Carcieri v. Salazar: The Secretary of the Interior May Not Acquire Trust Land for the Narragansett Indian Tribe Under 25 U.S.C. Section 465 Because That Statute Applies to Tribes “Under Federal Jurisdiction” in 1934
Released: 2016-08-23T00:00:00

Summary:
In Carcieri v. Salazar, 555 U.S. 379 (2009), the U.S. Supreme Court ruled that a 1934 statute provides no authority for the Secretary of the Interior (SOI) to take land into trust for the Narragansett Indian Tribe (Tribe) because the statute applies only to tribes under federal jurisdiction when that law was enacted. The reach of the decision may be broad because it relies on the major statute under which the SOI acquires land in trust for the benefit of Indians. It affects the SOI's authority to take land into trust for any recently recognized tribe unless the trust acquisition has been authorized by legislation other than the 1934 Indian Reorganization Act (IRA) or the tribe can show that it was "under Federal jurisdiction" in 1934.
A subsequent decision of the Supreme Court, Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians v. Patchak, ___ U.S. ___, 132 S. Ct. 2199 (2012), appears to have opened the way to undo trust acquisitions on the basis of the Administrative Procedure Act. In that case, the Court refuted a long-held assumption that U.S. sovereign immunity under the Quiet Title Act, 28 U.S.C. §2409(a), barred challenges to any decision of the Secretary to take Indian land into trust once title has passed to the United States. In the case, the Court ruled that a suit directly challenging the Department of the Interior (DOI) and its decision to acquire the land in trust could go forward. The case involved a challenge to a trust acquisition for a tribe that had not been officially recognized in 1934. It was brought under the Administrative Procedure Act and within its six-year statute of limitations. Subsequent cases, including a June 4, 2015, en banc decision, Big Lagoon Rancheria v. California, 789 F. 3d 947 (9th Cir. 2015), of the U.S. Court of Appeals for the Ninth Circuit, indicate that challenges to the status of Indian trust lands not raised within the six-year statute of limitations will not be entertained by the courts.
Carcieri involves a parcel of land which the SOI had agreed to take into trust for the benefit of the Narragansett Tribe, thereby presumably subjecting it to federal and tribal jurisdiction and possibly opening the way for gaming under the Indian Gaming Regulatory Act. The land is outside the Tribe's current reservation, which is subject to the civil and criminal laws of Rhode Island according to the terms of the Rhode Island Indian Claims Settlement Act of 1974 (RIICSA). RIICSA does not explicitly address the possibility that lands other than the "settlement lands" could be placed in trust; nor does it specify what jurisdictional arrangement should apply should that occur. The issues before the Supreme Court were (1) whether the authority under which the SOI has agreed to acquire the land, 25 U.S.C. §465, a provision of the IRA of 1934, covers trust acquisitions by a tribe that was neither federally recognized nor under federal jurisdiction in 1934, and (2) whether the trust acquisition violated the terms of RIICSA. The Supreme Court's decision is predicated on the Court's finding that the definitions of "Indians" and "Indian tribe" in the 1934 legislation unambiguously restrict the beneficiaries for whom the SOI may take land into trust to tribes that, in 1934, were "under Federal jurisdiction." The Court also held that the Narragansett Indian Tribe was not "under Federal jurisdiction" in 1934. It, therefore, ruled that the trust was not authorized by the statute and reversed the lower court.
Carcieri prompted the March 12, 2014, DOI issuance of a Solicitor of the Interior Memorandum on "The Meaning of 'Under Federal Jurisdiction' for Purposes of the Indian Reorganization Act." In it, the agency set forth its standards for determining whether a tribe not officially recognized until after 1934 was "under Federal jurisdiction" in 1934. These standards have found judicial acceptance in some recent cases. The Confederated Tribes of the Grand Ronde Community of Oregon v. Jewell, No. 14-5326, 2016 WL 40560092 (D.C. Cir. July 29, 2016), involved a trust acquisition for a tribe not officially acknowledged as an Indian tribe until 2002. Central New York Fair Business Association v. Jewell, No. 6:08-cv-0660(LEK/DEP), 2015 WL 1400384 (N.D. N.Y. March 26, 2015), involved a decision to take land into trust for the Oneida Indian Nation of New York, a tribe that had conducted an IRA vote in 1934. Acquisition of trust land for that tribe was challenged on the basis of the claim that a 19th century statute terminating the tribe's reservation resulted in placing the tribe under state jurisdiction. Moreover, two September 30, 2015, decisions of the U.S. District Court for the Eastern District of California, No Casino in Plymouth and Citizens Equal Rights Alliance v. Jewell, 136 F. Supp. 3d 1166 (E.D. Cal. 2015), and County of Amador v Jewell, 136 F. Supp. 3d 1193 (E.D. Cal. 2015), dismissed challenges to a trust acquisition for the Ione Band of Miwok Indians. Those challenges sought to show that the Ione Band of Indians was not "under Federal jurisdiction in 1934" on the basis of various inconsistencies in the DOI's treatment of that tribe.
One land-into-trust determination by the SOI has been rejected by a federal court. Littlefield v. U.S. Department of the Interior, No. 16-10184-WGY (D. Mass. July 28, 2016), invalidated a DOI decision to take land into trust under the 1934 legislation for the Mashpee Wampanoag Tribe. That tribe had been formally acknowledged in 2007. Its application for a land-into-trust acquisition was approved on the basis of a second definition of "Indian" in the IRA. The DOI had found that definition to be ambiguous. The federal district court disagreed. It ruled that, under its plain meaning, that definition applies only to Indians whose tribes were "under Federal jurisdiction" in 1934.
In the 114th Congress, S. 1879, the Interior Improvement Act, introduced by Senator John Barrasso, chairman of the Senate Indian Affairs Committee and reported by the Senate Indian Affairs Committee on June 6, 2016 (S.Rept. 114-275), joins three other bills, S. 732/H.R. 407, and H.R. 249, which have been introduced to amend the Indian Reorganization Act to permit trust land acquisitions for all federally recognized Indian tribes.

subsections: section_title: Introduction
paragraphs: On February 24, 2009, the U.S. Supreme Court, in Carcieri v. Salazar , ruled that the Secretary of the Interior (SOI) did not have authority to take land into trust for the Narragansett Indian Tribe (Tribe) under 25 U.S.C. §465, a provision of the Indian Reorganization Act of 1934 (IRA). Although the facts of the case involve only a small parcel of land in Rhode Island, the reach of the decision may be much broader because it rests on the major statute under which the SOI acquires land in trust for the benefit of Indians and Indian tribes and restricts its coverage with respect to Indian tribes receiving federal recognition after 1934.
The extent to which the holding in Carcieri with respect to the SOI's authority to take land into trust for newly recognized tribes may foster other litigation is not yet known. A June 2012 Supreme Court decision, Match-E-Be - Nash-She-Wish Band of Pottawatomi Indians v. Patchak , is likely to encourage more suits seeking to set aside SOI decisions to take land into trust for Indian tribes. The case involves a challenge to a secretarial acquisition of land on the theory that the trust land acquisition was without authority because the tribe was not federally recognized in 1934. The case was brought under the Administrative Procedure Act within the six-year period covered by the applicable statute of limitations. The Supreme Court ruled that the suit directly challenging the DOI and its decision to acquire the land in trust could go forward, refuting a long-held assumption that U.S. sovereign immunity under the Quiet Title Act barred challenges to any decision of the Secretary to take land into trust once title has passed to the United States. Under the decision, plaintiffs who can meet the standing requirements under the Federal Administrative Procedure Act may bring a suit within six years of final agency action, provided they are not seeking to quiet title (i.e., claim title for themselves). On June 4, 2015, in Big Lagoon Rancheria v. California, an en banc decision of the U.S. Court of Appeals for the Ninth Circuit held that a claim challenging the validity of a trust acquisition for a tribe not recognized in 1934 may not be raised as a collateral attack on the status of the land for purposes of the Indian Gaming Regulatory Act. According to the court in that decision, a challenge to a decision to take land into trust is governed by the APA's six-year statute of limitations. 
