fee to trust

DOI/BIA Sends Final Section 20 Regulations for Publication in the Federal Register

Zeke Fletcher1 Comment

From Indianz:

In one of his final actions as head of the Bureau of Indian Affairs assistant secretary Carl Artman has finalized the long-awaited Section 20 regulations for gaming on trust land acquired after 1988. The regulations were sent for publication in the Federal Register. They are due to appear tomorrow and will be considered final and effective in 30 days.

The Indian Gaming Regulatory Act bars gaming on lands acquired after 1988. But Section 20 of the law sets out four exceptions: for Oklahoma tribes with former reservations, newly recognized tribes, newly restored tribes and tribes with land claims.

If a tribe can’t meet any of the exceptions, it can still pursue gaming so long as the state governor concurs. This is known as the two-part determination process.

The rules set out criteria for all four of the exceptions, plus the two-part determination process.

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Belanger v. Parish — Complaint re GTB Trust Land Decision

Matthew L.M. Fletcher

Belanger v. Parish Complaint

Exhibit Property Location Drawing

ICT Editorial on Fee to Trust Statute

Matthew L.M. Fletcher1 Comment

From ICT:

The federal government’s recent actions involving its authority to make decisions on acquiring land in trust for tribal gaming purposes may inadvertently threaten the authority and duty of the secretary of the Interior Department to take land into trust for Indian tribes.

On April 29, the D.C. Circuit decided an innocuous case involving the secretary of Interior’s decision to take land into trust for the Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians (also known as the Gun Lake Band). It was the third such opinion in recent years involving Michigan Potawatomi Indian tribes, each brought by well-funded citizens groups opposing Indian gaming. The suits were mere harassment suits, intended to delay rather than prevent the opening of the Potawatomi gaming operations. Each of the suits brought similar claims.

Of import, one claim was that Section 5 of the Indian Reorganization Act, the statute that authorizes the secretary to take land into trust for Indian tribes, was an unconstitutional delegation of congressional authority. The first two D.C. Circuit panel decisions (2006 and 2007), involving the Pokagon Band of Potawatomi Indians and the Nottawaseppi Huron Band of Potawatomi Indians, rejected the constitutional challenge to Section 5 without much discussion or dissent. In fact, since 1995, at least three other federal appellate circuits have rejected the same kind of challenge to the statute, so this is unsurprising.

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GTB News Coverage on Indianz

Matthew L.M. Fletcher

From Indianz:

An attorney for the Grand Traverse Band of Ottawa and Chippewa Indians says a lawsuit challenging the Michigan tribe’s land-into-trust lawsuit is “fruitless.”

The tribe wants about 22 acres placed in trust. A group of property owners, however, claims the land belongs to them. Tribal attorney William Rastetter said the plaintiffs who filed the case are wasting their time. He said the state and federal courts have already ruled the land doesn’t belong to them. The land is part of the Leelanau Trail, which the tribe supports. The land used to be a former railroad right-of-way. In related Grand Traverse news, the tribe has certified the results of its April 9 primary. Incumbent chairman Robert Kewaygoshkum will face Derek Bailey in the May 21 general election. Six candidates are seeking three open council seats.

Get the Story:
Tribe downplays suit over former rail corridor status (The Leelanau News 5/8 )
Tribe certifies Primary results (The Leelanau News 5/8 )

Related Stories:
Lawsuit challenges Grand Traverse land-into-trust (5/2)
Grand Traverse Band vote in primary on Wednesday (4/8 )

Government Sued Over Grand Traverse Trail Trust Land Decision in Peshawbestown

Matthew L.M. Fletcher

From the Traverse City Record-Eagle:

PESHAWBESTOWN — A group of local waterfront property owners are fighting a recent decision to place a former railroad corridor into federal trust status for the Grand Traverse Band of Ottawa and Chippewa Indians.

A public notice last month in Leelanau County prompted six land owners along Suttons Bay to file a federal complaint over a Bureau of Indian Affairs decision to move into trust more than 22 acres of the former railroad right-of-way.

The lawsuit, filed April 18, alleges federal officials’ final decision to put the property in trust “was unlawful, arbitrary, capricious, and an abuse of discretion, because the Grand Traverse Band does not have title to all of the land.”

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News Coverage of MichGo v. Kempthorne Case: Cert Petition Planned

Matthew L.M. Fletcher

I spoke to the author of this news article yesterday. He quotes me as making yet another prediction on whether the Court will grant cert as being “zero,” but what I thought I said was that MichGo’s chances of getting a stay is close to zero. I did say that I think a plausible Section 5 challenge will have to come from a different fact pattern, such as an off-reservation fee to trust decision, assuming there will ever be any again. Or a decision involving a wealthy gaming tribe like Oneida or Mashantucket Pequot.

