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Carcieri fix, legal or legislative, expected to be complicated

WASHINGTON – Excited rumbles trickled through Indian country after a letter to the editor was published recently in Indian Country Today, asking whether a little known legislative doctrine could help reverse the Supreme Court’s ruling in Carcieri v. Salazar.

The writer of the letter, lawyer Joseph E. Bernstein, noted that the Dictionary Act modifies the present tense in all federal statutes to include the future tense, unless the context indicates otherwise.

Given that the court seemingly ruled in contradiction to the law – deciding that the phrase “now under federal jurisdiction” of the Indian Reorganization Act refers to those tribes that were under federal jurisdiction only when the IRA was enacted in 1934 – Bernstein asked whether tribal and federal lawyers could get a rehearing.

Department of Justice lawyers arguing the case hadn’t mentioned the Dictionary Act in their arguments, nor had tribal legal experts, so Bernstein thought they might be able to raise a new point of law focused on the future tense language of the law.

Could it be that simple? Could there really be a quick legal fix to help tribes prevail after the Supreme Court upended many tribal, federal and legal understandings of the IRA by restricting the BIA’s longstanding tribal land into trust process? If not a legal fix, couldn’t Congress just make a fast fix?

Legal and legislative experts say the only thing simple regarding those questions are the answers to them: No, no, and maybe not.

In terms of making a legal argument based on the Dictionary Act, the first obstacle is institutional in nature. The Supreme Court very rarely chooses to rehear cases, and it only provides 25 days after its ruling for rehearing motions to be filed. That timeframe is almost past, since the ruling was handed down Feb. 24.

Richard Guest, a legal expert with the Native American Rights Fund who assisted with the Carcieri case, also thinks the Dictionary Act argument doesn’t hold much weight.

“What’s the future tense of the word ‘now?’” he asked. “There’s just little chance that the court would reconsider its decision based on this argument.

“The question before the court was whether the word ‘now’ is ambiguous, and the court found it not to be ambiguous. If the word under consideration is the word ‘now,’ I’m at a loss as to what the future tense is. That’s the heart of it.

“People want to find a [legal] fix, and they want to think that there is going to be an easy fix to it – and there’s not.”

Matthew L.M. Fletcher, director of the Indigenous Law & Policy Center at Michigan State University, also said he found the Dictionary Act argument to be unviable.

“It doesn’t have a whole lot of oomph. … It’s not a statute that is intended to be litigated much, if at all.”

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With a high court legal remedy seeming highly unlikely, Indian country officials are calling for a quick legislative fix. NARF is honing its resources on opportunities to get the decision reversed through an act of Congress.

John Dossett, general counsel for the National Congress of American Indians, said the organization will push for a resolution “that will happen much sooner, rather than later.”

“This decision makes it difficult for tribes to move forward on a whole range of issues, including economic development,” he said. “In this economic environment, the last thing we want is a whole bunch of legal uncertainty facing a fairly significant number of Indian tribes.”

There appears to be support from the Obama administration for congressional action. Secretary of the Department of the Interior Ken Salazar said he is consulting with members of Congress on the matter.

“There is ambiguity in parts of the decision, and we are working with our solicitor’s office in the Department of Justice to determine exactly how it is that we move forward in the application of the decision. As we move forward with that, we are also in consultation with members of Congress.”

Some Indian country officials believe that a favorable legislative resolution for tribes must happen in short order. Otherwise, current and past Indian land claims will not only sit in possible jeopardy, but also more state and local interests will have time to make arguments to Congress members to try to sway their minds to leave the Supreme Court decision alone.

Fletcher cautioned that just because the Congress is now controlled by a Democratic majority does not mean a fix positive for tribes will sail through. After all, many Congress members hail from districts where Indian issues, especially gaming, are unpopular with non-Indian constituents. As a result, some legislators could see an opportunity to create a fix that might limit Indian gaming or other issues.

“There are so many political entities [including states and localities] that have just been waiting to go in and rehash a lot of things that have been going on in Indian gaming,” Fletcher said. “It doesn’t mean a quick fix is not doable, but you might end up with radical changes in the IRA.”

Dossett noted that tribes play a significant role in the U.S. economy and employ a significant number of Indians and non-Indians – facts that Congress members should keep in mind.

Dossett also said that most states with significant numbers of Indians have supportive relationships with their tribes, so it would behoove them to help tribes work through a congressional remedy.

Despite the tribal rationales for a speedy timeframe, officials with the office of Chairman of the Senate Committee on Indian Affairs Byron Dorgan, D-N.D., have said the senator doesn’t expect a quick legislative remedy. He will instead be holding a hearing on the decision.

Nick Rahall, D-W.Va., chairman of the House Natural Resources Committee, which oversees Indian affairs, said he plans to hold a hearing on the implications of the ruling.

“I’m fairly confident that Congress will move at some point to correct this situation,” Dossett said. “What’s difficult to predict is how soon it will be.”