Here.
And their plain language description:
In this case, the federal government took certain land into trust for an Indian tribe, which means that it took ownership of the land to allow the tribe to use it. The tribe planned to build a casino on the land. The Supreme Court held that a neighbor could sue the government to stop the casino project on the ground that the law did not permit the government to take the land into trust for this particular tribe
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Here.
An excerpt:
The ruling, Fletcher said, was not really a surprise.
“This is a court that is pretty reluctant to rule in favor of Indian tribes and I think they are very skeptical of things like Indian gaming.”
Fletcher said the Sotomayor dissent highlights the destabilizing consequences of Monday’s decision. Wrote Sotomayor:
“… the majority’s rule will impose a substantial burden on the Government and leave an array of uncertainties. Moreover, it will open to suit lands that Congress and the Executive Branch thought the “national public interest” demanded should remain immune from challenge. Congress did not intend either result.”
Fletcher said that whereas parties seeking to challenge land-in-title decisions previously only had 30 days to file action, after Monday, tribes will likely have to wait six years to develop any property the government takes into trust while they wait out potential lawsuits against the use of the property.
“It’s very difficult to borrow money or do anything with land under those circumstances.’
The vast majority of Indian land-in-trust decisions by the government are for reasons like housing, treat rights, environmental protection and public safety. Very little are done for gaming reasons, Fletcher said.
Congressional action to correct the Supreme Court’s decision in Carcieri v. Salazar would cost American taxpayers nothing and would be an enormous win for Michigan tribes and the Michigan economy. Carcieri, a decision that undermines the certainty of the Department of Interior’s authority to acquire land in trust for some Indian tribes, makes borrowing money for several Michigan tribes more difficult and more expensive – for some Michigan tribes, the price to borrow money for capital growth increases by millions in increased interest or even the inability to borrow. In short, Carcieri costs the Michigan economy jobs and economic growth.
The Carcieri Decision
The Carcieri decision held that the Department of Interior could not take land into trust for the benefit of the Narragansett Indian Tribe in Rhode Island under Section 5 of the Indian Reorganization Act (“IRA”), a statute that authorizes the Secretary of Interior to do so for any Indian tribe. The IRA’s definition of “Indian tribe” includes any tribe “now under federal jurisdiction.” The Interior Department had interpreted the IRA to authorize trust land acquisitions for tribes under federal jurisdiction at the time of the application, using federal recognition as a proxy for federal jurisdiction. But the Supreme Court held that the Narragansetts were under state jurisdiction at the time of the enactment of the IRA in 1934, and so Interior could not take land into trust for them.
The Department of Interior had “administratively terminated” several Michigan Indian tribes – all of the six Ottawa and Potawatomi tribes now federally recognized – in the late 19th century. These tribes are “treaty tribes,” meaning that they have an ongoing treaty relationship with the federal government that has never been extinguished by Congress. The Sixth Circuit has recognized that “administrative termination” was an illegal administrative act, and the concurrences and dissent in Carcieri also recognized that the Michigan tribes probably were “under federal jurisdiction” in 1934. Still, those tribes, and two other tribes in the Upper Peninsula that became federally recognized in the 1970s and 1980s may be affected by Carcieri.
Impacts on Michigan Tribes
The Michigan tribes are among the tribes most adversely affected by the Carcieri decision, even though every one of them is a treaty tribe. They are affected in two important ways:
First, each of the tribes potentially affected by Carcieri may be forced to engage in a costly, protracted historical and legal determination by the Interior Department that they were “under federal jurisdiction” in 1934. In other words, the tribes may have to expend precious tribal resources to prove that they are eligible tribes in the frivolous lawsuits that are destined to be filed. There are currently 62 non-gaming related Michigan tribes trust applications pending in the Department of Interior now. These applications are for agriculture, housing, public safety, and other infrastructure projects. Many of these projects involve multi-million dollar construction jobs and long-term job creation. Every day that these trust applications are delayed slows down Michigan job growth and economic development. Nationally, a Carcieri fix is estimated to generate 140,000 jobs, many of those in Michigan.
