The Interior Department
released a long-awaited legal opinion on Wednesday that addresses the U.S. Supreme Court
decision in Carcieri v. Salazar
In February 2009, the court held that the Indian Reorganization Act
only allows DOi to approve land-into-trust applications for tribes that were "under federal jurisdiction" in 1934, the year the law was passed. The meaning of that phrase, however, was not defined so the decision has created uncertainty and has spawned more than a dozen new lawsuits.
With the legal opinion, Solicitor Hilary Tompkins
aims to resolve the uncertainty. The 26-page document, which she first announced at the winter session of the National Congress of American Indians
, explains how recently recognized tribes, or tribes whose status was in doubt in 1934, can still follow the land-into-trust process.
"Thus, having closely considered the text of the IRA, its remedial purposes, legislative history,
and the department's early practices, as well as the Indian canons of construction, I construe the
phrase 'under federal jurisdiction' as entailing a two-part inquiry," Tompkins wrote.
"The first question is to examine whether there is a sufficient showing in the tribe's history, at or before 1934, that it was under federal jurisdiction, i.e., whether the United States had, in 1934 or at some point in the tribe's history prior to 1934, taken an action or series of actions - through a course of dealings or other relevant acts for or on behalf of the tribe or in some instance tribal members - that are sufficient to establish, or that generally reflect federal obligations, duties, responsibility for or authority over the tribe by the federal government," Tompkins continued, laying out the first part of the inquiry.
For example, negotiations for a treaty -- even if it was never ratified by the Senate
-- constitute an acknowledgment that a tribe was "under federal jurisdiction," Tompkins wrote. The approval of contracts or the enrollment of children in Bureau of Indian Affairs
schools could also satisfy the test.
"There may, of course, be other types of actions not referenced herein that evidence the federal government's obligations, duties to, acknowledged responsibility for, or power or authority over a particular tribe, which will require a fact and tribe-specific inquiry," Tompkins wrote.
But the inquiry doesn't end there, Tompkins stated. "Once having identified that the tribe was under federal jurisdiction prior to 1934, the second question is to ascertain whether the tribe's jurisdictional status remained intact in 1934," the opinion stated.
Again, Tompkins said each situation will be examined on a case-by-case basis.
"For some tribes, the circumstances or evidence will demonstrate that the jurisdiction was retained in 1934," she wrote. "In some instances, it will be necessary to explore the universe of actions or evidence that might be relevant to such a determination or to ascertain generally whether certain acts are, alone or in conjunction with others, sufficient indicia of the tribe having retained its jurisdictional status in 1934."
The opinion also seeks to resolve another argument that has arisen in the wake of Carcieri. Some claim that a tribe must have been federally recognized in 1934 and must have been "under federal jurisdiction" in 1934 in order follow the land-into-trust process.
"That contention is legally incorrect," Tompkins simply wrote.
The IRA requires a tribe to be federally recognized at the time of a land-into-trust acquisition, Tompkins said. The law does not state that a tribe must have been officially recognized in 1934, she wrote.
The opinion's release comes as tribes ramp up their lobbying efforts for a legislative fix to the Carcieri decision. The topic has been discussed repeatedly during NCAI's winter session this week in Washington, D.C.
“NCAI is pleased the Department of the Interior has addressed one of the many problems created by the unclear and damaging language in the Carcieri decision," President Brian Cladoosby said in response to the opinion. "It is encouraging to see a federal agency work to strengthen the trust relationship – particularly the DOI, as one of their fundamental tasks is fulfilling the United States’ trust responsibility to tribal nations."
"The opinion is encouraging, but Carcieri still stands," Cladoosby added. "Tribes need a permanent, legislative solution and NCAI will continue to work towards a clean Carcieri fix. All tribes must be treated equally but as long as Carcieri is upheld, that is not possible and that is unacceptable.”
In speaking at NCAI this week, several members of Congress vowed to pass a Carcieri fix. But concerns over gaming and other issues have prevented a bill from passing both chambers.
DOI Solicitor Opinion:
M-37029: The Meaning of "Under Federal Jurisdiction" for Purposes of the Indian Reorganization Act
(March 12, 2014)
Highlights from Day 1 of NCAI winter session in
(3/12) National Congress of American Indians set for
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