Here are the available materials in Owen v. Huber:
CA8 Unpublished Opinion in Owen v. Huber
Owen Opening Brief
Owen Reply Brief
In my opinion, this case just underscores why Venetie is wrongly decided as a matter of law (at least with respect to the first prong). In most every case a federal set aside (for use by Indian nations) with federal superintendence constitutes an Indian reservation (you can call it formal or informal if you want, ala Oklahoma Tax Commission v. Sac and Fox Nation, but it is nonetheless an Indian reservation under the development of federal common law). Prior to Venetie the initial test/focus was on there being an Indian community – fairly independent of the nature of the title to the land. Venetie says that is met when there is a federal set aside (which is probably false, as there are federal set asides that don’t amount to a set aside for the formation of an Indian community), and more to the point, that there must first be a federal set aside. The problem is that this is contrary to Sandoval, which with the McGowan case, is where the very concept of a dependent Indian community comes from.
The Santa Clara land in Sandoval was owned by the Peublo in fee simple absolute. The court said it wasn’t fee simple absolute in the common sense because it amounted to public lands of the peublo. That’s fine so long as it is understood it is not the common sense only because of who owns the fee simple absolute title (the Santa Clara nation), not because of the nature of the title owned. Just because the federal government owns land in fee simple absolute doesn’t mean the nature of the title changes – it is till fee simple absolute title. Government ownership reders it public, rather than private, land. But that doesn’t effect the nature of the title. And, government ownership of fee simple absolute title has nothing to do with who, or whether, it was set aside for use by Indian nations.
Venetie takes this language from Sandoval and twists it to somehow implicitly claim it amounted to a federal set aside when the United States passed legislation recognizing the Santa Clara’s fee simple ownership of the land. I just don’t understand how this amounts to a federal set aside. It doesn’t. With respect to the first prong of the Venetie test, it appears to be in conflict with the facts of Sandoval. Further, given how narrowly drawn the first prong test in Venetie is, the distinction between an Indian reservation and a dependent Indian community is rendered virtually non-existent.
Maybe some day the right case will come along with a different group of individuals at the Supreme Court and Venetie’s first prong will be considered dicta (as it wasn’t necessary to the holding given their holding on the second prong – no federal superintendence given the language in the ANCSA at 43 USC 1601(b)). Although, this case is not the right vehicle to do that, nor is the current makeup of the Supreme Court one you want to put a case before to limit or overrule Venetie.
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