federal recognition – Page 18

The Political Economy of the Carcieri Fix

October 17, 2011Matthew L.M. Fletcher2 Comments

Last week’s hearing on the ongoing question of whether Congress will “fix” the Supreme Court’s Carcieri decision was a different take than earlier hearings, but still completely ignores the elephant in the room.

The first hearings were naked pleas to reverse the Supreme Court’s decision on the grounds that the decision was just plain incorrect. The increased complexity of administration of fee to trust acquisitions for tribes possibly affected by Carcieri and Interior was the backdrop there. Now it is jobs and economic development, truly important factors.

But what was missing, and what likely guarantees there will never be a Carcieri fix, was the big gaming tribes. It is the big gaming tribes that divide Indian country on this question, and even though there are only a dozen, maybe two, in question … and they have an effective veto on a Carcieri fix.

Forget Rhode Island’s concern about having their ridiculously expensive Supreme Court victory stripped away, or some Senators’ concerns about “reservation shopping.” Senators views can be changed, especially when political expediency requires it. But the powerful Indian gaming tribes’ interests are economic. So the hearings are incomplete at best, and maybe a sham at worst, because the real interests can stay quiet on the record.

Intertribal gaming revenue sharing anyone? But even that might not be enough.

Federal Court Denies Muwekma Ohlone Tribe’s Objections to DOI’s Decision Not to Acknowledge Tribe

September 29, 2011September 29, 2011Matthew L.M. Fletcher2 Comments

Here is the opinion in Muwekma Ohlone Tribe v. Salazar (D. D.C.):

DCT Order Granting USA Motion for Summary J

And the materials:

Muwekma Motion for Summary J

Interior Cross-Motion for Summary J

Federal Court Defers Decision in Nisenan Maidu Tribe v. Salazar

September 28, 2011September 27, 2011Matthew L.M. Fletcher

The plaintiffs, who are seeking federal recognition under Hardwick v. United States, will seek individual relief under that case instead.

Here are the materials:

Plaintiff Motion to Proceed in Hardwick

DCT Order Deferring Case

Federal Circuit Revives Part of Samish Indian Nation Damages Claims against US in Federal Recognition Case

September 20, 2011Matthew L.M. Fletcher3 Comments

Here is today’s opinion in Samish Indian Nation v. United States.

An excerpt:

The issues on appeal before this court are ones of statutory construction. We must decide whether certain claims are premised on money-mandating statutes and are therefore within the jurisdiction of the United States Court of Federal Claims pursuant to the Tucker Act, 28 U.S.C. § 1491(a), and the Indian Tucker Act, 28 U.S.C. § 1505. The Court of Federal Claims dismissed for lack of jurisdiction over the claims brought by the Samish Indian Nation (“Samish”) because some of their allegations were not premised upon any statute that was moneymandating, and the allegations reliant on moneymandating statutes were limited by other statutes. We affirm the Court of Federal Claims’ decision that it lacked jurisdiction over some of the Samish’s allegations because the Tribal Priority Allocation (“TPA”) system is not money-mandating. We conclude, however, that the trial court’s ability to provide a monetary remedy under the State and Local Fiscal Assistance Act of 1972 (“Revenue Sharing Act”) is not limited by operation of the AntiDeficiency Act, 31 U.S.C. § 1341. We therefore reverse the trial court’s dismissal of the Samish’s Revenue Sharing Act allegations and remand for further proceedings consistent with this opinion.

Here are the briefs:

Samish Appellant Brief

Brief for the United States

Samish Reply

Lower court materials here.