Of note, the reporter told me that the MichGo attorney thought that the Carcieri case was a good sign for MichGo, in part because so many states signed on to an amicus brief supporting the cert petition. He thinks those states will support MichGo’s petition, too. But I wonder. States like Michigan and California are actually banking on the revenues from new Indian gaming operations in order to help balance their budgets. I don’t think these states would sign on, or else they’d be hurting themselves.

From Indianz:

An Indian law professor says there’s “zero” chance the U.S. Supreme Court will hear a land-into-trust case involving the Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians of Michigan. Matthew L.M. Fletcher, an assistant professor of law and director of the Indigenous Law & Policy Center at Michigan State University, said the court, at some point, will hear a challenge to the Indian Reorganization Act. The 1934 law authorized the land-into-trust process and opponents say it is unconstitutional. The D.C. Circuit Court of Appeals disagreed and ruled that the Bureau of Indian Affairs can acquire 147 acres for the tribe. A casino and other development are planned at the site. One judge, however, agreed that Section 5 of the IRA is unconstitutional. A group called Michigan Gambling Opposition hopes to convince the Supreme Court that the law is too broad. But Fletcher says the case is bogged down by other details to make it appeal-worthy. “I don’t think there’s any chance,” he told The Grand Rapids Press. “I really think the odds are close to zero that the Supreme Court would hear it.”

Get the Story:
Foes of Gun Lake Casino cling to slim legal hope (The Grand Rapids Press 5/2)
Gun Lake casino opponents down to last try (The Muskegon Chronicle 5/2)

Analysis of Judge Rogers’ Dissent in MichGo v. Kempthorne

Matthew L.M. Fletcher1 Comment

Yesterday’s per curiam opinion in MichGo v. Kempthorne, while very, very important to the Gun Lake Band and other Michigan tribes, did not break any new ground. It was the third time in recent years that citizens groups challenged the Secretary of Interior’s decision to take land into trust for gaming purposes for the three southwest Michigan Potawatomi tribes (the other two were TOMAC v. Norton and CETAC v. Kempthorne). Each of the challenges raised NEPA and constitutional claims of very similar character. Each time it was relatively easy for the D.C. Circuit to dispose of these arguments, which some argued bordered on frivolous.

But there is a strong threat to the future of tribal property contained in these cases.

The constitutional challenge is that Section 5 of the IRA (25 U.S.C. 465) is an unconstitutional delegation of Congressional power to the Secretary of Interior. Section 5 allows the Secretary, at his discretion, to acquire land in trust for Indians and Indian tribes. If this discretion is absolute, then it is a violation of the separation of powers inherent in the Constitution. But until yesterday, the constitutional challenge did not garner a single vote in any of the three Potawatomi cases. In fact, though this constitutional challenge has been raised by states and localities repeatedly since the early 1980s, it has not garnered a single vote from a federal judge since 1996, when Justice Scalia dissented from a GVR in United States v. South Dakota, 519 U.S. 919 (1996). The Supreme Court recently granted cert. in Carcieri v. Kempthorne, another of these challenges, but declined to hear the constitutional challenge.

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D.C. Circuit Affirms Match-E-Be-Nash-She-Wish (Gun Lake) Band’s Trust Land Decision

Zeke Fletcher3 Comments

The D.C. Circuit Court of Appeals held the Department of the Interior’s decision to place land into trust for the benefit of the Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians near Bradley, Michigan did not violate the National Environmental Protection Act nor did Section 5 of the Indian Reorganization Act constitute an unconstitutional delegation of legislative authority.

michgo-v-kempthorne

gun-lake-band-brief

Other briefs are here.

News Coverage of BMIC/Sault Tribe Off-Rez Gaming Bills

Matthew L.M. Fletcher

From the Detroit Free Press:

WASHINGTON – The House Judiciary Committee is set to work on a couple of bills on Wednesday that would allow for two new Indian casinos in Michigan – even though another committee has already approved them.

It could set up an interesting jurisdictional question for the House.
A couple months ago, the Natural Resources Committee voted overwhelmingly in favor of the two pieces of legislation, which would authorize land swaps with two tribes, resulting in new casinos in Romulus and Port Huron. That vote was expected to send the bills to the House floor.

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“Reservations Rebuffed” — Article on Off Rez Gaming Policy

Matthew L.M. Fletcher

From CQ Politics:

Tribal casinos, which have bulked into a multibillion-dollar industry since Congress first gave them its blessing two decades ago, now possess all sorts of economic and political clout — but not enough, it seems, for them to go off the reservation.

American Indians marooned on reservations far from population centers have long pressed the Interior Department to grant them the authority to launch gambling operations closer to where the people willing to risk their money live — and rake in the sort of revenues that the more fortuitously situated tribes have enjoyed.

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