Turtle Talk: Thoughts on land-into-trust decision

Law | Opinion

Wednesday, February 25, 2009

"A couple of quick thoughts on this case:

1.) This does NOT affect tribes that were acknowledged by the United States at or before the time the IRA was enacted in 1934. You’re safe from this one - the Secretary can still consider your fee-to-trust applications.

2.) This does NOT affect fee-to-trust acquisitions that have already occurred for tribes recognized after 1934. The Federal Quiet Title Act does not allow challenges to federal land acquisitions after the fact, except in limited circumstances not applicable in this case. In other words, if your tribe was recognized after 1934 and has reservation land already in trust, that land is safe.

3.) This SHOULD NOT affect fee-to-trust applications that are pending, or in the future, for tribes acknowledged in 1934, terminated after that date, and re-acknowledged. (I say “should not,” because the tribe should be able to successfully argue that it was under federal jurisdiction in 1934 - but the Supreme Court has done damage to tribes with less before).

4.) This DOES affect pending or future fee-to-trust applications for tribes that were not acknowledged until after 1934. Those tribes will now have to prove they were “under federal jurisdiction” in 1934. The term “under federal jurisdiction” does not necessarily mean that the tribe had to be federally recognized in 1934 (in fact, I would argue that ALL recognized tribes, regardless of when recognition/acknowledgment occurred, were under federal jurisdiction in 1934). The Court seems to have left this one open - for now. This will place yet another litigation obstacle in front of tribes as they seek to have land placed into trust."

Get the Story:
Initial Reaction to Carcieri Opinion (Turtle Talk 2/24)

Supreme Court Decision:
Carcieri v. Salazar (February 24, 2009)

Supreme Court Documents:
Oral Argument Transcript | Briefs