Here is the unpublished opinion in Central New York Fair Business Assn. v. Jewell (PDF).
Briefs:
Lower court materials here.
fee to trust
Court Permanently Enjoins County from Taxing Poarch Band’s Trust Lands
BIA Acquires Pe’Sla Property in Trust for Four Tribes
Here is the decision in State of South Dakota v. Great Plains Regional Director, Bureau of Indian Affairs:
An excerpt:
For the reasons below, I affirm the Regional Director’s Decision to accept Pe’Sla in trust. The Regional Director properly determined that he had the statutory authority to accept Pe’Sla in trust pursuant to the IRA. Next, Department policies clearly provide the Regional Director with authority to accept Pe’Sla in trust due to its location within the BIA Great Plains Region. Finally, I reject the State’s argument that the Regional Director did not properly consider the relevant criteria included at 25 C.F.R. §§ 151.10 and 151.11.
Feds Acquire Indiana Land in Trust for Pokagon Band
Here:
Guest Post — Frank Pommersheim: A Short Inquiry into Pe’ Sla: History, Public Policy, and Moral Imagination
A Short Inquiry into Pe’ Sla: History, Public Policy, and Moral Imagination
By Frank Pommersheim
In 2012, several Lakota tribes, including Rosebud, Crow Creek, Standing Rock, and the Shakopee Mdewakanton Sioux of Minnesota purchased a 2,400 acre ranch on the open market. The purchase price was about $9 million dollars. The land is located within the western part of South Dakota in a rural portion of Pennington County.
The land is also located within the sacred Black Hills and the historical Great Sioux Nation as recognized in the Fort Laramie Treaty of 1868. The Lakota name for this area is Pe’ Sla or the ‘Heart of All That Is.’ Tribal plans for the land include historical, cultural, and religious activities, as well as sustainable buffalo ranching.
The Tribal path best suited to these cultural, spiritual, and economic activities involves placing this land into ‘trust’ status. This process is authorized by § 5 of the Indian Reorganization Act of 1934. This ‘land into trust’ provision is specifically designed to permit tribes to reacquire some of their land base that was severely reduced (in the amount of 90 million acres) during the time of treaty violations and the allotment process that ran from 1877-1934.
The two major effects of placing land into trust are that the land is no longer subject to local property tax and it becomes part of ‘Indian country’ as defined by federal law at 18 U.S.C. § 1151. This latter designation establishes an area of substantial federal and tribal jurisdiction and minimal state authority.
The process for placing land into trust requires a tribal application and review by the Bureau of Indian Affairs. This administrative process requires notice to the public, including county and state governments. Interested parties may also submit written arguments in favor or in opposition to the tribal application.
The State of South Dakota filed written comments in opposition to the Tribal application. The essence of the state’s arguments were the loss of real property tax revenue in Pennington County and the creation of confusing ‘checkerboard’ jurisdiction in the affected area. These arguments were rejected by the Regional Director’s written decision of March 10, 2016.
Key elements of the Bureau of Indian Affairs administrative decision include the following. The loss of tax revenue in Pennington County is miniscule. The loss of tax revenue in the amount of $78,887 is .00106% of the total county tax revenue of $7,416,900,664. The potential jurisdictional problems are real enough, but have already been largely dealt with through a signed memorandum of understanding entered into between the Tribes and Pennington County. This memorandum of understanding deals with both criminal and civil jurisdiction, not simply in broad generalizations, but also in practical terms of cross-deputization and shared resources. The BIA decision also emphasizes the important fact that the local government of Pennington County, the government most directly affected by this application, did not oppose it. Pennington County submitted no arguments in opposition.
Context is also significant and relevant. In the Pe’ Sla application, the State of South Dakota not only opposes the tribes, but is in direct opposition to its own local county government. This is striking and profoundly jarring. The usual South Dakota refrain to keep the federal government out of the loop is now complemented by a desire to keep local government out too.
The Pe’ Sla case is not South Dakota’s first land into trust rodeo. Indeed, the State of South Dakota has vigorously litigated land into trust cases for the past dozen years. The State has opposed land into trust applications by the Lower Brule Sioux Tribe, the Sisseton-Wahpeton Tribe, the Crow Creek Sioux Tribe, and the Flandreau Santee Sioux Tribe. The State lost all four of these cases, despite their appeals all the way to the Eighth Circuit Court of Appeals. The State even sought review by the United States Supreme Court in the Lower Brule case, but its petition was denied.
