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Why Justice Scalia is Blind to History

Jay Daniels
7/12/13

We are living in an era where there aren't enough Supreme Court Justices who think like Justice Antonin Scalia. Justice Scalia, a true constructionist, believes wholly in the U.S. Constitution and never decides to add to or take away from it. In other words, Scalia uses the words' true meaning without applying legislative history or other related documents.

For example, in the recent Baby v. Adoptive Couple, or the Baby Veronica decision, Justice Scalia was a dissenter in the opinion as he was unwilling to move away from the law as constructed. However, that is sometimes good and sometimes bad. The court's responsibility is to rule on cases based upon legislated law, but they seem to think they can rule and legislate from the bench at the same time.

The IRA was perhaps the most significant initiative of John Collier Sr., Commissioner of the Bureau of Indian Affairs (BIA) from 1933 to 1945. He had worked on Indian issues for 10 years prior to his appointment, particularly with the American Indian Defense Association. He had intended to reverse some of the worst government policies and provide ways for American Indians to re-establish sovereignty and self-government, to reduce the losses of reservation lands, and establish ways for Indians to build economic self-sufficiency. Various other interests effected changes to the legislation that reduced protections for Indians and preserved oversight by the BIA .

The Assistant Secretary-Indian Affairs (ASIA), Kevin K. Washburn, issued for public comment a proposed rule designed to demonstrate the Administration’s commitment to restoring tribal homelands and furthering economic development on Indian reservations. The proposed rule is meant to provide for greater notice of land-into-trust decisions and clarify the process for judicial review depending on whether the land is taken into trust by the ASIA, or by an official of the BIA.

All BIA trust acquisition decisions would ensure that interested parties have adequate notice of the action and must clarify the requirement that exhaustion of administrative remedies within the Department is necessary to seek judicial review. This will prevent interested parties from filing in court before they exhaust the Department of Interior's administrative procedures act.

The principal purpose of the proposed rule is to give tribes assurance that they can develop lands acquired in trust for purposes such as housing, schools and economic development, said the ASIA. If parties do not appeal the decision within the administrative appeal period, tribes can begin development without fear that the decision will be later overturned in court action.

For decisions made by the ASIA, which generally are for gaming or other complex acquisitions, the proposed rule clarifies that the Assistant Secretary’s decision is a final decision for the Department of Interior and allows the Assistant Secretary to proceed with taking the land-into-trust with no waiting period. The proposed rule would also effectively repeal a 1996 procedural provision by omitting a 30-day waiting period which, as a result of a 2012 U.S. Supreme Court decision, now is unnecessary.

In 1996, the Department revised its land-into-trust regulations in Part 151 by establishing a 30- day waiting period following publication of a Departmental determination to take land into trust for an Indian tribe. At that time, prevailing federal court decisions held that the Quiet Title Act (QTA), 28 U.S.C. 2409a, precluded judicial review of such determinations after the United States acquired title to the land in trust. The waiting period was intended to ensure that interested parties had the opportunity to seek judicial review under the Administrative Procedure Act (5 U.S.C. 704) before the Secretary acquired title to land in trust. See 61 FR 18082 (Apr. 24, 1996).

The legal position changed on June 18, 2012, when the Supreme Court issued its decision in Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians v. Patchak, 132 S. Ct. 2199 (2012). In that decision, the Supreme Court held that the Quiet Title Act does not bar Administrative Procedure Act challenges to the Department’s determination to take land in trust even after the United States acquires title to the property, unless the aggrieved party asserts an ownership interest in the land as the basis for the challenge. Following Patchak, the 1996 procedural rule establishing a 30-day waiting period before taking land into trust to allow for Administrative Procedure Act review is no longer needed. If he is successful, the Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians will lose their investments incurred to date. What a shame.

Most of the land taken from Indian Tribes was taken in minutes by the stroke of a pen. I can't image that Congress anticipated the IRA acquisition authority to take 6 years (statute of limitations) or more.

The proposed rule will be available in the federal register at https://www.federalregister.gov/public-inspection. Public comments may be submitted to the Department for sixty days following the proposed rule’s publication in the Federal Register.

Jay Daniels has 30 years of experience working in Indian country, managing trust lands and is a member of the Cherokee Nation of Oklahoma. You can find resources and information at RoundHousetalk.com.

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