fee to trust – Page 41

Challenge to Muscogee Fee to Trust Looms

July 20, 2009Matthew L.M. Fletcher

From ICT:

By Rob Capriccioso

WASHINGTON – On the heels of a Supreme Court decision that complicates land into trust matters for tribes, a policymaker from Tulsa, Okla. is organizing a fight against the land into trust interests of the Muscogee (Creek) Nation.

City Councilor Bill Christiansen is currently drafting a resolution against efforts by the Muscogee Nation to work with the BIA to place two parcels of land into federal trust.

Christiansen, who is the president of an aviation company, said the resolution is needed because the city would lose more property and sales taxes if the BIA grants more land into trust for the tribe. He said the city has already lost much money due to the tribe’s non-taxable existence, yet the city still has to pay for public services that benefit tribal members.

He also worries that the tribe could build a mall on the lands in contention, which would compete with facilities in the city that pay property and other taxes.

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SCIA Hearing on Carcieri v. Salazar

May 22, 2009May 22, 2009Matthew L.M. Fletcher

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SCOTUSblog on the SCIA Hearing on Carcieri

May 21, 2009Matthew L.M. Fletcher

From SCOTUSblog:

Today, at 2:15 pm the Senate Committee on Indian Affairs will conduct a hearing in response to the recent Supreme Court decision in Carcieri v. Salazar. The decision limited the Secretary of the Interior’s authority to place land into trust under 25 U.S.C. § 465, the Indian Reorganization Act (IRA), only for Indian tribes under federal jurisdiction when the IRA was enacted in June of 1934. Prior to the decision, the Department of the Interior construed the IRA as granting authority to place land into trust under the IRA for all federally recognized tribes. Further analysis of the decision is available here.

The witnesses include Edward Lazarus, a partner at Akin Gump Strauss Hauer & Feld, LLP (prepared testimony available here); W. Ron Allen, the Secretary of the National Congress of the American Indians; and Lawrence Long, the Chairman of the Western Attorneys General.

NCAI Written Testimony for the SCIA Hearing on Carcieri v. Salazar

May 21, 2009Matthew L.M. Fletcher

NCAI Testimony to SCIA on Carcieri – final

Here is NCAI’s proposed legislative “fix”:

25 U.S.C. §479:

The Act entitled “An Act to conserve and develop Indian lands and resources; to extend to Indians the right to form business and other organizations; to establish a credit system for Indians; to grant certain rights of home rule to Indians; to provide for vocational education for Indians; and for other purposes”, approved June 18, 1934, is amended by:

Section 1: In Section 19 [25 U.S.C. § 479] deleting in the first sentence the words “now under Federal jurisdiction.”

Section 2: Actions of the Secretary taken prior to the date of enactment of this amendment pursuant to or under color of this Act [25 U.S.C. §461 et. seq.] for any Indian tribe that was federally recognized on the date of the Secretary’s action are hereby, to the extent such actions may be subject to challenge based on whether the Indian tribe was federally recognized or under federal jurisdiction on June 18, 1934, ratified and confirmed as fully to all intents and purposes as if the same had, by prior act of Congress, been specifically authorized and directed.

Menominee Sues Interior over Off-Reservation Gaming

May 17, 2009May 17, 2009Matthew L.M. Fletcher

Here’s the news article, via Penchanga, with an excerpt:

The Menominee Nation has filed a lawsuit that seeks to overturn the U.S. Department of the Interior’s decision to block the tribe from building a casino at Dairyland Greyhound Park.

The tribe filed the suit in the U.S. District Court in Green Bay on Friday against the U.S. Department of the Interior and Kenneth Salazar, current secretary of that department. The lawsuit asks the court to declare a January 2009 denial of the Menominee’s land-into-trust application to create a casino at Dairyland as invalid and unlawful and to overturn that decision.

