fee to trust

MichGO v. Kempthorne a “Petition to Watch”

Matthew L.M. Fletcher1 Comment

SCOTUSblog has listed MichGO v. Kempthorne as a petition to watch (see post here) for the January 9 conference. Here are the briefs, etc.:

Docket: 08-554
Title: Michigan Gambling Opposition v. Kempthorne
Issue: Whether Section 5 of the Indian Reorganization Act, which gives the Secretary of Interior discretion to acquire lands for Native Americans, is an unconstitutional delegation of legislative authority.

First Glimpse at a Possible Post-Carcieri World

Matthew L.M. Fletcher2 Comments

The United States Department of Justice has been thinking a little bit about what will happen if the Supreme Court rules against the Secretary of Interior in Carceri v. Kempthorne. We’ve already suggested that, based on oral argument, that the Secretary’s authority under Section 5 of the Indian Reorganization Act will be sharply limited in relation to tribes “not under federal supervision” or “under federal jurisdiction in 1934.”

In the recent filing opposition a petition for a writ of certiorari in MichGO v. Kempthorne, a direct challenge to Section 5 as applied to all tribes, the Solicitor General’s officer may have laid the groundwork for a post-Carcieri world. The MichGO petitioners, who have been using the litigation to delay the opening of the Gun Lake Band of Pottawatomi Indians’ casino for years, appear to be pushing the Supreme Court to hold the MichGO petition until after Carcieri is decided (likely in January or February). But the government argued that no such delay was necessary, because (and this is the key part, where the United States asserts what will happen if the Court rules against the government):

Continue reading →

Menominee Motion for TRO Denied in Fee to Trust Challenge

Matthew L.M. Fletcher

The Eastern District of Wisconsin denied the Menominees motion for a TRO in their challenge to the application of the regulations on off-reservation gaming. The complaint is here.

menominee-motion-for-tro

dct-order-denying-tro

Menominee Tribe v. DOI — Materials on Off-Reservation Gaming Case

Matthew L.M. Fletcher1 Comment

As Indianz reports, the Menominee Tribe has sued to prevent Dirk Kempthorne from making a decision on the tribe’s off-reservation gaming application before the change in administration.

menominee-v-doi-complaint

complaint-exhibits

GAO Transition Materials

Matthew L.M. Fletcher

From the GAO (via Indianz):

GAO has identified a number of long-standing financial and programmatic deficiencies in Interior’s Indian and Island Community programs.

  • While Interior has taken significant steps in the last 10 years to address weaknesses in certain Indian programs, it is still in the process of implementing key trust fund reforms, including preparation of a timetable for completing remaining activities, to effectively manage more than 300,000 trust fund accounts with assets of more than $3 billion. Further, in the department’s consolidated financial statements, the management of Indian trust funds continues to be reported as a material internal control weakness.

    Highlights of GAO-07-104 (PDF)

  • GAO has also reported on serious delays in the Bureau of Indian Affairs’ (BIA) program for determining whether the department will accept land in trust—as of the end of fiscal year 2005, more than 1,000 land in trust applications from tribes and individual Indians were pending. While BIA generally followed its regulations for processing land in trust applications, it had no deadlines for making decisions on them.

    Highlights of GAO-06-781 (PDF)

  • In addition, the department could be doing more to assist the island communities of American Samoa, Guam, the Commonwealth of the Northern Mariana Islands and the U.S. Virgin Islands, and the three sovereign island nations with long-standing financial and program management difficulties in accurately accounting for expenditures, collecting taxes and other revenues, controlling the level of expenditures, and delivering program services—all of which resulted in numerous federal agencies designating some of the governments as “high-risk” grantees. Further, the department faces challenges in addressing the failing economy in the Commonwealth of the Northern Mariana Islands and assisting Guam in preparing for the anticipated expansion of military personnel.

