The U.S. Supreme Court issued a 6-3 decision in the case of Carcieri et al. v. Salazar et al., No. 07-526 (Feb. 24, 2009), on Tuesday holding that the Secretary of the Interior lacked authority under Section 5 of the Indian Reorganization Act (the “IRA”), 25 U.S.C. § 465, to take 31 acres into trust for the Narragansett Tribe (the “Tribe”) because the Tribe was not “under Federal jurisdiction” in 1934, when the IRA was enacted by Congress. This Alert will (1) summarize the key points of the Opinion; (2) discuss the immediate, practical implications of the decision; and (3) provide alternatives for a legislative fix. A detailed summary of the Opinion, concurrences and dissent are provided in the Addendum to this Memorandum.
I. Key Points of The Opinion
The Carcieri case concerns 31 acres of land the Tribe’s housing authority purchased in 1991. Soon after the purchase, the Tribe became involved in a dispute over the application of local regulations and ultimately failed to establish that the 31-acre parcel was Indian country over which the local authorities lacked jurisdiction. While the prior litigation was pending, the Tribe asked the Secretary to accept the 31 acres into trust. The Secretary notified the Petitioners – the Governor of Rhode Island and the town of Charlestown, R.I. – on March 6, 1998, that it would accept the land into trust. The Petitioners filed an administrative appeal with the Interior Board of Indian Appeals, which upheld the acquisition. The Petitioners then filed suit under the Administrative Procedure Act, 5 U.S.C. § 702, in United States District Court, which also upheld the Secretary. An appeal to the Court of Appeals for the First Circuit followed. The Court of Appeals affirmed the District Court in a panel decision and again sitting en banc.
The Supreme Court reversed the decision of the Court of Appeals and held that the Secretary’s authority under the IRA to take land into trust for an Indian tribe is limited to tribes that were “under Federal jurisdiction” in 1934 when the IRA was enacted. In the Opinion, the Court focused on the IRA’s definition of “Indian” to interpret the scope of the Secretary’s authority to take land into trust for the purpose of “providing land for Indians.” The IRA’s definition of “Indian” includes the phrase “all persons of Indian descent who are members of any recognized Indian tribe now under Federal jurisdiction”. The Court held that the word “now” in the phrase “now under Federal jurisdiction” meant the time of the IRA’s enactment in 1934. In so doing, the Court rejected the Secretary’s argument that “now” meant the time when the Secretary exercised his authority in the statute to take land into trust. The Court also rejected the Secretary’s argument that the broader definition of “tribe” in the IRA, which does not contain the phrase “now under Federal jurisdiction”, and the actual grant of authority in the IRA, which does not include a temporal restriction, should define the scope of the Secretary’s authority rather than the definition of the term “Indian”. The Court concluded:
We hold that the term “now under Federal jurisdiction” in § 479 [of the IRA] unambiguously refers to those tribes that were under the federal jurisdiction of the United States when the IRA was enacted in 1934. None of the parties or amici, including the Narragansett Tribe itself, has argued that the Tribe was under federal jurisdiction in 1934. And the evidence in the record is to the contrary.
Op. at 15.
Justice Breyer concurred in the Opinion but stated his qualification that the Court’s interpretation of “now” as meaning in 1934 “may prove less restrictive than it first appears. That is because a tribe may have been ‘under Federal jurisdiction’ in 1934 even though the Federal Government did not believe so at the time.” Breyer Op. at 3. While Justices Souter and Ginsburg believed the case should be remanded to Interior to determine whether the Narragansett Tribe was “under Federal jurisdiction” when the IRA was enacted in 1934, Justice Breyer did not believe remand was necessary because “I can find no … indication of 1934 federal jurisdiction here.” Souter Op. at 2; Breyer Op. at 5. Justice Stevens, in dissent, would have upheld the Secretary’s acquisition. “The Court today adopts a cramped reading of a statute Congress intended to be ‘sweeping’ in scope … In so doing, the Court ignores the ‘principle deeply rooted in [our] Indian jurisprudence’ that ‘statutes are to be construed liberally in favor of the Indians.’” Stevens Op. at 13.
