Here is the complaint:
An excerpt:
COMES NOW, Petitioner, MACKINAC TRIBE, by and through undersigned counsel, to petition the Court to determine that the MACKINAC TRIBE is a federally recognized Indian Tribe, and to order the Defendant, Secretary of the Interior, to conduct elections under the Indian Reorganization Act to adopt a draft proposed Constitution for such tribe, and such other relief as may be appropriate.
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:
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.
This article focuses heavily on the current constitutional reform movement going on at the White Earth Nation in Minnesota, but also makes some interesting points about tribal constitutions in general.
A few quotes from the article:
Most Americans don’t realize that tribes have their own constitutions, which set down rules for everything from tribal government to citizenship. But many were built on models written by the U.S. Department of the Interior nearly 80 years ago.
Times have changed, tribal leaders say. Today many Indian nations are expanding their economies, experimenting with gaming and hoping to include their own cultural touchstones and collective priorities in the document that governs them.
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“We are governed by the Indian Reorganization Act, written by the federal government in 1934,” said Vizenor, chairwoman at White Earth, the state’s largest tribe. “[Our constitution] doesn’t have an independent judicial system. It doesn’t have separation powers. And there are about 27 references about asking permission from the Secretary of Interior in order to do something.”
A new constitution, Vizenor said, could be the key to attracting new businesses, running clean elections, creating an impartial judiciary — and creating a place where more people want to live, work and invest.
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About 250 of the 333 tribal constitutions in the United States were based completely or partly on the Indian Reorganization Act, according to David Wilkins, professor of American Indian studies at the University of Minnesota. The U.S. Constitution doesn’t apply to Indian Country because tribes are sovereign nations that existed before the constitution was drafted, he said.
Tribal constitutions determine how tribes govern themselves internally and how they relate to other government entities such as counties and states. Having stronger checks and balances in place can help prevent the favoritism and corruption that has prevented some tribes from prospering, supporters say.
Research has shown that tribes with the most capable governments are more successful economically than others, said Steve Cornell, co-director of the Harvard Project on American Indian Economic Development and a professor at the University of Arizona.
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White Earth got started on the process in 1997, after several tribal leaders — including former chair Darrel (Chip) Wadena — were convicted of election fraud and bid-rigging related to the tribe’s casino. When Vizenor was elected tribal chair in 2004, she made constitution reform a priority.
White Earth’s proposed constitution contains the first term limits for tribal leaders and an independent court system. Judges must be graduates of a law school accredited by the American Bar Association, but must also have “knowledge of Anishinaabe [Ojibwe] culture, traditions and history.”
It creates a legislative council, but one advised by a “council of elders.” It contains safeguards guaranteed in the U.S. Constitution, such as freedom of religion, speech and press. But it also protects “freedom of artistic irony,” a form of satire used in literature that “may not please some citizens.”
Vizenor hopes good governance will attract and keep younger tribal members, who often leave reservations because, in the absence of clear rules, jobs can hinge on political connections.
In the past, Minnesota tribes interested in reforming their governments often lacked the expertise and finances, said Jaime Pinkham, a vice president at the Bush Foundation. That’s why the foundation stepped in.
Even with funding, however, challenges remain. How do you stir up excitement over a constitution in a place grappling with poverty? How do you get buy-in from folks who stand to lose political privilege? How do you deal with the contentious tribal citizenship issue?
“Change is frightening to people,” said Anton Treuer, executive director of the American Indian Resource Center at Bemidji State University. “But times are changing, and we need to change with them.”
Full article here.
John C. Hoelle has published his interesting paper, “Re-Evaluating Tribal Customs of Land Use Rights,” in the University of Colorado Law Review, available on SSRN.
Here is the abstract:
Indigenous peoples developed sustainable land tenure systems over countless generations, but these customary systems of rights are barely used by American Indian tribes today. Would increasing formal recognition of these traditional customs be desirable for tribes in a modern context? This Comment examines one traditional form of indigenous land tenure – the use right – and argues that those tribes that historically recognized use rights in land might benefit from increased reliance on these traditional customs. The Comment argues that in the tribal context, use rights can potentially be just as economically efficient, if not more so, than the Anglo-American system of unqualified, absolute ownership in land. The Comment also argues that tribal customs of land use rights may help preserve Indian cultural identity by cultivating core, non-economic values of tribal peoples. The Comment concludes by addressing some of the challenges tribes will likely face in attempting to more broadly rely on their customs of land use rights in the new millennium, while also remarking on some current and important opportunities for the re-integration of tribal customs in tribal land law.
Here. An excerpt:
In the Carcieri v. Salazar decision, the Supreme Court reversed 75 years of policy and practice. The Indian Reorganization Act (IRA) of 1934 authorized the secretary of the Interior to take lands into trust for federally recognized tribes. The court threw all tribes into a tailspin of uncertainty by ruling that the secretary did not have the authority to take land into trust for tribes that were not considered “under federal jurisdiction” when the IRA was enacted. The court did not define “under federal jurisdiction,” and in 1934 there wasn’t an official list of federally recognized tribes. The decision creates two classes of tribes: those that can have land in trust and those that cannot. Such a system promises to be both chaotic and unfair.