In response to the Patchak decision, the Bureau of Indian Affairs (BIA) of the Department of the Interior (DOI) revised its Land Acquisition regulations, 25 C.F.R., Part 151. The regulations now specify how parties seeking judicial review of land-into-trust decisions may discern when final agency action occurs for the two kinds of decisions possible for land-into-trust applications. Decisions by the SOI or the Assistant Secretary of the Interior for Indian Affairs (AS-IA) are final agency actions. When the SOI or the AS-IA issues a decision to take land into trust, the DOI must publish a notice of the decision "promptly" in the Federal Register and take the land into trust "[i]immediately." In contrast, land-into-trust decisions by Bureau of Indian Affairs officials (BIA-level decisions) are not final agency action and do not require Federal Register notice. They require notice in "a newspaper of general circulation serving the affected area of the decision" as well as notice to state and local officials with "regulatory jurisdiction over the land to be acquired" and to "interested parties who have made themselves known, in writing, to the official prior to the decision." Land may not be taken into trust pursuant to BIA-level decisions "until administrative remedies are exhausted ... or ... the time for filing a notice of appeal has expired and no administrative appeal has been filed." Once a BIA-level decision has become final, the land is to be acquired in trust "[i]mmediately."
This report discusses both the trial court and appellate court decisions as background to the Supreme Court's ruling in Carcieri . Next, it provides an analysis of the potential impact of the Carcieri decision. This includes an analysis of a memorandum issued by the Solicitor of the Department of the Interior in response to the Supreme Court's decision and a discussion of some of the post- Carcieri judicial decisions. Finally, the report summarizes legislative proposals, beginning with those introduced in the 111 th Congress. 
section_title: Carcieri Background
paragraphs: The Narragansett Indian Tribe's history in Rhode Island predates colonial settlement and includes a continuing relationship with the state of Rhode Island. The Tribe's formal relationship with the federal government, however, was found by the Court to have been established in 1983, after enactment of the Rhode Island Indian Claims Settlement Act of 1978 (RIICSA). Federal recognition of the Tribe occurred with the approval of the Tribe's petition for inclusion on the (DOI) "List of Indian Entities Recognized and Eligible To Receive Services From the United States Bureau of Indian Affairs" under the DOI "Procedures for Establishing that an American Indian Group Exists as an Indian Tribe." Thereafter, the Tribe succeeded in having the SOI place in trust the tribal lands that RIICSA designated as "settlement lands," subject to the civil and criminal jurisdiction of the state of Rhode Island (State) rather than under the laws which apply under the "Indian country" jurisdiction of the United States.
The dispute with the State began in 1991 when the Tribe's housing authority purchased 31 acres adjacent to the "settlement lands" and asserted that the land was free of state jurisdiction. After losing on that claim, the Tribe applied to the SOI to have the land taken into trust and received a favorable determination, which has been upheld by the Interior Board of Indian Appeals and by both the federal trial and appellate courts. A sharply divided U.S. Court of Appeals for the First Circuit, sitting en banc, ruled in favor of the trust acquisition, with the majority relying predominantly on statutory construction of RIICSA. Dissents, however, criticized this method of resolving the case as mechanical and emphasized the fact that permitting the trust acquisition and the consequent elimination of Rhode Island jurisdiction over the land would directly conflict with the overriding purpose of RIICSA and the State's bargained-for-objective in agreeing to the settlement—ending all Indian claims to sovereign authority in Rhode Island.
The case represents the latest in a series of cases in which the State of Rhode Island and the Narragansett Indian Tribe have contested jurisdiction over tribal lands. The Tribe's current reservation consists of lands designated as "settlement lands" under RIICSA. Under the terms of RIICSA, these "settlement lands" are subject to Rhode Island civil and criminal jurisdiction and, therefore, not available for gaming under the Indian Gaming Regulatory Act. The Supreme Court agreed to review the ruling of the appellate court on the basis of two issues: (1) whether the IRA provision covers trust acquisitions by a tribe not recognized by DOI in 1934 or under federal jurisdiction at that time, and (2) whether the trust acquisition violated the terms of RIICSA.
The case involves the interaction of two federal statutes: (1) RIICSA, which settled land claims of the Tribe, and (2) 25 U.S.C. §465, a provision of the IRA of 1934. RIICSA embodies the terms of the Joint Memorandum of Understanding Concerning Settlement of the Rhode Island Indian Land Claims (JMOU) executed on February 28, 1978, by the Tribe, the state of Rhode Island, and private landowners; it ratifies the settlement ending a lawsuit brought by the Tribe claiming land in Charlestown, RI. The Tribe had asserted that land transfers covering hundreds of pieces of property and dating to 1880 violated the Indian Trade and Intercourse Act, 25 U.S.C. §177, which requires federal approval for any land conveyance by an Indian tribe. RIICSA required tribal relinquishment of land claims; federal ratification of earlier land transactions; establishment by the state of an Indian-owned, non-business corporation, the "Narragansett Tribe of Indians"; a settlement fund with which private lands were to be purchased and transferred to the corporation; the transfer of 900 acres of state land to the corporation for the Tribe; designation of the transferred lands as "settlement lands"; and a jurisdictional provision providing for state jurisdiction on the "settlement lands." The Settlement Act was the necessary federal ratification of the JMOU. Under the federal legislation, Rhode Island was to set up a corporation to hold the land initially, for the Tribe's benefit, with the possibility that subsequently the Tribe would gain recognition as an Indian tribe through the DOI federal acknowledgment process. The Settlement Act contained language extinguishing all Indian claims to land in Rhode Island once the State had enacted legislation creating the Indian corporation and conveying to that corporation settlement lands. RIICSA did not provide federal recognition for the Tribe, that is, establish it as an Indian Tribe entitled to federal services for Indians. It did, however, envision the possibility that tribal status would be acknowledged administratively by the SOI. Nonetheless, it contains no explicit provision as to the ability of the Tribe, following recognition by the SOI, to acquire further trust land in Rhode Island. Essentially, it makes no express reference to Section 465 or to the Secretary's authority to take land into trust. After the Tribe received federal recognition in 1983, it successfully sought to have the settlement lands transferred from the corporation to the Tribe, and taken into trust pursuant to 25 U.S.C. §465 and proclaimed an Indian reservation under 25 U.S.C. §467.
The central issue in the litigation was the IRA definitions of "Indians" and "tribe." Under Section 465, the SOI is authorized to take land into trust "for the purpose of providing land for Indians." "Indians" is defined in another IRA section to "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, and ... all other persons of one-half or more Indian blood." That same provision, 25 U.S.C. §479, states that "tribe" is to "be construed to refer to any Indian tribe, organized band, pueblo, or the Indians residing on one reservation."
The district court upheld the SOI's decision to take the 31-acre tract into trust. The court ruled that the SOI had authority under the IRA to take the land into trust for the Tribe. It read the reference in the IRA to "members of any recognized Indian tribe now under Federal jurisdiction" as covering the Narragansett Indian Tribe by finding the Tribe to have been under federal jurisdiction in 1934 even though it was not formally recognized until 1983. The court reasoned that because the Tribe's existence from 1614 was not in doubt, whether or not it was recognized, it was a tribe and, thus, under federal supervision.
section_title: Appellate Court Rulings
paragraphs: There are three decisions of the U.S. Court of Appeals for the First Circuit, two of which have been withdrawn but are worth attention for their reasoning. A three-judge panel, in an opinion subsequently withdrawn, ruled in favor of the trust acquisition. The panel found that Section 465 provided the SOI with authority to take land into trust for the Tribe in spite of the fact that the Tribe had not been federally recognized in 1934. It rejected Rhode Island's arguments that, for Section 465 to apply, a tribe must have been both recognized and subject to federal jurisdiction in 1934. The opinion focused on the interaction between Section 465, which authorizes the SOI to take land into trust "for Indians," and Section 479, which defines "Indians" as "all persons of Indian descent who are members of any recognized Indian tribe now under Federal jurisdiction." The court chose to defer to DOI's "longstanding interpretation of the term 'now'" as meaning "today" rather than "1934." It viewed this interpretation as in accord with the Supreme Court's interpretation of the statute in United States v. John and buttressed by the Federally Recognized Indian Tribe List Act and a 1994 amendment to the IRA.
