fee to trust

Government Sued Over Grand Traverse Trail Trust Land Decision in Peshawbestown

Matthew L.M. Fletcher

From the Traverse City Record-Eagle:

PESHAWBESTOWN — A group of local waterfront property owners are fighting a recent decision to place a former railroad corridor into federal trust status for the Grand Traverse Band of Ottawa and Chippewa Indians.

A public notice last month in Leelanau County prompted six land owners along Suttons Bay to file a federal complaint over a Bureau of Indian Affairs decision to move into trust more than 22 acres of the former railroad right-of-way.

The lawsuit, filed April 18, alleges federal officials’ final decision to put the property in trust “was unlawful, arbitrary, capricious, and an abuse of discretion, because the Grand Traverse Band does not have title to all of the land.”

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News Coverage of MichGo v. Kempthorne Case: Cert Petition Planned

Matthew L.M. Fletcher

I spoke to the author of this news article yesterday. He quotes me as making yet another prediction on whether the Court will grant cert as being “zero,” but what I thought I said was that MichGo’s chances of getting a stay is close to zero. I did say that I think a plausible Section 5 challenge will have to come from a different fact pattern, such as an off-reservation fee to trust decision, assuming there will ever be any again. Or a decision involving a wealthy gaming tribe like Oneida or Mashantucket Pequot.

Of note, the reporter told me that the MichGo attorney thought that the Carcieri case was a good sign for MichGo, in part because so many states signed on to an amicus brief supporting the cert petition. He thinks those states will support MichGo’s petition, too. But I wonder. States like Michigan and California are actually banking on the revenues from new Indian gaming operations in order to help balance their budgets. I don’t think these states would sign on, or else they’d be hurting themselves.

From Indianz:

An Indian law professor says there’s “zero” chance the U.S. Supreme Court will hear a land-into-trust case involving the Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians of Michigan. Matthew L.M. Fletcher, an assistant professor of law and director of the Indigenous Law & Policy Center at Michigan State University, said the court, at some point, will hear a challenge to the Indian Reorganization Act. The 1934 law authorized the land-into-trust process and opponents say it is unconstitutional. The D.C. Circuit Court of Appeals disagreed and ruled that the Bureau of Indian Affairs can acquire 147 acres for the tribe. A casino and other development are planned at the site. One judge, however, agreed that Section 5 of the IRA is unconstitutional. A group called Michigan Gambling Opposition hopes to convince the Supreme Court that the law is too broad. But Fletcher says the case is bogged down by other details to make it appeal-worthy. “I don’t think there’s any chance,” he told The Grand Rapids Press. “I really think the odds are close to zero that the Supreme Court would hear it.”

Get the Story:
Foes of Gun Lake Casino cling to slim legal hope (The Grand Rapids Press 5/2)
Gun Lake casino opponents down to last try (The Muskegon Chronicle 5/2)

“Reservations Rebuffed” — Article on Off Rez Gaming Policy

Matthew L.M. Fletcher

From CQ Politics:

Tribal casinos, which have bulked into a multibillion-dollar industry since Congress first gave them its blessing two decades ago, now possess all sorts of economic and political clout — but not enough, it seems, for them to go off the reservation.

American Indians marooned on reservations far from population centers have long pressed the Interior Department to grant them the authority to launch gambling operations closer to where the people willing to risk their money live — and rake in the sort of revenues that the more fortuitously situated tribes have enjoyed.

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Detroit News: Feds Defend Casino Plan Rejections

Matthew L.M. Fletcher

From the Detroit News:

WASHINGTON — Indian tribes face long odds in winning federal approval for casinos hundreds of miles away from their reservations, the Bush administration told Congress on Wednesday.

In defending the decision to reject 22 such off-reservation casino applications around the country, officials further angered tribal leaders who told the House Resources Committee that the government is trying to force Indians to stay on reservations with high unemployment and few opportunities.

