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
was passed. The law authorized the
to take land into trust for tribes and individual Indians.
But a pending Supreme Court case, Carcieri
, 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
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
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
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
Briefs in MichGO v. Kempthorne
Match-E-Be-Nash-She-Wish Band Opposition
D.C. Circuit Decision:
Gambling Oppo v. Kempthorne, Dirk
(April 29, 2008)
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