Amicus Briefly

Where the Middleboro casino issue is concerned, when it rains it pours. The just released Spectrum report has re-kindled the casino debate with it’s not so independent analysis of casino gambling in Massachusetts and actually, I am happy about this. No, not about the content of the so called independent analysis…which can hardly be called independent., but because this report seems to have knocked some sense into our Governor where the Mashpee Wampanoag Tribe’s LIT application and specifically the tribal/state compact is concerned. It is now being reported that the Governor will not entertain compact negotiations unless the land is put into trust. This is good news because I recently received notification that the Supreme Court of the United States will be hearing the Carcieri v. Kempthorne case on November 3rd, 2008. The outcome of this case is a huge deal and is being watched by tribes and casino opposition groups alike nationwide. The bottom line is, the outcome of this case has the potential to change how LIT applications are reviewed and approved for tribes recognized after 1934. The Supreme Court has decided to hear this case and rule on two very important questions:

1. Whether the 1934 Act empowers the Secretary to take land into trust for Indiantribes that werenot recognized and under federal jurisdiction in 1934.

2. Whether an act of Congress that extinguishes aboriginal title and all claims based on Indian rights and interests in land precludes the Secretary from creating Indian country there.

The argument for these two questions is summarized below:

The Indian Reorganization Act of 1934 permits the Secretary to take land into trust for certain Indian tribes, significantly impairing state jurisdiction. The Fifth Circuit held that the 1934 Act “positively dictates” that the only Indian tribes for whom land can be taken into trust are those that were “recognized” and “under federal jurisdiction” as of “June 1934”. This Court similarly concluded in that the 1934 Act contained a temporal “recognized [in 1934] tribe” limitation. United States v. John, 437 U.S. 634 (1978). The Ninth Circuit affirmed a district court decision to the same effect.
The Rhode Island Indian Land Claims Settlement Act provides land specifically for the later recognized Narragansett Indian Tribe and comprehensively disposes of all Indian land claims in Rhode Island. The Tribe received 1,800 acres of land for free. In exchange, Congress extinguished aboriginal title and all Indian interests in land in Rhode Island.

- lower court case number 03-2647 -

Simply put, the Governor of Rhode Island is challenging the Secretary of the Interior’s power to take land into trust for Indian Tribes recognized after June of 1934, after the enactment of the Indian Reorganization Act. This is the Act that gives the Secretary the authority to take land into trust for Indian tribes. The questions posed in the petition challenges the First Circuits decision to uphold the decision made by the Secretary of the Interior to remove 31 acres of land in Charlestown, RI from the State’s civil and criminal jurisdiction by acquiring the land in trust for the Narragansett Tribe. The Governor of Rhode Island is challenging this decision because there are two independent statutory provisions that prohibit the Secretary from using his trust authority to divest the State of jurisdiction over the 31 acres of land and create sovereign Indian territory in Rhode Island. Twenty-one other States have signed on to this case as Amici Curiae in support of the petitioners. These States are: Alabama, Alaska, Arkansas, Connecticut, Florida, Illinois, Iowa, Kansas, Louisiana, Massachusetts, Mississippi, Missouri, Nebraska, New Jersey, North Dakota, Ohio, Oklahoma, Pennsylvania, South Dakota, Texas and Utah.

I had the opportunity to read the arguments presented by both Rhode Island and the other Amici States. What I thought would be a boring read actually was quite interesting, and addressed a particular section of the IRA that I have pondered over since the day I read it for the first time. Question one asks that very question so I thought I would share what twenty-two states are saying about the powers of the Secretary to take land into trust for Indian Tribes recognized after 1934. Let’s face it, if the Supreme Court rules in favor of Carcieri then in my opinion, they will be upholding Congress’ intent of the regulation, and what they meant when they used the phrase “...any recognized Indian tribe now under Federal jurisdiction…”

I will save question two - which speaks to the misconstrue of the Settlement Act - for another day. For now, here are the arguments for question one.

