Order Code RL34521
Carcieri v. Kempthorne: Whether theSalazar: The Secretary of
the Interior May Acquire Not Acquire Trust Land
for the Narragansett
Indian Tribe Trust Land Which is Not Subject to
Rhode Island’s Civil and Criminal Jurisdiction
June 3, 2008
M. Maureen Murphy
Legislative Attorney
American Law Division
Carcieri v. Kempthorne: Whether the Secretary of the
Interior May Acquire for the Narragansett Indian Tribe
Trust Land Which is Not Subject to Rhode Island’s Civil
and Criminal Jurisdiction
Summary
Carcieri v. Kempthorne (No. 07-526) represents the latest in a series of
jurisdictional contests over tribal lands in Rhode Island. In this case, the Supreme
Court will consider the Secretary of the Interior’s (SOI) authority to take into trust
for the benefit of the Narragansett Indian Tribe (Tribe) and, therefore, generally free
of state civil and criminal jurisdiction, a parcel of land outside of the Tribe’s current
reservation. The present reservation consists of lands, which the Rhode Island Indian
Claims Settlement Act of 1974 (RIICSA) designated as “settlement lands,” subjected
to Rhode Island civil and criminal jurisdiction.
RIICSA does not explicitly address the possibility that lands other than the
“settlement lands” could be placed in trust; nor does it specify what jurisdictional
arrangement should apply should that occur. The two issues before the Supreme
Court are: (1) whether the authority under which the SOI has agreed to acquire the
land, 25 U.S.C. § 465, a provision of the Indian Reorganization Act of 1934, covers
trust acquisitions by a tribe not recognized by the Department of the Interior in 1934
and (2) whether the trust acquisition violated the terms of RIICSA. A sharply divided
U. S. Court of Appeals for the First Circuit, sitting en banc, ruled in favor of the trust
acquisition with the majority relying predominantly on statutory construction.
Dissents, however, criticized this method of resolving the case as mechanical and
emphasized the fact that permitting the trust acquisition and the consequent
elimination of Rhode Island jurisdiction over the land would directly conflict with
the overriding purpose of RIICSA and the State’s bargained-for-objective in agreeing
to the settlement–ending all Indian claims to sovereign authority in Rhode Island.
This report will be updated based on judicial or legislative developments.
Contents
Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
District Court Decision . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Appellate Court Rulings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Potential Impact . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Carcieri v. Kempthorne: Whether the
Secretary of the Interior May Acquire for the
Narragansett Indian Tribe Trust Land Which
is Not Subject to Rhode Island’s Civil and
Criminal Jurisdiction
Background
Carcieri v. Kempthorne1 represents the latest in a series of cases2 in which the
State of Rhode Island and the Narragansett Indian Tribe (Tribe) have contested
jurisdiction over tribal lands. In this case, the Supreme Court has agreed to consider
the Secretary of the Interior’s (SOI) authority to take into trust a parcel of land for the
benefit of the Tribe. The parcel involved is outside of the Tribe’s current reservation
and, should it be acquired by the SOI in trust for the Tribe, it would be generally free
of state civil and criminal jurisdiction. The Tribe’s current reservation consists of
lands designated as “settlement lands” under the Rhode Island Indian Claims
Settlement Act of 1974 (RIICSA or Settlement Act).3 Under the terms of RIICSA,
these “settlement lands” are subject to Rhode Island civil and criminal jurisdiction
and, therefore, not available for gaming under the Indian Gaming Regulatory Act
(IGRA).4
Carcieri v. Kempthorne involves the interaction of two federal statutes: (1)
RIICSA, which settled land claims of the Narragansett Indian Tribe (Tribe), and (2)
1
497 F. 3d 15 (1st Cir. 2007), cert. granted, 76 U.S.L.W. 3454 (U.S. February 25, 2008)
(No. 07-526).
2
State of Rhode Island v. Narragansett Indian Tribe, 19 F. 3d 685 (1st Cir. 1994), cert.
denied, 513 U.S. 919 (holding that because the Rhode Island Indian Claims Settlement Act
(RIICSA) left the Tribe with some governmental authority over tribal lands designated as
“settlement lands” and subsequently taken into trust, gaming under the Indian Gaming
Regulatory Act (IGRA) was available to the Tribe even though RIICSA subjected the
Tribe’s “settlement lands” to Rhode Island civil and criminal jurisdiction); and Narragansett
Indian Tribe v. Rhode Island, 449 F. 3d 16 (1st Cir. 2006) (upholding Rhode Island’s
execution of a search warrant on settlement land to enforce state cigarette tax laws).
3
4
P.L. 95-395, 92 Stat. 83, 25 U.S.C. §§ 1701-1716.
P.L. 100-497, 101 Stat. 2467, 25 U.S.C. §§ 2701 - 2721. In Narragansett Indian Tribe v.
National Indian Gaming Commission, 158 F. 3d 1335 (1st Cir. 1998), the court upheld a
1996 amendment to RIICSA, known as the Chafee Amendment. It made IGRA inapplicable
to the “settlement lands.” P.L. 104-208, Div. A, Tit. I., § 10(d) [Tit. III, § 330], 110 Stat.
3009-227, 25 U.S.C. 1708(b).
CRS-2
25 U.S.C. § 465, a provision of the Indian Reorganization Act of 1934 (IRA).5
RIICSA embodies the terms of the Joint Memorandum of Understanding Concerning
Settlement of the Rhode Island Indian Land Claims (JMOU)6 executed on February
28, 1978, by the Tribe, the State of Rhode Island (State), and private landowners; it
ratifies the settlement ending a lawsuit brought by the Narragansett Indian Tribe
(Tribe) claiming land in Charlestown, Rhode Island.7 The Tribe had claimed that
land transfers covering hundreds of pieces of property and dating to 1880 violated the
Indian Trade and Intercourse Act, 25 U.S.C. § 177, which, requires federal approval
for any land conveyance by an Indian tribe.8 The Settlement Act included tribal
relinquishment of land claims; federal ratification of earlier land transactions;
establishment by the State of an Indian-owned, non-business corporation, the
“Narragansett Tribe of Indians”; a settlement fund with which private lands were to
be purchased and transferred to the corporation; the transfer of 900 acres of state land
to the corporation for the Tribe; designation of the transferred lands as “settlement
lands”; and a jurisdictional provision providing for state jurisdiction on the
“settlement lands.”9 The Settlement Act was the necessary federal ratification of the
JMOU. Under the federal legislation,10 Rhode Island was to set up a corporation to
hold the land initially, for the Tribe’s benefit, with the possibility that subsequently
the Tribe would gain recognition as an Indian tribe through the Department of the
Interior’s (DOI) federal acknowledgment process.11 The Settlement Act contained
language extinguishing all Indian claims to land in Rhode Island once the State had
enacted legislation creating the Indian corporation and conveying to that corporation
settlement lands.12 The language extinguishing claims is broad but it does not
explicitly address subsequent trust acquisitions.13
5
25 U.S.C. §§ 461 et seq.
6
H.R. Rep. 95-395, Appendix, at 25; 1978 U.S. Code Cong. & Ad. News 1962.
7
Narragansett Tribe of Indians v. Southern Rhode Island Land Development. Corp., 418
F. Supp.798 (D.R.I. 1976), and Narragansett Indian Tribe v. Murphy, 426 F. Supp. 132
(D.R.I. 1976).
8
Narragansett Tribe of Indians v. Southern Rhode Island Land Development. Corp., 418
F. Supp.798 (D.R.I. 1976), and Narragansett Indian Tribe v. Murphy, 426 F. Supp. 132
(D.R.I. 1976).
9
H.R. Rep. 95-395, 95th Cong., 2d Sess. 5-7 (1978); 1978 U.S. Code Cong. & Ad. News
1948, 1949-1950.
10
25 U.S.C. § 1706(a).
11
25 C.F.R., Part 83, “Procedures for Establishing that an American Indian Group Exists as
an Indian Tribe.”
12
13
25 U.S.C. § § 1705, 1706, and 1712.
RIICSA, 25 U.S.C. § 1712(a)(1), ratified all previous transfers from any Indian tribe of
any land in Rhode Island outside of Charlestown. Aboriginal title, to the extent that any it
was involved in such transfer, was also extinguished. 25 U.S.C. § 1712(a)(2). Specifically:
“all claims against ... any State or subdivision thereof ... by any such Indian, Indian nation,
or tribe of Indians, arising subsequent to the transfer and based upon any interest in or rights
involving such land or natural resources (including but not limited to claims for trespass
damages or claims for use and occupancy), shall be regarded as extinguished as of the date
(continued...)
CRS-3
Under the IRA, 25 U.S.C. § 465, the SOI is authorized to take land into trust
“for the purpose of providing land for Indians.” Once the trust acquisition has been
completed and title to the land passes to the United States in trust for the benefit of
an Indian tribe, in the absence of contrary federal law, the land becomes Indian
country, subject to the Indian country criminal law jurisdiction of the United States
and to the civil jurisdiction of the governing tribe.14
One of the issues in the litigation is the IRA definitions of “Indians” and “tribe.”
These terms are defined in such a way as to raise a question as to whether a tribe,
such as the Narragansett Indian Tribe, which was not federally recognized in 1934,
may avail itself of the land-into-trust provision. Under section 465, the SOI is
authorized to take land into trust “for the purpose of providing land for Indians.”
“Indians” is defined to “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.”15 The same provision states that “tribe” is to “be
construed to refer to any Indian tribe, organized band, pueblo, or the Indians residing
on one reservation.”16
RIICSA does not explicitly clarify the matter. It did not set up a reservation for
the Tribe; it did, however, designate certain lands, as “settlement lands,”17 which
ultimately became the Tribe’s reservation, and specified that the State would have
virtually full jurisdiction over them.18 RIICSA did not provide federal recognition
13
(...continued)
of the transfer.” 25 U.S.C. § 1712(a)(3).
14
“Indian country” is defined in 18 U.S.C. § 1151. The Supreme Court has held that Indian
country has two essential characteristics: (1) the federal government must have set aside the
land for Indians and (2) the land must be under federal superintendence. Alaska v. Native
Village of Venetie Tribal Government, 522 U.S. 520, 530 (1998). Federal Indian country
criminal jurisdictional statutes include (1)18 U.S.C. § 1152, which applies federal enclave
criminal law within Indian country except with respect to “offenses committed by one Indian
against the person or property of another Indian [or] to any Indian committing any offense
in Indian country who has been punished by the local law of the tribe” and (2) various
federal statutes specific to Indian country. Among the latter are statutes punishing: major
crimes (18 U.S.C. § 1153); liquor offenses (18 U.S.C. § 1161); and gambling offenses (18
U.S.C. § 1166). Tribes generally have civil jurisdiction over their lands and their members.
See, Montana v. United States, 450 U.S. 544 (1981). Under 25 C.F.R. § 1.4, state and local
laws and regulations, including zoning laws, are declared to be inapplicable to trust property
belonging to an Indian tribe unless the Secretary of the Interior (SOI) determines to adopt
such laws in a specific geographic area as determined “to be in the best interest of the Indian
owner or owners in achieving the highest and best use of such property.” 25 C.F.R. § 1.4(b).
15
25 U.S.C. § 479 (emphasis added).
16
25 U.S.C. § 479.
17
25 U.S.C. §§ 1702(d), (e) and (f).
18
“Except as otherwise provided in this subchapter, the settlement lands shall be subject to
the civil and criminal laws and jurisdiction of the State of Rhode Island.” 25 U.S.C. §
(continued...)
