaties. However, while
much of the decision focuses on whether the Creek reservation survived certain
historical developments, the Court nevertheless made it absolutely clear that,
because the reservation persists, “the MCA applies to Oklahoma according to its
usual terms.” Id. at 2478. That is so despite the fact that, as Oklahoma argued in
that case and the Village argues in this one, “Tribe members today constitute a
small fraction of those now residing on the land.” Id. at 2470. Given that the
MCA’s definition of Indian country is largely identical to IGRA’s definition of
Indian lands, we can only conclude that IGRA applies to the Cayuga Reservation.
Moreover, while McGirt does not cite or otherwise mention Sherrill, the
Court’s forceful reaffirmation in McGirt of Congress’s singular power to
disestablish a reservation further underscores the infirmity of the Village’s
position here. The Village would have us read Sherrill to hold that the Cayuga
Reservation is a “de facto former reservation[]” that “[does not] exist today in any
real world sense.” Appellants’ Br. at 45 (emphasis in original). Adopting the
Village’s position, however, would be akin to interpreting Sherrill to have
effectively disestablished the Cayuga Reservation. To the extent that were ever a
plausible interpretation of Sherrill, McGirt forecloses it.13
Accordingly, we hold that the Parcel qualifies as “Indian lands” within the
meaning of IGRA and that IGRA accordingly preempts any and all state or local
laws that directly or indirectly purport to regulate or limit gaming on the Parcel,
including the 1958 Ordinance. Because the 1958 Ordinance is preempted entirely,
we need not decide whether IGRA’s criminal enforcement provision vesting
exclusive jurisdiction in the federal government to enforce state gambling law in
“Indian country” as defined under the MCA, 18 U.S.C. § 1166, supersedes 25
U.S.C. § 232’s grant of criminal jurisdiction over tribal members to New York
13 Even prior to McGirt, the Village’s reading of Sherrill would be hard to square
with the actual holding of that case and the Court’s well established
disestablishment jurisprudence. As the New York Court of Appeals succinctly
put it in 2010, “Sherrill dealt with whether a tribe could exercise sovereign power
over reacquired land for purposes of avoiding real property taxes – not whether
reacquired land is ascribed reservation status under federal law.” Gould, 14
N.Y.3d at 641-42.

Outcome: For the reasons stated herein, the judgment of the district court is AFFIRMED.

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