	Introduction

On February 24, 2009, the U.S. Supreme Court, in Carcieri v. Salazar , ruled that the Secretary of the Interior (SOI) did not have authority to take land into trust for the Narragansett Indian Tribe (Tribe) under 25 U.S.C. §465, a provision of the Indian Reorganization Act of 1934 (IRA). Although the facts of the case involve only a small parcel of land in Rhode Island, the reach of the decision may be much broader because it rests on the major statute under which the SOI acquires land in trust for the benefit of Indians and Indian tribes and restricts its coverage with respect to Indian tribes receiving federal recognition after 1934. The case was brought under the Administrative Procedure Act within the six-year period covered by the applicable statute of limitations. The Supreme Court ruled that the suit directly challenging the DOI and its decision to acquire the land in trust could go forward, refuting a long-held assumption that U.S. sovereign immunity under the Quiet Title Act barred challenges to any decision of the Secretary to take land into trust once title has passed to the United States. On June 4, 2015, in Big Lagoon Rancheria v. California, an en banc decision of the U.S. Court of Appeals for the Ninth Circuit held that a claim challenging the validity of a trust acquisition for a tribe not recognized in 1934 may not be raised as a collateral attack on the status of the land for purposes of the Indian Gaming Regulatory Act. The Supreme Court agreed to review the ruling of the appellate court on the basis of two issues: (1) whether the IRA provision covers trust acquisitions by a tribe not recognized by DOI in 1934 or under federal jurisdiction at that time, and (2) whether the trust acquisition violated the terms of RIICSA. It found that the definition of Indian in 25 U.S.C. Circuit Judge Howard would have found that (1) the parties to the JMOU and Congress, in enacting RIICSA, intended to resolve all Indian claims in Rhode Island past, present, and future; (2) RIICSA contains broad language which may be fairly interpreted as impliedly and partially repealing SOI authority under the IRA to take land into trust for the Tribe; (3) the fact that other settlement acts included provisions limiting jurisdiction, should there be subsequent approvals of trust acquisitions, is irrelevant because RIICSA clearly contemplated that there would be no trust acquisition other than that of the settlement lands; and (4) to read RIICSA as if it did not preclude subsequent jurisdictional adjustments outside of the settlement lands would be "antithetical to Congress' intent" and "absurd." The Court, in an opinion written by Justice Thomas, found that the 1934 legislation unambiguously restricted beneficiaries for whom the SOI may take land into trust under this statute to "Indians" and "Indian tribe[s]" as defined in the statute. The Court, therefore, found that the Narragansett Indian Tribe was not "under Federal jurisdiction" in 1934 and ruled that the trust acquisition was contrary to the statute and reversed the lower court. The decision appears to call into question the ability of the SOI to take land into trust for any tribe added to DOI's list of federally recognized tribes since 1934 unless the trust acquisition has been authorized under legislation other than the 1934 Act. DOI Solicitor's Memorandum Indicates How a Tribe May Demonstrate That It Was "Under Federal Jurisdiction" in 1934

The DOI released a memorandum, on March 12, 2014, in which the Solicitor of the Department of the Interior interprets "The Meaning of 'Under Federal Jurisdiction' for the Purposes of the Indian Reorganization Act" (Memorandum). According to the decision, such a claim must be brought under the Administrative Procedure Act (APA) and is, therefore, subject to a six-year statute of limitations. On the basis of the Carcieri decision, the state claimed that the site had not been validly taken into trust because the tribe had not been under federal jurisdiction in 1934. It quoted the statement by the Supreme Court in Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians v. Patchak, that "a challenge to the BIA's 'decision to take land into trust' is 'a garden-variety APA claim.'" One case involves a tribe that was not formally recognized until 2002; another, a tribe that dates to colonial times. They found the language ambiguous with respect to whether it was limited to tribes that were recognized in 1934 and under federal jurisdiction in 1934 or whether it could apply to a tribe that could be found to be under federal jurisdiction in 1934 but not recognized formally until after 1934. Other Federal District Court Decisions Deferring to SOI Interpretation of IRA Jurisdictional and Recognition Requirements in Taking Land Into Trust

