Carcieri Clarification: BIA Allowed to Limit Consideration to Whether Tribal Government is “Under Federal Jurisdiction” in 1934 for Fee to Trust Decisions

By: Rachel Giubilato | Law Clerk
Theodore J. Griswold | Partner |

The DC Circuit Court in The Confederated Tribes of the Grand Ronde Community of Oregon, et al., v. Sally Jewell, et. al., (Civil Action No. 13-849 (BJR) December 12, 2014) undertook clarifying the ambiguity of Native fee-to-trust determinations left in the wake of Carcieri. In Carcieri v. Salazar, 555 U.S. 379 (2009), the Supreme Court held the definition of “Indian” under the Indian Reorganization Act of 1934 (IRA) applied to a tribal government “under federal jurisdiction” as of the date of enactment, 1934. However, the Carcieri Court remained silent as to whether a tribal government also had to be federally “recognized” as of 1934 to qualify.

Two schools of thought subsequently developed: the first believing a tribal government must be “under federal jurisdiction” and “recognized” as of 1934 for qualification under the IRA, and the second believing “under federal jurisdiction” and “recognized” to be separate concepts with only “under federal jurisdiction” subject to the 1934 cut-off. Since Carcieri, the Department of the Interior (DOI) has adopted the latter interpretation, continuing to accept land into trust for tribes who were deemed “recognized” post-1934.

The dispute in The Confederated Tribes of Grand Ronde arose from the DOI’s acceptance into trust of 152 acres of fee land owned by the Cowlitz Indian Tribe. The Confederated Tribes of Grand Ronde (Grand Ronde), together with Clark County, disputed the DOI determination, arguing that Cowlitz does not qualify under the IRA definition of “Indian” because they did not attain federal recognition until 2002 (consistent with the first school of thought explained above). Grand Ronde and Clark County sought reversal of the DOI determination on the basis that DOI made an unreasonable interpretation that only the “under federal jurisdiction” requirement of IRA was required for fee-to-trust decision.

The DOI countered that its interpretation was reasonable, and pursuant to Chevron U.S.A. Inc. v. Natural Resources Defense Council Inc., 467 U.S. 837 (1984), judicial deference must be provided to an agency’s determination when a statute is ambiguous and the agency has provided a reasonable interpretation. The court agreed and upheld the DOI determination as dispositive of Cowlitz’s status under the IRA.

Keeping the concepts of “under federal jurisdiction” and “recognized” separate is pertinent for tribal governments seeking federal recognition as the scope of tribal governments that were considered “under federal jurisdiction” is much broader than the tribal governments “recognized” through the federal government in 1934.

For now, tribal governments and those relying on this determination for a fee-to-trust decision can continue to rely on the DOI interpretation that only “under federal jurisdiction” is required while they await the legislative clarification for the Carcieri case.

Ted is head of the Native American Law practice group and primary editor for the Blogging Circle. Connect with Ted at and 619.515.3277.