D.C. Circuit

MichGO v. Kempthorne — Stay Issued

Matthew L.M. Fletcher

From the AP:

WASHINGTON — A federal appeals court has issued a stay preventing a proposed tribal casino in Allegan County from moving forward.

The D.C. Circuit Court of Appeals issued the order Friday pending a potential review from the U.S. Supreme Court. Opponents of the casino have asked the Supreme Court to hear the case.

The Gun Lake tribe wants to build a $200 million casino in Allegan County’s Wayland Township. A group called Michigan Gambling Opposition has spent years trying to stop the casino from being built.

The appeals court sided with the tribe earlier this year, upholding a decision by the federal government to set aside 147 acres of land where the casino would be built near Grand Rapids.

ICT on MichGO’s Ongoing Legal Wrangling

Matthew L.M. Fletcher1 Comment

From ICT:

WAYLAND COUNTY, Mich. – In an effort to take advantage of every possible opportunity to delay the Gun Lake Tribe’s casino, the anti-Indian casino group Michigan Gambling Opposition – MichGO – has asked a court to stop all further action while the group files a petition for a writ of certiorari with the U.S. Supreme Court.

MichGO’s latest tactic followed a July 25 ruling by the U.S. District Court of Appeals for the District of Columbia denying the group’s request for a full panel, or en banc, rehearing of the court’s 2 – 1 decision in April upholding a district court decision to allow the Interior Department to take 147 acres of land into trust for the tribe’s proposed $200 million casino.

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D.C. Circuit Denies Petition for Rehearing in MichGo v. Kempthorne

Matthew L.M. Fletcher

Here is the order — michgo-rehearing-denial

Three judges (Sentelle, Griffith, and Rogers) voted to rehear the case en banc, three short of the necessary votes. Of course, that semi-near miss gives the attorneys for MichGO fodder for making noise about a cert petition (see news report here).

I really have to think that this case is getting so much attention — not because of the merits of the case — but because these same lawyers have been working on three cases so far (TOMAC, CETAC, and now MichGO) and this is finally the end. It bears repeating that these three cases were all carbon-copy cases, with little to differentiate them at all. They have almost no merit whatsoever, and even the D.C. Circuit all but labeled them frivolous in the CETAC opinion. The Gun Lake case is no different than the previous cases, except it is the last one.

D.C. Circuit Decides Freedmen Case

Matthew L.M. Fletcher

The D.C. Circuit reversed the lower court’s determination that the 13th Amendment abrogated tribal sovereign immunity, but held that the Ex parte Young doctrine allows a suit against Cherokee Nation tribal officials to proceed.

Here is the opinion.

Here are the D.C. Circuit briefs.

En Banc Petition in MichGO v. Kempthorne

Matthew L.M. Fletcher

We don’t have the petition yet, but here’s the D.C. Circuit clerk’s order and the article from ICT:

WASHINGTON – In what will likely be the last of its many legal challenges, an anti-Indian casino group has asked a federal appeals court to determine if a law that has been restoring swindled and expropriated indigenous land to Indians for almost 75 years is constitutional.

Michigan Gambling Opposition, or MichGO, petitioned the U.S. District Court of Appeals for the District of Columbia May 10 for an en banc court rehearing of its 2 – 1 panel decision to allow the Interior Department to take 147 acres of land into trust for the Gun Lake Tribe’s proposed casino.

MichGO wants the full nine-judge court to determine if the Indian Reorganization Act of 1934 violates the nondelegation doctrine by unconstitutionally allowing the Interior secretary to acquire or take into trust land for Indians.

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Commentary on the MichGO En Banc and Cert Petitions

Matthew L.M. Fletcher1 Comment

MichGo’s attorney asserts a plan to file a cert petition (see below the fold for the news article), and even boasts that he has three votes for cert already — Scalia and Thomas because they dissented in the South Dakota case in 1996, and Roberts because he represented a party making a nondelegation claim to 25 U.S.C. sec. 465 in 1999/2000.

This is spurious, given very recent events.

The Department of Interior just issued nearly-final IGRA Section 20 [25 U.S.C. 2719] regulations. These were the regulations I was talking about in my ICT editorial (not knowing they were about to be finalized). The very existence of these regulations severely blunts Judge Brown’s dissent in the D.C. Circuit case. Here, the Secretary is finally agreeing to formalize restrictions on his discretion contained in section 5 of the IRA [25 U.S.C. 465] in the context of Section 20 trust acquisitions.

One could make a plausible claim that, to the extent the SCT would be persuaded by a solitary dissent in a very minor case (nationally), it is now all but a dead letter.

What the D.C. Circuit should do is amend its decision to reflect the existence of the new regs, adding another nail to the coffin of the Section 5 nondelegation argument.

Finally, as MichGO’s attorney should know, one solitary dissent does not a circuit split make.

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John Shagonaby in the Allegan News re: Gun Lake Casino

Matthew L.M. Fletcher

From the Allegan News:

To the editor: In response to Kathy Cassady’s letter—“Think tribal ancestors wanted casino?” No, our ancestors simply wanted to retain our land, culture and sovereignty.

Upon learning that the U.S. Court of Appeals decided in yet another court case that the Gun Lake tribe has the right to build a casino, Chairman D.K. Sprague thanked the Creator because our families have suffered economically and socially for centuries; ever since we lost all the land everyone else currently enjoys, including Kathy Cassady.

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New Jersey v. EPA: Industry En Banc Petitions Denied

Matthew L.M. Fletcher1 Comment

Here is the order-denying-rehearing-en-banc-petitions-05-1097.

Appellate Court Rejects EPA, Industry Bid To Overturn Mercury Ruling

A key appellate court has rejected EPA and utility industry requests to rehear and overturn a ruling from a three-judge panel vacating the agency’s clean air mercury rule (CAMR), leaving supporters of the contentious rule with the option to either abandon it altogether or appeal the case up to the Supreme Court.

Environmentalists, however, doubt that the government will appeal the ruling to the high court, but leave open the option that industry may. “I would be astounded if the Solicitor General’s office walked this dog up to the Supreme Court’s steps to soil those grounds. The utility industry on the other hand follows different public health practices,” John Walke, clean air director at the Natural Resources Defense Council, said in a May 20 statement.

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Analysis of Judge Rogers’ Dissent in MichGo v. Kempthorne

Matthew L.M. Fletcher1 Comment

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.

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D.C. Circuit Affirms Match-E-Be-Nash-She-Wish (Gun Lake) Band’s Trust Land Decision

Zeke Fletcher3 Comments

The D.C. Circuit Court of Appeals held the Department of the Interior’s decision to place land into trust for the benefit of the Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians near Bradley, Michigan did not violate the National Environmental Protection Act nor did Section 5 of the Indian Reorganization Act constitute an unconstitutional delegation of legislative authority.

michgo-v-kempthorne

gun-lake-band-brief

Other briefs are here.