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The Second Circuit's Troubling Refusal to Consider Federal Indian Law Issues

July 03, 2012

The Case
New York v. Shinnecock Indian Nation, decided by the Second Circuit Court of Appeals on June 25, 2012

The Key Legal Issue
The issue whether a state has jurisdiction over a tribe is a question of federal law. See, e.g., White Mountain Apache Tribe v. Bracker, 446 U.S. 132 (1980). It is important that tribes have access to the federal courts to challenge state encroachments on the tribal right of self-government.

Section 1362 of the Judiciary Act gives federal district courts "original jurisdiction of all civil actions, brought by any Indian tribe or band with a governing body duly recognized by the Secretary of the Interior, wherein the matter in controversy arises under the Constitution, laws, or treaties of the United States."

Section 1362 reflects a "congressional policy against relegating Indians to state court when an identical suit brought on their behalf by the United States could have been heard in federal court." Arizona v. San Carlos Apache Tribe, 463 U.S. 545, 561 n. 10, (1983). In Moe v. Salish & Kootenai Tribes, 425 U.S. 463 (1976), for example, the Supreme Court held that Section 1362 permitted the tribal plaintiff to challenge the State of Washington's attempts to impose various taxes within the tribe's reservation. See also Montana v. Blackfeet Tribe, 471 U.S. 759, 763 n. 2 (1985) ("a suit by an Indian tribe to enjoin the enforcement of state tax laws is cognizable in district court under 28 U.S.C. § 1362 despite the general ban in 28 U.S.C. § 1341 against seeking federal injunctions of such laws.")

The State's Claim
New York State (State) agencies and municipalities sued the Shinnecock Tribe and tribal officials in state court seeking to enjoin them from constructing a casino and conducting gaming on a parcel of non-reservation property on Long Island. The Tribe removed the case to federal court on the basis that the State's complaint had pleaded issues of federal law and that the outcome depended on whether, based on the Tribe's aboriginal title, the proposed site was "Indian land." The district court denied the State's motion to remand the case to state court, found that the Indian Gaming Regulatory Act provided federal jurisdiction and ruled against the Tribe on the merits. On appeal, neither the Tribe nor the State contested federal court jurisdiction.

What the Court Decided
Although neither party challenged its jurisdiction, the Court, in a 2-1 decision, ordered the case remanded to the state court for lack of federal jurisdiction. The Court held that the Tribe's federal law-based defenses based on its aboriginal land title and sovereign immunity were not enough to support federal question jurisdiction where the complaint alleged violations of state law: "In this case, the State and Town allege only violations of state and local law. The State alleges that the Tribe's construction of the casino would violate state gaming and environmental laws and the Town alleges that it would violate local zoning and wet-lands protection ordinances."

What it Means
The Court's decision means that a New York state court, not a federal court, will decide the merits of the Tribe's land claim and other federal law issues relating to the Indian Gaming Regulatory Act.

The Legal Problem
Where, as in the case of the Shinnecock, the outcome turns on federal Indian law, most tribes will prefer that a federal court decide. Yet federal jurisdiction cannot rest merely on the anticipation of a federal defense if the complaint itself alleges only state law claims. The defense of sovereign immunity, in particular, is insufficient to establish federal jurisdiction. See Oklahoma Tax Commission v. Graham, 489 U.S. 838, 841 (1989) ("[F]ederal immunity to the claims asserted does not convert a suit otherwise arising under state law into one which, in the statutory sense, arises under federal law.")

The rule that a sovereign immunity defense cannot support federal jurisdiction does not mean that a federal question does not arise where a state seeks to enforce its laws in violation of White Mountain Apache Tribe v. Bracker and other federal cases protecting the tribal right of self-government. The Shinnecock case, in fact, raised such an issue.

What Tribes Can Do
As discussed above, federal courts have held that tribes can sue in federal court to enjoin state encroachments on the tribal right of self-government. It may be necessary in some cases for a tribe to bring a federal court action for declaratory and injunctive relief to preempt a state court action by a state agency seeking to enforce its authority. In order to establish that a live controversy exists, a requirement for federal court standing, the tribe would need to show that the state has made a serious threat to enforce its authority against the tribe and that the exercise of such authority would violate the tribe's rights of self-government under federal law.

The Indian Nations Law Team
The Indian Nations Law team's periodic Alerts supplement our monthly Updates by drawing attention to recent court decisions that we think may reflect, or spark, a trend in Indian law.

For more information on Godfrey & Kahn's Indian Nation law services, contact Brian Pierson at 414.287.9456 or

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