CRS-4
for the Tribe, i.e., establish it as an Indian Tribe entitled to federal services for
Indians. It did, however, envision the possibility that tribal status would be
acknowledged administratively by the SOI.19 Nonetheless, it contains no explicit
provision as to the ability of the Tribe, following recognition by the SOI, to acquire
further trust land in Rhode Island. Essentially, it makes no express reference to
section 465 or to the Secretary’s authority to take land into trust. The case, thus,
involves interpretation of both section 465 and RIICSA.
After the Tribe received federal recognition in 1983,20 it successfully sought to
have the settlement lands transferred from the corporation to the Tribe,21 and taken
into trust pursuant to 25 U.S.C. § 465, and proclaimed an Indian reservation under
25 U.S.C. § 467.22 Subsequently, the Tribe applied to have the parcel at issue in this
litigation taken into trust. It is a 31-acre tract which had been deeded to the Tribe to
be placed in trust to provide housing for tribal members. The BIA agreed to take the
land into trust on March 6, 1998, in determination, which was upheld by the DOI’s
Board of Indian Appeals on June 29, 2000,23 and which is the subject of the current
litigation.
18
(...continued)
1708(a). RIICSA also contains a provision providing limited authority for the tribal
corporation “to establish its own regulations concerning hunting and fishing on the
settlement lands, which need not comply with regulations of the State....” 25 U.S.C. §
2516(a)(3). There have been two amendments to RIICSA, P.L. 96-601, § 5(a), 94 Stat.
3498, 25 U.S.C. § 1715, enacted in 1980, exempted the settlement lands from federal, state
and local taxation when held by the Tribal corporation. P.L. 104-208, Div. A, Tit. I, §
101(d) [Tit. III, § 330], 110 Stat. 3009-227, enacted in 1996. The latter precludes gaming
under the Indian Gaming Regulatory Act (IGRA) on the settlement lands. It followed the
ruling, in State of Rhode Island v. Narragansett Indian Tribe, 129 F. 3d 685 (1994), cert.
denied, 513 U.S. 919. In that case, the court ruled that the Tribe could conduct gaming on
the settlement lands. Although RIICSA accorded civil and criminal jurisdiction to the State,
the Tribe exercised sufficient governmental authority over the settlement lands to satisfy the
requirement under IGRA that gaming be on trust lands “over which an Indian tribe exercises
governmental power.” 25 U.S.C. § 2703(4)(B).
19
Section 1708(c) of Title 25, U.S.C., reads, in pertinent part: “... if the Secretary
subsequently acknowledges the existence of the Narragansett Tribe of Indians, then the
settlement lands may not be sold, granted, or otherwise conveyed or leased to anyone other
than the Indian Corporation, and no such disposition of the settlement lands shall be of any
validity in law or equity, unless the same is approved by the Secretary....” See also, Joint
Memorandum of Understanding (JMOU), § 16, H.R. Rep. 95-1453, 95th Cong. 2d Sess. 27
(1978);1978 U.S.C.C.A.N. 1948, 1964.
20
48 Fed Reg. 6177.
21
R.I. Gen. Laws §§§ 37-18-12 through 37-18-14 (1985).
22
Apparently, this occurred on September 12, 1988, see, Town of Charlestown, Rhode
Island v. Eastern Area Director, Bureau of Indian Affairs, (IBIA 89-53A), 18 IBIA 67; 1989
I.D. LEXIS 29 (December 5, 1989).
23
Charlestown v. Eastern Area Director, Bureau of Indian Affairs, (IBIA 98-88-A and 9889-A), 35 IBIA 93 (2000).
CRS-5
District Court Decision
In Carcieri v. Norton,24 the district court upheld the SOI’s decision to take the
31-acre tract into trust. The court ruled that SOI had authority under the IRA to take
the land into trust for the Tribe. It read the reference in the IRA to “members of any
recognized Indian tribe now under Federal jurisdiction”25 as covering the
Narragansett Indian Tribe by finding the Tribe to have been under federal jurisdiction
in 1934 even though it was not formally recognized until 1983. The court reasoned
that because the Tribe’s existence from 1614 was not in doubt, whether or not it was
recognized, it was a tribe and, thus, under federal supervision.26
At the district court level, the State raised three arguments based on the RIICSA:
(1) the trust acquisition is contrary to the purposes of RIICSA because it results in
expansion of tribal jurisdiction and contraction of state authority; (2) RIICSA
specifically precludes any additional trust acquisition; and (3) since the parcel at issue
was within the area claimed in the litigation settled by RIICSA, trust acquisition of
the particular parcel is precluded by the extinguishment of aboriginal title in RIICSA
and in the Tribe’s renunciation of aboriginal claims in the underlying JMOU. In
finding against the State, the district court ruled that RIICSA provided no explicit
guidance on treatment of trust land applications by the Tribe after federal recognition
were to be treated. It found that RIICSA’s jurisdictional provisions are confined to
the settlement land and that RIICSA’s extinguishment of the Tribe’s aboriginal
claims covered only claims with respect to previous transfers of lands. The court
took a narrow view of RIICSA’s purpose: clearing titles encumbered by the lawsuit
that it settled and in no way addressing the prospect of future land acquisitions by the
Tribe. According to the court, the fact that trust acquisition may result in diminished
state sovereignty over the parcel does not form a basis for construing RIICSA to
prevent the trust acquisition but the basis for an argument for Congress to amend
RIICSA.27
Appellate Court Rulings
There are three decisions of the U.S. Court of Appeals for the First Circuit, two
of which have been withdrawn but are worth attention for their reasoning. A threejudge panel, in an opinion subsequently withdrawn, ruled in favor of the trust
24
290 F. Supp. 2d 167 (D.R.I. 2003).
25
25 U.S.C. § 479 (emphasis supplied).
26
The court cited Final Determination for Federal Acknowledgment of the Narragansett
Indian Tribe of Rhode Island, 48 Fed. Reg. 6177, 6178 (February 10, 1983), as authority for
attributing to the Tribe “‘a documented history dating from 1614.’” Carcieri v. Norton, 290
F. Supp. 2d 167, 181.
27
The court stated: “[a]lthough [RIICSA provisions] reveal an intent to resolve all claims,
whether for possession or damages, that are premised upon the Narragansetts’ assertions of
aboriginal right, the provisions do not reveal an intent to otherwise restrict the tribe’s legal
rights and privileges, including those benefits which became available to the tribe upon
attaining federal acknowledgment.” Id. at 183.
CRS-6
acquisition but did not address the jurisdictional question.28 The panel found that
section 465 provided the SOI with authority to take land into trust for the Tribe in
spite of the fact that the Tribe had not been federally recognized in 1934. It rejected
Rhode Island’s arguments that, for section 465 to apply, a tribe must have been both
recognized and subject to federal jurisdiction in 1934. The opinion focused on the
interaction between section 465, which authorizes the SOI to take land into trust “for
Indians,” and section 479, which defines “Indians” as “all persons of Indian descent
who are members of any recognized Indian tribe now under Federal jurisdiction.”29
The court chose to defer to DOI’s “longstanding interpretation of the term ‘now’” as
meaning “today” rather than “1934”30 It viewed this interpretation as in accord with
the Supreme Court’s interpretation of the statute in United States v. John31 and
buttressed by the Federally Recognized Indian Tribe List Act32 and a 1994
amendment to the IRA.33
On rehearing,34 the panel reiterated its earlier rationale on the IRA issue and
squarely addressed the jurisdictional issue. A majority of the panel, relying on a
principle of statutory construction sometimes used to interpret Indian affairs
legislation,35 rejected Rhode Island’s arguments that, taken together, certain
provisions of the Settlement Act precluded any tribe from exercising sovereignty
over land in Rhode Island except to the extent specified in RIICSA. The majority of
the panel read the Settlement Act as crystal clear in settling claims related to prior
land transactions but ambiguous in failing to mention future land transfers. The
28
Carcieri v. Norton, 398 F. 3d 22 (1st Cir. 2005).
29
Emphasis added.
30
Id. at 30.
31
437 U.S. 634 (1978). In this case the Court ruled that the IRA applied to the Mississippi
Choctaws, whose tribal existence had been extinguished in 1831 by treaty, because they met
the other prong of the IRA test–having one-half Indian blood. In reaching this decision,
however, the Court inserted in brackets [in 1934] as a substitution for “now” when it quoted
from the definition of Indians in the IRA. Id. at 650. Rhode Island has characterized this
as “the applicable statutory test necessary for a tribe, such as the Narragansetts, to be
included in the IRA absent a later act of Congress.” Cachieri v. Kempthorne (07-526),
Petition for Writ of Certiorari 15.
32
P.L. 103-454, 108 Stat. 4791 (1994), requiring SOI to maintain a list of federally
recognized tribes “eligible for the special programs and services provided by the United
States to Indians because of their status as Indians.” 25 U.S.C. § 479a-1(a).
33
P.L. 103-263, 108 Stat, 707, 25 U.S.C. § 476(f). This statutes forbids federal departments
or agencies from issuing any regulation which “classifies, enhances, or diminishes the
privileges and immunities available to the Indian tribe relative to other federally recognized
tribes by virtue of their status as Indian tribes.”
34
Carcieri v. Norton, 423 F.3d. 45 (1st Cir. 2005) (rehearing en banc granted, opinion
withdrawn; withdrawn for West reporter publication at request of the court) (available in
Westlaw, Allfeds file, May 30, 2008).
35
This principle requires that “statutes are to be construed liberally in favor of the Indians
with ambiguous provisions interpreted to their benefit.” Chickasaw Nation v. United States,
534 U.S. 84, 93-94 (2001); McClanahan v. Arizona State Tax Commission, 411 U.S. 164,
174 (1973); Choate v. Trapp, 224 U.S. 665, 675 (1912).
CRS-7
majority, relying on the canon of construction, resolved this ambiguity in favor of the
Narragansetts: “Once the tribe received federal recognition in 1983 ... it gained the
same benefits as other Indian tribes, including the right to apply to have land taken
into trust pursuant to § 465.”36
In a dissent, however, Circuit Judge Howard, took the view that the intent of the
parties to the Settlement Act was that Rhode Island laws should apply throughout
Rhode Island and that the language in the JMOU and in RIICSA could fairly be
interpreted to that end.37
On rehearing, en banc, a divided First Circuit ruled on both the IRA and
jurisdictional issues. It found that the definition of Indian in 25 U.S.C. § 479, with
its use of the phrase “now under federal jurisdiction,” is “sufficiently ambiguous” to
implicate what is known as the Chevron test.38 This involves a two-part examination
of statutory language: (1) If Congress has directly spoken on the precise question at
issue and its intent is clear and unambiguous, courts must defer to that interpretation
of the law. (2) If the meaning or intent of a statute is silent or ambiguous, courts must
give deference to the agency's interpretation of the law if it is based on a permissible
and reasonable construction.39 The court found, by examining text, context, and
legislative history, that the IRA is ambiguous on the question of whether trust
acquisitions are available for tribes not recognized in 1934.40 It, therefore, moved to
the second prong of the Chevron test and found the Secretary’s interpretation to be
reasonable and consistent with the statute.41
36
423 F. 3d. 45, at 62.
37
According to the dissent:
It is not surprising that the Settlement Act does not refer explicitly to the
preservation of State jurisdiction outside of the Settlement Lands. As sovereign,
Rhode Island already had jurisdiction outside of the Settlement Lands, and the
Settlement Act extinguished any potential competing ‘Indian’ claims to that land.
The only land about which there might have been doubt was the Settlement
Lands, and as to that land, State jurisdiction was expressly preserved.
*****
In the circumstances of this case, holding that Rhode Island is divested of our
jurisdiction by the Secretary taking into trust the adjacent parcel that was part of
the original disputed land upsets the fairly expressed expectations of the parties.
It also produces an unwarranted anomalous relationship between the Settlement
lands and the after acquired parcel. 423 F. 3d 45, 72-73. (Howard, J. dissenting).
