BIA weighs land-into-trust after Supreme Court ruling

Law | Politics | Trust

Thursday, March 26, 2009

The Bureau of Indian Affairs is taking steps to address the U.S. Supreme Court decision in Carcieri v. Salazar but a formal policy probably won't come until a new legal team at the Interior Department is on board.

On February 24, the high court limited the land-into-trust process to tribes that were "under federal jurisdiction" in 1934. The decision has raised doubts for tribes that weren't recognized when the Indian Reorganization Act was passed more than 70 years ago.

But the BIA is telling tribes that the questions won't be resolved until Interior's Office of the Solicitor makes a final determination on the issue. Hilary Tompkins, a member of the Navajo Nation, was nominated to the post yesterday but her confirmation by the Senate is weeks away.

Most tribes won't be affected because their federal status in 1934 is not in doubt. The BIA will continue to process their land-into-trust applications as usual, according to a new guidance memorandum from officials in Washington, D.C.

Tribes whose land-into-trust applications are covered by other acts of Congress aren't affected either. For example, when the Federated Indians of Graton Rancheria in California was restored to recognition in 2000, the BIA was directed to acquire land for the tribe.

But two classes of tribes will be in limbo until the Solicitor's determination. They include tribes that followed the BIA's administrative recognition process, which wasn't established until 1978, and tribes whose federal status in 1934, for whatever reason, is an issue.

The most prominent case in the first class is the Mashpee Wampanoag Tribe, the last to gain recognition through the acknowledgement process. The Massachusetts tribe submitted two land-into-trust applications in August 2007 but the guidance memorandum tells the BIA to seek advice from the Solicitor before moving forward.

Another is the Cowlitz Tribe of Washington, which gained recognition in 2002. The tribe's land-into-trust application was ready for approval near the end of the Bush administration but no decision was made.

In total, 16 tribes have been recognized through the process since 1978, according to the Office of Federal Acknowledgment.

The second class is a more difficult to assess because the BIA is still trying to determine which tribes were "under federal jurisdiction" in 1934. But the category includes the Ione Band of Miwok Indians, a California tribe that didn't appear on the list of recognized tribes until 1994.

The BIA has been drafting an environmental impact statement for the tribe's land-into-trust application but the guidance memorandum requires the agency to seek advice from the Solicitor before moving forward for these types of cases. An e-mail that described the memo was sent to tribes in Michigan on Tuesday.

"It may be possible to continue processing the applications while legal advice is being sought," the e-mail said regarding this class of tribes. "No final decision should, however, be made and no deeds should be approved until it has been determined whether or not they were under federal jurisdiction in 1934."

Just how the Solicitor will make such determinations is not clear. But a brief the Department of Justice had submitted in another land-into-trust case that was up for review by the Supreme Court laid out some potential considerations.

"The [Interior] Department would need to explore the law and facts about federal recognition of and jurisdiction over the Band, including inter alia, any treaties, statutes, administrative activities, or the like that involved federal oversight of the Band or its property in 1934," government attorneys said in the brief, referring to the Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians, a Michigan tribe that gained recognition through the acknowledgment process in 1999.

While Interior weighs these issues, Congress will be stepping into the debate. The House Natural Resources Committee has scheduled an April 1 hearing to address the decision, to be followed by the Senate Indian Affairs Committee on April 2.

Tribal leaders are asking Congress to amend the IRA to ensure that all tribes, regardless of the date of their recognition, can follow the land-into-trust process. Lawmakers who addressed the National Congress of American Indians earlier this month were receptive the idea.

Interior Secretary Ken Salazar also said he supports the right of "all tribes" to follow the land-into-trust process.

Excerpt of BIA E-mail Regarding Carcieri v. Salazar:

1. For those Tribes where there is no question that they were under Federal jurisdiction in 1934, continue processing the applications as usual
2. For those Tribes with an organization history that raises any question about whether they were under Federal jurisdiction in 1934, seek advice from the Solicitor's Office as to the effect of the Carcieri decision on those tribes. It may be possible to continue processing the applications while legal advice is being sought. No final decision should, however, be made and no deeds should be approved until it has been determined whether or not they were under Federal jurisdiction in 1934.
3. For those Tribes that were federally acknowledged under 25 CFR Part 83, restored or reaffirmed after June 1934, seek advice from the Solicitor's Office before continuing to process those applications.
4. For those Tribe which have specific land acquisition authority other than 25 USC 465, continue processing applications because they are not affected by the Carcieri decision.

Supreme Court Decision:
Syllabus | Opinion [Thomas] | Concurrence [Breyer] | Dissent [Stevens] | Concurrence/Dissent [Souter]

Supreme Court Documents:
Oral Argument Transcript | Briefs