UPSTATE CITIZENS FOR EQUALITY, INC., ET AL.
UNITED STATES, ET AL. TOWN OF VERNON, NEW YORK
UNITED STATES, ET AL.
PETITIONS FOR WRITS OF CERTIORARI TO THE UNITED STATES COURT
OF APPEALS FOR THE SECOND CIRCUIT
petitions for writs of certiorari are denied.
Justice Thomas, dissenting from the denials of certiorari.
Indian Reorganization Act (IRA), 48 Stat. 985, as amended,
permits the Secretary of the Interior to take land into trust
for individual Indians or Indian tribes. 25 U.S.C.
§5108. Once land is taken into trust under the IRA, it
is exempt from almost all state control. It is no longer
subject to state or local taxation. Ibid. Local
zoning and regulatory requirements do not apply. 25 CFR
§1.4(a) (2017). And unless the Indian tribe consents,
the State may not exercise criminal or civil jurisdiction. 25
U.S.C. §§1321(a)(1), 1322(a). The IRA thus allows
the Secretary to take state land and strip the State of
almost all sovereign power over it.
2008, the Secretary invoked the IRA to take into trust more
than 13, 000 acres of land in upstate New York for the Oneida
Nation of New York, an Indian Tribe that descended from one
of the Iroquois nations. 841 F.3d 556, 564 (CA2 2016).
Petitioners, a local government and several interested
citizens from upstate New York, ask us to decide whether this
use of the IRA is a constitutional exercise of Congress'
power under the Indian Commerce Clause "[t]o regulate
Commerce . . . with the Indian Tribes, " Art. I,
§8, cl. 3. I would grant the petitions for writs of
certiorari to reconsider our Indian Commerce Clause
precedents have acquiesced in Congress' assertion of a
"plenary power to legislate in the field of Indian
affairs." Cotton Petroleum Corp. v. New Mexico,
490 U.S. 163, 192 (1989). But "neither the text nor the
original understanding of the [Indian Commerce] Clause
supports Congress' claim to such 'plenary'
power." Adoptive Couple v. Baby Girl, 570 U.S.
637, ___ (2013) (THOMAS, J., concurring) (slip op., at 4);
see United States v. Lara, 541 U.S. 193, 224 (2004)
(THOMAS, J., concurring in judgment); Puerto Rico v.
Sanchez Valle, 579 U.S. ___, ___ (2016) (THOMAS, J.,
concurring in part and concurring in judgment) (slip op., at
1); United States v. Bryant, 579 U.S. ___, ___-___
(2016) (THOMAS, J., concurring) (slip op., at 3-4). Instead,
as I have previously explained, the Clause extends only to
"regulat[ing] trade with Indian tribes-that is, Indians
who had not been incorporated into the body-politic of any
State." Adoptive Couple, supra, at ___ (slip
op., at 5).
this way, the Indian Commerce Clause does not appear to give
Congress the power to authorize the taking of land into trust
under the IRA. Even assuming that land transactions are
"Commerce" within the scope of the Clause, but see
Natelson, The Original Understanding of the Indian Commerce
Clause, 85 Denver U. L. Rev. 201, 214-215, and n. 94 (2007),
many applications of the IRA do not involve trade of any
kind. The IRA permits the Secretary to take into trust land
that an Indian tribe already owns. See 25 U.S.C.
§5108 (authorizing the Secretary to take into trust land
acquired through "relinquishment, " "gift,
" or "assignment"); 25 CFR §151.3
(providing that the Secretary may take land into trust
"[w]hen the tribe already owns an interest in the
land"); §151.4 (providing that the Secretary may
take into trust "[u]nrestricted land owned by an
individual Indian or a tribe"). And in cases like these,
where the tribe already owns the land, neither money nor
property changes hands. Instead, title is slightly modified
by adding "the United States in trust for" in front
of the name of "the Indian tribe or individual
Indian" who owns the land. See 25 U.S.C. §5108.
This arrangement does not affect the Indian tribe's
beneficial ownership of the property, and it does not afford
the United States any meaningful property rights. See F.
Cohen, Handbook of Federal Indian Law 997-998, 1057-1058
(2012); Prakash, Against Tribal Fungibility, 89 Cornell L.
Rev. 1069, 1093-1094, and n. 152 (2004). In short, because no
exchange takes place, these trust arrangements do not
resemble "'trade with Indians.'"
Adoptive Couple, supra, at ___ (THOMAS, J.,
concurring) (slip op., at 4) (quoting Natelson,
supra, at 215-216).
our precedents, the Second Circuit concluded that the Indian
Commerce Clause empowered the Federal Government to take into
trust the land at issue here. In so doing, it showed how far
our precedents interpreting the Indian Commerce Clause have
strayed from the original understanding, and how much
Congress' power has grown as a result. Asserting plenary
power, Congress authorized the Secretary to take 13, 000
acres of New York and to declare it sovereign Oneida
territory. It did so even though the land had been under New
York's sovereign control for more than two centuries.
City of Sherrill v. Oneida Indian Nation of N. Y.,
544 U.S. 197, 203, 221 (2005). And it did so even though
restoring tribal sovereignty over the land would
"'seriously burde[n] the administration of state and
local governments' and would adversely affect landowners
neighboring the tribal patches." Id., at 220
(quoting Hagen v. Utah, 510 U.S. 399, 421 (1994));
see also 841 F.3d, at 564.
our precedents, Congress has thus obtained the power to take
any state land and strip the State of almost all sovereign
power over it "for the purpose of providing land for
Indians." 25 U.S.C. §5108. This means Congress
could reduce a State to near nonexistence by taking all land
within its borders and declaring it sovereign Indian
territory. It is highly implausible that the Founders
understood the Indian Commerce Clause, which was virtually
unopposed at the founding, as giving Congress the power to
destroy the States' territorial integrity. See
Adoptive Couple, 570 U.S., at ___ (THOMAS, J.,
concurring) (slip op., at 9). Indeed, they would have been
shocked to find such a power lurking in a Clause they
understood to give Congress the limited authority "to
regulate trade with Indian tribes living beyond state
our precedents permit such an absurd result, something has
gone seriously awry. It is time to fix our error. We should
have granted certiorari to reexamine our Indian Commerce
Clause precedents, instead of standing idly by as Congress,
the Executive, and the lower courts stray further and ...