Miwok Plaza serves as headquarters of the Ione Band of Miwok Indians in Plymouth, California. Image: Google

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Second federal appeals court chimes in with decision favoring tribal homelands

Thursday, October 12, 2017

Despite repeated efforts by Indian Country, one of the most consequential U.S. Supreme Court cases in recent history has defied a solid fix.

The decision in Carcieri v. Salazar, quickly approaching a decade in age, upset the restoration of tribal homelands. The ruling has led to bureaucratic delays, sparked costly litigation and inspired fruitless lobbying efforts, all in an attempt to stabilize a process that was established decades ago through the Indian Reorganization Act of 1934.

But where Congress has failed to take action, tribes are seeing successes elsewhere. The latest came last week, when a federal appeals court supported the Ione Band of Miwok Indians in its long-running request to re-establish its homelands in northern California.

In the unanimous decision, the 9th Circuit Court of Appeals rebuffed a local government whose officials seized on Carcieri even though it wasn't even on the books when the Department of the Interior, way back during the Bush administration, indicated it would place 228 acres in trust for the landless tribe. The Ione Band was "under federal jurisdiction" in 1934 because the federal government took actions on its behalf around that time, a panel of three judges noted.

"Given that efforts were made by the federal government on the band’s behalf a few years before and just one year after 1934, it was reasonable for Interior to conclude that the band’s 'jurisdictional status remained intact in 1934,'" Judge Susan P. Graber wrote in the 38-page decision.

Indianz.Com on SoundCloud: 9th Circuit Court of Appeals Oral Arguments in County of Amador v. U.S. Department of the Interior

And in an equally significant holding, the court said the Ione Band didn't need to be formally "recognized" in 1934 in order to benefit from the land-into-trust process. The tribe's official status wasn't reaffirmed until 1994 but that doesn't change the situation, the decision read.

"The phrase 'recognized Indian tribe now under federal jurisdiction,' when read most naturally, includes all tribes that are currently—that is, at the moment of the relevant decision—“recognized” and that were 'under federal jurisdiction' at the time the IRA was passed," Graber wrote.

With the favorable outcome, Graber pointed out that the court joins one of its "sister circuits" in addressing the so-called "timing-of-recognition" issue. In a closely-watched case, the D.C. Circuit Court of Appeals rejected efforts by opponents -- including a local government -- to overturn a land-into-trust application for the Cowlitz Tribe in Washington.

The two rulings put tribes across the nation, as well as the Bureau of Indian Affairs, on seemingly strong legal ground when dealing with litigation spawned by Carcieri. The Supreme Court notably declined to review the decision in the Cowlitz case in April, handing that tribe a major victory as it waited more than 160 years to re-establish its homelands.

The Ione Band has been waiting a long time too. During the early 1900s, the BIA repeatedly promised to acquire lands for the tribe -- with one official even claiming that a deal was "all but closed" -- yet a reservation was never set aside for the Miwoks in Amador County and they were essentially abandoned for decades.

Indianz.Com on SoundCloud: 9th Circuit Court of Appeals Oral Arguments in No Casino in Plymouth v. Ryan Zinke

The situation appeared to improve when the BIA, during the Bush administration, advanced the tribe's land-into-trust application and issued an opinion which said the site could be used for a casino. But in a repeat of the tribe's treatment in the 1910s and the 1920s, the acquisition was never closed and a higher-ranking political official at Interior, who incidentally has returned to an even higher-level post at the department thanks to President Donald Trump, overturned the earlier gaming determination.

The Obama administration changed course and finally approved the application in 2012. Litigation, both from Amador County and non-governmental opposition groups, some of whom had initiated lawsuits years prior, kept the acquisition in limbo until the 9th Circuit's decision last week.

In a separate ruling issued on the same day, the court ordered the dismissal of a lawsuit filed by those oppositions groups. One of the plaintiffs is a national anti-Indian group that claims federal Indian policy is "racist" against non-Indians.

Turtle Talk has posted briefs from both cases, County of Amador v. Department of the Interior and No Casino in Plymouth v. Zinke. All of the parties have the option of asking the 9th Circuit to rehear their cases. They could also appeal to the Supreme Court.

Meanwhile, legislation to "fix" Carcieri continue to go nowhere in Congress. The Republican leader of a key committee in the House has long refused to schedule hearings on various bills to resolve the decision. Efforts in the Senate have stalled as tribes question why local governments, like the ones that file lawsuits against the government, should be given a stronger say in the land-into-trust process.

9th Circuit Court of Appeals Decisions:
County of Amador v. Department of the Interior (October 6, 2017)
No Casino in Plymouth v. Zinke (October 6, 2017)

Federal Register Notice:
Land Acquisitions; Ione Band of Miwok Indians of California (May 30, 2012)