Carcieri v. Salazar

Carcieri v. Salazar
Supreme Court of the United States
Argued November 3, 2008 Decided February 24, 2009
Full case name	Donald L. Carcieri, Governor of Rhode Island v. Ken L. Salazar, Secretary of the Interior, et al.
Docket nos.	07-526
Citations	555 U.S. ___ (more) 129 S. Ct. 1058; 172 L. Ed. 2d 791
Prior history	Carcieri v. Norton, 290 F.Supp.2d 167 (D.R.I. 2003); Carcieri v. Norton, 423 F.3d 45 (1st Cir. R.I. 2005); Carcieri v. Kempthorne, 497 F.3d 15 (1st Cir. 2007)
Holding
Reversed and remanded. Held held that the term "now under Federal jurisdiction" referred only to tribes that were federal recognized when the Indian Reorganization Act became law and the federal government could not take land into trust from tribes that were recognized after 1934.
Court membership
Chief Justice John G. Roberts Associate Justices John P. Stevens · Antonin Scalia Anthony Kennedy · David Souter Clarence Thomas · Ruth Bader Ginsburg Stephen Breyer · Samuel Alito
Case opinions
Majority	Thomas, joined by Roberts, Scalia, Kennedy, Breyer, and Alito
Concurrence	Breyer
Concur/dissent	Souter, joined by Ginsburg
Dissent	Stevens
Laws applied
25 U.S.C. §§ 465, 479

Carcieri v. Salazar, No. 07-526 (2009), was a recent case in which the Supreme Court of the United States held that the term "now under Federal jurisdiction" referred only to tribes that were federally recognized when the Indian Reorganization Act^[1] became law, and the federal government could not take land into trust from tribes that were recognized after 1934.^[2]

Background

Historical tribal relationship

The Narragansett tribe was first contacted by Europeans in 1524 at Narrangansett Bay, Rhode Island. Following King Philip's War,^[3] the tribe absorbed several smaller tribes, such as the Niantic and in 1709 came under the guardianship of Rhode Island.^[3] From 1880 to 1884, Rhode Island attempted to dissolve the tribe, selling off all but 2 acres (8,100 m²) of tribal land.^[3] The tribe resisted, requesting repeatedly to be dealt with as a tribe, culminating in lawsuits in January, 1975.^[4][5] In the resulting settlement, Rhode Island placed 1,800 acres (7.3 km²) of land into trust for the tribe, with the condition that with the exception of hunting and fishing regulations, state law would apply on the land.^[6][7]

Following this, the tribe requested federal recognition in 1979, which was granted in 1983.^[3] The tribe and the state disagree with a number of items, including the collection of taxes on cigarettes sold at a reservation smoke shop and the proposed building of a casino on reservation land. In 1991, the tribe purchased 31 acres (130,000 m²) to be used for housing for elderly tribal members, and petitioned the Secretary of the Interior to take the land into trust under the Indian Reorganization Act, thus removing it from state jurisdiction.

Action by the Department of the Interior and U.S. District Court

In March 1998, the Bureau of Indian Affairs (BIA) notified Rhode Island of its intent to take the 31-acre (130,000 m²) parcel into Federal Trust status. The state appealed this decision to the Interior Board of Indian Appeals, which ruled in favor of the tribe and the BIA.^[8] The state then filed suit in U.S. District Court. The District Court ruled in favor of the BIA and the tribe.^[9]

U.S. Circuit Court of Appeals

Rhode Island then appealed the District Court decision to the United States Court of Appeals for the First Circuit. A three judge panel heard the appeal and affirmed the summary judgment of the District Court.^[10] The state then requested a rehearing en banc by the full court, which was granted. On rehearing, the full court affirmed the decision of the District Court.^[11]

Opinion of the Court

Reversed and remanded. Justice Clarence Thomas delivered the opinion of the court.^[2]

Thomas determined that the authority of the BIA to take Indian land into a trust status hinged on the phrase "now under Federal jurisdiction" in 25 U.S.C. § 479. Using rules of statutory construction, he determined that this phrase limited the BIA to only take Indian Land into trust if the tribe was federally recognized in 1934 at the time of the laws enactment. This holding excluded the Narrangansett tribe from turning land over to the BIA as they were not federally recognized until 1983.^[2]

