http://www.indiancountrytoday.com/home/content/40223997.html
Supreme Court redefines tribal and federal
understandings of IRA
Tribes may seek
Congressional fix
by Rob Capriccioso, Indian
Country Today February 24, 2009
WASHINGTON – The Supreme Court
has ruled in Carcieri v. Salazar that tribes not
under federal jurisdiction as of 1934 cannot follow a
longstanding land-into-trust process administered by the U.S.
Department of the Interior. The ruling, which results from a
suit involving the Narragansett Indian Tribe of Rhode Island,
is at odds with many tribal, federal and legal understandings
of the Indian Reorganization Act.
Tribal and federal lawyers said the decision will likely lead
to legal questions over the validity of all tribal lands taken
into trust by the DOI for tribes since the IRA was passed in
1934.
The decision could result in several states filing lawsuits to
gain lands that have been taken into trust for dozens of
tribes recognized after 1934.
In Carcieri, Rhode Island did not want the
Narragansett Tribe, recognized in 1983, to be able to utilize
31 acres of land placed into trust by the interior. The tribe
said it wanted to use the land to create a housing
development, but state officials expressed concern that it
could pursue a casino in the future.
The state originally sued the interior to try to get a court
to find that the department had no legal authority to place
land into trust because the tribe wasn’t recognized in 1934.
Until the Supreme Court’s decision, the state’s effort had
been unsuccessful, as a federal judge and the 1st Circuit
Court of Appeals had made previous rulings favoring the tribe.
But in a 6-3 vote, handed down Feb. 24, the Supreme Court said
the Interior Department cannot acquire land for the tribe
because it didn’t gain federal recognition until 1983.
“Because the record in this case establishes that the
Narragansett Tribe was not under federal jurisdiction when the
IRA was enacted, the [interior] secretary does not have the
authority to take the parcel at issue into trust,” Justice
Clarence Thomas wrote in the court’s majority opinion.
Federal and tribal lawyers had argued that the IRA is
applicable to all tribes, including those recognized in 1934
and those recognized in ensuing years.
State lawyers argued that the use of the term “now under
federal jurisdiction” in section 19 of the IRA meant that the
Congress of 1934 intended the land-into-trust process to apply
to tribes recognized federally only at the time of the law’s
passage.
The justices ended up agreeing with the state’s argument,
saying in the majority opinion that “the term ‘now under
federal jurisdiction'. &hellip unambiguously refers to those
tribes that were under federal jurisdiction when the IRA was
enacted in 1934.”
The majority opinion found that “Congress expressly drew into
the statute contemporaneous and future events by using the
phrase ‘now or hereafter.’”
The court also rejected interior arguments that relied on
statutory provisions beyond the IRA itself to support the
department placing land into trust for tribes recognized after
1934.
The ruling, while negative for tribes, was not entirely
unexpected.
After hearing oral arguments in November, Richard Guest, a
legal expert with the Native American Rights Fund, said he was
“very pessimistic” that the court would rule with positive
tribal prospects in mind. NARF had participated in the case by
developing an amicus brief strategy in support of the
interior.
“I simply do not see five justices [a majority] holding in
favor of Indian tribes in this case,” Guest said at the time.
As the court has gained more conservative members in recent
years, it has tended to clamp down on tribal rights, lawyers
have said.
In anticipation of a negative ruling in this case, some legal
experts have already suggested remedies.
Matthew L.M.. Fletcher, director of the Indigenous Law &
Policy Center at Michigan State University, said after oral
arguments that tribes could go to Congress to request members
to define “now” as explicitly meaning tribes recognized in
1934 and beyond.
“I think it would be pretty easy to just do a technical
amendment to the Indian Reorganization Act,” Fletcher said at
the time. “Get rid of the phrase ‘now under federal
jurisdiction.’ That’s all you’ve got to do.”
Still, some legal experts have noted that for a congressional
fix to occur, a burden is placed on tribes to get positive
legislation action moved in a timely manner.
Guest posited that Rhode Island and other states could also
decide to go to Congress to try to get members to narrowly
define “now” as applying to only tribes recognized when the
law was passed.
The full Supreme Court ruling is available
online.
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