Carcieri v. Salazar

Senator Dorgan Introduces Carcieri Fix

Matthew L.M. Fletcher

Carcieri Fix Bill

Carcieri Floor Statement – final

From Sen. Dorgan’s statement:

Mr. President, I rise today to introduce a technical amendment to the Act of June 18, 1934.

On February 24, 2009, the Supreme Court issued its decision in the Carcieri v. Salazar case.  In that decision the Supreme Court held that the Secretary of the Interior exceeded his authority in taking land into trust for a tribe that was not under federal jurisdiction, or recognized, at the time the Indian Reorganization Act was enacted in 1934.

The legislation I’m introducing today is necessary to reaffirm the Secretary’s authority to take lands into trust for Indian tribes, regardless of when they were recognized by the federal government.  The amendment ratifies the prior trust acquisitions of the Secretary, who for the past 75 years has been exercising his authority to take lands into trust, as intended by the Indian Reorganization Act.

On May 21, 2009, the Senate Committee on Indian Affairs held a hearing to examine the executive branch’s authority to take land into trust for Indian tribes.  At that hearing, it became clear that Congress needs to act to resolve the uncertainty created by the Supreme Court’s decision.  Therefore, this legislation was developed in consultation with interested parties to clarify the Secretary’s authority.

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Dems v. The Roberts Court

Matthew L.M. Fletcher

Here’s an interesting article on current efforts by Congress to overturn Roberts Court decisions (here). Carcieri v. Salazar, assuming there really is an effort to override the decision, is not mentioned.

One must recall that the Duro fix, the most recent of Congress’s Indian law overrides, was done in a rider….

Challenge to Muscogee Fee to Trust Looms

Matthew L.M. Fletcher

From ICT:

By Rob Capriccioso

WASHINGTON – On the heels of a Supreme Court decision that complicates land into trust matters for tribes, a policymaker from Tulsa, Okla. is organizing a fight against the land into trust interests of the Muscogee (Creek) Nation.

City Councilor Bill Christiansen is currently drafting a resolution against efforts by the Muscogee Nation to work with the BIA to place two parcels of land into federal trust.

Christiansen, who is the president of an aviation company, said the resolution is needed because the city would lose more property and sales taxes if the BIA grants more land into trust for the tribe. He said the city has already lost much money due to the tribe’s non-taxable existence, yet the city still has to pay for public services that benefit tribal members.

He also worries that the tribe could build a mall on the lands in contention, which would compete with facilities in the city that pay property and other taxes.

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Review of OT 2008: Indian Law Cases in the Supreme Court

Matthew L.M. Fletcher3 Comments

It’s time for a review of what the Supreme Court did in Indian law this Term, since the Term will end in a few weeks.

Consistent with the last 15 years or so (maybe 20), the Court was very hostile to tribal interests. The Roberts Court’s view of Indian law has changed slightly from the Rehnquist Court; frankly, for tribal interests, to the worse. All of the Indian law cases decided by the Court this Term could be construed as “error correction,” cases in which the Court (usually unanimously) believed the lower court made an egregious error. This appears to be a trend in the recent years, in which the Roberts Court will only grant certiorari in cases to correct these egregious errors. The Court does not see Indian law as a dynamic area of law — Indian law cases are very easy for most of the Justices — nor are Indian law cases vehicles for examining important issues of constitutional law beyond federal Indian law.

For the Roberts Court, Indian law cases are easy for a couple reasons. First, state government interests always trump tribal interests, and every case in which tribes defeat states strongly attracts the attention of the Court. The reverse simply is not true. It is my sense that the Roberts Court is happy to rest on the fact that state sovereignty is strongly protected by the text of the Constitution, and tribal sovereignty is not. Second, the long, complicated, and important history of federal Indian law and policy is utterly unimportant to the Roberts Court. Longstanding practice, legislative history, and simple Indian affairs history does nothing to persuade a majority of the Court, with only Justice Stevens paying much attention to it.

The Court heard oral argument and issued opinions in two Indian law cases, and a third case involving Native Hawaiians.

