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Indian Nations Law Update - February 2014

February 10, 2014

Ninth Circuit Big Lagoon Decision Puts Fee to Trust Acquisitions in Doubt

In Big Lagoon Rancheria v. California, 2014 WL 211763 (9th Cir. 2014), the Big Lagoon Rancheria (Tribe) had sued in federal court under the Indian Gaming Regulatory Act (IGRA) to force the State to negotiate a Class III gaming compact that would permit gaming operations on fee land that the Department of the Interior had taken into trust for the Tribe in 1994 pursuant to Section 5 of the Indian Reorganization Act (IRA). The State argued that it had no obligation to negotiate with the Tribe because the Tribe was not under federal jurisdiction in 1934 and was, therefore, ineligible to have land taken into trust under the IRA. The Ninth Circuit Court of Appeals agreed, holding that (1) the Tribe had not come under federal jurisdiction until 1979 and (2) there was no time limitation to a collateral attack on a trust acquisition by the federal government. The court cited "the well-worn rule that administrative actions taken in violation of statutory authorization or requirement are of no effect. … Other courts have used different language, … but the upshot is the same: The law treats an unauthorized agency action as if it never existed."

The Court’s decision, if it stands, would be the third successive blow in recent years to tribes’ ability to acquire land in trust under Section 5 of the IRA. First, the Supreme Court ruled in 2009 in Carcieri that only tribes "under federal jurisdiction" in 1934 were eligible to acquire land in trust under the IRA. Second, in 2012, in Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians v. Patchak (Patchak), the Supreme Court held that a private party was not barred by the Quiet Title Act from challenging the Secretary’s decision to take land into trust, provided the challenger was not seeking to establish his or her own title.

It had been widely assumed after Patchak that anyone challenging a secretarial acquisition would need to sue within six years, the limitations period for suit under the federal Administrative Procedure Act. According to the Big Lagoon decision, however, a plaintiff could potentially seek a ruling invalidating a trust acquisition at any time.

In addition to inviting challenges to ancient decisions by the Secretary to acquire land for tribes in trust, the Ninth Circuit ignored the U.S. Department of Interior (DOI) standard for determining whether a tribe was "under federal jurisdiction" in 1934. Under the DOI standard, services provided to tribal members before 1934 and a variety of other factors would have been relevant. According to the Ninth Circuit, the Tribe was not under jurisdiction in 1934 simply because (1) it did not appear on a DOI list prepared shortly after the IRA was enacted and (2) there were no members living at the site of the Rancheria in 1934: "Since no one resided on what is now the rancheria, there was no group to organize. The absence of Big Lagoon from the 258–tribe list was not an intentional or inadvertent omission; it was a reflection of reality."

Because of the potential harm that the decision may cause, a request for rehearing by the full Ninth Circuit is expected.

Great Lakes Tribal Renewable Energy Conference February 20-21, 2014 to Focus on Energy Independence, Environmental Protection and Financing Sources

Law Seminars International (LSI) will present "Tribal Energy Development in the Great Lakes," a two-day conference to be held February 20-21, 2014 at the Hyatt Regency Hotel in Milwaukee, a city known for its Calatrava Art Museum, Discovery World Museum, Harley-Davidson museum, Potawatomi Bingo Casino, fine restaurants, stunning lakefront parks, semi-tropical February weather and much more. Godfrey & Kahn Indian Nations Law Team Leader Brian Pierson and Forest County Potawatomi Attorney General Jeffrey Crawford will serve as co-chairs.

Nothing is more critical to the well-being of tribal communities and their economic development than a secure and affordable source of energy. Tribal governments need it to provide health care, housing and a broad array of other services to members. Tribal enterprises use vast quantities of it to run their casinos, hotels and other businesses. Tribal members depend on it to heat, cool and light their homes. Yet today Midwest tribes must rely for their energy on off-reservation, state-regulated utilities.

If your tribe is interested in energy alternatives that strengthen sovereignty and promote tribal values, please join us. Our faculty of tribal leaders, energy industry professionals and experienced attorneys will address the unique challenges and opportunities that face Midwestern tribes and provide answers to key questions:

  • How does carbon-based energy production impact the woods, lakes and streams of Indian country, the health of tribal members and their ability to engage in, and pass on, traditional activities?
  • How does energy independence strengthen tribal sovereignty?
  • How can tribes pursue energy development consistent with their Seven Generations ethic?
  • What energy resources are available to Great Lakes tribes? What factors should a tribe consider when choosing among solar, wind, biomass and other technologies?
  • What are the economics of renewable energy versus carbon-based energy? In other words, how soon does a reservation renewable energy project "pay for itself"?
  • What energy projects are Great Lakes tribes pursuing today that can serve as models for other tribes?
  • What federal, state and private sources of funding are available to tribes for energy resource development?
  • How can tribes partner with private parties to take advantage of renewable energy tax credits and other tax benefits?
  • What regulatory hurdles impede reservation energy development and how can tribes overcome them?

We have planned this conference to be not only highly informative but also informal, interactive, exciting and enjoyable. The faculty expects to learn not only from each other but from attendees. Our hope is that, as a result, the Great Lakes tribes will take a large step toward energy sovereignty together.

For more information, including the draft agenda and registration information, visit the LSI website.

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