On rehearing, the panel reiterated its earlier rationale on the IRA issue and squarely addressed the jurisdictional issue. A majority of the panel, relying on a principle of statutory construction sometimes used to interpret Indian affairs legislation, rejected Rhode Island's arguments that, taken together, certain provisions of the Settlement Act precluded any tribe from exercising sovereignty over land in Rhode Island except to the extent specified in RIICSA. The majority of the panel read RIICSA as crystal clear in settling claims related to prior land transactions but ambiguous in failing to mention future land transfers. The majority, relying on the canon of construction, resolved this ambiguity in favor of the Narragansetts: "Once the tribe received federal recognition in 1983 ... it gained the same benefits as other Indian tribes, including the right to apply to have land taken into trust pursuant to § 465."
In a dissent, however, Circuit Judge Howard took the view that the intent of the parties to the Settlement Act was that Rhode Island laws should apply throughout Rhode Island and that the language in the JMOU and in RIICSA could fairly be interpreted to that end.
On rehearing, en banc, a divided First Circuit ruled on both the IRA and jurisdictional issues. It found that the definition of Indian in 25 U.S.C. §479, with its use of the phrase "now under Federal jurisdiction," is "sufficiently ambiguous" to implicate what is known as the Chevron test. This involves a two-part examination of statutory language: (1) If Congress has directly spoken on the precise question at issue and its intent is clear and unambiguous, courts must defer to that interpretation of the law; (2) If the meaning or intent of a statute is silent or ambiguous, courts must give deference to the agency's interpretation of the law if it is based on a permissible and reasonable construction. The court found, by examining text and context, that the IRA is ambiguous on the question of whether trust acquisitions are available for tribes not recognized in 1934. It, therefore, moved to the second prong of the Chevron test and found the Secretary's interpretation to be reasonable and consistent with the statute.
On the jurisdictional issue, the en banc majority ruled against the State's basic arguments principally by characterizing them as requiring a finding that RIICSA implicitly repealed the Secretary's authority to take land into trust for the Tribe. It cited Supreme Court authority requiring a high standard for repeals by implication. It found "nothing in the text of the Settlement Act that clearly indicates an intent to repeal the Secretary's trust acquisition powers under IRA, or that is fundamentally inconsistent with those powers." The opinion also identified support for its position in the existence of other statutes settling Indian land claims which did have provisions clearly limiting SOI trust acquisition authority. From this it reasoned, Congress knew how to preclude future trust acquisitions and clearly did not choose to use this approach in RIICSA.
The court turned down as not within its power the State's request that, if the court were to uphold the trust acquisition, it should require the SOI to limit the Tribe's jurisdiction to that specified for the settlement lands, that is, with Rhode Island retaining civil and criminal jurisdiction. The court acknowledged that such a directive would preserve what the State, in good faith, believed to have been the essential component of its bargain in agreeing to the JMOU and to RIICSA, that is, maintaining State sovereignty. It suggested, however that the power to limit jurisdiction over the newly acquired land was the prerogative of Congress, not the courts or the SOI.
The two dissenting opinions raised arguments based on RIICSA. Circuit Judge Howard would have found that (1) the parties to the JMOU and Congress, in enacting RIICSA, intended to resolve all Indian claims in Rhode Island past, present, and future; (2) RIICSA contains broad language which may be fairly interpreted as impliedly and partially repealing SOI authority under the IRA to take land into trust for the Tribe; (3) the fact that other settlement acts included provisions limiting jurisdiction, should there be subsequent approvals of trust acquisitions, is irrelevant because RIICSA clearly contemplated that there would be no trust acquisition other than that of the settlement lands; and (4) to read RIICSA as if it did not preclude subsequent jurisdictional adjustments outside of the settlement lands would be "antithetical to Congress' intent" and "absurd." Senior Circuit Judge Selya's dissent characterizes the majority's construction of the RIICSA as "wooden" and "too narrow," and the result, "absurd." Judge Selya argued that RIICSA must not be divorced from its historical context.
section_title: Supreme Court Decision
paragraphs: The Supreme Court found that the SOI had no authority under the IRA to take land into trust for the Tribe; it, therefore, did not address the RIICSA issue. Six Justices concurred in the opinion of the Court, one of which identified certain qualifications; two other Justices concurred in part and dissented in part. The Court, in an opinion written by Justice Thomas, found that the 1934 legislation unambiguously restricted beneficiaries for whom the SOI may take land into trust under this statute to "Indians" and "Indian tribe[s]" as defined in the statute. Because the IRA defines "Indian" in terms of persons " now under Federal jurisdiction" and includes the word "Indian" in its definition of "tribe," the Court reasoned that the meaning of "now" was critical to interpreting the reach of the SOI's authority to take land into trust. Rhode Island had argued that "now" meant "at the time of enactment of the IRA." The SOI had urged the Court to find the meaning of "now" ambiguous and, therefore, under the Chevron doctrine, amenable to a reasonable explication of its meaning by DOI as the agency charged with interpreting it.
The decision focuses on Section 5 of the IRA, 25 U.S.C. §465, the statute under which the trust acquisition was approved by the SOI, and the definitions provided for "Indian" and "Indian tribe" in Section 19 of the IRA, 25 U.S.C. §479. Section 5 authorizes the SOI "to acquire, through purchase, relinquishment, gift, exchange, or assignment, any interest in lands, water rights, or surface rights to lands, within or without existing reservations, including trust or otherwise restricted allotments, whether the allottee be living or deceased, for the purpose of providing land for Indians ." Section 5 further provides that "[t]itle to any lands or rights acquired ... shall be taken in the name of the United States in trust for the Indian tribe or individual Indian for which the land is acquired and such lands or rights shall be exempt from State and local taxation."
Section 19 supplies definitions of "Indian" and "tribe" for various sections of the IRA, including Section 5. It reads, in pertinent part:
[t]he term "Indian" as used in sections ... 465 ... and 479 of this title shall include all persons of Indian descent now under Federal jurisdiction 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, and shall further include all other persons of one-half or more Indian blood. For the purposes of said sections, Eskimos and other aboriginal peoples of Alaska shall be considered Indians. The term "tribe" wherever used in said sections shall be construed to refer to any Indian tribe, organized band, pueblo, or the Indians residing on one reservation.
The Court's opinion rests squarely on statutory construction. It looked first to see if the statutory language was "plain and unambiguous" on the question of "whether the Narragansetts are members of a 'recognized Indian Tribe now under Federal jurisdiction.'" This led the Court to examine whether "now under Federal jurisdiction" means the date of the trust acquisition or 1934. By examining the language and context of the terms "Indian" and "tribe" and construing them in harmony with one another, the Court ruled that trust acquisitions may be undertaken only for tribes that, in 1934, were "under Federal jurisdiction." Because it relied on the plain meaning of the statute, the Court did not address in any detail the legislative history. According to the Court, "although § 465 authorizes the United States to take land in trust for an Indian tribe, § 465 limits the Secretary's exercise of that authority 'for the purpose of providing land for Indians.' There simply is no legitimate way to circumvent the definition of 'Indian' in delineating the Secretary's authority under §§ 465 and 479."
The Court also rebutted an argument that 25 U.S.C. §2202 authorizes trust acquisitions for the Narragansett Tribe and, by extension, other tribes not "under Federal jurisdiction" in 1934. Section 2202 provides that "The provisions of section 465 of this title shall apply to all tribes notwithstanding the provisions of section 478 of this title: Provided, That nothing in this section is intended to supersede any other provision of Federal law which authorizes, prohibits, or restricts the acquisition of land for Indians with respect to any specific tribe, reservation, or state(s)."
According to the Court's analysis of the language of §2202, this statute does not alter the terms of §465; it merely "ensures that tribes may benefit from § 465 even if they opted out of the IRA pursuant to § 478, which allowed tribal members to reject the application of the IRA to their tribe."
Rather than remand the case for further exploration on the issue of whether the Narragansetts were "under Federal jurisdiction" at the time of enactment of the IRA, the Court resolved that question itself. In doing so, it cited undisputed evidence, contemporaneous with enactment of the IRA, that was included in the record of the case. For example, there was a letter, written in 1937, by John Collier, who was then Commissioner of Indian Affairs and a driving force behind the IRA, stating forthrightly that the federal government had no jurisdiction over the Narragansett Indian Tribe of Rhode Island. The Court, therefore, found that the Narragansett Indian Tribe was not "under Federal jurisdiction" in 1934 and ruled that the trust acquisition was contrary to the statute and reversed the lower court.
