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Law | Trust
Turtle Talk: Money damages and land-into-trust


"I see now that the Dept. of Interior is (un)officially segregating Indian tribes for purposes of trust acquisitions (see email reported on Indianz), shutting down (apparently) some trust applications and allowing others to proceed, that the first impacts of Carcieri have reached Indian Country, as expected.

Maybe it’s worth revisiting what the Supreme Court did in Carcieri from a slightly different point of view. Arguably, a money claim against the United States for failure to properly recognize certain Indian tribes in 1934 has now accrued.

One can argue that federal recognition by either the Secretary or Congress is an attempt to remedy the likely illegal acts of not recognizing the tribes in 1934. If we take treaty tribes that were administratively terminated, for example, or other tribes the Department didn’t want to recognize in 1934, then there is a decent argument that the Department acted illegally in denying them access to the Indian Reorganization Act. Some of those tribes have made efforts to recover some funds for the failure to provide services, with almost no success (see the Samish case for instance).

But, if a tribe can prove that the Department’s actions (or inactions) in 1934 in not recognizing the tribe were illegal (and many, many tribes likely can), then there is a legal hook. Maybe the damages that accrued from that initial failure are not recoverable because of the statute of limitations, but the new damages accruing from the new legal regime post-Carcieri are brand new. It might not be a whole lot for one tribe, but when you start adding up tribes, you get significant damages."

Get the Story:
Is There a Money Claim Against the US Post-Carcieri? (Turtle Talk 3/26)

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