Carcieri v. Salazar: The Secretary of the
Interior May Not Acquire Trust Land for the
Narragansett Indian Tribe Under 25 U.S.C.
Section 465 Because That Statute Applies to
Tribes “Under Federal Jurisdiction” in 1934
M. Maureen Murphy
Legislative Attorney
April 22, 2015
Congressional Research Service
7-5700
www.crs.gov
RL34521
Carcieri v. Salazar
Summary
In Carcieri v. Salazar, 555 U.S. 379 (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. The reach of the decision may be broad 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. A June 2012 Supreme Court decision, Match-E-Be-Nash-She-Wish Band of Pottawatomi
Indians v. Patchak, increases the possible effect that the Carcieri decision is likely to have in
Indian country. In that case, the Supreme Court ruled in favor of a plaintiff seeking to bring a suit
to undo a trust acquisition by showing that the tribe for whom the land was taken into trust was
not under federal jurisdiction in 1934. The decision has prompted the Bureau of Indian Affairs to
revise the land acquisition regulations to specify that, once there is final agency action, land is to
be taken into trust immediately without a 30-day waiting period.
Carcieri involves a parcel of land which the SOI had agreed to take into trust for the benefit of
the Narragansett 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. 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.
Two developments in recent cases suggest the possibility that the SOI may be able to continue to
take land into trust for tribes not officially recognized in 1934. The DOI has developed standards
for determining that tribes not officially recognized until after 1934 may be found to be “under
Federal jurisdiction” in 1934. It was explicated in a Solicitor of the Interior Memorandum on
“The Meaning of ‘Under Federal Jurisdiction’ for Purposes of the Indian Reorganization Act,”
issued on March 12, 2014. Two federal district courts have upheld the application of these
standards in recent cases. One case, The Confederated Tribes of the Grand Ronde Community of
Oregon v. Jewell, involved land acquisition for a tribe that was not officially acknowledged as an
Indian tribe until 2002. Moreover, the three-judge panel decision in Big Lagoon Rancheria v.
California, 741 F. 3d 1032 (9th Cir. 2014), which raises questions on the validity of past trust
acquisitions, is being reconsidered by an en banc panel of the Ninth Circuit.
In the 114th Congress, two bills, S. 732 and H.R. 249, have been introduced to amend the Indian
Reorganization Act to permit trust land acquisitions for all federally recognized Indian tribes.
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Contents
From Carcieri to Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians v. Patchak ............... 1
Response to Patchak: Revised Regulations Issued on November 13, 2013 .................................... 2
Carcieri Background ....................................................................................................................... 3
Appellate Court Rulings .................................................................................................................. 6
Supreme Court Decision .................................................................................................................. 8
Potential Impact ............................................................................................................................. 11
In General ................................................................................................................................ 11
DOI Solicitor’s Memorandum Indicates How a Tribe May Demonstrate That It Was
“Under Federal Jurisdiction” in 1934 ................................................................................... 12
Big Lagoon Rancheria v. California: Trust Land Acquired for a Tribe Not Recognized
in 1934 Is Not “Indian Lands” Under the Indian Gaming Regulatory Act .......................... 14
Judicial Treatment of SOI Post Carcieri Land Acquisition Determinations .................................. 15
D.C. District Court Upholds Trust Land Acquisition for Gaming as an Initial
Reservation for a Tribe Recognized in 2002 .................................................................. 16
N.Y. District Court Defers to SOI Interpretation of IRA Jurisdictional and
Recognition Requirements in Taking Land Into Trust for the Oneida Nation of
New York ....................................................................................................................... 17
Congressional Activity ................................................................................................................... 18
111th Congress.......................................................................................................................... 18
S. 1703 as Reported by the Senate Committee on Indian Affairs ..................................... 19
Section 2727 of H.R. 3082, the Continuing Appropriations, 2011 ................................... 21
112th Congress ......................................................................................................................... 22
113th Congress ......................................................................................................................... 22
114th Congress ......................................................................................................................... 23
Contacts
Author Contact Information........................................................................................................... 24
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Carcieri v. Salazar
From Carcieri to Match-E-Be-Nash-She-Wish Band
of Pottawatomi Indians v. Patchak
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.
The extent to which the holding in Carcieri with respect to the SOI’s authority to take land into
trust for newly recognized tribes may foster other litigation is not yet known.3 A June 2012
Supreme Court decision, Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians v. Patchak,4
and a January 21, 2014, appellate court decision, Big Lagoon Rancheria v. California,5 are likely
to encourage more suits seeking to set aside SOI decisions to take land into trust for Indian tribes.
Both cases involve challenges to a secretarial acquisition of land on the theory that because the
tribe was not federally recognized in 1934, the trust land acquisition was without authority. The
Supreme Court case involved a case brought under the Federal Administrative Procedure Act
within the six-year period covered by the applicable statute of limitations. The appellate ruling
involved a claim that a tribe could not require a state to negotiate for gaming under the Indian
Gaming Regulatory Act on a tract of land taken into trust in 1994 for a tribe not federally
recognized in 1934, or possibly even existing in 1934.
The Supreme Court ruled that the suit directly challenging the DOI and its decision to acquire the
land in trust could go forward, refuting a long-held assumption that U.S. sovereign immunity
under the Quiet Title Act6 barred challenges to any decision of the Secretary to take land into trust
1 555 U.S. 379 (2009).
2 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 According to testimony for the National Congress of American Indians, presented to the Senate Committee on Indian
Affairs in its November 20, 2013, oversight hearing. “Carcieri: Bring Certainty to Trust Land Acquisition,” “[t]here are
at least eighteen pending cases where tribes and the Secretary of the Interior are under challenge.”
http://www.indian.senate.gov/hearing/oversight-hearing-carcieri-bringing-certainty-trust-land-acquisitions. One of
those cases involves a land-into-trust application approved by the DOI prior to the Carcieri decision that includes land
on which the Oneida Nation of New York’s Turning Stone Resort & Casino is located. Salazar v. Oneida Nation of
New York, 2012 WL 4364452 (N.D.N.Y. 2012).
