Supreme Court decision will impact all tribes not federally recognized by 1934 in fee to trust decisions
March, 2009
The Indian Reorganization Act (IRA) authorizes the United States Department of Interior (Interior) to acquire land and hold it in trust "for the purpose of providing land for Indians" and defines "Indian" to include "all persons of Indian descent who are members of any recognized tribe now under federal jurisdiction." On Tuesday, February 24, 2009 the United States Supreme Court reversed more than 50 years of practice by Interior in a 6-3 decision holding that a tribe must have been federally recognized by the date of enactment of the IRAβ1934βin order for Interior to have the authority to accept land into trust for the benefit of the tribe.
The Narragansett Case
The history of the Narragansett case is long and tortured, and dates back to the very beginnings of the United States. At the time of colonial settlement, the Narragansett Tribe (Tribe) was the occupant of much of what is now Rhode Island. In 1709, following two years of armed conflict in which hundreds of colonists and thousands of Indians died, the decimated Tribe was placed under the formal guardianship of the Colony of Rhode Island. In 1880, the state of Rhode Island convinced the Tribe to relinquish its tribal authority and sell all but two acres of its former territory, in an effort to become assimilated into the local population. The Tribe almost immediately regretted its decision and began a campaign to regain its land and tribal status.
In ten years of correspondence between 1927 and 1937, the Tribe sought economic support and other assistance from the federal government, but federal authorities refused the Tribe's requests because they considered the Tribe to be under state authority. In the 1970's, the Tribe filed suit against the state to recover its ancestral lands. That litigation was resolved through the enactment of the Rhode Island Indian Claims Settlement Act, which resulted in the Tribe's receiving title to 1800 acres of land in Charlestown, Rhode Island, but the land would be subject to state civil and criminal laws and jurisdiction.
Meanwhile, the Tribe gained formal recognition from the Federal government in 1983, and Interior accepted the 1800 acres of settlement lands into trust in 1988. Thereafter, the Tribe purchased an additional 31 acres of land adjacent to its settlement lands and began constructing tribal housing. A dispute arose with the town of Charlestown regarding the applicability of local building regulations on the 31 acres, which evolved into litigation. While the litigation was pending, Interior accepted the Tribe's application to take the 31 acres into trust. The Interior Board of Indian Appeals upheld the determination and the town and the Governor of Rhode Island sought review. Eventually the matter found its way to the Supreme Court.
The issue before the Supreme Court was whether an Indian tribe had to have been both in existence and under the jurisdiction of the United States as of 1934 in order for Interior to have the authority to take land into trust on its behalf. Interior argued that because the Tribe was in existence in 1934, and federally recognized at the time the land was taken into trust, Interior had the requisite authority. Rhode Island, joined by 21 states as amici, argued that "now" in the statute meant 1934, not 1998 when the land was taken into trust.
The Supreme Court agreed with the states, concluding that the language "now under federal jurisdiction" unambiguously refers to those tribes that were federally recognized in 1934, and therefore, because the Tribe was not federally recognized in 1934, Interior did not have the authority to take the 31-acre parcel into trust.
Impact of the Decision
The Narragansett decision does not affect any tribe not recognized in 1934 for which Interior already has taken land into trust, because only Congress can take land out of trust. But, the decision does affect numerous tribes recognized after 1934 who are now seeking to have land taken into trust, including some of the more financially successful tribes in Indian Country, and some here in the Pacific Northwest. For those tribes, fee-to-trust transactions just became vastly more complicated, as they will have to demonstrate that they were otherwise under the jurisdiction of the United States as of 1934. Or, we can await a congressional fix, which is not likely to occur this session, as it was left off the National Congress of American Indians' list of priorities for the 111th Congress.