“Lands into Trust” -- Supreme Court to Hear Case

Apr 13, 2012

Native American Legislative Update - April 2012

For the last few years, a legislative priority for tribal governments, the administration and the congressional authorizing committees has been to clarify the authority of the Secretary of the Interior to assist tribes to acquire or expand their tribal homeland by placing land into trust with the federal government. Tribes place land into trust for economic development, infrastructure like housing and schools, and cultural and other purposes. We have reported on legislation called the "Carcieri fix," which is named after a 2009 Supreme Court decision in Carcieri v. Salazar, in which the Court held that only those tribes that were federally recognized at the time the Indian Reorganization Act was enacted in 1934 can have the Secretary of the Interior take land into trust for them. (The tribe that was the subject of the case had been recognized as an Indian tribe after 1934.)

On April 24, the Supreme Court will hear oral arguments in what will be the key Indian law case this term. The two cases that are being consolidated - Salazar v. Patchak and Match-She-Be-Nash-She-Wish Band of Pottawattami Indians v. Patchak - involve the Bureau of Indian Affairs taking land into trust for a Michigan Tribe, which built a casino on the property. A non-Indian individual who lives near the gambling facility challenged the acquisition, saying that the Tribe was not recognized as a tribe by the federal government in 1934. The high court will review the initial questions of whether Mr. Patchak has been injured in some way by the taking of these lands into trust and therefore might have a right to sue, and whether he can sue the United States government, which is generally immune from suit. If the court settles these two questions in Mr. Patchak's favor, it may go on to consider the merits of the case.

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