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What about the Dictionary Act?

In reading the United States Supreme Court decision in Carcieri v. Salazar, Feb. 24, 2009, I was left wondering whether the Dictionary Act was raised at any level as an argument on behalf of the Narragansett Tribe. In Carcieri, the court interpreted the term “now” in 25 USC § 479 to mean that only tribes recognized and under federal jurisdiction in June 1934 qualify to have land transferred into trust under 25 USC § 465.

The Dictionary Act, 1 USC. § 1, could have potentially changed the outcome. I am not aware that the issue was raised in this case, and perhaps with 25 days to file for a rehearing, the tribe may still do so, assuming it otherwise is not too late to raise a new point of law.

A key provision of the Dictionary Act modifies the present tense in all federal statutes to include the future tense, unless the context indicates otherwise:

“In determining the meaning of any act of Congress, unless the context indicates otherwise. … words used in the present tense include the future as well as the present.”

If the Dictionary Act were applied by the court to modify the term “now” under 25 USC § 479, then the term would include the future tense, in which case the Supreme Court got it wrong and all recognized tribes under federal jurisdiction would qualify for trust land transfer benefits.

We recently filed a petition for a writ of certiorari before the Supreme Court opposing the use of the Dictionary Act in a different context (USSC Docket No. 08-984, Jan. 16, 2009), with respect to the decision in Catskill Development LLC v. Park Place Entertainment Corporation, 547 F. 3rd 115 (2nd Cir. 2008) (holding that the “Indian lands” definition under IGRA, 25 USC § 2703(4)(B), with respect to land that “is held” in trust, includes land that “will be” transferred into trust in the future).

But perhaps in the Carcieri setting “the context indicates otherwise.” I note, however, that in January, in a different context, the court did let stand without comment an interpretation to the contrary by the 9th Circuit under 25 USC. § 81. Guidiville Band of Pomo Indians v. NGV Gaming, Ltd., 531 F. 3d 767 (9th Cir. 2008), USSC Docket No. 08-655.

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I also note that the Supreme Court’s position in Carcieri runs counter to the allowable land to trust transfers provisions under IGRA, in 25 USC 2719(a) and (b), which permit transfers of land into trust for gaming purposes after 1988, under certain conditions, for an “Indian tribe,” defined under 25 USC 2703(5) as a tribe that “is recognized” currently, without reference to June 1934.

Under 25 USC 2703(5), the term “Indian tribe” means “any Indian tribe, band, nation, or other organized group or community of Indians which:

(A) is recognized as eligible by the secretary for the special programs and services provided by the United States to Indians because of their status as Indians, and

(B) is recognized as possessing powers of self-government.

In 25 USC § 2719, Congress clearly contemplated transfers of land in trust to Indian tribes who are recognized as such at the time of the transfer into trust, without looking back to 1934. This manifests Congress’ true intent that post-June 1934 tribes qualify for trust land transfers, and thus contradicts the Supreme Court’s analysis in Carcieri that Congress intended only pre-June 1934 recognized tribes to receive the benefit of land in trust. Subsection 2719(c) provides that nothing in the statute should alter or diminish the responsibility of the secretary to take land into trust, further reinforcing the point, as clearly the land is to be taken into trust for an “Indian tribe” as defined under IGRA.

I was also left to wonder whether the Supreme Court considered that the interpretation it advocated for the term “now,” as limiting post-June 1934 recognized tribes from the land to trust process, rendered the statutory regime under 25 USC § 465 unconstitutional as applied to non-qualifying tribes. An interpretation of statutory authority for land to trust transfers as being exclusively for the benefit of tribes recognized and under federal jurisdiction in June 1934, would appear to violate the Equal Protection Clause of the United States Constitution with respect to tribes recognized after that date.

Hopefully, it is not too late to ask the court to get it right.



– Joseph E. Bernstein, Esq.

Legal Counsel

New York, N.Y.