I see now that the Dept. of Interior is (un)officially segregating Indian tribes for purposes of trust acquisitions (see email reported on Indianz), shutting down (apparently) some trust applications and allowing others to proceed, that the first impacts of Carcieri have reached Indian Country, as expected.
Maybe it’s worth revisiting what the Supreme Court did in Carcieri from a slightly different point of view. Arguably, a money claim against the United States for failure to properly recognize certain Indian tribes in 1934 has now accrued.
Consider. The Court has effectively created classes of Indian tribes, as seemingly established by the email:
1. For those Tribes where there is no question that they were under Federal jurisdiction in 1934, continue processing the applications as usual
2. For those Tribes with an organization history that raises any question about whether they were under Federal jurisdiction in 1934, seek advice from the Solicitor’s Office as to the effect of the Carcieri decision on those tribes. It may be possible to continue processing the applications while legal advice is being sought. No final decision should, however, be made and no deeds should be approved until it has been determined whether or not they were under Federal jurisdiction in 1934.
3. For those Tribes that were federally acknowledged under 25 CFR Part 83, restored or reaffirmed after June 1934, seek advice from the Solicitor’s Office before continuing to process those applications.
4. For those Tribe which have specific land acquisition authority other than 25 USC 465, continue processing applications because they are not affected by the Carcieri decision.
So it is clear that tribes in categories two and three will have their trust applications held until the Solicitor provides legal advice allowing them to proceed. I don’t know much about that process except anecdotally, but that might mean a delay of months or years, or even outright cancellation of the applications. So that’s at least some legal harm.
Carcieri, then, in effect, has given considerable modern legal effect to the Department of Interior’s decisions about what tribes were federally recognized in 1934. Usually, the reason now that some tribes might no longer be eligible for trust acquisitions was that the Department acted illegally in denying those tribes the the right to take advantage of the IRA in 1934.
One can argue that federal recognition by either the Secretary or Congress is an attempt to remedy the likely illegal acts of not recognizing the tribes in 1934. If we take treaty tribes that were administratively terminated, for example, or other tribes the Department didn’t want to recognize in 1934, then there is a decent argument that the Department acted illegally in denying them access to the Indian Reorganization Act. Some of those tribes have made efforts to recover some funds for the failure to provide services, with almost no success (see the Samish case for instance).
But, if a tribe can prove that the Department’s actions (or inactions) in 1934 in not recognizing the tribe were illegal (and many, many tribes likely can), then there is a legal hook. Maybe the damages that accrued from that initial failure are not recoverable because of the statute of limitations, but the new damages accruing from the new legal regime post-Carcieri are brand new. It might not be a whole lot for one tribe, but when you start adding up tribes, you get significant damages.
If there is a money claim, then DOJ and Interior are more likely to testify in favor of a Carcieri Fix. The threat of money damages might be enough to convince Congress to act to restore the pre-Carcieri regime that existed for seven decades.