News Profiles of Former Indian Law Prof Running for Congress

Spent last summer in ABQ hearing about how far Gavin Clarkson has fallen. It’s really sad.

Here is “Congressional candidate says bankruptcy is irrelevant” from the Santa Fe New Mexican from May 2018.

Here is “New Mexico candidate’s role in loan questioned” from the Santa Fe New Mexican from October 2018.

None of this is new, I suppose. We posted about much of it before. Clarkson was involved in a loan deal involving the Lower Brule Sioux Tribe that led to an OIG investigation and a Human Rights Watch report, details here. Here is the WaPo report on Clarkson’s resignation from Interior caused by his interference with the Lower Brule loan guarantee debacle. Another report from Indianz.

Quick update: Gavin’s name came up on my news feeds because he is suing New Mexico State for race discrimination, contract breach, etc. Here are the materials in Clarkson v. New Mexico Board of Regents (D.N.M.), which is still pending:

1 Notice of Removal + Complaint

3 Answer

14 Motion to Dismiss

20 Response + “Counter Motion”

25 Reply

26 DCT Order

Kirsten Carlson on Lobbying Congress for Federal Recognition of Indian Tribes

Kirsten Matoy Carlson has posted “Why Lobby Congress? Constitutive and Instrumental Influences on Indian Groups’ Strategies for Federal Recognition, 1977-2012” on SSRN. This paper is highly recommended.

Here is the abstract:

When and why do marginalized groups chose a particular institutional venue when pursuing their legal claims? This article combines theoretical and methodological insights from sociolegal and interest group studies to investigate why non-federally recognized Indian groups used legislative strategies for federal recognition from 1977 to 2012. It finds Indian groups employed legislative strategies both to increase their chances of success and for constitutive purposes, including educating the public and leveraging institutional tensions. The article’s emphasis on constitutive and instrumental motivations provides a more nuanced approach to understanding marginalized groups’ venue decisions.

Kirsten Carlson on Congress, Tribal Recognition, and Legislative-Administrative Multiplicity

Kirsten Matoy Carlson has posted her paper, “Congress, Tribal Recognition, and Legislative-Administrative Multiplicity,” on SSRN.

Here is the abstract:

For over thirty years, tribal leaders, state officials, members of Congress, and scholars have decried the process by which the United States recognizes Indian tribes. Most accounts have focused exclusively on the administrative process, omitting Congress from their analyses and suggesting that Congress plays a minor role in tribal recognition. The widely-accepted proposition that Congress has relinquished control over recognition is a testable hypothesis. This article tests this proposition empirically. The results call into question the dominant narrative about the congressional role in federal recognition and show that it is just plain wrong. In addition to debunking prevailing misconceptions, the data exposes an intriguing puzzle — a more complicated tale of legislative-administrative multiplicity. Federal recognition is not a uniform administrative process. Instead, parallel legislative and administrative processes exist and often intersect in complex ways. This discovery is an important first step towards understanding these dual processes and their implications for federal Indian law and understandings of legislative-administrative relationships more generally.

Highly recommended.

 

House Subcommittee on Indian Affairs Memo on Fee-to-Trust and Important Context

Today, the House Subcommittee on Indian, Insular, and Alaska Native Affairs is conducting a hearing entitled:

Inadequate Standards for Trust Land Acquisition in the Indian Reorganization Act of 1934.

In advance of the hearing, the Majority Staff circulated a memo calling the fee-to-trust provisions of the Indian Reorganization Act into question. Felix Cohen has described these provisions as the “capstone” of the IRA.

The Majority Staff Memo creates the perception that the BIA is an unfettered and unchecked bureaucracy that is gobbling up land for Indians at the expense of unsuspecting communities. It also gives credence to the notion that there is a need to curb “reservation shopping” to prevent some sort of massive proliferation of Indian gaming facilities.

The Majority Staff Memo ignores or omits some important context.

First, an overwhelming majority of tribal fee-to-trust applications are for lands that are located within or contiguous to an existing reservation. During my tenure with the Department of the Interior, this category comprised approximately 90 percent of all tribal fee-to-trust applications.

Of those applications, a large number of applications involve tribes seeking to consolidate their interest in parcels that are held in both fee and trust status. Congress encouraged these applications when it amended the Indian Land Consolidation Act in 2000 to address Emulsified Property.

Second, research by Professor Frank Pommersheim has shown that tens of thousands of acres of Indian lands continue to be taken out of trust status despite the IRA’s fee-to-trust language . The Majority Staff Memo does not mention this fact.

Third, the Majority Staff Memo promotes the canard that “reservation shopping” for casinos is a real problem in need of a remedy. The fact is that, since 2001, the BIA has approved a total of 27 fee-to-trust applications for gaming under IGRA’s exceptions) – 17 of which were approved during the Bush Administration. (this does not include two-part determination approvals). Tribal gaming applications have made up a very small fraction of the thousands of requests to have the Secretary acquire land in trust under the IRA. There is no reservation shopping “problem.”

