AKWESASNE, N.Y. – The St. Regis Mohawk Tribe has sued Interior Department Secretary Dirk Kempthorne for denying the tribe’s application to take of land into trust – an action the tribe alleges was unlawful, arbitrary and capricious, and an abuse of authority.
The lawsuit was filed in New York district court on Jan. 10, less than a week after receiving a letter from Interior’s Associate Deputy Secretary James Cason rejecting the tribe’s application to take approximately 30 acres of land into trust in Monticello, where the tribe plans to build a $600 million casino resort.
The application was denied based on a new standard of ”commutability” that the 350-mile distance between the planned casino resort and the Mohawk reservation was too far for tribal members to travel to work. The distance would force them off the reservation if they wanted to take advantage of the economic opportunities the casino would offer, and therefore reservation life might suffer, Cason said.
The travel standard – which set no actual limit in miles – was promulgated in a new set of guidelines for taking land into trust that BIA Assistant Secretary for Indian Affairs Carl Artman distributed Jan. 3 to regional directors.
Both Cason and Artman are also named as defendants in the lawsuit.
Ten other tribes across the country received almost identical land into trust rejections. While anti-Indian gaming groups and states have targeted off-reservation casinos for the past several years, in reality only three such casinos have been allowed in the 20 years since the Indian Gaming Regulatory Act was implemented.
The tribe claims the new rules violate the Administrative Procedure Act on several counts, including the requirement to consult with tribes or provide a comment period.
Kempthorne, a Republican former governor of Idaho, was a vocal opponent to ”off-reservation” casinos, a position the tribe sees as a personal bias he has used against the tribes.
Tribal Chief Lorraine White said there is no basis in the law that allows personal bias to override federal law and Interior’s own regulations. She noted that proposed legislation to curtail off-reservation casino projects on a similar basis have failed to pass in Congress in recent years.
”The secretary decided to simply rewrite the law in his own way, without consulting Congress. What we have here is a secretary who has attempted to devise a way to circumvent federal law by creating new federal guidelines for existing fee-to-trust applications,” White said. ”The problem is that his decision is based on new rules which hopscotched straight over the required tribal consultation process and never bothered to give proper notice. Beyond this, we feel his decision failed to consider the very strengths and merits of our application and the administrative record.”
The new rules memo cited part of a federal statute that says the secretary must give ”greater scrutiny” to the anticipated benefits from the trust lands and ”greater weight” to state and local government concerns about potential impacts of the project as the distance between a reservation and site increase.
But the Mohawk casino proposal found widespread support from New York Gov. Eliot Spitzer, who entered into a tribal-state compact last year; and from state legislators, local officials and economically depressed Sullivan County, where the proposed gaming facilities would create 3,000 jobs.
Tribal leaders also debunked the ”commutability” rationale for denying the land into trust, pointing out the tribe’s historic and continuing legacy of its renowned ironworkers who commuted hundreds of miles to New York, Boston, Montreal and beyond to create the skylines and bridges that mark the urban landscapes that developed in the last two centuries. The ironworkers’ commutability has not diminished tribal life on the reservation, tribal leaders said.
The leaders said they will join with other tribes to oppose Interior on this issue.
”We realize that the secretary has what they call ‘discretionary authority,”’ Tribal Chief Barbara Lazore said. ”But does that mean absolute and unfettered authority to make unjust, far-reaching and discriminatory decisions? The secretary is a public servant, charged with the responsibility to faithfully execute the law.”
”What we are asking for is a fair shake from a federal agency that is charged with and entrusted with trust responsibility for tribes.”’ said Tribal Chief James W. Ransom.
In view of the denial, the tribe withdrew a lawsuit it had filed against Kempthorne in October, seeking a court order to force him to act on its trust application which had languished at the department for nearly a year. The original land into trust process began nine years ago.
