In Miccosukee Tribe of Indians of Florida v. Dep't of Environmental Protection, No. 2D11-2797 (Dec. 30, 2011), the Florida District Court of Appeal (Second District) held that land owned by the Miccosukee Tribe was not immune from being condemned by the State o Florida.
The tribe purchased three parcels but did not immediately take action to have the federal government take title in trust for the tribe (which apparently would have protected it). Six years later, it filed a "fee-to-trust" application with the feds, but before the Department of the Interior could take any action, Florida instituted an eminent domain action to take the parcels for an Everglades restoration project. The tribe asserted sovereign immunity, but the court allowed the taking.
The appeals court affirmed, concluding that because a condemnation action is "in rem" (against the land) and not "in personam," the tribe's immunity from lawsuits did not extent to an eminent domain action against its property. The court relied on Cass County Joint Water Resource District v. 1.43 Acres of Land in Highland Township, 643 N.W.2d 685 (N.D. 2002), "a case that is quite similar to the present case," holding that the tribe's status as a federally-recognized tribe did not mean that its property outside its "aboriginal land" is immune.
The Department of Environmental Protection does not need personal jurisdiction over the Tribe—it needs only in rem jurisdiction over the land. And the land in question is not tribal reservation land, is not within the aboriginal homelands of the Tribe, is not allotted land, and is not held in trust by the federal government for the Tribe. Therefore, on these facts, the Tribe's sovereign immunity is not implicated and does not bar this eminent domain action.
Slip op. at 6-7. The court also rejected the tribe's argument that federal law prohibited the taking, concluding that the Nonintercourse Act, which prohibits conveyance or purchase of indian lands unless accomplished by treaty, did not apply. This statute is inapplicable when a tribe acquires land from private parties:
Since this land was purchased on the open market in fee simple, is not within the confines of the Tribe's reservation, has apparently never been held in trust for the Tribe, and was privately owned for an extended period of time before the Tribe's purchase, the provisions of the Nonintercourse Act simply do not apply to this land. Thus, the protections of the Nonintercourse Act do not preclude this eminent domain proceeding.
Id. at 9.
