Opinion

Fletcher: Land-into-trust 'under attack'

Friday, May 9, 2008

"In 2000, at the end of the Clinton administration, the [Interior] secretary actually reached the final stages of the process to promulgate gaming related trust acquisition regulations. But one of the first actions of the Bush administration under Secretary Gale Norton was to shelve it indefinitely. To this day, there is no regulation that specifically governs gaming-related trust acquisitions.

This is an act of administrative negligence that may soon devastate Indian country.

Instead, Interior's practice has been to nominally apply the antiquated Part 151 regulations on a case-by-case basis, building up long backlogs of trust acquisition requests and delaying many non-controversial trust applications for years. The January 2008 ''guidance'' that purported to set geographic limitations on gaming-related trust acquisitions appears to be a means to justify the denial of dozens of trust applications to quickly reduce the backlog.

It also appears to be a display of excessive, almost arrogant, administrative power.

Judge Brown is a very conservative judge, once discussed as a Supreme Court nominee because of her political views, and the federal judiciary includes many, many judges just like her. Her dissent is a warning to Indian country that Section 5 again is under attack.

Conservative judges tend not to be sympathetic to claims that the secretary acted arbitrarily and capriciously in denying trust applications, as the recent St. Croix Chippewa Tribe decision demonstrates. But they will be more and more sympathetic to state and local government claims that the secretary is abusing his authority when approving tribal trust applications. And they will use the secretary's assertion of authority contained in documents like the Artman guidance as evidence of the secretary's overly broad authority.

Hopefully, the new president will appoint a secretary of Interior that will complete the regulations for gaming-related trust acquisitions. This administration certainly won't. Until then, Section 5 is fair game."

Get the Story:
Matthew L.M. Fletcher: Growing threat to land-in-trust statute (Indian Country Today 5/9)

Janice Rogers Brown and the D.C. Circuit:
MichGO v. Kempthorne | San Manuel Band v. National Labor Relations Board | Cobell: Lamberth Removal | Cobell: IT Injunction