Fletcher — The Consequences Of Divide-And-Conquer: Carcieri Redux (Law360.com)

Written by: Matthew Fletcher

Primary Source : Turtle Talk, November 18, 2016

Here:

The Consequences Of Divide-And-Conquer: Carcieri Redux

In Carcieri v. Salazar, the U.S. Supreme Court held that the Narragansett Tribe was not “under federal jurisdiction” in 1934, and therefore the U.S. Department of the Interior could not acquire land in trust for the tribe. The DOI’s decision to acquire trust land for the Cowlitz Tribe is one of several controversial post-Carcieri trust acquisitions. Now comes a petition for a writ of certiorari to the Supreme Court from the challengers, Citizens Against Reservation Shopping v. Jewell.

Whether an Indian tribe was “under federal jurisdiction” in 1934 is rooted in complex tribal-federal histories. Congress passed the Indian Reorganization Act in 1934, and authorized the Interior Secretary to acquire land in trust. The statute states that the DOI can acquire land for “recognized Indian Tribe[s] now under Federal jurisdiction.” The federal government interpreted that language to mean tribes recognized at the time of a decision to acquire land for seven decades. In Carcieri, the Supreme Court held that “now” unambiguously meant at the time of the passage of the sct, rejecting the government’s interpretation. The federal government did not know in 1934 what tribes were “recognized” or “under federal jurisdiction,” or even what those terms meant. Carcieri has added additional — and highly complex — layers of analysis to federal trust acquisitions.

The DOI agreed to acquire land in trust for the Cowlitz Tribe for gaming purposes in 2011. Through the regular federal acknowledgment process, 25 CFR Part 83, the DOI acknowledgedthe tribe in 2002. The acknowledgment process requires petitioning tribes to demonstrate they existed as a distinct tribal community since 1900 or earlier. The Cowlitz tribe entered into failed treaty negotiations with the United States in 1855, but according to the DOI and the D.C. Circuit, the federal government continued a government-to-government relationship with Cowlitz from then into the 20th century. It seems plausible that the government “recognized” the tribe, whatever that may mean (to channel Felix Cohen, who wrote exactly that phrase in 1934 to describe this statute). The court concluded in Confederated Tribes of the Grand Ronde Community v. Jewell that the statute is ambiguous, and the DOI’s interpretation is entitled to Chevron deference.

That the case involved a challenge by another Indian tribe, Grand Ronde, to the Cowlitz matter begs the question about the interests at play in a challenge to a trust acquisition. Grand Ronde’s share of the gaming market in northern Oregon stands to suffer some if the Cowlitz Tribe commences gaming operations closer to Portland. Siding with local units of government, a local anti-Indian community group, and other non-Indian gaming interests, Grand Ronde led the effort to use Carcieri to defeat Cowlitz and the Interior Department. Interests opposing Indian gaming could not have drawn up a divide and conquer strategy any better. More broadly, the lobbying effort to persuade Congress to “fix” the Carcieri decision with an amendment to the 1934 Act is similarly stymied by intertribal conflicts, with some established tribal gaming interests quietly lobbying against a fix. Now that the case is headed to the Supreme Court, the Grand Ronde tribe has dropped out, as have the local government entities, but their anti-Cowlitz partners are taking up the slack in their stead.

It is only a matter of time before Carcieri-based challenges to fee-to-trust acquisitions by the DOI reach the Supreme Court given the financial stakes involved. There are other cases in the pipeline involving tribes such as the Oneida Indian Nation of New York and the Ione Band of Miwok Indians. More cert petitions may soon be forthcoming.

Barring acquiescence by the United States or another unusual development, it is unlikely the court will grant review in the Cowlitz matter. Normally, the court does not grant review in matters of limited importance unless there is a clear circuit split on federal law. Other than a federal district court decision involving the Mashpee Wampanoag Tribe (currently on appeal in the First Circuit), the Interior Department’s trust acquisitions challenged under the Carcieri decision have been affirmed. In short, the D.C. Circuit’s decision squares with the outcomes in prior cases in the Second and Ninth Circuits. Even if the outcomes had been different, the applicable law is not currently in doubt. As noted above, each tribe’s history is different, rendering every fee-to-trust decision extremely fact-specific (or factbound, in the court’s parlance). As I noted in my paper, Factbound and Splitless, any cert petition labeled “factbound and splitless” has virtually no chance of being reviewed by the Supreme Court.

That said, my research also shows that the Supreme Court is more likely to grant certiorari in Indian law matters, which involve unique federal interests, and (unfortunately for tribal interests) in cases where tribal interests and their federal partner have prevailed below. The court might conclude on its first look that the Interior Department or the federal circuit courts are simply wrong on the law, and docket the case for review.

In any event, the Carcieri decision spawned a great deal of litigation in an area — tribal gaming — that has important financial stakes, as well as the possibility of inter-tribal conflict. While the Cowlitz matter might not be the vehicle to answer the ultimate question of the meaning of Carcieri and the Department of the Interior’s response, there will be similar cases in the future, perhaps leading to inter-tribal sparring at the Supreme Court.

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Matthew Fletcher
Matthew L.M. Fletcher is Professor of Law at Michigan State University College of Law and Director of the Indigenous Law and Policy Center. He is the Chief Justice of the Poarch Band of Creek Indians Supreme Court and also sits as an appellate judge for the Pokagon Band of Potawatomi Indians, the Hoopa Valley Tribe, and the Nottawaseppi Huron Band of Potawatomi Indians. He is a member of the Grand Traverse Band of Ottawa and Chippewa Indians, located in Peshawbestown, Michigan. In 2010, Professor Fletcher was elected to the American Law Institute.