The United States Department of Justice has been thinking a little bit about what will happen if the Supreme Court rules against the Secretary of Interior in Carceri v. Kempthorne. We’ve already suggested that, based on oral argument, that the Secretary’s authority under Section 5 of the Indian Reorganization Act will be sharply limited in relation to tribes “not under federal supervision” or “under federal jurisdiction in 1934.”
In the recent filing opposition a petition for a writ of certiorari in MichGO v. Kempthorne, a direct challenge to Section 5 as applied to all tribes, the Solicitor General’s officer may have laid the groundwork for a post-Carcieri world. The MichGO petitioners, who have been using the litigation to delay the opening of the Gun Lake Band of Pottawatomi Indians’ casino for years, appear to be pushing the Supreme Court to hold the MichGO petition until after Carcieri is decided (likely in January or February). But the government argued that no such delay was necessary, because (and this is the key part, where the United States asserts what will happen if the Court rules against the government):
Nor is there any reason to hold the petition pending this Court’s decision in Carcieri. The Carcieri petitioners contend that, when tribal membership is the basis for status as an “Indian” under the IRA, the Secretary can take land into trust only for members of tribes that “were federally recognized and under federal jurisdiction in 1934.” See, e.g., Pet. Carcieri Br. at 13-14, Carcieri, supra (No. 07-526). Even assuming that that is the sole basis on which the Band could be covered by the IRA, the record here (which is not developed on this waived claim) suggests that the Band had a government-to-government relationship with the United States well before 1934, as evidenced by a number of treaties that the Band had entered into with the United States. 62 Fed. Reg. 38,113 (1997). And, as of 1934, the Bureau of Indian Affairs apparently continued to monitor and provide some services to members of the Band. See C.A. App. 1786, 1844-1845. Moreover, the Secretary has acknowledged the Band’s status through the federal acknowledgment process, which noted the Band’s existence as a “continuous community since the latest date of unambiguous previous Federal acknowledgment, 1870.” 63 Fed. Reg. at 56,936; see 62 Fed. Reg. at 38,113. [Brief for the Federal Respondents in Opposition at 12-13, MichGO v. Kempthorne (No. 08-554).]
The two sections in red are, in part, responses to suggestions raised during oral argument in Carcieri. The question is — what will happen if a decision in Carcieri limits or eliminates the Secretary’s authority to take land in to trust for tribes not federally recognized in 1934? The answer likely will be what the government argues in red above — if an Indian tribe is the successor in interest to tribes that signed treaties, or even if the government “monitored” or “provided some services to members of the [tribe],” then the tribes will still qualify as a tribe “under federal jurisdiction” or “under federal supervision.” At least, this will be the government’s argument.
So, this is a nice way of telling the Court what might be the outcome of a decision against the government in Carcieri. In short, not much, except more expense and litigation for tribes who will be affected. The government’s view seems to be that treaty tribes for sure (and perhaps non-treaty tribes whose members received federal services) will still qualify as tribes under Section 5. And that’s pretty much what the government says in the MichGO opposition:
If this Court were to set aside the Secretary’s action in Carcieri, any remand in this case in light of the Court’s disposition of Carcieri would in turn require a remand to the Department of the Interior to reopen the record to develop petitioner’s belated claim on the merits. The Department would need to explore the law and facts about federal recognition of and jurisdiction over the Band, including inter alia, any treaties, statutes, administrative activities, or the like that involved federal oversight of the Band or its property in 1934. [MichGO Cert Opposition, supra, at 13-14.]
If that’s the case, then a Carcieri reversal would be terrible to Indian Country only in the sense that the tribes affected by Carcieri would be forced to prove that they were “under federal jurisdiction” even if they were not federally recognized in 1934. The Department of Interior, which has never promulgated regulations on the meaning of “under federal jurisdiction,” might even be able to enact a Carcieri fix without going to Congress.
But what is hopeful about these recent developments is that, if the Court does reverse Carcieri (which would still be the wrong outcome), the impact is negligible. And, of course, that should persuade the Court not to go out of its way to reverse Carcieri in the first place.
Turtle Talk 
To The Reporter of this story:
Substantially the Narragansett Indian Tribe connected to the Carcieri case are in the same position the Tribe in the MichGO case.
Our acknowledgement clearly substantiates that we were an autonomous Indian Tribe since first contact, and never de-tribalized under any statute including the 1790 Non-Intercourse Act, as codified at 25 USC 177. The lower court thereby reasoned along with the United States argument that Carcieri’s claims could not be upheld and the argument that was put forth consisting of a Section 5 of 1934 IRA prohibiton was moot. The lower courts went on to say that the acknowledgement in 1983 of the Narragansett’s simply corrected the wrongs of the state of rhode island against the Narragansett Indian Tribe.
The Supreme Court did not accept this argument and issued cert.
The cases are very similar. and the case law is not that different.
One should understand. in this conservative court age where one Tribe goes all are going to go.
We have counted that in some way over 2/3 of all Indian Tribes will be affected if this Carcieri case as argued by the state of rhode island is upheld.
At the heart of the matter is the reduction if not destruction of Tribal authority
The Solicitor’s brief in MichGo, unlike the briefs submitted in Carcieri, adequately references the Secretary’s regulations for acknowledging a tribe. Perhaps their references to the acknowledgment regs in the MichGo brief can prod the Supreme Court to decide Carcieri correctly!
After all, the controversy Carcieri is moot in light of 25 C.F.R. 83.12: “newly acknowledged tribe shall be considered a historic tribe and shall be entitled to the privileges and immunities available to other federally recognized historic tribes by virtue of their government-to-government relationship with the United States.” It’s pretty obvious to me that, even if the Secretary cannot interpret the IRA in favor of the Narragansett, the acknowledgment regulations, which flow from the Secretary’s statutory authority under 25 U.S.C. 9 (i.e., not the IRA), should permit him to acquire land on behalf of the Narragansett tribe and every other acknowledged tribe, just as the Secretary can acquire for any tribe that benefits from the IRA. Questions about the Secretary’s interpretation of the IRA’s definition of “Indian tribe” are irrelevant to acknowledged tribes.
Ever since the acknowledgment regulations were promulgated in the 1970s, Congress has shown itself to be pretty comfortable with the Secretary’s regulations for acknowledging tribes and granting them equal footing to previously recognized tribes. In fact, the legislative history of some failed recognition bills in the last 20 years indicates that many Congressmen would rather let the Secretary handle the acknowledgment process than recognize an Indian tribe through “special interest” legislation (a ludicrous accusation, but you don’t have to pass a history test to open your yap in Congress).
I think the greatest disappointment arising from Carcieri v. Kempthorne is the denial of the Narragansett tribe’s motion to participate in oral arguments. Right above my comment, Mr. Brown has spoken to the heart of this (non)issue; alas, his tribe’s ability to defend itself was superseded by the government’s less-than-convincing oral arguments. Perhaps, whenever a remedy to the Cobell saga is finally conceived of, Indian tribes will not be presumed to be wholly reliant on the Solicitor General’s office or any other federal “trustee.”