A “Bolt from the Blue” from the Supreme Court

The U.S. Supreme Court has laid down the law once again for Indian Country, holding that the Indian Reorganization Act of 1934 (IRA) does not authorize the Secretary of the Interior to take land into trust for tribes that were not under federal jurisdiction as of the date the IRA was enacted. The decision has major implications, as is discussed in the Boston Globe, in which Steve is quoted.

The 6-3 decision in Carcieri v. Salazar, No. 07-526 (Feb. 24, 2009) throws into doubt previous decisions by the Secretary to take land into trust for recently recognized tribes, including the Narragansetts in Rhode Island (who were the subject of the Court decision) and the Mashpee Wampanoag in Massachusetts (who have been hoping to build a $1 billion casino in Middleborough).

Carcieri concerned the Narragansetts’ argument that 31 acres of land it owns in Charleston, Rhode Island, should be placed in trust. Following an administrative decision that came down on the side of the Secretary, the state sued. Both a federal district court and the First Circuit found in favor of the tribe, but the Supreme Court reversed.

The Court’s analysis for the most part turned on its reading of the IRA’s statutory language, and the related application of basic principles of administrative law. The IRA authorizes the Secretary to take land into trust for the benefit of a “recognized Indian Tribe now under Federal jurisdiction.” The question of whether “now” means in 1934, or at the time the Secretary acts, had been held to be ambiguous enough by a lower court to merit deference to the Secretary under the Chevron doctrine (which requires a court to defer to an agency interpretation under such circumstances)—as had been the case for the last 75 years.

However, writing for the majority, Justice Clarence Thomas found the meaning of “now” to be unambiguously understood to be at “the present time; at this moment; at the time of speaking.” Hence the Secretary did not have authority to take land into trust after the date of the IRA’s enactment in 1934.

While the decision is momentous in its potential impact on a number of tribes, Congress could take up the question of what to do about the important question of how the federal government can fulfill its trust responsibility to tribes.

Here’s the Supreme Court’s opinion.

U.S. Supreme Court to Hear Narragansett Case on November 3

On Monday, the U.S. Supreme Court will hear arguments in Carcieri v. Kempthorne, the case that is expected to settle, once and for all, the litigation between Rhode Island and the Narragansett Indian Tribe that began in 1975, when the Narragansett filed suit to recover tribal lands in Rhode Island.

The Court is expected to decide two key issues:

Can the Interior Secretary place in federal trust land that was privately purchased by Indian tribes recognized after the passage of the 1934 Indian Reorganization Act (IRA), thereby removing the land from state control?

If the Congress passes an Act that terminates previous Indian claims to land, is the Secretary of the Interior precluded from creating additional territory?

At bottom, the case should resolve a split in interpretation concerning whether the IRA applies only to the tribes that were recognized at the time of the Act's passage in 1934, or whether it extends to tribes recognized after that date, or who are recognized in the future. Rhode Island has argued that since the Narragansett were federally recognized in 1983, the Interior Secretary does not have authority to take land into trust for the tribe, because the federal government's authority to take land into trust comes from Section 5 of the IRA, which was written to apply to tribes "now within Federal Jurisdiction" at the time of the Act's passage in 1934. It may seem like a legal technicality, but the outcome will greatly impact the ability of tribes recognized after 1934 to acquire land, and in turn, to exercise governmental authority.

The case is relevant to Indian gaming, because that's the boogeyman to states: if a tribe can get land, then it can get a casino, and that casino might be another Foxwoods (never mind, of course, the economic benefits tribal gaming has brought to the state of Connecticut).

Read more here.

Another Challenge to NIGC's Indian Lands Determination

In Iowa, the state Attorney General has filed suit in federal court to stop the Ponca Tribe of Nebraska from operating gaming in Carter Lake, IA.

Late last year, the NIGC had determined that the Carter Lake parcel, located near Council Bluffs, qualified as "restored lands" under IGRA's exceptions to the general prohibition against gaming on newly acquired lands. Iowa officials are relying in part on the fact that the NIGC reversed itself: in October 2007, it determined that the lands were not restored, but in December 2007, it reversed that decision. The state also is concerned about the impact on commercial gaming in Council Bluffs: according to Council Bluffs Mayor Tom Hanafan, tribal gaming is less desirable than state-sanctioned gaming that "all pay taxes."

That's a revenue-sharing alert, folks.

Complicating matters: The Secretary's new "Section 20" regulations that limit the reach of the restored lands exception.

Both NIGC decisions are available from the NIGC's web site, here. Read more at "Miller Files Lawsuit Over Gaming Legality."

