February 24th, 2009
The extremely high percentage of cases that American Indian tribes and Indian people lose in the U.S. Supreme Court has reached ridiculous proportions.
Studies show that tribes and the “Indian position” prevailed in about 58% of a wide variety of Indian law Supreme Court cases during the Burger Court in 1969-1986. The elevation of William Rehnquist to chief justice and the appointment of Antonin Scalia in 1986, however, seemed to make a significant difference. Under the Rehnquist Court, from 1986-to circa 2004, tribes and Indian people won only about 20% of their Supreme Court cases. That losing trend continues to today.
(Contrast the tribal winng rate of only 20% to the winning rate for criminal defendants in the Rehnquist Court of about 34%. Surely one would assume that criminal defendants would be the least favored of all appellants and should have the lowest winning rate in the Supreme Court?)
The Supreme Court decided another case today in which it again rejected the tribal and U.S. Department of Interiro position. Sadly, that is no surprise anymore.
In Carcieri v. Salazar, the Court addressed the Indian Reorganization Act (IRA), enacted in 1934, that authorizes the Secretary of Interior to acquire land and hold it in trust “for the purpose of providing land for Indians.” 25 U. S. C. sec.465. “Indian” is defined in the Act to “include all persons of Indian descent who are members of any recognized tribe now under Federal jurisdiction.”
The Secretary of Interior attempted to take land into trust for the Narragansett Tribe to build much needed tribal housing. The State of Rhode Island objected. Land taken into trust for tribes is taken off the tax rolls for states and counties and these entities sometimes oppose the U.S. taking land into trust for tribes.
The Narragansett Tribe was placed under the Colony of Rhode Island’s formal guardianship in 1709. It also apparently agreed to relinquish its tribal authority and to sell all but two acres of its remaining reservation land in 1880. Afterwards, though, it began trying to regain its land and tribal status. From 1927 to 1937, the U.S. declined to assist because it considered the Tribe to be under state jurisdiction. In a 1978 agreement, to settle a dispute between the Tribe and Rhode Island, the Tribe received title to 1,800 acres of land in exchange for relinquishing its claims to state land and it agreed that the 1,800 acress of land would be subject to state law. The Tribe gained formal recognition from the Federal Government in 1983, and the Secretary of Interior accepted a deed of trust to the 1,800 acres in 1988.
Subsequently, a dispute arose over whether the Tribe’s plans to build housing on an additional 31 acres of land it had purchased complied with local regulations. While that litigation was pending, the Secretary accepted the 31-acre parcel into trust.
In this case, the Federal District Court granted summary judgment to the Secretary determining that sec.479′s plain language defines “Indian” to include members of all tribes in existence in 1934, but does not require the tribe to have been federally recognized on that date. The U.S. Court of Appeals for the First Circuit affirmed and found that sec.479 was ambiguous as to the meaning of “now under Federal jurisdiction.” Thus, it applied the principles of the famous Chevron case and deferred to the Secretary’s interpretation of the statute and allowed the 31 acres of land to be taken into trust.
Today, however, the U.S. Supreme court held that the phrase “now under federal jurisdiction” in sec.479 is not ambiguous and refers to tribes that were under federal jurisdiction when the IRA was enacted in 1934. Thus, because the Narragansett Tribe was not under federal jurisdiction in 1934, the Secretary does not have the authority to take the 31-acre parcel into trust for the Tribe today to build housing.