The Consequences Of Divide-And-Conquer: Carcieri Redux

In Carcieri v. Salazar, the U.S. Supreme Court held that the Narragansett Tribe was not “under federal jurisdiction” in 1934, and therefore the U.S. Department of the Interior could not acquire land in trust for the tribe. The DOI’s decision to acquire trust land for the Cowlitz Tribe is one of several controversial post-Carcieri trust acquisitions. Now comes a petition for a writ of certiorari to the Supreme Court from the challengers, Citizens Against Reservation Shopping v. Jewell.

Whether an Indian tribe was “under federal jurisdiction” in 1934 is rooted in complex tribal-federal histories. Congress passed the Indian Reorganization Act in 1934, and authorized the Interior Secretary to acquire land in trust. The statute states that the DOI can acquire land for “recognized Indian Tribe[s] now under Federal jurisdiction.” The federal government interpreted that language to mean tribes recognized at the time of a decision to acquire land for seven decades. In Carcieri, the Supreme Court held that “now” unambiguously meant at the time of the passage of the sct, rejecting the government’s interpretation. The federal government did not know in 1934 what tribes were “recognized” or “under federal jurisdiction,” or even what those terms meant. Carcieri has added additional — and highly complex — layers of analysis to federal trust acquisitions.

The DOI agreed to acquire land in trust for the Cowlitz Tribe for gaming purposes in 2011. Through the regular federal acknowledgment process, 25 CFR Part 83, the DOI acknowledgedthe tribe in 2002. The acknowledgment process requires petitioning tribes to demonstrate they existed as a distinct tribal community since 1900 or earlier. The Cowlitz tribe entered into failed treaty negotiations with the United States in 1855, but according to the DOI and the D.C. Circuit, the federal government continued a government-to-government relationship with Cowlitz from then into the 20th century. It seems plausible that the government “recognized” the tribe, whatever that may mean (to channel Felix Cohen, who wrote exactly that phrase in 1934 to describe this statute). The court concluded in Confederated Tribes of the Grand Ronde Community v. Jewell that the statute is ambiguous, and the DOI’s interpretation is entitled to Chevron deference.

That the case involved a challenge by another Indian tribe, Grand Ronde, to the Cowlitz matter begs the question about the interests at play in a challenge to a trust acquisition. Grand Ronde’s share of the gaming market in northern Oregon stands to suffer some if the Cowlitz Tribe commences gaming operations closer to Portland. Siding with local units of government, a local anti-Indian community group, and other non-Indian gaming interests, Grand Ronde led the effort to use Carcieri to defeat Cowlitz and the Interior Department. Interests opposing Indian gaming could not have drawn up a divide and conquer strategy any better. More broadly, the lobbying effort to persuade Congress to “fix” the Carcieri decision with an amendment to the 1934 Act is similarly stymied by intertribal conflicts, with some established tribal gaming interests quietly lobbying against a fix. Now that the case is headed to the Supreme Court, the Grand Ronde tribe has dropped out, as have the local government entities, but their anti-Cowlitz partners are taking up the slack in their stead.

It is only a matter of time before Carcieri-based challenges to fee-to-trust acquisitions by the DOI reach the Supreme Court given the financial stakes involved. There are other cases in the pipeline involving tribes such as the Oneida Indian Nation of New York and the Ione Band of Miwok Indians. More cert petitions may soon be forthcoming.

Barring acquiescence by the United States or another unusual development, it is unlikely the court will grant review in the Cowlitz matter. Normally, the court does not grant review in matters of limited importance unless there is a clear circuit split on federal law. Other than a federal district court decision involving the Mashpee Wampanoag Tribe (currently on appeal in the First Circuit), the Interior Department’s trust acquisitions challenged under the Carcieri decision have been affirmed. In short, the D.C. Circuit’s decision squares with the outcomes in prior cases in the Second and Ninth Circuits. Even if the outcomes had been different, the applicable law is not currently in doubt. As noted above, each tribe’s history is different, rendering every fee-to-trust decision extremely fact-specific (or factbound, in the court’s parlance). As I noted in my paper, Factbound and Splitless, any cert petition labeled “factbound and splitless” has virtually no chance of being reviewed by the Supreme Court.

