Department of Interior

Mistake for Federal Agencies to Make Post-Carcieri Lists

Matthew L.M. Fletcher2 Comments

It is inevitable that interested parties will want to know, or at least speculate, on which Indian tribes are truly affected by Carcieri v. Salazar. Interior and/or BIA may be drawing up lists. NCAI and NIGA are probably doing the same. And now so is NIGC. Update: Not so, according to Chairman Hogen. But I think it may be a mistake for the federal agencies to do so, and to trumpet the fact, as NIGC seems to be doing. The key thing to remember is that Carcieri is an absurdity, maybe not based on the statute or even the legislative history (the SCT has spoken), but in reality.

NIGC’s list is “a list of those tribes recognized after 1934,” according to Indianz. So what does that mean? It could mean, plausibly, every tribe. Interior has never kept a “list” of tribes under federal recognition and didn’t even keep a formal list of federally recognized tribes until 1994. And so maybe there was no tribe meeting these phantom definitions until Interior started informing tribes that they were about to have a Secretarial election under the IRA, post-IRA. And we’re pretty sure Interior’s decision on which tribes got to vote were arbitrary and often capricious. If NIGC’s going to start with the list of tribes that had IRA elections in the 1930s, then that list will be wrong to some extent.

And if a list is wrong, even as to one tribe, then the federal agency is wrong to generate such a list. Even if it doesn’t publish the list, it is probably subject to a FOIA request. Tribes incorrectly designated will be legally disadvantaged.

Finally, not to pick on the NIGC or Chairman Hogen (both have gotten some bad and unfair press lately), NIGC is not the primary interpreter of “under federal jurisdiction” or federal recognition. Interior is. And Interior has 75 years of history to review before it can come to any conclusions about any one tribe.

There is really no reason for any federal agency to make a list right now. It’ll be subject to litigation as soon as any one decision on the list becomes important, and I’d hate to see NIGC or Interior lose a fight on Chevron or Skidmore deference if they try to push their conclusions based on any such list.

Is There a Money Claim Against the US Post-Carcieri?

Matthew L.M. Fletcher4 Comments

I see now that the Dept. of Interior is (un)officially segregating Indian tribes for purposes of trust acquisitions (see email reported on Indianz), shutting down (apparently) some trust applications and allowing others to proceed, that the first impacts of Carcieri have reached Indian Country, as expected.

Maybe it’s worth revisiting what the Supreme Court did in Carcieri from a slightly different point of view. Arguably, a money claim against the United States for failure to properly recognize certain Indian tribes in 1934 has now accrued.

Consider. The Court has effectively created classes of Indian tribes, as seemingly established by the email:

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ICT on Gun Lake Band Fee to Trust Victory

Matthew L.M. Fletcher

From ICT:

BRADLEY, Mich. – The Interior Department has formally taken 147 acres of land into trust for the Gun Lake Tribe, ending a decade of opposition from an anti-Indian casino group.

Interior’s action took place Jan. 30; nine days after the U.S. Supreme Court denied a petition from Michigan Gaming Opposition (MichGO) challenging the interior’s authority to take land into trust.

A few days earlier, U.S. District Court Judge Richard J. Leon tossed out a motion filed by former Wayland Township Trustee David Patchak, asking for a stay to stop the federal government from putting the tribe’s land into trust. Both actions were based on a highly controversial land into trust case – Carcieri vs. Narragansett – filed by the state of Rhode Island against the Narragansett Indian Tribe. Carcieri questions the interior secretary’s authority to take land into trust and whether land can be taken into trust for tribes that were not recognized in 1934, the year of the Indian Reorganization Act.

The two legal actions end any ambiguity about Gun Lake’s legal ability to move forward with its planned $200 million casino.

The tribe issued a press release with the exuberant headline “In land we trust.”
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Article on Peabody Coal, Black Mesa, and the Bush Administration

Matthew L.M. Fletcher

From CounterPunch:

Two days before Christmas, officials from the U.S. Office of Surface Mining (OSM) have granted a permit to Peabody Coal Company to expand their mining operations on Navajo and Hopi lands, despite opposition from local communities and problems with the permitting process including lack of adequate time for public comment on a significant revision to the permit, insufficient environmental review, and instability in the Hopi government preventing their legitimate participation in the process. OSM’s “Record of Decision” (ROD) is the final stage of the permitting process for the proposed “Black Mesa Project,” which would grant Peabody Coal Company a life-of-mine permit for the “Black Mesa Complex” in northern Arizona.

