DISTINGUISHING CARCIERI v. SALAZAR: WHY THE SUPREME COURT GOT IT WRONG AND HOW CONGRESS AND COURTS SHOULD RESPOND TO PRESERVE TRIBAL AND FEDERAL INTERESTS IN THE IRA'S TRUST-LAND PROVISIONS
Sarah Washburn
Abstract: Section 5 of the Indian Reorganization Act (IRA)(fn1) authorizes the Secretary of the Interior to acquire and hold land in trust for the purpose of providing land for Indians. In 2009, the Supreme Court held in Carcieri v. Salazar(fn2) that to qualify for the benefits of Section 5, tribes must show they were under federal jurisdiction at the time the IRA was enacted in 1934.(fn3) The Carcieri Court then determined that the Narragansett tribe, which obtained federal recognition in 1983 under the 25 C.F.R. Part 83 recognition process, had not proven that it was under federal jurisdiction in 1934.(fn4) Carcieri was the first case in which the Court decoupled jurisdiction from recognition for purposes of the IRA. It could be read to suggest that federal recognition on its own is not enough to prove federal jurisdiction for purposes of the IRA and thus threatens the interests of all tribes; especially at risk are tribes that obtained federal recognition after Congress enacted the IRA. Many of those tribes were simply overlooked and excluded from a list of recognized tribes compiled upon enactment of the IRA, and all of them have demonstrable historical relationships with the federal government. While the Carcieri Court limited its holding to the timing question-that the phrase "now under federal jurisdiction" in the IRA means that a tribe must prove federal jurisdiction existed in 1934-it did not consider how tribes might prove such jurisdiction existed. This Comment argues that tribes recognized after the enactment of the IRA, through either traditional recognition processes or the recognition procedures set forth in 25 C.F.R. Part 83, were necessarily under federal jurisdiction in 1934 and should therefore qualify under the IRA's Section 5 trust-land provisions. It argues that Congress should respond to Carcieri with legislation clarifying that all federally recognized tribes were necessarily under federal jurisdiction in 1934. It further argues that until Congress acts, courts should allow tribes recognized after 1934 to prove through additional evidence that such jurisdiction existed.
INTRODUCTION
The Cheyenne River Sioux tribe's documented history stretches back to the mid-seventeenth century, when European explorers encountered the tribe's Sioux ancestors living in central Minnesota and northwestern Wisconsin.(fn5) After the American Revolution, the tribe experienced rocky relations with the United States government until the Treaty of Fort Laramie established the Great Sioux Reservation.(fn6) In 1935, the tribe was approved as an organized, recognized tribe(fn7) under the Indian Reorganization Act (IRA).(fn8)
The documented history of the Narragansett tribe dates back to 1614. That tribe achieved federal recognition under the 25 C.F.R. Part 83 procedures in 1983,(fn9) which means that, among other things, the tribe demonstrated it had been "identified as an American Indian entity on a substantially continuous basis since 1900" and "existed as a community from historical times until the present."(fn10)
Both tribes have extensive documented histories confirming their status as American Indian entities. However, under the 2009 Supreme Court decision in Carcieri v. Salazar(fn11) the Cheyenne River Sioux tribe can have land held in trust under Section 5 of the IRA, but the Narragansett tribe cannot. Carcieri held that to qualify for the IRA's trust-land provisions, a tribe had to have been under federal jurisdiction in 1934-the year Congress enacted the IRA.(fn12) While the Court did not consider what evidence might prove that a particular tribe was subject to such jurisdiction, it did conclude that the Narragansett tribe had not proved it was under federal jurisdiction in 1934.(fn13) As a result, courts may be tempted to rely on the 1934 list of tribes organized and recognized under the IRA to determine which tribes satisfy Carcieri,(fn14) but such a response would create a dividing line that excludes tribes recognized after 1934 from the IRA's trust land benefits.
