Trust Land Acquisitions
Tribes across the country continue to feel the adverse impact of the federal allotment policy, which caused the loss of more than 90 million acres of Indian land. The restoration of a viable land base is important to the governmental, economic and cultural future of the tribes. Our firm has worked with many tribes in connection with a broad range of trust land issues.
Because trust land applications are often challenged in court, we have worked with tribes at the preparation stage for their applications. In this regard, we have assisted tribes on a wide range of matters to ensure that the record before the Department of the Interior is sufficient to withstand court review. Our work in this area has included drafting the application, as well as working on and drafting the necessary environmental documents.
Litigation is an important part of our trust land practice. For example, we have successfully defended the Secretary’s decision to take land into trust from challenges made by local governments and private interest groups in both administrative appeals within the Interior Department and before the federal courts. For example, in CETAC v. Kempthorne, 492 F.3d 460 (D.C. Cir. 2007), we successfully represented a tribe in defending an Interior Department decision to take land into trust and to find it eligible for gaming under the “initial reservation” exception of the Indian Gaming Regulatory Act, from a challenge brought by a citizens group. We prepared an amicus brief for tribes in the U.S. Supreme Court in the Oacoma case (U.S. Dep't of Interior v. South Dakota and City of Oacoma, 515 U.S. 919 (1996)), in which we supported Secretary of the Interior's authority to take land into trust in the face of an attack under the non-delegation doctrine. We have litigated other trust land cases (both before the federal courts and administrative appeals within the Interior Department) raising both non-delegation and additional issues, including compliance with the National Environmental Policy Act. We have also represented tribes with trust land issues arising under section 20 of the Indian Gaming Regulatory Act, including whether a particular site is a part of a "restoration of lands" for a restored tribe.
The Supreme Court’s ruling in Carcieri v. Salazar, 555 U.S. 379 (2009), creates an additional issue in connection with certain fee-to-trust applications. The Court in Carcieri held that the Secretary of Interior did not have the authority to take land into trust for the Narragansett Tribe, because that tribe was not “under federal jurisdiction” when the Indian Reorganization Act was enacted in 1934. We have assisted tribes address Carcieri in connection with land-into-trust applications. We have represented tribes before Congress on legislative efforts to address the effect of the Court’s ruling. We have also been actively involved in the Interior’s consultations regarding standards for evaluating Carcieri issues, and have been assisting tribes to address these issues based on their specific historical circumstances.
Finally, while most trust land acquisitions arise from administrative action, we have also worked with tribes to have lands taken into trust directly through legislation. For example, we represented a tribe in securing enactment of legislation restoring to tribal trust ownership, 1,200 acres of culturally significant lands in Wisconsin.