38
The test was articulated by the Supreme Court in Chevron U.S.A. v. Natural Resources
Defense Council, 467 U.S. 837 (1984).
39
Id. at 843.
40
497 F. 3d 15, 26 (“there is ambiguity as to whether to view the term ‘now’ as operating
at the moment Congress enacted it or at the moment the Secretary invokes it.”). The court
also raised the question of whether the word “now” was meant to restrict the applicability
of IRA temporally to individual Indians who were under federal supervision in 1934, rather
than tribes.
41
In this context, the court rejected Rhode Island’s arguments that the SOI had changed
(continued...)
CRS-8
On the jurisdictional issue, the en banc majority ruled against the State’s basic
arguments principally by characterizing them as requiring a finding that RIICSA
implicitly repealed the Secretary’s authority to take land into trust for the Tribe. It
cited Supreme Court authority requiring a high standard for repeals by implication.42
It found “nothing in the text of the Settlement Act that clearly indicates an intent to
repeal the Secretary’s trust acquisition powers under IRA, or that is fundamentally
inconsistent with those powers.”43 The opinion also identified support for its position
in the existence of other statutes settling Indian land claims which did have
provisions clearly limiting SOI trust acquisition authority.44 From this it reasoned,
the Congress knew how to preclude future trust acquisitions and clearly did not
choose to use this approach in RIICSA.
The court turned down as not within its power the State’s request that, if the
court were to uphold the trust acquisition, it should require the SOI to limit the
Tribe’s jurisdiction to that specified for the settlement lands, i.e., with Rhode Island
retaining civil and criminal jurisdiction. The court acknowledged that such a
directive would preserve what the State, in good faith, believed to have been the
essential component of its bargain in agreeing to the JMOU and to RIICSA, i.e.,
maintaining State sovereignty. It suggested, however that the power to limit
jurisdiction over the newly acquired land was the prerogative of Congress, not the
courts or the SOI.
The two dissenting opinions raised arguments that are likely to be advanced by
the State in its Supreme Court merits brief. Circuit Judge Howard would have found
that (1) the parties to the JMOU and Congress, in enacting RIICSA, intended to
resolve all Indian claims in Rhode Island past, present, and future; (2) RIICSA
contains broad language which maybe fairly interpreted as impliedly and partially
repealing SOI authority under the IRA to take land into trust for the Tribe; (3) the fact
that other settlement acts included provisions limiting jurisdiction, should there be
subsequent approvals of trust acquisitions, is irrelevant because RIICSA clearly
contemplated that there would be no trust acquisition other than that of the settlement
lands; and (4) to read RIICSA as if it did not preclude subsequent jurisdictional
adjustments outside of the settlement lands would be “antithetical to Congress’
intent” and “absurd.”45 Senior Circuit Judge Selya’s dissent characterizes the
majority’s construction of the RIICSA as “wooden” and “too narrow,” and the result,
41
(...continued)
position on the issue over the years, noting that no application for trust acquisition had been
rejected because the applicant tribe had not been recognized in 1934. 497 F. 3d 15, 31.
42
The court cited Morton v. Mancari, 417 U.S. 535 (1974), and Posadas v. National City
Bank of New York, 296 U.S. 497 (1936).
43
497 F. 3d. 15, 37.
44
The Maine Indian Claims Settlement Act (MICSA), for example, provides that “[e]xcept
for the provisions of the [MICSA], the United States shall have no other authority to acquire
lands or natural resources in trust for the benefit of Indians ... in ... Maine.” 25 U.S.C. §
1724(e).
45
497 F. 3d. 15, 49-50 (Howard, Circuit J., dissenting).
CRS-9
“absurd.”46 Judge Selya argued that RIICSA must not be divorced from its historical
context.47
Potential Impact
The Court may choose to resolve this case as a matter of statutory construction.
It may elect to apply canons favoring a liberal interpretation of statutes providing
Indian benefits and rigorous standards for repeals by implication; on the other hand,
it may examine RIICSA from the point of view of the bargain that the parties
contemplated and, as if reforming a contract, interpret the statute to preserve the
essentials of that agreement, i.e., limit tribal jurisdiction and preserve state
sovereignty. However the Court rules, there are likely to be unexpected and
unpredictable consequences for other tribes, other lands, and other issues.
A decision favoring SOI authority to take land into trust for newly recognized
tribes would maintain the status quo. If the Court upholds the First Circuit on the
IRA issue, the SOI would be able to continue to acquire land in trust for newly
acknowledged or recognized tribes, absent an express statutory restriction specific
to a particular to the tribe or land. The contrary decision, while not likely to
jeopardize lands already held in trust,48 would mean that newly acknowledged tribes
would be unable to acquire any trust land without further legislation.49
If the Court rules that RIICSA is not a bar to the trust acquisition, the
Narragansett Indian Tribe would acquire land primarily subject to federal and tribal
jurisdiction and presumably eligible for gaming under IGRA since RIICSA’s
prohibition on gaming specifies “settlement lands.”50 There would also be the
46
497 F. 3d 15, 51-5 (Selya, J., dissenting).
47
“The Settlement Act, when taken together with the extinguishment of all Indian claims
referable to lands in Rhode Island, the Tribe’s surrender of its right to an autonomous
enclave, and the waiver of much of its sovereign immunity ... suggests with unmistakable
clarity that the parties intended to fashion a broad arrangement that preserved the State’s
civil, criminal, and regulatory jurisdiction over any and all lands within its borders.” Id. 51.
48
Under Quiet Title Act, suits contesting title to Indian trust lands may not be entertained
by the courts. 28 U.S.C. § 2409a.
49
This would seemingly conflict with other statutes that assume that one of the
consequences of tribal acknowledgment is the ability to acquire trust land. See, e.g., 25
U.S.C. § 2719(b)(1)(B)(iii). DOI regulations, in existence since 1980, which set forth the
land acquisitions procedures and policies, do not preclude trust acquisitions for newly
acknowledged tribes. See, e.g., 25 C.F.R., Part 151. Under 25 C.F.R. § 151.2(b), the SOI
may take land into trust for “any Indian tribe, band, nation, pueblo, community, rancheria,
colony, or other group of Indians ... which is recognized by the Secretary as eligible for the
special programs and services from the Bureau of Indian Affairs.”
50
25 U.S.C. § 1708(b).
CRS-10
possibility that tribes subject to jurisdictional limitations in other settlement
legislation would test their ability to extend their sovereignty.51
Whether the impact of a ruling against the Tribe on the RIICSA issue would
have consequences beyond Rhode Island depends on the rationale of the decision.
If the Court finds a textual basis for holding that RIICSA indicates that Congress
intended to oust tribal jurisdiction in Rhode Island for all times by the breadth of the
language extinguishing claims, ramifications outside of the facts of the case are not
likely. If the decision rests on the extinguishment of aboriginal title in RIICSA, its
effect might reach beyond the borders of Rhode Island and the Narragansett Tribe.
Were the Court to find that by extinguishing tribal aboriginal title Congress
foreclosed any subsequent trust acquisition or reassertion of jurisdiction, there might
be a rash of challenges to the authority of other Indian tribes which have reacquired
and placed into trust land to which their aboriginal title had been extinguished.
51
This seems to be one of the principal concerns of the states submitting an amicus brief in
support of Rhode Island’s petition for certiorari. Carcieri v. Kempthorne (No. 07-526),
Brief of States of Alabama, Alaska, Arkansas, Connecticut, Florida, Idaho, Illinois, Iowa,
Kansas, Massachusetts, Missouri, North Dakota, Oklahoma, Pennsylvania, South Dakota,
and Utah, as Amici Curiae in Support of Petitioners. They argue that RIICSA contains
provisions similar to those in several other settlement acts, but do not cite the specifics. Id.
at 13. Indian Tribe Under
25 U.S.C. § 465 Because That Statute Applies
to Tribes “Under Federal Jurisdiction” in 1934
M. Maureen Murphy
Legislative Attorney
April 15, 2011
Congressional Research Service
7-5700
www.crs.gov
RL34521
CRS Report for Congress
Prepared for Members and Committees of Congress
Carcieri v. Salazar
Summary
In Carcieri v. Salazar, ___ U.S. ___, 129 S.Ct. 1058 (2009), the U.S. Supreme Court ruled that a
1934 statute provides no authority for the Secretary of the Interior (SOI) to take land into trust for
the Narragansett Indian Tribe (Tribe) because the statute applies only to tribes under federal
jurisdiction when that law was enacted. Although the case involves only a small parcel of land in
Rhode Island, the reach of the decision may be much broader because it relies on the major
statute under which the SOI acquires land in trust for the benefit of Indians. The decision appears
to call into question the ability of the SOI to take land into trust for any recently recognized tribe
unless the trust acquisition has been authorized by legislation other than the 1934 Indian
Reorganization Act (IRA) or the tribe can show that it was “under Federal jurisdiction” in 1934.
The case involves a parcel of land which the SOI had agreed to take into trust for the benefit of
the Tribe, thereby presumably subjecting it to federal and tribal jurisdiction and possibly opening
the way for gaming under the Indian Gaming Regulatory Act. The land is outside the Tribe’s
current reservation, which is subject to the civil and criminal laws of Rhode Island according to
the terms of the Rhode Island Indian Claims Settlement Act of 1974 (RIICSA). RIICSA does not
explicitly address the possibility that lands other than the “settlement lands” could be placed in
trust; nor does it specify what jurisdictional arrangement should apply should that occur. A
sharply divided U.S. Court of Appeals for the First Circuit, sitting en banc, ruled in favor of the
trust acquisition, with the majority relying predominantly on statutory construction of RIICSA.
Dissents, however, criticized this method of resolving the case as mechanical, seeing the
consequent elimination of Rhode Island jurisdiction over the land as directly conflicting with the
overriding purpose of RIICSA and the State’s bargained-for-objective in agreeing to the
settlement—ending all Indian claims to sovereign authority in Rhode Island.
The issues before the Supreme Court were (1) whether the authority under which the SOI has
agreed to acquire the land, 25 U.S.C. § 465, a provision of the IRA of 1934, covers trust
acquisitions by a tribe that was neither federally recognized nor under federal jurisdiction in
1934, and (2) whether the trust acquisition violated the terms of RIICSA. The Supreme Court’s
decision is predicated on the Court’s finding that the definitions of “Indians” and “Indian tribe” in
the 1934 legislation unambiguously restrict the beneficiaries for whom the SOI may take land
into trust to tribes that, in 1934, were “under Federal jurisdiction.” The Court also held that the
Narragansett Indian Tribe was not “under Federal jurisdiction” in 1934. It, therefore, ruled that
the trust was not authorized by the statute and reversed the lower court.
A number of tribes have obtained federal recognition since 1934. As a December 2010 trust
acquisition for the Cowlitz Indian Tribe may indicate, the Department of the Interior (DOI) may
continue to take land into trust for recently recognized tribes, provided an extensive exploration
of the particular history of the tribe and its relations with the federal government demonstrates to
the satisfaction of DOI that the tribe was “under Federal jurisdiction” in 1934. In the 111th
Congress, there were several bills aimed at amending the IRA; none, however, were enacted. A
provision amending the IRA retroactively and ratifying past trust acquisitions was included in the
continuing appropriations bill for FY2011, H.R. 3082, as passed by the House of Representatives.
In the Senate, S. 1703, as reported by the Senate Committee on Indian Affairs (S.Rept. 111-247),
sought to address the issue.
In the 112th Congress, three bills have been introduced: H.R. 1234, H.R. 1291, and S. 676 (which
was reported by the Senate Committee on Indian Affairs on April 7, 2011).
