Regulations

Brian Lewis’ article on DOI regulations under IGRA published in Thomas M. Cooley Journal of Practical and Clinical Law

Ann Tweedy

The article is called “A Day Late and a Dollar Short: Section 2719 of the Indian Gaming Regulatory Act, the Interpretation of its Exceptions and the Part 292 Regulations,” 12 T.M. Cooley J. Prac. & Clinical L. 147 (2010), and concerns regulations about which lands tribes may operate casinos on. Here’s a one paragraph excerpt from the Introduction:

“The DOI’s Regulations, which impose added burdens on tribes and narrow the exceptions, impair the settled expectations of tribes and businesses. Moreover, this impairment may persist because the Supreme Court’s holding in Nat’l Cable & Telecomms. Ass’n v. Brand X Internet Servs., requires courts to defer to agencies, despite having been the first to interpret and define statutes. However, because of the difference of circumstances, unlike in Brand X, the DOI’s interpretations should not be deferred to. Chevron deference, as applied in Brand X, may unconstitutionally reallocate authority from Article III to Article II. Lastly, the discipline of law and economics tells us that the Regulations’ changes and the majority’s opinion in Brand X promulgates an inefficient legal rule that may be-and should be-changed.”

Umatilla & other tribes support Oregon’s proposed adoption of stricter water quality standards

Ann Tweedy1 Comment

Here’s the news article.

Also, the comment period has been extended to March 21. More information is here.

DOJ Issues SORNA Implementation Guidelines

Matthew L.M. Fletcher

Here.

Scientists’ Suit over New NAGPRA Regs?

Matthew L.M. Fletcher

From Rob Capriccioso at ICT:

WASHINGTON – Scientists are considering a lawsuit against a new rule that would help repatriate thousands of Native American remains to tribes across the nation.

The rule, published March 15 and open for comment for 60 days, is a clarification from the Interior Department to the 1990 Native American Graves Protection and Repatriation Act. It states that after appropriate tribal consultation, transfer of culturally unidentifiable remains is to be made to a tribe from whose tribal or aboriginal lands the remains were excavated or removed. Civil penalties are proposed for museums and learning institutions that do not follow the law.

The development has been largely celebrated by Native American communities, although tribal advocates say it has shortcomings, like not including sacred culturally unidentifiable funerary objects in its scope. Some tribes are using the open comment period to make that concern known, noting that common law and some state laws require repatriation of such objects.

Some scientists, however, are outraged by the new rule, believing that important human knowledge could be lost if the remains go back to tribes.

Continue reading →

NAGPRA News: Regs on Culturally Unidentifiable Remains to be Published on March 15

Matthew L.M. Fletcher

From the National NAGPRA site:

CUI RULE TO PUBLISH MARCH 15

The reserved section of the NAGPRA regulations, 10.11, the disposition of culturally unidentifiable Native American human remains, is set to publish on Monday, March 15, as a final rule. The rule will be effective on May 14, 2010. During the 60 days, the public may submit additional comments on the rule to Regulations.gov. The comments will thereafter be considered as to whether amendment to the rule is appropriate.

The National NAGPRA Program will offer a webinar prior to the comment deadline, which will include a training on the rule. The webinar date will be announced shortly anticipating a 200 capacity access line.

Gaming on Newly Acquired Lands Rule Apparently Not Submitted to GAO

Kate Fort2 Comments

A recent Congressional Research Service (CRS) report detailed the number of agency rules which were not passed on to the Government Accounting Office (GAO).  Hat tip, Constitutional Law Prof Blog.  The report concludes that over 1,000 rules over the past 10 years had not been submitted to the GAO.  The reason for this requirement, according to the CRS report is as follows:

Agency regulations generally start with an act of Congress, and are the means by which statutes are implemented and specific requirements are established. Therefore, Congress has a vested interest in overseeing the regulations that agencies issue pursuant to those statutes. Because congressional authority over agency rulemaking was believed to have waned in recent decades (while presidential authority over rulemaking had increased), the CRA was enacted in an attempt to reclaim a measure of congressional control.107 Although Congress can learn about the issuance of agency rules in many ways, the requirement in Section 801(a)(1)(A) of the CRA that agencies submit all of their final rules to GAO and Congress before they can take effect helps to ensure that Congress will have an opportunity to review, and possibly disapprove of, agency rules.

Curious, we decided to try to find out if the recent advisory letter turned rule regarding gaming on newly acquired trust lands (with the 25 mile radius or near a “significant number of tribal members” requirement) was one that hasn’t been submitted to the GAO pursuant to the Congressional Review Act.   It appears it is.  25 CFR 292, “Gaming on Trust Lands Acquired After October 17, 1988” does not come up in a search of the GAO’s database Federal Rules Database.

Federal Register Notice for Comments on Interior Strategic Plan

Matthew L.M. Fletcher

Here. Of note, the Department is seeking comments about how Interior can improve its tribal self-governance and tribal economic development programs, etc.

November 10, 2009 is the deadline.

Executive Summary of IRS Bonds Notice from Russ Brien

Matthew L.M. Fletcher

Here is Russ Brien’s summary of the IRS Tribal Bonds notice from last week — 2009-51 ES

ICT on the Politics of the Carcieri Fix (and the Dictionary Act)

Matthew L.M. Fletcher

From ICT:

WASHINGTON – Excited rumbles trickled through Indian country after a letter to the editor was published recently in Indian Country Today, asking whether a little known legislative doctrine could help reverse the Supreme Court’s ruling in Carcieri v. Salazar.

The writer of the letter, lawyer Joseph E. Bernstein, noted that the Dictionary Act modifies the present tense in all federal statutes to include the future tense, unless the context indicates otherwise.

Given that the court seemingly ruled in contradiction to the law – deciding that the phrase “now under federal jurisdiction” of the Indian Reorganization Act refers to those tribes that were under federal jurisdiction only when the IRA was enacted in 1934 – Bernstein asked whether tribal and federal lawyers could get a rehearing.

Department of Justice lawyers arguing the case hadn’t mentioned the Dictionary Act in their arguments, nor had tribal legal experts, so Bernstein thought they might be able to raise a new point of law focused on the future tense language of the law.

Could it be that simple? Could there really be a quick legal fix to help tribes prevail after the Supreme Court upended many tribal, federal and legal understandings of the IRA by restricting the BIA’s longstanding tribal land into trust process? If not a legal fix, couldn’t Congress just make a fast fix?

Legal and legislative experts say the only thing simple regarding those questions are the answers to them: No, no, and maybe not.
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