Fletcher: Now's the time to fix land-into-trust ruling

Opinion

Thursday, February 26, 2009

"The Supreme Court’s Feb. 24 decision in Carcieri v. Salazar is a significant defeat for the Narragansett Tribe, and perhaps for hundreds of other Indian tribes not federally recognized in 1934. Carcieri seemingly overturns the Department of Interior’s 70-year-plus practice of taking land into trust for Indian tribes federally recognized after 1934. But while the decision will be disruptive and expensive for Indian tribes affected, it might not be utterly devastating.

Regardless, now is the time for Indian country to test the waters in Washington D.C., to see if the Obama administration is serious about change and to press the Democratic-controlled Congress for a Carcieri “fix.” It might not take much legislation, just a quick rewording of the definition of Indian tribe in the IRA to remove the word “now.” The administration and Congress may be sympathetic, given that the Roberts Court seems to go out of its way to punish Indian tribes. A Carcieri “fix” pitched as merely reversing a bad Supreme Court decision would not work a major change on the federal-tribal-state relationship because it would merely be restoring the pre-Carcieri state of affairs that had existed for over seven decades.

For the Narragansett Tribe, this decision is yet another slap in the face to a tribe that has done nothing wrong but what it can to survive. For six justices, the Narragansetts did not pass the test of “federal jurisdiction,” a test that no one could have known in 1934 they would have been required to pass. Nothing could be more arbitrary and capricious."

Get the Story:
Matthew L.M. Fletcher: Decision’s in. ‘Now’ begins work to fix Carcieri (Indian Country Today 2/25)

Supreme Court Decision:
Syllabus | Opinion [Thomas] | Concurrence [Breyer] | Dissent [Stevens] | Concurrence/Dissent [Souter]

Supreme Court Documents:
Oral Argument Transcript | Briefs