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The U.S. Supreme Court recently ended a decade-old skirmish in the 100-year legal battle between the State of Rhode Island and the Narragansett Indians by interpreting a three letter word. This dispute involved the rights of the native tribe, the limits of its unique sovereignty, and the role of the Bureau of Indian Affairs. As in President Clinton’s infamous litigation over the meaning of “is,” the interpretation of a single word would determine the outcome of the case.1

Despite a lengthy history and numerous procedural twists and turns, the case turned on little more than the interpretation of the word “now” as contained in the phrase “shall include all persons of Indian descent who are members of any recognized Indian tribe now under Federal jurisdiction” of the Indian Reorganization Act (IRA), 25 U.S.C. § 479, enacted by Congress in 1934 to determine the relationship between the Secretary of the Interior and numerous American Indian tribes.

Background

The case involved the fascinating and tragic backdrop of the tension between the Narragansett Indian Tribe and the Colony (and subsequently State) of Rhode Island. Unfortunately, the relationship between the largest Indian tribe and the smallest state has been largely defined by years of litigation. The case was the outgrowth of a decades-long attempt to reclaim 31 acres of land from the Department of the Interior. It was set against the equally acrimonious history of the Narragansett Tribe’s long held ambition to obtain a gambling casino on its tribal lands, the perpetual opposition it faced from Rhode Island politicians, and its clashes with state troopers over the sale of untaxed cigarettes.

Procedural History

Justice Thomas began the decision with a recitation of the history of the Narragansett Tribe, beginning in the 17th century. As of 1880, the tribe had relinquished all but “two acres of its remaining reservation land for $5,000.”2 Quickly regretting its decision, the tribe commenced what would be a 130-year struggle in the federal courts to regain title to its former holdings.

Into the 1970s, the tribe was still litigating its claim that Rhode Island had “misappropriated” the tribe’s land in violation of the Indian Non-Intercourse Act, 25 U.S.C. § 177.3 The litigation was finally resolved by the Rhode Island Indian Claims Settlement Act, 25 U.S.C. § 1701 et seq., which codified an agreement between the state and the tribe whereby the tribe would receive an 1800-acre parcel in Charlestown, Rhode Island.4

Despite years of litigation, negotiations with the state, and the enactment of federal statutes to specifically address their claim, however, the Narragansetts had yet to be officially recognized as a tribe by the United States. In a move that would prove critical to the litigation, that recognition did not come until 1983, when the Bureau of Indian Affairs granted the tribe recognized status under federal law.5

In 1991, the Narragansett Tribal Housing Authority purchased 31 additional acres in Charlestown, Rhode Island, adjacent to its 1800-acre settlement parcel.6 While the tribe skirmished with the State of Rhode Island over whether or not it was required to comply with local land use regulations, it attempted to “free itself from compliance with local regulations” by requesting that the Bureau of Indian Affairs hold its newly purchased 31 acres in trust pursuant to 25 U.S.C. § 465.7

The Bureau accepted the parcel into trust, and shortly thereafter, the State of Rhode Island and the Town of Charlestown sought administrative review, arguing that the plain language of § 479 prohibited the Bureau of Indian Affairs from accepting land from the Narragansetts because the tribe did not come within the definition of “Indian” in 1934 when the law was enacted.

The District Court for Rhode Island rejected this claim, finding that “because it is currently ‘federally-recognized’ and ‘existed at the time of the enactment of the IRA,’ the Narragansett Tribe ‘qualifies as an “Indian tribe” within the meaning of § 479’ (citation omitted) As a result, ‘the secretary possesses authority under § 465 to accept lands into trust for the benefit of the Naragansetts.’”8

The Court of Appeals for the First Circuit affi rmed in both a panel decision9 and a rehearing en banc.10 The court found that there was “ambiguity as to whether to view the term [now] as operating at the moment Congress enacted it or at the moment the Secretary invokes it.”11 Finding the statute “ambiguous,” the court deferred to the Secretary’s interpretation of the construction of the word “now” pursuant to the Supreme Court’s decision in Chevron.12

