John Echohawk: Stockbridge Munsee Band deal on strong footing

Law | Opinion

Wednesday, December 8, 2010

John Echohawk is the executive director of the Native American Rights Fund.

On November 22, 2010, New York State, Madison County, the Town of Stockbridge and my client, the Stockbridge Munsee Band of Mohican Indians, signed an historic land-claim settlement agreement. This settlement, if joined by the Department of the Interior, will resolve with finality Stockbridge’s claim to more than 23,000 acres in central New York. But this agreement will do much more than end a 24-year-old lawsuit.

In addition to concluding decades of contentious litigation that has strained the social fabric of many central New York communities, this settlement provides important benefits to the Stockbridge-Munsee Tribe. First and foremost, it recognizes what so many seem to have either overlooked or chosen to ignore—from time immemorial until the early 1700s the Mohican Indians lived and prospered in the Hudson River valley. In 1609, the Mohicans welcomed Henry Hudson and the crew of the Half Moon to the New World. The Mohican villages are now gone from the banks of the Hudson, but the bones of their ancestors reside there to this day and, tragically, it is not uncommon for them to be plowed to the surface every spring in farmers’ fields up and down the valley. For native peoples, whose very identity is for all time intertwined with ancestry and place, this is a travesty that is at once heartbreaking and humiliating.

These circumstances need not endure—the Stockbridge land-claim settlement agreement will help the Tribe mitigate the ongoing loss of cultural resources by creating a tribal-state cooperative process to protect historic sites. And, by authorizing development of a destination resort and casino in Sullivan County, it will provide the Tribe with the financial resources that will ensure that its cultural resources in the Hudson valley are protected. In addition, the settlement promises substantial benefits for the people of New York State. By creating thousands of non-Indian jobs, much needed development in the economically depressed Catskills region, and a desperately needed multi-million-dollar revenue stream for New York State, the agreement creates opportunities for Indian and non-Indian communities alike.

But in the days following its public announcement, the Stockbridge agreement has been loudly criticized in the press by the Tribe’s business competitors, both Indian and non-Indian, because it supposedly stands on legal footing so shaky that it cannot possibly win approval by the Interior Department. Specifically, it has been said that a tribal land-claim settlement agreement, to be effective, must be ratified by Congressional action. Because approval of this settlement is so critical to my client, they have asked me to publicly explain the legal underpinnings of its settlement agreement. As this non-Congressional settlement avenue was initially proposed by me to the Interior Department’s top lawyer for Indian Affairs, I am happy to set forth what I and the other Indian-law practitioners on the Tribe’s legal team regard as the agreement’s rock-solid legal footing.

First, it is true that most Indian land claims have been resolved by Congressional acts. Indeed, my firm, the non-profit Native American Rights Fund has initiated and pursued land-claim litigation on behalf of several eastern tribes which has resulted in the enactment of Congressional settlement legislation. But, in 2005 it became apparent that a non-Congressional settlement avenue might also be available to tribes to settle the few remaining Indian land claim cases, most of which, for complicated reasons unique to New York, are situated there. In that year, the Seneca Nation’s claim to land surrounding Cuba Lake was resolved using essentially the same mechanism we have employed in the Stockbridge agreement. In that case, the Seneca Tribe, the United States and the State entered into a three-party agreement whereby New York returned some of the land around the lake to the Senecas. In return, the Senecas permanently dismissed their claim. Stockbridge will be the second New York Indian land-claim suit to be resolved without an act of Congress.

Turning now to the federal statutes and regulations governing gaming on off-reservation lands, we must first understand that Congress’ primary purpose in passing the 1988 federal law governing Indian gaming was to promote tribal self-sufficiency and economic development. This law, the Indian Gaming Regulatory Act, or “IGRA,” permits Indian tribes to conduct gaming operations on their reservations and on certain off-reservation lands, but only if those lands also qualify as “Indian land.” The most common type of off-reservation “Indian land” is land held in trust for a tribe’s benefit by the Bureau of Indian Affairs. While the BIA has continuing authority to accept land in trust upon request by the title holder (usually a tribe), IGRA limits this power by prohibiting gaming on non-reservation land acquired after 1988.

But the 1988 act makes four narrow exceptions to this general prohibition, and one of these, the exception for lands “taken into trust as part of a settlement of a land claim,” is the exception relied on in the Stockbridge settlement agreement.

In 2008, the Bureau of Indian Affairs amended its IGRA-implementing-regulations to allow gaming on tribal land acquired by BIA in trust if it was acquired pursuant to a settlement agreement to which the United States is a party and some portion of the land claimed by the tribe in its land-claim lawsuit had been returned to the tribe via a 2005 Seneca-type land-claim settlement agreement. Previously, BIA’s regulations had envisioned gaming only on land-claim-settlement lands acquired by tribes under an act of Congress extinguishing the tribe’s Indian title and directing BIA to take land into trust. But the 2008 amendment meant that, for the first time, BIA recognized it could also lawfully allow gaming on land accepted in trust as part of a settlement agreement that finally resolved tribal land-claim litigation. As BIA’s amended regulation facilitates permanent resolution of contentious litigation that, for decades, had clouded innocent landowners’ titles and undermined economic development in a number of locales within the original 13 states, it rests on solid policy grounds. The reader should also understand that the kind of Indian land claim addressed by IGRA’s land-claim exception arises, virtually without exception, only within the boundaries of the original 13 states. For this reason, as well as the fact that virtually all of the non-New York Eastern Indian land claim cases have been either litigated to conclusion or resolved by acts of Congress, fears of an expansion of off-reservation Indian gaming based on the Stockbridge precedent appear to be unfounded.

In conclusion, while the Stockbridge settlement agreement utilizes federal statutes and agency regulations in a way that has not been done before, it falls squarely within the intent and purpose of the controlling law. Because the legal authority to enter into the agreement is clear, we are confident that the Department of the Interior will decide to approve the Stockbridge-New York land-claim settlement agreement.