			Trust Acquisition for the Oneida Indian Nation of New York

On March 26, 2015, the U.S. District Court for the Northern District of New York, in Central New York Fair Business Association v. Jewell , applied the framework employed by the Supreme Court in Chevron, U.S.A., Inc. v. Natural Resources Defense Council ( Chevron ) and found that the SOI's interpretation of "under Federal jurisdiction" warranted judicial deference. The case involved a tribe that had conducted a vote in 1934 under a provision of the IRA and had had a relationship with the federal government that included a 1794 treaty. Trust Acquisition for Ione Band of Miwok Indians

On September 30, 2015, the U.S. District Court for the Eastern District of California filed two opinions dismissing suits by the County of Amador, California, and various citizens advocate groups contesting a SOI decision to take land into trust for the Ione Band of Miwok Indians (Ione Band). District Court Decision Invalidating Trust Acquisition for the Mashpee Wampanoag Tribe

On July 28, 2016, in Littlefield v. U.S. Department of the Interior, the U.S. District Court for the District of Massachusetts invalidated the SOI's decision to take land into trust for the Mashpee Wampanoag Tribe (Mashpee Tribe). The Mashpee Tribe was officially acknowledged to be an Indian tribe in 2007. On the basis of its analysis of the grammatical structure of the IRA's second definition of "Indian," the court held that the plain meaning of the language is that "a descendant of a 'recognized Indian tribe' will be an eligible beneficiary of the IRA's land-into-trust provision only if that tribe was under federal jurisdiction in June 1934." H.R. 114th Congress

			S. 1879

On June 6, 2016, the Senate Committee on Indian Affairs reported an amended version of S. 1879 , the Interior Improvement Act, which had been introduced by Senator John Barrasso, chairman of the Senate Indian Affairs Committee, on July 28, 2015. Other Bills

