Here:
The parallel Clark County brief is here.
Carcieri v. Salazar
Clark County, Wash. Motion Arguing Carcieri in Challenge to Cowitz Trust Acquisition Case
Fixing Carcieri for Michigan
Fixing Carcieri for Michigan
Matthew L.M. Fletcher
Congressional action to correct the Supreme Court’s decision in Carcieri v. Salazar would cost American taxpayers nothing and would be an enormous win for Michigan tribes and the Michigan economy. Carcieri, a decision that undermines the certainty of the Department of Interior’s authority to acquire land in trust for some Indian tribes, makes borrowing money for several Michigan tribes more difficult and more expensive – for some Michigan tribes, the price to borrow money for capital growth increases by millions in increased interest or even the inability to borrow. In short, Carcieri costs the Michigan economy jobs and economic growth.
The Carcieri Decision
The Carcieri decision held that the Department of Interior could not take land into trust for the benefit of the Narragansett Indian Tribe in Rhode Island under Section 5 of the Indian Reorganization Act (“IRA”), a statute that authorizes the Secretary of Interior to do so for any Indian tribe. The IRA’s definition of “Indian tribe” includes any tribe “now under federal jurisdiction.” The Interior Department had interpreted the IRA to authorize trust land acquisitions for tribes under federal jurisdiction at the time of the application, using federal recognition as a proxy for federal jurisdiction. But the Supreme Court held that the Narragansetts were under state jurisdiction at the time of the enactment of the IRA in 1934, and so Interior could not take land into trust for them.
The Department of Interior had “administratively terminated” several Michigan Indian tribes – all of the six Ottawa and Potawatomi tribes now federally recognized – in the late 19th century. These tribes are “treaty tribes,” meaning that they have an ongoing treaty relationship with the federal government that has never been extinguished by Congress. The Sixth Circuit has recognized that “administrative termination” was an illegal administrative act, and the concurrences and dissent in Carcieri also recognized that the Michigan tribes probably were “under federal jurisdiction” in 1934. Still, those tribes, and two other tribes in the Upper Peninsula that became federally recognized in the 1970s and 1980s may be affected by Carcieri.
Impacts on Michigan Tribes
The Michigan tribes are among the tribes most adversely affected by the Carcieri decision, even though every one of them is a treaty tribe. They are affected in two important ways:
First, each of the tribes potentially affected by Carcieri may be forced to engage in a costly, protracted historical and legal determination by the Interior Department that they were “under federal jurisdiction” in 1934. In other words, the tribes may have to expend precious tribal resources to prove that they are eligible tribes in the frivolous lawsuits that are destined to be filed. There are currently 62 non-gaming related Michigan tribes trust applications pending in the Department of Interior now. These applications are for agriculture, housing, public safety, and other infrastructure projects. Many of these projects involve multi-million dollar construction jobs and long-term job creation. Every day that these trust applications are delayed slows down Michigan job growth and economic development. Nationally, a Carcieri fix is estimated to generate 140,000 jobs, many of those in Michigan.
Derek Bailey, the former chairman of my tribe, the Grand Traverse Band of Ottawa and Chippewa Indians, testified before Congress in 2009 about the clear economic consequences of trust land acquisition delays:
As one example, Parcel 45 in Antrim County is a 78-acre parcel that is zoned for residential development by the local township and county. In order to obtain this zoning, we spent 1.5 million dollars of tribal money for roads and for sewer, water, and electrical infrastructure to render the parcels ready for individual housing. The parcel contains two homes owned by tribal members, two Grand Traverse Band rental homes, and 22 empty lots available for Tribal members to construct housing. However, until the land is placed into trust, tribal members cannot obtain the Bureau leases necessary to secure housing financing.
