United States Department of the Interior BUREAU OF INDIAN AFFAIRS

Eastern Regional Office

545 Marriott Drive, Suite 700

Nashville, TN 37214

FEB 2 ~ lOiS Messrs. Daniel 1. French and Lee Alcott, Esq. French-Alcott, PLLC Attorneys at Law 300 South State Street Syracuse, New York 13202

Mr. Eric Facer, Esq. 1025 Connecticut Ave NW Suite 1000 Washington DC 20036

Mr. Dan Crane, Esq. 514 Seward Square SE Washington DC 20003

Mr. David Debruin, Esq. Jenner and Block 1099 New York Avenue, NW Suite 900 Washington, DC 20001

Mr. Joseph J. Heath, Esq. Attorney at Law 300 South State Street Syracuse, New York 13210

Ms. Alexandra C. Page, Esq. Berkey Williams LLP 616 Whittier St NW Washington, DC 20012

Mr. Curtis G. Berkey, Esq. Berkey Williams LLP 2030 Addison Street, Suite 410 Berkeley, CA 94704

Cayuga Nation P.O. Box 116 Akron, New York 14001

Cayuga Nation P.O. Box 803 Seneca Falls, NY 13148

1

Ladies and Gentlemen:

The purpose of this letter is to provide you with the decision of the Eastern Regional Office, BIA ("Region") regarding how the BIA is going to provide funding of the Cayuga Nation's ("Nation") Self-Determination Act ("ISDA") contract for community services, Contract No. A 13A V00209 ("Conununity Services Contract"), as further described below. Because two groups claim authority to sign, on behalf of the Nation, contract modifications that the Region requires before it can release FY 2015 funds due under the Conununity Services Contract, this decision necessarily requires that the Region first identify which leadership group it will recognize-at least on an interim basis- as having the authority to enter such contract modifications for the Nation.

The first group is made up of Clint Halftown, Tim Twoguns, and Gary Wheeler (hereinafter, the Halftown group). They seek recognition of Mr. Halftown as federal representative' and Mr. Twoguns as the alternate federal representative for a six-member Nation council identified by BIA in 2006 and made up of Clint Halftown, William Jacobs, Tim Twoguns, Gary Wheeler, Chester Isaac and Samuel George.2 Hereinafter, we will refer to this group as the Nation 2006 Council. The second group is made up of a group of Nation members who believe that Clint Halftown was properly removed from the Nation's council and his position as federal representative by the Heron clan mother. This group seeks recognition of William Jacobs and Samuel George as federal representatives for a Nation council composed of Karl Hill, William Jacobs, Justin Bennett, Samuel Campbell, Chester Isaac, and Samuel George. Hereinafter we will refer to this group the way they have often referred to themselves, as the "Unity Council.,,3 Notably, three individuals (William Jacobs, Chester Isaac, and Samuel George) are members of both the Nation 2006 Council and the Unity Council, and these three individuals have stated that they believe the Unity Council represents the legitimate government of the Nation.

The Region has determined that under these circumstances, it will on an interim basis recognize the Nation 2006 Council as the last undisputed leadership of the Nation, with Clint Halftown as the Nation's representative for purposes of administering existing ISDA contracts. As explained below, this interim recognition decision is intended to provide the Nation with additional time to resolve this dispute without BIA interference.

I The term "federal representative" is used by both groups seeking recognition as Cayuga Nation leadership. There is some discussion of this term in a 2009 !BIA decision involving the Cayuga Nation, Samuel George v. Eastern Regional Director, 49!BIA 164, 184, 193 (2009). The!B1A emphasized that in its decision in that case, it expressed no view whatsoever regarding the scope of the powers of the federal representative under Nation law, and the Region echoes that limitation on the scope of the decision we are issuing today. The scope of the powers of the federal representative is a question of Nation law not properly resolved by the Region . Id. at 193. However, the Region does need to identify a tribal representative to the extent BIA is obligated to engage in communications with the Nation for purposes of administering the rSDA contract. See 25 C.F.R 900.8(e), 900. 12. For purposes of this decision, the Region assumes that the " federal representative" under Cayuga law will be the Nation's representative for purposes of administering ongoing ISDA contracts. 2 This Nation 2006 Council is described by the !BrA in George, 49 IBIA 164, 173 (2009). 3 In a September 14, 2014 letter conveyed to the Region by the Turtle Clan on September 17,2014" Justin Bennett and Samuel Campbell and turtle clan mother Brenda Bennett circulated a letter announcing that "[e]ffective immediately, the turtle clan .... secedes from the Unity Council" and taking "the official position of neutrality between the two factions .. . that claim leadership authority,"