Congressional Research Service
Carcieri v. Salazar
Contents
Background ................................................................................................................................1
Appellate Court Rulings..............................................................................................................4
Supreme Court Decision .............................................................................................................7
Potential Impact and Congressional Reaction ............................................................................ 10
In General........................................................................................................................... 10
Possibility of Factually Establishing That a Newly Recognized Tribe Was “Under
Federal Jurisdiction in 1934”............................................................................................ 10
Congressional Activity in the 111th Congress ....................................................................... 11
Legislation ................................................................................................................................ 13
111th Congress..................................................................................................................... 13
Generally ...................................................................................................................... 13
S. 1703 as Reported by the Senate Committee on Indian Affairs .................................... 13
Section 2727 of H.R. 3082, the Continuing Appropriations, 2011 .................................. 14
112th Congress .................................................................................................................... 15
Generally ...................................................................................................................... 15
S. 676 as Reported by the Senate Committee on Indian Affairs...................................... 15
Contacts
Author Contact Information ...................................................................................................... 16
Congressional Research Service
Carcieri v. Salazar
Background
On February 24, 2009, the U.S. Supreme Court, in Carcieri v. Salazar (No. 07-526),1 ruled that
the Secretary of the Interior (SOI) did not have authority to take land into trust for the
Narragansett Indian Tribe (Tribe) under 25 U.S.C. § 465, a provision of the Indian Reorganization
Act of 1934 (IRA).2 Although the facts of the case involve only a small parcel of land in Rhode
Island, the reach of the decision may be much broader because it rests on the major statute under
which the SOI acquires land in trust for the benefit of Indians and Indian tribes and restricts its
coverage with respect to Indian tribes receiving federal recognition after 1934.
Although the Tribe’s history in Rhode Island predates colonial settlement and includes a
continuing relationship with the State of Rhode Island, the Tribe’s formal relationship with the
federal government was found by the Court to have been established in 1983, after enactment of
the Rhode Island Indian Claims Settlement Act of 1978 (RIICSA).3 Federal recognition of the
Tribe occurred with the approval4 of the Tribe’s petition for inclusion on the Department of the
Interior (DOI) “List of Indian Entities Recognized and Eligible To Receive Services From the
United States Bureau of Indian Affairs”5 under the DOI “Procedures for Establishing that an
American Indian Group Exists as an Indian Tribe.”6 Thereafter, the Tribe succeeded in having the
SOI place in trust the tribal lands that RIICSA designated as “settlement lands,” subject to the
civil and criminal jurisdiction of the State of Rhode Island (State)7 rather than under the laws
which apply under the “Indian country” jurisdiction of the United States.8
The dispute with the State began in 1991 when the Tribe’s housing authority purchased 31 acres
adjacent to the “settlement lands” and asserted that the land was free of state jurisdiction. After
losing on that claim, 9 the Tribe applied to the SOI to have the land taken into trust and received a
favorable determination, which has been upheld by the Interior Board of Indian Appeals10 and by
both the federal trial11 and appellate12 courts. A sharply divided U.S. Court of Appeals for the
First Circuit, sitting en banc, ruled in favor of the trust acquisition, with the majority relying
1
___ U.S. ___, 129 S. Ct. 1058 (2009).
Act of June 18, 1934, ch. 576, 48 Stat. 984, 73d Cong., 2d Sess. (1934). According to Cohen’s Handbook of Federal
Indian Law 86 (2005 ed.), the IRA was “the crowning achievement” and “key to the New Deal’s attempt to encourage
economic development, self-determination, cultural pluralism, and the revival of tribalism,” which was “designed to
improve the economic status of Indians by ending the alienation of tribal land and facilitating tribes’ acquisition of
additional acreage and repurchase of former tribal domains.”
3
P.L. 95-395, 92 Stat. 813, 25 U.S.C. §§ 1701-1716, 95th Cong., 2d Sess. (1978).
4
“Final Determination for Federal Acknowledgment of Narragansett Indian Tribe of Rhode Island,”48 Fed. Reg. 6177
(February 10, 1983).
5
See 73 Fed. Reg. 18553 (April 4, 2008) for the most recently promulgated list.
6
25 C.F.R., Part 83.
7
25 U.S.C. §§ 1702(f) and 1708.
2
8
“Indian country,” as defined in 18 U.S.C. § 1151, includes, “all land within the limits of any Indian reservation under
the jurisdiction of the United States Government.” Under the “Indian country” statutes, 18 U.S.C. §§ 1851-1853,
criminal law jurisdiction is allocated among the federal, state, and tribal governments. See infra n. 26.
9
Narragansett Indian Tribe v. Narragansett Elec. Co., 89 F. 3d 908 (1st Cir. 1996).
10
Town of Charlestown, Rhode Island v. Eastern Area Director, Bureau of Indian Affairs, 35 IBIA 93 (2000).
11
Carcieri v. Norton, 290 F. Supp. 2d 167 (D.R.I. 2003).
12
Carcieri v. Kempthorne, 497 F. 3d 15 (1st Cir. (en banc) 2007).
Congressional Research Service
1
Carcieri v. Salazar
predominantly on statutory construction of RIICSA.13 Dissents, however, criticized this method
of resolving the case as mechanical and emphasized the fact that permitting the trust acquisition
and the consequent elimination of Rhode Island jurisdiction over the land would directly conflict
with the overriding purpose of RIICSA and the State’s bargained-for-objective in agreeing to the
settlement—ending all Indian claims to sovereign authority in Rhode Island.
The case represents the latest in a series of cases14 in which the State of Rhode Island and the
Narragansett Indian Tribe have contested jurisdiction over tribal lands. The Tribe’s current
reservation consists of lands designated as “settlement lands” under RIICSA. Under the terms of
RIICSA, these “settlement lands” are subject to Rhode Island civil and criminal jurisdiction and,
therefore, not available for gaming under Indian Gaming Regulatory Act. 15 The Supreme Court
agreed to review the ruling of the appellate court16 on the basis of two issues: (1) whether the IRA
provision covers trust acquisitions by a tribe not recognized by DOI in 1934 or under federal
jurisdiction at that time, and (2) whether the trust acquisition violated the terms of RIICSA.
The case involves the interaction of two federal statutes: (1) RIICSA, which settled land claims of
the Tribe, and (2) 25 U.S.C. § 465, a provision of the IRA of 1934. RIICSA embodies the terms of
the Joint Memorandum of Understanding Concerning Settlement of the Rhode Island Indian Land
Claims (JMOU)17 executed on February 28, 1978, by the Tribe, the State of Rhode Island, and
private landowners; it ratifies the settlement ending a lawsuit brought by the Tribe claiming land
in Charlestown, RI.18 The Tribe had asserted that land transfers covering hundreds of pieces of
property and dating to 1880 violated the Indian Trade and Intercourse Act, 25 U.S.C. § 177,
which requires federal approval for any land conveyance by an Indian tribe. RIICSA required
tribal relinquishment of land claims; federal ratification of earlier land transactions; establishment
by the State of an Indian-owned, non-business corporation, the “Narragansett Tribe of Indians”; a
settlement fund with which private lands were to be purchased and transferred to the corporation;
the transfer of 900 acres of state land to the corporation for the Tribe; designation of the
transferred lands as “settlement lands”; and a jurisdictional provision providing for state
jurisdiction on the “settlement lands.”19 The Settlement Act was the necessary federal ratification
of the JMOU. Under the federal legislation,20 Rhode Island was to set up a corporation to hold the
land initially, for the Tribe’s benefit, with the possibility that subsequently the Tribe would gain
recognition as an Indian tribe through the DOI federal acknowledgment process.21 The Settlement
13
Id.
State of Rhode Island v. Narragansett Indian Tribe, 19 F. 3d 685 (1st Cir. 1994), cert. denied, 513 U.S. 919 (holding
that because RIICSA left the Tribe with some governmental authority over tribal lands designated as “settlement lands”
and subsequently taken into trust, gaming under the Indian Gaming Regulatory Act (IGRA) was available to the Tribe
even though RIICSA subjected the Tribe’s “settlement lands” to Rhode Island civil and criminal jurisdiction); and
Narragansett Indian Tribe v. Rhode Island, 449 F. 3d 16 (1st Cir. 2006) (upholding Rhode Island’s execution of a search
warrant on settlement land to enforce state cigarette tax laws).
15
In Narragansett Indian Tribe v. National Indian Gaming Commission, 158 F. 3d 1335 (1st Cir. 1998), the court
upheld a 1996 amendment to RIICSA, known as the Chafee Amendment. It made IGRA inapplicable to the “settlement
lands.” P.L. 104-208, Div. A, Tit. I., § 10(d) [Tit. III, § 330], 110 Stat. 3009-227, 25 U.S.C. § 1708(b).
16
76 U.S.L.W. 3454 (U.S. February 25, 2008) (No. 07-526).
17
H. Rept. 95-1453, Appendix, at 25; 1978 U.S. Code Cong. & Ad. News 1962.
18
Narragansett Tribe of Indians v. Southern Rhode Island Land Development. Corp., 418 F. Supp.798 (D.R.I. 1976),
and Narragansett Indian Tribe v. Murphy, 426 F. Supp. 132 (D.R.I. 1976).
19
H. Rept. 95-395, 95th Cong., 2d Sess. 5-7 (1978); 1978 U.S. Code Cong. & Ad. News 1948, 1949-1950.
20
25 U.S.C. § 1706(a).
21
25 C.F.R., Part 83, “Procedures for Establishing that an American Indian Group Exists as an Indian Tribe.”
14
Congressional Research Service
2
Carcieri v. Salazar
Act contained language extinguishing all Indian claims to land in Rhode Island once the State had
enacted legislation creating the Indian corporation and conveying to that corporation settlement
lands.22 RIICSA did not provide federal recognition for the Tribe, that is, establish it as an Indian
Tribe entitled to federal services for Indians. It did, however, envision the possibility that tribal
status would be acknowledged administratively by the SOI.23 Nonetheless, it contains no explicit
provision as to the ability of the Tribe, following recognition by the SOI, to acquire further trust
land in Rhode Island. Essentially, it makes no express reference to Section 465 or to the
Secretary’s authority to take land into trust. After the Tribe received federal recognition in 1983,24
it successfully sought to have the settlement lands transferred from the corporation to the Tribe,25
and taken into trust pursuant to 25 U.S.C. § 46526 and proclaimed an Indian reservation under 25
U.S.C. § 467.27
The central issue in the litigation is the IRA definitions of “Indians” and “tribe.” Under Section
465, the SOI is authorized to take land into trust “for the purpose of providing land for Indians.”
“Indians” is defined in another IRA section to “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 ... all other persons of one-half or more Indian blood.”28 That same
provision, 25 U.S.C. § 479, states that “tribe” is to “be construed to refer to any Indian tribe,
organized band, pueblo, or the Indians residing on one reservation.”29
22
25 U.S.C. §§ 1705, 1706, and 1712.
23
Section 1708(c) of Title 25, U.S.C., reads, in pertinent part: “... if the Secretary subsequently acknowledges the
existence of the Narragansett Tribe of Indians, then the settlement lands may not be sold, granted, or otherwise
conveyed or leased to anyone other than the Indian Corporation, and no such disposition of the settlement lands shall be
of any validity in law or equity, unless the same is approved by the Secretary....” See also Joint Memorandum of
Understanding (JMOU), § 16, H. Rept. 95-1453, 95th Cong. 2d Sess. 27 (1978); 1978 U.S.C.C.A.N. 1948, 1964.
24
48 Fed Reg. 6177.
25
R.I. Gen. Laws §§§ 37-18-12 through 37-18-14 (1985).
