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High court hears land into trust, fiduciary duty, ‘ceded land’ cases

WASHINGTON – An anti-Indian sovereignty business group from Michigan has piggybacked on a controversial lawsuit by an anti-Indian sovereignty state government that hopes to reverse the Interior Department’s authority to take land into trust for American Indians.

The U.S. Supreme Court heard arguments Dec. 3 in the state suit, Carcieri v. Kempthorne, a crucial case that could limit the land-into-trust process to tribes that were recognized by the federal government in 1934 when the Indian Reorganization Act (IRA) was passed.

The lawsuit was filed by the state of Rhode Island in the name of Gov. Donald Carcieri, and broadly challenges the authority of the interior secretary to take land into trust under Section 5 of the IRA, and specifically challenges the interior’s decision to take 31 acres of land into trust for the Narragansett Indian Tribe, which was federally acknowledged in 1983.

“We were always recognized,” said John Brown, the tribe’s medicine man in training, drawing a distinction between the federal government’s artificial process of federal acknowledgement and the tribe’s historic identity.

Tribes nationwide are watching the case closely, as a negative decision by the court could lead to legal questions over the validity of an abundance of tribal trust lands. Twenty-one states joined an amicus brief supporting the state’s position in addition to briefs filed by the National League of Cities and others “as part of a coordinated strategy to mount additional legal challenges to the acquisition of trust land for the benefit of Indians and Indian tribes,” according to the Native American Rights Fund.

NARF’s Tribal Supreme Court Project coordinated the preparation of four briefs in support of the Interior Department. A decision by the high court is expected in February or March.

In the piggyback case, the Department of Justice is defending the interior’s decision to take land into trust for Michigan’s Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians, known as the Gun Lake Tribe, which gained federal recognition in 1998.

Michigan Gambling Opposition – MichGO – a private anti-Indian casino group has filed numerous lawsuits for the last 10 years blocking the tribe’s progress, including challenges to interior decision to take land into trust for the tribe’s proposed casino.

Last April, the Washington circuit court denied MichGO’s latest challenge in the third such opinion in recent years. In October, MichGO then turned to the U.S. Supreme Court in the hope that the high court would grant its petition in light of the Carcieri v. Kempthorne case.

The Justice Department filed a brief of opposition to MichGO’s petition on Dec. 5.

The justice attorneys urged the high court to reject MichGO’s petition, arguing the group should not be allowed to bring up the 1934 Indian Reorganization Act issue because it was never raised during the lower court proceedings.

If the high court rules against the Narragansett case, attorneys in the Indian community have said they will seek a congressional “fix” to the 1934 IRA, clarifying the interior secretary’s authority to take land into trust.

But Matthew Fletcher, commenting on the case on his Turtle Talk blog (, said it’s conceivable that the Interior Department could provide its own fix.

“The government’s view seems to be that treaty tribes for sure (and perhaps non-treaty tribes whose members received federal services) will still qualify as tribes under Section 5. And that’s pretty much what the government says in the MichGO opposition,” Fletcher said. He is assistant professor at Michigan State University College of Law, director of the Indigenous Law and Policy Center, and co-founder of the Turtle Talk blog. He is an enrolled member of the Grand Traverse Band of Ottawa and Chippewa Indians.

The Justice Department brief says, “If this court were to set aside the Secretary’s action in Carcieri, any remand in this case in light of the court’s disposition of Carcieri would in turn require a remand to the Department of the Interior to reopen the record to develop petitioner’s belated claim on the merits.”

If that’s the case, Fletcher said, “then a Carcieri reversal would be terrible to Indian country only in the sense that the tribes affected by Carcieri would be forced to prove that they were ‘under federal jurisdiction’ even if they were not federally recognized in 1934. The Department of Interior, which has never promulgated regulations on the meaning of ‘under federal jurisdiction,’ might even be able to enact a Carcieri fix without going to Congress,” Fletcher said.

MichGO’s petition is pending a decision.

Following the Carcieri hearing, NARF’s Tribal Supreme Court Project has focused its energy on two other Indian law cases before the high court.

In United States v. Navajo Nation, a circuit court ruled that the Navajo Nation has a money claim against the U.S. for allegedly breaching its fiduciary trust duties with regard to the Navajo Nation Peabody Coal mineral lease of which the U.S. is trustee. The case involves questions about which laws, regulations and amendments constitute “the requisite substantive source of law.”

The case has wended its way through lower courts and reached the U.S. Supreme Court in 2003 and now returns there to review two questions: Whether the court of appeals holding that the U.S. breached its fiduciary duties was foreclosed in the previous case and, if not, whether the court of appeals properly decided that the U.S. owes the Navajo Nation up to $600 million?

The Tribal Supreme Court Project is representing the Navajo Nation and is developing an amicus strategy. Oral argument is scheduled for Feb. 23.

In State of Hawaii v. Office of Hawaiian Affairs, the Supreme Court of Hawaii issued an injunction prohibiting the state from selling or transferring “ceded lands” held in trust until Native Hawaiians’ claims to the lands have been resolved.

The Hawaiian Supreme Court based its decision in part on the apology that Congress issued in 1993, which acknowledged the illegality of the U.S. government’s military-backed regime change of “the sovereign Hawaii nation” in 1893 and its support for the illegally created “provisional government” in violation of treaties and international law. The insurgents were wealthy American and European financiers and colonists who owned sugar plantations.

The key statement in the apology reiterates Hawaii’s continuing independence: “The indigenous Hawaiian people never directly relinquished their claims to their inherent sovereignty as a people or over their national lands to the United States, either through their monarchy or through a plebiscite or referendum,” the apology says.

The question before the U.S. Supreme Court is whether the “symbolic resolution” strips Hawaii of its “sovereign authority” to sell, exchange, or transfer 1.2 million acres of state land, which Native Hawaiians claim was never ceded, until a political settlement is reached about the status of the land.

The Tribal Supreme Court Project is working with attorneys representing the Office of Hawaiian Affairs. Oral argument has been scheduled for Feb. 25.

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