Secretary of the Interior Ryan Zinke, left, and Principal Deputy Assistant Secretary for Indian Affairs John Tahsuda participated in the annual #RockYourMocs event by wearing moccasins to work at the Department of the Interior in Washington, D.C., on November 15, 2017. Photo: Secretary Zinke

California | Casino Stalker | Land Acquisitions | Litigation

Another appeals court decision backs restoration of tribal homelands in California

Wednesday, November 29, 2017

Despite doubts voiced by a senior Trump administration official, tribes continue to score legal victories as they restore their homelands.

The latest win comes for the Buena Vista Rancheria of Me-Wuk Indians. The tribe's case was so strong that the D.C. Circuit Court of Appeals on Monday rejected a challenge filed by local opponents without bothering to hold an oral argument.

The tribe was a victim of the federal government's disastrous termination policy and was restored to recognition through a court settlement. As part of the agreement, Amador County in California accepted the Buena Vista Rancheria as a "reservation" and can't revisit the designation, the D.C. Circuit wrote in its two-page order.

The unanimous decision clears the way for the tribe to use land within its original rancheria for a gaming facility. Plans have been in the works for more than a decade but have been held up by local opposition, which so far has resulted in four trips to two different appeals courts.

Just as significantly, the victory marks the third of its kind for tribal homelands. In the past two years, the D.C. Circuit, one of the most influential in the nation because of its dealings in federal legal issues, and the 9th Circuit Court of Appeals, which hears a large number of Indian law cases, have consistently sided with tribes and the Department of the Interior.

Yet that hasn't stopped a new arrival at the department from making a curious claim about the need to make changes to the land-into-trust process. John Tahsuda, a citizen of the Kiowa Tribe who joined the Trump team in September, has made repeated references to "bad court cases," implying that they need to be addressed in order to benefit Indian Country.

Tahsuda, whose title is Principal Deputy Assistant Secretary for Indian Affairs, first brought up the vague assertion at a Bureau of Indian Affairs listening session on October 16. Tribes roundly trashed the proposed changes to the Fee-to-Trust Regulations (25 CFR 151) at the meeting.

Despite hearing the criticism, Tahsuda repeated the claim to a wider and more politically-charged audience earlier this month. He told the House Committee on Natural Resources, whose Republican members have attempted to undermine the land-into-trust process without inviting tribal leaders to hearings, about unspecified "court cases."

"It's not an area of law that has been static," Tahsuda said in Congressional testimony on November 15.

"I think it's a very complicated legal situation that we're working through," he added as he explained why the BIA opposes a bill to place land into trust for the Samish Nation, whose leaders have been waiting more than seven years for an answer on their applications for less than 100 acres in Washington.

On the day of the hearing, Indianz.Com asked the BIA for a list of cases to which Tahsuda was referring. So far the agency hasn't responded.

But two former officials who served in senior legal and political positions at Interior during the Obama administration said they couldn't think of a reason that would justify Tahsuda's characterization of the situation as "bad" or even "complicated." They pointed to just one decision in recent years that has sowed doubt about the land-into-trust process.

That case affects the Mashpee Wampanoag Tribe, whose long-delayed land-into-trust application is on the verge of collapsing under the Trump administration. A federal judge in Massachusetts told Interior to take another look at the application and another senior official prepared a draft copy a decision that would have gone against the tribe.

Still, the case is only at the federal district court level in one state. In contrast, the rulings for the Buena Vista Rancheria, the Ione Band of Miwok Indians and the Cowlitz Tribe came from higher-level appellate courts, thus establishing stronger legal precedents for tribes and the federal government.

The Cowlitz Tribe's victory in particular represented a significant step for Indian Country. The D.C. Circuit, by a unanimous vote, rejected efforts to limit the number of tribes that can follow the land-into-trust process. The U.S. Supreme Court later refused to hear the case after local opponents appealed.

The Ione Band's win, which came from the 9th Circuit, solidified that same legal reasoning for tribes whose federal status may have been in question due to neglect, omission or, in the case of those were terminated, outright negative treatment by the United States.

Amid the latest legal development, the Trump administration has halted the roll-out of the controversial land-into-trust changes. The BIA was supposed to follow up the listening session with three consultations this month but they have since been postponed. A comment deadline that was set to close on December 15, right around the busy holiday season, also is being extended.

The action came after tribes attending the National Congress of American Indians annual convention in October passed a resolution opposing the proposal and started reaching out to allies in Congress.

The delay, though, is only temporary. The BIA is expected to resume consideration of the rule in 2018 as the Trump administration moves into its second year.

Turtle Talk has posted documents from the Buena Vista Rancheria case, Amador County v. Department of the Interior. The decision, incidentally, came from a panel of three judges that included Merrick Garland, who was nominated for the Supreme Court by former president Barack Obama in part due to his experience on the D.C. Circuit.

Republicans in the Senate refused to schedule confirmation hearings for Garland, paving the way for President Donald Trump, following the November 2016 election, to nominate Neil Gorsuch for an open seat on the nation's highest court. Gorsuch was confirmed after receiving an unprecedented level of tribal support.

Recent Appeals Court Decisions in Tribal Homelands Cases:
Amador County v. Department of the Interior (November 27, 2017)
County of Amador v. Department of the Interior (October 6, 2017)
No Casino in Plymouth v. Zinke (October 6, 2017)
Confederated Tribes of the Grand Ronde Community of Oregon v. Jewell (July 29, 2016)