One recent hint involves the Department of Interior's approach to land-into-trust applications after the Supreme Court's decision in Carcieri v. Salazar. In late December, the Interior Department announced that it had approved the Cowlitz Tribe's application to take 152 acres into trust as the tribe's initial reservation. The Cowlitz Tribe was federally recognized in 2000, putting two very significant legal hurdles in its way to acquiring trust land and opening a casino. First, any land taken into trust after 1988 must meet one of the handful of exceptions to IGRA's general prohibition against gaming on newly acquired lands. And second, the Carcieri decision cast doubt on the Interior Secretary's ability to take land into trust for tribes recognized after 1934.
The fact that the Cowlitz tribe cleared both of these hurdles hints at the Obama administration's approach to gaming.
Under IGRA, one of the exceptions is for a tribe's initial reservation. And this makes perfect sense -- if a tribe didn't have a reservation in 1988, it wouldn't be fair to prevent the tribe from conducting gaming just because it didn't achieve federal recognition and acquire a reservation until after IGRA's passage. This idea is what the Interior Department refers to as an "equal footing" exception -- that newly recognized tribes with new reservations should be placed on "equal footing" to those tribes that had reservations in 1988. Assistant Secretary for Indian Affairs Larry Echo Hawk found that the Cowlitz Tribe's application met IGRA's initial reservation exception.
More opaque is Echo Hawk's determination that the Carcieri decision did not prevent the Interior Secretary from taking land into trust for the Cowlitz Tribe, even though the tribe was not federally recognized in 1934. According to the press release, the Interior Solicitor's office "conducted a thorough review of the application and determined that it satisfied the requirements of the Indian Reorganization Act and the Carcieri decision."
Hmmm. The key question in Carcieri was whether a tribe was "under federal jurisdiction" in 1934. Federal recognition would be the cleanest way to demonstrate "under federal jurisdiction," but it shouldn't be the only way, especially since our understanding of federal recognition is very different now than it was in 1934. While we've said that the Supreme Court's decision in Carcieri was fact-based enough that it left wiggle room for different outcomes under different circumstances, not much explanation was provided in the documents available to the public. No opinion is available on the Interior Solicitor's web page, nor does the BIA's Office of Indian Gaming provide Echo Hawk's decision, though it does provide a copy of the tribe's application.
Gale Courey Toensing, a reporter for Indian Country Today, reported that in response to an email asking for more detail on the Carcieri analysis, a spokeswoman for the Interior Department said that it "concluded that a number of factors warranted a finding that the tribe was under federal jurisdiction. Beyond that I am not going to comment." Toensing reported that the Record of Decision, in more than 120 pages, included what appears to be a broad interpretation of "under federal jurisdiction." While the Cowlitz Tribe was not formally recognized in 1934 (and, arguably, few tribes other than the so-called "treaty tribes" were), the question could be whether the tribe existed in 1934 and whether it interacted with the federal government in any meaningful ways. Echo Hawk's explanation in the Indian Country Today article, though, didn't exactly clear things up:
"The department, therefore, only takes land into trust for federally recognized Indian tribes. . . . The date of federal recognition does not affect the secretary's authority under the IRA. . . . The word 'now' modifies only the phrase 'under federal jurisdiction'; it does not modify the phrase 'recognized Indian tribe.' As a result the IRA imposes no time limit upon recognition. The tribe need only be 'recognized' as of the time the department acquires the land into trust. The Cowlitz Tribe's federal acknowledgment in 2002 [sic?], therefore satisfies the IRA's requirement that the tribe be 'recognized.'"
As we said, hmmmm. What do folks think? Who has a link to the Interior Department's Record of Decision? There's definitely more to be said on this one.