Carcieri v. Norton, No. 03-2647 (en banc) (7/20/07). It has come to my attention that over the weekend, some of you -- and I won't name names, but you know who you are -- were not being lawyers. You went out to the Hamptons to be "cool." You went "hung out." This is not acceptable. I don't mean to sound like that guy on "Anonymous Lawyer" but being a lawyer is a full-time job. If you can't handle reading the day's opinions, then quit and become a telephone psychic.
Anyway, if you really deserve to be a lawyer, and you want to see what the court ruled in this case, read on. If you can't live up to these basic expectations, click here.
PS: This case has a lot of neat constitutional issues, such as 1) the enclave clause; 2) the delegation clause; 3) the admissions clause; and 4) the Tenth Amendment. But only the truly worthy would care.
PPS: This post is over 1300 words long.
Background
In 1880, Rhode Island acquired much of the tribe's land. In 1934, the Tribe became a corporation. In 1975, it sued the state, arguing that the State had acquired the lands in violation of the Indian Nonintercourse Act, 25 U.S.C. § 177. This lawsuit was settled in 1978, with a Memorandum of Understanding, which Congress then adopted in 25 U.S.C. § 1708(a). In 1983, the tribe was recognized by the Department of the Interior. The state then changes its statutes to allow it to reconvey the disputed land back to the tribe, but there were a number of reservations of jurisdiction (such as regarding criminal law).
Then, in 1991, the tribe bought some land in Rhode Island. The dissent points out that this land was originally claimed by the tribe, but not included in the settlement. In 1998, the Secretary of the Interior agreed to take into this land into an unreserved trust for the Tribe's benefit. Then-Secretary Gale Norton cited her powers under section 5 of the Indian Reorganization Act of 1934 (IRA), 25 U.S.C. § 465.
The court explains that once the DOI takes land into trust for Indians, it becomes "Indian Country" and hence is governed by the Indian Commerce Clause. The court provides some "background" on how to resolve conflicts between tribe, federal, and Indian law by citing Alaska v. Native Vill. of Venetie Tribal Gov't, 522 U.S. 520, 527 n.1 (1988) (a very interesting case, which is near and dear to my heart for a bunch of really funny reasons that I don't have time to get into). Unfortunately, this case leaves some loose ends, regarding regulation of tribal members on tribal land where the state has a very strong interest.
By regulation 25 C.F.R. § 1.4(a), the "secretary" staked out new ground and made it clear that state laws regarding land use would not apply in Indian Country, unless the "secretary" feels like it. You see where this is going, right?
Procedure
The state wasn't too happy with the decision to take these lands into trust because of all the loss of sovereignty I described above. They administratively challenged exhausted the secretary's decision to do this.
A long series of litigation commenced. I am not even sure if I have the time to link to it. However, in my original "stub post" I provided some links. Here it is:
Carcieri v. Norton, No. 03-2647 (en banc). This is a very big case, which I can't properly do justice to right now. The earlier panel decision is here, and our coverage is here and here.
The panel decision's APA arguments (which were not made en banc) are restated and "modified" as is the NEPA arguments. But, you can read the original decision here (our coverage here).
The state advances six theories. Each of which is rejected.
Theory #1: This tribe, having been recognized after the enactment of the IRA doesn't get the benefit of having the DOI take land into trust for it, as this tribe doesn't meet the definition of "Indian" in 25 U.S.C. § 479.
The court rejects this because, it finds 25 U.S.C. § 479 is ambiguous doesn't necessarily refer back to the IRA, and, therefore, as a matter of pure statutory construction, applying Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 842-43 (1984), the secretary did a good enough job interpreting her regulatory authority, and has had a consistent policy towards these acquisitions. Any of you bozos that think that ascertaining "plain meaning" is a easy task should look at this one.
The court also rejects the idea that the Supreme Court's decision in United States v. John, 437 U.S. 634 (1978) is controlling. For good measure, the court throws in a couple of other possible constructions, which it rejects.
Theory #2: The 1978 Rhode Island Indian Claims Settlement Act -- memorializing the settlement between the state and the tribe, 25 U.S.C. §§ 1701-1716 limits the scope of the IRA
The court finds that this later act, by its own terms, does not curtail the power of the secretary. Instead, it only deals with the "settlement lands" that were being reconveyed. So, there was no implicit repeal. The court explains that " Trust acquisition is not incompatible with the extinguishment of aboriginal title..." and provides a bunch of analogous situations.
In dissent, Judge Howard that Congress was trying to accomplish a more global settlement, and because Congress still contemplated the tribe suing people (or the state) not based on its status as a tribe. So, language that statutory allows the tribe to sue really is referring to the tribe's normal lawsuits and not special indian lawsuits.
Theory #3: The Indian Commerce Clause, U.S. Const. art. I, § 8, cl. 3, does not provide the Secretary the authority to displace state law within a state's boundaries, and therefore 465 of the IRA violates the Tenth Amendment.
Not so, says the First, "Because Congress has plenary authority to regulate Indian affairs, section 465 of the IRA does not offend the Tenth Amendment."
Theory #4: The Secretary may not, in any event, displace state law without the State's consent, by operation of the Enclave Clause of the Constitution
The First says that the tribal land "...does not fall within the plain language of the Enclave Clause."* (If you don't know what the enclave clause is, you shouldn't be reading this blog. It is for adults only!) Since the enclave clause doesn't mention Indians, but rather deals with the "erection of forts, magazines, arsenals, dockyards, [or] other needful buildings." it isn't applicable. In fact, in Surplus Trading Co. v. Cook, 281 U.S. 647 (1930), the Supreme Court said that reservations were not federal enclaves.
*Oh, all right, it is Article 1, Section 8, Clause 17.
Theory #5: the Secretary's action is barred by the Admissions Clause
Since Indian reservations are not like states nor are they on equal footing, the First says, there was no state created within Rhode Island. Wouldn't that be funny if it were true? Oh wait, Rhode Island jokes are not funny.
Theory #6 section 5 of the IRA, 25 U.S.C. § 465, constitutes an unconstitutional delegation of legislative authority.
Nondelegation issues are important, but usually ignored by the courts. The crap we learn in law school about "intelligible principles" of delegation authority is brushed aside by -- get this -- finding what the First says is "intelligible" in the act. It looks to caselaw from other circuits that had no problem so holding.
Too bad so sad
A bone is, however, tossed by the court when it writes, "They do, however, underscore the seriousness of the State's concern about the abrogation of state sovereignty at stake here." Selya concurs with judge Howard, but says that the state has been screwed over sovereignty-wise, and even goes so far as to say that the court has disregarded intent of the settlement agreement between the state and the tribe. While he doesn't use the big words he uses to send people to jail for the rest of his life, he says that the Supremes should take this because the nature of Indian relations is changing.
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