Turtle Talk

Indianz reports that a plethora of lawsuits will be filed against Interior’s decision to take land into trust for the Oneida Indian Nation of New York.

Bear in mind that (in my limited understanding) much of the land in question here is the same land in question in the City of Sherrill v. Oneida Indian Nation case from 2005. Unfortunately (we now know), the Nation sought to avoid state and local taxation and regulation on that land when it was held in fee simple under federal Indian law principles. Those principles supported the OIN, but only as far as the Supreme Court, which reversed.

Now the OIN is pursuing the path they (perhaps, in hindsight) should have pursued all along — asking the Secretary to take the land into trust. So far, they have been successful, which was no easy feat given the mountain of documentation required to convince the Secretary, but several years have passed since this started, and there might be a new legal climate on the constitutionality of the fee to trust statute, 25 U.S.C. 465.

Perhaps as early as next fall, the Supreme Court might rule in Carcieri v. Kempthorne that the Secretary has no authority to take land into trust for tribes not recognized in 1934. After that, the Oneida case is the kind of case that the Supreme Court might be willing to use to decide whether or not the fee to trust statute is unconstitutional on its face. I would be surprised, because a successful challenge to the fee to trust statute likely would require the Court to go in depth into its nondelegation doctrine and/or Tenth Amendment jurisprudence, areas in which the Roberts Court has not expressed much interest.

We’ll see.