Anthony J. Sebok

The Supreme Court Decides an Important Case the Wrong Way: Why It Held that the Government Lacked the Power to Become a Trustee on Behalf of the Narragansett Tribe of Indians

By EDWARD LAZARUS


Thursday, Feb. 26, 2009

Once upon a time, it was the received wisdom that American Indians always won their cases at the Supreme Court. And if one looks back at the opinions from the 1970s and 80s, the record will reflect that this is only a mild exaggeration. Justices Thurgood Marshall and Harry Blackmun wrote dozens of opinions rectifying historical wrongs, liberally construing the powers of tribal self-government, broadly defining the federal government's "trust responsibility" vis-à-vis the tribes, and upholding preferential treatment of Indians in everything from employment to how statutes should be interpreted.

The winning streak for tribal interests began to wane in the mid-1980s. But now it's gotten to the point of a complete reversal of the historical pattern. Today, the tribes rarely win at the Court, and these losses have cut back sharply on their power of self-government and diminished the positive aspects of their relationship with the federal government.

This week, in deciding Carcieri v. Salazar, the Supreme Court continued its recent pattern. At issue in Carcieri was the power of the federal government to take into trust on behalf of the Narragansett Tribe of Indians a 31-acre parcel of land that the Tribe had purchased from a local developer. The Secretary of the Interior had done this for the Tribe pursuant to the Indian Reorganization Act of 1934, a landmark Indian-rights statute that includes provisions for the U.S. Government to help rebuild tribal land holdings by acquiring land and holding it in trust for the benefit of Indians.

The state of Rhode Island -- within which the Narragansett are located – objected to having the land moved into trust and sued to prevent it. Both the district court and Court of Appeals had upheld the Secretary of Interior's power to confer this benefit on the Tribe. But the Supreme Court has now held otherwise. It was a disturbing ruling that continues a disturbing trend on the Court.

The Story Behind the Carcieri Case

The story of the Narragansett Tribe is a tragic tale, not unlike the stories that surround other once powerful tribal groups on the Eastern Seaboard. Over the centuries, war and disease took a terrible toll on the Tribe. In 1880, what was left of the Narragansett Tribe agreed to accept "detribalization" by the state of Rhode Island and to reduce its landholdings to a meager two acres in exchange for $5000.
The Tribe spent much of the next century trying to undo that terrible choice and reclaim some of its land base. In 1983, the Narragansett finally achieved the status of a "federally recognized tribe" – a sine qua non for being able to receive a host of federal benefits, including (or at so the Narragansett thought) the benefit at issue in Carcieri: the ability to petition the Secretary of Interior to have land taken into trust on the Tribe's behalf.

The Main Issue Before the Court: How to Interpret the Word "Now" As Used in the Statute

The language of the statute at issue says that it was enacted "for the purpose of providing land for Indians." The statute then defines "Indian" to include "all persons of Indian descent who are members of any recognized Tribe now under federal jurisdiction."

As the case was litigated, the main issue – and the one on which the Supreme Court focused – was very Clintonesque: What does the word "now" mean as used in the statute? According to Rhode Island, the word meant "now" as in, in the year 1934, when the statute was enacted. Under this reading, the Secretary's power to "provide land for Indians" by taking land into trust could only be invoked on behalf of tribes of Indians who were under federal jurisdiction as of that date – a category that did not include the Narragansett Indians.

The Secretary of Interior, by contrast, said that the word "now" could just as easily mean "the present" – that is, the Secretary could take land in trust on behalf of any group of Indians subject to federal jurisdiction at the time that the Secretary sought to exercise the authority granted in the statute. Under this reading, the Narragansett, as a Tribe recognized in 1983, would qualify.

Writing for a majority, Justice Clarence Thomas declared not only that the word "now" should be read as meaning "in 1934" (thus disqualifying the Narragansett), but further that this was the only plausible interpretation of the word. In so holding, Carcieri joins a legion of "plain meaning" decisions, in which a Court glosses over a pretty obvious ambiguity (why isn't "now" just as susceptible to the other proffered interpretation?) to craft an interpretation of a statute that seems sharply at odds with both common sense and the larger purpose of the statute being interpreted.

In this instance, Congress very self-consciously designed the 1934 Act as revolutionary legislation aimed at restoring land and rights to Indian tribes generally. Yet as the Court would have it, Congress nonetheless unequivocally put a counterproductive time limit on the category of Indians for whom land could be accumulated. It is extremely hard, if not impossible, to imagine Congress possessing both intentions at the same time.

Justice Stevens's Wise Dissent, Recognizing that Tribes' Rights Are In Peril and the Court No Longer Interpret Statutes In Their Favor

As Justice John Paul Stevens noted in his lone dissent, in theory, the Supreme Court still subscribes to the idea that statutes are to be interpreted liberally in favor of Indians and ambiguities resolved in their favor. But as is clearly reflected in Carcieri, this notion is now quaint and obsolete.

At one time, Indian cases were viewed through the prism of guilt – the idea that this nation was built on two original sins, slavery and the destruction of the continent's native populations, and that one component of justice was to interpret the law partly as a form of expiation for those sins.

With respect to Indians, as far as the Court is concerned, that history is now essentially irrelevant, overtaken by time, or the backdrop of gaming riches, or simply impatience. And one has to wonder how long it will be until the Justices revisit some of the last remaining vestiges of a more sympathetic bygone era (such as the tolerance for ethnicity-based preferences given to Indians in some quarters).

Nor is this phenomenon necessarily limited to Indians. Later this term, the Court will take up a challenge to the constitutionality of the Voting Rights Act, another statute rooted deeply in retrospection on the most sordid aspects of our past. Will that history be deemed irrelevant too?


Anthony J. Sebok, a FindLaw columnist, is a Professor at Benjamin N. Cardozo School of Law in New York City. His other columns on tort issues may be found in the archive of his columns on this site.

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