S. 732 / H.R.
In Carcieri v. Salazar, 555 U.S. 379 (2009), the U.S. Supreme Court ruled that a 1934 statute provides no authority for the Secretary of the Interior (SOI) to take land into trust for the Narragansett Indian Tribe (Tribe) because the statute applies only to tribes under federal jurisdiction when that law was enacted. The reach of the decision may be broad because it relies on the major statute under which the SOI acquires land in trust for the benefit of Indians. It affects the SOI's authority to take land into trust for any recently recognized tribe unless the trust acquisition has been authorized by legislation other than the 1934 Indian Reorganization Act (IRA) or the tribe can show that it was "under Federal jurisdiction" in 1934.
A subsequent decision of the Supreme Court, Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians v. Patchak, ___ U.S. ___, 132 S. Ct. 2199 (2012), appears to have opened the way to undo trust acquisitions on the basis of the Administrative Procedure Act. In that case, the Court refuted a long-held assumption that U.S. sovereign immunity under the Quiet Title Act, 28 U.S.C. §2409(a), barred challenges to any decision of the Secretary to take Indian land into trust once title has passed to the United States. In the case, the Court ruled that a suit directly challenging the Department of the Interior (DOI) and its decision to acquire the land in trust could go forward. The case involved a challenge to a trust acquisition for a tribe that had not been officially recognized in 1934. It was brought under the Administrative Procedure Act and within its six-year statute of limitations. Subsequent cases, including a June 4, 2015, en banc decision, Big Lagoon Rancheria v. California, 789 F. 3d 947 (9th Cir. 2015), of the U.S. Court of Appeals for the Ninth Circuit, indicate that challenges to the status of Indian trust lands not raised within the six-year statute of limitations will not be entertained by the courts.
Carcieri involves a parcel of land which the SOI had agreed to take into trust for the benefit of the Narragansett Tribe, thereby presumably subjecting it to federal and tribal jurisdiction and possibly opening the way for gaming under the Indian Gaming Regulatory Act. The land is outside the Tribe's current reservation, which is subject to the civil and criminal laws of Rhode Island according to the terms of the Rhode Island Indian Claims Settlement Act of 1974 (RIICSA). RIICSA does not explicitly address the possibility that lands other than the "settlement lands" could be placed in trust; nor does it specify what jurisdictional arrangement should apply should that occur. The issues before the Supreme Court were (1) whether the authority under which the SOI has agreed to acquire the land, 25 U.S.C. §465, a provision of the IRA of 1934, covers trust acquisitions by a tribe that was neither federally recognized nor under federal jurisdiction in 1934, and (2) whether the trust acquisition violated the terms of RIICSA. The Supreme Court's decision is predicated on the Court's finding that the definitions of "Indians" and "Indian tribe" in the 1934 legislation unambiguously restrict the beneficiaries for whom the SOI may take land into trust to tribes that, in 1934, were "under Federal jurisdiction." The Court also held that the Narragansett Indian Tribe was not "under Federal jurisdiction" in 1934. It, therefore, ruled that the trust was not authorized by the statute and reversed the lower court.
Carcieri prompted the March 12, 2014, DOI issuance of a Solicitor of the Interior Memorandum on "The Meaning of 'Under Federal Jurisdiction' for Purposes of the Indian Reorganization Act." In it, the agency set forth its standards for determining whether a tribe not officially recognized until after 1934 was "under Federal jurisdiction" in 1934. These standards have found judicial acceptance in some recent cases. The Confederated Tribes of the Grand Ronde Community of Oregon v. Jewell, No. 14-5326, 2016 WL 40560092 (D.C. Cir. July 29, 2016), involved a trust acquisition for a tribe not officially acknowledged as an Indian tribe until 2002. Central New York Fair Business Association v. Jewell, No. 6:08-cv-0660(LEK/DEP), 2015 WL 1400384 (N.D. N.Y. March 26, 2015), involved a decision to take land into trust for the Oneida Indian Nation of New York, a tribe that had conducted an IRA vote in 1934. Acquisition of trust land for that tribe was challenged on the basis of the claim that a 19th century statute terminating the tribe's reservation resulted in placing the tribe under state jurisdiction. Moreover, two September 30, 2015, decisions of the U.S. District Court for the Eastern District of California, No Casino in Plymouth and Citizens Equal Rights Alliance v. Jewell, 136 F. Supp. 3d 1166 (E.D. Cal. 2015), and County of Amador v Jewell, 136 F. Supp. 3d 1193 (E.D. Cal. 2015), dismissed challenges to a trust acquisition for the Ione Band of Miwok Indians. Those challenges sought to show that the Ione Band of Indians was not "under Federal jurisdiction in 1934" on the basis of various inconsistencies in the DOI's treatment of that tribe.
One land-into-trust determination by the SOI has been rejected by a federal court. Littlefield v. U.S. Department of the Interior, No. 16-10184-WGY (D. Mass. July 28, 2016), invalidated a DOI decision to take land into trust under the 1934 legislation for the Mashpee Wampanoag Tribe. That tribe had been formally acknowledged in 2007. Its application for a land-into-trust acquisition was approved on the basis of a second definition of "Indian" in the IRA. The DOI had found that definition to be ambiguous. The federal district court disagreed. It ruled that, under its plain meaning, that definition applies only to Indians whose tribes were "under Federal jurisdiction" in 1934.
In the 114th Congress, S. 1879, the Interior Improvement Act, introduced by Senator John Barrasso, chairman of the Senate Indian Affairs Committee and reported by the Senate Indian Affairs Committee on June 6, 2016 (S.Rept. 114-275), joins three other bills, S. 732/H.R. 407, and H.R. 249, which have been introduced to amend the Indian Reorganization Act to permit trust land acquisitions for all federally recognized Indian tribes.