2

The Region is in receipt of a wide range of submissions from the two groups claiming to represent the Nation:

(1) Briefing from groups seeking recognition for either the six-member Nation 2006 Council or the Unity Council submitted in response to the former Eastern Regional Director's letter of May 15, 2014 requesting this briefing;

(2) A letter dated September 2, 2014 from David DeBruin 4 requesting that the results of the Cayuga Nation Campaign of Support be " reviewed and verified" by the BIA' s Division of Tribal Government Services;

(3) A letter dated September 17,2014 signed by Brenda Bennett, Samuel Campbell, and Justin Bennett representing the Cayuga Nation Turtle Clan stating that the TUt1le Clan is not at this time participating in either of the Nation's councils, attaching a letter dated September 14, 2014 from Brenda Bennett, Samuel Campbell, and Justin Bennett to the Cayuga Nation Unity Council stating that the Turtle Clan of the Cayuga Nation "secedes from the Unity Council";

(4) A letter dated October 7, 2014 from David DeBruin describing the withdrawal of the Turtle Clan from the Unity Council;

(5) A letter dated November 6, 2014 from Karl Hill to the Chairman of the National Indian Gaming Commission (NIGC) requesting that the NIGC withdraw approval of "Mr. Halftown's gambling enterprise until and unless it is validly authorized by the Cayuga Nation pursuant to Cayuga law";

(6) A letter dated November 13, 2014 from David DeBruin arguing that both sides to this dispute agree that various matters pending before BIA require a determination as to whom BIA will treat as the Cayuga Nation's leadership;

(7) A letter dated December 2, 2014 from William Jacobs and Samuel George describing Clint Halftown, Tim Twoguns and Gary Wheeler as "former leaders," objecting to the former leaders' argument that a public relations campaign demonstrated valid support for the former leaders' government under Cayuga law, and calling on BIA to recognize the Cayuga Nation Unity Council;

(8) A letter dated December 9, 2014 from David DeBruin asserting the need for at least an interim recognition decision;

(9) A letter dated December 24, 2014 from David DeBruin demanding that BIA render a decision in the Nation ' s leadership dispute or at a minimum extending interim recognition to the tribe's last undisputed leadership, and invoking the right to appeal a decision withheld pursuant to 25 CFR 2.8 if the BIA did not make a decision in the timeline provided in that provision;5

(10) A letter dated January 7, 2015 from David DeBruin describing the inability of the Nation "to access vital federal funds or enter into or modify contracts under federal programs from which its citizens are entitled to benefit" and highlighting "the Nation's inability to draw down the third year of previously-approved community services grant moneys";

(11) A letter dated February 16, 2015 , from Turtle Clan Mother Brenda Bennett and Justin Bennett and Samuel Campbell on behalf of the Turtle Clan expressing support for BIA recognition of the Unity Council ;

4 Mr. DeBruin represents the Halftown group.

5 The Region responded to this letter with a Jetter dated December 30, 2014 stating that a decision would be

rendered by February 20, 20 \5 , within the 60 days allowed for a decision under 25 CFR 2.8 .

3

(12) A letter dated February 16,2015, from David DeBruin disagreeing with the points made in the letter of the same date on behalf of the Turtle Clan;

(13) A letter dated February 17,2015 from Turtle Clan Mother Brenda Bermett on behalf of the Turtle Clan responding to the DeBruin letter from the previous day;

(14) Email dated February 20, 2015 fromMr. Clint Halftown to Johrma Blackhair reiterating support for the Nation 2006 Council.