4 ___ U.S. ___, 132 S. Ct. 2199 (2012).
5 741 F. 3d 1032 (9th Cir. 2014).
6 The Quiet Title Act, 28 U.S.C §2409a, authorizes the federal courts “to adjudicate a disputed title to real property in
which the United States claims an interest,” but not with respect to “trust or restricted Indian lands.” In State of South
Dakota v. U.S. Department of the Interior, 69 F. 3d 878 (8th Cir. 1995), a federal circuit court made such an
assumption, prompting the Department of the Interior (DOI) to issue a regulation requiring a 30-day waiting period
between the date of the final determination to take land into trust and the actual trust acquisition. 61 Fed. Reg. 18082
(April 24, 1996). In revising the Land Acquisition regulation, 25 C.F.R. Part 151 on November 13, 2013, the DOI’s
Bureau of Indian Affairs (BIA) deleted the 30-day waiting period. 78 Fed. Reg. 67928.
(continued...)
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once title has passed to the United States. Under the decision, plaintiffs who can meet the
standing requirements under the Federal Administrative Procedure Act7 may bring a suit within
six years of final agency action, provided they are not seeking to quiet title (i.e., claim title for
themselves).8
Response to Patchak: Revised Regulations Issued
on November 13, 2013
In response to the decision, the Bureau of Indian Affairs (BIA) of the Department of the Interior
(DOI) has revised its Land Acquisition regulations, 25 C.F.R., Part 151.9 The regulations now
specify how parties seeking judicial review of land-into-trust decisions may discern when final
agency action occurs for the two kinds of decisions possible for land-into-trust applications.
Decisions by the SOI or the Assistant Secretary of the Interior for Indian Affairs (AS-IA) are final
agency actions. When the SOI or the AS-IA issues a decision to take land into trust, the DOI must
publish a notice of the decision “promptly” in the Federal Register and take the land into trust
“[i]immediately.”10 In contrast, land-into-trust decisions by Bureau of Indian Affairs officials
(BIA-level decisions) are not final agency action and do not require Federal Register notice.
They require notice in “a newspaper of general circulation serving the affected area of the
decision” as well as notice to state and local officials with “regulatory jurisdiction over the land to
be acquired” and to “interested parties who have made themselves known, in writing, to the
official prior to the decision.”11 Land may not be taken into trust pursuant to BIA-level decisions
“until administrative remedies are exhausted ... or ... the time for filing a notice of appeal has
expired and no administrative appeal has been filed.”12 Once a BIA-level decision has become
final, the land is to be acquired in trust “[i]mmediately.”13
(...continued)
https://www.federalregister.gov/articles/2013/11/13/2013-26844/land-acquisitions-appeals-of-land-acquisition-
decisions.
7 5 U.S.C. §702.
8 Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians v. Patchak, ___ U.S. ___, 132 S. Ct. 2199, 2210, quoting
Association of Data Processing Service Organizations, Inc. v. Camp, 397 U.S. 150, 143 (1970).
9 78 Fed. Reg. 67928 (November 13, 2013). https://www.federalregister.gov/articles/2013/11/13/2013-26844/land-
acquisitions-appeals-of-land-acquisition-decisions.
10 The regulations specify that the SOI shall “[i]mmediately acquire the land in trust under §151.14 on or after the date
such decision is issued and upon fulfillment of the requirements of 25 C.F.R. 151.13 [pertaining to title examination]
and any other Departmental requirements.” 25 C.F.R. §151.12(c)(2), 78 Fed. Reg. 67928, at 67937-67938 (November
13, 2013). https://www.federalregister.gov/articles/2013/11/13/2013-26844/land-acquisitions-appeals-of-land-
acquisition-decisions.
11 25 C.F.R. §151.12(d)(2), 78 Fed. Reg. 67928, at 67938. https://www.federalregister.gov/articles/2013/11/13/2013-
26844/land-acquisitions-appeals-of-land-acquisition-decisions.
12 25 C.F.R. §151.12(d)(2)(iv), 78 Fed. Reg. 67928, at 67938. https://www.federalregister.gov/articles/2013/11/13/
2013-26844/land-acquisitions-appeals-of-land-acquisition-decisions.
13 The regulations specify that the SOI shall “[i]mmediately acquire the land in trust under § 151.14 upon expiration of
the time for filing a notice of appeal or upon exhaustion of administrative remedies ... and upon the fulfillment f the
requirements of § 151.13 [pertaining to title examination] and any other Departmental requirements.” 25 C.F.R.
§151.12(d)(2)(iv), 78 Fed. Reg. 67928, at 67938. https://www.federalregister.gov/articles/2013/11/13/2013-26844/
land-acquisitions-appeals-of-land-acquisition-decisions.
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Carcieri Background
The Narragansett Indian 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, however, was found by the Court to have been established in 1983, after
enactment of the Rhode Island Indian Claims Settlement Act of 1978 (RIICSA).14 Federal
recognition of the Tribe occurred with the approval15 of the Tribe’s petition for inclusion on the
(DOI) “List of Indian Entities Recognized and Eligible To Receive Services From the United
States Bureau of Indian Affairs”16 under the DOI “Procedures for Establishing that an American
Indian Group Exists as an Indian Tribe.”17 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)18 rather than under the laws which
apply under the “Indian country” jurisdiction of the United States.19
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,20 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 Appeals21 and by
both the federal trial22 and appellate23 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
predominantly on statutory construction of RIICSA.24 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 cases25 in which the state of Rhode Island and the
Narragansett Indian Tribe have contested jurisdiction over tribal lands. The Tribe’s current
14 P.L. 95-395, 92 Stat. 813, 25 U.S.C. §§1701-1716, 95th Cong., 2d Sess. (1978).
15 “Final Determination for Federal Acknowledgment of Narragansett Indian Tribe of Rhode Island,” 48 Fed. Reg.