Second, the cloud of Carcieri stifles any development project by potentially affected Michigan tribes. Carcieri increases risks to lenders – the risk that a court finds that a tribe is not eligible because of the Carcieri case, even if low, increases exposure – and that translates to millions of dollars in increased interest rates and occasionally shuts down the project altogether by eliminating the ability of the tribe to borrow money at all. Carcieri has all but killed off investment in Indian country. This issue extends to tribes that may have a Carcieri problem and tribes that already have established economic enterprises. Lower Michigan tribes, especially in southwest Michigan, are enormous economic engines that have generated massive economic growth despite the specter of Carcieri. Relieving these economic engines of this unnecessary burden is only going to improve Michigan’s economy.
In conclusion, fixing Carcieri is costless to American taxpayers and a big win-win for Michigan and Michigan tribes.
ICT Coverage of Senate Report on Carcieri
Here.
An excerpt:
The report says that the decision sent “shockwaves” through Indian country “in great part because the record on which the Supreme Court based its interpretation of section 19 of the IRA was noticeably incomplete.” It adds that the decision undermines the intent of the IRA, threatens public safety and law enforcement, and impedes economic development, while increasing costly tribal and federal litigation.
Sen. John Barrasso, R-Wyoming, said in an accompanying view issued within the report that he concurs with most of Akaka’s views regarding the effects of the decision of and the purposes of the IRA, although he said he recognizes there to be other “good faith” understandings of the Supreme Court’s rationale.
“For my part, I do not claim to know enough about the government’s internal deliberations and legal strategies in the Carcieri case to say that there were deliberate or even careless omissions from the record presented to the Supreme Court,” Barrasso says. “But whether that happened or not is ‘water under the bridge’ and therefore much less important than the consequences of the decision itself.”
Senate Report on S. 676 (Carcieri Fix)
Senate Report on Carcieri Fix, otherwise known as Senate bill 676:
County May Attempt to Subject Poarch Band of Creek Indians to Taxation Under Carcieri
Here.
New Scholarship on an Administrative Carcieri Fix
Howard Highland has posted his article, “A Regulatory Quick-Fix for Carcieri V. Salazar: How the Department of Interior Can Invoke an Alternative Source of Existing Statutory Authority to Overcome an Adverse Judgment Under the Chevron Doctrine,” on SSRN. The Administrative Law Review published the article in its 2011 volume.
Here is the abstract:
Secretary of the Interior Ken Salazar has requested that Congress enact a “legislative fix” for the Supreme Court opinion in Carcieri v. Salazar. In Carcieri, the Court interpreted the Indian Reorganization Act of 1934 (IRA) to effectuate a perverse distinction between Indian tribes under federal jurisdiction in June 1934 and Indian tribes whose relationship with the federal government was not established until after June 1934. Applying step one of the doctrine articulated in Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., the majority opinion of Justice Thomas declared that “the term ‘now under Federal jurisdiction’ in [the IRA] unambiguously refers to those tribes that were under the federal jurisdiction of the United States when the IRA was enacted in 1934.” As a result, a cloud now hangs over any land-into-trust transactions that the Secretary has made for Indian tribes which were not federally recognized until after 1934, and which are now unable to prove that their “post-1934 recognition [was granted] on grounds that implied a 1934 relationship between the tribe and Federal Government that could be described as jurisdictional.”
Whereas other proposals for a Carcieri fix presume the need for new legislation or regulations to fix Carcieri, this Recent Development argues that existing statutes and regulations already authorize the Secretary to overcome the effects of Carcieri. Even though the IRA no longer authorizes the Secretary to take land into trust for Indian tribes not under federal jurisdiction in June 1934, the Secretary’s fee-into-trust regulations under 25 C.F.R. Part 151 rest on several other pillars of statutory authority. 25 U.S.C. §§ 2 and 9 are the strongest alternative sources of statutory authority under which the Secretary may claim delegated authority for fee-into-trust acquisitions on behalf of Indian tribes not under federal jurisdiction in June 1934. Under the Chevron doctrine, 25 U.S.C. §§ 2 and 9 constitute an explicit delegation of authority to the Secretary to promulgate “legislative regulations [which] are given controlling weight unless they are arbitrary, capricious, or manifestly contrary to the statute.” Such legislative regulations are thus entitled to the maximum amount of Chevron deference.
