Law | Trust

Turtle Talk: Disaster looming on land-into-trust

Wednesday, April 30, 2008

"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.

Consider Judge Brown’s point of view (assuming I’m right here). The Artman guidance suggests that, while judicial review is possible, it can’t be very probing because Section 5 grants such broad discretion to the Secretary. The Secretary may be forced to defend the decision, but the Secretary will argue that the judicial review is mere sugar-coating, and there could never be a legitimate federal court decision overuling the Secretary’s discretion under Section 5. That’s a violation of the nondelegation doctrine, in sort of a backwards way.

Remember what will activate conservative, activist judges — the possibility that the Secretary will take land in your backyard into trust without your consent and prop up a casino, or a toxic waste dump, and make you pay more taxes to local governments as a result.

The Secretary’s arrogant display of power in the Artman guidance is coming back to haunt the Secretary, but only in this one vote. Luckily, the Supreme Court left this question alone, but the next time, tribes may not be so lucky. The Secretary’s arrogance in the way it defends Section 5 in court, the way it applies Section 5 in practice, and the Secretary’s refusal to promulgate regulations after more than a decade is setting Indian Country up for disaster."

Get the Story:
Analysis of Judge Rogers’ Dissent in MichGo v. Kempthorne (Turtle Talk 4/30)

Court Decision:
MI Gambling Oppo v. Kempthorne, Dirk (April 29, 2008)