Concurrence

Justice Stephen Breyer issued a concurring opinion, joined by Justice David Souter.^[2]

Breyer stated that he believed that the majority opinion was correct, but due to the legislative history of the bill, not based on statutory construction. He allowed that even if a tribe was not formally recognized in 1934, they could still be under federal jurisdiction due to an earlier treaty or agreement.^[2]

Concurrence in part and dissenting in part

Justice Souter issued an opinion that concurred in part and dissented in part, joined by Justice Ruth Bader Ginsburg.^[2]

Souter stated that the notion of under federal jurisdiction and being federally recognized were not one and the same, even if that is how the BIA and the tribe both understood it. She would have remanded for a determination of the jurisdictional issue.^[2]

Dissent

Justice John P. Stevens dissented.^[2]

Stevens believed that "now" meant at the time the land was turned over to the BIA, and would have affirmed the lower court's decision.^[2]

Subsequent developments

The decision caused an immediate reaction in both the Native American and the legal community. The American Bar Association newsletter quickly pointed out possible consequences to Indian gaming and tribal sovereignty.^[12] A call has been made to "fix" the decision by Congressional action to allow the BIA to continue to take Indian lands into trust.^[13] By the end of 2009, there were two bills introduced in the United States House of Representatives, H.R. 3742 and H.R. 3697 that would change the language of the statute to allow lands to be taken into trust by the BIA after 1934. A companion United States Senate bill, S. 1703 was also introduced.

There is strong opposition, however, to any legislative "fix" from elected officials in states with existing Indian gaming operations and tribes recognized prior to 1934.^[14] Additionally, 17 state attorney's general have written a legal opinion opposing such legislation.^[15] As a result, no legislation has moved forward to alter the Carcieri v. Salazar Decision.

References

1. ^ Wheeler-Howard Act of 1934, 48 Stat. 988
2. ^ ^{a b c d e f g h i} Donald L. Carcieri, et al. v. Ken L. Salazar, et al., #07-526, 555 U.S. ___, 129 S.Ct. 1058, 172 L.Ed. 791 (2009)
3. ^ ^{a b c d} 48 F.R. 6177
4. ^ Narragansett Tribe of Indians v. Southern Rhode Island Land Development Corp., et al., 418 F.Supp. 798 (D.R.I. 1976)
5. ^ Narragansett Tribe of Indians v. Dennis J. Murphy, Jr., 426 F.Supp. 132 (D.R.I. 1976)
6. ^ Rhode Island v. Narragansett Indian Tribe, et al. 19 F.3d 685 (1st Cir. 1994)
7. ^ Rhode Island Indian Claims Settlement Act of 1978, 25 U.S.C. §§ 1701-1716
8. ^ Town of Charlestown v. E. Area Dir., Bureau of Indian Affairs, 35 IBIA 93 (2000)
9. ^ Donald L. Carcieri, et al. v. Gale A. Norton, et al., 290 F.Supp.2d 167 (D.R.I. 2003)
10. ^ Donald L. Carcieri, et al. v. Gale A. Norton, et al., 423 F.3d 45 (1st Cir. R.I. 2005)
11. ^ Donald L. Carcieri, et al. v. Dirk Kempthorne, et al., 497 F.3d 15 (1st Cir. 2007)
12. ^ Staudenmaier, Heidi M. and Sheppard, Celene (Spring, 2009). "Impact of the Carcieri Decision". American Bar Association Newsletter. American Bar Association. http://www.abanet.org/buslaw/committees/CL430000pub/newsletter/200905/staudenmaier.pdf. Retrieved March 4, 2010. 
13. ^ Fletcher, Matthew L.M. (February 25, 2009). "Decision's in. 'Now' begins the work to fix Carcieri". Indian Country Today. http://www.indiancountrytoday.com/home/content/40290987.html. Retrieved March 4, 2010. 
14. ^ Supreme Insult, Carcieri Decision, WampaLeaks, September 11, 2010.
15. ^ A Communication from the Chief Legal Officers of the following states and territories, April 24, 2009.

External links

• "Carcieri v. Salazar, #07-526, 555 U.S. ___, 129 S.Ct. 1058, 172 L.Ed. 791 (2009)