Justice Stevens filed a dissenting opinion, also relying on the plain meaning of the 1934 legislation. Unlike the majority, he did not incorporate the IRA's definition of "Indian" in his interpretation of "tribe." He read the two separately and found that the SOI had authority delegated under the IRA to confine the meaning of "tribe" to those "recognized" by DOI. To support his conclusion, he drew upon the structure of the IRA in providing separate benefits for tribes and individual Indians and the long-time administrative practice of the SOI in taking land into trust under Section 465 only for federally recognized tribes, whether recognized before or after 1934. He also criticized the majority for ignoring one of the canons of statutory construction often employed when courts are interpreting statutes enacted for the benefit of Indians.
section_title: Potential Impact
subsections: section_title: In General
paragraphs: Although the Supreme Court found that the Narragansetts were not "under Federal jurisdiction" in 1934, it did not rely on the 1983 date of official SOI recognition. It examined the Tribe's situation at the time of enactment of the IRA, looking for indicia that it was "under Federal jurisdiction" even if not officially included in DOI lists of Indian tribes. The decision appears to call into question the ability of the SOI to take land into trust for any tribe added to DOI's list of federally recognized tribes since 1934 unless the trust acquisition has been authorized under legislation other than the 1934 Act. The Court's decision appears to mean that the SOI may not take land into trust under the IRA for any tribe that cannot clearly show that it was among those tribes under federal jurisdiction in 1934 or that is unable to cite another statute as providing authority for trust acquisitions. 
section_title: DOI Solicitor's Memorandum Indicates How a Tribe May Demonstrate That It Was "Under Federal Jurisdiction" in 1934
paragraphs: The DOI released a memorandum, on March 12, 2014, in which the Solicitor of the Department of the Interior interprets "The Meaning of 'Under Federal Jurisdiction' for the Purposes of the Indian Reorganization Act" (Memorandum). In it, the Solicitor concludes that the Supreme Court's Carcieri decision leaves room for a tribe officially recognized post-1934 to establish that it was "under Federal jurisdiction" in 1934 and, thus, eligible for having land taken into trust under the IRA. This conclusion was drawn from an analysis of Carcieri. According to the Solicitor, not only were the components of jurisdiction not addressed by the Court's majority opinion in Carcieri, but the possibility that some tribes would be able to present evidence of pre-1934 dealings with the federal government sufficient to establish that they were actually under federal jurisdiction in 1934 appears to have been recognized by three Justices (two dissenters and Justice Breyer in his concurring opinion).
Before it focuses on the kinds of evidence that might be probative of a tribe's being "under Federal jurisdiction," the Memorandum examines the phrase "now under Federal jurisdiction" to determine how to construe it, looking to dictionary meanings, legislative history, and offering several disparate possible constructions. Then, it concludes that the phrase is ambiguous and fails to establish clearly a standard to determine which tribes qualify as being "under Federal jurisdiction" in 1934. This leads the Solicitor to assume that the question must be analyzed under the two-pronged test applicable to agency interpretations of statutes used by the Supreme Court in Chevron v. Natural Resources Defense Council . Under that analysis, courts are to determine whether a statute speaks directly to an issue; and, if not (i.e., if the statutory language is ambiguous), they are to defer to a reasonable construction of the statute by the agency charged by Congress with interpreting it. The implication is that the Solicitor is endeavoring to provide such an interpretation—a reasonable construction of an ambiguous statute.
According to the memorandum, the DOI's examination—of the question of how to interpret "under Federal jurisdiction"—necessarily requires an exploration of the backdrop against which Congress enacted the IRA, which involves not only the contemporaneous legislative purposes, debates, and hearings, but also the role of the various periodic shifts in federal Indian policy. After reviewing the history of the IRA and the evolution of federal Indian policy, the memorandum contemplates the impact of the vast range of powers over Indian affairs conferred on and traditionally exercised by Congress and the executive branch under the U.S. Constitution. Finally, before drawing inferences as to what types of evidence might show a tribe to have been "under Federal jurisdiction" in 1934, the Solicitor points out the unique statutory construction tools that the courts have employed when construing federal Indian statutes. Under these "canons of construction" traditionally employed by the courts, Indian treaties and statutes are to be liberally interpreted with ambiguities resolved in favor of Indians. 
Drawing upon inferences made from its exposition of federal Indian policy, the memorandum sets out to determine what "under Federal jurisdiction" in 1934 means and how it is to be proven. In general, according to the memorandum "under Federal jurisdiction," in 1934, meant more than that a tribe or group was generally subject to the Indian power of the federal government. It "meant that the recognized Indian tribe was subject to the Indian Affairs' authority of the United States, either expressly or implicitly . " The basic requirement, therefore, according to the Solicitor is that there be a showing that the federal government exercised jurisdiction before 1934 and that the jurisdictional status remained in 1934. This, in turn, requires a showing that "the tribe's history priory to 1934, [shows] an action or series of actions—through a course of dealings—that are sufficient to establish ... federal obligations, duties, responsibility for or authority over the tribe by the Federal Government." It further requires "indicia of the tribe having retained its jurisdictional status in 1934."
This memorandum is consistent with the 2010 DOI decision to accept land into trust for gaming for the Cowlitz Tribe of Indians in Clark County, Washington. That decision indicates that there will not be an automatic dismissal of applications from newly recognized tribes, but that the department will review such applications thoroughly, collaborating with the Solicitor's Office, to determine whether the history of the tribe as presented in the petition meets the legal standard. In general, however, the decision appears to mean that some tribes administratively acknowledged since 1934 under the SOI's administrative process may not acquire trust land without further legislation.
section_title: Big Lagoon Rancheria v. California: Challenge to Validity of Trust Acquisition for a Tribe Not Recognized in 1934 Is Not Subject to Collateral Attack Decades Later.
paragraphs: On June 4, 2015, in an en banc decision, Big Lagoon Rancheria v. California, the U.S. Court of Appeals for the Ninth Circuit held that a claim to the validity of a trust acquisition for a tribe not recognized in 1934 may not be raised decades after the trust acquisition. The case involved a challenge the status of the land as "Indian lands" qualifying for gaming under the Indian Gaming Regulatory Act (IGRA). According to the decision, such a claim must be brought under the Administrative Procedure Act (APA) and is, therefore, subject to a six-year statute of limitations. 
The en banc court overturned an earlier opinion issued by a divided three-judge panel. The case involves a tract of land taken into trust in 1994 for the Big Lagoon Rancheria of California (Big Lagoon). Big Lagoon first appeared on the list of "Indian Tribal Entities That Have a Government-to-Government Relationship With the United States" in 1979. The dispute with California was precipitated by a breakdown in negotiations for a tribal-state gaming compact under IGRA when California objected to the site preferred by the Big Lagoon for its gaming operation. On the basis of the Carcieri decision, the state claimed that the site had not been validly taken into trust because the tribe had not been under federal jurisdiction in 1934. It, therefore, asserted that the state was under no obligation to negotiate in good faith for tribal gaming on a tract of land that did not meet IGRA's definition of "Indian lands," and, thus, was not eligible for IGRA gaming. 
In the decision that was overturned by the en banc Ninth Circuit, a divided three-judge panel agreed with California. It found that "[t]here was no family or other group on what is now the Big Lagoon Rancheria in 1934"; that Big Lagoon was not a tribe under federal jurisdiction in 1934; and, therefore, that the DOI had no authority under the IRA to take land into trust for Big Lagoon. A dissent voiced the view that was eventually adopted by the en banc court—that the APA, which has a six-year statute of limitation, was the only avenue to challenge a land-into-trust decision. 
