Carcieri v. Salazar Goes Against US and Tribes

Matthew L.M. Fletcher

Here is the opinion.

7 thoughts on “Carcieri v. Salazar Goes Against US and Tribes”

  1. middleborocasino February 24, 2009 / 11:27 am

    Hi,
    Does this mean Mohegan is Illegal? Could Ct. shut them down as of the release of this decision?

  3. sonictooth February 24, 2009 / 1:58 pm

    What a giant steaming pile! Limited to Narangassats or does this cloud title for every non-1934-jursidiction tribe that has taken land into trust? Mistake of jursidiction (Breyer’s concur) defense?

  4. Lance Boldrey February 24, 2009 / 3:01 pm

    This should have absolutely zero effect on land already in trust, as the federal Quiet Title Act forecloses any challenges to the means by which the federal government acquired title to land, including the authority under which it acquired land held in trust for tribes.

    What it does mean is that, absent a legislative fix, there is now another box to check when convincing the feds to take land into trust – a tribe is going to have to show that it was “under federal jurisdiction” in 1934. And the facts will have to be sufficently compelling that DOJ will be willing to back Interior in the inevitable lawsuit by opponents. Add this issue to the NEPA-based arsenal for delay by litigation.

    What is truly frustrating is that the tribal advocates and the federal government here got suckered into Ted Olson’s simplistic argument. His “now” means “now” argument is one that is a 100% winner with this particular Supreme Court. But Narragansett, the feds, and amici seemed compelled to go there, and left the Court with the ability to say that “None of the parties or amici . . . argued that the Tribe was under federal jurisdiction in 1934.” Well, it was!

    Accept that the Tribe had to be under federal jurisdiction in 1934 to have land taken into trust under the IRA. Accept that, as Narragansett’s Final Determination said, the Tribe was placed under Rhode Island’s formal guardianship in 1709. Accept that the Tribe was recognized through the FAP process in 1983.

    Fine. Did anybody in this case ever ask the Justices to read the Constitution? To understand that the states ceded their power over Indian affairs to the federal government, wholly and completely? Did anybody point out what federal ACKNOWLEDGEMENT (not “recognition,” the term used by the Court) means? That the feds today by acknowledging a tribe acknowledge that it has existed continuously as a political body since first contact? That this means a tribe acknowledged in 1983, in 1998, in 2010, is therefore an entity that has been “under federal jurisdiction” since 1787? Apparently not. And here we have the entirely too predictable result.

  5. Pingback: Indians Screwed by Supreme Court « The Local Crank
  6. bnewland February 24, 2009 / 4:52 pm

    Per Lance’s comment, apparently the majority believes in some sort of magic, a la The Chronicles of Narnia, whereby if a train goes into one end of a tunnel and comes out the other it disappeared into the ether while inside said tunnel.

  7. Hal Brown February 25, 2009 / 9:03 am

    Here in Middleboro, Mass. we are particularly interested in this decision as the Mashpee Wampanoag’s LIT application for an initial reservation in our town for a casino is pending.

    The tribe plans to ask our congressional delegation to file legislation to essentially undo Carieri and put their LIT application back on track.

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