However and whenever it is attained, federal recognition has important consequences for Indian tribes. Recognition qualifies tribes for statutory benefits, affects tribal land ownership, and, above all, formalizes the historic trust relationship between tribes and the federal government, thus qualifying tribes for federal protection of their sovereignty and property.(fn15) Since 1934, the government has recognized hundreds of tribes through traditional methods (including treaties, congressional legislation, executive orders, and other clear evidence of federal-tribal relations) and through the formal recognition process adopted in 1978, which is currently codified as amended at 25 C.F.R. Part 83.(fn16) Under the latter process, a tribe seeking recognition must prove, among other things, historical existence as a community and identification as an American Indian entity since 1900.(fn17)
As a part of the historical federal-tribal trust relationship, the federal government has protected Indian land, including taking land into trust for tribes to protect against encroachment by states or private citizens.(fn18) Congress codified this process in Section 5 of the IRA, which authorizes the Secretary of the Interior to acquire interests in land for the purpose of providing land for "Indians,"(fn19) defined as "persons of Indian descent who are members of any recognized Indian tribe now under Federal jurisdiction."(fn20) Since 1934, the Department of the Interior has allowed land to be held in trust for tribes recognized under 25 C.F.R. Part 83, as well as for tribes recognized through traditional means after 1934.(fn21) However, in Carcieri v. Salazar, the Supreme Court limited the scope of the IRA's trust-land provisions and instilled doubt concerning the ability of tribes recognized after 1934 to have land held in trust by the federal government. The Court held that the Narragansett tribe, which was unrecognized at the time of the IRA's enactment in 1934 but obtained federal recognition in 1983 through the 25 C.F.R. Part 83 process, did not qualify to have land held in trust under the IRA.(fn22) The Court read the IRA's definition of "Indian" to mean that the Secretary's trust authority is limited to "those tribes that were under the federal jurisdiction of the United States when the IRA was enacted in 1934."(fn23) Despite the fact that the Narragansett tribe did not have a chance to argue the jurisdiction issue,(fn24) the Court found that the tribe failed to prove it was under federal jurisdiction in 1934 and did not qualify for the benefits of Section 5 of the IRA.(fn25)
Congress responded to Carcieri in September 2009 by introducing Senate Bill 1703, a bill "[t]o amend the [IRA of 1934], to reaffirm the authority of the Secretary of the Interior to take land into trust for Indian tribes."(fn26) The bill, if passed, would allow any federally recognized Indian tribe, regardless of the date of recognition, to benefit from the trust-land provisions of the IRA.(fn27) The Senate Committee on Indian Affairs considered the bill and reported it on December 17, 2009.(fn28) As of this writing, Congress has taken no further action on the bill. Nonetheless, the Committee's consideration of S. 1703 demonstrates congressional recognition that Carcieri may require a legislative fix.
Carcieri calls into question the ability of tribes recognized after 1934 to have land held in trust pursuant to Section 5 of the IRA. This Comment argues that tribes formally recognized by traditional methods since 1934, as well as tribes recognized under 25 C.F.R. Part 83, were necessarily under federal jurisdiction in 1934 and thus should be eligible for the benefits of Section 5 of the IRA.
Part I provides an overview of the history of federal plenary power over Indian affairs and its implications for Indian property ownership. Part II describes one historical implication of the plenary power doctrine, namely the duties and responsibilities owed to tribes by the federal government as a result of the federal-tribal trust relationship. Part III details the various approaches to tribal recognition that the federal government has used throughout the history of federal-tribal relations, including an analysis of the IRA's approach to recognition and the problems caused by that approach. Part IV details the experiences of several tribes that went unrecognized under the IRA in 1934 but were subsequently recognized by traditional means of recognition or by the modern 25 C.F.R. Part 83 recognition process. Part V introduces Carcieri v. Salazar, a decision that affects the interests of tribes recognized after 1934.
Finally, Part VI argues that because tribes formally recognized since 1934 were necessarily under federal jurisdiction in 1934, they should qualify for IRA Section 5 benefits regardless of date or method of recognition and that finding otherwise conflicts with express federal policy, long-standing principles of Indian law, and principles underlying federal-tribal relationships. Congress should legislate to require such a result. Until then, courts should distinguish Carcieri because the tribe in that case, which was...
