Carcieri v. Salazar

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Carcieri v. Salazar
Seal of the United States Supreme Court.svg
Argued November 3, 2008
Decided February 24, 2009
Full case name Donald L. Carcieri, Governor of Rhode Island v. Ken L. Salazar, Secretary of the Interior, et al.
Docket nos. 07-526
Citations 555 U.S. 379 (more)
129 S. Ct. 1058; 172 L. Ed. 2d 791
Prior history Carcieri v. Norton, 290 F.Supp.2d 167 (D.R.I. 2003); Carcieri v. Norton, 423 F.3d 45 (1st Cir. R.I. 2005); Carcieri v. Kempthorne, 497 F.3d 15 (1st Cir. 2007)
The term "now under Federal jurisdiction" referred only to tribes that were federal recognized when the Indian Reorganization Act became law and the federal government could not take land into trust from tribes that were recognized after 1934.
Court membership
Case opinions
Majority Thomas, joined by Roberts, Scalia, Kennedy, Breyer, Alito
Concurrence Breyer
Concur/dissent Souter, joined by Ginsburg
Dissent Stevens
Laws applied
25 U.S.C. §§ 465, 479

Carcieri v. Salazar, 555 U.S. 379 (2009), was a case in which the Supreme Court of the United States held that the term "now under Federal jurisdiction" referred only to tribes that were federally recognized when the Indian Reorganization Act[1] became law, and the federal government could not take land into trust from tribes that were recognized after 1934.[2]


Historical tribal relationship[edit]

The Narragansett tribe was first contacted by Europeans in 1524 at Narrangansett Bay, Rhode Island. Following King Philip's War,[3] the tribe absorbed several smaller tribes, such as the Niantic and in 1709 came under the guardianship of Rhode Island.[3] From 1880 to 1884, Rhode Island attempted to dissolve the tribe, selling off all but 2 acres (8,100 m2) of tribal land.[3] The tribe resisted, requesting repeatedly to be dealt with as a tribe, culminating in lawsuits in January, 1975.[4][5] In the resulting settlement, Rhode Island placed 1,800 acres (7.3 km2) of land into trust for the tribe, with the condition that with the exception of hunting and fishing regulations, state law would apply on the land.[6][7]

Following this, the tribe requested federal recognition in 1979, which was granted in 1983.[3] The tribe and the state disagree with a number of items, including the collection of taxes on cigarettes sold at a reservation smoke shop and the proposed building of a casino on reservation land. In 1991, the tribe purchased 31 acres (130,000 m2) to be used for housing for elderly tribal members, and petitioned the Secretary of the Interior to take the land into trust under the Indian Reorganization Act, thus removing it from state jurisdiction.

Action by the Department of the Interior and U.S. District Court[edit]

In March 1998, the Bureau of Indian Affairs (BIA) notified Rhode Island of its intent to take the 31-acre (130,000 m2) parcel into Federal Trust status. The state appealed this decision to the Interior Board of Indian Appeals, which ruled in favor of the tribe and the BIA.[8] The state then filed suit in U.S. District Court, with the governor of the state, Donald Carcieri, named as plaintiff, and the Secretary of the Interior, Ken Salazar, named as defendant.[9] The District Court ruled in favor of the BIA and the tribe.[10]

U.S. Circuit Court of Appeals[edit]

Rhode Island then appealed the District Court decision to the United States Court of Appeals for the First Circuit. A three judge panel heard the appeal and affirmed the summary judgment of the District Court.[11] The state then requested a rehearing en banc by the full court, which was granted. On rehearing, the full court affirmed the decision of the District Court.[12]

Opinion of the Court[edit]

Justice Clarence Thomas delivered the opinion of the court, reversing the judgment of the First Circuit.[2]

Thomas determined that the authority of the BIA to take Indian land into a trust status hinged on the phrase "now under Federal jurisdiction" in 25 U.S.C. § 479. Using rules of statutory construction, he determined that this phrase limited the BIA to only take Indian Land into trust if the tribe was federally recognized in 1934 at the time of the laws enactment. This holding excluded the Narrangansett tribe from turning land over to the BIA as they were not federally recognized until 1983.[2]


Justice Stephen Breyer issued a concurring opinion, joined by Justice David Souter.[2] He argued that the majority opinion was correct, but due to the legislative history of the bill, not based on statutory construction. Breyer allowed that even if a tribe was not formally recognized in 1934, they could still be under federal jurisdiction due to an earlier treaty or agreement.[2]

Concurrence in part and dissenting in part[edit]

Justice Souter issued an opinion that concurred in part and dissented in part, joined by Justice Ruth Bader Ginsburg.[2] Souter argued that the notion of under federal jurisdiction and being federally recognized were not one and the same, even if that is how the BIA and the tribe both understood it. He would have remanded for a determination of the jurisdictional issue.[2]