What Rhode Island Says

The argument submitted by the petitioner (Donald L. Carcieri), is 88 pages long. In a nutshell, the Governor is arguing that the Secretary may not take land into trust on behalf of the Narragansetts because they were neither federally recognized nor under federal jurisdiction in 1934 and because the text of the IRA unambiguously establishes that the Secretary lacks the authority to take land into trust on behalf of the Naragansettts. He argues that Section 5 of the IRA provides that the Secretary may “acquire through purchase, relinquishment, gift, exchange, or assignment, any interest in lands …..for the purpose of providing land for Indians.” Therefore, the Secretary must establish that the members of the tribe are “Indians” within the meaning of the IRA.

Section 19 of the IRA provides that “..the term “Indian” …shall include [1] all persons of Indian decent who are members of any recognized Indian tribe now under Federal jurisdiction, and [2] all persons who are descendents of such members who were, on June 1, 1934, residing within the present boundaries of any Indian reservation, and shall further include [3] all other persons of on-half or more Indian blood”.

Rhode Island goes on to say that when the Secretary relies upon tribal membership – rather than descent or blood quantum – to establish that trust beneficiaries are “Indians” under the IRA, the plain language of Section 19 – which encompasses “any recognized Indian tribe now under federal jurisdiction” – restricts the Secretary’s trust authority to property acquired for person who are members of tribes that were both federally recognized and under federal jurisdiction at the time of the IRA’s enactment in 1934. The Secretary may not – through the promulgation of a regulation, or otherwise – expand his trust authority beyond this statutorily imposed boundary.

The argument goes on to define the word “now” from dictionaries published shortly before, or contemporaneously with the enactment of the IRA. The definitions establish that the word “now” means “at the present time” or, synonymously, “at the time of speaking” so to interpret the word “now” to refer to the time that it the IRA is applied, rather than to the time it was enacted, would render the term utterly superfluous.

- brief for petitioner Donald L. Carcieri -

What the other 21 States say

The amici curiae states submitted a 34 page brief in support of the brief filed by Rhode Island. These States have vital interest in this case because of the misinterpretations of the two federal statues, the Indian Reorganization Act of 1934 and the Rhode Island Indian Claims Settlement Act. The States argue that land taken into trust for Indians by the Secretary and removed from state authority in several significant respects (including taxation, land use restrictions and certain environmental regulations) limits the States’ ability to exercise their sovereign powers to protect the public on the trust land, which results in the creation of an area largely controlled by a competing sovereign within a state’s borders without its consent. This is contrary to core principles of federalism.

The States point out that the Secretary has already taken into trust several million acres nationwide under the IRA – an area approximately twice the size of Connecticut and Rhode Island combined. The Amici States have a compelling sovereign interest in having the Supreme Court define the proper application of the IRA, particularly in conjunction with settlement acts.

When the Secretary exercises his power to take land into trust, there are substantial and permanent consequences for the impacted state and local communities. This power gives the Secretary the capacity to change the entire character of a state, particularly when the Secretary uses it in coordination with modern Tribes who build casinos that are located in populated areas and existing communities. The States feel that it is incumbent on the courts to vigilantly enforce the limits Congress has placed on the Secretary’s power in order to maintain the proper segregation of powers.