Derek Bailey, the former chairman of my tribe, the Grand Traverse Band of Ottawa and Chippewa Indians, testified before Congress in 2009 about the clear economic consequences of trust land acquisition delays:
As one example, Parcel 45 in Antrim County is a 78-acre parcel that is zoned for residential development by the local township and county. In order to obtain this zoning, we spent 1.5 million dollars of tribal money for roads and for sewer, water, and electrical infrastructure to render the parcels ready for individual housing. The parcel contains two homes owned by tribal members, two Grand Traverse Band rental homes, and 22 empty lots available for Tribal members to construct housing. However, until the land is placed into trust, tribal members cannot obtain the Bureau leases necessary to secure housing financing.
Second, the cloud of Carcieri stifles any development project by potentially affected Michigan tribes. Carcieri increases risks to lenders – the risk that a court finds that a tribe is not eligible because of the Carcieri case, even if low, increases exposure – and that translates to millions of dollars in increased interest rates and occasionally shuts down the project altogether by eliminating the ability of the tribe to borrow money at all. Carcieri has all but killed off investment in Indian country. This issue extends to tribes that may have a Carcieri problem and tribes that already have established economic enterprises. Lower Michigan tribes, especially in southwest Michigan, are enormous economic engines that have generated massive economic growth despite the specter of Carcieri. Relieving these economic engines of this unnecessary burden is only going to improve Michigan’s economy.
In conclusion, fixing Carcieri is costless to American taxpayers and a big win-win for Michigan and Michigan tribes.
Here.
Here are the materials (so far) in City of Yreka v. Salazar:
Lower court materials here.
Here (h/t Pechanga). An excerpt:
Several Supreme Court justices seemed troubled Tuesday at the thought of letting a lawsuit move forward that aims to shut down an already opened tribal casino in southwestern Michigan.
“It does seem that we may be wasting our time,” Justice Anthony Kennedy said. “I’m not suggesting that the … case is moot, but you did wait for some three years before you brought this suit. The building was built.”
We posted the transcript here.
* The first remarkable point about today’s argument is that Justice Scalia appeared to come to the rescue of counsel for Patchak four times , and by the end of Respondent’s time was virtually arguing the case against the government and tribe through counsel. Page 50, line 23 to page 51, line 8, Justice Scalia answers questions from Justices Kagan and Sotomayor on behalf of counsel. On page 52, line 11 to page 53, line 6, Scalia literally concludes counsel’s argument on his behalf, offering two questions that counsel needs only say “yes” to.
The first instances Justice Scalia offers help to Patchak’s counsel are page 34, lines 9 through 20, which ends with Scalia telling counsel he’s supposed to say “yes, sir” to his question and which also ends with laughter from the gallery (presumably the clerks); and on page 39, line 13 though page 40, line 4 (also ending in laughter as Patchak’s counsel agrees with Justice Scalia).
* Justice Scalia comments early on in the government’s time: “whether this land could be used for what you call gaming and I call gambling.” There’s a longstanding rhetorical distinction between those who support tribal gaming/gambling — opponents call it “gambling” and supporters call it “gaming.” Justice Scalia tips his hand, no doubt intentionally.
* In light of our post from earlier today, there were 60 questions for the government and the tribe, and 49 for Patchak.
* A recurring theme in the argument, starting with the opening question from Justice Sotomayor, was that Patchak could have sued under NEPA, other statutes, or federal regs (within 30 days) to challenge the trust acquisition before the land goes into trust, as MIchGO did. The possible weakness is that the government’s position seems to be it can take land into trust at any time to foreclose any challenges to the trust acquisition by slipping behind the immunity barrier in the QTA. If the government did this, then the due process/non delegation problems identified in the 1995 South Dakota v. US decision comes to light. It seems to me that the relatively easy answer is that the due process/non delegation claim is available to challengers if the government did act in this manner, and since it didn’t here, there’s no issue. Of course, the Court would have to trust the Secretary of Interior, which historically, it doesn’t really do.
Update: Even local television (Wood TV, notoriously anti-Gun Lake) conceded that the Justices generally seemed hostile to Patchak’s claims.
Here.
An excerpt:
One might think that this is not the stuff of an historic oral argument. But this will be the thirty-first oral argument before the Court for Patricia Millett, who represents the Tribe, which will make her the woman with the most Supreme Court oral arguments in history.
Congrats to Pattie!!!!
Here.
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