Turtle Talk

Here is Judge Kahn’s order in New York v. Salazar (New York v Salazar DCT Order), the companion case to Oneida County v. Salazar. Once again, Judge Kahn rejects the nondelegation doctrine challenge, as well as Tenth Amendment and IGRA-related challenges. Also, and perhaps a more interesting development, the court rejected the State’s arguments relating to whether OIN is eligble for a trust acquisition.

The first argument was that OIN rejected the Indian Reorganization Act in 1935:

The ROD indicates that the OIN voted to reject the IRA but does not address whether the vote satisfied the statutory requirement. See Siegfried Aff., Ex. A. at 33 (Dkt. No. 57, Attach. 3); OIN’s Statement of Facts ¶ 1 (Dkt. No. 84, Attach 9). It is, therefore, an issue of fact whether the OIN validly voted to reject the IRA. However, it is unnecessary to decide whether the OIN rejected the IRA, as Congress enacted the Indian Land Consolidation Act (“ILCA”), 25 U.S.C. § 220214 (“Section 2202”) to amend or repeal any possible Section 478 trust land disability. See 25 U.S.C. § 2202.

The second relates to the Secretary of Interior’s position (first raised in the Carcieri litigation) that the Indian Land Consolidation Act amendments allow for a tribe potentially affected by Carcieri to be eligible for trust acquisitions:

A principle purpose of both the IRA and ILCA was to restore Indian economic life through expanding tribal land bases. The IRA was promulgated in 1934 as “[a]n Act to conserve and develop Indian lands and resources.” 48 Stat. 984 (1934). “The intent and purpose of the [IRA] was ‘to rehabilitate the Indian’s economic life and give him a chance to develop the initiative destroyed by a century of oppression and paternalism.’” Mescalero Apache Tribe v. Jones, 411 U.S. 145, 152-54 (quoting H.R. Rep. No. 1804, 73d Cong., 2d Sess., 6 (1934)); see also Morton v. Mancari, 417 U.S. 535, 542 (1974) (“The overriding purpose of the [IRA] was to establish machinery whereby Indian tribes would be able to assume a greater degree of self-government, both politically and economically”). ILCA was subsequently enacted in 1983 to further effectuate this purpose by, inter alia, removing the Section 478 disability and expanding the reach of the IRA and Section 465, specifically. See H.R. Rep. No. 97-908, 7 (1982) (“Section 203 [25 U.S.C. § 2202] extends the provisions of section 5 of the Act of June 18, 1834 [i.e., the IRA] to all tribes.”).
Restricting the definition of “tribe” under Section 2201(1) to only include tribes for which the
United States already holds land in trust would vitiate the very purpose and intent of ILCA.

This is the first court to address this question, and they accepted the Secretary’s position. Very interesting.