Below, I’ve pulled some quotes from the Majority Staff’s ominous memo that warrant additional context:

CLAIM: “The only serious limit on the Secretary’s power, however, has been defined by the Supreme Court. In Carcieri v. Salazar, the Court held that the trust land provisions of the IRA may benefit only tribes that were ‘under federal jurisdiction’ on the date of enactment of the [IRA]. These are generally tribes with reservations subjected to 19th century allotment laws.”

CONTEXT: The Majority Staff Memo also describes the IRA as a “remedy” for allotment. Taken together, the Majority Staff Memo suggests that there are two classes of tribes under federal Indian policy: one class of “real” Indian tribes, which can establish a homeland, and another “lesser” class of Indian tribes that cannot have land acquired in trust.

Congress expressly rejected this notion in 1994, when it amended the IRA to prevent the BIA and other federal agencies from making this very distinction. Moreover, Justice Breyer’s concurring opinion in the Carcieri case itself explains that it is possible for tribes to have been “under federal jurisdiction” when the IRA was enacted, despite the fact that they were not recognized until later.

CLAIM: There has been one major challenge to the constitutionality of Section 5 of the IRA.

CONTEXT: The Majority Staff Memo makes a really big deal out of the 8th Circuit Court of Appeals’ 1995 opinion on this issue – calling it the “one major challenge”. The Majority Staff Memo somehow downplays the fact that the Supreme Court vacated that opinion.

The Majority Staff Memo either missed or ignored the much more recent case of MichGO v. Kempthorne, in which the Plaintiffs argued that the IRA’s fee to trust provisions were unconstitutional. The D.C. Circuit Court of Appeals upheld the Secretary’s authority under the U.S. Constitution.

Despite the Majority Staff’s claims about the lack of Supreme Court review of this issue, the Plaintiffs in MichGO petitioned the Supreme Court to examine this exact question. The Supreme Court denied their request, leaving the D.C. Circuit’s opinion as the most recent precedent on this issue.

CLAIM: “The [Allotment] Act failed because many Indians did not adjust or were not taught to adjust to the radical shift in their culture, economy, and lifestyle. Upon patenting the lands after a 25-year grace period when the allotments were retained in trust, many Indians sold or mortgaged their lands.”

CONTEXT: The Federal Government’s Allotment Policy failed because it resulted in the illegal sale of millions of acres of Indian lands to non-Indians, not because Indians were incapable of adjusting our culture.

This (mis)understanding of the shift from the Allotment Policy to the IRA may shed light on why the Majority Staff is concerned with the Secretary’s authority to acquire land into trust for Indians and Indian tribes in the first place.

The lesson to be learned from Allotment and Reoroganization (and Termination) is that Indians prosper when we have a homeland where we can determine how to organize our communities and economies, and that we suffer greatly when we don’t.

* * *

There is no doubt that some states, local governments, and communities have legitimate concerns over how to manage sharing jurisdiction with Indian tribes.  But, there is little evidence to suggest that the IRA has been an impediment to resolving those concerns.

Hopefully, this context shows that the IRA’s fee-to-trust authority has been enormously successful in the preservation of tribal communities and growth of tribal economies.

New Yorker: Supreme Court’s Contempt for Congress

Here.

“The Roberts Court has lost faith in the democratic process,” Professor Karlan wrote, noting that the conservative justices, at least in practice, reject the idea that the political branches have a “special institutional competence” in addressing certain questions. In his argument in the voting-rights case, Solicitor General Donald Verrilli tried this line, too, insisting on “the deference that Congress is owed… because, frankly, of the superior institutional competence of Congress to make these kinds of judgments.” This is probably a losing proposition on its face, unless one is talking about Congress’s superior competence at walking in circles with its shoes tied together. But when the legislative branch is not only disrespected but disabled—when the Court waves away the intent of Congress and takes away its tools to redress social and economic inequities—then Congress may well go to hell, and we’re going with it.

The post does not mention federal Indian law, or Adoptive Parents v. Baby Girl, or the oral arguments in the Bay Mills case, the inclusion of which would only make the argument stronger. And is yet another in a long list of reasons why this Court is no friend to Indian tribes.

Fixing Carcieri for Michigan

Fixing Carcieri for Michigan

Matthew L.M. Fletcher

Congressional action to correct the Supreme Court’s decision in Carcieri v. Salazar would cost American taxpayers nothing and would be an enormous win for Michigan tribes and the Michigan economy. Carcieri, a decision that undermines the certainty of the Department of Interior’s authority to acquire land in trust for some Indian tribes, makes borrowing money for several Michigan tribes more difficult and more expensive – for some Michigan tribes, the price to borrow money for capital growth increases by millions in increased interest or even the inability to borrow. In short, Carcieri costs the Michigan economy jobs and economic growth.

