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Not a Good Year for Indian Country in the Courts or Congress

The year 2011 provided few bright spots in the courts or Congress for Indian nations. The year began inauspiciously in January with a ruling from the U.S. Court of Appeals for the District of Columbia Circuit giving Michigan resident David Patchak standing to sue the Interior Department for taking land into trust for the Gun Lake Tribe’s casino in Wayland County, Michigan. The suit also challenges the federal government’s holding of Indian trust lands under the Quiet Title Act, threatening trust lands for six years after Interior approves them. It was pretty much downhill in the courts from there. The legislature didn’t do much better. Congress not only failed to pass any news bills to benefit Indian country, it also failed to pass what legislators, the White House and Indian leaders say is Indian country’s “number one priority” – a clean Carcieri fix to repair the U.S. Supreme Court’s disastrous Carcieri v. Salazar ruling that has largely stripped the Interior Secretary’s authority to take land into trust for Indians. Here’s a sampling of the events:

  • The U.S. Court of Appeals for the District of Columbia Circuit issued a ruling January 21 that said Patchak has standing to sue the Interior Department for taking into trust the 147 acres where the Gun Lake Tribe opened a casino in February. The ruling reversed a federal district court ruling that Patchak did not have standing and was barred from filing the complaint by the Quiet Title Act, which says the federal government cannot be divested of title to Indian trust lands. The core of this case is Patchak’s challenge that the Interior secretary was not authorized to take Gun Lake’s land into trust because the tribe was not under federal jurisdiction in 1934 when the Indian Reorganization Act (IRA) was passed—a challenge that relies on the U.S. Supreme Court’s Carcieri v. Salazar ruling in 2009. On December 13, the Supreme Court accepted petitions from the Gun Lake Tribe and the federal government to review the lower court ruling.
  • Ten days later, a coalition of forces filed a Carcieri challenge lawsuit in the Washington, D.C. district court, seeking to block the federal government’s decision to take 152 acres of land into trust as an initial reservation for the Cowlitz Indian Tribe to build a casino resort near Le Center, Washington. The plaintiffs are Clark County, the City of Vancouver, Washington, an anti-Cowlitz casino group called Citizens Against Casino shopping, two individuals who live near the Cowlitz’s proposed casino site, two non-Indian gaming companies. Dragonslayer, Inc., and Michels Development LLC who together own four La Center card rooms that stand to lose substantial business to a full scale casino resort, and by Grande Ronde, a tribe that operates a casino near Portland, Oregon.
  • Congress and the Senate passed the Nation Defense Authorization Act (NDAA) in May and December, respectively. The bill gives the president unilateral authority to wage war anywhere in the world and detain anyone suspected of terrorism or “providing aid” to terrorists indefinitely without charge or trial, including U.S. citizens captured on U.S. soil. Indigenous Peoples fear that the legislation could be used against them for asserting their right to self determination, sovereignty and the protection of their lands and resources against exploitation by governments or corporations.
  • One bright spot occurred in July when Interior’s Assistant Secretary-Indian Affairs Larry Echo Hawk rescinded a controversial Bush-era ruling that prohibited the department from taking land into trust for gaming if it was not within an undefined “commutability distance.”
  • In April and August, Senators Dianne Feinstein and John McCain introduced scorched-earth proposed bills that would make it almost impossible for the Interior Department to take off-reservation land into trust for gaming—or any other purpose.
  • In October, the U.S. Supreme Court upheld a lower court decision denying the Oneida Indian Nation the right to reclaim or be compensated for more than 260,000 acres of the nation’s ancestral lands that were illegally taken by the State of New York. The ruling conflicted with an earlier Supreme Court ruling that supported the nation’s claim for damages stemming from the illegal seizure of its land.
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