Interior Department’s “Carcieri” Guidelines In Line
with Tribe’s Land Application
(MASHPEE, MA – March 18, 2014) – Cedric Cromwell, Chairman of the Mashpee Wampanoag Tribal Council, is commending a legal opinion released late last week by the Interior Department for placing land in trust in the aftermath of the Supreme Court’s Carcieri decision in 2009.
“We fully support the legal opinion issued by the Interior Department to guide the land acquisition process for Indian tribes,” said Cedric Cromwell, Chairman of the Mashpee Wampanoag Tribe. “The Department’s guidelines are totally consistent with our own legal analysis on Carcieri and we are encouraged by it.”
In February 2009, the Supreme Court held that the federal Indian Reorganization Act allowed the Interior Department to approve land-into-trust applications for tribes that were “under federal jurisdiction” in 1934, the year the law was passed. However, the phrase “under federal jurisdiction” was not defined by the court, creating uncertainty for many tribes.
On March 12, 2014, the Solicitor’s Office of the Department of the Interior formally issued a legal memorandum that defines the term “under federal jurisdiction” and provides a legal standard it will apply to determine if the Secretary has legal authority to place land into trust for a tribe after the Supreme Court’s decision in Carcieri v. Salazar, 555 U.S. 379 (2009).
The memorandum formally adopts the standard that the Department first developed in its decision to accept land into trust for the Cowlitz Tribe of Washington State, informally known as the Cowlitz standard. This also happens to be the same standard that was used by the Mashpee Wampanoag Tribe in making its own Carcieri arguments to the Department of the Interior. The Department’s announcement confirms the accuracy of the Mashpee Tribe’s Carcieri arguments in two important respects.
First, the Interior Department makes it clear that the phrase “under federal jurisdiction” is not the same thing as federal recognition. In the Solicitor’s words, “…some contend that Carcieri stands for the proposition that a tribe must have been both federally recognized as well as under federal jurisdiction in 1934 to fall within the first definition of “Indian” in the IRA, and thus, to be eligible to have land taken into trust on its behalf. This contention is legally incorrect.”
Second, the memorandum also confirms that the “under federal jurisdiction” inquiry requires a “fact and tribe-specific” inquiry, one that the Mashpee Tribe is now undergoing.
“We believe that this legal opinion will go a long way toward helping our tribe and so many other tribes get land placed in trust.” said Cedric Cromwell.
The Mashpee land-in-trust application is currently under review by the Bureau of Indian Affairs. The Bureau recently issued a Draft Environmental Impact Statement and is expected to release a Final Environmental Impact Statement this spring, followed by a public comment and a final record of decision.
“I also want to commend the Obama administration for making land acquisition a priority for Native Americans,” added Chairman Cromwell.
The Obama administration has pledged to place 500,000 acres of land in trust by 2016, and is well along toward meeting its goal. Already, the Bureau of Indian Affairs has processed more than 1,400 individual trust applications, accepting more than 230,000 acres in trust on behalf of tribes.
For a copy of the legal memorandum, please click here