fee to trust – Page 14

Frank Pommersheim has published an important new paper titled “Land Into Trust: An Inquiry into Law, Policy, and History” in the Idaho Law Review. A PDF is here:

49 Idaho Law Review 519

Here is the introduction:

The land-into-trust policy of the Indian Reorganization Act (“IRA”) is an express legislative attempt to undo, or at least ameliorate, the massive loss of Indian land that resulted from the federal government’s allotment policy of the late nineteenth *520 and early twentieth centuries. The allotment policy occasioned a severe reduction in the national Indian land estate without any benefit to the affected Indians and tribes including the vaunted goals of assimilation and the reduction of poverty in Indian country. The extensive loss of land produced much economic hardship, cultural strain, and erosion of tribal governing authority.

The subsequent attempt of IRA law and policy to reverse this process of severe land loss raises significant questions about the ability of law, and Indian policy in particular, to repair history without creating new conflict that reprises, even deepens, old animosities. This article will survey and analyze this process from both a policy and empirical point of view. In addition, this piece will review the nitty-gritty administrative procedures for putting land into trust, the various procedural challenges to this process, as well as substantive legal challenges to the validity of the land-into-trust portions of the IRA, especially in the state of South Dakota. Finally, the article will tally the empirical results to date, and conclude by examining non-litigation strategies and solutions with an eye on their ability to meet the needs of all concerned.

HIGHLY recommended.

Ninth Circuit, on Reconsideration, Orders Interior Review of Gila Bend Act in Tohono O’odham Gaming Lands Appeal

May 21, 2013May 20, 2013Matthew L.M. Fletcher5 Comments

Here are the materials in City of Glendale v. United States:

Superceding panel opinion

Arizona & Glendale En Banc Petition

Gila River En Banc Petition

Federal Response

TON Response

The court’s syllabus:

The panel withdrew its prior opinion and published a superseding opinion affirming in part, and reversing and remanding in part, the district court’s summary judgment in favor of federal defendants in an action by the City of Glendale seeking to set aside the United States Department of Interior’s decision to accept in trust, for the benefit of the Tohono O’odham Nation, a 54-acre parcel of land known as Parcel 2 on which the Nation hoped to build a resort and casino.

The panel held the Gila Bend Indian Reservation Lands Replacement Act, read as a whole, was unambiguous and that § 6(c) of the Act created a cap only on land held in trust for
the Nation, not on total land acquisition by the tribe under the Act. The panel held that § 6(d) of Act was ambiguous as to whether Parcel 2, located on a county island fully surrounded by city land, was within the City of Glendale’s corporate limits. The panel held further that the Secretary of the Interior was mistaken in concluding that the term has a plain meaning, and remanded for the agency to consider the question afresh in light of the ambiguity the panel saw. Finally, the panel held that passage of the Act was within congressional power under the Indian Commerce Clause and was not trumped by the Tenth Amendment

News coverage here.

Previous panel materials here.

Federal Court Decides Cross-Motions for Summary J in Wyandotte Nation v. Salazar

April 11, 2013Matthew L.M. Fletcher1 Comment

Here are the materials:

DCT Order on Cross Motions

Wyandotte Motion for Summary J

Interior Opposition

Kansas Opposition

An excerpt:

Plaintiff Wyandotte Nation, a federally recognized Indian tribe (“the Nation”), filed this lawsuit against Kenneth Salazar, Secretary of the United States Department of the Interior (“the Secretary”), seeking an order from this Court compelling the Secretary to accept title to certain land and hold it in trust for the Nation’s benefit, as specifically required by Public Law 98-602, 98 Stat. 3149 (1984) (“P.L. 98-602”), under both the Administrative Procedure Act (“APA”), 5 U.S.C. § 706(a) and the Mandamus Act, 28 U.S.C. § 1361. The State of Kansas (“the State”) was permitted to intervene as of right under Fed. R. Civ. P. 24(a).1 This matter is before the Court on the Nation’s Motion for Summary Judgment (Doc. 60) and the Secretary and State’s cross-motions for summary judgment (Docs. 66, 69). The Court heard oral arguments on March 14, 2013, at which time the Secretary was directed to supplement the Administrative Record and the matter was taken under advisement. For the reasons explained in detail below, the Court denies the Nation’s motion and grants in part and denies in part the Secretary and the State’s cross- motions, retaining jurisdiction over the case until the agency issues a final decision on the Nation’s pending land-into-trust application.

Prior posts on this case here, here, and here.