26
Once the trust acquisition has been completed and title to the land passes to the United States in trust for the benefit
of an Indian tribe, in the absence of contrary federal law, the land becomes Indian country, subject to the Indian country
criminal law jurisdiction of the United States and to the civil jurisdiction of the governing tribe. “Indian country” is
defined in 18 U.S.C. § 1151. The Supreme Court has held that Indian country has two essential characteristics: (1) the
federal government must have set aside the land for Indians and (2) the land must be under federal superintendence.
Alaska v. Native Village of Venetie Tribal Government, 522 U.S. 520, 530 (1998). Federal Indian country criminal
jurisdictional statutes include (1) 18 U.S.C. § 1152, which applies federal enclave criminal law within Indian country
except with respect to “offenses committed by one Indian against the person or property of another Indian [or] to any
Indian committing any offense in Indian country who has been punished by the local law of the tribe” and (2) various
federal statutes specific to Indian country. Among the latter are statutes punishing: major crimes (18 U.S.C. § 1153);
liquor offenses (18 U.S.C. § 1161); and gambling offenses (18 U.S.C. § 1166). Tribes generally have civil jurisdiction
over their lands and their members. See, Montana v. United States, 450 U.S. 544 (1981). Under 25 C.F.R. § 1.4, state
and local laws and regulations, including zoning laws, are declared to be inapplicable to trust property belonging to an
Indian tribe unless the Secretary of the Interior (SOI) determines to adopt such laws in a specific geographic area as
determined “to be in the best interest of the Indian owner or owners in achieving the highest and best use of such
property.” 25 C.F.R. § 1.4(b).
27
Apparently, this occurred on September 12, 1988, see, Town of Charlestown, Rhode Island v. Eastern Area Director,
Bureau of Indian Affairs, (IBIA 89-53A), 18 IBIA 67; 1989 I.D. LEXIS 29 (December 5, 1989).
28
25 U.S.C. § 479 (emphasis added).
29
25 U.S.C. § 479.
Congressional Research Service
3
Carcieri v. Salazar
The district court upheld the SOI’s decision to take the 31-acre tract into trust.30 The court ruled
that the SOI had authority under the IRA to take the land into trust for the Tribe. It read the
reference in the IRA to “members of any recognized Indian tribe now under Federal
jurisdiction”31 as covering the Narragansett Indian Tribe by finding the Tribe to have been under
federal jurisdiction in 1934 even though it was not formally recognized until 1983. The court
reasoned that because the Tribe’s existence from 1614 was not in doubt, whether or not it was
recognized, it was a tribe and, thus, under federal supervision.32
Appellate Court Rulings
There are three decisions of the U.S. Court of Appeals for the First Circuit, two of which have
been withdrawn but are worth attention for their reasoning. A three-judge panel, in an opinion
subsequently withdrawn, ruled in favor of the trust acquisition.33 The panel found that Section
465 provided the SOI with authority to take land into trust for the Tribe in spite of the fact that the
Tribe had not been federally recognized in 1934. It rejected Rhode Island’s arguments that, for
Section 465 to apply, a tribe must have been both recognized and subject to federal jurisdiction in
1934. The opinion focused on the interaction between Section 465, which authorizes the SOI to
take land into trust “for Indians,” and Section 479, which defines “Indians” as “all persons of
Indian descent who are members of any recognized Indian tribe now under Federal
jurisdiction.”34 The court chose to defer to DOI’s “longstanding interpretation of the term ‘now’”
as meaning “today” rather than “1934.”35 It viewed this interpretation as in accord with the
Supreme Court’s interpretation of the statute in United States v. John36 and buttressed by the
Federally Recognized Indian Tribe List Act37 and a 1994 amendment to the IRA.38
On rehearing, 39 the panel reiterated its earlier rationale on the IRA issue and squarely addressed
the jurisdictional issue. A majority of the panel, relying on a principle of statutory construction
30
290 F. Supp. 2d 167 (D.R.I. 2003).
25 U.S.C. § 479 (emphasis supplied).
32
The court cited Final Determination for Federal Acknowledgment of the Narragansett Indian Tribe of Rhode Island,
48 Fed. Reg. 6177, 6178 (February 10, 1983), as authority for attributing to the Tribe “‘a documented history dating
from 1614.’” Carcieri v. Norton, 290 F. Supp. 2d 167, 181.
33
Carcieri v. Norton, 398 F. 3d 22 (1st Cir. 2005).
34
Emphasis added.
35
Id., at 30.
31
36
437 U.S. 634 (1978). In this case the Court ruled that the IRA applied to the Mississippi Choctaws, whose tribal
existence had been extinguished in 1831 by treaty, because they met the other prong of the IRA test—having one-half
Indian blood. In reaching this decision, however, the Court inserted in brackets [in 1934] as a substitution for “now”
when it quoted from the definition of Indians in the IRA. Id., at 650. Rhode Island has characterized this as “the
applicable statutory test necessary for a tribe, such as the Narragansetts, to be included in the IRA absent a later act of
Congress.” Carcieri v. Kempthorne (07-526), Petition for Writ of Certiorari 15.
37
P.L. 103-454, 108 Stat. 4791 (1994), requiring SOI to maintain a list of federally recognized tribes “eligible for the
special programs and services provided by the United States to Indians because of their status as Indians.” 25 U.S.C. §
479a-1(a).
38
P.L. 103-263, 108 Stat, 707, 25 U.S.C. § 476(f). This statute forbids federal departments or agencies from issuing
any regulation which “classifies, enhances, or diminishes the privileges and immunities available to the Indian tribe
relative to other federally recognized tribes by virtue of their status as Indian tribes.”
39
Carcieri v. Norton, 423 F.3d. 45 (1st Cir. 2005) (rehearing en banc granted, opinion withdrawn; withdrawn for West
reporter publication at request of the court) (available in Westlaw, Allfeds file, May 30, 2008).
Congressional Research Service
4
Carcieri v. Salazar
sometimes used to interpret Indian affairs legislation,40 rejected Rhode Island’s arguments that,
taken together, certain provisions of the Settlement Act precluded any tribe from exercising
sovereignty over land in Rhode Island except to the extent specified in RIICSA. The majority of
the panel read RIICSA as crystal clear in settling claims related to prior land transactions but
ambiguous in failing to mention future land transfers. The majority, relying on the canon of
construction, resolved this ambiguity in favor of the Narragansetts: “Once the tribe received
federal recognition in 1983 ... it gained the same benefits as other Indian tribes, including the
right to apply to have land taken into trust pursuant to § 465.”41
In a dissent, however, Circuit Judge Howard took the view that the intent of the parties to the
Settlement Act was that Rhode Island laws should apply throughout Rhode Island and that the
language in the JMOU and in RIICSA could fairly be interpreted to that end.42
On rehearing, en banc, a divided First Circuit ruled on both the IRA and jurisdictional issues. It
found that the definition of Indian in 25 U.S.C. § 479, with its use of the phrase “now under
Federal jurisdiction,” is “sufficiently ambiguous” to implicate what is known as the Chevron
test.43 This involves a two-part examination of statutory language: (1) If Congress has directly
spoken on the precise question at issue and its intent is clear and unambiguous, courts must defer
to that interpretation of the law; (2) If the meaning or intent of a statute is silent or ambiguous,
courts must give deference to the agency’s interpretation of the law if it is based on a permissible
and reasonable construction.44 The court found, by examining text and context, that the IRA is
ambiguous on the question of whether trust acquisitions are available for tribes not recognized in
1934.45 It, therefore, moved to the second prong of the Chevron test and found the Secretary’s
interpretation to be reasonable and consistent with the statute.46
40
This principle requires that “statutes are to be construed liberally in favor of the Indians with ambiguous provisions
interpreted to their benefit.” Chickasaw Nation v. United States, 534 U.S. 84, 93-94 (2001); McClanahan v. Arizona
State Tax Commission, 411 U.S. 164, 174 (1973); Choate v. Trapp, 224 U.S. 665, 675 (1912).
41
423 F. 3d. 45, at 62.
42
According to the dissent,
It is not surprising that the Settlement Act does not refer explicitly to the preservation of State
jurisdiction outside of the Settlement Lands. As sovereign, Rhode Island already had jurisdiction
outside of the Settlement Lands, and the Settlement Act extinguished any potential competing
‘Indian’ claims to that land. The only land about which there might have been doubt was the
Settlement Lands, and as to that land, State jurisdiction was expressly preserved.
*****
In the circumstances of this case, holding that Rhode Island is divested of our jurisdiction by the
Secretary taking into trust the adjacent parcel that was part of the original disputed lands upsets the
fairly expressed expectations of the parties. It also produces an unwarranted anomalous relationship
between the Settlement Lands and the after acquired parcel. 423 F. 3d 45, 72-73 (Howard, J.,
dissenting).
43
The test was articulated by the Supreme Court in Chevron U.S.A. v. Natural Resources Defense Council, 467 U.S.
837 (1984).
44
Id., at 843.
45
497 F. 3d 15, 26 (“there is ambiguity as to whether to view the term ‘now’ as operating at the moment Congress
enacted it or at the moment the Secretary invokes it.”). The court also raised the question of whether the word “now”
was meant to restrict the applicability of IRA temporally to individual Indians who were under federal supervision in
1934, rather than tribes.
46
In this context, the court rejected Rhode Island’s arguments that the SOI had changed position on the issue over the
years, noting that no application for trust acquisition had been rejected because the applicant tribe had not been
recognized in 1934. 497 F. 3d 15, 31.
Congressional Research Service
5
Carcieri v. Salazar
On the jurisdictional issue, the en banc majority ruled against the State’s basic arguments
principally by characterizing them as requiring a finding that RIICSA implicitly repealed the
Secretary’s authority to take land into trust for the Tribe. It cited Supreme Court authority
requiring a high standard for repeals by implication.47 It found “nothing in the text of the
Settlement Act that clearly indicates an intent to repeal the Secretary’s trust acquisition powers
under IRA, or that is fundamentally inconsistent with those powers.”48 The opinion also identified
support for its position in the existence of other statutes settling Indian land claims which did
have provisions clearly limiting SOI trust acquisition authority. 49 From this it reasoned, the
Congress knew how to preclude future trust acquisitions and clearly did not choose to use this
approach in RIICSA.
The court turned down as not within its power the State’s request that, if the court were to uphold
the trust acquisition, it should require the SOI to limit the Tribe’s jurisdiction to that specified for
the settlement lands, that is, with Rhode Island retaining civil and criminal jurisdiction. The court
acknowledged that such a directive would preserve what the State, in good faith, believed to have
been the essential component of its bargain in agreeing to the JMOU and to RIICSA, that is,
maintaining State sovereignty. It suggested, however that the power to limit jurisdiction over the
newly acquired land was the prerogative of Congress, not the courts or the SOI.
The two dissenting opinions raised arguments based on RIICSA. Circuit Judge Howard would
have found that (1) the parties to the JMOU and Congress, in enacting RIICSA, intended to
resolve all Indian claims in Rhode Island past, present, and future; (2) RIICSA contains broad
language which may be fairly interpreted as impliedly and partially repealing SOI authority under
the IRA to take land into trust for the Tribe; (3) the fact that other settlement acts included
provisions limiting jurisdiction, should there be subsequent approvals of trust acquisitions, is
irrelevant because RIICSA clearly contemplated that there would be no trust acquisition other
than that of the settlement lands; and (4) to read RIICSA as if it did not preclude subsequent
jurisdictional adjustments outside of the settlement lands would be “antithetical to Congress’
intent” and “absurd.”50 Senior Circuit Judge Selya’s dissent characterizes the majority’s
construction of the RIICSA as “wooden” and “too narrow,” and the result, “absurd.”51 Judge
Selya argued that RIICSA must not be divorced from its historical context. 52
47
The court cited Morton v. Mancari, 417 U.S. 535 (1974), and Posadas v. National City Bank of New York, 296 U.S.
