Recent actions in Arizona and Indiana suggest that there is a
new approach to local government opposition to Indian tribal
applications for trust status of newly acquired land. The question
has to be whether this is sound Indian Law policy, although the
follow-up question seems to be whether the proponents even
care.
The most shocking proposal is being sponsored by Arizona's
Senior Senator John McCain and Congressman Trent Franks to repeal a
federal law enacted long ago as part of a land settlement
negotiated with the Tohono O'odham Nation of Arizona.
Specifically, the Tribe entered into an agreement with the federal
government pursuant to which the Tribe would be compensated for the
flooding of tribal reservation land with both cash and the right to
construct a casino in the state on land not otherwise restricted
for such a project.
The history of this dispute was summarized by Tribal Chairman Ned
Norris, Jr. before the House of Representatives in 2013 as
follows:
In 1986 the United States made a promise to the Tohono O'odham Nation when Congress enacted land and water rights settlement legislation, the Gila Bend Indian Reservation Lands Replacement Act, Pub. L. 99-503 (Lands Replacement Act) – legislation that the Department of the Interior has described as "akin to a treaty." Tohono O'odham Nation v. Acting Phoenix Area Director, Bureau of Indian Affairs, 22 IBIA 220, 233 (1992). This settlement legislation was intended to compensate the Nation for the Army Corps of Engineers' unauthorized destruction of the Nation's Gila Bend Indian Reservation. Among other things, the United States promised in that settlement legislation that the Nation could acquire new reservation land in Maricopa County to replace its destroyed Gila Bend Reservation land (which also was located in Maricopa County). The United States also promised that the new land would be treated as a reservation for all purposes.
Following enactment of that federal law, the Tribe has moved
forward to develop a resort/casino on newly acquired land on
unincorporated land within Maricopa County in the Glendale-Phoenix
area – commonly referred to as the "Glendale
Project." It has been opposed with multiple lawsuits filed by
the State, local governments and even other Indian tribes.
The Tohono O'odham Nation has prevailed in every judicial
determination rendered and is now constructing its resort/casino
project. But there is new Congressional activity to prohibit the
project and – in the process – change federal law for
the sole purpose of stopping this single tribal project by
unilaterally repealing critical parts of the Congressional Act
settling an important dispute over federal flooding of tribal
reservation lands.
The McCain-Franks bill has been favorably reported out of the
relevant committees in the both the Senate and the House of
Representatives. The legislation is not of general application;
rather, it is written for the sole purpose of blocking the Glendale
Project.
Indian gaming is conducted pursuant to a 1987 Supreme Court
decision which led to enactment of the Indian Gaming Regulatory Act
of October 17, 1988 ("IGRA"). Since that time, many local
governments and citizen groups have opposed tribal gaming
development on lands newly acquired in trust status. Those
challenges properly have been grounded on the very clear
requirements of IGRA which impose subjective standards for review
and decision. To this end, the challenges to Glendale Project under
applicable federal laws – including both IGRA and the Indian
Reorganization Act of June 18, 1934 – have been unsuccessful.
By all legal assessments, the Tribe is clearly within the
law.
However, the Tribe is subject to Congressional action since the
Indian Commerce Clause of the United States Constitution gives
Congress plenary power over Indian affairs. And this legal fact is
the foundation of the McCain-Franks assault on the project. Thus,
what should be a dispute determined on the basis of existing law
suddenly becomes a battle over whether Congress should legislate a
final resolution in contradiction to existing law.
Let there be no doubt about the fact that Congress can terminate
the Glendale Project, but the real question is whether it should do
so through enactment of a dangerous precedent which likely would
lead to other state Congressional delegations seeking
"killer" federal legislation. And, the better question is
whether this result is either necessary or advisable.
First, the Tohono O'odham situation is unique, in that the
Tribe is pursuing an economic opportunity that is specifically tied
to provisions of a federal land settlement statute. Reversing a key
provision of that earlier legislation probably exposes the United
States to a major Court of Federal Claims lawsuit for massive
financial damages for the uncompensated taking of the tribal claims
to the Glendale site that were legislated by the Gila Bend Indian
Reservation Lands Replacement Act.
Second, how can this precedent be ignored when local politicians
in other states propose similar legislative attacks on tribal
projects that also are concededly legal under existing law? Rather
than pursue claims on existing law, the door suddenly opens to
outright statutory revocation of tribal rights.
And the scenario for the next such claim is coming from Indiana
where state politicians are proposing federal legislation to block
the Pokagon Band of Potawatomi Indians from expanding its casino
empire from its reservation in the northern part of the state to
newly acquired lands near South Bend. The tribe proposes to
construct a $480 million project on lands that it claims qualify
for gaming pursuant to specific provisions of IGRA. Whether the
land does or does not quality for gaming has not been determined,
but Indiana legislators do not want to take a chance on tribal
success. Rather, they want immediate federal legislation blocking
this single project without regard to legal or factual merit.
Other local groups are almost certainly watching these
developments. If Congress blocks the Glendale Project, then there
is no reason why it would not block others without regard to
existing law. A political resolution of Indian trust applications
would reverse many decades of established law. The precedent needs
to be carefully considered.
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