On April 3, 2017, the United States Supreme Court denied the certiorari petition filed by opponents of the Cowlitz Tribe’s successful land-into-trust application with the Department of Interior (DOI). As usual, the Court’s order did not come with an explanation. The move clears the way for the Tribe to open the Ilani Resort Casino in Washington, just north of Portland, Oregon.
Opponents had argued that DOI should not have been allowed to take land into trust for the Tribe because it had no authority to do so in the wake of the Supreme Court’s 2009 decision in Carcieri v. Salazar, 555 U.S. 379. But DOI prevailed at both the U.S. district court and Court of Appeals levels. The Court’s denial of certiorari means that DOI’s interpretation of the Carcieri decision, explained below, stands.
In Carcieri, the Court held that an Indian tribe must have been “under federal jurisdiction” in 1934, the year the Indian Reorganization Act (IRA) was enacted, in order to qualify for trust land under the IRA. See 25 U.S.C. § 5129. While some argued that decision meant that DOI could no longer take land into trust for tribes that were not federally recognized by 1934, DOI concluded that “federal jurisdiction” was different from “federal recognition” and that it was possible to be under federal jurisdiction even if not federally recognized. DOI set forth a detailed analysis and the standards for how it would apply the Carcieri decision in an Interior Solicitor’s M-Opinion (M-37029, March 12, 2014). DOI’s new test takes into account its course of dealings with a tribe in 1934 and prior, and any resulting federal obligations, duties, and responsibilities to the tribe. Essentially, the test is that “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.” See M-Opinion, p. 19. In the Cowlitz Tribe’s case, DOI took into consideration treaty negotiations and services provided to tribal members.
The new “under federal jurisdiction” test allows DOI to review tribal land applications on a tribe-by-tribe basis, with the authority to take lands into trust for Indian tribes that can make the requisite jurisdictional showing, even if they were not formally recognized in 1934.
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