The two questions presented in Carcieri v. Kempthorne have significant import for much of Indian Country. But it might be a mistake to conclude the first question (whether the Secretary can take land into trust for tribes that were not federally recognized in 1934, when the Indian Reorganization Act was passed) is an Indian law question. The outcome of that question may turn on the Supreme Court’s decision in National Cable & Communications Assn v. Brand X Internet Services, 545 U.S. 967 (2005). Huh?!?!?
Consider the United States’ brief in opposition to the petition for cert:
As this Court held in [Brand X], a “judicial precedent” does not “foreclose an agency from interpreting an ambiguous statute” in a reasonable way that differs from the “court’s opinion as to the best reading” of the statute, unless “the prior court decision holds that its construction follows from the unambiguous terms of the statute and thus leaves no room for agency discretion.” [Brand X, at 982-83.]
Cert Opp at 9.
The question in Carcieri involves 25 U.S.C. 465 (the fee-to-trust statute), which authorizes the Secretary to take land into trust for Indian tribes and Indians. “Indian” is defined as members of any recognized federal Indian tribe “now under federal jurisdiction.” 25 U.S.C. 479 (emphasis added). Does “now” mean 1934? Or does it mean at the time the Secretary decided to take land into trust?
Rhode Island wants the Court to rule that “now” means 1934 — and in order to do so, the Court will probably have to conclude that the “now” in Section 479 is not ambiguous. Rhode Island has pinned its hopes, in part, on dicta (if it could be called that) from a case called United States v. John, in which the Court wrote: “The 1934 Act defined ‘Indians’ not only as ‘all persons of Indian descent who are members of any recognized [in 1934] tribe now under Federal jurisdiction,’ and their descendants who then were residing on any Indian reservation, but also as ‘all other persons of one-half or more Indian blood.’ 48 Stat. 988, 25 U.S.C. § 479 (1976 ed.).” 437 U.S. 634, 650 (1978).
The use of the 1934 date in brackets is key. Did the Court mean to hold that the IRA could apply only to Indians under federal jurisdiction in 1934? Is that the only possible meaning?
But consider the next sentence: “There is no doubt that persons of this description lived in Mississippi, and were recognized as such by Congress and by the Department of the Interior, at the time the Act was passed.” There were no doubt Indians not part of a federally recognized tribe in 1934 that were recognized as Indian. See Snyder Act, 25 U.S.C. 13. This tends to demonstrate at least a modicum of ambiguity, perhaps.
Ultimately, the Court may be inclined to change its holding in Brand X. In Brand X cases, it is usually a circuit court of appeals that an agency may be trying to overrule via interpretation of an ambiguous statute. The Brand X Court said that was okay. But what if, as it may be here, the federal agency (Interior) is interpreting an ambiguous statute (Indian Reorganization Act) inconsistent with the Supreme Court’s previous statements (definitely not a holding; dicta at best)? In that case, would the Court go along with being trumped by a federal agency? Hmmm. I have my doubts.
Turtle Talk 