Washington COA Rejects Cowlitz Members’ Aboriginal Fishing Rights Claim

Here are the materials in Simmons v. State of Washington:

Fletcher — The Consequences Of Divide-And-Conquer: Carcieri Redux (Law360.com)


The Consequences Of Divide-And-Conquer: Carcieri Redux

In Carcieri v. Salazar, the U.S. Supreme Court held that the Narragansett Tribe was not “under federal jurisdiction” in 1934, and therefore the U.S. Department of the Interior could not acquire land in trust for the tribe. The DOI’s decision to acquire trust land for the Cowlitz Tribe is one of several controversial post-Carcieri trust acquisitions. Now comes a petition for a writ of certiorari to the Supreme Court from the challengers, Citizens Against Reservation Shopping v. Jewell.

Whether an Indian tribe was “under federal jurisdiction” in 1934 is rooted in complex tribal-federal histories. Congress passed the Indian Reorganization Act in 1934, and authorized the Interior Secretary to acquire land in trust. The statute states that the DOI can acquire land for “recognized Indian Tribe[s] now under Federal jurisdiction.” The federal government interpreted that language to mean tribes recognized at the time of a decision to acquire land for seven decades. In Carcieri, the Supreme Court held that “now” unambiguously meant at the time of the passage of the sct, rejecting the government’s interpretation. The federal government did not know in 1934 what tribes were “recognized” or “under federal jurisdiction,” or even what those terms meant. Carcieri has added additional — and highly complex — layers of analysis to federal trust acquisitions.

The DOI agreed to acquire land in trust for the Cowlitz Tribe for gaming purposes in 2011. Through the regular federal acknowledgment process, 25 CFR Part 83, the DOI acknowledgedthe tribe in 2002. The acknowledgment process requires petitioning tribes to demonstrate they existed as a distinct tribal community since 1900 or earlier. The Cowlitz tribe entered into failed treaty negotiations with the United States in 1855, but according to the DOI and the D.C. Circuit, the federal government continued a government-to-government relationship with Cowlitz from then into the 20th century. It seems plausible that the government “recognized” the tribe, whatever that may mean (to channel Felix Cohen, who wrote exactly that phrase in 1934 to describe this statute). The court concluded in Confederated Tribes of the Grand Ronde Community v. Jewell that the statute is ambiguous, and the DOI’s interpretation is entitled to Chevron deference.

That the case involved a challenge by another Indian tribe, Grand Ronde, to the Cowlitz matter begs the question about the interests at play in a challenge to a trust acquisition. Grand Ronde’s share of the gaming market in northern Oregon stands to suffer some if the Cowlitz Tribe commences gaming operations closer to Portland. Siding with local units of government, a local anti-Indian community group, and other non-Indian gaming interests, Grand Ronde led the effort to use Carcieri to defeat Cowlitz and the Interior Department. Interests opposing Indian gaming could not have drawn up a divide and conquer strategy any better. More broadly, the lobbying effort to persuade Congress to “fix” the Carcieri decision with an amendment to the 1934 Act is similarly stymied by intertribal conflicts, with some established tribal gaming interests quietly lobbying against a fix. Now that the case is headed to the Supreme Court, the Grand Ronde tribe has dropped out, as have the local government entities, but their anti-Cowlitz partners are taking up the slack in their stead.

It is only a matter of time before Carcieri-based challenges to fee-to-trust acquisitions by the DOI reach the Supreme Court given the financial stakes involved. There are other cases in the pipeline involving tribes such as the Oneida Indian Nation of New York and the Ione Band of Miwok Indians. More cert petitions may soon be forthcoming.

Barring acquiescence by the United States or another unusual development, it is unlikely the court will grant review in the Cowlitz matter. Normally, the court does not grant review in matters of limited importance unless there is a clear circuit split on federal law. Other than a federal district court decision involving the Mashpee Wampanoag Tribe (currently on appeal in the First Circuit), the Interior Department’s trust acquisitions challenged under the Carcieri decision have been affirmed. In short, the D.C. Circuit’s decision squares with the outcomes in prior cases in the Second and Ninth Circuits. Even if the outcomes had been different, the applicable law is not currently in doubt. As noted above, each tribe’s history is different, rendering every fee-to-trust decision extremely fact-specific (or factbound, in the court’s parlance). As I noted in my paper, Factbound and Splitless, any cert petition labeled “factbound and splitless” has virtually no chance of being reviewed by the Supreme Court.

That said, my research also shows that the Supreme Court is more likely to grant certiorari in Indian law matters, which involve unique federal interests, and (unfortunately for tribal interests) in cases where tribal interests and their federal partner have prevailed below. The court might conclude on its first look that the Interior Department or the federal circuit courts are simply wrong on the law, and docket the case for review.

In any event, the Carcieri decision spawned a great deal of litigation in an area — tribal gaming — that has important financial stakes, as well as the possibility of inter-tribal conflict. While the Cowlitz matter might not be the vehicle to answer the ultimate question of the meaning of Carcieri and the Department of the Interior’s response, there will be similar cases in the future, perhaps leading to inter-tribal sparring at the Supreme Court.

