Another land-into-trust case on high court's radar

Law | Trust

Tuesday, December 16, 2008

The Department of Justice appears to be anticipating changes in the land-into-trust process if a critical U.S. Supreme Court case goes against tribal interests.

The changes would affect tribes that gained federal recognition after 1934, the year the Indian Reorganization Act was passed. The law authorized the Interior Department to take land into trust for tribes and individual Indians.

But a pending Supreme Court case, Carcieri v. Kempthorne, could restrict the land-into-trust process to those tribes that were already recognized by 1934. Depending on the ruling, tribes that weren't formally recognized as of 1934 yet had some sort of relationship with the federal government could still benefit from the IRA.

In the latter scenario, Interior would go through another review process to determine whether a recently recognized tribe qualifies for the land-into-trust process, DOJ lawyers said in a brief involving the Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians, a Michigan tribe that gained recognition in 1998.

"The Department would need to explore the law and facts about federal recognition of and jurisdiction over the Band, including inter alia, any treaties, statutes, administrative activities, or the like that involved federal oversight of the Band or its property in 1934," Solicitor General Gregory W. Garre, a Bush nominee, told the Supreme Court on December 5.

The brief urged the justices to reject a petition filed by a group that opposes the Match-E-Be-Nash-She-Wish Band's land-into-trust application. Garre said Michigan Gambling Opposition shouldn't be allowed to bring up the 1934 issue because it was never raised during lower court proceedings.

But MichGO is hoping the Supreme Court will grant its petition in light of Carcieri, named for the governor of Rhode Island. The justices heard the case on November 3 and several observers have said the outcome appears grim for Indian Country.

"The case presents a pure legal question and there is no factual dispute about the tribe's recognition status," the group wrote in an October 23 brief. "If the court rules in Rhode Island's favor in Carcieri, the decision will be dispositive here because it is undisputed that the tribe was not federally recognized in 1934."

Like DOJ, the tribe also argues that MichGO shouldn't be allowed to bring up the 1934 issue at the "eleventh hour." "The administration record demonstrates that the tribe was recognized by the United States no later than 1821, when it signed a treaty granting it a federal reservation near Kalamazoo and that the tribe's federally-recognized status has never been lawfully termination," the December 5 brief stated.

It's not known when the Supreme Court will rule in Carcieri but if the decision goes against tribal interests Congress could step in and amend the IRA to cover tribes that gained recognition after 1934. In that situation, it would take a couple of words to enact what some advocates are calling a "Carcieri fix."

Briefs in MichGO v. Kempthorne:
Petition | DOJ Opposition | Match-E-Be-Nash-She-Wish Band Opposition

D.C. Circuit Decision:
MI Gambling Oppo v. Kempthorne, Dirk (April 29, 2008)