The rule, known as an M-Opinion, was issued in March 2014 by the former solicitor of Interior, Hilary Tompkins; it developed a two-part process for such tribes to have land taken into trust on their behalf. As Tompkins explained in an interview with ICMN in late-2016 before she left the solicitor position, a tribe, under the rule, must be able to show that it had a historical record or some other connection with the federal government leading up to 1934, and that Congress hadn’t formally terminated the relationship up to 1934.
The rule was necessary, argued Obama administration Interior officials – including former Assistant Secretary for Indian Affairs Kevin Washburn and Jody Cummings, former deputy solicitor of Indian Affairs – due to the controversial 2009 Supreme Court Carcieri decision, which said the phrase “now under federal jurisdiction” in the Indian Reorganization Act applied only to tribes recognized by Interior before 1934.
The ruling meant that the community the Carcieri case centered on, the Narragansett Tribe, recognized in 1983, couldn’t have land taken into trust for it by Interior. After the decision, many tribes in a similar recognition positions were left in legal limbo, forced to deal with numerous lawsuits by entities trying to get their land – and sovereignty – taken away. (The number of tribes federally recognized after 1934 is approximately 300, per previous federal court filings; there are currently 567 federally recognized tribes.)
Many tribes hoped that the problem created by the Supreme Court would be fixed by Congress soon after the 2009 decision – making clear that all tribes, regardless of recognition date, should be treated equally. But, to date, Congress has failed to act on several pieces of legislation offered by both Republicans and Democrats that would clarify that lands can legally and justly be taken into trust by Interior for tribes recognized after 1934.
Lacking a legislative fix, Interior moved forward with its administrative rule, and the Supreme Court’s denial of cert in the Cowlitz case means that, for now at least, the high court has accepted Interior’s Carcieri rationale.
Tompkins, now a lawyer with Hogan Lovells, is feeling positive that her opinion, having successfully faced numerous legal challenges in lower courts to date, is now also holding firm at the Supreme Court.
“The court’s denial of certiorari is a significant development for the two-part Carcieri test,” Tompkins said. “It sends a strong message that the D.C. Circuit’s ruling did not raise any red flags for the highest court.”
Tompkins further said that other district courts and appellate courts with Carcieri challenges before them will be hard pressed to not follow the D.C. Circuit’s lead, and she noted that the 9th and 2nd Circuits have already shown such an inclination.
“If a circuit split ever emerges, then the tribes and their federal trustee will need to decide whether a cert petition would be a wise move,” added Tompkins, “but given the positive momentum in the courts in favor of taking land into trust, it remains to be seen whether such a split ever comes to pass.”
For tribes like the Mashpee Wampanoag, which is currently awaiting a decision on whether Interior can put land into trust for it to complete a $600 million casino, the upholding of the Carcieri-centric M-Opinion is welcome news. The tribe was formally recognized by Interior in 2007, and it appears to meet the criteria established under Tompkins’ two-part rule, as it has cited a tribal-federal relationship going all the way back to 1776.
“The U.S. Supreme Court’s decision blazes a trail forward for Mashpee,” Chairman Cedric Cromwell said in a statement issued soon after the denial, yet local entities that have been fighting the tribe’s plans continue to say that the tribe’s circumstances are different than Cowlitz.
Joe Valandra, a tribal gaming consultant and former chief of staff of the National Indian Gaming Commission, says the Mashpee and Cowlitz tribes are right to be celebrating – he believes both will be able to open their casinos – but he also warns there are questions surrounding the future of Tompkins’ rule, especially under the Trump administration. He notes that it was a different M-Opinion by Tompkins issued in December 2016 making a case against the infamous Dakota Access Pipeline, which several Sioux nations continue to battle in court, that President Donald Trump ignored and rescinded days after coming into office.
“That is the biggest litigation danger—a change in policy,” Valandra said, adding that he still believes that the rationale used by Interior in the Cowlitz case and others decided in the past five years are safe.
“Litigation will continue by those bent on terminating tribes.” Valandra added. “There is a danger of the SCOTUS taking up one of those cases if the facts are significantly different, or if Interior changes its legal rationale. I worry most about the latter.”
Still, at least in the case of Cowlitz, Trump was personally supportive of its casino in 2000 when he reached out to the tribe, hoping to partner with it on a prospective gaming deal. The tribe ultimately turned down Trump’s terms, but he did apologize during his courting process for comments he had made in the 1990s before Congress about Indian gaming, according to Cowlitz tribal leaders.
“I want to assure you and all of the members of the tribe that I do now, and always have, supported the sovereignty of Native Americans and their right to pursue all lawful opportunities,” Trump wrote in a letter sent at the time to the late Cowlitz chairman John Barnett.
Trump’s Justice Department in the current Supreme Court machinations ended up supporting Cowlitz again, asking the high court not to hear the case because Interior appropriately took land into trust for the tribe under Tompkins’ rule.
“The BIA officially acknowledged the Cowlitz Tribe…only after a rigorous historical, anthropological, and genealogical investigation, which demonstrated that the tribe was officially recognized in the late 1800s and maintained tribal relations through the present,” lawyers for the Trump Justice Department wrote in their March brief to the Supreme Court.
Still, there is cause for concern – even if Trump is an ally of the Cowlitz – warns Lael Echo-Hawk, an Indian affairs lawyer with Hobbs Straus.
She notes that in a recent letter sent by Rep. Rob Bishop (R-UT), chairman of the House Natural Resources Committee, to Secretary of the Interior Ryan Zinke, the congressman asks Zinke to freeze a “number of determinations and discretionary actions” made in the last days of the Obama administration, including decisions related to gaming. He also requests scrutiny of actions that were “rendered with little or no transparency,” as well as for a reversal of legal opinions that “may have been influenced by political or personal consideration.”
Tompkins’ Carcieri M-Opinion could certainly be interpreted as meeting at least some of the conditions of Bishop’s letter, yet it remains to be seen if Zinke will act on Bishop’s appeal.
“We are in big trouble if tribes do not start pushing back hard,” Echo-Hawk said of Bishop’s letter.
Richard Guest, a lawyer with the Native American Rights Fund, argues, though, that it will be difficult for Interior to take back this specific rule, given the legal precedents it has already established.
“[W]ith the 9th Circuit decision in the Cowlitz case, the Secretary [of the Interior] will have to carefully consider whether to withdraw this particular M-Opinion,” Guest said. “Even though the department will likely slow or stop trust land acquisitions (similar to the Bush II administration), it needs a standard for determining the meaning of ‘under federal jurisdiction in 1934.’ Otherwise, the department leaves it for the courts to decide, and since the district court and the 9th Circuit both deferred to the two-part inquiry established by the department as reasonable, other courts are unlikely to vary from that test even in the absence of the M-opinion.”
Tompkins, for one, remains cautiously optimistic. “I do not know whether the new administration would change course,” she said, “but the fact that the litigation strategy has stayed the course and the Carcieri opinion is not one of the M-Opinions that they have suspended are both hopeful signs.”*
By Rob Capriccioso