Category Archives: Federal Jurisdiction

Bethany C. Sullivan & Jennifer L. Turner on Carcieri

I agree Enough is Enough …good article

Turtle Talk

Bethany C. Sullivan and Jennifer L. Turner have published “Enough Is Enough: Ten Years of Carcieri v. Salazar” in the Public Land & Resources Law Review. Here is the abstract:

Ten years ago, the United States Supreme Court issued its watershed decision in Carcieri v. Salazar, landing a gut punch to Indian country. Through that decision, the Supreme Court upended decades of Department of the Interior regulations, policy, and practice related to the eligibility of all federally recognized tribes for the restoration of tribal homelands through the Indian Reorganization Act (IRA) of 1934. The Court held that tribes must demonstrate that they were “under federal jurisdiction” in 1934 to qualify for land into trust under the first definition of “Indian” in the IRA. Carcieri has impacted all tribes by upending the land-into-trust process and requiring tribes (and Interior) to spend scant resources to establish statutory authority for trust land acquisitions, a burdensome task that had previously been straight forward…

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The Long Awaited Mueller Report is Out: What it Reveals

 
It has been six hundred and seventy six days about since Robert Mueller began his report, in a secluded office in Southwest Washington, D.C.  The report has been completed and turned into Attorney General William Barr on a late Friday afternoon. It already reveals a lot, while the battle is just beginning on how much of the report will be available for review. Speculation is the report may kick up a political fire storm, but here is what we know so far. David Kris, a former Justice Department national security division chief was quoted with the best line. “I think if you took it all in in one day, it would kill you. It’s simply too much.”
Trump’s Campaign:  Mueller first went after key people in the Trump campaign, and successfully got indictments, plea agreements and convictions: Mueller began by alleging that the president’s campaign had been led by people who had engaged in serious crimes, i.e. Paul Manafort, Rick Gates and George Papadopoulos who was one of 14 Trump associates who had contact with Russian nationals during the campaign and transition. Mueller later alleged, Russian hackers accessed the Democratic Congressional Campaign Committee and the Democratic National Committee.
Mueller’s plea deals emphasized like former Security Advisor Michael Flynn’s, that over and over those surrounding the President downplayed their dealings with Russia. Flynn claimed he and the Russian Ambassador Sergey Kislyak did not discuss Obama-era sanctions directed at the Kremlin, when in fact they had.
Trump’s Lawyer:  Mueller’s investigation has spun off investigations in at least three U.S. Attorney’s offices.  And, one resulted in the guilty plea of Trump’s lawyer Michael Cohen, for tax evasion, bank fraud and campaign finance violations. Cohen, threw his longtime client under the proverbial bus, testifying that all these activities were directed by Trump. The Cohen case then lead to an investigation of Trump’s inaugural festivities.
Was there collusion with Russia?  What Mueller has said on this topic was related to Roger Stone, and claims he lied about efforts he made to get information to the Campaign about the hacked emails obtained by the Russians.   Mueller’s Court filings revealed that Manafort released 2016 polling data to the Russians that had ties to Russian intelligence. But Manafort was not charged with conspiring with Russia. Nonetheless, the investigation reveals, Russia’s influence over the 2016 campaign, repeated contact by Russians with Trump’s key aids and his now undisputed financial interest in a tower in Moscow.
It will be interesting to see the details in the final report. But what we know is Trumps woes are far from over. Still to come are NY state investigations about the Trump Foundation and giving to his campaign instead of Charities, two law suits over Trump Hotels’ and activities with taking “emoluments” from foreign states, and the Federal prosecution in NY over expenditures during his inauguration. We just have not heard the end of it yet.  Washington Post story

Land-in-Trust challenge against Ione Band stopped in Ninth Circuit; U.S. Supreme Court Carcieri Ruling Distinguished.

On Oct. 6, the Ninth Circuit affirmed the Eastern District of California’s grant of summary judgment in favor of the Department of Interior (DOI). In 2005, the County of Amador challenged the 2012 Record of Decision placing land into trust and approving casino development for the Ione Band of Miwok Indians. Specifically, the challenge focused on the determination that the Tribe was under federal jurisdiction, per the Indian Reorganization Act (IRA), and was a restored tribe receiving restored lands under the Indian Gaming Regulatory Act (IGRA).

The Ninth Circuit, interpreting Carcieri v. Salazar, 555 U.S. 379 (2009), decided that a tribe must have interacted with the federal government prior to 1934 and must be officially recognized at the time of the trust application submission. Land purchase negotiations over the course of the late 19th and early 20th centuries involved Congress and the Department in Ione Band affairs.

The appellate court understood this to mean that the Tribe had been under federal jurisdiction and that the intent of the IRA allowed recognition to occur at any point as long as federal jurisdiction was established in 1934 or earlier. The Ninth Circuit examined the legislative history of the IRA, in addition to contemporaneous administrative findings, and found that Congress intended the Act to apply to tribes recognized after 1934.

DOI’s interpretation of “under federal jurisdiction” separated the meaning of “recognized” from the phrase. The Department considered federal jurisdiction to mean an action or series of actions that establishes or reflects Federal obligations, authority, and duties for or to a tribe. The Court accepted this interpretation, affirmed the district court, and also ruled that the IGRA “restored tribe” exception was met.

In a related case, No Casino in Plymouth v. Zinke, the appellate circuit remanded to the Eastern District of California with instructions to dismiss for lack of subject-matter jurisdiction and organizational standing. The plaintiffs had not submitted specific facts showing that its members would have individual standing and its evidence was not allowed for a motion of summary judgment. Read case 

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