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fee to trust
Outstanding New Paper on Federal Trust Land Acquisitions by Frank Pommersheim
Frank Pommersheim has published an important new paper titled “Land Into Trust: An Inquiry into Law, Policy, and History” in the Idaho Law Review. A PDF is here:
Here is the introduction:
The land-into-trust policy of the Indian Reorganization Act (“IRA”) is an express legislative attempt to undo, or at least ameliorate, the massive loss of Indian land that resulted from the federal government’s allotment policy of the late nineteenth *520 and early twentieth centuries. The allotment policy occasioned a severe reduction in the national Indian land estate without any benefit to the affected Indians and tribes including the vaunted goals of assimilation and the reduction of poverty in Indian country. The extensive loss of land produced much economic hardship, cultural strain, and erosion of tribal governing authority.
The subsequent attempt of IRA law and policy to reverse this process of severe land loss raises significant questions about the ability of law, and Indian policy in particular, to repair history without creating new conflict that reprises, even deepens, old animosities. This article will survey and analyze this process from both a policy and empirical point of view. In addition, this piece will review the nitty-gritty administrative procedures for putting land into trust, the various procedural challenges to this process, as well as substantive legal challenges to the validity of the land-into-trust portions of the IRA, especially in the state of South Dakota. Finally, the article will tally the empirical results to date, and conclude by examining non-litigation strategies and solutions with an eye on their ability to meet the needs of all concerned.
HIGHLY recommended.
The Patchak Patch
See Press Release here.
Excerpt:
Today, Assistant Secretary-Indian Affairs Kevin K. Washburn issued for public comment a proposed rule designed to demonstrate the Administration’s commitment to restoring tribal homelands and furthering economic development on Indian reservations. The proposed rule will provide for greater notice of land-into-trust decisions and clarify the mechanisms for judicial review depending on whether the land is taken into trust by the Assistant Secretary for Indian Affairs, or by an official of the Bureau of Indian Affairs.During the public comment window, Indian Affairs will also conduct tribal consultation.
For the Bureau of Indian Affairs trust acquisition decisions, which are generally for non-gaming purposes and constitute the vast majority of land-into-trust decisions, the proposed rule will ensure that parties have adequate notice of the action and clarifies the requirement that exhaustion of administrative remedies within the Department is necessary to seek judicial review.
“The principal purpose of this proposed rule is to provide greater certainty to tribes in their ability to develop lands acquired in trust for purposes such as housing, schools and economic development,” said Assistant Secretary Washburn. “For such acquisitions, the proposed rule will create a ‘speak now or forever hold your peace moment’ in the land-into-trust process. If parties do not appeal the decision within the administrative appeal period, tribes will have the peace of mind to begin development without fear that the decision will be later overturned.”
Update from Interior:
Since the Obama Administration took office in January of 2009, the Department has approved more than 1175 applications for land into trust, including 12 for Indian Gaming, and the total acquisitions include more than 205,000 acres.
Ninth Circuit, on Reconsideration, Orders Interior Review of Gila Bend Act in Tohono O’odham Gaming Lands Appeal
Here are the materials in City of Glendale v. United States:
Arizona & Glendale En Banc Petition
The court’s syllabus:
The panel withdrew its prior opinion and published a superseding opinion affirming in part, and reversing and remanding in part, the district court’s summary judgment in favor of federal defendants in an action by the City of Glendale seeking to set aside the United States Department of Interior’s decision to accept in trust, for the benefit of the Tohono O’odham Nation, a 54-acre parcel of land known as Parcel 2 on which the Nation hoped to build a resort and casino.
The panel held the Gila Bend Indian Reservation Lands Replacement Act, read as a whole, was unambiguous and that § 6(c) of the Act created a cap only on land held in trust for
the Nation, not on total land acquisition by the tribe under the Act. The panel held that § 6(d) of Act was ambiguous as to whether Parcel 2, located on a county island fully surrounded by city land, was within the City of Glendale’s corporate limits. The panel held further that the Secretary of the Interior was mistaken in concluding that the term has a plain meaning, and remanded for the agency to consider the question afresh in light of the ambiguity the panel saw. Finally, the panel held that passage of the Act was within congressional power under the Indian Commerce Clause and was not trumped by the Tenth Amendment
News coverage here.
Previous panel materials here.
