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ONEIDA INDIAN NATION OF NEW YORK v. CLARK

August 30, 1984

ONEIDA INDIAN NATION OF NEW YORK, ROBERT W. BURR, JR., individually and in his capacity as President of the Oneida Indian Nation of New York, HAROLD CORNELIUS, individually and in his capacity as Vice-President of the Oneida Indian nation of New York, GERALDA THOMPSON, individually and in her capacity as Clerk of the Oneida Indian Nation of New York, JANICE LUONGO, individually and in her capacity as Recording Secretary of the Oneida Indian Nation of New York, WINNIFRED JACOBS, individually and in her capacity as Treasurer of the Oneida Indian Nation of New York, and THOMAS JONES, JR., individually and in his capacity as Sergeant-at-Arms of the Oneida Indian Nation of New York, and all as class representatives, Plaintiffs,
v.
WILLIAM P. CLARK, individually and in his official capacity as Secretary of the Interior, FRANK K. RICHARDSON, individually and in his official capacity as Solicitor of the United States Department of Interior, KENNETH L. SMITH, individually and in his official capacity as Assistant Secretary of the Interior-Indian Affairs, JOHN W. FRITZ, individually and in his official capacity as Deputy Assistant Secretary-Indian Affairs, WILLIAM OTT, individually and in his official capacity as Acting Eastern Area Director, Defendants,1 ONEIDA INDIAN NATION OF NEW YORK and RAY HALBRITTER, Defendant-Intervenors.



The opinion of the court was delivered by: MCCURN

NEAL P. McCURN, D.J.

MEMORANDUM-DECISION AND ORDER

 This is a tribal recognition action in which both plaintiffs and defendant-intervenors claim to be the rightful government of the Oneida Indian Nation of New York ["New York Oneidas"]. Plaintiffs are known as the "Executive Committee"; defendant-intervenors are known as the "Marble Hill Oneidas" or the "traditionalist faction".

 Presently before the court are cross-motions for partial summary judgment which are predicated on an unsuccessful affidavit procedure instituted by the defendant, Department of the Interior ["Department"], to determine which group should be recognized as the governing body of the New York Oneidas. Plaintiffs claim that the Department improperly and unlawfully administered the affidavit process which, but for the Department's allegedly unlawful conduct, would have resulted in recognition of the Executive Committee as the exclusive government of the New York Oneidas. Plaintiffs contend that they fully complied with the requirements for recognition established by the Department and seek, therefore, to have this court order the Department to grant exclusive governing body recognition to the Executive Committee. Plaintiffs maintain that the Department's decision to deny recognition was arbitrary, capricious, and an abuse of discretion. Plaintiffs also allege that the Department's unlawful administration of the affidavit procedure violated the religious and voting rights of certain plaintiffs and constituted a breach of the trust responsibility owed to the plaintiffs by the United States Government.

 All parties agree that this issue is ripe for summary judgment as there is no genuine dispute as to any material facts. Although characterized as a motion for partial summary judgment, plaintiffs' motion actually seeks judicial review of administrative agency action, namely, the Secretary of the Interior's decision to deny Executive Committee recognition.

 For the reasons set forth below, the court holds that the Secretary did not abuse his discretion or act in an arbitrary or capricious manner by deciding to deny the Executive Committee recognition as the sole and exclusive governing body of the New York Oneidas. Furthermore, the court finds that plaintiffs' other claims arising out of the administration of the affidavit process are without merit.

 Background

 Plaintiffs, the Oneida Indian Nation Executive Committee, governed the New York Oneidas from 1948 until 1975 under a duly adopted and ratified Nation Constitution. *fn2" In December, 1975, the Department withdrew its recognition of the Executive Committee as the exclusive governing body of the New York Oneidas. Since that time the New York Oneidas have not had a United States Government-recognized governing body. The United States and the Oneidas have proposed and implemented different approaches to re-establishing federal recognition of an Oneida government, thus far without success. *fn3"

 As part of this continuing process to recognize a governing body, the Department agreed to engage in an affidavit procedure suggested by Bertram Hirsch, the attorney for the Executive Committee. In a letter to then Assistant Secretary Forrest Gerard, Mr. Hirsch proposed that the United States recognize a Nation governing body if 50% plus one of those persons over the age of eighteen whose name appeared on a previously certified list of federally recognized New York Oneidas *fn4" supported, via affidavit, such a governing body. Administrative Record [hereinafter "AR"] #32.

 Assistant Secretary Gerard responded by letter stating that although the Government would agree to engage in the suggested affidavit procedure, tribal recognition would be conditioned upon proof that the "affidavit procedure [had been] conducted in a basically fair manner". AR #31. To ensure that the procedure would be fair, the Government outlined the methodology to be used in collecting the affidavits. At issue here is paragraph five of Mr. Gerard's letter which states:

 It would not be effective or conducive to fairness to allow affidavits to be collected indefinitely. Therefore, to be considered valid, all affidavits must be submitted within ninety (90) days of this letter. If, at any time during that ninety days, the Department determines that affidavits from fifty (50) percent plus one of New York Oneidas over eighteen (18) named on the BIA list have been presented to it, the Department will recognize the Executive Committee as the sole and exclusive governing body of the Nation and accept the Februjary 4, 1948, constitution as the governing document for the Nation, assuming the affidavit process is determined to have been fairly conducted. If a sufficient number of affidavits is not collected within ninety (90) days of this letter, the status of the Oneidas tribal government vis-a-vis the Department of Interior will remain in its present state -- the non-recognition by the Department of any governing body within the New York Oneida Nation. (Emphasis added)

 Id. [hereinafter cited as the Gerard letter or the December 12 letter]

 The deadline for submission of affidavits was March 11, 1980.To satisfy the Department that the affidavit process had been conducted in a "basically fair manner", certain facts had to be "be established either through the actual language of each affidavit or through supplemental affidavits executed by those persons responsible for gathering the affidavits".Id. The critical facts to be established by either the individual or supplemental affidavits included: (1) that the individual affiant had not been promised anything to sign the affidavit and that he or she was signing it freely and without duress; and, (2) that the affiant either had or had access to a copy of the February 4, 1948 Constitution. *fn5" Id.

 The individual affidavits used by the Executive Committee did not contain the statement that the individual affiant had or had access to a copy of the 1948 Constitution to establish that fact supplemental affidavits were necessary. ...


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