Supreme Court Limits the Power of the Secretary of the Interior to Take Land into Trust
In an important case for Indian country with potentially far-reaching implications, the Supreme Court today handed down a decision in Carcieri v. Salazar, 555 U.S. ____ (2009), and held that the Secretary of the Interior’s authority to take land into trust under 25 U.S.C. § 465, the Indian Reorganization Act (IRA), is limited “to taking land into trust for the purpose of providing land to members of a tribe that was under federal jurisdiction when the IRA was enacted in June 1934.” In this alert, we discuss the Court’s opinion and outline some of the potentially significant issues that Indian tribes may face in light of the decision.
The Court’s Opinion
The case arose in the early 1990s out of a dispute over whether local regulations applied to the Narragansett Tribe (“Tribe”) in their planned construction of tribal housing on 31 acres of land that it had recently purchased. The Tribe applied to the Secretary of the Interior to place the 31-acre parcel of land into trust under § 465, and the Secretary agreed to take the land into trust in 1998. Thereafter, the state of Rhode Island appealed the Secretary’s decision and pursued its appeals through the Interior Board of Indian Appeals, the U.S. District Court, the U.S. 1st Circuit Court of Appeals in a panel decision and the 1st Circuit sitting en banc. All appeal decisions affirmed the Secretary’s authority to take the land into trust for the Narragansett Tribe.
In a majority opinion by Justice Thomas, the Court held that the Secretary’s authority to take land into trust under 25 U.S.C. § 465 “for the purpose of providing land for Indians,” turned on 25 U.S.C. § 479, which defines “Indian” and “tribe.” The relevant portion of § 479 states:
“The term ‘Indian’ as used in this Act shall include all persons of Indian descent who are members of any recognized Indian tribe now under Federal jurisdiction, and all persons who are descendants of such members who were, on June 1, 1934, residing within the present boundaries of any Indian reservation, and shall further include all other persons of one-half or more Indian blood. . . . The term ‘tribe’ wherever used in this Act shall be construed to refer to any Indian tribe, organized band, pueblo, or the Indians residing on one reservation. . . .”
While concluding that § 479 sets forth “three distinct definitions” of “Indian,” the Court focused on the first definition. More particularly, the Court focused on the language stating “any recognized Indian tribe now under Federal jurisdiction.” Arguing that, under the plain text of the statute, “now” modifies “under Federal jurisdiction,” and that “now” in 1934 meant “at the present time; at this moment; at the time of speaking,” the Court held that the Indian tribe had to be under federal jurisdiction at the time of the statute’s enactment in June of 1934.
As further support for its holding, the Court stated its reading of the statute “aligns with natural reading of the word within the context of the IRA,” highlighting parts of the statute where Congress uses “now” to refer to current events, and “now and hereafter” to refer to current and future events. The Court also quoted correspondence by Commissioner of Indian Affairs John Collier dated three months prior to Congress’ enactment of the IRA, in which he stated that the IRA includes members of any recognized tribe “that was under Federal jurisdiction at the date of the Act.”
Additionally, the Court rejected arguments by the Secretary and amici in their briefs that use of “Indian” in § 479 is made irrelevant by use of “tribe” in that same section. “Tribe” is defined as “any Indian tribe, organized band, pueblo, or the Indians residing on one reservation.” Within this definition, the Court focused on the words “Indian tribe” and held that “Indian” modified “tribe,” thus “tribe” is also limited to the same temporal restrictions that apply to “Indian.” The Court also rejected the Secretary’s argument that “now” does not apply to when the Secretary applies the statute, noting that “now” does not mean “now or hereafter.”
The Court also rejected the arguments, made by the National Congress of American Indians, that 25 U.S.C. § 2202, which was enacted as part of the Indian Land Consolidation Act, “independently grants authority under Section 465 for the Secretary to execute the challenged trust acquisition.” Rejecting this argument, the Court stated “§ 2202 provides additional protections to those who satisfied the definition of ‘Indian’ in §479 at the time of the statute’s enactment.”