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Written Testimony from House Resources Hearing re: New Fee to Trust Guidance

Matthew L.M. Fletcher

From the House Resources Committee:

Witnesses:
Panel 1
The Honorable Carl Artman, Assistant Secretary, Bureau of Indian Affairs, United States Department of the Interior, Washington, DC

Panel 2
The Honorable Lorraine White, Chief, St. Regis Mohawk Tribal Council, Akwesasne, NY
The Honorable Vincent Armenta, Tribal Chairman, Santa Ynez Band of Chumash Indians, Santa Ynez, CA
The Honorable Hazel Hindsley, Tribal Chairwoman, St. Croix Chippewa Indians of Wisconsin, Webster, WI
Mr. Jeff Warnke, Director, Government and Public Relations, Confederated Tribes of the Chehalis Reservation, Oakville, WA

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The Issues in Carcieri v. Kempthorne

Matthew L.M. Fletcher

The two questions presented in Carcieri v. Kempthorne have significant import for much of Indian Country. But it might be a mistake to conclude the first question (whether the Secretary can take land into trust for tribes that were not federally recognized in 1934, when the Indian Reorganization Act was passed) is an Indian law question. The outcome of that question may turn on the Supreme Court’s decision in National Cable & Communications Assn v. Brand X Internet Services, 545 U.S. 967 (2005). Huh?!?!?

Consider the United States’ brief in opposition to the petition for cert:

    As this Court held in [Brand X], a “judicial precedent” does not “foreclose an agency from interpreting an ambiguous statute” in a reasonable way that differs from the “court’s opinion as to the best reading” of the statute, unless “the prior court decision holds that its construction follows from the unambiguous terms of the statute and thus leaves no room for agency discretion.” [Brand X, at 982-83.]

Cert Opp at 9.

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Kevin Washburn testimony re: New Guidance on Off-Rez Gaming Lands Acquisitions

Matthew L.M. Fletcher

Kevin Washburn has posted on SSRN his testimony for tomorrow’s hearing before the House Resources Committee on the new guidance for the acquisition of off-reservation trust lands for gaming purposes.

Chief Justice Roberts & Federal Indian Law

Matthew L.M. Fletcher

Long before John G. Roberts, C.J. became life-tenured, he practiced. And he worked on at least three Indian law-related cases: Alaska v. Native Village of Venetie, Rice v. Cayetano, and (briefly) Roberts v. United States. Also, as part of President Reagan’s Office of Legal Counsel, he vetted several Acts of Congress related to Indian tribes.

Roberts won Venetie, representing the State of Alaska. He lost Rice, representing the State of Hawaii. And the Court denied his petition for cert on behalf of Hollis Roberts (no relation, one presumes) in Roberts v. U.S.

The now semi-notorious brief Roberts filed in Alaska v. Venetie is here: Venetie Petr Brief. It is notorious for the reversal of the “deadliest enemies” language in United States v. Kagama. The Kagama Court wrote that states and state citizens were the deadliest enemies of Indians and Indian tribes, but the Venetie brief (for no real good reason) altered the quote to mean that Indians and Indian tribes were the deadliest enemies of states and state citizens. Here’s my own paper on the archaic notion that states and tribes are “deadliest enemies.”

Hawaii’s brief in Rice v. Cayetano is here: Rice Resp Brief

Roberts’ cert petition in Roberts v. US is here: Roberts v. United States Cert Petn. This one is especially important since Roberts (and Roberts) brought a challenge to Section 465, the fee to trust statute. There is ongoing litigation involving Section 465 that may soon be appealed to the Supreme Court. To some extent, the legal challenge to Section 465 has morphed since the 1999 cert petition, but it is significant that Roberts, C.J. is aware of this kind of case.

Finally, we include the documents Roberts wrote as a member of the OLC. These came out during his Senate confirmation process.

Kickapoo OLC Memo

Reagan Indian Policy OLC Memo

Tribal Tax Status Act OLC Memo

Utah Paiute Act OLC Memo

Zuni OLC Memo

Shoalwater Bay OLC Memo

Las Vegas Paiute OLC Memo

I guess what these memos demonstrate is that young Roberts was a serious conservative and a funny guy (unless you were the subject of the humor).

Gun Lake Casino Oral Argument Report

Matthew L.M. Fletcher3 Comments

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.”

MichGO v. Kempthorne Materials

Matthew L.M. Fletcher2 Comments

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].