State lawsuit challenges tribal rights to create trust lands without state OK

Nevada has filed a lawsuit claiming it's unconstitutional for Indian tribes to create trust lands exempt from state control without the state's permission.

The lawsuit filed in U.S. District Court in Reno challenges a land deal in which the Fallon Paiute-Shoshone Tribe purchased 36 acres in Fallon and had it declared by the Bureau of Indian Affairs and Interior Department as tribal trust lands.

The tribe then served notice of plans to have Fox Peak Economic Development Corp., which is run by tribal leaders, develop the Williams Avenue property.

Placing the land in trust, according to the suit, eliminates state and local jurisdiction over the land. The complaint argues the trust move was done without notifying or consulting with the state and without its consent.

Federal law and a memorandum of understanding between the state and the Bureau of Indian Affairs require the state be a party to any hearings over whether land acquired by the tribe be placed into trust status, Nevada officials claim.

No notice was given, and state officials say both the tribe and bureau have made it clear they don't intend to seek state participation or agreement for future land deals either.

The lawsuit charges the tribe also failed to follow any requirements of the National Environmental Policy Act and gave no notice of plans to lease the land from the tribe to Fox Peak Economic Development.

The state argues buying lands and placing them in trust without state consent has "the practical effect of removing the land from the state's governmental jurisdiction against its will and, therefore, is in derogation of the state's sovereignty as recognized and guaranteed by the federal constitution."

The constitutional question, according to Senior Deputy Attorney General Wayne Howle, is a key issue raised by the case. The lawsuit says if the Settlement Act allows tribal purchases to automatically become trust lands, the law must be thrown out because it unconstitutionally delegates legislative authority to the Bureau of Indian Affairs. That right, the suit says, belongs only to the state.

But the tribe says the 1990 Settlement Act requires lands purchased by the tribe in Churchill and Lyon counties automatically be placed into trust.

"Because the Settlement Act imposes a mandatory, non-discretionary duty to the secretary (of the Interior) to take lands into trust, the secretary was not required to consult with state and local governments," the tribe states in its motion to dismiss the state's lawsuit.

The Settlement Act encourages the purchase of land and water rights in Churchill and Lyon counties with tribal settlement funds.

The tribe's response also says it can't be held to requirements under the environmental policy act because the law applies only to federal agencies, and tribes are not federal agencies.

Tribal lawyers argue the issue is outside of state control and, therefore, the state "failed to state a claim upon which relief can be granted."

The state lawsuit asks that the Fallon land deal be reversed and the 36 acre plot taken out of trust. And it asks for a ruling barring creation of any more trust lands without state consent.