Carcieri Ruling May Threaten Indian Programs

On February 24, 2009 the U.S. Supreme Court decided the case of Carcieri v. Salazar. It ruled that Indian tribes that were not under federal jurisdiction in 1934 cannot use the land-into-trust process. This process is provided by the Indian Reorganization Act (IRA).

The land-into-trust process is critically important for many tribes around the country. But it seems unlikely that the Carcieri decision will have an impact on land-into-trust issues in Maine. In our state, the placement of tribal land into federal trust is governed by the federal settlement legislation specific to the Maine Tribes.

However, the court decision could have a major impact on issues other than the land-into-trust process. That is because of the definition of “Indian” in the IRA. That definition is: “members of any recognized tribe now under federal jurisdiction.”

Congress enacted the IRA in 1934. Many tribes, including the tribes in Maine, were formally recognized by the federal government after 1934. The court decision did not define the phrase “under federal jurisdiction.” As a result, this ruling creates uncertainty for tribes that gained federal recognition after 1934. Prior to the settlements of the Maine Indian land claims, the federal government took the position that Maine tribes were under state jurisdiction and not under federal jurisdiction.

U.S. Senator Byron Dorgan has warned that the Carcieri decision could create two classes of Indian tribes - those that were federally recognized as of 1934 and those that were recognized later.

Carcieri could have a negative impact on the ability of Tribes and tribal members to get help from federal programs. For many Indian benefits, eligibility depends on the definition of “Indian” in the IRA. These benefits include health, employment and educational programs and services.

An amendment to the IRA definition of “Indian” could clarify the status of tribes recognized after 1934. The Obama Administration is supporting such action by Congress. In December, the Senate Committee on Indian Affairs approved an amendment to the IRA, written by Senator Dorgan. On January 29, in the annual State of Indian Nations Address, NCAI President Jefferson Keel encouraged Congress to finalize the “Carcieri Fix.” This would remove the cloud of uncertainty that has hung over many tribes and tribal members since the court ruling.