Region officials have also met with both leaders from both factions in person in meetings that took place on October 21,2014 with the Halftown group and on January 27, 2015 with the Unity Council in Nashville, Termessee, and also on February 10, 2015 in Washington DC with the Halftown group.

We are aware that other Federal offices both within and outside the Depmiment of the Interior have also received correspondence from the parties to this dispute, that law enforcement has been involved in effOlis to defuse tensions at Nation offices and enterprises, and that both sides continue to press BIA to make a recognition decision in favor of their leadership. In accordance with the IBIA's decision in Cayuga Indian Nation v. Eastern Regional Director, 58 IBIA 171 (2014), the Region has been precluded from taking a position on the leadership of the Nation because until now we have not identified a separate matter requiring BIA action implicating the govenunent-to-government relationship, which would in tum trigger the need for the BIA to either (1) make a recognition decision based on our interpretation of Nation law or (2) extend interim recognition to the Nation' s last undisputed leadership.

As explained in Mr. DeBruin's January 7, 2015, letter, the Nation has not been able to draw down the third year of its existin~ multi-year Community Services Contract, which runs October 1, 2012 to September 30, 2015. Mr. DeBruin notes in his January 7, 2015 letter that "[t]he Nation's needs in this regard have become particularly acute, as it has been forced to devote the bulk of its resources to securing its properties and preventing the violent takeover of its enterprises." The statement of work for the Community Services Contract includes keeping an office open to provide "services . .. such as Certifications, Hunting and Fishing Licenses, Family Lineage's, Birth and Death Notifications, Education information, and provide Indian Child Welfare Information, and Health:' The Unity Council submitted a request to modify the Nation's Community Services Contract (Unity Council Memorandum dated June 26, 2014, at 19-22) and to replace the current individuals with drawdown authority in cormection with the Nation's ISDA contracts, including the Community Services Contract, with representatives of the Unity Council. Jd. at 15-19.

6 Mr. DeBruin's January 7,20 J5 letter describes this as "community services grant money." In addition to the issue of who has drawdown authority and authority to sign a modification for the Community Services Contract, Mr. DeBruin's letter of November 13 , 2014 and filings by the Unity Council have identified two other ISDA-related matters pending before the Region: (I) an application submitted by the Unity Council for a BIA Water Management Planning and Pre-Development Grant; and (2) a request by the Halftown group to modify the Nation's ISDA transportation contract that is opposed by the Unity Council. The Region has not been infonned that the Nation's need for a BIA decision on these contracts is urgent at the time this decision is being issued and therefore the questions about these contracts do not trigger the need for an interim recognition decision. However, this interim recognition decision of the Nation 2006 Council will also apply to the Nation'S other ISDA contracts with the Region in effect at this time.

4

The IBlA's decision in Cayuga Indian Nation, 58 IBlA at 184 makes clear that the mere administration and funding of an existing ISDA contract between the BlA and the Nation is not an adequate predicate for a recognition decision. Nevertheless, the decision also acknowledges that a request to change the designated tribal representative for an existing contract, such as "to change the authority for requesting drawdowns or to change where such drawdowns are to be directed," triggers the need for a federal leadership determination in appropriate circumstances. Id. In Cayuga Indian Nation , the IBIA found that in 2011 there had been no need for such a determination because "[n]o such [drawdown] request [was] incorporated" in the Unity Council's submissions. Id.

The Unity Council's request to change the drawdown authority for the Nation's ISDA contracts has been pending since March 2014. See Unity Council Memorandum dated June 26, 2014, at 15-16. See also David DeBruin letter of November 13, 2014 (referencing dispute over which party to the Nation leadership dispute has drawdown authority in connection with ISDA contracts). The Region has refrained from making any recognition decision until now in hopes that this dispute would be resolved by the Nation. The Region has determined, however, that it can wait no longer to fulfill BIA's obligation to release funds under the Community Services Contract, and therefore must issue an interim recognition of a governing body for the Nation so that the Nation's designees may sign contract modifications adding funds for this fiscal year and draw down the funds provided under the Community Services Contract and the Nation's other ISDA contracts.