Buffalo Creek Casino Case: The Story of the Buffalo Parcel

As everyone knows (right?), IGRA only authorizes Class II and III gaming on "Indian lands." For non-reservation land, the determination of whether a parcel of land is "Indian lands" can be very complicated, requiring careful analysis of a complex history of the tribe's interactions and agreements with the state and the federal government. In his July 8 decision, federal judge William Skretny conducted just that kind of analysis, reaching all the way back to the 17th century.

It's a long story that's difficult to make short, but here's the gist: In the 18th and 19th centuries, the Seneca Nation's land was sold and leased under a number of treaties, agreements, and statutes.

In the 1950s, the tribe filed claims against the U.S. for failing to ensure that the Seneca Nation received fair remuneration for its land. In 1969, the claims were still pending. One of the 19th century leases, however, was due to expire, and the New York state legislature set about renegotiating the lease with the tribe. An agreement was reached, and Congress codified it in the Seneca Nation Settlement Act of 1990. The Act included a provision requiring the U.S. to pay the tribe $35 million for past inequities. $5 million was earmarked for the tribe's economic and community development.

Then, in 2002, the Seneca Nation entered into a Class III compact with New York. The compact authorized gaming at three different sites, including on a to-be-purchased parcel of land in Buffalo. The tribe intended to use some of the funds from the 1990 Settlement Act to purchase the land. The compact was "pocket-approved" by the Interior Secretary.

In 2005, the tribe purchased 9 acres of land in Buffalo. A few months later, a citizens group, Citizens Against Casino Gambling in Erie County, filed suit in federal court to prevent the tribe from conducting gaming on the parcel.

Next up: The NIGC's actions

Things Are Brewing in Buffalo!

July is the month for high-profile Indian gaming litigation, and from the looks of it, expect further developments in August.

Besides the controversial case handed down by the Florida Supreme Court earlier this month, litigation has been brewing in New York over the Buffalo Creek Casino.

Just a few days after the Florida decision, a federal judge ruled that despite an NIGC decision to the contrary, the Seneca Nation could not operate gaming on a parcel of land in Buffalo, New York. The tribe currently operates a temporary casino there, and is in the midst of constructing a $333 million casino complex, billed as the largest privately funded construction project in Buffalo's history.

Now, the U.S. has filed a motion asking the federal court to "remand" the case to the NIGC. The tribe supports the motion, with the assistance of their chief legal consultant, the renowned constitutional scholar Laurence Tribe.

How did all that come about? We'll explain it for you!

Next up: The story of the Buffalo parcel . . . .

Patrick's Plan for Casinos in Massachusetts -- Kathryn's Quoted in Cape Cod Times

The Mashpee Wampanoag are proceeding with their plans to open a casino on newly acquired trust lands under IGRA, rather than bidding on one of the commercial casino licenses in Gov. Deval Patrick's proposal.

The tribe is seeking over 600 acres in two parcels of trust land as its initial reservation. Under IGRA, although gaming generally is prohibited on trust land acquired after 1988, an exception is made for land taken into trust as the initial reservation of a tribe.

The tribe is hoping for a quick decision, but Kathryn cautions that when gaming is an issue, it's more likely that the Interior Department's dual land-into-trust and gaming processes will take longer.

Read more here: Tribe Gambling on Federal Agency, Cape Cod Times

Rhode Island Seeks Supreme Court Review of Narragansett Land-Into-Trust Decision

Rhode Island's governor and attorney general have filed a petition asking the U.S. Supreme Court to overrule lower court decisions upholding the Interior Secretary's determination to take land into trust for the Narragansett Indian Tribe.

In 1991, the Narragansetts purchased 31 acres across the road from their reservation near Charleston, RI. The tribe intended to use the land to build housing for elderly tribal members. After the housing project stalled due to state and local permit requirements, the tribe successfully sought trust status for the land from the Interior Secretary. Rhode Island and the town of Charleston challenged the Secretary's decision in federal court. In 2003, the federal district court ruled in favor of the Secretary, as did the U.S. Court of Appeals for the First Circuit in 2005. The state sought en banc review, but again the First Circuit upheld the Secretary's decision.

Now, the state (joined by the town of Charleston) wants the Supreme Court to review and overturn the Secretary's decision.

The state's argument is that the Secretary's authority to take land into trust for the benefit of an Indian tribe is limited to the 258 tribes which were federally recognized in 1934, the date of the Indian Reorganization Act. Since the Narragansett Tribe was federally recognized in 1983, the state argues, the Secretary has no power to take land into trust for the benefit of the Narragansett.

As there are more than 560 federally recognized tribes today, the state's position would mean that the Secretary could not take land into trust for the hundreds of tribes recognized after 1934.

For more from the Providence Journal, click here.