6177 (February 10, 1983).
16 See 73 Fed. Reg. 18553 (April 4, 2008) for the most recently promulgated list.
17 25 C.F.R., Part 83.
18 25 U.S.C. §§1702(f) and 1708.
19 “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.
20 Narragansett Indian Tribe v. Narragansett Elec. Co., 89 F. 3d 908 (1st Cir. 1996).
21 Town of Charlestown, Rhode Island v. Eastern Area Director, Bureau of Indian Affairs, 35 IBIA 93 (2000).
22 Carcieri v. Norton, 290 F. Supp. 2d 167 (D.R.I. 2003).
23 Carcieri v. Kempthorne, 497 F. 3d 15 (1st Cir. (en banc) 2007).
24 Id.
25 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).
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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.26 The Supreme Court
agreed to review the ruling of the appellate court27 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)28 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.29 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.”30 The Settlement Act was the necessary federal ratification
of the JMOU. Under the federal legislation,31 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.32 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.33 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.34 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 1983,35
26 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).
27 76 U.S.L.W. 3454 (U.S. February 25, 2008) (No. 07-526).
28 H. Rept. 95-1453, Appendix, at 25; 1978 U.S. Code Cong. & Ad. News 1962.
29 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).
30 H. Rept. 95-395, 95th Cong., 2d Sess. 5-7 (1978); 1978 U.S. Code Cong. & Ad. News 1948, 1949-1950.
31 25 U.S.C. §1706(a).
32 25 C.F.R., Part 83, “Procedures for Establishing that an American Indian Group Exists as an Indian Tribe.”
33 25 U.S.C. §§1705, 1706, and 1712.
34 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.
35 48 Fed Reg. 6177.
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it successfully sought to have the settlement lands transferred from the corporation to the Tribe,36
and taken into trust pursuant to 25 U.S.C. §46537 and proclaimed an Indian reservation under 25
U.S.C. §467.38
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.”39 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.”40
The district court upheld the SOI’s decision to take the 31-acre tract into trust.41 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”42 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.43
36 R.I. Gen. Laws §§37-18-12 through 37-18-14 (1985).
37 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).
38 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).
39 25 U.S.C. §479 (emphasis added).
40 25 U.S.C. §479.
41 290 F. Supp. 2d 167 (D.R.I. 2003).
42 25 U.S.C. §479 (emphasis supplied).
43 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.
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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.44 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.”45 The court chose to defer to DOI’s “longstanding interpretation of the term ‘now’”
as meaning “today” rather than “1934.”46 It viewed this interpretation as in accord with the
Supreme Court’s interpretation of the statute in United States v. John47 and buttressed by the
Federally Recognized Indian Tribe List Act48 and a 1994 amendment to the IRA.49
On rehearing,50 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,51 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.”52
44 Carcieri v. Norton, 398 F. 3d 22 (1st Cir. 2005).
45 Emphasis added.
46 Id., at 30.
47 437 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.
48 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).
49 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.”
50 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).
51 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).
52 423 F. 3d. 45, at 62.
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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.53
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.54 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.55 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
1934.56 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.57
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.58 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.”59 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.60 From this it reasoned, the
53 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).
54 The test was articulated by the Supreme Court in Chevron U.S.A. v. Natural Resources Defense Council, 467 U.S.
837 (1984).
55 Id., at 843.
56 497 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.
57 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.
58 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).
59 497 F. 3d. 15, 37.
60 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
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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.”61 Senior Circuit Judge Selya’s dissent characterizes the majority’s
construction of the RIICSA as “wooden” and “too narrow,” and the result, “absurd.”62 Judge
Selya argued that RIICSA must not be divorced from its historical context.63
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,64 one of which identified certain qualifications;65 two other Justices concurred in part and
(...continued)
Indians ... in ... Maine.” 25 U.S.C. §1724(e).
61 497 F. 3d. 15, 49-50 (Howard, Circuit J., dissenting).
62 497 F. 3d 15, 51-5 (Selya, J., dissenting).
63 “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.
64 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.
65 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.” 555 U.S. 396-400 (Breyer, J.,
concurring).
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dissented in part.66 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.”67 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.”68
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
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.69
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.’”70 This led the Court to
examine whether “now under Federal jurisdiction” means the date of the trust acquisition or
1934. By examining the language71 and context72 of the terms “Indian” and “tribe” and construing
66 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, 555 U.S., at 400-401. (Souter, J, concurring in part, dissenting in part).
67 25 U.S.C. §465 (emphasis supplied).
68 Id.
69 25 U.S.C. §479 (emphasis supplied).
70 555 U.S., at 388.
71 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.’” 555 U.S., at 388 (citations omitted; emphasis in original). Two
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them in harmony with one another,73 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.”74
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 1934.75
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
pursuant to § 478, which allowed tribal members to reject the application of the IRA to their
tribe.”76
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.77 The Court, therefore, found that the Narragansett Indian Tribe was
(...continued)
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). 555 U.S., at 388-389.
72 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.” 555 U.S., at 389. citing Barnhart v. Sigmon Coal Co., 534 U.S. 438, 452 (2002).
73 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.” 555 U.S., at 391-
392. 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). 555 U.S., at 392, n. 6.
74 555 U.S., at 410-411.
75 This argument had been advanced in an amicus brief submitted by the National Congress of American Indians.
76 555 U.S., at 394.
