Mythbusters

The myth perpetuated by the casino industry that Indian casinos are inevitable in Massachusetts continues to not hold legal muster.

Supreme Court rules in big land-into-trust case
Tuesday, February 24, 2009
Filed Under: Law | Trust

Tribes that weren't under federal jurisdiction in 1934 cannot follow the land-into-trust process of the Indian Reorganization Act, the U.S. Supreme Court ruled today.

By a 6-3 vote, the justices said the Interior Department can't acquire land for the Narragansett Tribe of Rhode Island because the tribe didn't gain federal recognition until 1983. Justice Clarence Thomas wrote the majority opinion. "Because the record in this case establishes that the Narragansett Tribe was not under federal jurisdiction when the IRA was enacted, the Secretary does not have the authority to take the parcel at issue into trust," Thomas wrote. Three justices dissented from the court's opinion. Justice David Souter agreed with the 1934 issue but said the Narragansetts should be given the opportunity to prove they were under federal jurisdiction at the time, an issue that wasn't argued when the case was accepted. "The very notion of jurisdiction as a distinct statutory condition was ignored in this litigation, and I know of no body of precedent or history of practice giving content to the condition sufficient for gauging the tribe’s chances of satisfying it," Souter wrote in an opinion that was joined by Justice Ruth Bader Ginsburg. Justice John Paul Stevens disagreed with the 1934 issue altogether and said the Narragansetts are an Indian tribe as defined by the IRA. "That tribe has existed as a continuous political entity since the early 17th century," he wrote. Justice Stephen G. Breyer joined the majority opinion and authored a concurrence that said the Narragansetts have no way of proving they were under federal jurisdiction in 1934. "Because I see no realistic possibility that the Narragansett Tribe could prevail on the basis of a theory alternative to the theories argued here, I would not remand this case," he wrote. The decision blocks the Narragansetts from using a 31-acre parcel for a housing project. But it also affects every other tribe that wasn't federally recognized, or under federal jurisdiction, in 1934. Anticipating the outcome, the Narragansetts have sought support for a legislative fix to address the 1934 issue. But tribal leaders expect major opposition from the state's politicians and Congressional delegation. The National Congress of American Indians discussed the case earlier this year as tribal leaders gathered in Washington, D.C., for the inauguration of President Barack Obama. However, the "Carcieri fix" was left off the final list of priorities for the 111th Congress. The list of tribes who are affected by the 1934 issue runs in the dozens and includes some of the more financially successful in Indian Country. Many of them, however, may be able to overcome the date limitation by proving they were under federal jurisdiction at the time. The Department of Justice, in another land-into-trust case that was rejected by the high court last month, said Interior will have to take a look at treaties, statutes, executive orders and other sources of law to answer the federal jurisdiction issue. It's not clear how this process might be developed. And the decision doesn't appear to affect post-1934 tribes whose land is already in trust, as only Congress can take land out of trust. It would appear only to affect future acquisitions.