Here is the opinion — Oneida County v Salazar
Materials later….
Federal Court Rejects Constitutional Challenges to Fee to Trust Statute in Oneida Trust Acquisition Case
Here is the opinion — Oneida County v Salazar
Materials later….
nondelegation doctrine
MichGO Decision — Implications for Carcieri v. Kempthorne?
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 v. Kempthorne a “Petition to Watch”
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)
United States Files Brief in Opposition to MichGO Cert Petition
Here is the brief (courtesy of Indianz) — ussg-opposition
MichGO v. Kempthorne Cert Petition
Here is is: michgo-cert-pet-10-23-08
The questions presented are two-fold. First, the petitioners raise the nondelegation doctrine argument that caused Judge Rogers Brown in the D.C. Circuit to dissent below. And second, the petitioners make the same argument about recently recognized tribes that the Supreme Court will decide in Carcieri v. Kempthorne.
See our earlier posts here and here and here and here and a link to an Indian Country Today article about MichGO.
The interesting question here will be whether the government will file a response at all, given that there’s no circuit split (by MichGO’s admission), that the SCT already denied cert on the first issue in the Carcieri litigation, and that the second issue will be decided by Carcieri.
Commentary on the MichGO En Banc and Cert Petitions
MichGo’s attorney asserts a plan to file a cert petition (see below the fold for the news article), and even boasts that he has three votes for cert already — Scalia and Thomas because they dissented in the South Dakota case in 1996, and Roberts because he represented a party making a nondelegation claim to 25 U.S.C. sec. 465 in 1999/2000.
This is spurious, given very recent events.
The Department of Interior just issued nearly-final IGRA Section 20 [25 U.S.C. 2719] regulations. These were the regulations I was talking about in my ICT editorial (not knowing they were about to be finalized). The very existence of these regulations severely blunts Judge Brown’s dissent in the D.C. Circuit case. Here, the Secretary is finally agreeing to formalize restrictions on his discretion contained in section 5 of the IRA [25 U.S.C. 465] in the context of Section 20 trust acquisitions.
One could make a plausible claim that, to the extent the SCT would be persuaded by a solitary dissent in a very minor case (nationally), it is now all but a dead letter.
What the D.C. Circuit should do is amend its decision to reflect the existence of the new regs, adding another nail to the coffin of the Section 5 nondelegation argument.
Finally, as MichGO’s attorney should know, one solitary dissent does not a circuit split make.
ICT Editorial on Fee to Trust Statute
From ICT:
The federal government’s recent actions involving its authority to make decisions on acquiring land in trust for tribal gaming purposes may inadvertently threaten the authority and duty of the secretary of the Interior Department to take land into trust for Indian tribes.
On April 29, the D.C. Circuit decided an innocuous case involving the secretary of Interior’s decision to take land into trust for the Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians (also known as the Gun Lake Band). It was the third such opinion in recent years involving Michigan Potawatomi Indian tribes, each brought by well-funded citizens groups opposing Indian gaming. The suits were mere harassment suits, intended to delay rather than prevent the opening of the Potawatomi gaming operations. Each of the suits brought similar claims.
Of import, one claim was that Section 5 of the Indian Reorganization Act, the statute that authorizes the secretary to take land into trust for Indian tribes, was an unconstitutional delegation of congressional authority. The first two D.C. Circuit panel decisions (2006 and 2007), involving the Pokagon Band of Potawatomi Indians and the Nottawaseppi Huron Band of Potawatomi Indians, rejected the constitutional challenge to Section 5 without much discussion or dissent. In fact, since 1995, at least three other federal appellate circuits have rejected the same kind of challenge to the statute, so this is unsurprising.
Analysis of Judge Rogers’ Dissent in MichGo v. Kempthorne
Yesterday’s per curiam opinion in MichGo v. Kempthorne, while very, very important to the Gun Lake Band and other Michigan tribes, did not break any new ground. It was the third time in recent years that citizens groups challenged the Secretary of Interior’s decision to take land into trust for gaming purposes for the three southwest Michigan Potawatomi tribes (the other two were TOMAC v. Norton and CETAC v. Kempthorne). Each of the challenges raised NEPA and constitutional claims of very similar character. Each time it was relatively easy for the D.C. Circuit to dispose of these arguments, which some argued bordered on frivolous.
But there is a strong threat to the future of tribal property contained in these cases.
The constitutional challenge is that Section 5 of the IRA (25 U.S.C. 465) is an unconstitutional delegation of Congressional power to the Secretary of Interior. Section 5 allows the Secretary, at his discretion, to acquire land in trust for Indians and Indian tribes. If this discretion is absolute, then it is a violation of the separation of powers inherent in the Constitution. But until yesterday, the constitutional challenge did not garner a single vote in any of the three Potawatomi cases. In fact, though this constitutional challenge has been raised by states and localities repeatedly since the early 1980s, it has not garnered a single vote from a federal judge since 1996, when Justice Scalia dissented from a GVR in United States v. South Dakota, 519 U.S. 919 (1996). The Supreme Court recently granted cert. in Carcieri v. Kempthorne, another of these challenges, but declined to hear the constitutional challenge.
Turtle Talk 