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: Northwest Business Litigation Blog

U.S. Supreme Court throws future tribal land acquisitions into doubt

By Rob Roy Smith

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Today, the U.S. Supreme Court issued a decision in Carcieri v. Salazar that might dramatically limit the ability of the United States to take land into trust for certain Indian tribes. Trust status is important as it allows tax and other regulatory benefits to flow to tribes and their business partners. Further, Indian gaming facilities must be located on trust land.

The 6-3 decision narrowly interprets the phrase "now under Federal jurisdiction" in the Indian Reorganization Act, 25 USC 479, to mean that the Secretary of the Interior has authority to take land into trust for tribes that were "under Federal jurisdiction" as of 1934. Only 258 Indian tribes were recognized by the United States in 1934, and approximately 300 tribes have been federally recognized since then. The decision affects all post-1934 recognized tribes. It is now unclear whether the United States can acquire new land for these tribes in trust and whether prior trust acquisitions were valid in the first place.

The majority decision does not define "under Federal jurisdiction." What does "under federal jurisdiction mean"? Narrowly construed, "under Federal jusisdicition" might mean formal federal recognition, thereby eliminating the ability of many tribes to acquire new trust land. Alternatively, it might mean something less formal, such as proof of some existing relationship or oversight by the federal government in 1934. Supporting this alternative position, Justice Breyer's concurrence expressly references the Stillaguamish Tribe in Washington, and indicates that even though the Tribe was not recognized until 1976 "its reasons for recognition in 1976 included the fact that the Tribe had maintained treaty rights against the United States since 1855."

Based on today's opinion, it would seem that for all future (or pending) trust acquisitions, it will be important for newly recognized tribes to prove up the indicia of "under Federal jurisdiction" in 1934. This might be demonstrated through a recognized treaty right, as in the case of Stillaguamish. Otherwise, tribes and their business partners looking to acquire land in trust status must carefully review the tribe's federal recognition documents to see what is said about federal superintendence in 1934. More recently recognized tribes might need to hire anthropologists to do additional research into how the tribe was viewed in 1934.

More litigation is likely to follow. A congressional "fix" might also be in the works. Stay tuned.

Full post as published by Northwest Business Litigation Blog on February 24, 2009 (boomark / email).