So much land has been taken from tribes and tribal members — it is unconscionable to make it harder for tribes to gain back their traditional lands. Congress enacted the IRA to protect tribal homelands and to restore land that was previously seized from the native peoples. It is the responsibility of Congress to act when its intentions are misconstrued by the courts, and so we must act now.
And here (hope it is readable):
Here.
Professor Frederick E. Hoxie
Swanlund Chair and Professor of History
University of Illinois
Professor William Rice
Associate Professor of Law
University of Tulsa, College of Law
Professor Carole E. Goldberg
Jonathan D. Varat Professor of Law
UCLA School of Law
Mr. Steven Heeley
Consultant
Akin Gump Strauss Hauer & Feld, LLP
Professor Richard Monette
Associate Professor of Law
University of Wisconsin Law School
Mr. John E. Echohawk
Executive Director
Native American Rights Fund
written materials
The Honorable Jefferson Keel
President
National Congress of American Indians
The Honorable Michael O. Finley
Chairman
Confederation Tribes of the Colville Reservation
Alexander Tallchief Skibine has posted “Towards a Trust We Can Trust: Taking the Duty to Transfer Land into Trust for Indian Tribes Seriously” on SSRN. Here is the abstract:
The purpose of this paper is to explain why the Secretary of the Interior should have a proactive role in placing land into trust status for the benefit of Indian tribes pursuant to the authority given to him by Congress under section 5 of the Indian Reorganization Act of 1934. Although the broader question addressed in this paper is the role the Indian trust doctrine should have in guiding all federal agencies when implementing legislation enacted for the benefit of Indians, the paper addresses this issue by focusing on the legitimacy of the regulations adopted by the Department in 1980 and 1995 to implement section five of the IRA. The thesis of this paper is that in the context of section 5 of the IRA, the trust doctrine should guide decisions made by the Secretary of the Interior. To demonstrate this point, after giving a short overview of the history of section five’s implementation, the paper examines the role of the trust doctrine in the implementation of legislation enacted for the benefit of Indians, and concludes by explaining why it should play a crucial role in the Secretary’s implementation of section 5 of the IRA.
Looks like an important, timely paper.
Here:
Monday, March 22, 2010 (1-2 PM, eastern) – The Carcieri Fix:
Last year the Supreme Court ruled in Carcieri v. Salazar that language in the 1934 Indian Reorganization Act does not allow the Interior Secretary to take land into trust for the Narragansett Tribe of Rhode Island because the tribe was not federally recognized in 1934. Tribal leaders immediately turned to their allies in Congress to pass a “Carcieri Fix” – a bill that would reverse the court’s decision. But the fix has not been passed. Does Indian Country have the clout to pull it off? Guests include Matthew Fletcher (Grand Traverse Band of Ottawa/Chippewa) of the Michigan State University College of Law.
Some commentators have proposed that there should be a United States Attorney’s Office for Indian Country (h/t Indianz). Any kind of dedicated law enforcement structure for Indian Country would be a dramatic improvement, but there are still serious issues that must be addressed. This is an interesting proposal, and it should be looked at from a historical perspective.
The proposal recalls Title 4 of H.R. 7902 of the 73rd Congress, the original bill of the Indian Reorganization Act, in which the drafters (primarily Felix Cohen) proposed a Federal Court of Indian Affairs. As we all know, that part of the bill went nowhere. As Vine Deloria and Clifford Lytle noted in 1984, the federal court of Indian affairs would bring the federal courts to Indian Country, the framers of the bill recognizing that Indians had extreme practical difficulty in appearing in federal court due to georgraphic isolation.
That geographic isolation remains, as does the difficulty in traveling to appear in federal court. Part of the reason, according to present and former U.S. Attorneys, that the declination rates in Indian Country crime are so high is this geographic isolation. Any proposal must acknowledge this factor and take steps to respond.
Another practical diffculty, not present in the same degree in the 1930s as it is now, are the jurisdictional quandries created by the checkerboarding of lands and jurisdiction. Questions about the jurisdiction of the proposed USAIC will be raised by the USAs already in Indian Country (ND, MI, WA, ID, AZ, NM, and so on). Declinations also result from the added difficulty of proving Indian Country status as an element of the crime committed. The new USAIC will not help this problem.
We continue to firmly believe that any Indian Country law enforcement program must involve the reaffirmation of tribal criminal jurisdiction. Expansion of federal capacities, while an improvement, cannot solve the problem.
From the House Resources Committee:
Witnesses:
Ms. Colette Routel
Visiting Assistant Professor, University of Michigan Law School
Assistant Professor, William Mitchell College of Law
Mr. Michael J. Anderson
Partner
AndersonTuell, LLP
Mr. Donald Craig Mitchell, Esq.
Anchorage, AK
Opening Statement
Chairman Nick J. Rahall, II
Turtle Talk 
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