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- Title
Preserving Trust: Overruling Carcieri and Patchak While Respecting the Takings Clause.
- Authors
Gillespie, Noah Nehemiah
- Abstract
The potential benefit of new Bureau of Indian Affairs ("BIA") regulations for development on Native land has been overshadowed by two recent Supreme Court decisions--Carcieri v. Salazar and Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians v. Patchak--which cast doubt on the title to Native land and dramatically expand the rights of nearby owners to sue by challenging Native use of that land under the Administrative Procedure Act ("APA"). Legislation that would amend the statutes the Court interpreted in Carcieri and Patchak could remedy these ill effects but would pose a new problem: the taking of a vested cause of action without just compensation. This Essay proposes that Congress enact appropriate legislation that both overrules the Court's interpretations of the relevant statutes and permits takings suits in place of suits under the APA, so that Native land remains securely under Native control. In addition, the BIA must harness the agency deference it deserves to set Native sovereignty at the center of federal Indian policy.
- Subjects
UNITED States; CARCIERI v. Salazar (Supreme Court case); NATIVE Americans -- Land tenure -- Law &; legislation; EMINENT domain lawsuits; GOVERNMENT agencies; MATCH-E-Be-Nash-She-Wish Band of Pottawatomi Indians v. Patchak (Supreme Court case); UNITED States. Supreme Court; JUST compensation (Eminent domain); UNITED States. Bureau of Indian Affairs; GOVERNMENT agency rules &; practices
- Publication
George Washington Law Review, 2013, Vol 81, Issue 5, p1707
- ISSN
0016-8076
- Publication type
Essay