The administration of President Barack Obama
good news on Wednesday with the end of a potentially troublesome
The U.S. Supreme Court
, without comment, declined to hear
MichGo v. Kempthorne
, a lawsuit that tested the ability of the federal government to acquire land for tribes.
from the high court came only a few minutes after Ken Salazar, a former
senator from Colorado, started
his job as the Secretary of the Interior Department
The move effectively settles a debate that has
haunted Interior as far back as the Clinton administration.
For years, tribal foes have argued that the land-into-trust
provisions of the Indian
Every court that has taken up that question has
rejected it. So the action yesterday
indicates the justices aren't interested in overturning
the 1st, 2nd, 8th, 9th, 10th and the D.C.
circuits, whose combined jurisdictions cover nearly every tribe in the
One tribe, the Match-E-Be-Nash-She-Wish Band of
, was particularly pleased with the latest development.
The tribe's efforts to create a reservation and open a casino were
hindered for years by a group called Michigan Gambling Opposition.
"We are very happy with the Supreme Court's decision to reject MichGO's
appeal," said Chairman D.K. Sprague. "It is, however, bittersweet
because the tribe and thousands of its supporters were irrevocably
harmed by this lawsuit."
Despite the favorable news, another land-into-trust issue
remains in limbo. Last fall, the Supreme Court heard
a case that could change the way Interior deals with
tribes that gained federal recognition after the passage of the IRA
Department of Justice
lawyers who were appointed by President George W.
Bush filed a brief with the Supreme Court last month
that anticipated more
hurdles for tribes like the Match-E-Be-Nash-She-Wish Band,
whose recognition became final in 1999. The brief said
Interior would have to determine whether a post-1934
tribe was under federal supervision despite not being
Sprague answered that question yesterday by citing a treaty
Chief Match-E-Be-Nash-She-Wish signed with the U.S. in 1795.
The Bush-authored brief said treaties were one way to determine
whether a recently recognized tribe qualifies for the land-into-trust
But the Obama administration may take a different approach to
addressing the post-1934 issue if Carcieri
against tribal interests. Or the Supreme Court could
rule that the IRA applies to all tribes, regardless of
the date of recognition.
Between 1887, the start of the allotment period, and 1934,
tribes lost 90 million acres of their land. Since the IRA,
only about 5 million acres has been reacquired in trust.
Tribes complain that the land-into-trust process takes too long to complete,
in part because existing regulations do not impose deadlines
on Interior. A recent report from the Government Accountability
cited an application that took nearly 20 years for
the Bureau of Indian Affairs
Litigation can also tie up an application for years, as
was the case with three Michigan tribes, including
the Match-E-Be-Nash-She-Wish Band, also known as the
Gun Lake Tribe. All three lawsuits were resolved in
favor of tribal interests.
Briefs in MichGO v. Kempthorne
D.C. Circuit Decision:MI
Gambling Oppo v. Kempthorne, Dirk
(April 29, 2008)
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