Indian Gaming Today

Thursday, February 26, 2009

A “Bolt from the Blue” from the Supreme Court

The U.S. Supreme Court has laid down the law once again for Indian Country, holding that the Indian Reorganization Act of 1934 (IRA) does not authorize the Secretary of the Interior to take land into trust for tribes that were not under federal jurisdiction as of the date the IRA was enacted. The decision has major implications, as is discussed in the Boston Globe, in which Steve is quoted.

The 6-3 decision in Carcieri v. Salazar, No. 07-526 (Feb. 24, 2009) throws into doubt previous decisions by the Secretary to take land into trust for recently recognized tribes, including the Narragansetts in Rhode Island (who were the subject of the Court decision) and the Mashpee Wampanoag in Massachusetts (who have been hoping to build a $1 billion casino in Middleborough).

Carcieri concerned the Narragansetts’ argument that 31 acres of land it owns in Charleston, Rhode Island, should be placed in trust. Following an administrative decision that came down on the side of the Secretary, the state sued. Both a federal district court and the First Circuit found in favor of the tribe, but the Supreme Court reversed.

The Court’s analysis for the most part turned on its reading of the IRA’s statutory language, and the related application of basic principles of administrative law. The IRA authorizes the Secretary to take land into trust for the benefit of a “recognized Indian Tribe now under Federal jurisdiction.” The question of whether “now” means in 1934, or at the time the Secretary acts, had been held to be ambiguous enough by a lower court to merit deference to the Secretary under the Chevron doctrine (which requires a court to defer to an agency interpretation under such circumstances)—as had been the case for the last 75 years.

However, writing for the majority, Justice Clarence Thomas found the meaning of “now” to be unambiguously understood to be at “the present time; at this moment; at the time of speaking.” Hence the Secretary did not have authority to take land into trust after the date of the IRA’s enactment in 1934.

While the decision is momentous in its potential impact on a number of tribes, Congress could take up the question of what to do about the important question of how the federal government can fulfill its trust responsibility to tribes.

Here’s the Supreme Court’s

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