Ignorance is Bliss…or is it Deference Bliss

Deference (noun)
1. a yielding in opinion, judgment, or wishes
2. Ignorance

Ignorance (noun)
1. The condition of being uneducated, unaware, or uninformed

I recently had the opportunity to hear of a discussion a friend of mine had with someone regarding the Mashpee Wampanoag Tribe and how this person believes the Tribe will be able to get Land in Trust regardless of the Carcieri decision and regardless of the lack of a “Carcieri fix”….my dear friend was intrigued so naturally they looked into this claim. Normally I would disregard this kind of statement, but the person claiming this is extremely knowledgeable regarding this issue and anything this person says, I may take with a grain of salt…but I do take it seriously. That coupled with some fly-by-night comments on a Taunton casino forum about a so-called "clerical mistake" on the IRA 1934 list of recognized tribes (or so I assume that is the list they are talking about) that left out the Mashpee tribe and how it would easily be fixed....you know.... being a “clerical mistake” and all, I wanted to find out more since it is well documented that the Mashpee Wampanoag Tribe was not a recognized tribe under federal jurisdiction in 1934…..So my friend did some digging, as did I….what fun! How I do love to do research with this friend of mine – she is by far one of the most articulate and well informed persons I have met regarding FIP,  and truth be told…we both love a good challenge.

So it begins….again….

It’s kind of funny how this all came about – what was said to my friend and what I had read on this forum (which I seriously did not take seriously – and still don’t because the notion is so downright ridiculous it is actually amusing – at least regarding the Mashpee Tribe). However, coupled with the discussion my friend had which was NOT ridiculous nor amusing…..things just kind of “clicked” in my head in regards to Cedric Cromwell making claims that the Tribe will get Land in Trust…. I honestly believe he believes it….and I think I know why. With the loss of the Carcieri Fix introduced by Senator Delahunt in 2009 - arguing that the 1994 Federally Recognized Tribe List Act ensures that all Tribes are treated equally regardless of when they were recognized, I can see why the Tribe may try to say they were under federal jurisdiction in 1934 and left off "the list" – a clerical mistake – but to be clear, I have not read nor heard of the Tribe claiming a clerical error…only the musings of a faceless person on facebook.

Argument from faceless person on facebook – the Tribe was left off the list by accident, it was a clerical error that will easily be fixed (my summary, and by no means an actual quote, but you get the drift). Which “list” would that be exactly? That was never made clear in the posts….I assume this person is speaking of the list used in the Carcieri Amicus…but who knows….

The argument from the knowledgeable person who I take seriously is this: The Tribe can and will get Land in Trust because of Chevron….basically, if I am understanding what he claims correctly – the Tribe can pursue a Chevron deference to have the Secretary of the Interior take land in trust on their behalf….this has got to be hands down one of the best arguments I have heard in a long time….and it worried me….but only for a second….okay, two seconds…..maybe three.

In Chevron v. Natural Resources Defense Council (1984), the Supreme Court ruled that courts were to defer to agency interpretations of the statutes they administer unless Congress had directly spoken to the issue and the agency interpretation contradicted Congress’s expressed wish or unless the agency’s decision was “unreasonable.” Furthermore, this argument had been used in the lower courts to uphold the Secretary of Interior decisions to take land into trust for tribes in the past, and it had worked. Even after the Carcieri decision, the Secretary was working with tribes to further define their regulations to use this argument as a way around Carcieri.

In fact, during the June 29, 2009 Tribal Consultation regarding the Carcieri decision, one question brought to the group was:

1. Should the Department revise 25 CFR 151 to define the term “under federal jurisdiction in 1934?”

and

2. What should it say?

At this consultation, Deputy Assistant Secretary Skibine discussed how The Department of the Interior, working with the NCAI (National Congress of American Indians) was involved in litigation defending its decision to take land into trust for the Gun Lake Tribe under the Quiet Title Act. The Interiors defense was based on the argument that the Quiet Title Act protects the title to the land. Since litigation could last for several years, the Interior believed that if they pursued prospective legislation and amended 25 CFR 151 to define what under federal jurisdiction means, it would clarify that the Interior has legal authority to take land into trust for tribes not under federal jurisdiction in 1934….the reasoning was that the benefit of the amended regulation would be that courts could grant Chevron deference to Interior’s interpretation, as stated in the revised regulation.

Here is the issue – litigation regarding the Gun Lake Tribe was actually heard today in the Supreme Court and how this pans out will be interesting, if not historic. Also, any attempt to use the Chevron deference as a fix isn’t exactly plausible because the Chevron deference was already addressed in the Opinion of the Court in the Carcieri case and supported in the Justices' discussion.

