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

Gale Courey Toensing

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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ppmickey's picture
Submitted by ppmickey on
There should be no excuses for any more Indian land to be taken whatever the reason may be. It's like reverting to past history. The government keeps taking but not giving back to tribes who are so deserving of recognition and restitution. Hasn't enough been taken away? The minute any land a tribe is on is found to be of any worth, it seems the government strives to find some reason to take that land away. When is government going to draw a line and stop this practice? I just don't get it. If you don't know history you are bound to repeat it and the time has come for the government to do some reading of past history and quit repeating it. It's time for all tribes to be recognized and compensated for loses. It's sad that this is still an issue to be debated. What is there to debate? What is right is right and what the government has done is wrong. I don't want to see history repeat itself over and over again. It's getting tiresome, like hearing the same song over and over and over again. The government is making excuses, over and over and over again. It's so sad in this day and age that this is still an issue.

michaelmack's picture
Submitted by michaelmack on
Indian Country has yet to learn that the U.S. legal system is NOT and NEVER WAS about "justice" or "fairness" - it is about WINNING. The U.S. government and private corporations are willing to do whatever it takes to WIN. If Indian Country continues to sit back waiting for the U.S. government to live up its the legal commitments it made to us, or to treat us with "justice", we are in for a VERY long wait. And in the meanwhile, what we do have left will slowly be taken away, until we wake up to find we have nothing left. Indian country - WAKE UP and DO something about this! Most people in Indian Country to do not understand the realities of how U.S. politics really functions - lobbyists, political action committees (PACS), private think-tanks, etc. to draft, propose legislation, promote their political agendas, network, pressure elected officials, propose alternative legislation, etc. - they do this relentlessly 24/7, they build political alliances and do WHATEVER it takes until they win no matter how it costs or many years it takes. Until Indian Country gets its act together and establishes its own legal/political organizations to confront these issues BEFORE they get taken to court, nothing will change, in fact, things WILL get worse. The reason the Supreme Court decides for the U.S. government and not the Indians, and why private corporations win most of their cases against Indian Country, is they have invested the time, energy, and money to research these issues and present their cases way before the issues ever get to court. Does Indian Country do this? Not really - this is why we keep losing. To date, Indian Country only responds after the U.S. Supreme Court or Congress makes its decisions, in spite of the fact that we have a clear history that demonstrates over and over that this response strategy does NOT work! And then we whine about how "unfair" it is! YES, the U.S. legal system is not about fairness! Never has been! Never will be! Indian Country hasn't yet learned that we cannot rely on any U.S. government institution to do our bidding, because the U.S. government will ALWAYS place its interests before ours. NARF, NCAI and others do the best with what they have but because they are primarily funded by the U.S. government, they will never to free to truly tackle the fundamental legal issues that need to be addressed. Until Indian Country commits itself to invest in the necessary resources to establish our own independent (NO U.S. funding) think-tanks, lobbyists, and PACS to compete with the existing political system, we will continue to lose. Indian Country is already way behind in dealing effectively against the U.S. political system, but what will happen if we let things continue as they are? Its our choice!