The precise question at issue regarding the Secretary’s power to take land into trust in this case is whether Congress in the IRA intended to allow the Secretary to take land into trust on behalf of Indian Tribes that were not recognized and under federal jurisdiction in 1934, when the IRA was enacted. Congress addressed that precise temporal question in the IRAs text and clearly provided that the Secretary’s authority to take land into trust is limited to pre-1934 tribes. The IRA allows the Secretary to take land into trust “for the purpose of providing land for Indians” (25 USC 465), and defines the term “Indian” to “include all persons of Indian descent who are members of any recognized Indian tribe now under Federal jurisdiction.” (25 USC 479). The States argue that Congress’ use of the word “now” in the definition of an “Indian” unambiguously expresses its intent to limit the Secretary’s trust authority to tribes that were recognized and under federal jurisdiction at the time of the IRAs enactment in 1934. The argument cites several cases where courts have repeatedly held in similar circumstances – both before and after the passage of the IRA – that when Congress uses the word “now” in a statute, it intends to incorporate a temporal limitation as of the date of enactment. Therefore, the context of the IRA strongly supports the conclusion that by using “now” Congress intended to limit the Act’s application to tribes recognized and under Federal jurisdiction in 1934. If Congress had intended that land can be taken into trust on behalf of tribes recognized at any time, they would have used the phrase “now or hereafter”, or similar language, or simply deleted the word “now” altogether. There is simply nothing in either the text or the context of section 479 to support the Secretary’s reading of “now” to mean whenever in the future the Secretary chooses to act.

The States also argue that the plain reading of the IRA is consistent with its background and legislative history, meaning the circumstances surrounding the enactment. They argue that the legislative history of the IRAs “now” limitation is consistent with Congress’ intent to limit the IRAs application to 1934 tribes. Representative Howard and Commission of Indian Affairs Collier – two key players in the IRAs enactment – made statements that directly indicate that the IRA was intended to apply only to tribes recognized as of 1934.

“….section 479 defines the persons who shall be classified as Indian. In essence, it recognizes the status quo of present reservation Indians and further includes all other persons of one-fourth Indian blood”

- Representative Howard on the IRA-

Commissioner Collier spoke even more clearly on this issue. An early draft of the IRA defined “Indian” to among other things “include all persons of Indian descent who are members of any recognized Indian tribe.” Senators expressed concern about whether that definition would sufficiently ensure bona fide status and, in response, Commissioner Collier proposed the “now” limitation, which Congress adopted.

The Amici States conclude that reading the IRA to apply only to tribes recognized and under federal jurisdiction in 1934 is not only consistent with the legislative history directly related to the “now” limitation, it is also entirely consistent with the Act’s broader purposes and history. The IRA intended to help remediate the impact on the then recognized tribes of pre-1934 federal policies and bureaucratic failings, and the intent and purpose of the IRA was “to rehabilitate the Indians economic life and to give him a chance to develop the initiative destroyed by a century of oppression and paternalism” resulting from the government’s allotment policy, which began with the passage of the General Allotment Act of 1887 and lasted until 1934, when the IRA was enacted. It was reasonable for Congress to direct remedial efforts toward the tribes that has suffered as a result of disastrous federal policies and bureaucratic failings, rather than allocating scarce resources to tribes that, from the federal government’s perspective, did not yet exist and would not be subjected to those policies.

The Amici States also point out that reading the IRA as it is written does not leave post-1934 tribes unable to obtain land. It simply insures that such grants of land are made by Congress, not the Secretary, thus guaranteeing that the States and their citizens have the full ability to protect their interests through the democratic process.

- brief for Amici Curiae States -

I must say that I am extremely pleased that our Attorney General, Martha Coakley signed onto this brief. If anything, it gives weight to the idea that perhaps our State isn’t so enamored with the idea of an Indian Casino. Even our legislature has shown its reluctance to legalize class III gambling or allow Deval Patrick’s casino dream to come to fruition so voting quickly to approve a tribal/state compact is highly unlikely. Also, the State's newfound reluctance to even think about compacts before a LIT decision is made is a good thing. Best to wait and see how the Supreme Court rules on this case. If they favor Carcieri, then it will take an act of Congress to approve that land in Middleboro – and it will allow us the full ability to protect our interests through the democratic process.

Each State, in ratifying the Constitution, is considered as a sovereign body, independent of all others, and only to be bound by its own voluntary act. In this relation, then, the new Constitution will, if established, be a FEDERAL, and not a NATIONAL constitution. - James Maddison

- be the change you want to see in the world -