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Ruling may not block tribal land buys in Minnesota

MINNEAPOLIS, Minn. – A U.S. Supreme Court decision Feb. 24 limiting the federal government’s authority to hold land in trust for Indian tribes might not affect a wealthy Minnesota tribe that’s relied heavily on trust land to expand its reservation, local Indian law experts said.

The Shakopee Mdewakanton Sioux Community, which owns the Mystic Lake Casino, has expanded its original 250-acre reservation to more than 2,800 acres in Prior Lake and Shakopee by using casino profits to buy land and put it in trust. That has sometimes put the tribe at odds with local governments because doing so takes the land off the property tax rolls and potentially affects the ability of the cities to grow.

The decision by the high court applies to tribes recognized by the federal government after the 1934 Indian Reorganization Act. That excludes most Minnesota tribes, but the Shakopee tribe didn’t win federal recognition until 1969, according to the tribe’s Web site.

Sarah Deer, a professor of Indian law at the William Mitchell College of Law, said that while Justice Clarence Thomas, who wrote the majority opinion, apparently sought to close the door on tribes that were recognized after 1934 taking land into trust, Justice Stephen Breyer tried to leave an opening.

In his concurrence, Breyer suggested that tribes not recognized by the federal government before the 1934 law might still have been under federal jurisdiction.

Deer said that seems to create “wiggle room” for another way tribes can take land into trust. She said tribes such as the Shakopee could argue that they didn’t have formal recognition prior to 1934, but that the federal government has acknowledged their existence all along.

“It basically just means there’s another box to check off for the tribes,” she said.

Thomas Heffelfinger, a former U.S. attorney for Minnesota who now practices Indian law, also said Breyer’s concurrence may provide an out for tribes that can show they were under federal jurisdiction. He said that’s likely to be decided case by case.

“I suspect that the Shakopee tribe would have a strong argument going back to the 1862 Dakota War for being under federal jurisdiction regardless of when they were formally recognized,” Heffelfinger said.

Deer said she doubts the ruling could be used to challenge land that’s already been placed in trust for tribes. She said the federal Quiet Title Act precludes that.

Willie Hardacker, the Shakopee tribe’s legal counsel, said he would need to check with the tribal council before commenting. Prior Lake City Manager Frank Boyles didn’t immediately return a phone call seeking comment.

Shakopee City Manager Mark McNeill said he hadn’t heard about the ruling.

“I’ll be very interested to see what it’s about,” he said.

McNeill said the City of Shakopee has never disputed the right of the tribe to buy land like anyone else, but that the city has had problems with how the BIA handled the notification process. He said the city recently reached a resolution with the federal agency that will allow them to talk about the impacts of tribal land acquisition and how they can work together going forward.

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