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Third court decision favors land-into-trust process
Friday, November 11, 2005

For the third time this year, a federal court has upheld the legality of the land-into-trust process.

On Thursday, the 10th Circuit Court of Appeals rejected a challenge from the state of Utah. Officials argued that the Indian Reorganization Act of 1934, the law that authorized the land-into-trust process, was a violation of the U.S. Constitution.

The judges of the court disagreed. In the unanimous decision, they said the state failed to make its case that the IRA is an unconstitutional delegation of power to the Interior Department.

"We have previously acknowledged the statute itself places limits on the Secretary's discretion," Judge Mary Beck Briscoe wrote for the majority, citing a 10th Circuit case from 1999. The IRA's "legislative history identifies goals of 'rehabilitating the Indian's economic life' and 'developing the initiative destroyed by . . . oppression and paternalism' of the prior allotment policy," Briscoe added.

With the ruling, the 10th Circuit joins the 8th Circuit and the 1st Circuit this year in rejecting constitutional challenges to the land-into-trust process. Although the U.S. Supreme Court hasn't ruled directly on this issue, Bureau of Indian Affairs hope their legal battles are over.

At a recent conference in Las Vegas, George Skibine, the BIA official in charge of gaming, said "we hope these sort of challenges will be put to rest" now that numerous circuit courts have ruled in the government's favor.

Despite the victories, tribal leaders say land-into-trust decisions face lengthy delays at the BIA due to controversy over Indian gaming. "There seems to be a fear within [Skibine's] office that there may be a floodgate coming down," said Deron Marquez, the chairman of the San Manuel Band of Mission Indians in California, at the Las Vegas conference.

Bush administration officials have denied any attempts to purposely delay or derail the process. "There is no moratorium on land-into-trust," Jim Cason, the associate deputy secretary at Interior, flatly said at the National Congress of American Indians conference last week.

Cason said the BIA divides land-into-trust applications into five "buckets" depending on the location of the land and its proposed use. The first four buckets, he said, are for non-gaming acquisitions: tribal on-reservation, tribal off-reservation, individual on-resevation and individual off-reservation.

The fifth bucket, he said, is for all gaming-related applications. These decisions are made by the central office in Washington, D.C.

According to Skibine, the Bush administration has made 15 land-into-trust for gaming decisions since 2001. An additional nine decisions are pending at the BIA, he said in Las Vegas.

The application at issue in yesterday's ruling was from 1995 and did not involve gaming. The BIA agreed to acquire two parcels of off-reservation land totaling about 25 acres for the Shivwits Band of Paiute Indians of Utah. The two parcels are located along a major interstate.

The tribe developed the land by placing billboards on the parcels. State and local officials tried to halt development, saying the billboards violated state and federal law but this argument was rejected by the 10th Circuit.

One of the judges on the panel, however, wrote separately to say that the federal Highway Beautification Act, which mentions billboards placed by interstates, applies to Indian Country and that the BIA has to enforce it. The other judges didn't address whether the law applies to Indian lands because they said the state failed to raise the issue of BIA enforcement on appeal.

Get the Decision:
Shivwits Band of Paiute Indians v. Utah (November 10, 2005)

Related Stories:
Local role in gaming land decisions disputed (11/11)
BIA official revives off-reservation land regulations (09/21)
Gaming clouds already lengthy land-into-trust process (09/15)
Trust land challenge rejected by appeals court (9/14)
Oklahoma tribe plans state's largest gaming facility (08/02)
NIGC develops system to track Indian lands (07/28)
Bush officials worried about off-reservation gaming (05/20)
BIA official confirms tribes skipping IGRA process (05/19)
Perception and realities in land-into-trust debate (05/19)
Land-into-trust for gaming under more scrutiny (04/28)
Land into trust to be examined at Senate hearing (5/10)
Update: Senate hearing on Indian gaming (04/27)
BIA backs bill to delay off-reservation casino (04/06)
Off-reservation casinos a concern at gaming summit (03/30)
Bush stance on off-reservation gaming unknown (03/29)
Exceptions to IGRA more common than often cited (03/21)
Appeals court sides with tribe in trust land dispute (02/10)

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