25 U.S.C. §§ 2 and 9 also form the statutory basis for 25 C.F.R. § 83.12(a), which entitles acknowledged tribes to “the privileges and immunities available to other federally recognized historic tribes,” and renders them “eligible for the services and benefits from the Federal government that are available to other federally recognized tribes.” Hence, federal acknowledgment under 25 C.F.R. Part 83 ought to include the benefits available to tribes under 25 C.F.R. Part 151. This Recent Development urges that the ruling in Carcieri does not prohibit the Secretary from asserting that he has always held statutory authority under 25 U.S.C. §§ 2 and 9 to transfer land into trust for Indian tribes acknowledged under 25 C.F.R. Part 83. Although not every tribe federally recognized after 1934 was given status under 25 C.F.R. Part 83, the regulatory quick fix proposed in this paper would minimize the devastating consequences of Carcieri while a legislative fix stalls in Congress.
Flap over the SG’s Briefs (Indian Country Implications? Nah.)
Here, from SCOTUSblog is a description of the issue:
In a ruling that the Justice Department is seeking to delay while it appeals, a federal judge has concluded that the federal government’s lawyers in the Supreme Court may have misled the Justices three years ago in efforts to win a key case on the rights of non-citizens facing deportation from the U.S. The New York judge rejected all of the government’s arguments for refusing to disclose significant parts of four pages of e-mail exchanges within the Solicitor General’s office about a policy claim they had made in the government’s brief in the Supreme Court case ofNken v. Holder, decided nearly three years ago. The new ruling by U.S. District Judge Jed S. Rakoff of New York City can be found here.
We here in the ILPC suite wondered whether this would be a big deal in an Indian law case. [We’re betting the Jicarilla attorneys have a view on this, though that case didn’t involve the SG so much.] But we are reminded by the SG’s lodging of documents in the Carcieri case that helped to form the heart of Justice Thomas’s majority opinion:
Furthermore, the Secretary’s current interpretation is at odds with the Executive Branch’s construction of this provision at the time of enactment. In correspondence with those who would assist him in implementing the IRA, the Commissioner of Indian Affairs, John Collier, explained that:
“Section 19 of the Indian Reorganization Act of June 18, 1934 (48 Stat. L., 988), provides, in effect, that the term ‘Indian’ as used therein shall include—(1) all persons of Indian descent who are members of any recognized tribe that was under Federal jurisdiction at the date of the Act … .” Letter from John Collier, Commissioner, to Superintendents (Mar. 7, 1936), Lodging of Respondents (emphasis added).
Of course, there’s a big difference between what Judge Rakoff found and this, to be sure. Moreover, we’re pretty sure all the parties were aware of this document or similar documents long before the SG lodged John Collier’s letter with the Court. In fact, this is probably an instance where the SG was being completely honest. But still! Man! C’mon!
The Political Economy of the Carcieri Fix
Last week’s hearing on the ongoing question of whether Congress will “fix” the Supreme Court’s Carcieri decision was a different take than earlier hearings, but still completely ignores the elephant in the room.
The first hearings were naked pleas to reverse the Supreme Court’s decision on the grounds that the decision was just plain incorrect. The increased complexity of administration of fee to trust acquisitions for tribes possibly affected by Carcieri and Interior was the backdrop there. Now it is jobs and economic development, truly important factors.
But what was missing, and what likely guarantees there will never be a Carcieri fix, was the big gaming tribes. It is the big gaming tribes that divide Indian country on this question, and even though there are only a dozen, maybe two, in question … and they have an effective veto on a Carcieri fix.
Forget Rhode Island’s concern about having their ridiculously expensive Supreme Court victory stripped away, or some Senators’ concerns about “reservation shopping.” Senators views can be changed, especially when political expediency requires it. But the powerful Indian gaming tribes’ interests are economic. So the hearings are incomplete at best, and maybe a sham at worst, because the real interests can stay quiet on the record.
Intertribal gaming revenue sharing anyone? But even that might not be enough.
Turtle Talk 
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