Interior Issues Tribal Land-Into Trust Legal Opinion

Rob Capriccioso

The Department of the Interior has released a long-anticipated legal opinion that clarifies its ability to take land into trust for tribes.

The opinion, announced March 12 by Interior Solicitor Hilary Tompkins at the winter meeting of the National Congress of American Indians (NCAI) in Washington, D.C., details a process the department has been using to decide whether tribes were “now under federal recognition” in 1934. That question was made paramount as a result of the 2009 Supreme Court decision in Carcieri v. Salazar, which called into question Interior’s ability to take lands into trust for tribes not under federal jurisdiction at the time the Indian Reorganization Act (IRA) became law in 1934. The decision held that the word “now” in the phrase “now under federal jurisdiction” in the first definition of “Indian” in the IRA refers to the time the IRA was passed in 1934. 

Tompkins explained at the NCAI meeting that there is a two-part process to Interior’s decision-making on this issue.

“The test has been applied since I came into office in June 2009,” said Tompkins, who noted the Obama administration has taken 250,000 acres into trust for tribes to date and plans to take 500,000 total acres into trust by 2017. “Two parts: One, the tribe must show that it was under federal jurisdiction before and up to 1934…. The second prong is simple: Was that jurisdiction approved in the first prong—did it remain intact in 1934? We just have to show that it still existed from pre-1934 to 1934, and it never terminated.”

Treaty negotiations with the federal government, voting to ratify or not to ratify the IRA, negotiation of contracts, enforcement of trade acts, and health or social services are all actions that can be used to show that a tribe was under federal jurisdiction prior to and up to 1934, Tompkins said.

“Silence on the issue is okay,” Tompkins added. “Because you need something affirmative saying that the jurisdiction went away.”

To date, under the test, no tribes have been found by Interior to not have been under federal jurisdiction in 1934, according to Interior officials.

Tompkins said the test takes into account the Indian canons of construction, which result from Supreme Court rulings that say national statutes are to be construed liberally in favor of Indians with ambiguous provisions interpreted to their benefit. “We believe the phrase ‘under federal jurisdiction’ [in the Supreme Court Carcieri ruling] is ambiguous, so we applied the Indian canons of construction,” she said.

Tompkins’ 26-page “M-Opinion” is located on the Interior website.

Tribal leaders at the meeting widely praised Interior’s decision to release the opinion, with NCAI President Brian Cladoosby saying in a statement that the organization is “pleased the Department of the Interior has addressed one of the many problems created by the unclear and damaging language in the Carcieri decision.”


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