That said, my research also shows that the Supreme Court is more likely to grant certiorari in Indian law matters, which involve unique federal interests, and (unfortunately for tribal interests) in cases where tribal interests and their federal partner have prevailed below. The court might conclude on its first look that the Interior Department or the federal circuit courts are simply wrong on the law, and docket the case for review.

In any event, the Carcieri decision spawned a great deal of litigation in an area — tribal gaming — that has important financial stakes, as well as the possibility of inter-tribal conflict. While the Cowlitz matter might not be the vehicle to answer the ultimate question of the meaning of Carcieri and the Department of the Interior’s response, there will be similar cases in the future, perhaps leading to inter-tribal sparring at the Supreme Court.

Matthew L.M. Fletcher is a professor of law at Michigan State University College of Law. Fletcher is the primary editor and author of the leading law blog on American Indian law and policy, Turtle Talk.

The opinions expressed are those of the author(s) and do not necessarily reflect the views of the firm, its clients, or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.

Petitioner’s Brief in Lewis v. Clarke

November 15, 2016Matthew L.M. Fletcher

Here:

Brief for Petitioner

Other background materials here.

Citizens Against Reservation Shopping v. Jewell Cert Stage Materials

November 14, 2016March 16, 2017Matthew L.M. Fletcher2 Comments

Cert Petition:

Citizens Against Reservation Shopping v. Jewell

Questions presented:

1. Whether, to have been a “recognized Indian tribe now under Federal jurisdiction” in 1934, a tribe must have been “recognized” at that time.

2. Whether, to have been “under Federal jurisdiction” in 1934, a tribe must have been located in Indian country – that is, on land over which the United States exercised jurisdiction to the exclusion of State jurisdiction.

Lower court materials here.

UPDATE:

US Cert Opp

Cowlitz Cert Opp

Cert Reply

Nisenan Tribe of the Nevada City Rancheria v. Jewell Cert Petition

November 14, 2016November 14, 2016Matthew L.M. Fletcher

Here:

Cert Petition

Questions presented:

1. Whether the Ninth Circuit Court of Appeals’ nunc pro tunc ruling depriving Petitioners of substantive procedural rights was in error?

2. Whether the Ninth Circuit Court of Appeals’ ruling on the statute of limitations was in error?

Fletcher Preview of Lewis v. Clarke

November 14, 2016November 14, 2016Matthew L.M. Fletcher

Here is “Supreme Court case could expose Indian tribes to new legal risks” at The Conversation.

Excerpt:

One would be tempted to think this is a case about fairness, about guaranteeing a forum for non-Indians to sue tribal employees who might be cloaked in a tribe’s immunity from the suit. In my opinion, fairness to the Lewis couple, however, comes at the expense of fairness to the tribe.

Recall that the tribe does provide a forum to resolve personal injury claims against it in tribal court, but with a one year limitations period. Under that law, the Mohegan tribal court has confirmed awards against tribal police officers; indeed, the tribe likely has settled thousands of claims over the years.

I have long argued that Indian tribes should provide an adequate forum to address the negligent actions of their employees. The Mohegan tribe has done so here by establishing a tribal court and a legal process for resolving personal injury claims. In fact, Mohegan was one of the earliest tribes to start doing so, way back in the 1990s. But personal injury lawyers have complained about Mohegan law because it bars punitive damages and other doctrines that can balloon judgment awards.

***

Background materials on the case are here.

SCOTUS Denies Cert in Wolfchild

November 7, 2016Matthew L.M. Fletcher

Here is today’s order list.

Cert stage briefs here.

Fletcher on Current Tribal Immunity Issues (Law360.com)

October 17, 2016October 17, 2016Matthew L.M. Fletcher1 Comment

Here:

Law360, New York (October 14, 2016, 1:32 PM EDT) — Two years ago, in Michigan v. Bay Mills Indian Community, the U.S. Supreme Court roundly affirmed the doctrine of tribal sovereign immunity, but did so grudgingly. The court warned against tribes abusing their sovereign status, especially in commercial ventures. The lower courts now are addressing tribal immunity in contexts as diverse as tribal sovereign lending and eminent domain exercised by utility companies. Pending before the Tenth Circuit is Public Service Company of New Mexico v. Barboan, where a utility is attempting to exercise the power of eminent domain over lands owned by an Indian tribe. And, this Term, the Supreme Court in Lewis v. Clarke will determine the scope of immunity for tribal employees. The outcomes in these cases, potentially circumventing tribal immunity, may expose tribal governments to extensive liability, reduced commercial opportunities, and worsened environments.