77 555 U.S., at 390, 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. 555 U.S., at 384.
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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 separately78 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 Indians79 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 1934.80 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.81
Potential Impact
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 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 or that is unable to cite another statute as providing authority for trust acquisitions.82
78 “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.” 555 U.S., at 401 (Stevens, J., dissenting).
79 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. 555 U.S. 405-
406.
80 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.” 555 U.S., at 407. 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.” 555 U.S., at 409.
81 “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).” 555 U.S., at 413-414.
82 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,
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DOI Solicitor’s Memorandum Indicates How a Tribe May
Demonstrate That It Was “Under Federal Jurisdiction” in 1934
The DOI released a memorandum, on March 12, 2014, in which the Solicitor of the Department
of the Interior interprets “The Meaning of ‘Under Federal Jurisdiction’ for the Purposes of the
Indian Reorganization Act” (Memorandum).83 In it, the Solicitor concludes that the Supreme
Court’s Carcieri decision leaves room for a tribe officially recognized post-1934 to establish that
it was “under Federal jurisdiction” in 1934 and, thus, eligible for having land taken into trust
under the IRA. This conclusion was drawn from an analysis of Carcieri. According to the
Solicitor, not only were the components of jurisdiction not addressed by the Court’s majority
opinion in Carcieri, but the possibility that some tribes would be able to present evidence of pre-
1934 dealings with the federal government sufficient to establish that they were actually under
federal jurisdiction in 1934 appears to have been recognized by three justices (two dissenters84
and Justice Breyer in his concurring opinion). 85
Before it focuses on the kinds of evidence that might be probative of a tribe’s being “under
Federal jurisdiction,” the Memorandum examines the phrase “now under Federal jurisdiction” to
determine how to construe it, looking to dictionary meanings, legislative history, and offering
several disparate possible constructions. Then, it concludes that the phrase is ambiguous and fails
to establish clearly a standard to determine which tribes qualify as being “under Federal
jurisdiction” in 1934. This leads the Solicitor to assume that the question must be analyzed under
the two-pronged test applicable to agency interpretations of statutes used by the Supreme Court in
Chevron v. Natural Resources Defense Council.86 Under that analysis, courts are to determine
whether a statute speaks directly to an issue; and, if not (i.e., if the statutory language is
ambiguous), they are to defer to a reasonable construction of the statute by the agency charged by
Congress with interpreting it. The implication is that the Solicitor is endeavoring to provide such
an interpretation—a reasonable construction of an ambiguous statute.
According to the memorandum, the DOI’s examination—of the question of how to interpret
“under Federal jurisdiction”—necessarily requires an exploration of the backdrop against which
(...continued)
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).
83 U.S. Department of the Interior, Office of the Solicitor, M-3702, (March 12, 2014), available at http://www.doi.gov/
solicitor/opinions/M-37029.pdf. (Hereinafter, Solicitor’s Memorandum). See also CRS Legal Sidebar, “Department of
the Interior Issues Guidance in Connection with Carcieri v. Salazar,” by Jane M. Smith (March 20, 2014), available at
http://www.crs.gov/LegalSidebar/details.aspx?ID=845&Source=search
84 Justices Souter and Ginsburg would have reversed and remanded Carcieri to give the DOI the opportunity to
determine whether the Narragansett Tribe was under federal jurisdiction in 1934.
85 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, 555 U.S., at 397). 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). 555 U.S., at 398.
86 467 U.S. 837 (1984).
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Congress enacted the IRA, which involves not only the contemporaneous legislative purposes,
debates, and hearings, but also the role of the various periodic shifts in federal Indian policy.
After reviewing the history of the IRA and the evolution of federal Indian policy, the
memorandum contemplates the impact of the vast range of powers over Indian affairs conferred
on and traditionally exercised by Congress and the executive branch under the U.S. Constitution.
Finally, before drawing inferences as to what types of evidence might show a tribe to have been
“under Federal jurisdiction” in 1934, the Solicitor points out the unique statutory construction
tools that the courts have employed when construing federal Indian statutes. Under these “canons
of construction” traditionally employed by the courts, Indian treaties and statutes are to be
liberally interpreted with ambiguities resolved in favor of Indians.87
Drawing upon inferences made from its exposition of federal Indian policy, the memorandum sets
out to determine what “under Federal jurisdiction” in 1934 means and how it is to be proven. In
general, according to the memorandum “under Federal jurisdiction,” in 1934, meant more than
that a tribe or group was generally subject to the Indian power of the federal government. It
“meant that the recognized Indian tribe was subject to the Indian Affairs’ authority of the United
States, either expressly or implicitly.”88 The basic requirement, therefore, according to the
Solicitor is that there be a showing that the federal government exercised jurisdiction before 1934
and that the jurisdictional status remained in 1934.89 This, in turn, requires a showing that “the
tribe’s history priory to 1934, [shows] an action or series of actions—through a course of
dealings—that are sufficient to establish ... federal obligations, duties, responsibility for or
authority over the tribe by the Federal Government.”90 It further requires “indicia of the tribe
having retained its jurisdictional status in 1934.”91
This memorandum is consistent with the 2010 DOI decision to accept land into trust for gaming
for the Cowlitz Tribe of Indians in Clark County, Washington. That decision 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.92
87 Solicitor’s Memorandum, at 5, states that “[u]nder these canons, statutory silence or ambiguity is not to be
interpreted to the detriment of Indians Instead, statutes establishing Indian rights and privileges are to be construed
liberally in favor of Indians, with any ambiguities to be resolved in their favor.” See also, Cohen’s Handbook of
Federal Indian Law,§ 2.02, n. 7 (2012 ed.), which reads: “County of Yakima v. Confederated Tribes & Bands of the
Yakima Indian Nation, 502 U.S. 251, 269 (1992) (‘When we are faced with these two possible constructions [of a
statute], our choice between them must be dictated by a principle deeply rooted in this Court’s Indian jurisprudence:
“Statutes are to be construed liberally in favor of the Indians, with ambiguous provisions interpreted to their benefit.”’)
