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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 13AV00209 ("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,"

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;
4
(2) A letter dated September 2, 2014 from David DeBruin 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;
Mr. DeBruin represents the Halftown group.

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 .

(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.

Mr. DeBruin's January 7,20 J 5 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.

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 intra
tribal 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.

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
7

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

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 J4 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
9

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 4.310
4.340. 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

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