In situations in which there is a dispute over leadership at a tribe, BIA's policy is to not interfere with tribal dispute resolution procedures. See e.g. Hamilton v. Acting Sacramento Area Director, 29 IBlA 122, 123 (1996) ("[T]he determination of tribal leadership is quintessentially an intratribal matter raising issues of tribal sovereignty, and therefore the Department should defer to tribal resolution of the matter through an appropriate tribal forum, including the normal electoral process."). But as the IBIA held its January 2014 Cayuga Indian Nation decision, " . . . at least since 1996, the Board has recognized that BIA has the authority to make a determination on tribal leadership ' when the situation [has] deteriorated to the point that recognition of some government was essential for Federal purposes.'" Cayuga Indian Nation, 58 IBIA at 179 (quoting Wadena v. Acting Minneapolis Area Director, 30 IBIA 130, 145 (1996)). And it is well-established that in executing responsibilities for calTying on government relations with a tribe and providing day-to-day services, BIA may not effectively create a hiatus in tribal government by simultaneously recognizing two tribal governments or declining to recognize any tribal government. Goodface v. Grassrope, 708 F.2d 335, 338-39 (8th Cir. 1983).

The Region has detelmined that it has a need to identify the Nation's leadership in order to prevent a hiatus in the government-to-government relationship with the Nation; the extended period during which we have not released funding under the Community Services Contract has created an urgent situation requiring a BIA decision. See Cliv Dore v. Eastern Area Director, 31 IBIA 173, 174 (1997) (holding that interim recognition decisions should only be made by the BIA in urgent circumstances). Having determined that a recognition decision is required in order to ensure that the BIA's contractual obligation to fund the activities described in the Community Services Contract can be met, the Region has considered carefully whether tribal fora for resolving this dispute are exhausted and also whether under the circumstances, an interim recognition of the last previously undisputed government would be most appropriate.

5

When an intra-tribal dispute has not been resolved and the BlA must deal with a tlibe for government-to-goverrunent purposes, the BlA may recognize the last undisputed tribal leadership on an interim basis. See e.g. Rosales v. Sacramento Area Director, 32 IBlA 158, 167 (1998); Poe v. Pacific Reg;onal Director, 43 IBlA 105, 112-13 (2006). The Nation 2006 Council is the council whose authorities were challenged in a previous case that led to an IBlA decision involving the Nation. The IBlA noted in that decision that "no party [to the appeal] directly challenges the six-person composition of the [2006] Council.". Samuel George et al. v. Eastern Regional Director, 49 IBIA 164, 175 (2009).7 Accordingly, as the Nation 2006 Council (with Clint Halftown as Nation representative) is the last undisputed tribal leadership, BIA recognizes this council on an interim basis.

The material submitted by the Turtle Clan members of the Unity Council in their September 14 letter indicating that they are now not aligning with either faction, and then more recently on February 16, 2015 indicating that they would support a BlA recognition of the Unity Council underlines the sudden shifts in aligrunent that render it inappropriate for the BlA to take steps that could intrude in the Nation's ongoing goverrunental dispute and internal Nation decisiorunaking. The issues that have been raised repeatedly over the last decade and that continue to plague the Nation are internal tribal matters that ultimately can be resolved only by the members of the Nation. The Region has determined that it should refrain for a while longer from making anything more than an interim recognition decision in the hope that time will permit these two factions to reach a resolution that provides the Nation with the strong leadership that it needs. With the Turtle Clan not participating in the Unity Council,8 with three members of the Nation 2006 Council allied with the Unity Council, and with no clan mothers supporting the Halftown group, there appear to be serious questions about the status of both of these groups. The Nation needs to come together to figure out a way forward. The BIA cannot do this difficult work for the Nation.