And the complaint — Menominee II Complaint

Interesting Tidbit on AGs Letter re: Carcieri Fix

May 11, 2009May 11, 2009Matthew L.M. Fletcher

According to an enterprising law student (not one of ours :)), “the signature on the letter representing the state AGs opposing a Carcieri fix has WAYNE ANTHONY ROSS as Alaska’s signatory. He was summarily rejected by the Alaska Legislature on April 16, 2009, and definitely was not the AG on April 24 (date of the letter).”

Assuming this is true, two questions. First, was Alaska officially represented on the AG letter?; second, what dog does Alaska have in this fight anyway, since DOI doesn’t take land into trust for Alaskan tribes (except one)?

ICT on State Opposition to Carcieri Fix

May 10, 2009Matthew L.M. Fletcher

From ICT:

Money and power drive states’ interest in Carcieri ‘fix’

Seventeen attorneys general, seeking property taxes and more state power over sovereign Indian lands, have written to the ranking members of the Senate Committee on Indian Affairs and the House Resources Committee urging them to move slowly – if at all – on any Carcieri “fix” and to include them in discussions on the Interior secretary’s authority to take land into trust for the nations.

“A March 13 story in Indian Country Today said Indian country officials are calling for a quick legislative fix so that state and local interests will not have time to make arguments to Congress that the Carcieri decision should stand. The undersigned believe it would not be in the best interests of all stakeholders, both Indian and non-Indian, to rush a legislative fix and to ignore legitimate state and local interests,” the attorneys general wrote.

The Carcieri fix would have Congress amending the 1934 Indian Reorganization Act by deleting the phrase “any tribe now under federal jurisdiction” or adding the words “or hereafter” after the word “now.”

The fix would correct a February ruling by the U.S. Supreme Court, which interpreted “now” to mean then – 1934. The case centered on a 31 acre parcel of land purchased by the Narragansett Indian Tribe for elderly housing. The Interior Department agreed to place the land in trust, but the state and town fought that action all the way to the high court, where the justices ruled 6-3 that the Interior secretary could not take the land into trust because the tribe was not “federally recognized” in 1934.
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Seventeen State AGs Urge Congress Not to Quick-Fix Carcieri

April 29, 2009Matthew L.M. Fletcher1 Comment

Here is the letter to the ranking members of the SCIA and the House Resources Committee from the attorneys general of 17 states — carcieri-state-ags-ltr-to-hill-april-24-2009

The letter asserts that Carcieri is a symptom of a greater frustration felt by state governments relating to the current fee to trust process and asking Congress to consider state interests. Importantly, the letter offers nothing suggesting what those interests might be or what these AGs want in a potential Carcieri fix.

There are at least two reasons for this, I suspect. First, 17 AGs probably can’t agree on what those state interests are. And second, maybe these state AGs are leaving unsaid the obvious — they want more control over Indian lands, perhaps even veto power over fee to trust transfers and over activities on trust land.

And that’s what the Supreme Court handed state governments with their very wrongheaded decision in Carcieri. A Carcieri cure might be worse than the disease.

Tenth Circuit Briefing in Important Quiet Title Act Case

April 5, 2009Matthew L.M. Fletcher

The case is Sac and Fox Nation v. Salazar, and is in the Tenth Circuit. Since Carcieri v. Salazar, for a whole bunch of tribes, the Quiet Title Act (QTA) has become a terribly important statute. As readers will recall, the Act expressly preserves the federal government’s sovereign immunity in cases challenging title to Indian trust lands.

Sac and Fox, which involves the Secretary’s taking into trust of the so-called Shriner Tract in Kansas on behalf of the Oklahoma Wyandotte community, is perhaps one of the more ruthless applications of federal sovereign immunity, in that the parties and the courts in prior years had sought to avoid the application of the QTA by keeping open a case even after the land had been taken into trust. When the district court mistakenly closed the case, forcing the plaintiffs to refile, the QTA kicked in with a vengance, forcing the district court to dismiss (see lower court materials here).

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