The State of Texas filed its opposition to the cert petition filed by the Kickapoo Tribe way back in February. Here is the brief — texas-cert-opp
And here is our previous post on the lower court portion of this case (with briefs), as well as a link to the Supreme Court Project’s site.
If you’ll recall, despite a USSG recommendation to deny the petition, the Court still asked for a response from the State.
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. |
SCOTUSBlog isn’t taking any chances with Indian law now. 🙂
The Kickapoo v. Texas petition is on its watch list for the May 29, 2008 conference (here).
Docket: 07-1109
Case name: Kickapoo Traditional Tribe of Texas v. Texas, et al.
Issue: Whether, following Seminole Tribe v. Florida (1996), the Secretary of the Interior may establish procedures for Indian gaming if a state declines to enter a compact with the Tribe and invokes immunity from suit under the 11th Amendment.
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.
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.
“Update on Proposed Class II Gaming Regulations,” DesRosiers, Knudson & McBride, INDIAN GAMING magazine 34-42 (April 2008)
Panel 1
THE HONORABLE DIANE ENOS
President, Salt River Pima-Maricopa Indian Community
Scottsdale, AZ
THE HONORABLE JOE SHIRLEY JR.
President, The Navajo Nation
Window Rock, AZ
THE HONORABLE DANIEL EDDY
Chairman, Colorado River Indian Tribes
Parker, AZ
From the House Resources Committee:
Witnesses:
Panel 1
The Honorable Carl Artman, Assistant Secretary, Bureau of Indian Affairs, United States Department of the Interior, Washington, DC
Panel 2
The Honorable Lorraine White, Chief, St. Regis Mohawk Tribal Council, Akwesasne, NY
The Honorable Vincent Armenta, Tribal Chairman, Santa Ynez Band of Chumash Indians, Santa Ynez, CA
The Honorable Hazel Hindsley, Tribal Chairwoman, St. Croix Chippewa Indians of Wisconsin, Webster, WI
Mr. Jeff Warnke, Director, Government and Public Relations, Confederated Tribes of the Chehalis Reservation, Oakville, WA
Kevin Washburn has posted on SSRN his testimony for tomorrow’s hearing before the House Resources Committee on the new guidance for the acquisition of off-reservation trust lands for gaming purposes.
St. Croix Band of Chippewa lost a motion for a preliminary injunction in their attempt to avoid the new off-reservation gaming rules [see here for Bryan Newland’s analysis of the new rules].
Here are the materials:
Turtle Talk 
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