The Region emphasizes, however, that this interim decision should not be interpreted as a rejection of the possibility that BIA may at a later time conclude that Mr. Halftown, Mr. Twoguns, and Mr. Wheeler have been removed from the Nation's Council pursuant to applicable Nation law. The Region notes its disagreement with arguments made by the Halftown group in the briefing leading up to the January 2014 Cayuga Indian Nation IBlA decision that the doctrine of res judicata in any way precludes the BlA from later coming to its own conclusion based on an interpretation Nation law about the rightful leadership of the Nation. The Nation must interpret its own law and the BlA must defer to this interpretation; the Nation is not bound by determinations made previously by the Federal goverrunent. Previous BlA interim recognition decisions of previously undisputed councils, of course, are not interpretations of Nation law even on their face.

7 The IBIA also emphasized that because the composition of the council was not challenged in the appeal, its decision was not to be read as "an independent determination of the composition of the Councilor its proper organization among the clans, which remains a matter for the Nation to decide." George, 49 IBIA at 188. 8 The Turtle Clan letter dated February 16, 2015 reiterated that the Turtle Clan leadership signing the letter "[bas] positioned ourselves as a neutral party willing to work witb anyone who is serious about establishing a fair, stable and peaceful Cayuga Nation." (Turtle Clan Letter at p. 4, Conclusion section).

6

The fundamental disagreement between the two sides to this dispute over the role of the clan mothers in removing leaders creates a risk that the two sides may not be able to come to an agreement over the removal process for Council members. The BIA cannot, in such a circumstance, throw up its hands and conduct all government-to-government relations with the Nation 2006 Council indefinitely. The Nation has not used elections to select leaders, relying instead upon customary processes based on a longstanding oral tradition and a commitment to government by consensus.9 At an appropriate time, if it appears that tribal fora for dispute resolution are exhausted, the BIA could, based on the record before it, make a decision on the merits of Nation law. This is not that appropriate time, and the Region hopes that the Nation will resolve this dispute itself before that time comes.

To summarize, an interim recognition such as this one should not be read as a determination of how individuals may be placed on or removed from the Nation's Counci1. For purposes of this decision, we are not attempting to interpret or apply Nation law and this decision is not to be interpreted as any statement regarding the merits of the claims made by the two sides to govern in accordance with Nation law. The Region believes that current circumstances do not warrant a decision on the merits of Nation law regarding who should be recognized, but this is not to say that those circumstances may not arise at a future time, conceivably when the time comes for the Nation to renew an ISDA contract.

Consistent with the requirements of Nation law, which all parties describe as requiring consensus decision making,1O as well as the ISDA II and IBIA precedent,1 2 the Region will request a consensus resolution of the Nation 2006 Council before entering into subsequent contracts. Furthermore, nothing in this decision prevents the Unity Council and other Nation citizens from continuing to advocate their view of Nation law and working towards a Nation Council that reflects that view. This interim recognition decision is intended to provide additional time to the members of the Nation to resolve this dispute using tribal mechanisms and prevent the need for the BIA to examine Nation law and make a subsequent determination based on the results of that examination.

We find encouraging the promise made by the Halftown group in the letter of December 9, 2014, committing that if BrA would issue an interim recognition decision, the Halftown group would agree "to work with the Department in any way [the Halftown group is] directed to find a more permanent solution." We understand that the parties to this dispute previously worked with the

9 For a discussion of Nation law as an oral tradition based on consensus, see Samuel George v. Eastern Regional Director, 49 !BrA 164, 167 (2009). 10 See i.e. Samuel George v. Eastern Regional Director, 49 !BIA 164, 165 (2009) (describing position of Mr. Halftown "that, under Cayuga law and tradition, 'consensus' requires unanimity and is achieved only when all of the members of the Nation's Council are 'of one mind. "'); September 17, 2014 letter of Turtle Clan ("The key principle of consensus is provided in the Great Law of Peace."); October 7, 20 J 4 letter on behalf of the Halftown group ("BIA cannot disregard the broad consensus within the Nation in support of Mr. Halftown and Mr. Twoguns.") ; November 6,2014 letter of the Unity Counci I ("[T]here has been no consensus Council approval of [a Cayuga Nation enterprise] as required by our law."). 11 25 U.S.CA. 450f(a)(I) requires a tribal resolution before the B1A can enter into a contract under the Indian Self-Determination Act. 12 In George, 49 /BIA at 193, a case involving the same parties as the current dispute, the !BJA stated in that "the Regional Director is rree to question whether any matter presented to him represents a consensus position of the Nation."

