The Cowlitz Tribe finally has a place to call home. A sign was installed along Interstate 5 in Washington on July 20 to mark the exit to the new reservation. Photo: Cowlitz Indian Tribe
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BIA treads new Carcieri ground in ruling for Massachusetts tribe

The U.S. Supreme Court decision in Carcieri v. Salazar has been a thorn in Indian Country's side for the last six years but the Obama administration has been slowly finding ways to address it while a fix remains in limbo in Congress.

In the February 2009 ruling, the justices held that the Bureau of Indian Affairs can only place land in trust for tribes that were "under federal jurisdiction" as of 1934. However, the court did not define the meaning of that phrase so the agency has developed an analysis to determine whether it can acquire land for recently recognized tribes.

So far, the analysis has survived a major court challenge affecting the Cowlitz Tribe of Washington. In a 57-page decision issued last December, Judge Barbara Jacobs Rothstein concluded that the BIA properly determined that the tribe was "under federal jurisdiction" in 1934 even though its federal status wasn't formalized until 2000.

Although opponents are taking the case to the D.C. Circuit Court of Appeals, the BIA placed the tribe's 152-acre site in trust in March. The tribe finally has a homeland, more than a century after failed treaty negotiations left the Cowlitz in a state of limbo.

Members of the Cowlitz Tribe gathered at their reservation in Washington in August 2015. Photo from Facebook

Attention now turns to the Mashpee Wampanoag Tribe in Massachusetts, whose land-into-trust application was approved by the BIA on Friday. The landmark decision also takes Carcieri into account because the tribe's federal status wasn't finalized until 2007.

But this time around, the BIA approached the situation from a different angle. Rather than look solely at the "under federal jurisdiction" test, Assistant Secretary Kevin Washburn determined that tribe can follow the land-into-trust process because its members were living on a "reservation" as of 1934.

"The historical record demonstrates that a reservation was set aside for the Mashpee Indians via colonial land deeds that were under the protection of the colonial court and government," Washburn wrote in the 137-page decision . "The record further shows that the reservation continued to exist in 1934 and at that time, Mashpee members were residing within its boundaries."

Even though the tribe's "reservation" in Mashpee -- the location of its headquarters -- has not yet been formally recognized by the federal government, Washburn argued that it still qualifies as a reservation. Nearly all of the tribe's members have lived there since the 1600s and it was a majority Indian community up until the 1970s, when an influx of new arrivals began to change the nature of the area.

Mashpee Wampanoag Tribe Chairman Cedric Cromwell, left, and elder Vernon Lopez share the good news about the tribe's land-into-trust application on September 18, 2015. Photo from Facebook

"Mashpee members continued to dominate the town's year-round population and, on a fundamental level, the tribe maintained its cultural and political control over the town," Washburn noted as he cited the BIA's own research into the tribe's successful federal recognition petition. "Therefore, the Indian character of the reservation persevered up until and through the time in question, June 1, 1934."

The decision is significant because it relies on a different part of the Indian Reorganization Act to justify the BIA's authority to acquire land for the tribe. Washburn repeatedly refers to this as the "second definition" of the 1934 law.

To determine whether a tribe meets the "second definition," the BIA developed a two-part test. First, the tribe must be "composed of a descendants of members of a recognized Indian tribe," and second, those members must have "resided within the boundaries of an Indian reservation on June 1, 1934," according to Washburn's decision.

With the Cowlitz and Mashpee decisions, the BIA has developed two different ways of determining a tribe's eligibility to follow the land-into-trust process. The Cowlitz analysis focuses on what can now be termed the "first definition" of the IRA -- whether a tribe was "under federal jurisdiction" in 1934.

The Mashpee Wampanoag Tribe celebrated the opening of its new government center in Mashpee, Massachusetts, in March 2014. Photo from MWT

The Mashpee test, on the other hand, looks at the second portion of the IRA -- whether a tribe is composed of "all persons who are descendants of such members who were, on June 1, 1934, residing within the present boundaries of any Indian reservation."

Together, both tests come directly from the definition of "Indian" found in Section 19 of the IRA:
The term "Indian" as used in this Act shall include all persons of Indian descent who are members of any recognized Indian tribe now under Federal jurisdiction, and all persons who are descendants of such members who were, on June 1, 1934, residing within the present boundaries of any Indian reservation ...

The BIA, of course, could be spared all of this additional work if Congress were to enact a fix to the Carcieri decision. Although Indian Country and the Obama administration have been pushing for one since 2009, lawmakers have failed to take action amid competing and conflicting agendas.

Assistant Secretary Kevin Washburn. Photo from Senate Committee on Indian Affairs / Flickr

The 114th session is no different -- no less than six versions of a Carcieri fix have been introduced so far this year. Sen. John Barrasso (R-Wyoming), the chairman of the Senate Indian Affairs Committee, has offered the most comprehensive one with S.1879, the Interior Improvement Act, a bill that would make changes in the way the BIA process land-into-trust applications as a concession of sorts to states and local governments.

Sen. Jerry Moran (R-Kansas), who also sits on the committee, has offered what could be called the simplest version of a Carcieri fix. S.1931 merely confirms prior land-into-trust decisions to help tribes whose acquisitions have been called into question long after they were finalized.

"Overall, it slows us down tremendously," Washburn said of the problems generated by the lack of a Carcieri fix. "It's a horrible burden."

The D.C. Circuit is still accepting briefs in the Cowlitz case through December 22, according to the court docket, so a decision is many months away. Opponents include the Grand Ronde Tribes in neighboring Oregon, whose federal status was restored by Congress in 1983.

The Mashpee decision could be threatened by a lawsuit but one has not been filed so far. The likely venue would be the federal court in Massachusetts rather than the one in Washington, D.C., where the Grand Ronde Tribes filed their complaint.

Bureau of Indian Affairs Documents:
Record of Decision for Cowlitz Tribe (December 2010)
Record of Decision for Mashpee Wampanoag Tribe (September 2015)

DOI Solicitor Opinion:
M-37029: The Meaning of "Under Federal Jurisdiction" for Purposes of the Indian Reorganization Act (March 12, 2014

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