Monday, February 11, 2013
Carcieri v. Salazar: The Secretary of the Interior May Not Acquire Trust Land for the Narragansett Indian Tribe Under 25 U.S.C. Section 465 Because That Statute Applies to Tribes “Under Federal Jurisdiction” in 1934
M. Maureen Murphy
In Carcieri v. Salazar, 555 U.S. 379 (2009), the U.S. Supreme Court 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. A June 2012 Supreme Court decision, Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians v. Patchak, increases the possible effect that the Carcieri decision is likely to have in Indian country. In that case, the Supreme Court ruled in favor of a plaintiff seeking to bring a suit to undo a trust acquisition by showing that the tribe for whom the land was taken into trust was not under federal jurisdiction in 1934. Although that decision did not reach the merits, which will be at issue in a trial at the district court level, it is likely to encourage similar suits.
Carcieri involves a parcel of land which the SOI had agreed to take into trust for the benefit of the Narragansett 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. 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. As a December 2010 trust acquisition for the Cowlitz Indian Tribe may indicate, the Department of the Interior (DOI) may continue to take land into trust for recently recognized tribes, provided an extensive exploration of the particular history of the tribe and its relations with the federal government demonstrates to the satisfaction of DOI that the tribe was “under Federal jurisdiction” in 1934.
In the 111th Congress, there were several bills aimed at amending the IRA; none, however, was enacted. A provision amending the IRA retroactively and ratifying past trust acquisitions was included in the continuing appropriations bill for FY2011 passed by the House of Representatives. In the 112th Congress, there were three bills to amend the 1934 legislation: including one reported by the Senate Committee on Indian Affairs on April 7, 2011 (S.Rept. 112- 166). There were also measures to compensate state and local educational agencies and governmental units for loss of tax revenues when land is taken into trust for Indians.
Date of Report: January 25, 2013
Number of Pages: 20
Order Number: RL34521
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Posted by Penny Hill Press, Inc. at Monday, February 11, 2013