In February 24, 2009, the Supreme Court issued an opinion in Carcieri v. Salazar (129 S.Ct. 1058 (2009)) that limited the secretary of the interior’s authority to acquire land into trust for Indian tribes under the Indian Reorganization Act (IRA). Carcieri held that trust lands may only be acquired by the secretary under the IRA for tribes that were recognized and “under federal jurisdiction” as of 1934.
A year later, the three executive, legislative and judicial branches have had occasion to consider the decision and determine the impact of Carcieri on Indian Country. This article examines the aftermath of the Supreme Court’s decision.
The Executive Branch
The initial response from the Department of the Interior was very positive. On February 27, 2009, Secretary of the Interior Ken Salazar issued a statement that he was “very disappointed by the court’s ruling.” The department also conducted three consultation sessions last summer to seek input from tribal leaders on potential administrative and legislative solutions.
A year later, the department has yet to announce a legal standard for interpreting the phrase “under federal jurisdiction,” or made any determinations on how to apply Carcieri, if at all. In fact, the only determination of note thus far is the Interior Department’s decision concerning the United Keetoowah Band of Cherokee Indians of Oklahoma.
Citing Carcieri, Assistant Secretary for Indian Affairs Larry EchoHawk issued a determination on June 24, delaying the Interior Department’s decision on a land-into-trust application for the band. Although the band is one of two successors in interest to the historic Cherokee Nation, EchoHawk acknowledged that the band did not organize as an Indian tribe until 1950 (under the Oklahoma Indian Welfare Act).
The assistant secretary suggested that band’s application raises the question whether the secretary can acquire land into trust today for members of a tribe that was not in existence in 1934 if that tribe is a successor in interest to a tribe that was in existence and under federal jurisdiction in 1934. He wrote, “This question requires further consideration.”
Recently, department officials have said that achieving an administrative solution could take as long as two years. Unsurprisingly, the department has encouraged Indian tribes to pursue legislation. On November 4, Donald Laverdure, deputy assistant secretary for Indian affairs at the Department of the Interior, testified before the House of Representatives Committee on Natural Resources that the “department strongly supports Congress’ effort to address the recent United States Supreme Court decision.”
The Legislative Branch
Initially, Congress was quick to act after the decision was handed down, and the two primary committees of jurisdiction convened hearings. On April 1, 2009, the House Committee on Natural Resources convened an oversight hearing on Carcieri. Michael Anderson, an author of this article, was privileged to testify at the hearing. The committee chairman, Rep. Nick Rahall (D-West Virginia), observed that “while all of the potential ramifications of this decision are not known at this time, there is one thing that we are certain of: This decision may result in many frivolous lawsuits being filed to challenge the status of virtually every tribe.”
On May 21, 2009, the Senate Committee on Indian Affairs convened an oversight hearing to examine the Executive Branch’s authority to acquire trust lands for Indian tribes. Committee chairman Senator Byron Dorgan (D-North Dakota) offered his deep concern about the court’s decision. He described it as a complicated, interesting and difficult opinion requiring the attention of many Indian tribes and the committee.
Subsequently, three nearly identical bills, known as the “Cariceri-fix” legislation, have been introduced by Congress. These bills would amend the Indian Reorganization Act to apply the act to all federally recognized Indian tribes, regardless of when any tribe became recognized.
A year later, neither the House nor Senate has approved the Carcieri-fix legislation. Both Democrat and Republican members are skeptical that a Carcieri-fix bill could move this year by itself. The current thinking on Capitol Hill is that the legislation’s best chance of approval is to include it in an appropriations measure.
The Judicial Branch
When the Carcieri opinion was first issued, many of us believed that the decision would be extremely disruptive for Indian tribes seeking to exercise rights under the Indian Reorganization Act and expected legal challenges to quickly follow. Indeed, opponents have sought to capitalize on Carcieri to prevent trust acquisitions by bringing litigation against the federal government.
A year later, there are as many as seven Carcieri cases pending across the United States at both state and federal levels. Two of these cases are before the U.S. Courts of Appeals. The first appeal is Patchak v. Salazar (DC Cir. No.: 09-5324). David Patchak challenged the department’s 2005 decision to take land into trust on behalf of the Match-E-Be-Nash-She-Wish Band of Potawatomi Indians. Patchak argued that the tribe was not under federal jurisdiction in 1934. The court never reached the plaintiff’s argument, dismissing the suit on prudential standing grounds instead. The fact that the District Court for the District of Columbia found no standing for individuals under Section 5 of the IRA to challenge trust acquisitions is encouraging.
In the second appellate matter, Butte County v. Hogen (DC Cir. No. 09-5179), the local government plaintiff is challenging the department’s decision to acquire trust land in Northern California for the Mechoopda Indian Tribe. The Carcieri decision was not before the district court, but the plaintiff noted the opinion in a footnote of the appeal brief and requested the court to take judicial notice of the case. The Butte County case is easily distinguishable from Carcieri. In Carcieri, none of the parties contended that the Narragansett were under federal jurisdiction in 1934 and in fact, stated that the tribe was under state jurisdiction. In Butte County, the federal government has argued that nothing suggests that the relationship between the United States and the Mechoopda Tribe is analogous to the Narragansett.
Carcieri continues to appear in several trial court cases, and not always at the hands of tribal opponents. One example is the Wilton Miwok Rancheria v. Salazar (CA-ND No. C-07-02681) case, in which the plaintiff Indian tribe brought a suit to seek federal recognition. In July 2009, the district court entered a stipulated judgment approving a consent decree in which the United States agreed to restore federal recognition to the Wilton Rancheria and to acquire trust land for tribe.
One month later, two local governments sought to intervene. Unexpectedly, the district court has requested supplemental briefing from the parties as to the relevance of the Carcieri decision to the recognition of the Wilton Rancheria.
Looking Forward, A Year Later
It appears that the courts will be the first of the three branches to determine the impact of Carcieri on Indian tribes. Based on at least one recent federal court decision, this generally looks favorable for Indian Country.
However, the judiciary is also the one branch of government with no legal or moral obligation of government-to-government consultation prior to decision-making. Indian tribes have very little input on how the Carcieri decision will be interpreted by a judge. Therein lies the risk.
If opponents begin to see successes in the courtroom, many Indian tribes that believe they do not have a direct “Carcieri issue” may find themselves hauled into court to provide sufficient evidence that they were under federal jurisdiction in 1934. Indian tribes and their investors that believe opponents may seize upon the Carcieri decision to challenge recent, pending or even past fee-to-trust acquisitions would be well advised to begin laying the groundwork for a defense in potential litigation.
An even worse outcome could occur if a court chose not to confine itself to a reasonable interpretation of the IRA, but instead elected to determine the general application of Carcieri to other Indian tribes. It is not unheard of for a court to expand a ruling beyond the dispute before it and establish a new broad rule.
To avoid such disastrous occurrences, tribal leaders and their investors must continue to encourage their congressional representatives to approve the Carcieri-fix legislation, the preferred remedy.