(quoting Montana v. Blackfeet Tribe, 471 U.S. 759, 767-68 (1985)); Rincon Band of Luiseno Indians v.
Schwarzenegger, 602 F.3d 1019 (9th Cir. 2010) (statutes must be construed ‘most favorably toward tribal interests’);
Citizens Exposing the Truth About Casinos v. Kempthorne, 492 F.3d 460, 471 (D.C. Cir. 2007) (‘[A]s IGRA is
designed to promote the economic viability of Indian Tribes, the Indian canon of statutory construction requires the
court to resolve any doubt in favor of the Band.’); see also McClanahan v. Ariz. State Tax Comm'n, 411 U.S. 164, 176
(1973).”
88 Solicitor’s Memorandum, at 18 (emphasis supplied).
89 According to the Memorandum, tribes holding votes between 1934 to 1936 on whether to adopt an IRA constitution
need offer no further proof that they were “under Federal jurisdiction” in 1934. Id., at 20.
90 Id., at 19.
91 Id., at 19.
92 “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
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In general, however, the decision appears to mean that some tribes administratively
acknowledged since 1934 under the SOI’s administrative process may not acquire trust land
without further legislation.
Big Lagoon Rancheria v. California: Trust Land Acquired for a Tribe
Not Recognized in 1934 Is Not “Indian Lands” Under the Indian
Gaming Regulatory Act
On January 21, 2014, a three-judge panel of the U.S. Court of Appeals for the Ninth Circuit, in
Big Lagoon Rancheria v. California,93 issued an opinion, which is now under review by an en
banc panel of the court. It has raised issues of the validity of trust acquisitions for many newly
recognized tribes. The case involves a tract of land taken into trust in 1994 for the Big Lagoon
Rancheria of California (Big Lagoon). The Big Lagoon was not known to the DOI in 1934; it first
appeared on the list of “Indian Tribal Entities That Have a Government-to-government
Relationship With the United States” in 1979.94 The dispute with California was precipitated by a
breakdown in negotiations for a tribal-state gaming compact under the Indian Gaming Regulatory
Act (IGRA)95 when California objected to the site preferred by the tribe for its gaming operation.
On the basis of the Carcieri decision, the state claimed that the site had not been validly taken
into trust. It, therefore, asserted that the state was under no obligation to negotiate in good faith
for tribal gaming on a tract of trust land that did not meet IGRA’s definition of “Indian lands,”96
and, thus, was not eligible for IGRA gaming.
The three-judge panel of the Ninth Circuit agreed with California. It found that “[t]here was no
family or other group on what is now the Big Lagoon Rancheria in 1934”; that Big Lagoon was
not a tribe under federal jurisdiction in 1934; and, therefore, that the DOI had no authority under
the IRA to take land into trust for Big Lagoon. According to the court, Big Lagoon could not rely
on the DOI’s action in taking the particular land into trust to assert tribal jurisdiction over it for
IGRA purposes. There was a dissent that argued that the Federal Administrative Procedure Act
(...continued)
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
Parcel in Clark County, Washington (Reorganized and Supplemented) (June 6, 2006) (hereinafter Amended Fee-To-
Trust 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.
93 741 F. 3d 1032, reh’g granted, 758 F. 3d 1073 (9th Cir. 2014).
94 44 Fed. Reg. 7325 (Feb. 6, 1979).
95 P.L. 100-497, 102 Stat. 2467, 25 U.S.C. §§2701 - 2721; 18 U.S.C. §§1166 - 1168. See CRS Report R42471, Indian
Gaming: Legal Background and the Indian Gaming Regulatory Act (IGRA), by Jane M. Smith.
96 The Indian Gaming Regulatory Act (IGRA) defines “Indian lands” as follows: “[t]he term “Indian lands” means-
(A) all lands within the limits of any Indian reservation; and (B) any lands title to which is either held in trust by the
United States for the benefit of any Indian tribe or individual or held by any Indian tribe or individual subject to
restriction by the United States against alienation and over which an Indian tribe exercises governmental power” 25
U.S.C. § 2703(4),
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(APA), which has a six-year statute of limitation, was the only avenue to challenge a land-into-
trust decision. The court, however, rejected this argument, and ruled that the APA covered only
challenges involving procedural violations. Quoting from an earlier case, the court reasoned that
“‘[t]he government should not be permitted to avoid all challenges to its action, even if ultra
vires, simply because the agency took the action long before anyone discovered the true state of
affairs.’”97 It, therefore, held that the land was not “Indian lands” for IGRA purposes. According
to the court, California could contest the validity of the trust acquisition as a defense to a claim
that it was not negotiating in good faith because, with respect to “contests [of] the substance of an
agency decision as exceeding constitutional or statutory authority,” a “challenger may ... [raise
such a challenge] later than six years following the decision by filing a complaint for review of
the adverse application of the decision to the particular challenger.”98
The Big Lagoon decision involved a collateral attack on the ultra vires action, which was raised
as a defense by California. As the court’s opinion noted, the case does not involve an agency’s
attempt to enforce an ultra vires ruling long after the APA limitations period. The fact situation in
the case is merely analogous to the decisions on which the court relied in reaching its conclusion.
Moreover, there is a dissent that provides a different interpretation of the applicability of the APA
statute of limitations. The case does not involve the court’s ordering the land to be taken out of
trust. Nonetheless, unless the en banc panel reverses it, the decision may rightfully prompt tribes
in similar situations to prepare themselves for challenges to virtually any actions they take with
respect to exerting jurisdiction over their trust lands.99 The en banc panel heard oral arguments in
September 2014; its decision could come at any time.