497 (1936).
48
497 F. 3d. 15, 37.
49
The Maine Indian Claims Settlement Act (MICSA), for example, provides that “[e]xcept for the provisions of the
[MICSA], the United States shall have no other authority to acquire lands or natural resources in trust for the benefit of
Indians ... in ... Maine.” 25 U.S.C. § 1724(e).
50
497 F. 3d. 15, 49-50 (Howard, Circuit J., dissenting).
51
497 F. 3d 15, 51-5 (Selya, J., dissenting).
52
“The Settlement Act, when taken together with the extinguishment of all Indian claims referable to lands in Rhode
Island, the Tribe’s surrender of its right to an autonomous enclave, and the waiver of much of its sovereign immunity
..., suggests with unmistakable clarity that the parties intended to fashion a broad arrangement that preserved the State’s
civil, criminal, and regulatory jurisdiction over any and all lands within its borders.” Id., at 51.
Congressional Research Service
6
Carcieri v. Salazar
Supreme Court Decision
The Court found that the SOI had no authority under the IRA to take land into trust for the Tribe;
it, therefore, did not address the RIICSA issue. Six justices concurred in the opinion of the
Court,53 one of which identified certain qualifications;54 two other justices concurred in part and
dissented in part.55 The Court, in an opinion written by Justice Thomas, found that the 1934
legislation unambiguously restricted beneficiaries for whom the SOI may take land into trust
under this statute to “Indians” and “Indian tribe[s]” as defined in the statute. Because the IRA
defines “Indian” in terms of persons “now under Federal jurisdiction” and includes the word
“Indian” in its definition of “tribe,” the Court reasoned that the meaning of “now” was critical to
interpreting the reach of the SOI’s authority to take land into trust. Rhode Island had argued that
“now” meant “at the time of enactment of the IRA.” The SOI had urged the Court to find the
meaning of “now” ambiguous and, therefore, under the Chevron doctrine, amenable to a
reasonable explication of its meaning by DOI as the agency charged with interpreting it.
The decision focuses on Section 5 of the IRA, 25 U.S.C. § 465, the statute under which the trust
acquisition was approved by the SOI, and the definitions provided for “Indian” and “Indian tribe”
in Section 19 of the IRA, 25 U.S.C. § 479. Section 5 authorizes the SOI “to acquire, through
purchase, relinquishment, gift, exchange, or assignment, any interest in lands, water rights, or
surface rights to lands, within or without existing reservations, including trust or otherwise
restricted allotments, whether the allottee be living or deceased, for the purpose of providing land
for Indians.”56 Section 5 further provides that “[t]itle to any lands or rights acquired ... shall be
taken in the name of the United States in trust for the Indian tribe or individual Indian for which
the land is acquired and such lands or rights shall be exempt from State and local taxation.”57
Section 19 supplies definitions of “Indian” and “tribe” for various sections of the IRA, including
Section 5. It reads, in pertinent part:
[t]he term “Indian” as used in sections ... 465 ... and 479 of this title shall include all persons
of Indian descent now under Federal jurisdiction who are members of any recognized Indian
tribe now under Federal jurisdiction, and all persons 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. For the purposes of said sections, Eskimos and
53
The opinion of the Court was written by Justice Thomas, joined by Chief Justice Roberts and Justices Scalia,
Kennedy, Alito and Breyer. Justice Breyer filed a separate concurring opinion identifying three ways in which he
would qualify the opinion of the Court. Justice Souter wrote a separate opinion, joined by Justice Ginsburg, concurring
in part and dissenting in part; and Justice Stevens filed a dissenting opinion.
54
Justice Breyer’s separate concurring opinion identified ways in which he would depart from the opinion of the Court:
(1) he would not rely completely on the statutory language, which he finds to be ambiguous with a legislative history
indicating that Congress did not intend for DOI to interpret it; (2) he would find that “now” means “1934” not only for
the reasons given by the Court but also based on legislative history; and (3) he asserts that interpreting “now” as “1934”
leaves room for finding that some tribes may have been under federal jurisdiction without have been formally identified
as such and other tribes may consist of members who satisfy the definition of “Indian.”
55
Justice Souter, who would join with Justice Breyer, and, thus, with the opinion of the Court, dissents on one point.
He would evaluate “jurisdiction” and “recognition” separately and, thus, would remand the case to provide “the
Secretary and the Narragansett Tribe an opportunity to advocate a construction of the ‘jurisdiction’ phrase that might
favor their position here.” Carcieri v. Salazar, slip op, at 2. (Souter, J, concurring in part, dissenting in part).
56
25 U.S.C. § 465 (emphasis supplied).
57
Id.
Congressional Research Service
7
Carcieri v. Salazar
other aboriginal peoples of Alaska shall be considered Indians. The term “tribe” wherever
used in said sections shall be construed to refer to any Indian tribe, organized band, pueblo,
or the Indians residing on one reservation.58
The Court’s opinion rests squarely on statutory construction. It looked first to see if the statutory
language was “plain and unambiguous” on the question of “whether the Narragansetts are
members of a ‘recognized Indian Tribe now under Federal jurisdiction.’” 59 This led the Court to
examine whether “now under Federal jurisdiction” means the date of the trust acquisition or
1934. By examining the language60 and context61 of the terms “Indian” and “tribe” and construing
them in harmony with one another,62 the Court ruled that trust acquisitions may be undertaken
only for tribes that, in 1934, were “under Federal jurisdiction.” Because it relied on the plain
meaning of the statute, the Court did not address in any detail the legislative history. According to
the Court, “although § 465 authorizes the United States to take land in trust for an Indian tribe, §
465 limits the Secretary’s exercise of that authority ‘for the purpose of providing land for
Indians.’ There simply is no legitimate way to circumvent the definition of ‘Indian’ in delineating
the Secretary’s authority under §§ 465 and 479.”63
The Court also rebutted an argument that 25 U.S.C. § 2202 authorizes trust acquisitions for the
Narragansett Tribe and, by extension, other tribes not “under Federal jurisdiction” in 1934.64
Section 2202 provides that: “The provisions of section 465 of this title shall apply to all tribes
notwithstanding the provisions of section 478 of this title: Provided, That nothing in this section
is intended to supersede any other provision of Federal law which authorizes, prohibits, or
restricts the acquisition of land for Indians with respect to any specific tribe, reservation, or
state(s).”
According to the Court’s analysis of the language of § 2202, this statute does not alter the terms
of § 465; it merely “ensures that tribes may benefit from § 465 even if they opted out of the IRA
58
25 U.S.C. § 479 (emphasis supplied).
Carcieri v. Salazar, slip op., at 7-8.
60
The Court’s examination of the language of the statute led it to examining the 1934 dictionary meanings of “now”
and Supreme Court cases interpreting the word in other contexts. It found, for example, that 1934 edition of Webster’s
New International Dictionary included as its first meaning of “now,” “‘[a]t the present time; at this moment; at the time
of speaking.’” The Court also quoted the 1933 edition of Black’s Law Dictionary as stating that “now” in statutes
“‘ordinarily refers to the date of its taking effect.’” Id., at 8 (citations omitted; emphasis in original). Two Supreme
Court cases were cited: Franklin v. United States, 216 U.S. 559 (1910) (criminal statute referring to punishment “now”
provided under state law) and Montana v. Kennedy, 366 U.S. 308 (1961) (granting citizenship to foreign-born children
of persons who are “now” citizens of the United States). Id., at 8.
61
For example, the Court noted that elsewhere in the IRA, “Congress expressly drew into the statute contemporaneous
and future events by using the phrase ‘now or hereafter.’” Id., at 9, citing 25 U.S.C §§ 468 and 472. For the Court, this
was “further textual support for the conclusion that the term refers solely to events contemporaneous with the Act’s
enactment.” Id., at 9, citing Barnhart v. Sigmon Coal Co., 534 U.S. 438, 452 (2002).
62
The SOI had argued that the definition of “tribe” in 25 U.S.C. § 479 had left a gap for DOI to fill because it used the
term “shall include.” The Court disagreed, finding that only the three categories of “Indians,” defined elsewhere in 25
U.S.C. § 479, could be considered as satisfying the requirements for meeting the definition of “tribe.” Id., at 11. The
Court buttressed this interpretation by citing instances, following the enactment of the IRA, of specific legislation
making IRA applicable “to particular Indian tribes not necessarily encompassed within the definitions of ‘Indian’ set
forth in § 479.” Statutes cited included 25 U.S.C. §§ 473a (Alaska); 1041e(a) (Shawnee Tribe); 1300b-14(a) (Texas
Band of Kickapoo Indians); and 1300g-2(a) (Ysleta Del Sur Pueblo). Id., at 12, n. 6.
63
Id., at 13.
64
This argument had been advanced in an amicus brief submitted by the National Congress of American Indians.
59
Congressional Research Service
8
Carcieri v. Salazar
pursuant to § 478, which allowed tribal members to reject the application of the IRA to their
tribe.”65
Rather than remand the case for further exploration on the issue of whether the Narragansetts
were “under Federal jurisdiction” at the time of enactment of the IRA, the Court resolved that
question itself. In doing so, it cited undisputed evidence, contemporaneous with enactment of the
IRA, that was included in the record of the case. For example, there was a letter, written in 1937,
by John Collier, who was then Commissioner of Indian Affairs and a driving force behind the
IRA, stating forthrightly that the federal government had no jurisdiction over the Narragansett
Indian Tribe of Rhode Island.66 The Court, therefore, found that the Narragansett Indian Tribe was
not “under Federal jurisdiction” in 1934 and ruled that the trust acquisition was contrary to the
statute and reversed the lower court.
Justice Stevens filed a dissenting opinion, also relying on the plain meaning of the 1934
legislation. Unlike the majority, he did not incorporate the IRA’s definition of “Indian” in his
interpretation of “tribe.” He would read the two separately67 and would find that the SOI had
authority delegated under the IRA to confine the meaning of “tribe” to those “recognized” by
DOI. To support his conclusion, he draws upon the structure of the IRA in providing separate
benefits for tribes and individual Indians68 and the long-time administrative practice of the SOI in
taking land into trust under Section 465 only for federally recognized tribes, whether recognized
before or after 1934.69 He also criticizes the majority for ignoring one of the canons of statutory
construction often employed when courts are interpreting statutes enacted for the benefit of
Indians.70
65
Carcieri v. Salazar, slip op., at 14.
Carcieri v. Salazar, slip op., 10, n. 5, citing United States v. Mitchell, 463 U.S. 206, 221, n. 21 (1983). There was also
correspondence between 1927 and 1937 showing requests from tribal members for BIA assistance that had been denied
on the grounds that the tribal members were under state jurisdiction. Carcieri v. Salazar, slip op., at 3.
67
“The Act’s language could not be clearer: To effectuate the Act’s broad mandate to revitalize tribal development and
cultural self-determination, the Secretary can take land into trust for a tribe or he can take land into trust for an
individual Indian.” Carcieri v. Salazar, slip op. at 4 (Stevens, J., dissenting).
68
Justice Stevens points out that the IRA had need of separate definitions. Unlike Section 465, which applies both to
tribes and individual Indians, other sections—471, 472, 476, and 470—apply only to individual Indians. Id., at 4-6.
69
The opinion cites a 1937 DOI Solicitor memorandum advising the SOI that to take land into trust for the Mole Lake
Chippewa Indians, the SOI should either provide tribal recognition to the group or take the land into trust for the
Indians of one-half or more Indian blood. It also cites subsequent administrative decisions providing federal recognition
to tribes which had previously been denied recognition and subsequently taking land into trust for them. According to
Justice Stevens, these decisions demonstrate that “[f]ederal recognition, regardless of when it is conferred, is the
necessary condition that triggers a tribe’s eligibility to receive trust land.” Id., at 8. Justice Stevens stated: “[t]he
consequences of the majority’s reading are both curious and harsh: curious because it turns ‘now’ into the most
important word in the IRA, limiting not only some individuals’ eligibility for federal benefits but also a tribe’s; harsh
because it would result in the unsupportable conclusion that, despite its 1983 recognition, the Narragansett Tribe is not
an Indian tribe under the IRA.” Id., at 6-7.
