From Indianz [complaint and motion for TRO at the bottom of the post]:
Monday, December 10, 2007
A Wisconsin tribe sued the Bush administration on Friday, accusing two political appointees of changing the land-into-trust process to block off-reservation casinos.
In 2006, several Alaskan Native communities sued the Department of the Interior for failing to take land into trust on their behalf under 25 U.S.C. 465 and 25 CFR Part 151. Not much has happened in the case (other than a motion to transfer venue to D. Alaska), but recently the State of Alaska moved to intervene.
Here is the amended complaint and other materials:
I’ve always taught my federal Indian law students that many — if not most — of the tribal constitutions adopted in the years immediately following the Indian Reorganization Act were imposed on the tribes by the Bureau of Indian Affairs. These were the model IRA constitutions. If you look at the constitutions adopted around that time, you see a lot of similar features: lack of separation of powers, no tribal courts, Secretarial approvals for everything up to and including breathing. But as Blake said, he who generalizes is a fool.
Recent works of scholarship challenge that notion that the Bureau imposed model constitutions. First, Elmer Rusco’s chapter in American Indian Constitutional Reform and the Rebuilding of Native Nations. And now David Wilkins’s introduction to the new book, Felix S. Cohen’s On the Drafting of Tribal Constitutions. Elmer Rusco’s 2000 book on the IRA, A Fateful Time, argues that the BIA considered thrusting model constitutions at tribes, but rejected the plan in favor of an outline. Wilkins notes that it appears some tribes did receive a model constitution from the BIA (the one reproduced as Appendix A in the Cohen book), and others received a model corporate charter or the outline.
It would be worthwhile to do a survey of the 181 tribes that voted to accept the IRA. What do their constitutions say?
From Indianz:
Florida threatens suit over Class III procedures |
Florida Attorney General Bill McCollum said he will sue the Interior Department if it issues Class III procedures for the Seminole Tribe. McCollum cited a 5th Circuit Court of Appeals decision that invalidated the Class III secretarial procedures. He said Interior can’t force a state to accept Class III gaming over the state’s objections. “They can put all they want in a letter to the governor, but I don’t think they can act on it,” McCollum told The Miami Herald. Interior says it will authorize the tribe to offer slot machines unless the state can reach a compact by November 15. The tribe and the state say they are near an agreement.
Get the Story:
State to sue feds if Seminole Tribe is given slots (The Miami Herald 11/8)
In a case where the Department of Interior issued a FONSI in 2006 and the Governor of New York concurred in the trust acquisition (for gaming purposes) shortly thereafter, Secretary Kempthorne still has not taken action. So, the St. Regis Mohawk tribe sued, alleging that the only reason for the delay is Secretary Kempthorne’s “personal views opposing off-reservation gaming.”
This will be an interesting case to watch.
http://seattletimes.nwsource.com/html/localnews/2003986669_klamathblast01m.html
Thursday, November 1, 2007 – Page updated at 02:02 AM
TODD E. SWENSON / AP
Explosives breached the Williamson River Delta Preserve levees to restore marshland for endangered fish, sacred to the Klamath Tribes, at Agency Lake near Chiloquin, Ore., on Tuesday.
Blasts clear dikes to restore Oregon marshland
By JEFF BARNARD
The Associated Press
CHILOQUIN, Ore. — Explosives sent clouds of dirt sky-high Tuesday, breaching dikes to restore marshland for endangered fish at the heart of a long, bitter battle over water in the Klamath Basin.
The charges of ammonium nitrate and fuel oil spaced 10 feet apart along two miles of earthen dike allowed water to start dribbling into 2,500 acres of the Williamson River Delta.
By spring, what used to be among the most productive farmland in the region is expected to be flooded.
It marked the culmination of 12 years of work to overcome animosities among farmers, Indians and conservation groups and to improve Upper Klamath Lake for Lost River suckers and shortnose suckers.
The fish are sacred to the Klamath Tribes. As endangered species, their water needs have twice forced shut-offs of irrigation to most of the 1,400 farms on the Klamath Reclamation Project, which covers 180,000 acres of high desert straddling the California-Oregon border east of the Cascade Range.
The most recent shut-off, in 2001, drew national attention again this year when The Washington Post reported that Vice President Dick Cheney took a hand in getting the water turned on for the benefit of farmers.
In December, the Tenth Circuit will hear oral argument in the United States’ appeal of the dismissal of the prosecution of Winslow Friday for the taking of eagle parts. The district court found that the difficulty for American Indians in obtaining eagle parts using the national eagle repository permit system violated the Religious Freedom Restoration Act. Specifically, the court held that the eagle repository permit system was not the least restrictive means to protect eagles and therefore infringed on the religious freedom of Winslow Friday.
One element of the case that might make it difficult for Winslow Friday is the apparent fact that he never applied for a permit. The lower court found that the application of a permit was futile. However, some American Indians did seek and receive permits to fatally take eagles, perhaps only 1 but perhaps as many as 5.
The lower court order is here: District Court’s Order of Dismissal
The Government’s opening brief is here: US Opening Brief
Friday’s response brief is here: Friday’s Response Brief
The Government’s reply brief is here: US Reply Brief
The Shinnecock tribe has an interesting argument in favor of their federal recognition. From the East Hampton Star:
“The Shinnecocks have since sued the Department of Interior in federal district court to be placed on the list. They maintain it is illegal to not place them on the list after they have received federal judicial recognition.
“The tribe also filed an amended complaint incorporating documents that show that the tribe was listed in a 1914 Department of Interior report to the United States Congress as a tribe in New York State subject to federal jurisdiction with federally protected lands. This was reaffirmed in other department lists dated 1929, 1938, and 1941, according to the Shinnecocks.
“Mr. Gumbs noted that the tribe was also included in a book “The Handbook of Federal Indian Law,” compiled by Felix Cohen for the Department of the Interior in 1945, which includes the Shinnecocks in its listing of tribes in New York State. The tribes listed here and in the other department lists have all since been added to the department’s current list of federally recognized tribes or have successfully sued to be placed on it without having to go through the Bureau of Indian Affairs review, he said.”
More details of the tribe’s claims are here.
From the Kalamazoo Gazette: “Both sides said they were optimistic after arguments were presented Friday before the U.S. Court of Appeals over the future of a proposed Indian casino in Wayland Township.James Nye, a spokesman for the Gun Lake Tribe of Potawatomi Indians, said the group is prepared to begin casino construction before year’s end if the three-judge panel ejects a challenge by Michigan Gambling Opposition, or MichGO.”
This case involves a challenge to the Secretary of Interior’s decision to take land into trust for gaming purposes benefiting the Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians (a/k/a Gun Lake Band).
Here is a recent news article noting that the D.C. Circuit heard oral argument in this case this morning.
Here is Gun Lake’s appellate brief [it is very large, 103 pages].
Turtle Talk 