The en banc court rejected this approach. It quoted the statement by the Supreme Court in Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians v. Patchak, that "a challenge to the BIA's 'decision to take land into trust' is 'a garden-variety APA claim.'" It contrasted the Big Lagoon fact situation—"a belated collateral attack"—from the timely challenge to a SOI decision to take land into trust that was at issue in Carcieri. Citing various Ninth Circuit precedents, the en banc court stated that:
[a]llowing California to attack collaterally the BIA's decision to take the eleven-acre parcel into trust outside the APA would constitute just the sort of end-run that we have previously refused to allow, and would cast a cloud of doubt over countless acres of land that have been taken into trust for tribes recognized by the Federal government.
section_title: Judicial Treatment of SOI Post Carcieri Land Acquisition Determinations
paragraphs: Recent federal court decisions indicate that there are likely to be challenges to many land-into-trust determinations based on Carcieri , whether or not a tribe is newly recognized. Three cases have upheld the SOI's process for determining whether a tribe was "under Federal jurisdiction" in 1934 and, thereby qualifies for taking land into trust under the IRA. The three district courts and the one appellate court in these cases have agreed with the SOI that the IRA's reference to "under Federal jurisdiction" and "any recognized Indian tribe" is ambiguous. They have further found the SOI's interpretations of the phrases to be reasonable and have upheld trust land applications at issue. One case involves a tribe that was not formally recognized until 2002; another, a tribe that dates to colonial times. A third case involves a currently recognized tribe that had not been consistently treated as a federally recognized tribe.
subsections: section_title: U.S. Court of Appeals for the District of Columbia Upholds Trust Land Acquisition for Gaming as an Initial Reservation for a Tribe Recognized in 2002
paragraphs: On July 29, 2016, the U.S. Court of Appeals for the District of Columbia issued Confederated Tribes of the Grand Ronde Community of Oregon v. Jewell . The appellate decision affirms a December 12, 2014, ruling by the U.S. District Court for the District of Columbia in The Confederate Tribes of the Grand Ronde Community of Oregon v. Jewell . The district court had upheld the SOI's decision to take land into trust for gaming for the Cowlitz Indian Tribe, which had been officially acknowledged to be an Indian tribe pursuant to a 2002 DOI administrative ruling. The plaintiffs included a neighboring Indian tribe, local government entities, nearby homeowners, and local businesses. They alleged that the trust acquisition would be injurious to them and that it should be set aside as arbitrary and capricious in violation of the APA. They argued that the decision to take the land into trust was defective because the tribe was not eligible for land acquisition under the plain language of the IRA. They also argued that, even if the tribe were eligible to have land taken into trust, the land was not eligible for gaming under IGRA as an "initial reservation." They lost on both counts.
Both the district court and the appellate court agreed with the SOI's interpretation of the statutory language as ambiguous and, thus, looked to see if the agency's interpretation of it is a reasonable one. They focused on the language of Section 19 of the IRA, which authorizes the SOI to acquire trust land for "members of any recognized Indian tribe now under Federal jurisdiction." They found the language ambiguous with respect to whether it was limited to tribes that were recognized in 1934 and under federal jurisdiction in 1934 or whether it could apply to a tribe that could be found to be under federal jurisdiction in 1934 but not recognized formally until after 1934. 
The district court reached the conclusion that the language was ambiguous after it had examined legislative history and statutory context. The district court found no clear indication that the statutory language applied only to tribes that were recognized in 1934. It agreed with the SOI both in terms of the language being ambiguous and the reasonableness of concluding that recognition need not have been operative in 1934. The district court then evaluated whether the SOI's test to determine if a tribe was "under Federal jurisdiction" in 1934 was reasonable and found that it was a reasonable test. It also found that, as applied to the Cowlitz Indian Tribe, the SOI decision warranted deference by the court. The court buttressed its conclusion by referring to Justice Breyer's concurrence in Carcieri , which had identified factors that could be used to show that a tribe, not formally recognized in 1934, was "under Federal jurisdiction" at that time.
The test used by the SOI consists of two parts. It is based on the Solicitor's March 12, 2014, memorandum, on "The Meaning of 'Under Federal Jurisdiction' for the Purposes of the Indian Reorganization Act." The district court saw this two-part test as looking at whether a tribe can show (1) "that Federal Government officials undertook guardian-like action on behalf of the tribe" and (2) that there is an absence of any "probative evidence" terminating that jurisdictional status before 1934. Among the factors that the agency relied on to determine that the Cowlitz Indian Tribe met the IRA's "under Federal jurisdiction" test were the following: (1) 1855 failed treaty negotiations; (2) various dealings between the Cowlitz Indian Tribe and federal officials from the mid-1850s until 1934; (3) provision of medical and educational resources for the Cowlitz Indians during the period; (4) representation of Cowlitz Indian tribal fishing rights by the BIA's Taholah Agency in 1927; (5) issuance of allotments to individual Cowlitz Indians in the late 19 th and early 20 th centuries; and (6) approval by the DOI of an attorney contract for the Cowlitz Indian Tribe in 1932.
The appellate court reviewed the trust acquisition on the basis of the APA's arbitrary and capricious standard and the Supreme Court's two-part Chevron analysis. It declared itself "mindful of the 'governing canon of construction requir[ing] that statutes are to be construed liberally in favor of Indians, with ambiguous provisions interpreted to their benefit.'" With respect to the question of whether the Cowlitz Indian Tribe was "under Federal jurisdiction" in 1934, the court viewed the text of the statute as comprising three prongs:
[1] [A]ll persons of Indian descent who are members of any recognized Indian tribe now under Federal jurisdiction ...[2] [A]ll persons who are descendants of such members who were, on June 1, 1934, residing within the present boundaries of any Indian reservation, and ...[3] [A]ll other persons of one-half or more Indian blood.
It analyzed the phrase "recognized Indian tribe now under Federal jurisdiction" in terms of whether for a tribe to be eligible for a trust acquisition under the IRA, it must have been recognized in 1934 as well as "under Federal jurisdiction" in 1934. After considering both statutory context and its legislative history, it concluded that the phrase was ambiguous. Specifically, the court found the statute ambiguous as to whether " now under Federal jurisdiction" applied to "tribe" or " recognized tribe." It found the SOI's interpretation of the ambiguity reasonable and permissible: a trust acquisition under the IRA requires that the tribe be recognized at the time of the trust acquisition; the tribe need not have been recognized in 1934. 
The appellate court next analyzed the validity of the SOI's conclusion that the Cowlitz Indian Tribe satisfied the statutory requirement of being "under Federal jurisdiction" in 1934. The court noted found the SOI's "two-part inquiry" to be "reasonable." This consisted of examining pre-1934 relations between the federal government and the Cowlitz Indian Tribe for indications of "jurisdictional status" and then proceeding to analyzing "whether the Federal-jurisdictional status remained intact in 1934." With respect to the SOI's interpretation, the court stated:
We are not persuaded that the Secretary's interpretation is unreasonable for failure to require a formal, government to-government relationship carried out between the tribe and the highest levels of the Interior Department. The statute does not mandate such an approach, which also does not follow from any ordinary meaning of jurisdiction. Whether the government acknowledged federal responsibilities toward a tribe through a specialized, political relationship is a different question from whether those responsibilities in fact existed.... we can understand the existence of such responsibilities sometimes from one federal action that in and of itself will be sufficient, and at other times from a "variety of actions when viewed in concert." ... Such contextual analysis takes into account the diversity of kinds of evidence a tribe might be able to produce, as well as evolving agency practice in administering Indian affairs and implementing the statute. It is a reasonable one in light of the remedial purposes of the IRA and applicable canons of statutory construction.
section_title: Other Federal District Court Decisions Deferring to SOI Interpretation of IRA Jurisdictional and Recognition Requirements in Taking Land Into Trust
subsections: section_title: Trust Acquisition for the Oneida Indian Nation of New York
paragraphs: On March 26, 2015, the U.S. District Court for the Northern District of New York, in Central New York Fair Business Association v. Jewell , applied the framework employed by the Supreme Court in Chevron, U.S.A., Inc. v. Natural Resources Defense Council ( Chevron ) and found that the SOI's interpretation of "under Federal jurisdiction" warranted judicial deference. The case involved a challenge to a trust acquisition of 17,370 acres in Madison and Oneida Counties, New York, for the Oneida Indian Nation of New York. The case involved a tribe that had conducted a vote in 1934 under a provision of the IRA and had had a relationship with the federal government that included a 1794 treaty. Despite this history, the plaintiffs claimed that the Oneidas were not under federal jurisdiction in 1934 because they were under state jurisdiction. They argued that the 1830 Removal Act and the 1838 Treaty of Buffalo Creek disestablished the Oneida Reservation and "relinquished" federal jurisdiction. They also argued that the Oneida's 1934 IRA vote was not proof of their being under federal jurisdiction at the time. The court refuted the plaintiffs' assertions. In upholding the SOI's decision, the court noted with approval the SOI's determination that the IRA language—"now under Federal jurisdiction" and "recognized Indian tribe"—was ambiguous and found the SOI's interpretation of it to be reasonable and worthy of Chevron deference. In reaching this conclusion, the court elaborated on how the SOI ha d interpreted the recognition requirement in the IRA:
[h]aving found ... that DOI's interpretation that there is no time limit upon recognition is reasonable, the Court agrees that recognition is not limited to the mechanism in the [administrative process under [25 C.F.R., Part 83] ... regulations, and that DOI's interpretation of recognition as entailing a cognitive and a formal sense is reasonable. Accordingly, the Court agrees that the same evidence that establishes that OIN [Oneida Indian Nation] was under federal jurisdiction in 1934, also demonstrates that OIN is a federally recognized tribe.
