Enough Is Enough: Ten Years of Carcieri v. Salazar

40 Public Land & Resources Law Review 1 (2019)

Arizona Legal Studies Discussion Paper No. 19-12

102 Pages Posted: 4 Jun 2019

See all articles by Bethany Sullivan

Bethany Sullivan

University of Arizona - James E. Rogers College of Law

Jennifer L. Turner

Frye and Kelly, P.C.

Date Written: April 15, 2019

Abstract

Ten years ago, the United States Supreme Court issued its watershed decision in Carcieri v. Salazar, landing a gut punch to Indian country. Through that decision, the Supreme Court upended decades of Department of the Interior regulations, policy, and practice related to the eligibility of all federally recognized tribes for the restoration of tribal homelands through the Indian Reorganization Act (IRA) of 1934. The Court held that tribes must demonstrate that they were “under federal jurisdiction” in 1934 to qualify for land into trust under the first definition of “Indian” in the IRA. Carcieri has impacted all tribes by upending the land-into-trust process and requiring tribes (and Interior) to spend scant resources to establish statutory authority for trust land acquisitions, a burdensome task that had previously been straight forward. In addition, Carcieri has complicated, if not prevented altogether, trust acquisition for tribes who face difficulty in making the requisite jurisdictional showing.

This Article provides the first comprehensive analysis of the last ten years of Indian law and policy that have unfurled from the Supreme Court’s decision. It describes how Carcieri has been weaponized by states, local governments, citizens’ groups, individuals, corporations, and even other tribes, to challenge the exercise of tribal sovereignty through the acquisition of tribal lands, and, at times, the very existence of Indian tribes. This Article details the litigation that has since ballooned, illustrating the dangerous scope creep of Carcieri, while categorizing and evaluating the underlying claims. It also looks to the future, and concludes that, while unlikely, a universal, clean congressional fix is the only real solution. The last ten years of litigation, hearings, and never-ending debate demonstrate that Carcieri is not a constructive or appropriate framework for resolving larger policy questions about the land-into-trust process. Finally, the Article ends by providing practice tips for tribes navigating the current Carcieri landscape.

Keywords: land-in-trust, Indian country, Carcieri, Indian Reorganization Act of 1934

Suggested Citation

Sullivan, Bethany and Turner, Jennifer Lynn, Enough Is Enough: Ten Years of Carcieri v. Salazar (April 15, 2019). 40 Public Land & Resources Law Review 1 (2019); Arizona Legal Studies Discussion Paper No. 19-12. Available at SSRN: https://ssrn.com/abstract=3398624

Bethany Sullivan (Contact Author)

University of Arizona - James E. Rogers College of Law ( email )

P.O. Box 210176
Tucson, AZ 85721-0176
United States

Jennifer Lynn Turner

Frye and Kelly, P.C. ( email )

Albuquerque, NM
United States

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