Justice John P. Stevens dissented,[2] arguing that "now" meant "at the time the land was turned over to the BIA", and would have affirmed the lower court's decision.[2]

Subsequent developments[edit]

The decision caused an immediate reaction in both the Native American and the legal community. The American Bar Association newsletter quickly pointed out possible consequences to Indian gaming and tribal sovereignty.[13] A call has been made to "fix" the decision by Congressional action to allow the BIA to continue to take Indian lands into trust.[14] United States Senate bill S.676 is scheduled to be taken up before the end of the 112th Congress to amend language in the Indian Reorganization Act.[15] If enacted into law, the changes will allow lands to be taken into trust by the BIA after 1934.

There is strong opposition, however, to any legislative "fix" from elected officials in states with existing Indian gaming operations and tribes recognized prior to 1934.[16] Additionally, 17 state attorneys general have written a legal opinion opposing such legislation.[17]

On June 19, 2014, the United States Senate voted to the pass the Gun Lake Trust Land Reaffirmation Act (S. 1603; 113th Congress), a bill that would reaffirm the status of lands taken into trust by the Department of the Interior (DOI) for the benefit of the Match-E-Be-Nash-She-Wish Band.[18][19] The bill would clarify that the Match-E-Be-Nash-She-Wish Band's land trust could not be challenged in court under this Supreme Court decision.[20]

In 2015, the BIA approved the taking of 321 acres of land in in Taunton, Massachusetts, into federal trust for the Mashpee Wampanoag tribe.[21] A group of Taunton property owners filed a federal lawsuit in February 2016, contending that BIA was wrong to designate the casino site as a Native American reservation, because the tribe did not gain federal recognition until 2009. Both sides have said that they will appeal an adverse ruling to U.S. First Circuit Court of Appeals, and if necessary to the U.S. Supreme Court.[22]

See also[edit]


  1. ^ Wheeler-Howard Act of 1934, 48 Stat. 988
  2. ^ a b c d e f g h i Donald L. Carcieri, et al. v. Ken L. Salazar, et al., 555 U.S. 379 (2009)
  3. ^ a b c d 48 FR 6177
  4. ^ Narragansett Tribe of Indians v. Southern Rhode Island Land Development Corp., et al., 418 F.Supp. 798 (D.R.I. 1976)
  5. ^ Narragansett Tribe of Indians v. Dennis J. Murphy, Jr., 426 F.Supp. 132 (D.R.I. 1976)
  6. ^ Rhode Island v. Narragansett Indian Tribe, et al. 19 F.3d 685 (1st Cir. 1994)
  7. ^ Rhode Island Indian Claims Settlement Act of 1978, 25 U.S.C. §§ 1701-1716
  8. ^ Town of Charlestown v. E. Area Dir., Bureau of Indian Affairs, 35 IBIA 93 (2000)
  9. ^ David Rogers (October 30, 2015). "The new Indian wars in Washington". 
  10. ^ Donald L. Carcieri, et al. v. Gale A. Norton, et al., 290 F.Supp.2d 167 (D.R.I. 2003)
  11. ^ Donald L. Carcieri, et al. v. Gale A. Norton, et al., 423 F.3d 45 (1st Cir. R.I. 2005)
  12. ^ Donald L. Carcieri, et al. v. Dirk Kempthorne, et al., 497 F.3d 15 (1st Cir. 2007)
  13. ^ Staudenmaier, Heidi M.; Sheppard, Celene (Spring 2009). "Impact of the Carcieri Decision" (PDF). American Bar Association Newsletter. American Bar Association. Retrieved March 4, 2010. 
  14. ^ Fletcher, Matthew L.M. (February 25, 2009). "Decision's in. 'Now' begins the work to fix Carcieri". Indian Country Today. Retrieved March 4, 2010. 
  15. ^ Senate schedule for November 26, 2012
  16. ^ Supreme Insult, Carcieri Decision, WampaLeaks, September 11, 2010.
  17. ^ A Communication from the Chief Legal Officers of the following states and territories, April 24, 2009.
  18. ^ "CBO - S. 1603". Congressional Budget Office. 17 June 2014. Retrieved 20 June 2014. 
  19. ^ Cox, Ramsey (19 June 2014). "Senate passes land trust bill for Pottawatomi Indians". The Hill. Retrieved 20 June 2014. 
  20. ^ "Senate Indian Affairs Committee business meeting and hearing". 19 May 2014. Retrieved 20 June 2014. 
  21. ^ Indian Country Today 09-18-2015
  22. ^ Murphy, Sean P. (July 12, 2016). "Taunton casino foes to get their day in court". The Boston Globe. Retrieved July 19, 2016. 

External links[edit]