Federal Court Decides Cross-Motions for Summary J in Wyandotte Nation v. Salazar
Here are the materials:
Wyandotte Motion for Summary J
An excerpt:
Plaintiff Wyandotte Nation, a federally recognized Indian tribe (“the Nation”), filed this lawsuit against Kenneth Salazar, Secretary of the United States Department of the Interior (“the Secretary”), seeking an order from this Court compelling the Secretary to accept title to certain land and hold it in trust for the Nation’s benefit, as specifically required by Public Law 98-602, 98 Stat. 3149 (1984) (“P.L. 98-602”), under both the Administrative Procedure Act (“APA”), 5 U.S.C. § 706(a) and the Mandamus Act, 28 U.S.C. § 1361. The State of Kansas (“the State”) was permitted to intervene as of right under Fed. R. Civ. P. 24(a).1 This matter is before the Court on the Nation’s Motion for Summary Judgment (Doc. 60) and the Secretary and State’s cross-motions for summary judgment (Docs. 66, 69). The Court heard oral arguments on March 14, 2013, at which time the Secretary was directed to supplement the Administrative Record and the matter was taken under advisement. For the reasons explained in detail below, the Court denies the Nation’s motion and grants in part and denies in part the Secretary and the State’s cross- motions, retaining jurisdiction over the case until the agency issues a final decision on the Nation’s pending land-into-trust application.
Prior posts on this case here, here, and here.
Federal Court Holds Interior Secretary Retains Authority to Make Trust Land Acquisitions for Alaska Natives
Here are the materials in Akiachak Native Community v. Salazar (D. D.C.):
DCT Order Granting Summary J to Plaintiffs
Akiachak et al Motion for Summary J
Akiachak Supplemental Reply Brief
An excerpt:
Four tribes of Alaska Natives and one individual Native brought this suit to challenge the Secretary of the Interior’s decision to leave in place a regulation that treats Alaska Natives differently from other native peoples. The challenged regulation governs the taking of land into trust under Section 5of the Indian Reorganization Act, 25 U.S.C. § 465; it provides that, with one exception, the regulatory procedures “do not cover the acquisition of land in trust status in the State of Alaska.” 25 C.F.R. § 151.1. The plaintiffs argue that this exclusion of Alaska Natives-and only Alaska Natives-from the land-into-trust application process is void under 25 U.S.C. § 476(g), which nullifies regulations that discriminate among Indian tribes. The State of Alaska has intervened to argue that the differential treatment is required by the Alaska Native Claims Settlement Act (“ANCSA” or the “Claims Settlement Act”), which (on the State’s account) deprived the Secretary of the statutory authority to take most Alaska land into trust.
The Secretary disagrees, but nonetheless seeks to justify the regulation by reference to ANCSA. For the reasons explained below, the court concludes [2] that the Secretary retains his statutory authority to take land into trust on behalf of all Alaska Natives, and that his decision to maintain the exclusion of most Natives from the land-into-trust regulation violates 25 U.S.C. § 476(g), which provides that contrary regulations “shall have no force or effect.” The court therefore grants summary judgment to the plaintiffs, and orders additional briefing on the question of the proper remedy.
Interior Solicitor Letter to Mashpee Chairman
Federal Court in “Cunundrum” Orders Interior to Refile Cowlitz Record of Decision and Dismisses Grand Ronde et al. Suit
Here is the order and related materials in Confederated Tribes of the Grand Ronde Community of Oregon v. Salazar (D. D.C.):
Clark County et al Motion for Summary J
Interior Opposition to Summary J Motion
Interior Revised Cowlitz Initial Reservation Opinion
Clark County et al Opposition to Remand Motion
Clark County et al Motion to Strike
Interior Opposition to Motion to Strike
Clark County et al Reply in Support of Motion to Strike
Excerpt from Judge Rothstein’s opinion:
Nor can the Federal Defendants supplement the administrative record with the 2012 Revised Initial Reservation Decision. It is black letter law that the record to be considered by this Court “consists of the administrative record compiled by the agency in advance of litigation, not any record thereafter constructed in the reviewing court.” AT&T Info. Sys. Inc. v. Gen. Servs. Admin., 810 F.2d 1233, 1236 (D.C. Cir. 1987) (emphasis added) (rejecting agency’s attempt to submit a litigation affidavit as a post hoc rationalization of the agency’s action); see also, Center for Auto Safety v. Federal Highway Admin., 956 F.2d 309, 314 (D.C. Cir. 1992) (rejecting agency’s rationale as post hoc rationalization not included in administrative record); Am. Textile Mfrs. Inst., Inc. v. Donovan, 452 U.S. 490, 539-40 (1981) (“[P]ost hoc rationalization of the agency or the parties to this litigation cannot serve as a sufficient predicate for agency action”). Accordingly, the Federal Defendants cannot “incorporate” a 2012 explanation into a 2010 ROD by characterizing it as a “Supplemental Record of Decision.”