Judicial Treatment of SOI Post Carcieri Land
Acquisition Determinations
Two recent federal district court decisions indicate that there are likely to be challenges to many
land-into-trust determinations based on Carcieri, whether or not a tribe is newly recognized.
These two cases have essentially upheld the SOI’s process of determining whether a tribe
qualifies for taking land into trust under the IRA. They both have agreed with the SOI that the
IRA’s reference to “under Federal jurisdiction” and “any recognized Indian tribe” is ambiguous.
They have further found the SOI’s interpretations of the phrases to be reasonable and have upheld
trust land applications at issue. One case involves a tribe that was not formally recognized until
2002; the second, a tribe that dates to colonial times.
97 741 F. 3d 1032, 1043, quoting Wind River Mining Corp. v. United States, 946-710 (9th Cir. 1991).
98 Id., at 710
99 See, e.g., Rob Capriccioso, “Big Lagoon Rancheria v. California: The Latest Threat to Tribal Land,” Indian Country
Today (Feb. 3, 2014. Available at: http://indiancountrytodaymedianetwork.com/2014/02/03/big-lagoon-rancheria-v-
california-latest-threat-tribal-land-153388.
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D.C. District Court Upholds Trust Land Acquisition for Gaming as an Initial
Reservation for a Tribe Recognized in 2002
On December 12, 2014, the U.S. District Court for the District of Columbia, in The Confederate
Tribes of the Grand Ronde Community of Oregon v. Jewell,100 the U.S. District Court for the
District of Columbia upheld a decision by the SOI to take land into trust for gaming101 for a tribe,
the Cowlitz Indian Tribe, which had not been officially acknowledged to be an Indian tribe until a
2002 DOI administrative ruling.102 The plaintiffs included a neighboring Indian tribe, local
government entities, nearby homeowners, and local businesses. They alleged that the trust
acquisition would be injurious to them and that it should be set aside as arbitrary and capricious
in violation of the Administrative Procedure Act.103 They argued that the decision to take the land
into trust was defective because the tribe was not eligible for land acquisition under the plain
language of the IRA. They also argued that, even if the tribe were eligible to have land taken into
trust, the land was not eligible for gaming under IGRA as an “initial reservation.”104 They lost on
both counts.
The court agreed with the SOI’s interpretation of the statutory language as ambiguous and, thus,
looked to see if the agency’s interpretation of it is a reasonable one. It began with the statutory
language of Section 19 of the IRA which authorizes the SOI to acquire trust land for “members of
any recognized Indian tribe now under Federal jurisdiction.” It found the language ambiguous
with respect to whether it was limited to tribes that were recognized in 1934 and under federal
jurisdiction in 1934 or whether it could apply to a tribe that could be found to be under federal
jurisdiction in 1934 but not recognized formally until after 1934. It reached this conclusion after it
had examined legislative history and statutory context, not finding any clear indication that the
language applied only to tribes that were recognized in 1934. It agreed with the SOI both in terms
of the language being ambiguous and the reasonableness of concluding that recognition need not
have been operative in 1934.
The court then evaluated whether the SOI’s test to determine whether a tribe was “under Federal
jurisdiction” in 1934 was reasonable and found that it was a reasonable test and that, as applied to
the Cowlitz Indian Tribe, it warranted deference by the court. The court buttressed its conclusion
by referring to Justice Breyer’s concurrence in Carcieri, which had identified factors that could
be used to show that a tribe, not formally recognized in 1934, was “under Federal jurisdiction” at
that time. The court rejected various claims brought by the plaintiffs challenging components of
the SOI’s test as applied to the Cowlitz Indian tribe, including the claim that the DOI should not
rely on failed treaty negotiations with a tribe as a factor in establishing federal jurisdiction. The
SOI’s test consists of two parts and is based on the Solicitor’s March 12, 2014, memorandum, on
“The Meaning of ‘Under Federal Jurisdiction’ for the Purposes of the Indian Reorganization Act.”
100 ___ F. Supp.3d ___, 2014 WL 701207 (D.D.C.). For further information, see CRS Legal Sidebar entry, “D.C.
District Court Upholds Interior’s Interpretation of Sections 5 and 19 of the Indian Reorganization Act after the
Supreme Court’s Carcieri Decision,” by Jane M. Smith (Mar. 5, 2015).
101 The court upheld the determination that the land qualified for gaming as an “initial reservation under 25 U.S.C.
§2819(b)(1)(B) and the Bureau of Indian Affairs’ implementing regulations, 25 C.F.R. §292.6, on the basis of
“significant historical connections” to the land, which was in the vicinity of the area which the tribe had used or
occupied.
102 67 Fed. Reg. 607 (Jan. 4, 2002).
103 5 U.S.C. §706(2)(A).
104 25 U.S.C. §2719(b)(1)(B).
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The two-part test looks at (1) whether a tribe can show “that Federal Government officials
undertook guardian-like action on behalf of the tribe” and (2) the absence of any “probative
evidence” terminating that jurisdictional status before 1934.105 Among the factors relied on to
determine that the Cowlitz Indian Tribe met the IRA’s “under Federal jurisdiction” test were the
following: (1) 1855 failed treaty negotiations; (2) various dealings between the Cowlitz Indian
Tribe and federal officials from the mid-1850s until 1934; (3) provision of medical and
educational resources for the Cowlitz Indians during the period; (4) representation of Cowlitz
Indian tribal fishing rights by the BIA’s Taholah Agency in 1927; (5) issuance of allotments to
individual Cowlitz Indians in the late 19th and early 20th centuries; and (6) approval by the DOI of
an attorney contract for the Cowlitz Indian Tribe in 1932.
