Indianz coverage is here. Here are the materials. Once again, let it be known that Rule 19 is my favorite(!):
nisqually-v-gregoire-complaint
nisqually-motion-for-preliminary-injunction
squaxin-island-motion-to-dismiss
franks-landing-motion-to-dismiss
From ICT:
The federal government’s recent actions involving its authority to make decisions on acquiring land in trust for tribal gaming purposes may inadvertently threaten the authority and duty of the secretary of the Interior Department to take land into trust for Indian tribes.
On April 29, the D.C. Circuit decided an innocuous case involving the secretary of Interior’s decision to take land into trust for the Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians (also known as the Gun Lake Band). It was the third such opinion in recent years involving Michigan Potawatomi Indian tribes, each brought by well-funded citizens groups opposing Indian gaming. The suits were mere harassment suits, intended to delay rather than prevent the opening of the Potawatomi gaming operations. Each of the suits brought similar claims.
Of import, one claim was that Section 5 of the Indian Reorganization Act, the statute that authorizes the secretary to take land into trust for Indian tribes, was an unconstitutional delegation of congressional authority. The first two D.C. Circuit panel decisions (2006 and 2007), involving the Pokagon Band of Potawatomi Indians and the Nottawaseppi Huron Band of Potawatomi Indians, rejected the constitutional challenge to Section 5 without much discussion or dissent. In fact, since 1995, at least three other federal appellate circuits have rejected the same kind of challenge to the statute, so this is unsurprising.
From Rocky Mountain News:
There’s a clue to the way Louise Erdrich’s mind works in a note at the beginning of her new novel, The Plague of Doves.
It’s a standard message stating that all the places and people in the book are imagined, but the author lists an exception, a character named Holy Track. “In 1897,” she writes, “at the age of thirteen, Paul Holy Track was hanged by a mob in Emmons County, North Dakota.”
Other writers hitting upon this intriguing and sad bit of history might construct a novel focused around Paul himself, but as Erdrich has demonstrated in her prior novels about an Ojibwe and French Canadian clan, she thinks in terms of generations. In this book, Erdrich embeds the detail in a larger narrative about relatives and neighbors that preceded or followed him. As in her other novels, she makes room for comedy next to tragedy and includes good doses of passion, from schoolgirl crushes to a college girl’s lesbian fling to forbidden romances among the elderly.
Here is the Tenth Circuit’s decision in United States v. Friday — us-v-friday-ca10 (thanks to Sarah Krakoff for the heads-up).
Judge McConnell wrote the decision. Here is our previous commentary on the case (here). Guess no circuit split….
From Indianz:
An attorney for the Grand Traverse Band of Ottawa and Chippewa Indians says a lawsuit challenging the Michigan tribe’s land-into-trust lawsuit is “fruitless.”
The tribe wants about 22 acres placed in trust. A group of property owners, however, claims the land belongs to them. Tribal attorney William Rastetter said the plaintiffs who filed the case are wasting their time. He said the state and federal courts have already ruled the land doesn’t belong to them. The land is part of the Leelanau Trail, which the tribe supports. The land used to be a former railroad right-of-way. In related Grand Traverse news, the tribe has certified the results of its April 9 primary. Incumbent chairman Robert Kewaygoshkum will face Derek Bailey in the May 21 general election. Six candidates are seeking three open council seats.
Get the Story:
Tribe downplays suit over former rail corridor status (The Leelanau News 5/8 )
Tribe certifies Primary results (The Leelanau News 5/8 )
Related Stories:
Lawsuit challenges Grand Traverse land-into-trust (5/2)
Grand Traverse Band vote in primary on Wednesday (4/8 )
The case is called High Plains Community Development v. Schaefer. Previous news coverage on Indianz (here). Here are the materials:
schaefer-motion-for-summary-judgment
hays-motion-for-summary-judgment
hinn-motion-for-summary-judgment
Coverage from Indianz on this case (here).
Here are the materials:
The case is In Re DeCora. It involves a Ho-Chunk member declaring bankruptcy and whether the Ho-Chunk Nation Bank’s interest in the member’s per cap proceeds were secured. The opinion is a little entertaining, beginning with a reference to Frank Zappa:
Musician and satirist Frank Zappa once quipped that “Communism doesn’t work because people like to own stuff.” Whether this is an accurate take on geopolitical realities or not, the concept of personal property rights is certainly deeply ingrained into American culture and jurisprudence. In America, people may own all the stuff they can afford, and they can sell or give their stuff to someone else. Even when life doesn’t take Visa (or some other unsecured form of credit), people find ways to use their stuff as collateral for loans so that they can run out and buy more stuff. The present case involves competing interests in an intangible bit of stuff that this Court has encountered before-namely, a debtor’s right to receive tribal per capita distributions from tribal gaming revenues. The debtor used his right to future distributions as collateral for a loan so that he could afford, among other things, a new car. The question is whether the creditor took sufficient steps to protect its security interest from challenge.
The court also cites to numerous Ho-Chunk tribal court opinions. For example:
Third, the tribal courts of the Ho-Chunk Nation have themselves indicated that tribal members have a right to per capita distributions, if and when they are made, as long as that member is on the rolls of the Ho-Chunk Nation. See Kedrowski, 284 B.R. at 448-49; Hendrickson v. HCN Enrollment, CV 99-10 (Ho-Chunk Nation Trial Court 1999).
Here are the materials:
Phillip M. Kannan has published “Reinstating Treaty-Making with Native American Tribes” in the William and Mary Bill of Rights Journal. An excerpt:
This Article proceeds as follows. The legal history of treaties and treaty-making with Indian tribes and the significance of these treaties to United States law are explored in Part I. The dissatisfaction of the House of Representatives with the practice of Indian policy being established by the President with the advice and consent of *813 the Senate is outlined in Part II. Part III then recounts major legislation that followed the enactment of section 71 and the harm these laws caused Indian tribes. In Part III, I also analyze the mischaracterizations of that law by the Supreme Court and the harm this has caused. Building on this background, Part IV develops the argument that section 71 violates the express provisions of the Constitution and the political theory on which it was based; Part V analyzes applicable Supreme Court precedent and concludes that section 71 violates the principles established by these cases; and Part VI argues that it is inconsistent with a theory developed by Justice Kennedy, namely, the guarantee of political liberty provided to each citizen by the federal structure of the Constitution. Part VII then explores the constitutional consequences that would follow from upholding section 71. I conclude with some suggestions of how section 71 could be repealed or overturned.
From the Billings Gazette:
The Crow Tribe recently signed an innovative agreement with Montana and the federal government that will make it easier for banks to offer secured loans on the reservation. Essentially, it provides for seizure of personal property used as collateral when a loan is in default. (It does not apply to land held in trust for the tribe or its members.)
In 2004, the Crow Tribe adopted The Crow Finance Protection and Procedures Act, which makes it possible for banks to foreclose on trust property within the reservation. The catch is that at the foreclosure sale, the land can be sold only to the Crow Tribe or to a member of the tribe. If no eligible bidder can meet the price, the lender gets the beneficial title to the property but must continue to try to sell it to a qualified Crow buyer.
Differences in state and tribal law do come with some complications, but they aren’t barriers, said Mike Eakin, who works in the Billings office of Montana Legal Services.