Justice Breyer joined in the majority opinion but issued a concurring opinion enumerating certain qualifications. First, he conceded that “now” could also be read to refer to the time when the Secretary exercises his authority to take land into trust, and that the Court should grant the Department of Interior (DOI) interpretive respect as to the circumstances of the IRA’s enactment. Second, that “now” does mean “in 1934” because Congress intended it so. Third, that the Court’s holding “may prove somewhat less restrictive than it at first appears” because a tribe may have been “under Federal jurisdiction” in 1934 without the federal government knowing it. He noted that DOI produced a list of tribes to which the IRA applied, that a number of tribes were wrongly left off the list, that DOI later recognized those tribes and that they should have been on the 1934 list. Moreover, he noted that DOI’s administrative practices with respect to a tribe that is not recognized could be the basis for proving it was under federal jurisdiction in 1934. He specifically referred to the Stillaguamish Tribe, the Grand Traverse Band of Ottawa and Chippewa Indians, and the Mole Lake Tribe.
Justice Souter concurred in the holding that “now” referred to June of 1934 but dissented, believing the case should be remanded to determine whether the Narragansett Tribe was under federal jurisdiction in 1934. Justice Souter’s opinion recognizes the possibility that recognition and jurisdiction may be separate characteristics. Using Justice Breyer’s concurrence to support his argument, Justice Souter stated, “the statute imposes no time limit upon recognition, and in the past, the DOI has stated that the fact that the United States Government was ignorant of a tribe in 1934 does not preclude that tribe from having been under federal jurisdiction at that time.”
Noting that there is no precedent or history of practice to gauge whether a tribe was under federal jurisdiction in 1934, Justice Souter argued that, nonetheless, the Tribe should be given an opportunity to prove it.
Justice Stevens dissented from what he characterized as a “curious and harsh” opinion of the Court. “Curious” because, under the Court’s opinion, the most important word in the IRA is “now,” which limits the eligibility for federal benefits to individual Indians and Indian tribes; “harsh” because, despite the fact that the Narragansetts were recognized in 1983, the Tribe is not an Indian tribe under the IRA.
Justice Stevens disputed the majority opinion that the IRA is limited to a temporal context. He argued the IRA has a broad mandate to take land into trust for individual Indians and Indian tribes. As such, the necessary condition to taking land into trust is that a tribe is federally recognized. Since the Tribe was federally recognized in 1983, the Secretary was within his authority to take land into trust for the Tribe. Justice Stevens also addressed the majority’s argument that because the definition of “tribe” in § 479 includes “Indian tribe,” “tribe” is also limited by the temporal restrictions of “Indian.” He stated that the term “Indian tribe” simply reflects that the tribe in question is a formally recognized Indian tribe.
Possible Implications for Indian Country
As policymakers and tribal advocates review and consider the Court’s opinion, we believe there is likely to be heightened interest in Congress, the federal agencies and the federal courts about the potential impacts from the case.
For instance, given the breadth of the Court’s opinion, we expect that pressure will mount for Congress and the Obama administration to legislatively “fix” the central holding of the Court: that the IRA does not authorize the Secretary to place land into trust for Indian tribes not under federal jurisdiction in 1934. In addition to the perceived unfairness of the decision, the notion that “under federal jurisdiction” may not be the same as “federal recognition” could lead to uncertainty warranting congressional intervention. Indeed, Congress has previously enacted legislation in response to Supreme Court opinions involving interpretations of federal Indian law. Most notably was the so-called Duro fix, involving tribal court criminal jurisdiction over non-member Indians. Of course, any legislative effort to supersede the Court’s opinion will likely be met with significant opposition.
Moreover, the Court’s decision could also spark a new round of litigation by opponents of tribal sovereignty. Given the significant opposition that a number of Indian tribes have faced in recent years in a wide variety of contexts, the Court’s decision could be read by some as a further invitation to judicially challenge Indian tribes in their exercise of sovereignty beyond the acquisition of land.
In any event, today’s decision reminds Indian tribes that they need to be prepared to face these challenges with strong legal and policy arguments.
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