Analysis of Judge Rogers’ Dissent in MichGo v. Kempthorne

Yesterday’s per curiam opinion in MichGo v. Kempthorne, while very, very important to the Gun Lake Band and other Michigan tribes, did not break any new ground. It was the third time in recent years that citizens groups challenged the Secretary of Interior’s decision to take land into trust for gaming purposes for the three southwest Michigan Potawatomi tribes (the other two were TOMAC v. Norton and CETAC v. Kempthorne). Each of the challenges raised NEPA and constitutional claims of very similar character. Each time it was relatively easy for the D.C. Circuit to dispose of these arguments, which some argued bordered on frivolous.

But there is a strong threat to the future of tribal property contained in these cases.

The constitutional challenge is that Section 5 of the IRA (25 U.S.C. 465) is an unconstitutional delegation of Congressional power to the Secretary of Interior. Section 5 allows the Secretary, at his discretion, to acquire land in trust for Indians and Indian tribes. If this discretion is absolute, then it is a violation of the separation of powers inherent in the Constitution. But until yesterday, the constitutional challenge did not garner a single vote in any of the three Potawatomi cases. In fact, though this constitutional challenge has been raised by states and localities repeatedly since the early 1980s, it has not garnered a single vote from a federal judge since 1996, when Justice Scalia dissented from a GVR in United States v. South Dakota, 519 U.S. 919 (1996). The Supreme Court recently granted cert. in Carcieri v. Kempthorne, another of these challenges, but declined to hear the constitutional challenge.

Perhaps the reason for the recent success rate in this area for the government is that the DOI took the Eighth Circuit opinion in South Dakota declaring Section 5 unconstitutional seriously. As a result, the DOI promulgated a regulation providing that the Secretary’s decision on whether to take land into trust is subject to judicial review (25 CFR 151.12(b)). Apparently, it had been the Secretary’s position that such decisions were not subject to appeal. Moreover, what is unwritten about the aftermath of this case is that the Secretary was in the process of promulgating comprehensive regulations on trust acquisitions for gaming purposes, regulations that the Bush administration nixed in 2001 and which are still on the back burner. These proposed regulations likely contributed to the Court’s decision to deny vacate the CA8 decision (over Justice Scalia’s dissent) in South Dakota. See generally, US Cert Petition in DOI v. South Dakota (I’ll post a copy of this cert petition later when I get a better internet connection, dang that Grand River Cafe!).

What’s unsettling about Judge Brown’s dissent is what is new in the nondelegation analysis since the last time this challenge has been raised — the January “Artman guidance” on trust acquisitions for gaming purposes. The Artman guidance is the Department of Interior at its most cavalier, issuing what amounts to a major regulatory change in the form of an informal letter to BIA Gaming Management staff. Judge Brown quotes this letter as such, “The decision to take land into trust … is discretionary with the Secretary.” Slip op. at 8 (Brown, C.J., dissenting). She implies that the “commutable” distance standard may be arbitrary.  This is the kind of talk that came out of the Secretary’s office prior to 1996. The fact that the federal courts have bought the argument in nearly all cases likely contributes to Judge Brown’s sense that there’s a nondelegation doctrine violation.

Consider Judge Brown’s point of view (assuming I’m right here). The Artman guidance suggests that, while judicial review is possible, it can’t be very probing because Section 5 grants such broad discretion to the Secretary. The Secretary may be forced to defend the decision, but the Secretary will argue that the judicial review is mere sugar-coating, and there could never be a legitimate federal court decision overuling the Secretary’s discretion under Section 5. That’s a violation of the nondelegation doctrine, in sort of a backwards way.

Remember what will activate conservative, activist judges — the possibility that the Secretary will take land in your backyard into trust without your consent and prop up a casino, or a toxic waste dump, and make you pay more taxes to local governments as a result.

The Secretary’s arrogant display of power in the Artman guidance is coming back to haunt the Secretary, but only in this one vote. Luckily, the Supreme Court left this question alone, but the next time, tribes may not be so lucky. The Secretary’s arrogance in the way it defends Section 5 in court, the way it applies Section 5 in practice, and the Secretary’s refusal to promulgate regulations after more than a decade is setting Indian Country up for disaster.

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