It is inevitable that interested parties will want to know, or at least speculate, on which Indian tribes are truly affected by Carcieri v. Salazar. Interior and/or BIA may be drawing up lists. NCAI and NIGA are probably doing the same. And now so is NIGC. Update: Not so, according to Chairman Hogen. But I think it may be a mistake for the federal agencies to do so, and to trumpet the fact, as NIGC seems to be doing. The key thing to remember is that Carcieri is an absurdity, maybe not based on the statute or even the legislative history (the SCT has spoken), but in reality.

NIGC’s list is “a list of those tribes recognized after 1934,” according to Indianz. So what does that mean? It could mean, plausibly, every tribe. Interior has never kept a “list” of tribes under federal recognition and didn’t even keep a formal list of federally recognized tribes until 1994. And so maybe there was no tribe meeting these phantom definitions until Interior started informing tribes that they were about to have a Secretarial election under the IRA, post-IRA. And we’re pretty sure Interior’s decision on which tribes got to vote were arbitrary and often capricious. If NIGC’s going to start with the list of tribes that had IRA elections in the 1930s, then that list will be wrong to some extent.

And if a list is wrong, even as to one tribe, then the federal agency is wrong to generate such a list. Even if it doesn’t publish the list, it is probably subject to a FOIA request. Tribes incorrectly designated will be legally disadvantaged.

Finally, not to pick on the NIGC or Chairman Hogen (both have gotten some bad and unfair press lately), NIGC is not the primary interpreter of “under federal jurisdiction” or federal recognition. Interior is. And Interior has 75 years of history to review before it can come to any conclusions about any one tribe.

There is really no reason for any federal agency to make a list right now. It’ll be subject to litigation as soon as any one decision on the list becomes important, and I’d hate to see NIGC or Interior lose a fight on Chevron or Skidmore deference if they try to push their conclusions based on any such list.