However, the Court is now in a conundrum. The Court notes that Plaintiffs opposed the Federal Defendants’ motion to remand, yet remand is the relief that they sought on the initial reservation determination because the agency had failed to provide a “reasoned explanation for his decision.” The Secretary has now provided such a reasoned explanation. Plaintiffs again oppose remand and ask the Court to strike the Supplemental ROD. If the Court were to grant Plaintiffs’ request, the parties would be litigating the 2010 Initial Reservation Determination, a determination that has been withdrawn and superceded. The Court will not waste its or the parties’ resources on such a fruitless endeavor. See Spencer v. Kemna, 523 U.S. 1, 18 (1998) (“[Federal courts] are not in the business of pronouncing that past actions which have no demonstrable continuing effect were right or wrong”). The Court is also cognizant of the fact that the parties have been locked in this battle for nearly eleven years. (TR at 13.). However, the APA requires that the Federal Defendants conform to its dictates, disallowing amendments to a final decision once a case has been filed in district court. Accordingly, the Court will remand this action to the agency with instructions to rescind the 2010 ROD. Since this is a case where the agency has already reconsidered and revised its final decision and since the parties represent to the Court that the agency is not required to provide public notice under IGRA (which is the only portion of the 2010 ROD being supplemented), the Court will require the agency to issue a new decision of record within sixty (60) days of the date of this order, unless good cause is shown why it cannot do so. See Fulton v. FPC, 512 F.2d 947, 955 (D.C. Cir. 1975).
News coverage here.
Federal Court Enjoins Sault Tribe from Seeking Trust Acquisition for Lansing Casino Property
Release: Mashpee Tribe’s Land Qualifies as Initial Reservation
Interior Letter:
Release:
Interior Department Says Mashpee Wampanoag Tribe’s
Land will Qualify as an Initial Reservation
Land application demonstrates significant historic ties to Taunton area
MASHPEE, MA – The Mashpee Wampanoag Tribe has received a positive preliminary advisory opinion from the Department of the Interior indicating that the Tribe’s lands in Taunton and Mashpee qualify as an initial reservation once the Mashpee Wampanoag Tribe’s land into trust process is completed with a positive Record of Decision. This special status means that the Tribe will be able to conduct Class II and Class III gaming on the land under the Indian Gaming Regulatory Act.
Chairman Cedric Cromwell said this news “is another huge step forward toward the development of a first class destination resort casino in Taunton. We look forward to creating thousands of jobs and widespread economic opportunities for our Tribe, the people of Taunton and the entire Southeastern Massachusetts region.”
The news was presented to Chairman Cromwell in a letter from Assistant Secretary of the Department of the Interior for Indian Affairs Kevin Washburn. He informed the tribe that an analysis completed by the Office of Indian Gaming finds that the Tribe’s land in trust application qualifies to be processed under the initial reservation exception.
The initial reservation exception is found in Section 20 of the Indian Regulatory Gaming Act. It is one of the few exceptions to the prohibition of gaming on lands taken into trust after October 17, 1988. The provision is expressly intended for newly recognized Indian tribes, such as the Mashpee Wampanoag Tribe, that do not have an established reservation. The determination is based, in part, on an analysis of the tribe’s historic ties to the area identified in the land in trust application that is currently under review by the federal government.
Chairman Cromwell praised the speedy review process. “On behalf of our tribe, I want to express my deepest gratitude to President Obama, Secretary Washburn, the Interior Department, and the many dedicated officials at the Bureau of Indian Affairs. They truly understand how important it is for our people to have land, to maintain our history, our language and our culture. This will enable us to fully operate as a sovereign Tribal government, to secure the resources necessary to support ourselves, and to provide services such as housing, health care and education to our people.”
In addition, Chairman Cromwell thanked those who have worked on the documentation of the Tribe’s historic ties. “Tribal members and our advisers worked tirelessly to document our historic ties to Mashpee, Taunton, and all our ancestral homeland encompassing present-day Southeastern Massachusetts and Eastern Rhode Island. Their efforts were conducted with professionalism, seriousness, and respect for our rich history.”
The Tribe’s application for land in trust includes land in Mashpee and Taunton, Massachusetts. The Mashpee Wampanoag Tribe has proposed a destination resort casino in Taunton. The planning and design process for the proposed casino has moved at a very brisk pace. The Tribe has successfully acquired an option for land, negotiated an intergovernmental agreement with the City, won the support of the residents of Taunton in a referendum, and has progressed with state and federal environmental reviews.
The Mashpee Wampanoag Tribe, with approximately 2,600 enrolled members, has called present-day southeastern Massachusetts home for over 12,000 years. The Tribe was acknowledged in 2007 as a federally recognized tribe. As a sovereign nation, the Mashpee Wampanoag Tribe works to provide housing, health care, education, cultural, and economic development services to its members throughout the region.
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