section_title: Trust Acquisition for Ione Band of Miwok Indians
paragraphs: On September 30, 2015, the U.S. District Court for the Eastern District of California filed two opinions dismissing suits by the County of Amador, California, and various citizens advocate groups contesting a SOI decision to take land into trust for the Ione Band of Miwok Indians (Ione Band). The plaintiffs had alleged that the Ione Band was not "under federal jurisdiction" in 1934. The court began by determining, in agreement with the agency, that the term "under Federal jurisdiction" is ambiguous. It cited with approval the reasoning of the U.S. District Court for the District of Columbia in Confederated Tribes of the Grand Ronde Community of Oregon v. Jewell with respect to deferring to an agency's reasonable interpretation of an ambiguous statute. 
The plaintiffs claimed that the Ione Band was not "under Federal jurisdiction" in 1934 because there were two distinct tribes in Amador County at that time and the Ione Band was not one of them. The court viewed its role as limited: "[i]t is clearly beyond the scope of this Court's authority and expertise to conduct an independent investigation into the genealogy and political history supporting recognition of the Ione Band as a distinct tribe, and then to substitute that analysis for the BIA's. Rather the Court's role is to insure that BIA made no 'clear error of judgment' that would render its action arbitrary and capricious." Despite noting various inconsistencies in the DOI's treatment of the Ione Band over the years, the court found that the DOI's determination that the Ione Band was "under Federal jurisdiction" in 1934 "was not arbitrary, capricious, unlawful, or an abuse of discretion," because it "was based on multiple determinations by the Department throughout the history of the Ione Band's relationship with the federal government."
section_title: District Court Decision Invalidating Trust Acquisition for the Mashpee Wampanoag Tribe
paragraphs: On July 28, 2016, in Littlefield v. U.S. Department of the Interior, the U.S. District Court for the District of Massachusetts invalidated the SOI's decision to take land into trust for the Mashpee Wampanoag Tribe (Mashpee Tribe). The decision did not turn on the provision of the IRA at issue in Carcieri ¸ that is, the definition of "Indian" as "all persons of Indian descent who are members of any recognized Indian tribe now under Federal jurisdiction." It turned on the IRA's second definition of "Indian": "all persons who are descendants of such members who were, on June 1, 1934, residing within the present boundaries of any Indian reservation." 
The Mashpee Tribe was officially acknowledged to be an Indian tribe in 2007. Subsequently, it applied to have land taken into trust. In 2015, the SOI issued a decision approving the trust acquisition. In the decision, the DOI determined that the Mashpee Tribe qualifies as "Indian" under the second definition provided in Section 19 of the IRA and, thus, was eligible to have land taken into trust under Section 16 of the IRA. Section 16 authorizes the SOI to take land into trust "for Indians." Section 19 defines "Indian" as follows:
[t]he 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 DOI found that the Mashpee Tribe fell within the meaning of the language covering "all persons who are descendants of such members who were, on June 1, 1934, residing within the present boundaries of any Indian reservation." It reached this conclusion after identifying several ambiguities in the statutory language that, in accordance with Chevron , the agency provided interpretative elucidation . The agency's decision identified the Town of Mashpee as the Mashpee Tribe's "reservation" for purposes of this definition. The decision also interpreted the words "such members" to refer to "members of any recognized Indian tribe" whether or not the tribe was, in 1934, "now under Federal jurisdiction." 
According to the DOI:
In light of Congress's broad intent to restore and provide new homelands for Indians and the clear rule that statutory ambiguities are to be construed for the benefit of Indians, it would make little sense to interpret the second definition in such a way that would limit its applicability. 
Therefore, regarding the meaning of the referent of "such members" contained in the second definition, we believe it was intended to incorporate only the phrase "members of any recognized Indian tribe" and not "under federal jurisdiction" in 1934. To interpret it otherwise would be to completely subsume the second definition into the first, resulting in surplusage. The Supreme Court has stated that a cardinal principle of statutory construction is that "a statute ought, upon the whole, to be so construed that, if it can be prevented, no clause, sentence, or word shall be superfluous, void, or insignificant." Fully incorporating the first definition into the second would render the requirement of reservation residency meaningless, since all individuals would qualify under the first definition regardless of their residency. It would eliminate the significance of the term "reservation," which is a different concept than "under federal jurisdiction." Additionally, the term "and all" is conjunctive and indicates that Congress intended that the second definition be independent of the first. Accordingly, the most reasonable way to interpret the relationship of the second definition to the first, as well as the overall structure of the three definitions, is to construe them as three partially overlapping sets that are defined by different limitations.
Furthermore, it would have been redundant for Congress to incorporate the phrase "under federal jurisdiction" where it was well established at the time of IRA that Indian residents of a reservation were automatically subject to Federal authority. Congress is assumed to know the state of the law at the time it enacts legislation. The plain language of the statute is clear that 1934 applies to and limits the application of the second definition. Therefore, in the same way that the Supreme Court has interpreted the statutory language as imposing a temporal limitation in the first definition to members of tribes under Federal jurisdiction in 1934, the statute similarly established the temporal scope of the second category as reservation residents as of June 1, 1934. Congress intentionally preserved the jurisdictional framework existing at the time of the IRA by limiting the first category of Indians to those under federal jurisdiction in 1934 and by limiting the second category to reservation residents in 1934.
The district court, however, found the statutory language to be unambiguous. On the basis of its analysis of the grammatical structure of the IRA's second definition of "Indian," the court held that the plain meaning of the language is that "a descendant of a 'recognized Indian tribe' will be an eligible beneficiary of the IRA's land-into-trust provision only if that tribe was under federal jurisdiction in June 1934." It reinforced this conclusion by citing analogous cases interpreting different statutes and by noting that, in the IRA:
there is no language in Section 479 ... to indicate that the term 'such members' references only a portion of the antecedent phrase 'members of any recognized Indian tribe now under Federal jurisdiction[.]' Thus., ... the term 'such' here 'unmistakabl[y]' references the entire antecedent phrase.
section_title: Congressional Activity
subsections: section_title: 111th Congress
paragraphs: The 111 th Congress explored the ramifications of the Carcieri decision. The House Committee on Natural Resources held a hearing on April 1, 2009, to take testimony on how well the Supreme Court had explicated the legislative history of the IRA and how "now under federal jurisdiction" is to be interpreted. Witnesses testified to widespread concerns about potential litigation based on the Court's interpretation of Carcieri that will go beyond the question of further land-into-trust acquisitions for tribes recognized after 1934. Representative Nick Rahall, chairman of the committee, noted that "[P]lacing land into trust for an Indian tribe is an essential component of combating the situations experienced by Indian tribes as a result of their treatment by the United States. Even beyond the legal responsibility, the Federal government has a moral responsibility to rectify this situation."