N.Y. District Court Defers to SOI Interpretation of IRA Jurisdictional and
Recognition Requirements in Taking Land Into Trust for the Oneida Nation of
New York
On March 26, 2015, the U.S. District Court for the Northern District of New York, in Central
New York Fair Business Association v. Jewell,106 applied the framework employed by the
Supreme Court in Chevron, U.S.A., Inc. v. Natural Resources Defense Council (Chevron),107 and
found that the SOI’s interpretation of “under Federal jurisdiction” warranted judicial deference.
The case involved a challenge to a trust acquisition of 17,370 acres in Madison and Oneida
Counties, New York, for the Oneida Nation of New York. The case involved a tribe that
conducted a vote in 1934 under a provision of the IRA and that has had a relation with the federal
government that began with a 1794 treaty. Despite this long history, the plaintiffs claimed that the
Oneidas were not under federal jurisdiction in 1934. For this assertion, the plaintiffs claimed that
the Oneidas were under state jurisdiction,108 that 19th century legislation had terminated their
reservation,109 and that the vote that they held under the IRA was not proof of their being under
federal jurisdiction at the time. The court refuted the plaintiffs’ assertions. In upholding the SOI’s
decision, the court noted with approval the SOI’s determination that the IRA language—“now
under Federal jurisdiction” and “recognized Indian tribe”—was ambiguous and found the SOI’s
interpretation of it to be reasonable and worthy of Chevron deference. In reaching this conclusion,
the court elaborated on how the SOI had interpreted the recognition requirement in the IRA:
Having found ... that DOI’s interpretation that there is no time limit upon recognition is
reasonable, the Court agrees that recognition is not limited to the mechanism in the
[administrative process under [25 C.F.R., Part 83] ... regulations, and that DOI’s interpretation of
recognition as entailing a cognitive and a formal sense is reasonable.”
105 The Confederated Tribes of the Grand Ronde Community of Oregon v. Jewell, ___ F. Supp. 3d, 2014 WL 7012707.
106 ___ F. Supp. 3d, 2015 WL 1400384 (N.D.N.Y.).
107 467 U.S. 837 (1984).
108 The court found that the fact that New York had ceded its rights over Indian lands in the state to the federal
government when the U.S. Constitution supplanted the Articles of Confederation.
109 The court noted that a series of recent cases including Oneida Indian Nation of N.Y. v. Sherrill, N.Y., 337 F. 3d 139
(2d Cir. 2003), had ruled that there was no clear congressional intent to disestablish the Oneida Reservation.
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Congressional Activity
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 1934.110 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.”111
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.112 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
“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,”113 and argued that each of these tribes has, therefore, established that it has been “under
Federal jurisdiction” since 1934.114 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
110 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 U.S. House Committee on
Natural Resources, at 1 (April 1, 2009). http://frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname=
111_house_hearings&docid=f:48414.wais.
111 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://frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname=111_house_hearings&docid=f:48414.wais.
112 http://www.indian.senate.gov/public/_files/May212009.pdf.
113 25 C.F.R. §83.7(a).
114 Testimony of Edward P. Lazarus, Senate Committee on Indian Affairs 5-6 (May 21, 2009). http://indian.senate.gov/
public/_files/Lazarustestimony.pdf.
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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,115 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 1934.116 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.117
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.118
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.119 The reported version of S. 1703
included an amendment offered by Senator Tom Coburn which would have required DOI to study
115 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.
116 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/_files/Allentestimony.pdf.
117 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/hearings/
hearing.cfm?hearingid=3867&witnessId=8593.
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://frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname=111_house_hearings&docid=
f:53253.wais.
118 S.Rept. 111-247, 111th Cong., 1st Sess. (2009).
119 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).
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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.”120 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, 1934.121 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.”122 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.”123
It would have substituted that definition for the following language defining “tribe” for IRA
purposes: “The term ‘tribe’ wherever used in said sections124 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
120 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).
121 S. 1703, 111th Cong., 1st Sess., §1(b), 155 Cong. Rec. S9842 (daily ed. September 24, 2009).
122 S. 1703, 111th Cong., 1st Sess., §1(a)(1)(B), 155 Cong. Rec. S9842 (daily ed. September 24, 2009).
123 S. 1703, 111th Cong. 1st Sess., §1(a)(2). 155 Cong. Rec. S9842 (daily ed. September 24, 2009).
124 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.)
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litigation for both the United States and the tribes on matters that Congress long ago intended
to resolve.125
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.”126 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.”127
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, 2011, 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.128
125 S.Rept. 111-247, at 5.
126 155 Cong. Rec. S9842 (daily ed. September 24, 2009) (statement of Senator Dorgan).
127 155 Cong. Rec. S9842 (daily ed. September 24, 2009) (statement of Senator Dorgan).
128 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
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
(continued...)
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112th Congress
In the 112th Congress, none of the bills relating to Carcieri were enacted. Three bills were
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. One, S. 676, was amended and reported out of
committee—by the Senate Committee on Indian Affairs on April 7, 2011. 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.129
S. 676 also includes a provision that requires DOI to study the impact of the Supreme Court’s
decision and provide Congress with a list of affected tribes and lands.130 In reporting out the bill,
the Senate Committee on Indian Affairs criticized the Departments of Justice and of the Interior’s
handling of Carcieri before the Supreme Court by failing to contest the assertion that the tribe
was not under federal jurisdiction in 1934 and by failing to show the array of statutes by which
Congress sought to eliminate any disparate treatment of tribes based on recognition date.131
Moreover, in the report, the committee characterized the Carcieri decision as impacting all tribes
by “threaten[ing] public safety and tribal law enforcement”; creating “a barrier to economic
development”; “freez[ing] access to capital”; and, “increas[ing] Federal litigation over settled
Federal policy and practice.”132 H.R. 1234 also contains 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.
