On December 12, 2014, the U.S. District Court for the District of Columbia in Confederated Tribes of the Grand Ronde Community of Oregon v. Jewell upheld the Department of the Interior’s Carcieri framework. The Court’s holding helps to minimize the impact of the Supreme Court’s Carcieri v. Salazar decision, which muddied the waters regarding which tribes are eligible for trust land under the Indian Reorganization Act (IRA). The Confederated Tribes of the Grand Ronde Community of Oregon appealed the decision to the U.S. Court of Appeals for the District of Columbia Circuit on December 18, 2014.
The Department approved a trust acquisition under the IRA of approximately 152 acres of land in Clark County, Washington, for gaming purposes on behalf of the Cowlitz Indian tribe (Tribe). Soon after, the Confederated Tribes of the Grand Ronde Community of Oregon and Clark County brought suit against the Department in the U.S. District Court for the District of Columbia. They argued that the Department: (1) did not have authority to acquire the land into trust under the IRA for the Tribe; (2) unlawfully determined the Tribe had a significant historical connection to the land and could therefore game under the Indian Gaming Regulatory Act (IGRA); and (3) did not carry out its duties under the National Environmental Policy Act. The District Court found for the Department on each claim and dismissed the case.
Most notable of the several issues is the Court’s analysis of whether the Department had authority to acquire trust land under the IRA for the Tribe. The IRA authorizes the Department to acquire trust land for Indians, defining “Indian” to include “all persons of Indian descent who are members of any recognized Indian tribe now under Federal jurisdiction.” In 2009, the Supreme Court in Carcieri v. Salazar held generally that a tribe must have been “under federal jurisdiction” in 1934, the year the IRA was enacted, to qualify for trust land under the IRA.
In response to the Supreme Court’s decision, the Department created a framework for determining whether a tribe is eligible for trust land under the IRA. The Department’s framework does not require a tribe to have been federally recognized in 1934, but it does require a tribe to meet a two-part test to establish that it was under federal jurisdiction. Under the two-part test, the Department examines: (1) whether at some point prior to 1934 the United States took actions on behalf of the tribe or its members that reflect federal obligations, duties, responsibility for, or authority over the tribe; and (2) whether the tribe’s jurisdictional status remained intact in 1934.
Plaintiffs argued the Department’s decision to take land into trust for the Tribe was unlawful because: (1) the IRA requires a tribe to demonstrate it was both recognized and under federal jurisdiction in 1934; and (2) the Tribe was neither recognized nor under federal jurisdiction in 1934. The Court rejected both arguments.
The Court first held that a tribe need not have been federally recognized in 1934 to be eligible for trust land under the IRA. It found that the Supreme Court’s holding in Carcieri did not directly address the issue nor did the statutory language of the IRA or its legislative history. The Court deferred to the Department’s interpretation of the IRA as not requiring federal recognition in 1934. Because the Court held that recognition in 1934 is not necessary, it was not required to address the issue of what “recognition” means in the context of the IRA.
Next, the Court validated the Department’s two-part test for determining whether a tribe was under federal jurisdiction in 1934. Despite Plaintiffs’ argument to the contrary, the Court concluded that nothing in the IRA prohibits the Department from considering the relationship between the federal government and individual tribal members. The Court found that the IRA and its legislative history failed to define “under federal jurisdiction” and the Department’s two-part test was entitled to deference.
The Court further upheld the Department’s application of its two-part test to conclude the Tribe was under federal jurisdiction in 1934. The Court considered all of the Tribe’s evidence taken as a whole, including failed treaty negotiations, allotments to tribal members, federal approval of the Tribe’s attorney contracts, and other federal services to the Tribe and its members. The Court rejected Plaintiffs’ argument that the Department dismissed contrary evidence, noting that the Department considered the evidence and found it unpersuasive in light of the entire record.
The Court also agreed with the Department that a tribe may be under federal jurisdiction for purposes of the IRA while lacking a government-to-government relationship for purposes of qualifying as a restored tribe under IGRA.
Our firm filed an amicus curiae brief on behalf of the Jamestown S’Klallam Tribe and the United South and Eastern Tribes, Inc. in support of the Cowlitz Tribe. The amicus brief argued that the Carcieri decision does not require a tribe to have been federally recognized in 1934 in order to take land into trust today, and argued that determining whether a tribe was under federal jurisdiction in 1934 must be made on a case by case basis and account for the unique history and circumstances of the tribe’s relationship with the United States.
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