Carcieri v. Salazar: The Secretary of the Interior May Not Acquire Trust Land for the Narragansett Indian Tribe Under25 U.S.C. § 465 Because That Statute Applies to Tribes “Under Federal Jurisdiction” in 1934

M. Maureen Murphy
Legislative Attorney

On February 24, 2009, the U.S. Supreme Court, in Carcieri v. Salazar, ___ U.S. ___, 129 S.Ct. 1058, ruled that a 1934 statute provides no authority for the Secretary of the Interior (SOI) to take land into trust for the Narragansett Indian Tribe (Tribe) because the statute applies only to tribes under federal jurisdiction when that law was enacted. Although the case involves only a small parcel of land in Rhode Island, the reach of the decision may be much broader because it relies on the major statute under which the SOI acquires land in trust for the benefit of Indians. The decision appears to call into question the ability of the SOI to take land into trust for any recently recognized tribe unless the trust acquisition has been authorized by legislation other than the 1934 Indian Reorganization Act (IRA) or the tribe can show that it was "under Federal jurisdiction" in 1934. 

The case involves a parcel of land which the SOI had agreed to take into trust for the benefit of the Tribe, thereby presumably subjecting it to federal and tribal jurisdiction and possibly opening the way for gaming under the Indian Gaming Regulatory Act. The land is outside the Tribe's current reservation, which is subject to the civil and criminal laws of Rhode Island according to the terms of the Rhode Island Indian Claims Settlement Act of 1974 (RIICSA). RIICSA does not explicitly address the possibility that lands other than the "settlement lands" could be placed in trust; nor does it specify what jurisdictional arrangement should apply should that occur. A sharply divided U.S. Court of Appeals for the First Circuit, sitting en banc, had ruled in favor of the trust acquisition, with the majority relying predominantly on statutory construction of RIICSA. Dissents, however, criticized this method of resolving the case as mechanical, seeing the consequent elimination of Rhode Island jurisdiction over the land as directly conflicting with the overriding purpose of RIICSA and the State's bargained-for-objective in agreeing to the settlement—ending all Indian claims to sovereign authority in Rhode Island. 

The issues before the Supreme Court were (1) whether the authority under which the SOI has agreed to acquire the land, 25 U.S.C. § 465, a provision of the IRA of 1934, covers trust acquisitions by a tribe that was neither federally recognized nor under federal jurisdiction in 1934, and (2) whether the trust acquisition violated the terms of RIICSA. The Supreme Court's decision is predicated on the Court's finding that the definitions of "Indians" and "Indian tribe" in the 1934 legislation unambiguously restrict the beneficiaries for whom the SOI may take land into trust to tribes that, in 1934, were "under Federal jurisdiction." The Court also held that the Narragansett Indian Tribe was not "under Federal jurisdiction" in 1934. It, therefore, ruled that the trust was not authorized by the statute and reversed the lower court. 

A number of tribes have obtained federal recognition since 1934. The extent to which any of them or any currently unrecognized tribe was "under Federal jurisdiction" in 1934 may require extensive exploration of the particular history of the tribe and its relations with the federal government. At an April 1, 2009, hearing, the House Committee on Natural Resources heard testimony advocating that the law be amended not only because the decision has disturbed settled expectations but also because it is likely to provoke considerable litigation. On May 21, 2009, possible legislative and administrative actions were suggested to the Senate Committee on Indian Affairs during a hearing examining executive branch authority to acquire trust lands for Indian tribes. Three bills in the 111th Congress address the potential impact of the decision, S. 1703, H.R. 3742, and H.R. 3697. As reported by the Senate Committee on Indian Affairs (S.Rept. 111-247), S. 1703 amends the IRA retroactively to June 18, 1934, to provide authority for the SOI to take land into trust for all federally recognized tribes.


Date of Report: August 19, 2010
Number of Pages: 17
Order Number: RL34521
Price: $29.95

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