Supreme Court rejects land-into-trust case

Law | Trust

Thursday, January 22, 2009

The administration of President Barack Obama received some good news on Wednesday with the end of a potentially troublesome land-into-trust case.

The U.S. Supreme Court, without comment, declined to hear MichGo v. Kempthorne, a lawsuit that tested the ability of the federal government to acquire land for tribes. The order from the high court came only a few minutes after Ken Salazar, a former senator from Colorado, started his job as the Secretary of the Interior Department.

The move effectively settles a debate that has haunted Interior as far back as the Clinton administration. For years, tribal foes have argued that the land-into-trust provisions of the Indian Reorganization Act are unconstitutional.

Every court that has taken up that question has rejected it. So the action yesterday indicates the justices aren't interested in overturning the 1st, 2nd, 8th, 9th, 10th and the D.C. circuits, whose combined jurisdictions cover nearly every tribe in the country.

One tribe, the Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians, was particularly pleased with the latest development. The tribe's efforts to create a reservation and open a casino were hindered for years by a group called Michigan Gambling Opposition.

"We are very happy with the Supreme Court's decision to reject MichGO's appeal," said Chairman D.K. Sprague. "It is, however, bittersweet because the tribe and thousands of its supporters were irrevocably harmed by this lawsuit."

Despite the favorable news, another land-into-trust issue remains in limbo. Last fall, the Supreme Court heard Carcieri v. Kempthorne, a case that could change the way Interior deals with tribes that gained federal recognition after the passage of the IRA in 1934.

Department of Justice lawyers who were appointed by President George W. Bush filed a brief with the Supreme Court last month that anticipated more hurdles for tribes like the Match-E-Be-Nash-She-Wish Band, whose recognition became final in 1999. The brief said Interior would have to determine whether a post-1934 tribe was under federal supervision despite not being formally recognized.

Sprague answered that question yesterday by citing a treaty Chief Match-E-Be-Nash-She-Wish signed with the U.S. in 1795. The Bush-authored brief said treaties were one way to determine whether a recently recognized tribe qualifies for the land-into-trust process.

But the Obama administration may take a different approach to addressing the post-1934 issue if Carcieri goes against tribal interests. Or the Supreme Court could rule that the IRA applies to all tribes, regardless of the date of recognition.

Between 1887, the start of the allotment period, and 1934, tribes lost 90 million acres of their land. Since the IRA, only about 5 million acres has been reacquired in trust.

Tribes complain that the land-into-trust process takes too long to complete, in part because existing regulations do not impose deadlines on Interior. A recent report from the Government Accountability Office cited an application that took nearly 20 years for the Bureau of Indian Affairs to resolve.

Litigation can also tie up an application for years, as was the case with three Michigan tribes, including the Match-E-Be-Nash-She-Wish Band, also known as the Gun Lake Tribe. All three lawsuits were resolved in favor of tribal interests.

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)