The holding of the Court is that the Secretary’s authority under the IRA to take land into trust for an Indian tribe is limited to tribes that were “under Federal jurisdiction” in 1934. The Opinion, therefore, has the potential to affect any trust acquisition or pending acquisition based solely on the IRA for a tribe that was not “under Federal jurisdiction” in 1934. A tribe may show it was “under Federal jurisdiction” in 1934 by evidence that it was federally recognized at that time. The Opinion does not foreclose the possibility, however, that a tribe not formally recognized in 1934 could be “under Federal jurisdiction” by another means, such as the existence of a relationship with the federal government through a treaty. Notably, and despite the federal recognition finding that the Narragansetts “have existed autonomously since first contact, despite undergoing many modifications”, Op. at 4, the Secretary and the Narragansett Tribe did not argue that the Tribe was “under Federal jurisdiction” in 1934.
The Opinion does not affect trust acquisitions under the authority of other statutes (other than the Indian Land Consolidation Act, 25 U.S.C. § 2202), such as a tribe’s recognition or restoration act. If Congress has specifically provided that the Secretary has the power to take land into trust for a restored or newly recognized tribe, that is an independent grant of statutory authority and is not affected by this Opinion.Finally, the Court did not address whether its Opinion means trust acquisitions made to Tribes not “under Federal jurisdiction” in 1934 are void ab initio. Normally, after title passes in trust to the United States, suits to overturn the trust acquisition are generally barred by the Quiet Title Act, 28 U.S.C. §2409a(a). We anticipate that there will be groups who will try to challenge trust transfers made under the IRA for tribes recognized or restored after 1934, and those tribes should be prepared to defend those transfers.
III. Potential Legislative Fix The Court itself suggested that Congress could have included the text “now or hereafter” to indicate that acquisitions could be made for tribes “under Federal jurisdiction” after the enactment of the IRA. Op. at 9, 11. Therefore, a simple fix consistent with the Court’s view that the definition of “Indian” controls the definition of “Indian tribe” would be to add the two words “or hereafter” to Section 479:
The term “Indian” as used in this Act shall include all persons of Indian descent who are members of any recognized Indian tribe now or hereafter under Federal jurisdiction … .
This amendment would have to include ratification of trust transfers affected by the Court’s ruling. Similarly, amendments to the definition of “Indian tribe” or the statutory language authorizing acquisitions for the purpose of “providing land for Indians” could be made to clarify the scope of the Secretary’s authority.
A simpler alternative would be to strike the phrase “now under Federal jurisdiction” in Section 479 of the IRA based upon legislative findings that such a change corrects the Court’s misreading of the statute and the congressional intent in enacting it and is consistent with modern administrative practice. Such an approach also would address questions about whether the Secretary’s prior trust acquisitions are void ab initio and whether the IRA intended to draw distinctions between tribes recognized by treaty, those recognized by the Secretary, and those recognized or restored by Congress.
We anticipate that Interior will consider addressing whether and how a tribe is “under Federal jurisdiction” through either a proposed statutory definition, promulgation of federal regulations, or a less formal agency guidance memorandum based upon the advice and opinion of the Interior Solicitor.
Carcieri et al. v. Salazar et al., Case No. 07-526 (Feb. 24, 2009)
A. Majority Opinion
The Majority Opinion was delivered by Justice Thomas and joined in full by Justices Roberts, Scalia, Alito, and Kennedy. The Court’s analysis focused on the interpretation of the text of two key provisions of the Indian Reorganization Act. The Secretary’s stated authority for the trust acquisition was 25 U.S.C. § 465:
The Secretary of the Interior is authorized, in his discretion, 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.
For the acquisition of such lands, interests in lands, water rights, and surface rights, and for expenses incident to such acquisition, there is authorized to be appropriated, out of any funds in the Treasury not otherwise appropriated, a sum not to exceed $2,000,000 in any one fiscal year: Provided, That no part of such funds shall be used to acquire additional land outside of the exterior boundaries of the Navajo Indian Reservation for the Navajo Indians in Arizona, nor in New Mexico, in the event that legislation to define the exterior boundaries of the Navajo Indian Reservation in New Mexico, and for other purposes, or similar legislation, becomes law.