7

Department of Justice's Office of Justice Services in efforts to mediate a resolution to this dispute, and we strongly encourage renewed efforts at mediation and would be happy to seek further assistance from the Depmiment of Justice. Additionally, we wish to make all parties aware of the existence of the Department's Office of Collaborative Action and Dispute Resolution. We are keenly aware of the risk of interfering in the internal affairs of the Nation, but we would be pleased to work with both sides to obtain a mediator and to establish a process for resolving this dispute.

Finally, in response to the request from Mr. DeBruin dated September 2, 2014, we are aware of no applicable authority that provides for verification of election results or allows BIA to provide any independent confinnation of results of a "Campaign of Support" under these circumstances. Thus, we decline to verify the results. Our refusal should not be understood to suggest that we disbelieve that the Campaign of Support shows what is alleged. Rather, this was a procedure undertaken to assist tribal members in better understanding the views of their fellow citizens on certain issues of concern to the Nation. Its significance is purely a matter of Nation law and policy, upon which it would not be appropriate for BIA to intrude. We note that the Unity Council stated in its December 2, 2014 letter that the Campaign of Support has no place in Nation law. We also note that Mr. Halftown rejected the application of majority rule principles to Cayuga governance in previous disputes. See George, 49 IBIA at 168. The Nation needs to come to a common understanding of what role, if any, a campaign of support should play in the selection or retention of its leadership.

Because this letter communicates a decision of this office to recognize on an interim basis the Nation 2006 Council as well as to deny a request made on behalf of the Halftown group for verification of the Campaign of Support, we provide notice of appeal rights and note that, as explained in the notice below, this decision does not become final for the Department of the Interior until the expiration of the 30 day appeal period. Additionally, we note that because of our contractual obligation to release funds under the Community Services Contract, should there be an appeal, we will file a motion before the Interior Board of Indian Appeals to place this decision into immediate effect.

Appeal Rights

This decision may be appealed to the Interior Board of Indian Appeals, 801 North Quincy Street, MS-300-QC, Arlington, Virginia 22203, in accordance with the regulations in 43 CFR 4.3104.340. Your notice of appeal to the Board must be signed by you or your attorney and must be mailed within 30 days of the date you receive this decision. Your notice of appeal must be original; no facsimile copies (faxes) will be accepted. The notice of appeal should clearly identify the decision being appealed. If possible, attach a copy of the decision. You must send copies of your notice of appeal to (1) the Assistant Secretary - Indian Affairs, 4140 MIB, U.S. Department of the Interior, 1849 C Street, N.W., MS 4141, Washington, D.C. 20240, (2) each interested party known to you, and (3) this office. Your notice of appeal sent to the Board must certify that you have sent copies to these parties. If you are not represented by an Attorney, you may request assistance from this office in the preparation of your appeal. If you file a notice of appeal, the Board will notify you of further appeal procedures. If a notice of appeal is not timely filed, this decision will become final for the Department of the Interior at the expiration of the thirty (30) day appeal period. A timely appeal will stay this decision. No extension of time can be granted for the filing of the notice of appeal.

8

This letter is being provided to the two addresses of the Cayuga Indian Nation of which the Region is aware based on recent letterhead, as well as attorneys that have previously and recently represented the respective parties to this leadership dispute to BIA' s knowledge. The recipients are hereby advised that the addressing of this letter is subject to the same caveat set forth in the Cayuga Indian Nation decision. See Cayuga Indian Nation, 58 !BIA at 171 n. 1. If any of the attorneys to which this letter was sent are no longer acting as counsel in this matter, please so advise and the Region will remove that name and address from the mailing and distribution list.

Sincerely,

Tammie Poitra Acting Regional Director Eastern Region

9