    Highlights of GAO-08-655 (PDF), Highlights of GAO-08-466 (PDF), Full Report of GAO-07-514R (PDF, 74 pages), Highlights of GAO-08-791 (PDF), Highlights of GAO-07-163 (PDF), Highlights of GAO-07-119 (PDF), Highlights of GAO-08-732 (PDF), Highlights of GAO-07-513 (PDF), Highlights of GAO-06-590 (PDF)

Continue reading →

Nebraska v. Dept. of Interior Materials

Matthew L.M. Fletcher

This is the suit challenging the Ponca Tribe’s casino in Iowa. The US had filed a motion to dismiss on standing grounds, and other grounds.

us-motion-to-dismiss-neb-complaint

nebraska-response-brief

us-reply-brief-to-nebraska

Coverage of the Carcieri Argument

Matthew L.M. Fletcher

From Law.com (thanks to Mike McBride)

Compared to the drama surrounding which lawyer would argue before the Supreme Court Monday in the case of Carcieri v. Kempthorne, the actual argument came as something of an anticlimax.

As reported by Legal Times in recent weeks, Rhode Island Gov. Donald Carcieri had hired former solicitor general Theodore Olson for a reported $200,000 to argue for the state in the Indian land dispute. But Joseph Larisa, a private lawyer for the town of Charlestown, R.I., where the land in question sits, refused to turn over the reins to Olson, asserting that his handling of the case for the last 10 years made him the most qualified to argue before the justices.

Continue reading →

Commentary on the Carcieri Oral Argument — UPDATED

Matthew L.M. Fletcher4 Comments

I think it’s safe to say after today’s oral argument in Carcieri v. Kempthorne that the chances the Supreme Court will affirm the First Circuit’s decision are pretty small. Of course, what happens at oral argument doesn’t guarantee any outcomes, and any reading of the cold transcript can create misconceptions. But a few comments (I’ve added more material at the end):

First, Ted Olson had the much easier argument to make and he exploited that advantage mercilessly. He had the benefit of the plain language (“now” meaning 1934, when 25 U.S.C. 465 was enacted). He had the benefit of 15 statutes that purported to extend the benefits of Section 465 to newly recognized tribes, a true sound bite if there ever was one. He had the benefit of the legislative colloquy (as it was called in oral argument) between Sen. Wheeler and Indian Affairs Commissioner Collier which seemed to support his view. He had the benefit of a 1978 decision (U.S. v. John) that assumed without deciding that his interpretation was correct. And he had perhaps the most friendly audience to his client, a state government, in the history of the U.S. Supreme Court — the Roberts Court.

The government’s attorney, Deanne Maynard, had a difficult time getting past all of these superficial issues. On the face of it, each argument above is a winner, but there was a reason why the First Circuit sitting en banc unanimously (6-0) rejected each of these arguments below. Unfortunately for the government and the Tribe, the winning arguments for the respondents are based in history, statutory construction and nuance, and other characteristics difficult to parse out when facing a barrage of questions from eight Justices (no questions or commentary from Justice Thomas, as usual). Even when Justice Stevens attempted to explain the statutory construction argument in regards to the definition of “Indian tribe” he got bogged down and never could finish his point.

And, early in her argument, the Chief Justice got Ms. Maynard to concede that the government was asking the Court (“ironically”) to read the statute as if “now under federal jurisdiction” was not actually there.

In short, Mr. Olson appeared to out-argue Ms. Maynard.

Continue reading →

Carcieri v. Kempthorne Oral Argument Transcript

Matthew L.M. Fletcher

Available here.

AP Report on Carcieri v. Kempthorne

Matthew L.M. Fletcher

From the AP:

PROVIDENCE, R.I. (AP) — The Narragansett Indian Tribe bought a 31-acre lot in 1991, saying it would be used for “economic development” and housing for the elderly and poor.

However, the state of Rhode Island, fearing the tribe really wants to create a tax-free zone or build a casino, sued to block the Narragansetts from putting the land into federal trust, which would essentially free it from state and local law.

On Monday, their fight reaches the U.S. Supreme Court in a case being closely watched across the country because it could determine how tribes recognized after the 1934 Indian Reorganization Act are allowed to buy, govern and use land.

Continue reading →