Interior’s 'Carcieri' Opinion Means More Diligence For Trust Land Development Projects

The Office of the Solicitor of the Department of the Interior has issued a legal opinion (the "Opinion") to the Secretary of the Interior interpreting the statutory phrase "under federal jurisdiction" in the Indian Reorganization Act, 25 U.S.C. § 461 et seq. (1934), (the "IRA").1 The Opinion is a result of the U.S. Supreme Court decision, Carcieri v. Salazar, 555 U.S. 379 (2009) (hereinafter, "Carcieri"), which limited Secretarial authority to take land into trust for tribes to those tribes "under federal jurisdiction" in 1934. The Opinion advises the Department of the Interior ("Interior") that a tribe may be considered "under federal jurisdiction" in 1934 if it can show:

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 relevants 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 United States; and if so, the tribe's jurisdictional status remained intact in 1934. Notably, the Opinion states that a tribe need not have been both under federal jurisdiction in 1934 and federally recognized in 1934 to be eligible to have land taken into trust on its behalf.

DISCUSSION

Background on the Carcieri Case

In the Carcieri decision, the Supreme Court held that the Secretary of the Interior ("Secretary") did not have the authority to take land into trust for the Narragansett Indian Tribe of Rhode Island ("Narragansett Tribe") under Section 5 of the IRA because the Narragansett Tribe was not "under federal jurisdiction" at the time the IRA was enacted in 1934. The Supreme Court's decision in Carcieri was based on the interpretation of two provisions of the IRA - the definition of "Indian" in Section 19 of the IRA and the authority of the Secretary to take land into trust under Section 5 of the IRA. The Supreme Court interpreted the definition of the term "Indian" in Section 19 of the IRA to constrain the Secretary's authority to take land into trust for Indians under Section 5 of the IRA. The Court concluded that the Secretary only has the authority to take land into trust for Indian tribes that were "under federal jurisdiction" in 1934.

The Carcieri decision...