Tribes may seek congressional fix
By Rob Capriccioso

Story Published: Feb 27, 2009

WASHINGTON – The Supreme Court has ruled in Carcieri v. Salazar that tribes not under federal jurisdiction as of 1934 cannot follow a longstanding land into trust process administered by the U.S. Department of the Interior. The ruling, which results from a suit involving the Narragansett Indian Tribe of Rhode Island, is at odds with many tribal, federal and legal understandings of the Indian Reorganization Act.

Tribal and federal lawyers said the decision will likely lead to legal questions over the validity of tribal lands taken into trust by the interior for tribes since the IRA was passed in 1934. And tribes not acknowledged until after 1934 with pending or future fee-to-trust applications will now have to prove they were under federal jurisdiction in 1934.

The decision could result in several states filing lawsuits trying to gain lands that have been taken into trust for dozens of tribes recognized after 1934. Such attempts would likely prove unsuccessful, as lawyers have noted that the federal Quiet Title Act does not allow challenges to federal land acquisitions after the fact, except in limited circumstances that do not appear applicable in this case.

In Carcieri, Rhode Island did not want the Narragansett Tribe, recognized in 1983, to be able to utilize 31 acres of land placed into trust by the interior. The tribe said it wanted to use the land to create a housing development, but state officials expressed concern that it could pursue a casino in the future.

The state originally sued the interior to try to get a court to find that the department had no legal authority to place land into trust because the tribe wasn’t recognized in 1934.

Until the Supreme Court’s decision, the state’s effort had been unsuccessful, as a federal judge and the 1st Circuit Court of Appeals had made previous rulings that favored the tribe.

But in a 6-3 vote, handed down Feb. 24, the Supreme Court said the Interior Department cannot acquire land for the tribe because it didn’t gain federal recognition until 1983.

“Because the record in this case establishes that the Narragansett Tribe was not under federal jurisdiction when the IRA was enacted, the secretary does not have the authority to take the parcel at issue into trust,” Justice Clarence Thomas wrote in the court’s majority opinion.

Justice John Paul Stevens was the only dissenting judge, drafting an opinion supporting the tribe.

Federal and tribal lawyers had argued that the IRA is applicable to all tribes, including those recognized in 1934 and those recognized in ensuing years.

State lawyers argued that the use of the term “now under federal jurisdiction” in section 19 of the IRA meant that the Congress of 1934 intended the land into trust process to apply to tribes recognized federally only at the time of the law’s passage.

The justices agreed with the state’s argument, saying in the majority opinion that “the term ‘now under federal jurisdiction’. … unambiguously refers to those tribes that were under federal jurisdiction when the IRA was enacted in 1934.”

The majority opinion found that “Congress expressly drew into the statute contemporaneous and future events by using the phrase ‘now or hereafter.’”

The court also rejected interior arguments that relied on statutory provisions beyond the IRA itself to support the department placing land into trust for tribes recognized after 1934.

The ruling, while negative for tribes, was not entirely unexpected.

After hearing oral arguments in November, Richard Guest, a legal expert with the Native American Rights Fund, said he was “very pessimistic” that the court would rule with positive tribal prospects in mind. NARF had participated in the case by developing an amicus brief strategy in support of the interior.

“I simply do not see five justices [a majority] holding in favor of Indian tribes in this case.”

As the court has gained more conservative members in recent years, it has tended to clamp down on tribal rights, lawyers have said.

In anticipation of a negative ruling for tribes in this case, some legal experts have already suggested remedies.

Matthew L.M. Fletcher, director of the Indigenous Law and Policy Center at Michigan State University, said after oral arguments last fall that tribes could go to Congress to request members define “now” as explicitly meaning tribes recognized in 1934 and beyond.

“I think it would be pretty easy to just do a technical amendment to the Indian Reorganization Act,” Fletcher said at the time. “Get rid of the phrase ‘now under federal jurisdiction.’ That’s all you’ve got to do.”

Native rights lawyer Bryan Newland has also suggested that Congress could pass legislation on an individual basis to allow particular tribes to place land into trust.

Still, some legal experts have noted that for any congressional fixes to occur, a burden is placed on tribes to get positive legislation action moved in a timely manner.

Guest posited that Rhode Island and other states could also decide to go to Congress to try to get members to narrowly define “now” as applying to only tribes recognized when the law was passed.

States and localities could also form strong political opposition in the face of tribal attempts to sway Congress members to get legislation passed to allow lands to be placed into trust.

The full Supreme Court ruling is available at www.supremecourtus.gov/opinions/08pdf/07-526.pdf

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