Office of the Solicitor Issues Carcieri “Fix” Opinion

by Snell & Wilmer

In response to the United States Supreme Court’s ruling in Carcieri v. Salazar, 555 U.S. 379 (2009), the Office of the Solicitor for the United States Department of the Interior issued a memorandum opinion on March 12, 2014, interpreting the phrase “under federal jurisdiction” in 25 U.S.C. § 479’s definition of “Indian.” The Court in Carcieri determined that to meet the first definition of “Indian” in § 479, a tribe had to have been “under federal jurisdiction” in 1934. The Court did not, however, address the specific meaning of the phrase “under federal jurisdiction.” After examining the text of the Indian Reorganization Act (IRA) and its legislative history, the Solicitor concluded that the phrase “under federal jurisdiction” is ambiguous, and Congress reserved the meaning of the phrase for the Department of the Interior to determine.

The Solicitor’s definition of “under federal jurisdiction” is derived based on Congress’s plenary authority over Indians, and the “Department will rely on evidence of a particular exercise of plenary authority, even where the United States did not otherwise believe that the tribe was under such jurisdiction.” The interpretation offered in the opinion is broad and includes the following key features:

  • For a tribe to have been “under federal jurisdiction” in 1934, “a showing must be made that the United States has exercised its jurisdiction at some point prior to 1934 and that this jurisdictional status remained intact in 1934.” This showing entails a two-part inquiry: (1) whether there is sufficient showing that the United States had, in 1934 or prior to 1934, jurisdiction over the tribe; and (2) whether that jurisdictional status remained intact in 1934.
  • The first part of the inquiry is case specific and should be applied liberally. The tribe must show that the United States, prior to or in 1934, took a single action or engaged in a series of actions on behalf of a tribe, or tribal members that “establish, or that generally reflect federal obligations, duties, responsibility for or authority over a tribe by the Federal Government.” While the opinion does not expressly state that “anything goes,” nearly any action taken by Congress regarding a specified group of Indians may potentially satisfy this requirement, because of Congress’s plenary authority over Indians. The opinion, for instance, implies that the Narragansett Tribe, at issue in Carcieri, likely would have been able to make the required showing had the Court allowed.
  • Under the second part of the two-part inquiry, the opinion states that in some instances it will be necessary to “explore the universe of actions or evidence … to ascertain whether a tribe’s jurisdictional status remained intact in 1934.” While, on its face, this requirement seems fact intensive, the opinion states that this part of the inquiry is governed by the principle that jurisdiction remains intact unless Congress has taken an affirmative step to terminate jurisdiction. Thus, even if there is no evidence of any continuing relationship between the United States and the tribe between the initial action asserting jurisdiction and 1934, the tribe’s jurisdictional status is presumed to have remained intact.
  • For some tribes, evidence of being under federal jurisdiction in 1934 will be unambiguous, obviating the need to examine the tribe’s history prior to 1934. The primary method for demonstrating unambiguous jurisdictional status is whether a group of Indians on a reservation voted in an election under Section 18 of the IRA, 25 U.S.C. § 478, to accept or reject the application of the IRA to the reservation. Regardless of whether the tribal members voted to accept or reject the IRA, the Department may conclude that the Tribe was unambiguously under federal jurisdiction in 1934. This viewpoint appears to be an attempt to resolve contradictory positions taken by the Department in the past.
  • Finally, in regard to the requirement that a tribe must be a “recognized Indian tribe” to meet the definition of “Indian” in § 479, the opinion asserts, “the IRA does not require that the agency determine whether a tribe was a ‘recognized Indian tribe’ in 1934; a tribe need only be ‘recognized’ at the time the statute is applied (e.g., at the time the Secretary decides to take the land into trust).”

While the opinion does not provide extensive guidance as to how the Department should evaluate historical facts that may or may not show that a tribe was under federal jurisdiction in 1934, the opinion seeks to make clear that a modern tribe that has gained federal recognition at any time and can claim that at least some of its ancestors voted on a reservation to accept or reject the IRA in 1934, meets the first definition of “Indian” in § 479.

Since the Carcieri decision was issued in 2009, there have been multiple attempts to legislatively pass a “fix” in Congress. To date, no such legislation has been successfully passed.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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