In the Carcieri decision, the Court turned over a previous ruling in the Court of Appeals in Carcieri v. Norton. In that case, the Court of Appeals found that the particular statutory context of 479 did not clarify the meaning of “now” and having found the statue ambiguous, the Court of Appeals applied the principles set forth in Chevron U.S.A Inc. v. Natural Resources Defense Council, Inc., and deferred to the Secretary’s construction of the provision. The Court of Appeals also held that the petitioners had failed to demonstrate that the Secretary’s interpretation was inconsistent with earlier practices of the Department of Interior…and determined that the decision should be affirmed based on the Secretary’s “reasoned explanation for his interpretation”.

Carcieri v. Salazar Supreme Court statement: We granted certiorari, 552 U.S. ___ (2008), and now reverse.

i.e. The Supreme Court reversed the Lower Courts decision.

It gets better….In the concurring opinion written by Justice Breyer, he states (highlight inserted):

…Neither can Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc. 467 U.S. 837 (1984), help the Department. The scope of the word “now” raises an interpretive question of considerable importance; the provision’s legislative history makes clear that Congress focused directly upon that language, believing it definitively resolved a specific underlying difficulty; and nothing in that history indicates that Congress believed departmental expertise should subsequently play a role in fixing the temporal reference of the word “now”. These circumstances indicate that Congress did not intend to delegate interpretive authority to the Department. Consequently, its interpretation is not entitled to Chevron deference, despite linguistic ambiguity…

Well, if that language isn’t clear as day I honestly don’t know how else to put it. However, Justice Breyer also did state that the Court’s holding “may prove somewhat less restrictive than it at first appears” because a tribe may have been “under Federal jurisdiction” in 1934 without the federal government knowing it. He noted that DOI produced a list of tribes to which the IRA applied, that a number of tribes were wrongly left off the list, that DOI later recognized those tribes and that they should have been on the 1934 list. Moreover, he noted that DOI’s administrative practices with respect to a tribe that is not recognized could be the basis for proving it was under federal jurisdiction in 1934. He specifically referred to the Stillaguamish Tribe, the Grand Traverse Band of Ottawa and Chippewa Indians, and the Mole Lake Tribe.

Also, Justice Souter’s opinion recognized the possibility that recognition and jurisdiction may be separate characteristics. Using Justice Breyer’s concurrence to support his argument, Justice Souter stated, “the statute imposes no time limit upon recognition, and in the past, the DOI has stated that the fact that the United States Government was ignorant of a tribe in 1934 does not preclude that tribe from having been under federal jurisdiction at that time.” He notes that since there is no precedent or history of practice to gauge whether a tribe was under federal jurisdiction in 1934, the Tribe should be given an opportunity to prove it.

Okay….fair enough….but prove it to Congress. The fact that there is no precedent or history of practice to gauge whether a tribe was under federal jurisdiction in 1934 is reason enough to make sure it is Congress who decides if a Tribe was left off a list or not – not go about it by having the Department of Interior change their regulations to define what they believe to be “under federal jurisdiction” is and to perhaps once again try to apply Chevron deference – assuming that is what they are attempting to do based on their discussions at the 2009 Tribal Consultation. The bottom line is, argument about the word “now” also holds true for the word “jurisdiction”.

Why?  Because these circumstances indicate that Congress did not intend to delegate interpretive authority to the Department. Consequently, its interpretation is not entitled to Chevron deference, despite linguistic ambiguity…and that opinion holds true for Congress' intention for the entire IRA - not just one word in the IRA.

It seems obvious to me that the Department of Interior wants to and Tribes support redefining “under federal jurisdiction” in its regulations and may possibly try to use the Chevron deference as a means to get around the SCOTUS decision. So….they lost in court as to what “now” means so the idea is to more clearly define what they consider what “under federal jurisdiction” means…well, it is clear that the Tribes that were under federal jurisdiction under the IRA in 1934 have been listed….and any argument that the Interior should recognize that the 1937 IRA list is not comprehensive because perhaps many tribes were under federal jurisdiction in 1934 - or perhaps had treaties with the federal government, but just chose not to reorganize under the IRA – or were under federal jurisdiction and the government was ignorant of it so therefore should change its regulations to apply Chevron deference is weak at best.

The way I see it….if a Tribe chose not to reorganize under the IRA when they had the chance, then they cannot and should not be able to claim they fall under the IRA now…oh, there’s that pesky word again….that ship has sailed…and for the life of me, I cannot understand how a Tribe could be able to prove it was under federal jurisdiction in 1934 or even after 1947 and argue that the Federal Government was ignorant of their existence….but okay…

Jurisdiction (noun)

1. the right, power, or authority to administer justice by hearing and determining    controversies.

2. power; authority; control

3. the extent or range of judicial, law enforcement, or other authority

4. the territory over which authority is exercised

SCOTUS has made its decision and has effectively dismantled the Chevron deference in regards to the DOI placing land into trust for tribes recognized after 1934….so as I see it, Tribes need to go to Congress and plead their case and allow Congress to determine if they were actually under federal jurisdiction in 1934 or not – arguing that our federal government may have been ignorant of a tribes existence is the perfect example of ignorance of the true intention of the IRA…

“The only thing more expensive than education is ignorance.” – Benjamin Franklin

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