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‘Now’ hear this

WASHINGTON – It wasn’t all that long ago that former President Bill Clinton was splitting hairs in court over the meaning of the word “is.” Legal squabbles over the definitions of simple words are alive and well with the U.S. Supreme Court currently deliberating the context of a single word within the Indian Reorganization Act of 1934. And this time around, many a tribal fate is at stake.

The word “now” became the star of oral arguments in Carcieri v. Kempthorne, heard Nov. 3 by the justices of the high court. Section 19 of the IRA states, in part, “The term ‘Indian’ as used in this Act shall include all persons of Indian descent who are members of any recognized Indian tribe now under Federal jurisdiction…”

The case centers on the meaning of the phrase “now under federal jurisdiction” in regards to how land-into-trust provisions of the IRA should affect tribes that were federally recognized after the law’s passage.

Tribes nationwide are observing the case closely, as a negative decision by the court could lead to legal questions over the validity of an abundance of tribal trust lands. Such a decision could also shake up the way the Bureau of Indian Affairs has long worked with tribes to help them secure and develop their traditional homelands.

In this specific case, Rhode Island doesn’t want the Narragansett Tribe, recognized in 1983, to be able to utilize 31 acres of land placed into trust by the BIA. The tribe has said it wants to use the land for a housing development, but state officials fear it could pursue a casino in the future.

The smallest state originally sued the U.S. Department of the Interior to try to get a court to find that the BIA had no legal authority to place land into trust because the tribe wasn’t recognized in 1934. To date, the effort has been unsuccessful, as a federal judge and the 1st Circuit Court of Appeals have made rulings favoring the tribe.

In short, the courts have found that the contentious “now” mentioned in section 19 of the law pertains to all tribes recognized under the act, including those in 1934 and beyond. The previous rulings aligned with Interior’s longstanding interpretation of the law.

However, once the Supreme Court decided to take on the case, the prior decisions became moot.

During oral arguments, Rhode Island’s lawyer, constitutional expert Theodore Olson, argued that the use of the word “now” in the IRA meant that the Congress of 1934 intended the land-into-trust process to benefit tribes that were “now under federal jurisdiction” at the time of the law’s passage.

Based on statements and questions during the arguments, Chief Justice John Roberts and Justice Antonin Scalia seemed quite keen on Olson’s definition. Justices Stephen Breyer and David Souter also suggested that they believed Congress would not have handed over the responsibility on how to define “now” to the Secretary of the Interior.

When questioning Deanne Maynard, assistant solicitor general, U.S. Department of Justice who represented Interior, (and, in turn, tribal interests), Roberts asked questions that indicated he understood the word “now” to very literally mean that the law only applies to tribes that were recognized in 1934.

Still, Roberts did mention concerns that using 1934 as a cut-off date for land-into-trust decisions would be harmful to tribes that should have been recognized at the time.

Olson was quick with a sharp response, citing several land claim settlement and federal recognition acts that contain language making certain that affected tribes could participate in the land-into-trust process.

As part of her argument, Maynard noted that the government didn’t even have a list of recognized tribes in 1934, and she described the law as a “forward-looking act.”

But Roberts, who wrote a negative decision in a controversy-provoking Indian legal case last session, didn’t seem all that swayed. He suggested at one point that Congressional intent in 1934 may have been to assist only those tribes that had suffered under the practice of allotment.

Richard Guest, a legal expert with the Native American Rights Fund, said that based on his observations of the arguments and the chief justice’s questions, he is “very pessimistic” that the court will rule with positive tribal prospects in mind. NARF has participated in the case by developing an amicus brief strategy in support of Interior.

“Things are not going to go well for the Narragansett Tribe and perhaps for many tribes across Indian country.

“I simply do not see five justices [a majority] holding in favor of Indian tribes in this case.”

Guest said that it was obvious to him that a majority of justices seem to think that states’ interests should trump tribal interests – even if that means shaking up longstanding federal and tribal understandings of the IRA.

Matthew L.M. Fletcher, director of the Indigenous Law & Policy Center at Michigan State University who has reviewed the oral arguments, said that if a negative ruling were to occur, tribes could always go to Congress to request members to define “now” as explicitly meaning tribes recognized in 1934 and beyond.

“I think it would be pretty easy to just do a technical amendment to the Indian Reorganization Act. Get rid of the phrase ‘now under federal jurisdiction.’ That’s all you’ve got to do.”

Fletcher called the “now under federal jurisdiction” portion of the act “such a throwaway line” in the first place, but noted that once tribes get Congress involved “there are usually no easy fixes.”

He suggested that tribes align with non-tribal businesses that have depended on economic developments on tribal trust lands to help lobby Congress.

Guest noted that for a Congressional fix to occur, it would mean that the burden would be placed on tribes to explain the issues at hand and try to get positive legislation action moved in a timely manner.

He added caution that Rhode Island and other states could also decide to go to Congress to try to get members to narrowly define “now” as applying to only tribes recognized when the law was passed.

Despite his pessimism, Guest did offer one positive assessment: “Most of these cases are decided not on the oral argument, but on the briefs that are filed. We’re just hopeful that the justices look at all the briefs, and consider them carefully – based on what the law is, not on what they think it should be.”

A final opinion is expected from the Court in February or March.