70
“The Court today adopts a cramped reading of a statute Congress intended to be ‘sweeping’ in scope. Morton v.
Mancari, 417 U.S. 535, 542 (1974). In doing so, the Court ignores the ‘principle deeply rooted in [our] Indian
jurisprudence ‘that statutes are to be construed liberally in favor of the Indians.’ County of Yakima v. Confederated
Tribes and Bands of Yakima Nation, 502 U.S. 251, 269 (1992).” Id., at 14-15.
66
Congressional Research Service
9
Carcieri v. Salazar
Potential Impact and Congressional Reaction
In General
Although the Court found that the Narragansetts were not “under Federal jurisdiction” in 1934, it
did not rely on the 1983 date of official SOI recognition. It examined the Tribe’s situation at the
time of enactment of the IRA, looking for indicia that it was “under Federal jurisdiction” even if
not officially included in DOI lists of Indian tribes. The decision appears to call into question the
ability of the SOI to take land into trust for any tribe added to DOI’s list of federally recognized
tribes since 1934 unless the trust acquisition has been authorized under legislation other than the
1934 Act. The Court’s decision, while not likely to jeopardize lands already held in trust,71 means
that the SOI may not take land into trust under the IRA for any tribe that cannot clearly show that
it was among those tribes under federal jurisdiction in 1934. Some tribes may be able to cite
another statute as providing them authority for trust acquisitions.72
Possibility of Factually Establishing That a Newly Recognized
Tribe Was “Under Federal Jurisdiction in 1934”
Some tribes may be able to amass sufficient facts to establish to the satisfaction of DOI that,
although they were formally recognized after 1934, they were actually under federal jurisdiction
in 1934. A concurring opinion in Carcieri lends credence to this approach.73 Moreover, a recent
decision by DOI to accept land into trust for gaming for the Cowlitz Tribe of Indians in Clark
County, Washington, indicates that there will not be an automatic dismissal of applications from
newly recognized tribes, but that the department will review such applications thoroughly,
collaborating with the Solicitor’s Office, to determine whether the history of the tribe as presented
in the petition meets the legal standard.74 In general, however, the decision appears to mean that
71
Under the Quiet Title Act, suits contesting title to Indian trust lands may not be entertained by the courts. 28 U.S.C. §
2409a.
72
For example, the Graton Rancheria Restoration Act, 25 U.S.C. §§ 1300n- 1300n-6, enacted in 2000, restores the
Indians of the Graton Rancheria of California to federal recognition. One of its provisions, 25 U.S.C § 1300n-3,
mandates that the SOI “shall accept into trust for the benefit of the Tribe any real property located in Marin or Sonoma
County California, for the benefit of the Tribe after the property is conveyed or otherwise transferred to the Secretary
and if, at the time of such conveyance or transfer, there are no adverse legal claims to such property, including liens,
mortgages, or taxes.” 25 U.S.C. §1300n-3(a).
73
Justice Breyer raised this point in a concurring opinion. He stated that “a tribe may have been ‘under Federal
jurisdiction’ in 1934 even though the Federal Government did not believe so at the time.” Carcieri v. Salazar (Breyer, J.
concurring, slip op., at 3). Among the types of situations in which this might be true, according to Justice Breyer, are
(1) maintaining treaty rights despite not having been included on a DOI list of recognized tribes (Stillaguamish Tribe);
(2) DOI’s erroneous conclusion that a tribe had dissolved and subsequently to have opined that it has had a continuous
existence since colonial times (Grand Traverse Band of Ottawa and Chippewa Indians); and (3) reliance on an
erroneous anthropological study concluding that a tribe no longer existed and subsequently finding that the study was
wrong (Mole Lake Tribe). Id., at 3-4.
74
“Assistant Secretary-Indian Affairs Larry Echo Hawk Issues Tribal Gaming Determinations,” U.S. Department of the
Interior, Office of the Assistant Secretary—Indian Affairs, News Release (December 23, 2010). http://www.bia.gov/
idc/groups/public/documents/text/idc012600.pdf. The Cowlitz Indian Tribe successfully petitioned DOI and was
acknowledged as an Indian tribe on December 31, 2001. Reconsidered Final Determination for Federal
Acknowledgment of the Cowlitz Tribe, 67 Fed. Reg. 607 (January 4, 2002). In its petition to have land taken into trust
for gaming, the Cowlitz Tribe relied on the Historical Technical Report which BIA had prepared in connection with its
review of the acknowledgment petition. Cowlitz Indian Tribe, Amended Fee-To-Trust Application for 151.87-acre
(continued...)
Congressional Research Service
10
Carcieri v. Salazar
tribes administratively acknowledged since 1934 under the SOI’s administrative process may not
acquire trust land without further legislation.75
Congressional Activity in the 111th Congress
The 111th Congress explored the ramifications of the decision. The House Committee on Natural
Resources held a hearing on April 1, 2009, to take testimony on how well the Supreme Court had
explicated the legislative history of the IRA and how “now under federal jurisdiction” is to be
interpreted. Witnesses testified to widespread concerns about potential litigation based on the
Court’s interpretation of Carcieri that will go beyond the question of further land-into-trust
acquisitions for tribes recognized after 1934.76 Representative Nick Rahall, chairman of the
committee, noted that: “[P]lacing land into trust for an Indian tribe is an essential component of
combating the situations experienced by Indian tribes as a result of their treatment by the United
States. Even beyond the legal responsibility, the Federal government has a moral responsibility to
rectify this situation.”77
On May 21, 2009, the Senate Committee on Indian Affairs held a hearing to examine executive
branch authority to acquire trust lands for Indian tribes.78 Testifying at the hearing, Edward P.
Lazarus made suggestions for legislative and administrative approaches and cautioned that
anything short of legislation would likely result in protracted and costly litigation. He suggested
two possible legislative approaches: (1) amending the IRA to remove “now” from “now under
Federal jurisdiction” and (2) ratifying any pre-Carcieri land-into-trust administrative
determinations under the IRA for tribes not recognized in 1934. According to Mr. Lazarus, after
Carcieri, when DOI is presented with a request to take land into trust under the IRA, for a tribe
recognized after 1934, it is now obliged to make a legal determination as to whether the tribe was
(...continued)
Parcel in Clark County, Washington (Reorganized and Supplemented) (June 6, 2006) (hereinafter Amended Fee-ToTrust Application). http://www.bia.gov//idc/groups/public/documents/text/idc-001693.pdf. The Historical Technical
Report details a lengthy history of the Cowlitz Tribe, including extensive relations with the federal government.
http://www.bia.gov//idc/groups/public/documents/text/idc-001694.pdf. In its Amended Fee-To-Trust Application, the
Cowlitz Tribe stated that “… the Department of the Interior gradually ceased to view itself as engaged in a
government-to-government relationship with the Tribe, taking the position that because the Tribe had no trust land, no
duties were owed to it. As a result, the Tribe de facto was administratively terminated.” Amended Fee-to-Trust
Application, at 2.
75
This would seemingly conflict with other statutes that assume that one of the consequences of tribal acknowledgment
is the ability to acquire trust land. See, e.g., 25 U.S.C. § 2719(b)(1)(B)(iii). DOI regulations, in existence since 1980,
which set forth the land acquisitions procedures and policies, do not preclude trust acquisitions for newly
acknowledged tribes. See, e.g., 25 C.F.R., Part 151. Under 25 C.F.R. § 151.2(b), the SOI may take land into trust for
“any Indian tribe, band, nation, pueblo, community, rancheria, colony, or other group of Indians ... which is recognized
by the Secretary as eligible for the special programs and services from the Bureau of Indian Affairs.”
76
One witness stated that Carcieri “threatens to eliminate” “all the benefits that Congress has subsequently tied to the
IRA.” Prepared Statement of Colette Routel, Visiting Assistant Professor, University of Michigan Law School;
Assistant Professor, William Mitchell College of Law, on Carcieri v. Salazar, Before the United States House
Committee on Natural Resources, at 1 (April 1, 2009). http://resourcescommittee.house.gov/images/Documents/
20090401/testimony_routel.pdf.
77
Statement of U.S. Rep. Nick J. Rahall, II, Chairman, Committee on Natural Resources, “Oversight Hearing on the
Recent Supreme Court Decision in Carcieri v. Salazar and its Ramifications on Indian Tribes” (April 1, 2009).
http://resourcescommittee.house.gov/index.php?option=com_jcalpro&Itemid=27&extmode=view&extid=239.
78
http://indian.senate.gov/public/index.cfm?FuseAction=Hearings.Hearing&Hearing_ID=ac679a41-14fa-4305-b51103a851625b6f.
Congressional Research Service
11
Carcieri v. Salazar
“under Federal jurisdiction” in 1934. He expressed his own opinion that Justice Breyer’s
concurring opinion in Carcieri identified some of the factors that would be involved in such a
determination (e.g., whether there were treaty obligations, appropriations, enrollment duties, or
written records of continuous existence). He pointed out that each tribe qualifying for federal
acknowledgement since 1978 under the DOI regulations, 25 C.F.R., Part 83, has established that
it has “been identified as an American Indian entity on a substantially continuous basis since
1900,”79 and argued that each of these tribes has, therefore, established that it has been “under
Federal jurisdiction” since 1934.80 He also suggested that it would be legally supportable, if
unwise because it would provoke costly litigation, for DOI formally to embrace its once-held
position distinguishing formal recognition of a tribe from a tribe’s being “under Federal
jurisdiction” despite the fact that the Solicitor General had rejected the distinction in oral
argument in Carcieri. Mr. Lazarus also mentioned other possible but perhaps more limited means
of providing trust status or similar protection for lands of tribes recognized since 1934: (1)
making use of a statutory provision authorizing the transfer of excess federal real property to
tribes,81 and (2) exploring whether there exists some inherent presidential authority to provide
some form of protection for fee lands held by Indian tribes.
At the same hearing, W. Ron Allen, Secretary of the National Congress of American Indians,
provided draft language for an amendment to the IRA to remove the word “now” from “now
under federal jurisdiction” and to protect pre-Carcieri decisions by the Secretary to take land into
trust from judicial invalidation based on a tribe’s not having been recognized in 1934.82 He
indicated that although an administrative solution to the potential effects of Carcieri is possible,
anything other than legislation is likely to result in wasteful and protracted litigation. Another
witness, Lawrence E. Long, Attorney General of South Dakota, and Chair of the Conference of
Western Attorneys General, recommended a general review of the trust acquisition policy,
including its overall goals and the criteria that DOI uses in making determinations to take land
into trust.83
79
25 C.F.R. § 83.7(a).
Testimony of Edward P. Lazarus, Senate Committee on Indian Affairs 5-6 (May 21, 2009). http://indian.senate.gov/
public/_files/Lazarustestimony.pdf.
81
Under 40 U.S.C. § 523, the General Services Administration is authorized to set up procedures to transfer to the SOI
excess federal real property within a tribe’s reservation to be taken into trust for the benefit of the tribe.
82
Testimony of the National Congress of American Indians on the Supreme Court Decision in Carcieri v. Salazar and
the Executive Branch Authority to Acquire Trust Land for Indian Tribes, U.S. Senate Committee on Indian Affairs
(May 21, 2009). http://indian.senate.gov/public/index.cfm?FuseAction=Hearings.Testimony&Hearing_ID=ac679a4114fa-4305-b511-03a851625b6f&Witness_ID=c219e550-a686-4097-8188-9713bc1f8197.
