MichGo v. Kempthorne – Turtle Talk

ICT on Gun Lake Band Fee to Trust Victory

February 17, 2009Matthew 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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MichGO Decision — Implications for Carcieri v. Kempthorne?

January 21, 2009Matthew L.M. Fletcher

Who knows, except the people at the Supreme Court?

One possibility is that the Supreme Court denied cert in MichGO because the Court is going to uphold the Secretary of Interior’s authority to take land into trust for tribes not federally recognized in 1934 (tribes like the Gun Lake Band and the Narragansett Tribe), the key issue in Carcieri. If the Court was to reject the Secretary’s authority in Carcieri, then there would be reason to grant cert in MichGO to correct the lower court’s holding. They might choose to do this through a tool called GVR — Grant, Vacate, and Remand. But if the Court was to affirm the Secretary’s holding, then the lower court decision in MichGO is correct even after Carcieri, and so there’s no reason to review the decision.

However, there might be a problem with this theory; namely (if I am correct), MichGO never once argued that Gun Lake Band is ineligible under Section 5 because it wasn’t recognized in 1934. They did raise it in the cert petition, but one suspects that it’s too late then. MichGO could have raised the question from the outset, because the Narragansett litigation had been ongoing for some time. So maybe that’s why the Court denied cert in MichGO. And, if so, the cert denial offers no clues as to the possible outcome in Carcieri.

Finally, one great bit of news — since the Court denied cert in MichGO, the nondelegation doctrine claim that MichGO brought to the Court once again goes by the wayside (the Court had previously refused to accept this question in Carcieri as well, and in several other cases before that).

MichGO Cert Petition Denied — UPDATE

January 21, 2009January 21, 2009Matthew L.M. Fletcher3 Comments

The SCT list of orders is here (the line is near the bottom of page 10).

The Gun Lake Band’s press release is here: pr-cert-denied-12109

And a timeline of the case is here: glt-casino-timeline-12109

Thanks to Gale and Zeke for these materials.

More Commentary on Carcieri and MichGO

January 13, 2009Matthew L.M. Fletcher2 Comments

It might be useful to recap the various factors that might affect the Supreme Court’s consideration of Carcieri v. Kempthorne and MichGO v. Kempthorne. I’ve been quoted here (ICT) and here (Indianz) — correctly, no problem there — but one thing I wonder might affect MichGO.

What I’ve been saying for a few days now is that the outcome in Carcieri might affect whether or not the Court decides to hear MichGO on the merits, a grant, or whether it decides to remand MichGO in light of Carcieri, a GVR. One thing I had not considered until now is that MichGO has not made some key arguments that were available to it by virtue of the Carcieri case. Carcieri is about whether Section 5 of the Indian Reorganization Act can apply to a tribe not federally recognized by the federal government in 1934. Until its cert petition (and I have not seen the complaint), MichGO never made that argument. The MichGO cert petition’s second question presented is one that was available to them (the Carcieri litigation goes back way before the MichGO litigation) but one that MichGO apparently never made.

So if the Court GVR’s MichGO after a Carcieri reversal on the Section 5 question, it will be allowing MichGO to bootstrap itself onto an argument that it had never made. Frankly, if my facts are right, MichGO has waived its 1934 argument, and should not be the beneficiary of a remand to the D.C. Circuit.

Even if the Court GVR’s the MichGO case, the Gun Lake Band probably will still be able to show that they are eligible under Section 5, depending on how the Court’s majority opinion in Carcieri reads. MichGO, an organization created to delay gaming, likely for the benefit of other gaming and business entities, will continue to be a big winner merely by delaying the opening of yet another casino. And Gun Lake will have been the victim of really, really bad timing.

MichGO v. Kempthorne Update UPDATED !!!!

January 12, 2009January 12, 2009Matthew L.M. Fletcher

No news today — so the Court did not deny cert yet (here are the orders). There are several possibilities. First, and perhaps most likely, the Court will hold on to this one until the Carcieri v. Kempthorne decision comes out, which could be any day. Second, following this hold, the Court could either grant cert or GVR the case. I suspect the most likely outcome is a GVR, given the possibility that the Court will reverse the First Circuit in Carcieri.

Newer, better update — the Court apparently did not get to consideration of the MichGO petition. In fact, the Court has re-slated the petition for consideration on January 16, this Friday. Here is the docket sheet. Of course, maybe the Court is about to issue an opinion in Carcieri this week….

MichGO v. Kempthorne Cert Petition Update

January 9, 2009Matthew L.M. Fletcher

The Supreme Court granted cert. in four cases today, none of which was the MichGO v. Kempthorne case. We’ll see Monday, perhaps, whether the Court denied cert. There could be a decent chance the Court will put this case on hold under after the Carcieri v. Kempthorne decision is released.

MichGO’s Reply Brief

January 3, 2009Matthew L.M. Fletcher

The certiorari stage briefing in Michigan Gambling Opposition v. Kempthorne (No. 08-554) is complete with the filing of the petitioner’s reply brief (here).

Here are the other briefs.

The conference where the Court will discuss this case is January 9.

MichGO v. Kempthorne a “Petition to Watch”

December 23, 2008Matthew L.M. Fletcher1 Comment

SCOTUSblog has listed MichGO v. Kempthorne as a petition to watch (see post here) for the January 9 conference. Here are the briefs, etc.:

Docket: 08-554
Title: Michigan Gambling Opposition v. Kempthorne
Issue: Whether Section 5 of the Indian Reorganization Act, which gives the Secretary of Interior discretion to acquire lands for Native Americans, is an unconstitutional delegation of legislative authority.

Opinion below (D.C. Circuit)
Petition for certiorari
Brief in opposition (federal respondents)
Brief in opposition (Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians)

First Glimpse at a Possible Post-Carcieri World

December 16, 2008Matthew L.M. Fletcher2 Comments

The United States Department of Justice has been thinking a little bit about what will happen if the Supreme Court rules against the Secretary of Interior in Carceri v. Kempthorne. We’ve already suggested that, based on oral argument, that the Secretary’s authority under Section 5 of the Indian Reorganization Act will be sharply limited in relation to tribes “not under federal supervision” or “under federal jurisdiction in 1934.”

In the recent filing opposition a petition for a writ of certiorari in MichGO v. Kempthorne, a direct challenge to Section 5 as applied to all tribes, the Solicitor General’s officer may have laid the groundwork for a post-Carcieri world. The MichGO petitioners, who have been using the litigation to delay the opening of the Gun Lake Band of Pottawatomi Indians’ casino for years, appear to be pushing the Supreme Court to hold the MichGO petition until after Carcieri is decided (likely in January or February). But the government argued that no such delay was necessary, because (and this is the key part, where the United States asserts what will happen if the Court rules against the government):

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