Article  |  Volume 1 | 2009-2010

A Post-Carcieri Vocabulary Exercise: What if "Now" Really Means "Then"?

by Ruth K. Khalsa, and Heidi M. Staudenmaier
When the Indian Reorganization Act1 (“IRA”) was passed in 1934, it officially defined an “Indian” as a member of a recognized tribe “now under federal jurisdiction.” For nearly three-quarters of a century, this definition of an Indian and an Indian tribe — hallmarked by the four-word phrase “now under federal jurisdiction” — guided federal policy and agency action on a host of matters, including management of federal lands, land-into-trust acquisitions made on behalf of tribes, and — after 1988 — application of the Indian Gaming Regulatory Act (“IGRA”). In February 2009, however, the United States Supreme Court upended seventy-five years of administrative interpretation. The Court held that “now under federal jurisdiction” in Section 479 of the IRA “unambiguously refers” only to those tribes that were under federal jurisdiction in 1934 when the IRA was enacted. In doing so, the Court seemingly stripped the Department of the Interior of any ability to acquire or expand new reservation lands for certain Indian tribes. While the Secretary of the Interior remains authorized to take land into trust for Indian tribes, the temporal limitation imposed by the Carcieri v. Salazar holding now governs that authority, precluding the Secretary from taking land into trust for tribes that were not federally recognized in 1934. The High Court’s holding caused a shockwave to ripple throughout Indian Country. Tribes, legislators, agency officials, practitioners of Indian and gaming law, and legal scholars speculated as to the potential ramifications of Carcieri for tribes whose land-into-trust applications were pending before the Department of the Interior. While some championed the Court’s holding, many observers believed it called for remedial measures designed to restore the pre-Carcieri status quo with respect to the land-into-trust process. The most prominent of these proposed measures, or “Carcieri Fixes,” are the primary focus of this article.
1 UNLV Gaming L. J. 39 (2010)