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Tuesday, July 31, 2012

The Carcieri Challenge: Proving “Under Federal Jurisdiction [As of 1934]”

By Dennis J. Whittlesey

The recent Supreme Court ruling in Match-E-Be-Nash-She-Wish Band (“Gun Lake Band”) v. Patchak will allow the challenge to the Gun Lake Indian casino to be litigated. In the process, the Court has put the spotlight back on the Court’s February 24, 2009, decision in Carcieri v. Salazar. That decision concluded that the Secretary of the Interior cannot accept land into trust for any tribe not “under federal jurisdiction” as of the enactment of the Indian Reorganization Act of June 18, 1934 (“IRA”), the only federal law authorizing the Secretary to accept land into trust status for tribes.

The Carcieri decision did not define “under federal jurisdiction” and subsequent Congressional attempts to moot the ruling (the so-called “Carcieri fix”) have been unsuccessful. The current situation is that nobody can predict whether Department of the Interior administrative determinations finding “under federal jurisdiction” status for tribes not federally recognized in 1934 will survive judicial challenge. In December 2010, Interior rendered such a ruling in favor of the Cowlitz Tribe of Washington, which was not federally recognized until 2002. The rationale of Interior’s finding was that the Cowlitz Tribe was a party to the Treaty of Olympia of 1856, which established federal jurisdiction over the tribe some 78 years before Congress passed the IRA. The decision further declared that the tribe’s 2002 recognition satisfied the law’s requirement that land could only be taken into trust for “recognized” tribes.

The Cowlitz project was clearly intended to be a test case for administrative circumvention of what appeared to be an outright roadblock to newly recognized tribes gaining trust land in the absence of federal legislation. Legal challenges were quickly filed and are pending in federal court. By grounding the decision on tribal treaty status, Interior seems to be reaching for something broader than a case-by-case justification of facts existing in 1934. Whether that strategy is successful remains to be seen, but the pending legal challenge has indefinitely stalled the Tribe’s efforts to construct a casino.

Interior’s “ratified treaty tribe” theory may well prove to be a strategy that ultimately allows a number of newly recognized tribes to gain land in trust and even establish reservations. But it will not apply to all.

With or without a successful Cowlitz strategy, there are tribes that will be searching for their own “magic bullet.” But even a positive administrative decision can be a fleeting victory for any tribes, especially in light of the Gun Lake – Patchak decision, which has liberalized the requirements for “standing to sue” for tribal opponents as well as extending the time for challenging trust decisions to six years.

To learn more about the Carcieri fix, read the full article in the latest edition of Gaming Legal News.