Despite this, the State does not seek conversation or dialogue with the Tribes on these matters. It seeks no common ground. Apparently, it just prefers to litigate, to use its resources without qualm, and to go as far as necessary to ‘win,’ except that the State has yet to ‘win.’
With this useful history so close at hand, one might think that it is a good time to begin a respectful conversation and public policy dialogue. Yet the only recent ‘talk’ has been Governor Daugaard’s hurtful and ill-informed comments on the Pe’ Sla case. During his appearance before the Rosebud Sioux Tribe Council to inform the Tribe of the State’s decision to appeal the case, he opined on the Tribal failure to understand their mistake:
I also oppose the Pe’ Sla land into trust for this reason. You have many Tribal members who have needs here on the Reservation. And if Grandma needs housing or if Grandma needs transportation . . . Grandma doesn’t need you to spend tribal resources on a park land setting for religious use or for buffalo agricultural use. Grandma needs housing. Grandma needs food. And so that’s your decision to make . . . not mine. That’s yours to make. But I don’t support it . . . For that reason.
While many people consider Governor Daugaard a good and decent man, his comments follow the all too common trajectory of many ‘leaders,’ who have gone before him. Such state (and federal) ‘leaders’ know what is best for Indians without ever talking to them. There is no need for conversation, respect, or reconciliation.
Just take care of ‘Grandma’ and forget about your religious heritage. Take care of ‘Grandma’ and forget about sustainable buffalo ranching. Just stay back and accept the unjust and impoverished status quo. Don’t bother us with your efforts to (re)acquire a tiny portion of your sacred lands and to initiate a new sustainable buffalo economy. Just stay back. Just stay in your place.
The State of South Dakota is just repeating itself. Just playing the same old hand of opposition to tribes. Yet repeating the past is not inevitable. Co-operative possibilities are not difficult to imagine. They include such things as a joint park and permanent exhibit that deals with the history of the Black Hills, cooperative agricultural ventures involving buffalo, or a jointly run tourism office.
South Dakota. Just turn your heart and mind around. Withdraw your appeal. Reset your political and moral compass. Imagine a better, more respectful, and more inclusive future. Good things are possible. As Basil Brave Heart wisely encouraged the Governor in the context of the name change of Harney Peak to Black Elk Peak, “When I talk to him, I will say I know you’re frustrated, but I wish you would join us in our celebration. I would appreciate it if you would embrace and celebrate with us on this great venture.” Celebration without litigation. South Dakota should think about it.
Fletcher — The Consequences Of Divide-And-Conquer: Carcieri Redux (Law360.com)
Here:
The Consequences Of Divide-And-Conquer: Carcieri Redux
In Carcieri v. Salazar, the U.S. Supreme Court held that the Narragansett Tribe was not “under federal jurisdiction” in 1934, and therefore the U.S. Department of the Interior could not acquire land in trust for the tribe. The DOI’s decision to acquire trust land for the Cowlitz Tribe is one of several controversial post-Carcieri trust acquisitions. Now comes a petition for a writ of certiorari to the Supreme Court from the challengers, Citizens Against Reservation Shopping v. Jewell.
Whether an Indian tribe was “under federal jurisdiction” in 1934 is rooted in complex tribal-federal histories. Congress passed the Indian Reorganization Act in 1934, and authorized the Interior Secretary to acquire land in trust. The statute states that the DOI can acquire land for “recognized Indian Tribe[s] now under Federal jurisdiction.” The federal government interpreted that language to mean tribes recognized at the time of a decision to acquire land for seven decades. In Carcieri, the Supreme Court held that “now” unambiguously meant at the time of the passage of the sct, rejecting the government’s interpretation. The federal government did not know in 1934 what tribes were “recognized” or “under federal jurisdiction,” or even what those terms meant. Carcieri has added additional — and highly complex — layers of analysis to federal trust acquisitions.