On May 21, 2009, the Senate Committee on Indian Affairs held a hearing to examine executive branch authority to acquire trust lands for Indian tribes. Testifying at the hearing, Edward P. Lazarus made suggestions for legislative and administrative approaches and cautioned that anything short of legislation would likely result in protracted and costly litigation. He suggested two possible legislative approaches: (1) amending the IRA to remove "now" from "now under Federal jurisdiction" and (2) ratifying any pre- Carcieri land-into-trust administrative determinations under the IRA for tribes not recognized in 1934. According to Mr. Lazarus, after Carcieri , when DOI is presented with a request to take land into trust under the IRA, for a tribe recognized after 1934, it is now obliged to make a legal determination as to whether the tribe was "under Federal jurisdiction" in 1934. He expressed his own opinion that Justice Breyer's concurring opinion in Carcieri identified some of the factors that would be involved in such a determination (e.g., whether there were treaty obligations, appropriations, enrollment duties, or written records of continuous existence). He pointed out that each tribe qualifying for federal acknowledgement since 1978 under the DOI regulations, 25 C.F.R., Part 83, has established that it has "been identified as an American Indian entity on a substantially continuous basis since 1900," and argued that each of these tribes has, therefore, established that it has been "under Federal jurisdiction" since 1934. He also suggested that it would be legally supportable, if unwise because it would provoke costly litigation, for DOI formally to embrace its once-held position distinguishing formal recognition of a tribe from a tribe's being "under Federal jurisdiction" despite the fact that the Solicitor General had rejected the distinction in oral argument in Carcieri . Mr. Lazarus also mentioned other possible but perhaps more limited means of providing trust status or similar protection for lands of tribes recognized since 1934: (1) making use of a statutory provision authorizing the transfer of excess federal real property to tribes, and (2) exploring whether there exists some inherent presidential authority to provide some form of protection for fee lands held by Indian tribes.
At the same hearing, W. Ron Allen, Secretary of the National Congress of American Indians, provided draft language for an amendment to the IRA to remove the word "now" from "now under federal jurisdiction" and to protect pre- Carcieri decisions by the Secretary to take land into trust from judicial invalidation based on a tribe's not having been recognized in 1934. He indicated that although an administrative solution to the potential effects of Carcieri is possible, anything other than legislation is likely to result in wasteful and protracted litigation. Another witness, Lawrence E. Long, Attorney General of South Dakota, and chair of the Conference of Western Attorneys General, recommended a general review of the trust acquisition policy, including its overall goals and the criteria that DOI uses in making determinations to take land into trust.
In the 111 th Congress, there were several bills introduced to extend authority to the Secretary to take land into trust for all federally recognized tribes; none, however, were enacted. Of the three introduced bills, H.R. 3697 , H.R. 3742 , and S. 1703 , only S. 1703 was reported out of committee. 
subsections: section_title: S. 1703 as Reported by the Senate Committee on Indian Affairs
paragraphs: On December 17, 2009, the Senate Committee on Indian Affairs approved an amended version of S. 1703 . Both versions received the endorsement of the SOI. The reported version of S. 1703 included an amendment offered by Senator Tom Coburn which would have required DOI to study the impact of the Supreme Court's decision and provide Congress with a list of affected tribes and lands. There was also a provision in the reported version of S. 1703 , which, according to the Senate Committee on Indian Affairs, "clarifies that the legislation does not affect any law other than the Indian Reorganization Act or limit the authority of the Secretary of the Interior under any federal law or regulation other than the Indian Reorganization Act." Otherwise, the legislation paralleled H.R. 3697 and H.R. 3742 , as introduced. It would have amended the IRA as of its date of enactment, June 18, 1934. It would have changed the IRA definition of "Indian" to refer to members of "any federally recognized Indian tribe" instead of members of "any recognized Indian tribe now under Federal jurisdiction." This legislation, therefore, would have removed the language which led the Supreme Court to hold that the Secretary's authority to take land into trust under 25 U.S.C. §465 was limited to acquisitions for tribes under federal jurisdiction in 1934. In addition, it would have specified that "In this section, the term 'Indian tribe' means any Indian or Alaska Native tribe, band, nation, pueblo, village, or community that the Secretary of the Interior acknowledges to exist as an Indian tribe."
It would have substituted that definition for the following language defining "tribe" for IRA purposes: "The term 'tribe' wherever used in said sections shall be construed to refer to any Indian tribe, organized band, pueblo, or Indians residing on one reservation."
The Senate Committee on Indian Affairs characterized the legislation as a means of correcting a judicial decision that
runs contrary to longstanding and settled practice of the Department of the Interior regarding trust land acquisitions; invites disparate treatment of federally recognized tribes contrary to previous Acts of Congress; creates uncertainty about the scope of the Secretary's authority; and threatens unnecessary and burdensome administrative proceedings and litigation for both the United States and the tribes on matters that Congress long ago intended to resolve.
This view is consistent with that of Senator Dorgan, who indicated, in introducing the legislation, that the Supreme Court's decision in Carcieri v. Salazar prompted a need for Congress to act to avoid the creation of "two classes of Indian tribes—those who were recognized as of 1934, for whom land may be taken into trust, and those recognized after 1934 that would be unable to have land taken into trust status." He stated: "The legislation I'm introducing today is necessary to reaffirm the Secretary's authority to take lands into trust for Indian tribes, regardless of when they were recognized by the federal government. The amendment ratifies the prior trust acquisitions of the Secretary, who for the past 75 years has been exercising his authority to take lands into trust, as intended by the Indian Reorganization Act."
section_title: Section 2727 of H.R. 3082, the Continuing Appropriations, 2011
paragraphs: In addition to S. 1703 , there was another legislative vehicle in which language appeared that would have amended the IRA to cover "any federally recognized Indian tribe." This was Section 2727 of H.R. 3082 , the Full-Year Continuing Appropriations Act, 2011, which was passed by the House on December 8, 2010, but not acted upon by the Senate thereafter. It contained provisions directed at ratifying past land-into-trust acquisitions by the Secretary and clarifying how the IRA amendment interacted with other laws.
section_title: 112th Congress
paragraphs: In the 112 th Congress, none of the bills relating to Carcieri were enacted. Three bills were introduced to extend authority to the Secretary to take land into trust for all federally recognized tribes: H.R. 1234 , H.R. 1291 , and S. 676 . One, S. 676 , was amended and reported out of committee—by the Senate Committee on Indian Affairs on April 7, 2011. It contains language which parallels that of Section 2727 of H.R. 3082 of the 111 th Congress. Like that bill, it retroactively amends the IRA to cover "any federally recognized Indian tribe," and contains provisions directed at ratifying past land-into-trust acquisitions by the Secretary as well as language designed to clarify its interaction with other law. 
S. 676 also includes a provision that requires DOI to study the impact of the Supreme Court's decision and provide Congress with a list of affected tribes and lands. In reporting out the bill, the Senate Committee on Indian Affairs criticized the Departments of Justice and of the Interior's handling of Carcieri before the Supreme Court by failing to contest the assertion that the tribe was not under federal jurisdiction in 1934 and by failing to show the array of statutes by which Congress sought to eliminate any disparate treatment of tribes based on recognition date. Moreover, in the report, the committee characterized the Carcieri decision as impacting all tribes by "threaten[ing] public safety and tribal law enforcement"; creating "a barrier to economic development"; "freez[ing] access to capital"; and, "increas[ing] Federal litigation over settled Federal policy and practice." H.R. 1234 also contains language similar to that of Section 2727 of H.R. 3082 , of the 111 th Congress, as it was passed by the House of Representatives on December 8, 2010. H.R. 1291 would apply the IRA retroactively to "any federally recognized Indian tribe," but would specify that the Secretary's authority under Section 19 of the IRA, 25 U.S.C. §465, to take land into trust does not extend to Alaska. 
In the 112 th Congress, there was also legislation to compensate local governments for lost revenue associated with taking land into trust: S. 988 , H.R. 1851 , and H.R. 1882 . These bills share the same title: the Land-In-Trust Schools and Local Governments Equitable Compensation Act. Under these bills, when lands are taken into trust for an Indian tribe or an individual Indian after October 1, 2008, there would be compensation from the U.S. Treasury's general fund for lost tax revenue unless the Secretary of the Interior negotiates waiver agreements. Eligible entities included local education agencies or units of local government and states that suffer loss of tax revenue as a result of the trust acquisition. Payment of compensation would require no further appropriation.
section_title: 113th Congress
paragraphs: In the 113 th Congress, one bill, S. 1603 , the Gun Lake Trust Land Reaffirmation Act, was enacted into law. It reaffirms the DOI's May 15, 2005, trust acquisition of the land at issue in the Supreme Court's decision in Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians v. Patchak and requires that any federal court action relating to that land be dismissed. 