The federal government has authority to abrogate tribal immunity but the judiciary imposes a clear statement rule on statutes purported to waive immunity. As the Supreme Court stated in Bay Mills, Congressional intent to abrogate tribal immunity must be unequivocal. In Barboan, the utility is relying on 25 U.S.C. § 357 for statutory authority to condemn Indian lands. The statute does authorize the condemnation of Indian lands, with compensation to “allottee[s].” The Tenth Circuit may decide whether that statute is a clear statement of intent to authorize the condemnation of lands owned by allottees that are Indian tribes otherwise cloaked with immunity. If the court holds § 357 abrogates tribal immunity, then tribal efforts to stop or slow pipeline projects like the Dakota Access Pipeline could be compromised. Lower courts likely will conceive of this case as within the call of the question in Bay Mills and uphold the tribal defense here. But as always, the Supreme Court looms.

That the Supreme Court is very interested in the contours of tribal immunity is confirmed by the consistency with which the court has granted certiorari in those cases. Coming a mere two years after Bay Mills, the Court will hear another immunity matter arising from tribal commercial activities. In Lewis, the Court will decide whether tort and contract claimants can access tribal assets under a theory that tribal employees could be liable in tort if sued in their individual capacities, placing tribes in an unenviable position requiring them to indemnify money damage claims against employees.

Because Indian tribes usually have no tax base, the federal government long has encouraged tribes to utilize their sovereign status in commercial ventures to generate government revenue. In line with federal Indian policy, tribes have established gaming operations, asserted control over reservation natural resources, and established online commercial enterprises. Meanwhile, tribes established justice systems to address tort and contract claims arising from tribal enterprise. Tribal statutes established limited waivers of tribal immunity tailored to tribal courts analogous to the Federal Tort Claims Act and the federal Contract Disputes Act. Tribes have settled or litigated untold thousands of claims under these tribal laws since the 1990s.

Still, tribes find themselves hailed into state and federal courts to defend tort and contract claims for money damages. Nearly all of these claims are dismissed for lack of jurisdiction, either because of state or federal court subject matter jurisdiction or sovereign immunity. The tougher cases are those that arise off-reservation. The Supreme Court has held more than once that tribes retain immunity in federal and state courts even when engaged in off-reservation commercial ventures. Tort victims complain that tribal limitations periods are too short, that tribal damages caps are too low, and that tribal courts are unfamiliar and perhaps even biased forums. Worse, some consumers of tribal sovereign lending products allege that tribal dispute resolution forums are wholly inadequate or even shams.

In recent years, tort victims cleverly have sued tribal employees in their individual capacities in state or federal courts, seeking to avoid tribal immunity. Some courts rejected this theory, but others held that tribal emergency medical technicians and casino managers may be sued for money damages in their individual capacities. Perhaps it is only a matter of time before tribal sovereign lending employees are sued in their individual capacities. Individuals are not sovereigns, and are not immune from suit. However, sovereigns cannot act without individuals. Normally, when a government employee is on the clock, they are government officials cloaked with immunity from money damages, not individuals. Everyone knows that a pragmatic tribal government will be forced to indemnify their employees, opening up the tribal fisc to potentially expansive liability.

Decisions against tribal immunity in the context of Indian lands and in the context of tribal employees could expose Indian tribes to land dispossession and monetary liability far beyond what tribes have come to expect in recent decades. With an eight-judge Court, getting to five votes is tricky. However, it is very possible that progressive judges skeptical of governmental immunity might vote against tribal interests alongside conservative justices skeptical of tribal sovereignty. Tribal interests could very well face a perfect storm aligned against them.

—By Matthew L.M. Fletcher, Michigan State University College of Law