The DOI agreed to acquire land in trust for the Cowlitz Tribe for gaming purposes in 2011. Through the regular federal acknowledgment process, 25 CFR Part 83, the DOI acknowledgedthe tribe in 2002. The acknowledgment process requires petitioning tribes to demonstrate they existed as a distinct tribal community since 1900 or earlier. The Cowlitz tribe entered into failed treaty negotiations with the United States in 1855, but according to the DOI and the D.C. Circuit, the federal government continued a government-to-government relationship with Cowlitz from then into the 20th century. It seems plausible that the government “recognized” the tribe, whatever that may mean (to channel Felix Cohen, who wrote exactly that phrase in 1934 to describe this statute). The court concluded in Confederated Tribes of the Grand Ronde Community v. Jewell that the statute is ambiguous, and the DOI’s interpretation is entitled to Chevron deference.
That the case involved a challenge by another Indian tribe, Grand Ronde, to the Cowlitz matter begs the question about the interests at play in a challenge to a trust acquisition. Grand Ronde’s share of the gaming market in northern Oregon stands to suffer some if the Cowlitz Tribe commences gaming operations closer to Portland. Siding with local units of government, a local anti-Indian community group, and other non-Indian gaming interests, Grand Ronde led the effort to use Carcieri to defeat Cowlitz and the Interior Department. Interests opposing Indian gaming could not have drawn up a divide and conquer strategy any better. More broadly, the lobbying effort to persuade Congress to “fix” the Carcieri decision with an amendment to the 1934 Act is similarly stymied by intertribal conflicts, with some established tribal gaming interests quietly lobbying against a fix. Now that the case is headed to the Supreme Court, the Grand Ronde tribe has dropped out, as have the local government entities, but their anti-Cowlitz partners are taking up the slack in their stead.
It is only a matter of time before Carcieri-based challenges to fee-to-trust acquisitions by the DOI reach the Supreme Court given the financial stakes involved. There are other cases in the pipeline involving tribes such as the Oneida Indian Nation of New York and the Ione Band of Miwok Indians. More cert petitions may soon be forthcoming.
Barring acquiescence by the United States or another unusual development, it is unlikely the court will grant review in the Cowlitz matter. Normally, the court does not grant review in matters of limited importance unless there is a clear circuit split on federal law. Other than a federal district court decision involving the Mashpee Wampanoag Tribe (currently on appeal in the First Circuit), the Interior Department’s trust acquisitions challenged under the Carcieri decision have been affirmed. In short, the D.C. Circuit’s decision squares with the outcomes in prior cases in the Second and Ninth Circuits. Even if the outcomes had been different, the applicable law is not currently in doubt. As noted above, each tribe’s history is different, rendering every fee-to-trust decision extremely fact-specific (or factbound, in the court’s parlance). As I noted in my paper, Factbound and Splitless, any cert petition labeled “factbound and splitless” has virtually no chance of being reviewed by the Supreme Court.
That said, my research also shows that the Supreme Court is more likely to grant certiorari in Indian law matters, which involve unique federal interests, and (unfortunately for tribal interests) in cases where tribal interests and their federal partner have prevailed below. The court might conclude on its first look that the Interior Department or the federal circuit courts are simply wrong on the law, and docket the case for review.
In any event, the Carcieri decision spawned a great deal of litigation in an area — tribal gaming — that has important financial stakes, as well as the possibility of inter-tribal conflict. While the Cowlitz matter might not be the vehicle to answer the ultimate question of the meaning of Carcieri and the Department of the Interior’s response, there will be similar cases in the future, perhaps leading to inter-tribal sparring at the Supreme Court.
Matthew L.M. Fletcher is a professor of law at Michigan State University College of Law. Fletcher is the primary editor and author of the leading law blog on American Indian law and policy, Turtle Talk.
The opinions expressed are those of the author(s) and do not necessarily reflect the views of the firm, its clients, or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.
Citizens Against Reservation Shopping v. Jewell Cert Stage Materials
Cert Petition:
Citizens Against Reservation Shopping v. Jewell
Questions presented:
1. Whether, to have been a “recognized Indian tribe now under Federal jurisdiction” in 1934, a tribe must have been “recognized” at that time.2. Whether, to have been “under Federal jurisdiction” in 1934, a tribe must have been located in Indian country – that is, on land over which the United States exercised jurisdiction to the exclusion of State jurisdiction.
Lower court materials here.
UPDATE:
2nd Circuit Affirms Oneida Fee into Trust Judgment
Here are the materials in the matter of Upstate Citizens for Equality v. United States of America, 15-cv-01688 (Nov. 9, 2016):
Doc. 151 Response Brief of the Federal Defendants-Appellees
Link to previously posted lower court materials here.