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Sac and Fox Nation v. DOI Materials

Matthew L.M. Fletcher1 Comment

Here are the materials in the most recent order from the district court in this long-running case (H/T Indianz).

dct-order-on-motion-to-vacate-2001-decision

govt-motion-to-dismiss

sac-and-fox-opposition-brief

govt-reply-brief

DCT Opinion

NYTs: Interior Department Corruption Endemic

Matthew L.M. Fletcher

From the NYTs [Here’s the report]:

WASHINGTON — As Congress prepares to debate expansion of drilling in taxpayer-owned coastal waters, the Interior Department agency that collects oil and gas royalties has been caught up in a wide-ranging ethics scandal — including allegations of financial self-dealing, accepting gifts from energy companies, cocaine use and sexual misconduct.

In three reports delivered to Congress on Wednesday, the department’s inspector general, Earl E. Devaney, found wrongdoing by a dozen current and former employees of the Minerals Management Service, which collects about $10 billion in royalties annually and is one of the government’s largest sources of revenue other than taxes.

“A culture of ethical failure” pervades the agency, Mr. Devaney wrote in a cover memo.

The reports portray a dysfunctional organization that has been riddled with conflicts of interest, unprofessional behavior and a free-for-all atmosphere for much of the Bush administration’s watch.

The highest-ranking official criticized in the reports is Lucy Q. Denett, the former associate director of minerals revenue management, who retired earlier this year as the inquiry was progressing.

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Update in CECGAC v. Hogen Case re: Seneca Gaming Case

Matthew L.M. Fletcher

The plaintiff, CECGAC, have moved to enforce the judgment rendered earlier this month regarding the Buffalo parcel where the Seneca Nation of Indians have been operating a casino. The United States has moved to remand the case back the National Indian Gaming Commission to reconsider the parcel in light of the new Section 20 regulations [25 CFR Part 292], and the Senecas have filed an amicus brief in support.

cegcac-motion-to-enforce-judgment

federal-defendants-motion-for-remand

seneca-amicus-brief-re-remand

Oneida Fee to Trust Lawsuits Commentary

Matthew L.M. Fletcher1 Comment

Indianz reports that a plethora of lawsuits will be filed against Interior’s decision to take land into trust for the Oneida Indian Nation of New York.

Bear in mind that (in my limited understanding) much of the land in question here is the same land in question in the City of Sherrill v. Oneida Indian Nation case from 2005. Unfortunately (we now know), the Nation sought to avoid state and local taxation and regulation on that land when it was held in fee simple under federal Indian law principles. Those principles supported the OIN, but only as far as the Supreme Court, which reversed.

Now the OIN is pursuing the path they (perhaps, in hindsight) should have pursued all along — asking the Secretary to take the land into trust. So far, they have been successful, which was no easy feat given the mountain of documentation required to convince the Secretary, but several years have passed since this started, and there might be a new legal climate on the constitutionality of the fee to trust statute, 25 U.S.C. 465.

Perhaps as early as next fall, the Supreme Court might rule in Carcieri v. Kempthorne that the Secretary has no authority to take land into trust for tribes not recognized in 1934. After that, the Oneida case is the kind of case that the Supreme Court might be willing to use to decide whether or not the fee to trust statute is unconstitutional on its face. I would be surprised, because a successful challenge to the fee to trust statute likely would require the Court to go in depth into its nondelegation doctrine and/or Tenth Amendment jurisprudence, areas in which the Roberts Court has not expressed much interest.

We’ll see.

Kickapoo v Texas — Texas Asked to Respond to Cert Petition

Matthew L.M. Fletcher

Mildly interesting development in the Kickapoo case regarding the CA5’s decision to strike down the so-called Class III procedures (aka the “Seminole” fix). Kickapoo filed the cert petition, a tribal amicus brief supported the petition, but then Texas declined to respond (which is a respondent’s prerogative, especially in a case where there does not appear to be a clean circuit split). The US, the defendant in the original case, filed a brief urging the SCT to decline the case, although the brief went into detail into just how wrong the government thought the CA5 decision was.

Now the Court has asked for Texas to respond. In my limited experience with the Court’s internal dynamics, the Court might do this as a means of delaying a decision on a cert petition, but for what, in this case, I don’t know.

Written Testimony in Senate Hearing on DOI Backlogs

Matthew L.M. Fletcher

From the Senate Indian Affairs Committee website:

THE HONORABLE CARL J. ARTMAN
Assistant Secretary – Indian Affairs, U.S. Department of the Interior
Washington, DC

THE HONORABLE ROBERT CHICKS
Mid-West Area Vice President, National Congress of American Indians; President, Stockbridge Munsee Band of Mohican Indians
Bowler, WI

THE HONORABLE GARY SVANDA
Council Member, City of Madera
Madera, CA

MR. DOUG NASH
Director, of Indian Estate Planning and Probating, Institute of Indian Estate Planning and Probate
Seattle, WA