United States District Court, Eastern District of New York
July 29, 2003
STATE OF NEW YORK, NEW YORK STATE RACING AND WAGERING BOARD, AND NEW YORK STATE DEPARTMENT OF ENVIRONMENTAL CONSERVATION, PLAINTIFFS, AGAINST THE SHINNECOCK INDIAN NATION, CHARLES K. SMITH, II, JAMES W. ELEAZAR, JR., LANCE A. GUMBS AND FRED BESS, DEFENDANTS.
The opinion of the court was delivered by: Thomas Platt, Senior District Judge
MEMORANDUM AND ORDER
The plaintiffs commenced this action with a Complaint filed on June 30, 2003, in the Supreme Court Suffolk County seeking temporary and preliminary injunctive, as well as declaratory, relief.
On its face, the Complaint alleges five causes of action.
In the first cause of action, the plaintiffs allege, in conclusion:
77. Therefore, defendants [sic] planned actions to build
a casino and conduct gaming cannot be authorized
by IGRA [the Indian Gaming Regulatory Act,
25 U.S.C. § 2701 et seq.] and, therefore, are in
violation the federal statute [sic].
In their Declaratory Judgment portion of the Complaint, the plaintiffs allege in part:
i. the defendants are not a federally-recognized Tribe;
j. the defendants' property which is the subject of this
action, the gaming site, does not constitute "Indian
lands" as that term is used in 18 U.S.C. § 1151 and
in, 25 U.S.C. § 2701 et seq. ("IGRA");
k. the defendants lack sovereign immunity with
respect to the operation of the state gambling laws
at the gambling site;
n. the defendants lack sovereign immunity to the
operation of state and federal environmental laws at
the gambling site;
o. the defendants cannot build a casino or any other
structure for the purpose of gaming at the gambling
site unless they first comply with Town, state, and
federal and environmental laws;
p. the defendants may not begin building any kind of
structure on the gaming site without first giving
the plaintiffs 120 days notice prior to the
beginning of such construction unless and until
they fully comply with all Town, state and federal
laws and regulations governing the building of
structures on the gaming site;
q. the defendants may not operate a bingo hall or other
gambling establishment without first giving the
plaintiffs 120 days notice prior to the opening of the
establishment unless and until they fully comply
with the provisions of the Bingo Licensing Law, the
Bingo Control Law, the Games of Chance Licensing
Law or the provisions of the federal Indian Gaming
On July 1, 2003, the defendants removed this case to this Court by filing a Notice of Removal pursuant to 28 U.S.C. § 1441 and 1446 on the ground that the Complaint pled a federal question on its face. The defendants cited the above quoted portion of paragraph 77 in the first cause of action and other portions of the Complaint, inter alia, the above claims for relief and declaratory judgments.
It is clear that this first cause of action asserts a violation of a federal statute and this alone is sufficient for removal of the entire action under 28 U.S.C. § 1441 (c) which provides:
Whenever a separate and independent claim or cause of
action within the jurisdiction conferred by section.
1331 of this title is joined with one or more
otherwise nonremovable claims or causes of action, the
entire case may be removed and the district court may
determine all issues therein, or, in its discretion,
may remand all matters in which State law
Furthermore, Section 1441(b) provides in pertinent part that:
Any civil action of which the district courts have
original jurisdiction founded on a claim or right
arising under the Constitution, treaties or laws of
the United States shall be removable without regard to
the citizenship or residence of the parties.
Although not argued expressly by the defendants, it seems that since the plaintiffs' claim arises under the below quoted section of the United States Constitution, it is removable on this ground also.
Apparently overlooked or ignored by the plaintiffs is the mandate contained in Article I, Section 8, paragraph 3 of the United States Constitution:
Section 8.  The Congress shall have Power . . .
 To regulate Commerce with foreign Nations, and
among the several States, and with the Indian Tribes.
Furthermore, this provision, which underlies repeated decisions by the United States Supreme Court holding that claims relating to the possessory rights of Indian tribes in tribal lands are so inherently federal that they are subject to complete preemption, Caterpillar, Inc. v. Williams, 482 U.S. 386
, 393 n. 8 (1987); Oneida Indian Nation v. Oneida County, 414 U.S. 661
, 675-678 (1974), governs removal here as well.
The defendants correctly conclude:
1) The Complaint explicitly pleads a federal question
in its first cause of action;
2) The Complaint raises questions relating to the
possessory rights of Indian tribes in tribal lands that
are federal in nature and subject to complete federal
3) All of the causes of action necessarily require the
resolutions of questions of federal law.
4) The Complaint's demands for declaratory judgment
require the resolution of questions of federal law.
The undersigned notes that the legal discussion contained herein has no bearing on the substantive law underlying the plaintiffs' motion for a preliminary injunction also currently before this Court.
Accordingly, the plaintiffs' motion to remand must be, and the same hereby is, denied.
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