The Carcieri Decision

The Carcieri decision held that the Department of Interior could not take land into trust for the benefit of the Narragansett Indian Tribe in Rhode Island under Section 5 of the Indian Reorganization Act (“IRA”), a statute that authorizes the Secretary of Interior to do so for any Indian tribe. The IRA’s definition of “Indian tribe” includes any tribe “now under federal jurisdiction.” The Interior Department had interpreted the IRA to authorize trust land acquisitions for tribes under federal jurisdiction at the time of the application, using federal recognition as a proxy for federal jurisdiction. But the Supreme Court held that the Narragansetts were under state jurisdiction at the time of the enactment of the IRA in 1934, and so Interior could not take land into trust for them.

The Department of Interior had “administratively terminated” several Michigan Indian tribes – all of the six Ottawa and Potawatomi tribes now federally recognized – in the late 19th century. These tribes are “treaty tribes,” meaning that they have an ongoing treaty relationship with the federal government that has never been extinguished by Congress. The Sixth Circuit has recognized that “administrative termination” was an illegal administrative act, and the concurrences and dissent in Carcieri also recognized that the Michigan tribes probably were “under federal jurisdiction” in 1934. Still, those tribes, and two other tribes in the Upper Peninsula that became federally recognized in the 1970s and 1980s may be affected by Carcieri.

Impacts on Michigan Tribes

The Michigan tribes are among the tribes most adversely affected by the Carcieri decision, even though every one of them is a treaty tribe. They are affected in two important ways:

First, each of the tribes potentially affected by Carcieri may be forced to engage in a costly, protracted historical and legal determination by the Interior Department that they were “under federal jurisdiction” in 1934. In other words, the tribes may have to expend precious tribal resources to prove that they are eligible tribes in the frivolous lawsuits that are destined to be filed. There are currently 62 non-gaming related Michigan tribes trust applications pending in the Department of Interior now. These applications are for agriculture, housing, public safety, and other infrastructure projects. Many of these projects involve multi-million dollar construction jobs and long-term job creation. Every day that these trust applications are delayed slows down Michigan job growth and economic development. Nationally, a Carcieri fix is estimated to generate 140,000 jobs, many of those in Michigan.

Derek Bailey, the former chairman of my tribe, the Grand Traverse Band of Ottawa and Chippewa Indians, testified before Congress in 2009 about the clear economic consequences of trust land acquisition delays:

As one example, Parcel 45 in Antrim County is a 78-acre parcel that is zoned for residential development by the local township and county. In order to obtain this zoning, we spent 1.5 million dollars of tribal money for roads and for sewer, water, and electrical infrastructure to render the parcels ready for individual housing. The parcel contains two homes owned by tribal members, two Grand Traverse Band rental homes, and 22 empty lots available for Tribal members to construct housing. However, until the land is placed into trust, tribal members cannot obtain the Bureau leases necessary to secure housing financing.

Second, the cloud of Carcieri stifles any development project by potentially affected Michigan tribes. Carcieri increases risks to lenders – the risk that a court finds that a tribe is not eligible because of the Carcieri case, even if low, increases exposure – and that translates to millions of dollars in increased interest rates and occasionally shuts down the project altogether by eliminating the ability of the tribe to borrow money at all. Carcieri has all but killed off investment in Indian country. This issue extends to tribes that may have a Carcieri problem and tribes that already have established economic enterprises. Lower Michigan tribes, especially in southwest Michigan, are enormous economic engines that have generated massive economic growth despite the specter of Carcieri. Relieving these economic engines of this unnecessary burden is only going to improve Michigan’s economy.

In conclusion, fixing Carcieri is costless to American taxpayers and a big win-win for Michigan and Michigan tribes.

Fletcher on Free Speech and Tribal Law

My chapter, “Resisting Congress: Free Speech and Tribal Law,” from our book, The Indian Civil Rights Act at Forty.

Here is the abstract:

Congress codified the unsettled tension between American civil rights law and American Indian tribal law, customs, and traditions in American Indian communities by enacting the Indian Civil Rights Act (ICRA) in 1968. Concerned that individual rights were receiving short shrift in tribal courts and by tribal governments,Congress chose to apply a modified form of the Bill of Rights on tribal governments. In other words, Congress chose to impose American legal norms on Indian governments in order to protect those under tribal jurisdiction.As it had done previously in statutes such as the Indian Reorganization Act, Congress affirmatively sought to displace tribal law — and all the attendant customs and traditions, as well as Indian values — with American law. Ironically, after the Supreme Court interpreted ICRA in 1978, this law could only be interpreted and enforced by tribal courts. Tribal law and American civil rights law have been at odds in many tribal communities ever since, as tribal voters, legislatures, and courts have struggled with how (and whether) to apply American civil rights law in Indian country.

In this chapter, I explore several questions relating to tribal courts, tribal governments, and the Indian Civil Rights Act. For example, do tribal decision makers (i.e., voters, legislatures, and especially courts) deviate from the state and federal government and court interpretations of the Bill of Rights in applying ICRA; and if so, how much and in what way? Do tribal decision makers apply or incorporate tribal law, customs, and traditions into their decisions relating to civil rights under ICRA (and tribal laws that incorporate ICRA’s provisions); and if so, how? Are tribal decision makers truly bound by the provisions of the ICRA?The last question begs a final question: Does Congress have authority to force tribal decision makers how to decide civil rights disputes?