UPDATED MARCH 16, 2014: Clarified the final paragraph.
The Department of the Interior has released a long-anticipated legal opinion that clarifies its ability to take land into trust for tribes.
The opinion, announced March 12 by Interior Solicitor Hilary Tompkins at the winter meeting of the National Congress of American Indians (NCAI) in Washington, D.C., details a process the department has been using to decide whether tribes were “now under federal recognition” in 1934. That question was made paramount as a result of the 2009 Supreme Court decision in Carcieri v. Salazar, which called into question Interior’s ability to take lands into trust for tribes not under federal jurisdiction at the time the Indian Reorganization Act (IRA) became law in 1934. The decision held that the word “now” in the phrase “now under federal jurisdiction” in the first definition of “Indian” in the IRA refers to the time the IRA was passed in 1934.
Tompkins explained at the NCAI meeting that there is a two-part process to Interior’s decision-making on this issue.
“The test has been applied since I came into office in June 2009,” said Tompkins, who noted the Obama administration has taken 250,000 acres into trust for tribes to date and plans to take 500,000 total acres into trust by 2017. “Two parts: One, the tribe must show that it was under federal jurisdiction before and up to 1934…. The second prong is simple: Was that jurisdiction approved in the first prong—did it remain intact in 1934? We just have to show that it still existed from pre-1934 to 1934, and it never terminated.”
Treaty negotiations with the federal government, voting to ratify or not to ratify the IRA, negotiation of contracts, enforcement of trade acts, and health or social services are all actions that can be used to show that a tribe was under federal jurisdiction prior to and up to 1934, Tompkins said.
“Silence on the issue is okay,” Tompkins added. “Because you need something affirmative saying that the jurisdiction went away.”
To date, under the test, no tribes have been found by Interior to not have been under federal jurisdiction in 1934, according to Interior officials.
Tompkins said the test takes into account the Indian canons of construction, which result from Supreme Court rulings that say national statutes are to be construed liberally in favor of Indians with ambiguous provisions interpreted to their benefit. “We believe the phrase ‘under federal jurisdiction’ [in the Supreme Court Carcieri ruling] is ambiguous, so we applied the Indian canons of construction,” she said.
Tompkins’ 26-page “M-Opinion” is located on the Interior website.
Tribal leaders at the meeting widely praised Interior’s decision to release the opinion, with NCAI President Brian Cladoosby saying in a statement that the organization is “pleased the Department of the Interior has addressed one of the many problems created by the unclear and damaging language in the Carcieri decision.”
Interior had been deliberating over this legal opinion for several years now, says George Skibine, former Acting Assistant Secretary – Indian Affairs at Interior and now an Indian affairs lawyer with SNR Denton.
“I am not sure why this opinion was not issued earlier,” Skibine says. “Right after the Carcieri decision came down, there was discussion at DOI (when I was still there) of options to deal with the decision, and an M-Opinion from the solicitor was definitely one of these options. At the time, we decided against it for strategic reasons relating to potential litigation.”
Three legal cases involving trust lands for tribes have since detailed Interior’s two-part test on this matter, so Skibine says there was “really no reason not to issue this opinion” now.
“I do think it was important for this legal interpretation to be issued as a formal M-Opinion, because of the deference that courts should give to such an opinion,” Skibine adds. “[A]nd also because an M-Opinion is binding on all other agencies of the Department of the Interior and on all Interior officials.”
Current and former federal officials say the decision to publicly release a formal opinion was also complicated by concerns over how Congress might react to it.
One federal official familiar with Interior’s internal deliberations says some in the agency have been worried that taking a strong public stance might cause Congress and perhaps tribes to be less inclined to push for a clean Carcieri legislative fix that has long been supported by the Obama administration. But the same official noted that such opinions can be overturned by future administrations, so Congress members and tribal leaders inclined to support a clean fix should continue to fervently do so, this person said.
Jessica Kershaw, a spokeswoman for Interior, says Tompkins’ opinion does not eliminate the need for Congress to pass a legislative fix in response to Carcieri.
“In fact, the M-Opinion demonstrates why Congress should pass a fix so that tribes and the department do not need to expend a significant amount of resources to meet the highly fact intensive legal hurdles posed by Carcieri before it can take land into trust under the IRA,” Kershaw says.
Tribal leaders have long lamented that Congress is moving too slowly on developing a clean Carcieri fix that does not limit sovereignty of any tribes, while some legislators, including Sen. Dianne Feinstein (D-Calif.), have attempted to tie potential solutions to limits on gaming for some tribes.
Some congressional leaders, including Senate Majority Leader Harry Reid (D-Nevada), have pushed back, noting that many tribes have not come out in favor of a clean Carcieri fix.
Sen. Jon Tester (D-Montana), chairman of the Senate Committee on Indian Affairs, vowed at the NCAI meeting to soon introduce Carcieri legislation that treats all tribes equally, but he said tribes need to be united on this issue for it to be able to pass.
Michael Anderson, an Indian affairs lawyer with Anderson Indian Law who is supportive of a clean fix, says he does not believe the introduction of this opinion will impact congressional action. “I don’t this opinion will be noticed on Capitol Hill,” he says. “Sen. Tester said he would introduce legislation, and this should not delay fix efforts.”
Larry Rosenthal, a tribal lobbyist with Ietan Consulting who has expressed support for a Carcieri compromise, agrees with Anderson, predicting the opinion “will not impact congressional action at all. I think you will see Sen. Tester move a clean fix and try to work it through.”
Tribal leaders supportive of a clean Carcieri fix at the NCAI meeting lamented that only 31 tribes of 566 federally recognized ones as of March 12 had signed a letter asking for Congress to pass a clean fix. However, a second letter has been signed by more than 200 individual tribal leaders, a fact that was clarified by United South and Eastern Tribes Vice-President Randy Noka.