There was an Indian Affairs Committee hearing, " Carcieri: Bringing Certainty to Trust Land Acquisitions." At that hearing, Kevin K. Washburn, Assistant Secretary of the Interior for Indian Affairs, stated that the Obama Administration's "practical solution" for this issue is language, included in the President's budget request, that would amend the IRA as follows: 
Effective beginning on June 18, 1934, the term "Indian" as used in this Act shall include all persons of Indian descent who are members of any federally recognized Indian tribe, and all persons who are descendants of such members who were, on June 1, 1934, residing within the present boundaries of any Indian reservation, and shall further include all other persons of one-half or more Indian blood. 
H.R. 279 would have amended the IRA retroactively to define "Indian" to mean "any federally recognized Indian tribe." It would also strike the following sentence: "The term 'tribe' wherever used in this Act shall be construed to refer to any Indian tribe, organized band, pueblo, or Indians residing on one reservation," and substitute: "In said sections, the term 'Indian tribe' means any Indian or Alaska Native tribe, band, nation, pueblo, village, or community that the Secretary of the Interior acknowledges to exist as an Indian tribe." 
H.R. 666 / S. 2188 would have amended the IRA retroactively to define "Indian" to mean "any federally recognized Indian tribe." These bills also contained provisions aimed at insulating past land-into-trust acquisitions for tribes recognized at the time of the acquisition against challenges based on the tribe's not having been federally recognized as of June 18, 1934. The bills also include a disclaimer with respect to effect on laws other than IRA or laws limiting the authority of the SOI.
section_title: 114th Congress
subsections: section_title: S. 1879
paragraphs: On June 6, 2016, the Senate Committee on Indian Affairs reported an amended version of S. 1879 , the Interior Improvement Act, which had been introduced by Senator John Barrasso, chairman of the Senate Indian Affairs Committee, on July 28, 2015. It would amend the Indian Reorganization Act to declare that "[e]ffective beginning on June 18, 1934, the term 'Indian' as used in this Act shall include all persons of Indian descent who are members of any federally recognized Indian tribe." It would also provide procedures and standards for applications from Indian tribes and individual Indians to have off-reservation land taken into trust for their benefit. It includes provisions contemplating cooperative agreements with nearby local and tribal governments regarding the mitigation of the economic impact of proposed land-into-trust applications.
Specifically, S. 1879 would amend Section 5 of the IRA, 25 U.S.C. §465, to read as follows:
Effective beginning on June 18, 1934, the term 'Indian" as used in this Act shall include all persons of Indian descent who are members of any federally recognized Indian tribe and all persons who are descendants of such members who were, on June 1, 1934, residing within the present boundaries of any Indian reservation, and shall further include all other persons of one-half or more Indian blood. For the purposes of this Act, Eskimos and other aboriginal peoples of Alaska shall be considered Indians. The term "tribe" wherever used in this Act shall be construed to refer to any Indian tribe, organized band, pueblo, or the Indians residing on one reservation. The words "adult Indians" wherever used in this Act shall be construed to refer to Indians who have attained the age of twenty-one years.
The bill would ratify and confirm any trust acquisition challenged on the basis of the tribe's not being under federal jurisdiction in 1934. The legislation would also state that it does not impact other federal Indian land determinations; that nothing in it "affects ... the application or effect of any Federal law" other than the Indian Reorganization Act; and that nothing in it "affects ... any limitation on the authority" of the Secretary of the Interior (SOI) under any other law.
S. 1879 would add a new Section 5A to the IRA as 25 U.S.C. §465A, that would establish a land-into-trust acquisition application process for tribes or individual Indians seeking to have off-reservation land taken into trust by the SOI. That new Section 5A of the IRA would be entitled "Discretionary Off-reservation Acquisitions." It would include certain definitions. It would define "contiguous" to mean "2 parcels of land having a common boundary, notwithstanding the existence of non-navigable waters or a public road or right-of way ... and includes parcels that touch at a point." It would define "contiguous jurisdiction" as "any county, county equivalent, or Indian tribe, or the Federal Government, with authority and control over the land contiguous to the land under consideration in an application." It would define "county and county equivalent" as "the largest territorial division for local government within a State with the authority to enter into enforceable cooperative agreements with Indian tribes or individual Indians." It would define "impacts" as "the anticipated costs and benefits to the applicant, contiguous jurisdictions, and any other Indian tribe with governmental functions, infrastructure, or services that would be directly, immediately, and significantly impacted by the proposed acquisition."
Under the legislation, off-reservation land acquisition applications would be required to include, in addition to other requirements imposed by the SOI, such requirements as descriptions of the need for and the purpose of the proposed acquisition; a deed or other legal instrument to verify current ownership; a business plan for managing the land to be acquired; verification of current ownership; and "the location of the land relative to state and local boundaries." The bill also would include requirements for the SOI to provide notice to contiguous jurisdictions when applications are received, updated, modified, or withdrawn, and to provide public notice of completed applications and final decisions. It would include timetables for receipt of comments from contiguous jurisdictions and for publication of notices. 
The bill would require the SOI "to encourage, but not require, applicants to enter into cooperative agreements with contiguous jurisdictions." Under the legislation, there would be an expedited process for applications accompanied by cooperative agreements. The legislation would provide that cooperative agreements "may include terms relating to mitigation, changes in land use, dispute resolution, fees, and other terms determined by the parties to be appropriate." Under the bill, if a completed application includes a cooperative agreement, the SOI's decision would be subject to a specified timeline requiring a final decision within 120 days, provided there has been verification of clear title to the land and satisfaction of all applicable requirements under federal laws and regulations. If the SOI fails to meet that timeline, under the bill, the application would be deemed approved. If an application is not accompanied by a cooperative agreement, under the legislation the SOI would be required to "issue a written determination of mitigation." Such a determination would be required to include consideration of how the acquisition might impact the economy of contiguous jurisdictions and whether the lack of a cooperative agreement is attributable to "failure of any contiguous jurisdiction to work in good faith to reach an agreement." The legislation would also specify that failure to submit a cooperative agreement would not prejudice an application if the Secretary determines it attributable to "failure by any contiguous jurisdiction to work in good faith honestly and without fraud or unfair dealing to reach an agreement." The legislation would require the SOI to encourage contiguous jurisdictions to "engage in local cooperation through reciprocal notice and comment procedures, particularly with regard to changes in land use." The legislation would specify requirements to be satisfied before the SOI may issue a final decision on an application. These include verification of clear title to the land; satisfaction of all legal requirements; consideration of all materials submitted and comments and responses to comments; determination of mitigation; "relevant and material cooperative agreements" with contiguous and non-contiguous jurisdictions; and any other relevant information. The bill would include a statement that "'[n]othing in this Act requires the publication or the release of proprietary information by an applicant under this section."
Under the bill, before conducting a notice and comment rulemaking to implement the legislation, the SOI would be required to consult with Indian tribes and publish a summary of consultation in the Federal Register within 180 days of completing the consultation. The bill would specify that interested parties may seek judicial review of final decisions in federal district court under the Administrative Procedure Act.
section_title: Other Bills
paragraphs: S. 732 / H.R. 407 would amend the Indian Reorganization Act to declare that, "[e]ffective beginning on June 18, 1934, the term 'Indian' as used in this Act shall include all persons of Indian descent who are members of any federally recognized Indian tribe." It contains a provision ratifying previous SOI acquisitions for tribes federally recognized on the date that acquisition was confirmed and ratified and a provision preserving limitations on the SOI's authority to take land into trust in laws other than the Indian Reorganization Act.
H.R. 249 would amend the Indian Reorganization Act to declare that, "[e]ffective beginning on June 18, 1934, the term 'Indian' as used in this Act shall include all persons of Indian descent who are members of any federally recognized Indian tribe." It would strike the following language found in 25 U.S.C. §479: "The term 'tribe' wherever used in this Act shall be construed to refer to any Indian tribe, organized band, pueblo, or the Indians residing on one reservation." It would substitute for it the following language: "In said sections, the term 'Indian tribe' means any Indian or Alaska Native tribe, band, nation, pueblo, village, or community that the Secretary of the Interior acknowledges to exist as an Indian tribe."