In its analysis of the case, the Majority focused on 25 U.S.C. § 479, the definitional provision of the IRA, which states as follows:
The term “Indian” as used in this Act shall include all persons of Indian descent who are members of any recognized Indian tribe now under Federal jurisdiction, and all persons who are descendants of such members who were, on June 1, 1934, residing within the present boundaries of any Indian reservation, and shall further include all other persons of one-half or more Indian blood. For the purposes of this Act, Eskimos and other aboriginal people of Alaska shall be considered Indians. 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. The words “adult Indians” wherever used in this Act shall be construed to refer to Indians who have attained the age of twenty-one years.
The Court saw the case as presenting a question of statutory interpretation of the phrase “now under Federal jurisdiction”. Op. at 1-2. The Governor of Rhode Island argued that the phrase “now” referred to June 1, 1934, the date of the enactment of the IRA, while the Secretary of the Interior argued the word “now” was ambiguous and could apply to tribes under federal jurisdiction at the time land was taken into trust for them.
The Majority found as a threshold matter that the statute was not ambiguous. Op. at 7. The Court first found that the statute allowed the Secretary to take land into trust only for “the purpose of providing land for Indians” and that “Indians” was defined by Section 479. The Majority – and the parties – next agreed that the Secretary’s authority “to take the parcel in question into trust” depends on “whether the Narragansetts are members of a recognized Indian Tribe now under Federal jurisdiction.” Op. at 7-8.
That question, in turn, requires us to decide whether the word “now under Federal jurisdiction” refers to 1998, when the Secretary accepted the 31-acre parcel into trust, or 1934, when Congress enacted the IRA.
Op. at 8. The Court held that “now under Federal jurisdiction” meant that a tribe was under federal jurisdiction in 1934. The Court based this interpretation upon: (1) the ordinary meaning of the word “now”; (2) other uses of the word “now” in the IRA; (3) court interpretations of the word “now” in other cases brought before and after the enactment of the IRA; and (4) the explanation of John Collier, Commissioner of Indian Affairs in 1934, that the term “Indian” includes all persons of Indian descent who are members of any recognized tribe that was under Federal jurisdiction at the date of the Act.
The Court considered but rejected the Secretary’s argument that “now” could refer to the time of the enactment of the IRA as well as a later time when the Secretary actually exercised his authority and took land into trust. The Court noted that if Congress had meant “nor or hereafter” it would have used the phrase “now or hereafter” as it did in other, unrelated parts of the IRA. Op. at 11. The Court also rejected the Secretary’s argument that Section 479 left a “gap” in definitions that the Secretary could fill by interpreting the terms “Tribe” and “Individual Indian” without reference to the date of the IRA’s enactment. The Court found that Congress’ use of three discrete definitions in the term “Indian” left no room for such gap-filling. Policy arguments that the statute was intended to strengthen Indian communities and reverse the loss of lands were rejected outright by the Majority, which found that Congress’ use of the word “now” in Section 479 speaks for itself. Op. at 12.
The Secretary and amici also had argued that the definition of “Indian” in Section 479 was irrelevant given the broader definition of “tribe” in the same section. The Majority, however, found that the definition of “tribe” was limited by the definition of “Indian”, which was in turn limited to members of tribes “under Federal jurisdiction” when the IRA was enacted. Op. at 13. The Court also found that the Indian Land Consolidation Act, 25 U.S.C. § 2202, did not provide an independent source of authority under Section 465 for the Secretary to take 31-acre parcel into trust because ILCA does not expand the Secretary’s authority under Section 465 and does not alter the definitions of Section 479. Rather, Section 2202 extends Section 465 to tribes that opted out of the IRA. Op. at 14.
As noted by the Majority, none of the parties to the case argued that the Narragansett Tribe was “under federal jurisdiction” in 1934 and “the evidence in the record is to the contrary.” Op. at 15 (citing Writ of Certiorari’s contention that Tribe “was neither federally recognized nor under the jurisdiction of the federal government.”).