Press Release: Obama Administration Exceeds Ambitious Goal to Restore 500,000 Acres of Tribal Homelands
Date: October 12, 2016 Contact: Interior_Press@ios.doi.gov
(AS-IA) Nedra Darling 202-219-4152
Administration makes good on promise to place at least one half million acres of land into trust for tribal nations, working to make tribal communities whole again
WASHINGTON – U.S. Secretary of the Interior Sally Jewell and Principal Deputy Assistant Secretary – Indian Affairs Lawrence S. “Larry” Roberts today announced that the Obama Administration has exceeded its goal of placing half a million acres of tribal homelands into trust for federally recognized tribes.
“Restoring tribal homelands has been a pillar of President Obama’s commitment to support tribal self-determination and self-governance, empowering tribal leaders to build stronger, more resilient communities,” Secretary Jewell said. “The Administration broke the logjam on trust land applications in 2009 and has worked steadily, collaboratively and effectively to restore Native lands that will help strengthen tribal economies and make their nations whole again.”
The 500,000 acre goal was surpassed Friday when President Obama signed into law the bipartisan Nevada Native Nations Lands Act, which conveys more than 71,000 acres of Bureau of Land Management and U.S. Forest Service lands to the U.S. Department of the Interior to place into federal trust status for six Nevada tribes. The tribes will use their newly acquired lands to expand housing, provide economic development opportunities and promote cultural activities for and by their tribal members.
“Secretary Jewell announced early on a goal of restoring 500,000 acres to Indian Country by the end of the Obama Administration and we view this as a meaningful start to correcting the enormous loss of tribal homelands Indian Country has endured,” Principal Deputy Assistant Secretary Roberts told tribal leaders at the opening session of the National Congress of American Indians’ 73rd Annual Convention in Phoenix, AZ earlier this week.
Roberts further said, “I want to thank the Bureau of Indian Affairs Director Mike Black for his implementation of this important policy, the Regional Directors and their staff for their hard work to make it a reality. While our fee-to-trust process remains rigorous and tribes must expend precious resources to address the Carcieri decision, tribes continue to prioritize the return of their homelands, investing their own resources to ensure a land base for future generations.”
Restoring tribal homelands has been a key part of the Obama Administration’s Indian Country priorities, representing a shift from historic federal policy that previously resulted in tribes losing millions of acres of land across the U.S. over several hundred years. Since 2009, the Bureau of Indian Affairs has processed 2,265 individual trust applications and restored more than 542,000 acres of land into trust. And in partnership with tribes and agency staff at all levels, Indian Affairs continues to process additional applications for land into trust.
As part of President Obama’s pledge to work nation-to-nation with tribal leaders to strengthen their communities and build their economies, the Administration also has overhauled antiquated leasing regulations to provide tribes greater control over their homelands and issued new regulations to allow the Interior Department to accept land into trust for federally recognized Alaska tribes, thereby advancing tribal sovereignty and closing a long-standing gap that had not extended this eligibility to Alaska Natives.
The Secretary of the Interior is authorized by the Indian Reorganization Act of 1934 to acquire land into trust for federally recognized tribes. Lands held in federal Indian trust status, which cannot be sold, alienated, or transferred to non-Indians or non-Natives, benefit their American Indian and Alaska Native tribal owners through federal programs for business development, housing, and environmental and cultural protection. Typical uses of trust land include governmental operations, cultural activities, agricultural/forestry activities, housing, economic development, social and community services, and health care and educational facilities.
Counterclaims against US and Poarch Band Dismissed in Tax Dispute
This is a continuation of Poarch Band of Creek Indians v. Hildreth, recently decided by the Eleventh Circuit.
Here are the materials in Poarch Band of Creek Indians v. Moore (S.D. Ala.):
An excerpt:
After due and proper consideration of all issues raised, and a de novo determination of those portions of the recommendation to which objection is made, the recommendation of the Magistrate Judge made under 28 U.S.C. § 636(b)(l)(B) and dated August 10, 2016 is ADOPTED as the opinion of this Court with the following exceptions. The Court does not adopt the recommendation to deny the Plaintiff’s Motion to strike Defendant Moore’s affirmative defenses numbered 4 and 5, but rather grants the motion to strike defenses 4 and 5 for the reasons set forth in Plaintiff’s Objections (Doc. 79). The report and recommendation is adopted in all other respects.
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