federal recognition

Wilton Miwok Settlement Threatened by Possible Statute of Limitations Problem

March 4, 2010Matthew L.M. Fletcher

The case is Wilton Miwok Rancheria v. Salazar, and involves an agreement to take land into trust for the tribe (both the Me-Wuks and the Miwoks) for gaming purposes. After the settlement was entered and approved by the court, intervenors (Sacramento County and City of Elk Grove) argued that the suit came too late under 28 U.S.C. 2401(a).

A few years back in John R. Sand and Gravel, the Supreme Court said that the statute of limitations under section 2402 (allowing claims against the US in the court of federal claims) was jurisdictional and could not be waived. Two circuits have held that section 2401 is also jurisdictional. Perhaps the Quiet Title Act also is jurisdictional (section 2409).

In this case, the court followed Ninth Circuit precedent decided before John R. and held that section 2401 is not jurisdictional, but specially allowed for an interlocutory appeal to the Ninth Circuit for review, and stayed the judgment.

Here are the materials:

Wilton Miwok DCT Order on Motion to Vacate

Continue reading →

Akaka Bill Passes House

February 24, 2010Matthew L.M. Fletcher

News article here.

Mackinac Bands Constitution Developed

February 12, 2010Matthew L.M. Fletcher3 Comments

From Indianz:

The Mackinac Bands of Chippewa and Ottawa Indians of Michigan are asking the Bureau of Indian Affairs to be treated as a federally recognized tribe.

The Mackinac Bands are considered a part of the federally recognized Sault Ste. Marie Tribe of Chippewa Indians. But the bands say they are a distinct and self-governing tribe.

The bands wrote a new constitution to reflect their status.

Get the Story:

New Anishinabe Constitution presented (The Cheboygan Daily Tribune 2/12)

NYTs Editorial on the Shinnecock Recognition

January 3, 2010Matthew L.M. Fletcher

Pathetic. Rank hypocrisy, at the very least.

From the NYTs:

More than 200 years late — 31 if you count from the tribe’s petition — the federal government has acknowledged that the Shinnecocks of Southampton, Long Island, are an Indian tribe. Settling that question raises new ones. The Shinnecocks will almost certainly try to build a casino — they have been lobbying as hard for one as they have for recognition — but how big, and where?

The “where” is an especially interesting question. Casinos are usually built on reservation land. The Shinnecocks live on the East End of Long Island, a national depository of wealth, privilege and privacy. When the tribe jumped the gun a few years back and bulldozed part of its property for a bingo hall, the not-in-my-backyard opposition erupting from the dunes and privet hedges was ferocious. And that was just a skirmish.

That is probably why the Shinnecocks are exploring other sites in Suffolk County, at two New York racetracks and in the Catskills. But building an off-reservation casino is itself fraught with uncertainty and regulatory hurdles. The tribe could end up spending many years and lots of money chasing something that is a guaranteed winner only for lobbyists and consultants.

Casinos are also a magnet for tainted money and a handmaiden to addiction, crime and other social ills. That is why we would urge the tribe to spend its energy on finding other ways to leverage its valuable real estate.

A casino is, after all, only a means to an end — to economic vitality, greater respect, a better future for the tribe’s 1,000 members. The Shinnecocks are now in a much better position to pursue that dream. Lack of federal status did more than hamper the tribe’s quest for gambling riches. It also denied it access to federal programs for housing, health care and education.

The Shinnecocks have a long, proud history of self- governance, and advantages that poorer, more remote tribes can only dream of: geography, bargaining power and the support of state officials including Gov. David Paterson, who endorsed their quest for recognition. The good news on recognition would be even better if the tribe could foresee a future apart from slots and dice.

Kevin Maillard on the Shinnecock Recognition

December 17, 2009Matthew L.M. Fletcher

From the Faculty Lounge:

The Shinnecock Indian Nation ended its 30 year battle for federal recognition yesterday, with the Bureau of Indian Affairs approving the Long Island tribe’s petition. The small tribe of 1,066 people is located in Southampton, in the midst of wealthy beach communities.

This comes as a great victory for the Shinnecocks, who are one of the very few tribes who have emerged successful from the recognition process. Currently, there are 564 federally recognized tribes, and only 8 percent of these tribes have ever been individually recognized since 1960. Poor tribes with limited resources have trouble hiring lawyers, lobbyists, and consultants to guide them successfully through the process. The Shinnecocks paid at least $1.74 million since 2005 in their recognition effort.

The process is incredibly rigorous, with recognition standards often tautologically excluding groups whose conception of “tribe” differs from the federal governments. Many tribes, often Northeastern ones, do not fulfill requirements of “significant rates of marriage within the group” and relative isolation from nontribal members. Tribes historically situated near urban areas and those who have incorporated others as family have not been approved, most notably the Mashpee of Cape Cod.

Recognition criteria, as stated in 25 CFR 83.7, can be found here.

(Picture: Shinnecock oyster farming taken by Gordon Grant for the NYT.)

BIA Proposes to Extend Federal Recognition to the Shinnecock Indian Nation

December 16, 2009Matthew L.M. Fletcher

From the Nation’s counsel:

The Department of Interior today issued a positive Proposed Finding to extend federal acknowledgment to the Shinnecock Indian Nation. Under the federal consent decree governing the processing of the Nation’s petition, DOI must issue a final determination at some point between May 19 and November 13, 2010. (Given the consent decree terms, the date will likely be in the middle of this range.)

Congratulations should be extended to the Shinnecock Nation’s members and leaders, and the Nation’s team, all of whom have worked long and hard to get the federal bureaucracy to acknowledge what the Nation has always known (and what a federal court determined in 2005).

Of note, upon federal acknowledgment becoming effective, the Nation will be eligible to game under IGRA. The Nation’s Southampton, NY reservation, over which the State has continuously disclaimed jurisdiction, immediately will meet IGRA’s definition of Indian lands eligible for gaming.

DOI’s press release and the Proposed Finding should be available on the BIA’s website.

An excerpt:

It is readily apparent that the federal government’s failure to treat plaintiff as a recognized Indian tribe between 1969 and 1996 deprived plaintiff of many of the federal benefits enjoyed by other federally recognized Indian tribes during that time period. However, the relief plaintiff seeks is not available in the Court of Federal Claims. Indeed, if plaintiff is lagging behind some of its sister tribes as a result of the deprivation of federal benefits, its avenue for relief is with Congress.

Schaghticoke Petition for Rehearing En Banc before Second Circuit

November 27, 2009October 18, 2010Matthew L.M. Fletcher

Here — STNRehearingPetition091125

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