B. Justice Breyer’s Concurrence
Justice Breyer concurred in the Opinion and the judgment with three qualifications: (1) the text “now under Federal jurisdiction” alone is not determinative and could be read as referring to the time when the Secretary exercises his authority and takes land into trust; (2) “now” means “in 1934” because, in addition to the Majority’s reasons, the legislative history supports the interpretation; and (3) reading “now” as “in 1934” is less restrictive than it at first appears because a tribe may have been “under Federal jurisdiction” in 1934 even though the federal government did not believe so at the time. Justice Breyer noted that the Secretary has acknowledged that tribes were wrongly left off of a list of federally recognized tribes and later recognized some of those tribes on grounds that it should have recognized them in 1934. Breyer Op. at 3. In addition, Justice Breyer wrote, Section 479 imposes no time limit upon recognition, and as a matter of administrative practice, Interior has accepted the possibility that tribes were under federal jurisdiction through maintenance of treaty rights even though not formally recognized. Justice Breyer noted that neither the Narragansett Tribe nor the Secretary had argued that the Tribe was under federal jurisdiction in 1934 and that the record shows no evidence of a 1934 relationship between the Tribe and the federal government could be described as jurisdictional. Breyer Op. at 5. Thus, given the lack of alternative theories on which to sustain the Secretary’s action, Justice Breyer would not remand the case.
C. Justice Souter’s and Justice Ginsburg’s Concurrence and Dissent
Justice Souter, joined by Justice Ginsburg, agreed with the concurring Opinion of Justice Breyer but dissented from the Majority’s “straight reversal” of the decision below. Justice Souter noted that nothing in the Majority Opinion forecloses the possibility that the concept of recognition and jurisdiction “may be given separate content.” Souter Op. at 1. The statute imposes no time limit upon recognition, Justice Souter wrote, and, in the past Interior has stated that the government’s ignorance of a tribe in 1934 does not preclude the tribe from being under federal recognition at that time. Although the record in the Narragansett case offers no particular reason to expect the Tribe might have been under federal jurisdiction in 1934, “the very notion of jurisdiction as a distinct statutory condition was ignored in this litigation[.]” Souter Op. at 2. Therefore, Justice Souter wrote, there is no reason to deny the Secretary and the Narragansett Tribe the opportunity to advocate that such jurisdiction might exist, and thus he would reverse and remand with the opportunity for the Respondents to pursue such a claim.
D. Justice Stevens’ Dissent
In his dissent, Justice Stevens found that the plain text of the IRA places no temporal limitation on the definition of “Indian tribe”, permitting the Secretary to take land into trust for the Narragansett Tribe. Justice Stevens focused on the broad mandate of the IRA to revitalize tribal development and cultural self-determination and the statute’s specific authority to make trust acquisitions for individual Indians and Indian tribes. The terms “Indian” and “tribe” must have separate definitions because separate provisions of the IRA extend certain benefits to individuals and other benefits to tribes, Justice Stevens wrote. Section 465 is unique in that it provides the Secretary with discretion to deliver benefits to tribes and individuals alike. Stevens Op. at 5-6.
Justice Stevens found that the Secretary has interpreted the definition of tribe in Section 465 to refer only to recognized tribes, since recognition is generally required before a tribe can receive federal benefits. Stevens Op. at 4, 6. In considering an acquisition in 1937, for example, Interior’s attorneys advised the agency that they could either recognize the tribe in question or take the land into trust on behalf of the individual Indians who were of one half of more Indian blood. Stevens Op. at 7. Justice Stevens found that since the federal recognition of the Narragansett Tribe is not in dispute, the Secretary has authority to make a trust acquisition for the Tribe.
Justice Stevens stated that the Majority’s Opinion erred by making the word “now” the most important word in the IRA and would result in the conclusion that the Narragansett Tribe is “not an Indian tribe under the IRA.” Stevens Op. at 9. Such a conclusion only works if the text in Section 465 authorizing the Secretary to acquire “land for Indians” only means individual Indians, not Indian tribes, Justice Stevens wrote. Yet Congress clearly intended the IRA to authorize tribal trusts or individual trusts, and the statute itself uses the terms “Indians” and “Indian tribe” interchangeably, he noted. Justice Stevens found that the phrase “Indians” could reasonably mean multiple individuals who qualify as “Indian” under the IRA or a collective, namely, an Indian tribe. Justice Stevens dismissed the Majority’s reasoning that the term “Indian tribe” is limited by the definition of “Indian” as “circular” reasoning. In Justice Stevens’ view, if a tribe satisfies the stringent criteria for recognition – which includes the requirement that a tribe prove it has existed from historical times until present – it is an Indian tribe as a matter of law.
Justice Stevens concluded by stating that the sweeping mandate of the IRA and the canons of statutory construction that advise the Court to interpret treaties, agreements, and statutes liberally in favor of the Indians were ignored in Carcieri by the Court.