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SCIA Hearing on Carcieri v. Salazar

Matthew L.M. Fletcher

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SCOTUSblog on the SCIA Hearing on Carcieri

Matthew L.M. Fletcher

From SCOTUSblog:

Today, at 2:15 pm the Senate Committee on Indian Affairs will conduct a hearing in response to the recent Supreme Court decision in Carcieri v. Salazar. The decision limited the Secretary of the Interior’s authority to place land into trust under 25 U.S.C. § 465, the Indian Reorganization Act (IRA), only for Indian tribes under federal jurisdiction when the IRA was enacted in June of 1934. Prior to the decision, the Department of the Interior construed the IRA as granting authority to place land into trust under the IRA for all federally recognized tribes. Further analysis of the decision is available here.

The witnesses include Edward Lazarus, a partner at Akin Gump Strauss Hauer & Feld, LLP (prepared testimony available here); W. Ron Allen, the Secretary of the National Congress of the American Indians; and Lawrence Long, the Chairman of the Western Attorneys General.

NCAI Written Testimony for the SCIA Hearing on Carcieri v. Salazar

Matthew L.M. Fletcher

NCAI Testimony to SCIA on Carcieri – final

Here is NCAI’s proposed legislative “fix”:

25 U.S.C. §479:

The Act entitled “An Act to conserve and develop Indian lands and resources; to extend to Indians the right to form business and other organizations; to establish a credit system for Indians; to grant certain rights of home rule to Indians; to provide for vocational education for Indians; and for other purposes”, approved June 18, 1934, is amended by:

Section 1: In Section 19 [25 U.S.C. § 479] deleting in the first sentence the words “now under Federal jurisdiction.”

Section 2: Actions of the Secretary taken prior to the date of enactment of this amendment pursuant to or under color of this Act [25 U.S.C. §461 et. seq.] for any Indian tribe that was federally recognized on the date of the Secretary’s action are hereby, to the extent such actions may be subject to challenge based on whether the Indian tribe was federally recognized or under federal jurisdiction on June 18, 1934, ratified and confirmed as fully to all intents and purposes as if the same had, by prior act of Congress, been specifically authorized and directed.

ICT on State Opposition to Carcieri Fix

Matthew L.M. Fletcher

From ICT:

Money and power drive states’ interest in Carcieri ‘fix’

Seventeen attorneys general, seeking property taxes and more state power over sovereign Indian lands, have written to the ranking members of the Senate Committee on Indian Affairs and the House Resources Committee urging them to move slowly – if at all – on any Carcieri “fix” and to include them in discussions on the Interior secretary’s authority to take land into trust for the nations.

“A March 13 story in Indian Country Today said Indian country officials are calling for a quick legislative fix so that state and local interests will not have time to make arguments to Congress that the Carcieri decision should stand. The undersigned believe it would not be in the best interests of all stakeholders, both Indian and non-Indian, to rush a legislative fix and to ignore legitimate state and local interests,” the attorneys general wrote.

The Carcieri fix would have Congress amending the 1934 Indian Reorganization Act by deleting the phrase “any tribe now under federal jurisdiction” or adding the words “or hereafter” after the word “now.”

The fix would correct a February ruling by the U.S. Supreme Court, which interpreted “now” to mean then – 1934. The case centered on a 31 acre parcel of land purchased by the Narragansett Indian Tribe for elderly housing. The Interior Department agreed to place the land in trust, but the state and town fought that action all the way to the high court, where the justices ruled 6-3 that the Interior secretary could not take the land into trust because the tribe was not “federally recognized” in 1934.
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Seventeen State AGs Urge Congress Not to Quick-Fix Carcieri

Matthew L.M. Fletcher1 Comment

Here is the letter to the ranking members of the SCIA and the House Resources Committee from the attorneys general of 17 states — carcieri-state-ags-ltr-to-hill-april-24-2009

The letter asserts that Carcieri is a symptom of a greater frustration felt by state governments relating to the current fee to trust process and asking Congress to consider state interests. Importantly, the letter offers nothing suggesting what those interests might be or what these AGs want in a potential Carcieri fix.

There are at least two reasons for this, I suspect. First, 17 AGs probably can’t agree on what those state interests are. And second, maybe these state AGs are leaving unsaid the obvious — they want more control over Indian lands, perhaps even veto power over fee to trust transfers and over activities on trust land.

And that’s what the Supreme Court handed state governments with their very wrongheaded decision in Carcieri. A Carcieri cure might be worse than the disease.

Mistake for Federal Agencies to Make Post-Carcieri Lists

Matthew L.M. Fletcher2 Comments

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.