Bethany C. Sullivan & Jennifer L. Turner on Carcieri

Bethany C. Sullivan and Jennifer L. Turner have published “Enough Is Enough: Ten Years of Carcieri v. Salazar” in the Public Land & Resources Law Review. Here is the abstract:

Ten years ago, the United States Supreme Court issued its watershed decision in Carcieri v. Salazar, landing a gut punch to Indian country. Through that decision, the Supreme Court upended decades of Department of the Interior regulations, policy, and practice related to the eligibility of all federally recognized tribes for the restoration of tribal homelands through the Indian Reorganization Act (IRA) of 1934. The Court held that tribes must demonstrate that they were “under federal jurisdiction” in 1934 to qualify for land into trust under the first definition of “Indian” in the IRA. Carcieri has impacted all tribes by upending the land-into-trust process and requiring tribes (and Interior) to spend scant resources to establish statutory authority for trust land acquisitions, a burdensome task that had previously been straight forward. In addition, Carcieri has complicated, if not prevented altogether, trust acquisition for tribes who face difficulty in making the requisite jurisdictional showing. 

This Article provides the first comprehensive analysis of the last ten years of Indian law and policy that have unfurled from the Supreme Court’s decision. It describes how Carcieri has been weaponized by states, local governments, citizens’ groups, individuals, corporations, and even other tribes, to challenge the exercise of tribal sovereignty through the acquisition of tribal lands, and, at times, the very existence of Indian tribes. This Article details the litigation that has since ballooned, illustrating the dangerous scope creep of Carcieri, while categorizing and evaluating the underlying claims. It also looks to the future, and concludes that, while unlikely, a universal, clean congressional fix is the only real solution. The last ten years of litigation, hearings, and never-ending debate demonstrate that Carcieri is not a constructive or appropriate framework for resolving larger policy questions about the land-into-trust process. Finally, the Article ends by providing practice tips for tribes navigating the current Carcieri landscape.

Opposition Briefs in Stand Up For California v. Dept. of Interior

Here:

North Fork Rancheria Opposition Brief

US Opposition Brief

UPDATE 12/12/18): Reply

Cert petition here.

Stand Up For California v. Dept. of Interior Cert Petition

Here:

sufc cert petition

Questions presented:

1. This case presents the question whether the Secretary may conclude that a casino “would not be detrimental to the surrounding community” despite uncontroverted evidence the casino will have unmitigated detrimental impacts to the community.

2. This case presents the question whether multiple Indians residing on the same reservation are, per se, an “Indian tribe” irrespective of the individual Indianstribal affiliations, if any.

Lower court materials here.

 

D.C. Circuit Affirms Interior Trust Acquisition for North Fork Rancheria of Mono Indians

Here is the opinion in Stand Up for California! v. Dept. of Interior:

Stand Up Opinion

Briefs here.

Ninth Circuit Denies En Banc Review of Ione Casino Challenges

Here are the materials in No Casino in Plymouth v. Zinke:

Ione adv No Casino – 9th Circuit – Order Denying No Casino Petition for Panel Rehearing or Rehearing En Banc filed 01-11-2018

Ione Band Response [No Casino]

No Casino En Banc Petition

US Response [No Casino]

Here are the materials in County of Amador v. Dept. of Interior:

Ione adv Amador County – 9th Circuit – Order Denying County Petition for Rehearing En Banc filed 01-11-2018

Amador County En Banc Petition

Ione Band Response [Amador]

US Response [Amador]

Panel materials in both cases here.

 

 

Litigation Update on Cases Addressing the “Under Federal Jurisdiction” Requirement of the Indian Reorganization Act (Plus Other Things)

Here.

Prepared for the FBA’s DC Indian Law Conference this Friday!

Interior Prevails in Defense of Ione Band Trust Land Acquisition in Ninth Circuit

Here is the opinion in County of Amador v. Dept. of Interior. UPDATE: And the unpublished opinion in No Casino in Plymouth v. Zinke.

An excerpt:

This case involves a dispute over a proposed casino in Amador County, California. Plaintiff, the County of Amador (“County”), challenges a 2012 record of decision (“ROD”) issued by the United States Department of the Interior (“Interior”) in which the agency announced its intention to take land into trust for the benefit of the Ione Band of Miwok Indians (“Ione Band” or “Band”). The ROD also allowed the Ione Band to build a casino complex and conduct gaming on the land once it is taken into trust. Reviewing Interior’s decision under the Administrative Procedure Act (“APA”), we conclude that the agency did not err. Accordingly, we affirm the district court’s award of summary judgment to Interior and the Ione Band.

Briefs here.

Ninth Circuit Argument Video in Appeals in Challenge to Ione Band Gaming Related Trust Acquisition

Here is the video in No Casino in Plymouth v. Zinke (briefs here).

Here is the video in County of Amador v. Dept. of Interior (briefs here).

Ninth Circuit Briefs in Citizens for a Better Way v. Zinke

Here:

Opening Brief

Federal Response Brief

Estom Yumeka Maidu Tribe Answer Brief

Reply

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