Kathryn and Steve's blog
How big might this be? When Sheldon Adelson, chair and CEO of Las Vegas Sands (the legend whose company who brought the Venetian and Palazzo to Vegas and Macao), shows up to testify, you’re talking big: Texas-size, that is.
Members of the Tigua Tribe of El Paso and the Alabama-Coushatta Tribe of Livingston also testified before the Texas House about the rationale for reopening the tribes’ casinos, which were closed by federal authorities in 2002 after the state sued. The tribes have been in casino limbo ever since.
Hayes, an attorney, has been a partner at the Washington office of Latham & Watkins, well known as one of the leading environmental, energy, and natural resource law firms in the world. At Latham & Watkins, Hayes’ practice focused on counseling, litigation, and transactions, and he was, in effect, a lobbyist.
With a promised focus on tribal economic development, Hayes told the Senate Entergy and Natural Resources Committee that he is looking forward to “working with Native American communities,” which “was one of the most rewarding aspects of the job” when he worked at Interior in the Clinton era.
Although after leaving office last time around, Hayes was accused of violating anti-“revolving door” policies designed to prevent too much cozying up between lobbyists and government, a bipartisan investigation did not evidence that to be the case. Still, the relationship did not sit too well with Senator John McCain. Hayes did not represent any tribal clients during his time at Latham and Watkins.
The 6-3 decision in Carcieri v. Salazar, No. 07-526 (Feb. 24, 2009) throws into doubt previous decisions by the Secretary to take land into trust for recently recognized tribes, including the Narragansetts in Rhode Island (who were the subject of the Court decision) and the Mashpee Wampanoag in Massachusetts (who have been hoping to build a $1 billion casino in Middleborough).
Carcieri concerned the Narragansetts’ argument that 31 acres of land it owns in Charleston, Rhode Island, should be placed in trust. Following an administrative decision that came down on the side of the Secretary, the state sued. Both a federal district court and the First Circuit found in favor of the tribe, but the Supreme Court reversed.
The Court’s analysis for the most part turned on its reading of the IRA’s statutory language, and the related application of basic principles of administrative law. The IRA authorizes the Secretary to take land into trust for the benefit of a “recognized Indian Tribe now under Federal jurisdiction.” The question of whether “now” means in 1934, or at the time the Secretary acts, had been held to be ambiguous enough by a lower court to merit deference to the Secretary under the Chevron doctrine (which requires a court to defer to an agency interpretation under such circumstances)—as had been the case for the last 75 years.
"For those of you focused on meeting the federal government's obligations to the Native Americans, understand that you have a wonderful partner in the White House right now," she said.