In the 112th Congress, there was also legislation to compensate local governments for lost revenue
associated with taking land into trust: S. 988, H.R. 1851, and H.R. 1882. These bills share the
same title: the Land-In-Trust Schools and Local Governments Equitable Compensation Act.
Under these bills, when lands are taken into trust for an Indian tribe or an individual Indian after
October 1, 2008, there will be compensation from the U.S. Treasury’s general fund for lost tax
revenue unless the Secretary of the Interior negotiates waiver agreements. Eligible entities
include local education agencies or units of local government and states that suffer loss of tax
revenue as a result of the trust acquisition. Payment of compensation requires no further
appropriation.
113th Congress
In the 113th Congress, one bill, S. 1603, the Gun Lake Trust Land Reaffirmation Act, was enacted
into law. It reaffirms the DOI’s May 15, 2005, trust acquisition of the land at issue in Match-E-
(...continued)
Act as amended by subsection (a).
129 For text of Section 2727 of H.R. 3082, 111th Cong., see supra, n. 94.
130 This provision is the result of an amendment offered by Senator John Barrasso during the Senate Indian Affairs
Committee’s consideration of the bill.
131 S.Rept. 112-166, 17 – 20, 112th Cong., 2d Sess. (2012).
132 Id., at 24-36.
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Be-Nash-She-Wish Band of Pottawatomi Indians v.
Patchak and requires that any federal court
action relating to that land be dismissed.
There was an Indian Affairs Committee hearing, “Carcieri: Bringing Certainty to Trust Land
Acquisitions.”133 At that hearing, Kevin K. Washburn, Assistant Secretary of the Interior for
Indian Affairs, stated that the Obama Administration’s “practical solution” for this issue is
language, included in the President’s budget request, that would amend the IRA as follows:
Effective beginning on June 18, 1934, the term “Indian” as used in this Act shall include all
persons of Indian descent who are members of any federally recognized Indian tribe, 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.134
H.R. 279 would have amended the IRA retroactively to define “Indian” to mean “any federally
recognized Indian tribe.” It would also strike the following sentence: “The term ‘tribe’ wherever
used in this Act shall be construed to refer to any Indian tribe, organized band, pueblo, or Indians
residing on one reservation,” and substitute: “In said sections, the term ‘Indian tribe’ means any
Indian or Alaska Native tribe,135 band, nation, pueblo, village, or community that the Secretary of
the Interior acknowledges to exist as an Indian tribe.”
H.R. 666 / S. 2188 would have amended the IRA retroactively to define “Indian” to mean “any
federally recognized Indian tribe.” These bills also contain provisions aimed at insulating past
land-into-trust acquisitions for tribes recognized at the time of the acquisition against challenges
based on the tribe’s not having been federally recognized as of June 18, 1934. The bills also
include a disclaimer with respect to effect on laws other than IRA or laws limiting the authority of
the SOI.
114th Congress
S. 732136 would amend the Indian Reorganization Act to declare that, “[e]ffective beginning on
June 18, 1934, the term ‘Indian’ as used in this Act shall include all persons of Indian descent
who are members of any federally recognized Indian tribe.” It contains a provision ratifying
previous SOI acquisitions for tribes federally recognized on the date that acquisition was
133 Carcieri: Bringing Certainty to Trust Land Acquisitions, Hearing before the Senate Comm. on Indian Affairs, 113th
Cong., 1st Sess. (November 30, 2013). http://www.indian.senate.gov/hearing/oversight-hearing-carcieri-bringing-
certainty-trust-land-acquisitions.
134 Testimony of Kevin K. Washburn, Assistant Secretary of the Interior for Indian Affairs, Carcieri: Bringing Certainty
to Trust Land Acquisitions, Hearing before the Senate Comm. on Indian Affairs, 113th Cong. 1st Sess. (November 30,
2013). http://www.doi.gov/ocl/hearings/113/trustlandacquisitions_112013.cfm.
135 In Akiachak Native Community v. Jewell, ___ F .Supp. ___, 2013 WL 528741 (D.D.C. 2013), a federal district
court ordered the Secretary of the Interior to sever the provision in 25 C.F.R. §151.1 that makes all Alaska Native
entities other than the Metlakatla Indian Community ineligible for land-into-trust application on the grounds that such
discrimination is prohibited by 25 U.S.C. §476(g). That subsection of the statute reads: “[a]ny regulation or
administrative decision or determination of a department or agency of the United States that is in existence or effect on
May 31, 1994, and that classifies, enhances, or diminishes the privileges and immunities available to a federally
recognized Indian tribe relative to the privileges and immunities available to other federally recognized tribes by virtue
of their status as Indian tribes shall have no force or effect.”
136 S. 732, 114th Cong., 1st Sess. (2015).
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Carcieri v. Salazar
confirmed and ratified and a provision preserving limitations on the SOI’s authority to take land
into trust in laws other than the Indian Reorganization Act.
H.R. 249137 would amend the Indian Reorganization Act to declare that, “[e]ffective beginning on
June 18, 1934, the term ‘Indian’ as used in this Act shall include all persons of Indian descent
who are members of any federally recognized Indian tribe.” It would strike the following
language found in 25 U.S.C.§ 479: “The term ‘tribe’ wherever used in this Act shall be construed
to refer to any Indian tribe, organized band, pueblo, or the Indians residing on one reservation.” It
would substitute for it the following language: “In said sections, 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.”
Author Contact Information
M. Maureen Murphy
Legislative Attorney
mmurphy@crs.loc.gov, 7-6971
137 H.R. 249, 732, 114th Cong., 1st Sess. (2015).
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