Supreme Court Snarls Tribal Casino Growth
The original question before the nine justices in Carcieri v. Salazar, No. 07-526 (Feb. 24, 2009) had nothing to do with gambling. The State of Rhode Island wanted to apply its building code to a housing development on land owned by the Narragansett Tribe. The tribe objected that the state had no jurisdiction over the land, which was "taken into trust" for the tribe under the Indian Reorganization Act of 1934 (IRA). That statute authorizes the federal government to take land into trust for "any recognized Indian tribe under federal jurisdiction now." The Court had to decide whether "now" in the statute means that the government can take land into trust only for those tribes that were "under federal jurisdiction" in June 1934, when the law was enacted.
By a 6-3 margin, the Court ruled that the simple answer was the correct one, holding that "now" really does mean "now." The opinion by Justice Clarence Thomas for the 6-3 majority explained that "now" means as of June 1934. That ruling has released a wave of anxiety among gaming tribes, many of whom are calling for a swift congressional "fix."
The land-into-trust mechanism of the IRA has been an important, and sometimes controversial, tool for tribal casinos. Tribes have used it to add land parcels for the expansion of existing casinos and to start casinos on off-reservation lands. The Supreme Court's decision could dash the casino development plans of some tribes hoping to enter the gaming business for the first time, such as the Mashpee Wampanoag of Massachusetts, the Chemehuevi Tribe of Arizona, and the Ione Band of Miwok Indians in California.
Under Carcieri, the first question for land-into-trust applications will be whether the tribe was "under federal jurisdiction" in June 1934, when the IRA was enacted. The concurring opinions of Justices Stephen Breyer and David Souter generated confusion over the meaning of that phrase. Tribal advocates insist that it is not limited to those tribes formally recognized in 1934. Instead, they argue, a tribe may have been "under federal jurisdiction" if that tribe maintained treaty rights with the federal government, was the beneficiary of a congressional appropriation, was enrolled with the Indian Office as of 1934, or if the Department recognizes that the tribe continuously existed. Many tribes were fully recognized in 1934, others were not, and for still others the historical record – combined with the ambiguity surrounding the key phrase in the statute – leaves only uncertainty.
In response to Carcieri, Interior Secretary Ken Salazar has halted the processing of some land-into-trust applications, while suggesting he might undertake an administrative definition of "under federal jurisdiction." That process would require notice-and-comment rulemaking. The House Natural Resources Committee has held one hearing on the impact of Carcieri, with several members of Congress urging legislative action to resolve the issue.
