Here is the abstract:

The Indian Civil Rights Act (ICRA or ‘the Act’) of 1968 grants members of federally recognized Indian tribes individual civil rights similar to those enumerated in the federal Bill of Rights and Fourteenth Amendment. However, the Act provides only one explicit federal remedy for violations of the rights secured therein: the writ of habeas corpus. The U.S. Supreme Court has refused to read an implied cause of action into the Act. Some federal courts assert habeas jurisdiction to review tribal banishment actions alleged to violate ICRA, but not over disenrollment actions. Tribal banishment means an individual tribal member is cast out from tribal lands and often removed from tribal membership rolls. Tribal disenrollment means an individual tribal member is removed from tribal membership rolls and often denied access to some or all tribal facilities. This Comment argues that federal courts should not assert habeas jurisdiction over tribal banishment actions because: exercising habeas jurisdiction over tribal banishment actions contravenes federal Indian law canons of construction; expansive habeas jurisdiction disturbs the careful balance struck by Congress and the Court between individual rights and tribal sovereignty; declining jurisdiction protects tribes’ sovereign authority to determine their own membership; and the line between banishment and disenrollment is arbitrary because tribes have authority to exclude nonmembers from tribal lands. Though it may leave a few individual tribal members without a remedy to challenge tribal banishment alleged to violate ICRA, such a uniform rule best protects tribal sovereignty, preserves congressional intent, and promotes robust tribal court systems.

An excerpt:

Based upon the plain language of SDCL 29A-2-114 and the foregoing authorities, we hold that the trial court did not err in determining that the methods and time limits in the statute for establishing paternity are exclusive. A question remains, however, as to whether Yvette failed to comply with any of them. The trial court found that Yvette had petitioned the Department of the Interior, Bureau of Indian Affairs, Office of Hearings and Appeals to reopen Donald’s probate to include her as an heir. For that reason, the court initially took this matter under advisement to see if Yvette’s petition would be granted. The court subsequently determined it could take more than a year to have Yvette’s petition heard. For that reason, the court issued its decision and this appeal followed. The day after the filing of Yvette’s appellant’s brief, however, the Bureau of Indian Affairs tribunal issued an order directing any parties opposed to naming Yvette as an heir to Donald’s estate to show cause for their objections within thirty days. Thus, Yvette’s efforts to reopen Donald’s probate may still prove successful, permitting her to comply with SDCL 29A-2-114(c) to establish Donald’s paternity. In the interests of justice, therefore, we remand this matter to the trial court to wait for a reasonable time for the Bureau of Indian Affairs’ decision and to proceed accordingly.

TWO SHIELDS – U.S. REPLY BRIEF (1-26-12)

In his piece, Fletcher goes on to outline three potentially significant legal obstacles: the Bureau of Indian Affairs’ “trust acquisition hurdles”; language in the Land Claims Settlement Act provision that says the Interior Department “shall be held in trust” (the word “shall” may not mean “has to”); and a provision in the Indian Gaming Regulatory Act that would require the Sault Tribe to submit its application to the Interior Department after “a prior written agreement between the Tribe and the State’s other federally recognized Indian Tribes that provides for each of the other Tribes to share in the revenue of the off reservation gaming facility.” 

That last quote is actually from the 1993 gaming compacts.

And fourth:

A fourth hurdle, Fletcher wrote, is that the Sault Tribe “has to exercise governmental authority over the land, according to the Indian Gaming Regulatory Act. Sault Tribe has no history in this area, let alone a governmental presence.”

I haven’t really expounded on a possible fifth hurdle, which is really related to the mandatory trust acquisition language. I can assure you Congress would never have intended that the Sault Tribe would be able to use this provision to buy land for off-reservation gaming purposes (especially, way off-reservation gaming purposes. See the legislative history here (Judgment Funds Hearing), which is virtually silent as to gaming. [Although to be fair, Rep. Kildee says his grandfather from the Traverse City area remembers when Indians had more "mobility" than they do now.] Ultimately, legislative history doesn’t trump the plain language. Usually.

Sault Tribe has to worry that a court construing the Secretary’s authority under the so-called mandatory trust acquisition language is unlimited, and perhaps unconstitutional as applied to this circumstance. The judgment funds settle treaty claims related to the 1836 treaty signatories. The 1836 treaty ceded territories do not include Lansing. And frankly, the Sault Tribe and Bay Mills have only a tenuous claim to lower peninsula territory, given that they are located in the Upper Peninsula, and importantly, there are already three federally recognized Lower Peninsula tribes who are 1836 treaty signatories. I mentioned in yesterday’s post that Lansing is small potatoes compared to other metropolitan areas, like Chicago and Cleveland, that don’t have Indian casinos now. Nothing stops Sault Tribe from going there with their casino proposals, and that fact alone will make a court wary of allowing Sault Tribe, Lansing, and Interior (if Interior goes along with it) to set aside trust lands in Lansing.

I recall this comment from the Eighth Circuit in a different context (involving the Secretary’s authority under Section 5 of the Indian Reorganization Act) but it makes the point here as well:

By its literal terms, the statute permits the Secretary to purchase a factory, an office building, a residential subdivision, or a golf course intrust for an Indian tribe, thereby removing these properties from state and local tax rolls. Indeed, it would permit the Secretary to purchase the Empire State Building in trust for a tribal chieftain as a wedding present. There are no perceptible “boundaries,” no “intelligible principles,” within the four corners of the statutory language that constrain this delegated authority-except that the acquisition must be “for Indians.” It delegates unrestricted power to acquire land from private citizens for the private use and benefit of Indian tribes or individual Indians.

It’s on page 882 here (SD v DOI). I can easily see a court rejecting the plain language reading the Tribe will want them to make on these grounds. It would be a terrible precedent for all of Indian country. But tribes take risky actions in desperate times, I suppose.