I took a deep breath and drafted this initial review of the opinion. The deep breath was to avoid a knee-jerk response here like the one I had after the Plains Commerce Bank decision last year.
The Supreme Court handed down its opinion in the case of Carcieri v. Kempthorne (Salazar), which involed the Narragansett Indian Tribe’s petition to have land placed into trust by the Secretary of Interior. The Court ruled that the Secretary of Interior could not place land into trust for the Tribe under the Indian Reorganization Act, because the Tribe was not recognized at the time the IRA was passed in 1934 (the Narragansett Tribe was finally acknowledged in 1983, after a century-long effort).
The decision was 6-3 in favor of the Governor of Rhode Island, although Justice Stevens was the only justice to fully dissent from the opinion, and drafted an opinion in support of the Tribe.
The IRA states that the Secretary of Interior may place land into trust for tribes “now under Federal jurisdiction.” According to the Court, use of the word “now” means that this provision only applies to tribes under federal jurisdiction at the time the IRA was passed.
You can find the opinion and background materials here.
A couple of quick thoughts on this case:
1.) This does NOT affect tribes that were acknowledged by the United States at or before the time the IRA was enacted in 1934. You’re safe from this one – the Secretary can still consider your fee-to-trust applications.
2.) This does NOT affect fee-to-trust acquisitions that have already occurred for tribes recognized after 1934. The Federal Quiet Title Act does not allow challenges to federal land acquisitions after the fact, except in limited circumstances not applicable in this case. In other words, if your tribe was recognized after 1934 and has reservation land already in trust, that land is safe.
3.) This SHOULD NOT affect fee-to-trust applications that are pending, or in the future, for tribes acknowledged in 1934, terminated after that date, and re-acknowledged. (I say “should not,” because the tribe should be able to successfully argue that it was under federal jurisdiction in 1934 – but the Supreme Court has done damage to tribes with less before).
4.) This DOES affect pending or future fee-to-trust applications for tribes that were not acknowledged until after 1934. Those tribes will now have to prove they were “under federal jurisdiction” in 1934. The term “under federal jurisdiction” does not necessarily mean that the tribe had to be federally recognized in 1934 (in fact, I would argue that ALL recognized tribes, regardless of when recognition/acknowledgment occurred, were under federal jurisdiction in 1934). The Court seems to have left this one open – for now. This will place yet another litigation obstacle in front of tribes as they seek to have land placed into trust.
5.) Congress COULD tell the Court where to stick it, and either amend the IRA to allow the Secretary to place land into trust for all tribes, or pass legislation on an individual basis to allow particular tribes to place land into trust. The latter option is probably the best immediate route for a lot of the affected tribes in the short-term, although it may not be feasible for tribes where local political forces oppose the acquisition – as was the case with the Narragansett Tribe.
6.) This result was not unexpected, especially after reading the oral argument transcripts. That does not diminish the damage it has caused to many tribes, nor does it diminish the anger many in Indian Country should feel toward the court for its consistent rulings against Indian tribes. See coverage of Matthew’s Factbound and Splitless.
Lastly, the Gun Lake Band here in Michigan has escaped this problem by the skin of its teeth. The Band, re-acknowledged in 1999, avoided having an almost identical case heard by the Supreme Court earlier this year. It also had its land placed into trust in the past few weeks.
I will provide more commentary later, after I’ve had a chance to digest the Court’s opinion more fully. Plus, I want to avoid an anger-laced post in favor of something more coherent.