Matthew L.M. Fletcher is a professor of law at Michigan State University College of Law. Fletcher is the primary editor and author of the leading law blog on American Indian law and policy, Turtle Talk.

The opinions expressed are those of the author(s) and do not necessarily reflect the views of the firm, its clients, or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.

Citizens Against Reservation Shopping v. Jewell Cert Stage Materials

Cert Petition:

Citizens Against Reservation Shopping v. Jewell

Questions presented:

1. Whether, to have been a “recognized Indian tribe now under Federal jurisdiction” in 1934, a tribe must have been “recognized” at that time.
2. Whether, to have been “under Federal jurisdiction” in 1934, a tribe must have been located in Indian country – that is, on land over which the United States exercised jurisdiction to the exclusion of State jurisdiction.
Lower court materials here.

D.C Circuit Affirms Interior Trust Acquisition for Cowlitz

Here is the opinion in Confederated Tribes of the Grand Ronde Community of Oregon v. Jewell:

Confederated Tribes of Grand Ronde Community v. Jewell DC Cir 7-19-16

Briefs here.

D.C. Circuit Briefs in Confederated Tribes of the Grand Ronde Community of Oregon v. Jewell (Cowlitz Tribe)


Grand Ronde Opening Brief

Clark County Opening Brief

Federal Answer Brief

Samish Amicus Brief

Cowlitz Brief

USET Amicus Brief

Clark County Reply

Grand Ronde Reply

Lower court materials here.

Who Won Indian Law and Policy in 2014? First Round Bracket — 2 of 8

Here we go again (first bracket here):

# 2 Sault Ste. Marie Tribe of Chippewa Indians

Perhaps the most immediate beneficiary of the Bay Mills win in the Supreme Court, which persuaded the State of Michigan to seek another route to fighting Sault Tribe’s Lansing casino proposal. But not before Sault Tribe proposed two huge off-reservation casinos. Oh yeah, they won a $74 million contract case, too. Pretty good year.


# 15 Fond du Lac Band of Lake Superior Ojibwe

Still embroiled in disputes (here and here) with the City of Duluth over the Fond du Luth Casino and related properties. Won one right before Christmas though.

# 7 Gun Lake Tribe

Seeding might be a little high; a little hometown bias. Anyway, who else got Congress to overturn a Supreme Court decision in 2014, hosted the Potawatomi Gathering, and is an overall, good citizen?


# 10 Wind River Tribes

Lots of action this last year, what with Wyoming going berzerk over the EPA’s decision to let tribal agencies measure air quality, and with much internal strife. 2015 should be a real interesting year.

# 3 Bay Mills Indian Community

Well, they won a Supreme Court case. Not a whole lot else going on. Sault Tribe, as we noted, passed them in the seeding.


# 14 Cowlitz Tribe

Along with Interior, won a big one over neighboring tribes who claimed Cowlitz is a tribe barred from eligibility for trust land acquisitions by Carcieri.

#6 Navajo Nation

How can Navajo be seeded so low? They’re arguably the most important tribe every year, right? Well, yes, but they took some hits this year, too. Lost a tribal civil jurisdiction case in the Ninth Circuit, lost (or did they concede) on whether New Mexico can transport tribal members off rez to take drug tests, is going through one of the ugliest tribal election disputes in recent memory, fighting off Hopi and enviro challenges to their energy generators, lost a big water rights case, suffered through an ugly internal fight over a tribal resources company, lost one in the D.C. Circuit, got some bad news on uranium pollution, and lost legendary code talker Chester Nez. On the other hand, Navajo settled a huge trust case with the feds, won one against HUD, won a big one in the Ninth Circuit on Navajo’s tribal preference in employment statute, and hosted Michigan and Michigan State law students over spring break.

All in all, no one beats Navajo on volume, but this one’s a mixed bag.


# 11 Lac Courte Oreilles Band of Lake Superior Ojibwe (and other Wisconsin treaty tribes)

Won a huge treaty rights case in the Seventh Circuit (miigwetch Judge Posner) on the night deer hunting controversy.

Interior Prevails in Carcieri-Based Challenge to Cowlitz Trust Acquisition

Here are the materials in Confederated Tribes of the Grand Ronde Community v. Jewell (D. D.C.):

23 Grand Ronde Motion

24 Clark County Motion

36 Interior Response

39-1 Samish Amicus Brief

44 Cowlitz Motion

54 Grand Ronde Response

59 Clark County Reply

65 Interior Reply

66 Cowlitz Reply

71 La Center Amicus Brief

72 Warm Springs Amicus

73 Samish Amicus Brief

74 Jamestown Sklallam Amicus Brief

76 Chinook Amicus Brief

85 Memorandum Opinion

Briefs Filed in Grand Ronde et al v. Jewell

Grand Ronde’s Motion for Summary Judgment
Grand Ronde Exhibit One
Clark County et al Motion for Summary Judgment

Previous coverage of the case here.