Here it is — us-brief
Government’s Brief in Carcieri v. Kempthorne
Here it is — us-brief
fee to trust
Guidiville Band of Pomo Indians v. NGV Gaming, Ltd.
In a contract dispute between the Tribe and NGV gaming, the court interprets Congressional intent regarding the word “is” in 25 USC 81. Specifically, the Court was concerned with whether Congress intended the word “is” to include the present and future tense.
Freep on BMIC and Sault Tribe Gaming Bills
From the Detroit Free Press:
A fight over proposed American Indian casinos in Romulus and Port Huron may reach the floor of Congress this week, where two Michigan political heavyweights find themselves on opposite sides of the issue.
The proposals — which could be on the floor as early as Wednesday — have a fair shot at passing, despite loud objections from Detroit politicians who fear new casinos could cut into the take of the city’s three gaming emporiums and undercut investments their owners have made.
Even if the House approves, however, the proposals face a big obstacle in the Senate — Majority Leader Harry Reid (D-Nev.), who is said to be opposed to the legislation that has been simmering in Washington for at least six years.
The difference now is the strong support for the Romulus casino from Rep. John Dingell, a Dearborn Democrat who is the longest-serving active member of the House and chairman of the powerful Energy and Commerce Committee.
En Banc Petition in MichGO v. Kempthorne
We don’t have the petition yet, but here’s the D.C. Circuit clerk’s order and the article from ICT:
WASHINGTON – In what will likely be the last of its many legal challenges, an anti-Indian casino group has asked a federal appeals court to determine if a law that has been restoring swindled and expropriated indigenous land to Indians for almost 75 years is constitutional.
Michigan Gambling Opposition, or MichGO, petitioned the U.S. District Court of Appeals for the District of Columbia May 10 for an en banc court rehearing of its 2 – 1 panel decision to allow the Interior Department to take 147 acres of land into trust for the Gun Lake Tribe’s proposed casino.
MichGO wants the full nine-judge court to determine if the Indian Reorganization Act of 1934 violates the nondelegation doctrine by unconstitutionally allowing the Interior secretary to acquire or take into trust land for Indians.
Oneida Fee to Trust Lawsuits Commentary
Indianz reports that a plethora of lawsuits will be filed against Interior’s decision to take land into trust for the Oneida Indian Nation of New York.
Bear in mind that (in my limited understanding) much of the land in question here is the same land in question in the City of Sherrill v. Oneida Indian Nation case from 2005. Unfortunately (we now know), the Nation sought to avoid state and local taxation and regulation on that land when it was held in fee simple under federal Indian law principles. Those principles supported the OIN, but only as far as the Supreme Court, which reversed.
Now the OIN is pursuing the path they (perhaps, in hindsight) should have pursued all along — asking the Secretary to take the land into trust. So far, they have been successful, which was no easy feat given the mountain of documentation required to convince the Secretary, but several years have passed since this started, and there might be a new legal climate on the constitutionality of the fee to trust statute, 25 U.S.C. 465.
Perhaps as early as next fall, the Supreme Court might rule in Carcieri v. Kempthorne that the Secretary has no authority to take land into trust for tribes not recognized in 1934. After that, the Oneida case is the kind of case that the Supreme Court might be willing to use to decide whether or not the fee to trust statute is unconstitutional on its face. I would be surprised, because a successful challenge to the fee to trust statute likely would require the Court to go in depth into its nondelegation doctrine and/or Tenth Amendment jurisprudence, areas in which the Roberts Court has not expressed much interest.
We’ll see.
LA Times on Soboba Killings
From the LA Times. An excerpt:
San Jacinto Mayor Jim Ayres and the City Council asked the tribe to withdraw an application to annex more than 500 acres of land for a hotel and casino complex until the violence is quelled.
But Salgado, 65, is having none of it.
No one, he says, has the right to tell Indians how to run their sovereign nations.
“Why didn’t Stone come to me man to man and say that? And who is the mayor of San Jacinto to tell us what to do?” he asked. “Where were these people when we had nothing? Now that we are self-sufficient, it makes them fearful.”
Challenge to Ho-Chunk Trust Acquisition Rejected
In Sauk County v. Dept. of Interior, the Western District of Wisconsin rejected NEPA and constitutional challenges to the Department’s decision to take land into trust (non-gaming purposes) for the benefit of the Ho-Chunk Nation.
Grand Traverse Band Has 145 Acres Placed Into Trust
From the Traverse City Record Eagle:
The Bureau of Indian Affairs last week issued a notice of decision that approved the band’s trust application for five parcels totaling just over 145 acres in Acme and Whitewater townships near Turtle Creek Casino on M-72.
Written Testimony in Senate Hearing on DOI Backlogs
From the Senate Indian Affairs Committee website:
THE HONORABLE CARL J. ARTMAN
Assistant Secretary – Indian Affairs, U.S. Department of the Interior
Washington, DC
THE HONORABLE ROBERT CHICKS
Mid-West Area Vice President, National Congress of American Indians; President, Stockbridge Munsee Band of Mohican Indians
Bowler, WI
THE HONORABLE GARY SVANDA
Council Member, City of Madera
Madera, CA
MR. DOUG NASH
Director, of Indian Estate Planning and Probating, Institute of Indian Estate Planning and Probate
Seattle, WA
Commentary on the MichGO En Banc and Cert Petitions
MichGo’s attorney asserts a plan to file a cert petition (see below the fold for the news article), and even boasts that he has three votes for cert already — Scalia and Thomas because they dissented in the South Dakota case in 1996, and Roberts because he represented a party making a nondelegation claim to 25 U.S.C. sec. 465 in 1999/2000.
This is spurious, given very recent events.
The Department of Interior just issued nearly-final IGRA Section 20 [25 U.S.C. 2719] regulations. These were the regulations I was talking about in my ICT editorial (not knowing they were about to be finalized). The very existence of these regulations severely blunts Judge Brown’s dissent in the D.C. Circuit case. Here, the Secretary is finally agreeing to formalize restrictions on his discretion contained in section 5 of the IRA [25 U.S.C. 465] in the context of Section 20 trust acquisitions.
One could make a plausible claim that, to the extent the SCT would be persuaded by a solitary dissent in a very minor case (nationally), it is now all but a dead letter.
What the D.C. Circuit should do is amend its decision to reflect the existence of the new regs, adding another nail to the coffin of the Section 5 nondelegation argument.
Finally, as MichGO’s attorney should know, one solitary dissent does not a circuit split make.
Turtle Talk 
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