83
Testimony of Lawrence E. Long, Attorney General, State of South Dakota, Chair, Conference of Western Attorneys
General Before the U.S. Senate Committee on Indian Affairs (May 21, 2009). http://indian.senate.gov/public/
index.cfm?FuseAction=Hearings.Testimony&Hearing_ID=ac679a41-14fa-4305-b511-03a851625b6f&Witness_ID=
ffe145a3-2862-4edf-814d-99b23285b63d.
80
See also “Statement of the California State Association of Counties for the Record of the U.S. House of
Representatives Committee on Natural Resources for its November 4, 2009, on H.R. 3742 (Kildee) and H.R. 3697
(Cole)” 1 (November 4, 2009) (“Do not advance an immediate Congressional response to Carcieri, which allows the
Secretary of the Interior to return to the flawed fee to trust process. Rather, carefully examine, with oversight and other
hearings which include participation by tribal, state and local governments, what reforms are necessary to ‘fix’ the fee
to trust process and refine the definition of Indian lands under IGRA.”), and “Testimony of Attorney General Richard
Blumenthal Before the House Committee on Natural Resources,” November 4, 2009, 1 (2009), (“Congress should
either reform the administrative process in order to achieve fair and equitable decisions regarding trust lands for these
tribes or repeal the [Indian Reorganization] Act, thereby establishing for pre-1934 tribes the same Congressional trust
approval as [is available for] post-1934 tribes.” Available, August 19, 2010, on the website of the House Committee on
Natural Resources. http://resourcescommittee.house.gov/index.php?option=com_jcalpro&Itemid=27&extmode=view&
(continued...)
Congressional Research Service
12
Carcieri v. Salazar
Legislation
111th Congress
Generally
In the 111th Congress, there were several bills introduced to extend authority to the Secretary to
take land into trust for all federally recognized tribes; none, however, were enacted. Of the three
introduced bills, H.R. 3697, H.R. 3742, and S. 1703, only S. 1703 was reported out of
committee. 84
S. 1703 as Reported by the Senate Committee on Indian Affairs
On December 17, 2009, the Senate Committee on Indian Affairs approved an amended version of
S. 1703. Both versions received the endorsement of the SOI.85 The reported version of S. 1703
included an amendment offered by Senator Tom Coburn which would have required DOI to study
the impact of the Supreme Court’s decision and provide Congress with a list of affected tribes and
lands. There was also a provision in the reported version of S. 1703, which, according to the
Senate Committee on Indian Affairs, “clarifies that the legislation does not affect any law other
than the Indian Reorganization Act or limit the authority of the Secretary of the Interior under any
federal law or regulation other than the Indian Reorganization Act.”86 Otherwise, the legislation
paralleled H.R. 3697 and H.R. 3742, as introduced. It would have amended the IRA as of its date
of enactment, June 18, 1934.87 It would have changed the IRA definition of “Indian” to refer to
members of “any federally recognized Indian tribe” instead of members of “any recognized
Indian tribe now under Federal jurisdiction.”88 This legislation, therefore, would have removed
the language which led the Supreme Court to hold that the Secretary’s authority to take land into
trust under 25 U.S.C. § 465 was limited to acquisitions for tribes under federal jurisdiction in
1934. In addition, it would have specified that: “In this section, the term ‘Indian tribe’ means any
Indian or Alaska Native tribe, band, nation, pueblo, village, or community that the Secretary of
the Interior acknowledges to exist as an Indian tribe.”89
(...continued)
extid=306.
84
S.Rept. 111-247, 111th Cong., 1st Sess. (2009).
85
Letters from the Secretary of the Interior to the Honorable Byron Dorgan, dated October 23, 2009, and July 30, 2010.
S.Rept. 111-247, 111th Cong., 2d Sess. 12-13 (2010).
86
S.Rept. 111-247, at 10. The provision reads:
(1) IN GENERAL.—Nothing in this Act or the amendments made by this Act affects—
(A) the application or effect of any Federal law other than the Act of June 18, 1934 (25 U.S.C.
461 et seq.) (as amended by subsection (a)); or (B) any limitation on the authority of the Secretary
of the Interior under any Federal law or regulation other than the Act of June 18, 1934 (25 U.S.C.
461 et seq.) (as so amended). (2) REFERENCES IN OTHER LAWS.—An express reference to the
Act of June 18, 1934 (25 U.S.C. 461 et seq.), contained in any other Federal law shall be
considered to be a reference to that Act as amended by subsection (a).
87
S. 1703, 111th Cong., 1st Sess., § 1(b), 155 Cong. Rec. S9842 (daily ed. September 24, 2009).
88
S. 1703, 111th Cong., 1st Sess., § 1(a)(1)(B), 155 Cong. Rec. S9842 (daily ed. September 24, 2009).
89
S. 1703, 111th Cong. 1st Sess., § 1(a)(2). 155 Cong. Rec. S9842 (daily ed. September 24, 2009).
Congressional Research Service
13
Carcieri v. Salazar
It would have substituted that definition for the following language defining “tribe” for IRA
purposes: “The term ‘tribe’ wherever used in said sections90 shall be construed to refer to any
Indian tribe, organized band, pueblo, or Indians residing on one reservation.”
The Senate Committee on Indian Affairs characterized the legislation as a means of correcting a
judicial decision that
runs contrary to longstanding and settled practice of the Department of the Interior
regarding trust land acquisitions; invites disparate treatment of federally recognized tribes
contrary to previous Acts of Congress; creates uncertainty about the scope of the Secretary’s
authority; and threatens unnecessary and burdensome administrative proceedings and
litigation for both the United States and the tribes on matters that Congress long ago intended
to resolve. 91
This view is consistent with that of Senator Dorgan, who indicated, in introducing the legislation,
that the Supreme Court’s decision in Carcieri v. Salazar prompted a need for Congress to act to
avoid the creation of “two classes of Indian tribes—those who were recognized as of 1934, for
whom land may be taken into trust, and those recognized after 1934 that would be unable to have
land taken into trust status.”92 He stated: “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.”93
Section 2727 of H.R. 3082, the Continuing Appropriations, 2011
In addition to S. 1703, there was, however, another legislative vehicle in which language
appeared that would have amended the IRA to cover “any federally recognized Indian tribe.” This
was Section 2727 of H.R. 3082, the Full-Year Continuing Appropriations Act, 2111, which was
passed by the House on December 8, 2010, but not acted upon by the Senate thereafter. It
contained provisions directed at ratifying past land-into-trust acquisitions by the Secretary and
clarifying how the IRA amendment interacted with other laws. 94
90
The word “sections” refers to 25 U.S.C. §§ 461 (ending allotments on Indian reservations), 462 (continuing existing
trust periods on Indian lands indefinitely), 463 (restoring lands to tribal ownership), 464 (prohibiting transfers of
restricted Indian lands), 465 (authorizing the SOI to acquire lands in trust for Indians), 466 to 470 (authorizing the SOI
to issue regulations for Indian forestry units, authorizing the SOI to proclaim new reservations, respecting allotments
outside of Indian reservations, and authorizing appropriations for the formation of Indian corporations) 471 to 473
(authorizing appropriations for vocational and trade schools, authorizing the SOI to establish standards for Indians
appointed to Bureau of Indian Affairs positions, and specifying that provisions of the IRA do not apply to certain tribes
in Oklahoma or to the territories or insular possessions—with certain exceptions for Alaska), 474 (continuance of
certain allowances to Sioux Indians), 475 (specifying that certain provisions are not to be construed as prejudicing
claims by an Indian tribe against the United States), 476 to 478 (authorizing tribes to organize, authorizing the SOI to
issue charters of incorporation to tribes, and authorizing elections for tribes to accept the IRA), and 479 (defining
“Indian” and “tribe” for IRA purposes.)
91
S.Rept. 111-247, at 5.
92
155 Cong. Rec. S9842 (daily ed. September 24, 2009) (statement of Senator Dorgan).
93
155 Cong. Rec. S9842 (daily ed. September 24, 2009) (statement of Senator Dorgan).
94
Section 2727 reads as follows:
Sec. 2727. (a) Modification(1) IN GENERAL- The first sentence of section 19 of the Act of June 18, 1934 (commonly known
(continued...)
Congressional Research Service
14
Carcieri v. Salazar
112th Congress
Generally
In the 112th Congress, three bills have been introduced to extend authority to the Secretary to take
land into trust for all federally recognized tribes: H.R. 1234, H.R. 1291, and S. 676. As
introduced, H.R. 1234 and S. 676 contain language similar to that of Section 2727 of H.R. 3082,
of the 111th Congress, as it was passed by the House of Representatives on December 8, 2010.
H.R. 1291 would apply the IRA retroactively to “any federally recognized Indian tribe,” but
would specify that the Secretary’s authority under Section 19 of the IRA, 25 U.S.C. § 465, to take
land into trust does not extend to Alaska. To date, only one of these bills has been the subject of
committee action: S. 676. It has been amended and reported by the Senate Committee on Indian
Affairs.
S. 676 as Reported by the Senate Committee on Indian Affairs
On April 7, 2011, the Senate Committee on Indian Affairs voted to report S. 676. It contains
language which parallels that of Section 2727 of H.R. 3082 of the 111th Congress. Like that bill, it
retroactively amends the IRA to cover “any federally recognized Indian tribe,” and contains
provisions directed at ratifying past land-into-trust acquisitions by the Secretary as well as
language designed to clarify its interaction with other law. 95 S. 676 also includes a provision that
(...continued)
as the ‘Indian Reorganization Act’) (25 U.S.C. 479), is amended—
(A) by striking ‘The term’ and inserting ‘Effective beginning on June 18, 1934, the term’; and
(B) by striking ‘any recognized Indian tribe now under Federal jurisdiction’ and inserting ‘any
federally recognized Indian tribe’.
(2) EFFECTIVE DATE- The amendments made by paragraph (1) shall take effect as if included in
the Act of June 18, 1934 (commonly known as the ‘Indian Reorganization Act’) (25 U.S.C. 479),
on the date of enactment of that Act.
(b) Ratification and Confirmation of Actions- Any action taken by the Secretary of the Interior
pursuant to the Act of June 18, 1934 (commonly known as the ‘Indian Reorganization Act’) (25
U.S.C. 461 et seq.) for any Indian tribe that was federally recognized on the date of the action is
ratified and confirmed, to the extent such action is subjected 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 action had, by prior act of Congress, been
specifically authorized and directed.
(c) Effect on Other Laws(1) IN GENERAL- Nothing in this section or the amendments made by this section affects—
(A) the application or effect of any Federal law other than the Act of June 18, 1934 (25 U.S.C. 461
et seq.) (as amended by subsection (a)); or
(B) any limitation on the authority of the Secretary of the Interior under any Federal law or
regulation other than the Act of June 18, 1934 (25 U.S.C. 461 et seq.) (as so amended).
(2) REFERENCES IN OTHER LAWS- An express reference to the Act of June 18, 1934 (25
U.S.C. 461 et seq.) contained in any other Federal law shall be considered to be a reference to that
Act as amended by subsection (a).
95
For text of Section 2727 of H.R. 3082, 111th Cong., see supra, n. 94.
Congressional Research Service
15
Carcieri v. Salazar
requires DOI to study the impact of the Supreme Court’s decision and provide Congress with a
list of affected tribes and lands.96
Author Contact Information
M. Maureen Murphy
Legislative Attorney
mmurphy@crs.loc.gov, 7-6971
96
This provision is the result of an amendment offered by Senator John Barrasso during the Senate Indian Affairs
Committee’s consideration of the bill.
Congressional Research Service
16