Sarah Washburn has published Distinguishing Carcieri v. Salazar: Why the Supreme Court Got It Wrong and How Congress and Courts Should Respond to Preserve Tribal and Federal Interests in the IRA’s Trust-Land Provisions in the Washington Law Review.

The abstract:

Section 5 of the Indian Reorganization Act (IRA) authorizes the Secretary of the Interior to acquire and hold land in trust for the purpose of providing land for Indians. In 2009, the Supreme Court held in Carcieri v. Salazar that to qualify for the benefits of Section 5, tribes must show they were under federal jurisdiction at the time the IRA was enacted in 1934. The Carcieri Court then determined that the Narragansett tribe, which obtained federal recognition in 1983 under the 25 C.F.R. Part 83 recognition process, had not proven that it was under federal jurisdiction in 1934. Carcieri was the first case in which the Court decoupled jurisdiction from recognition for purposes of the IRA. It could be read to suggest that federal recognition on its own is not enough to prove federal jurisdiction for purposes of the IRA and thus threatens the interests of all tribes; especially at risk are tribes that obtained federal recognition after Congress enacted the IRA. Many of those tribes were simply overlooked and excluded from a list of recognized tribes compiled upon enactment of the IRA, and all of them have demonstrable historical relationships with the federal government. While the Carcieri Court limited its holding to the timing question—that the phrase “now under federal jurisdiction” in the IRA means that a tribe must prove federal jurisdiction existed in 1934—it did not consider how tribes might prove such jurisdiction existed. This Comment argues that tribes recognized after the enactment of the IRA, through either traditional recognition processes or the recognition procedures set forth in 25 C.F.R. Part 83, were necessarily under federal jurisdiction in 1934 and should therefore qualify under the IRA’s Section 5 trust-land provisions. It argues that Congress should respond to Carcieri with legislation clarifying that all federally recognized tribes were necessarily under federal jurisdiction in 1934. It further argues that until Congress acts, courts should allow tribes recognized after 1934 to prove through additional evidence that such jurisdiction existed.