Supreme Court Review

Justice Thomas found no such ambiguity in the operative provision of 25 U.S.C. § 479: “The term ‘Indian’ as used in this Act shall include all persons of Indian descent who are members of any recognized Indian tribe now under Federal jurisdiction.”13 He found that the case “requires us to decide whether the word ‘now under Federal jurisdiction’ refers to 1998 when the Secretary accepted the 31-acre parcel into trust, or 1934, when Congress enacted the IRA.”14 As is now common practice in the Supreme Court’s “back to basics” approach to statutory construction, Justice Thomas turned to a series of Supreme Court decisions, Webster’s New International Dictionary,15 and Black’s Law Dictionary16 when interpreting the meaning of the word “now.” The Court found that the meaning contained in 170 years of Supreme Court jurisprudence, as well as lay and legal dictionaries, “aligns with the natural reading of the word within the context of the IRA.”17

With perhaps unsurprising simplicity, the Court also drew on numerous grammatical usages of the word “now” from within related sections of the statute itself. Justice Thomas cited Congress’s use of “now” in the phrase “measures now pending in Congress,” contrasting it with the explicit wording of 25 U.S.C. §§ 468 and 472, which refer to geographic boundaries existing “now or hereafter.”18 He cited Barnhart v. Sigmon Coal,19 pointing out that “Congress’ use of the word ‘now’ in this provision, without the accompanying phrase ‘or hereafter,’ provides further textual support for the conclusion that the term refers solely to events contemporaneous with the Act’s enactment.”20 Justice Thomas reasoned that “[h]ad Congress intended to legislate such a definition, it could have done so explicitly, as it did in §§ 468 and 472.”21

In a concurring opinion, Justice Breyer conceded that the statute was ambiguous and that the Department of the Interior’s interpretive powers should usually be given wide latitude (although Breyer argued that the circumstances in this case “indicate that Congress did not intend to delegate interpretive authority to the Department”).22 He noted, however, “I am persuaded that ‘now’ means ‘in 1934’ not only for the reasons the Court gives but also because an examination of the provision’s legislative history convinces me that Congress so intended.”23

In a lengthy dissent, Justice Stevens rejected the majority’s “cramped reading of a statute Congress intended to be ‘sweeping’ in scope.”24 He chastised the court for ignoring “the ‘principle deeply rooted in [our] Indian jurisprudence’ that ‘“statutes are to be construed liberally in favor of the Indians.”’”25 Justice Stevens pointed out that historically “[f]ederal recognition, regardless of when it is conferred, is the necessary condition that triggers a tribe’s eligibility to receive trust land.”26 He hedged much of his dissent on an attempt to frame as moot the matter of the interpretation of “now” on which the majority relied, looking instead to the definition of “tribe” in § 479 and noting that “the plain text of the Act... places no temporal limitation on the definition of ‘Indian tribe.’”27 He argued, rather, that the temporal limitation “now” was designed only to affect “an individual’s ability to qualify for benefits under the IRA.”28

As recently as early April, the House Committee on Natural Resources has heard the testimony of witnesses arguing for both adherence to the Court’s ruling and reversal by way of statutory revision.29 Thus far, no official amendments to the statute have been introduced.

* David Strachman, a partner at McIntyre Tate & Lynch LLP in Providence, RI, and an adjunct professor at Southern New England School of Law, is the author of Civil Terrorism Law (Lawyers and Judges Publishing 2008).

 

Endnotes

1 Carcieri v. Salazar, 129 S.Ct. 1058 (2009).

2 Id. at 1061.

3 Id. at 1061-62.

4 See id. at 1062.

5 Final Determination for Federal Acknowledgment of Narragansett Indian Tribe of Rhode Island, 48 Fed.Reg. 6177 (Feb. 10, 1983).

6 Carcieri, 129 S.Ct. at 1062.

7 Id.

8 Id. at 1063 (quoting Carcieri v. Norton, 290 F.Supp.2d 167, 179181 (D.R.I. 2003)).

9 Carcieri v. Norton, 423 F.3d 45 (1st Cir. 2005).

10 Carcieri v. Norton, 497 F.3d 15 (1st Cir. 2007).

11 Id. at 26.

12 467 U.S. 837, 843 (1984). See Carcieri, 497 F.3d at 30.

13 See Carcieri, 129 S.Ct. at 1064 (emphasis added by Thomas, J.).

14 Id.

15 Webster’s New International Dictionary 1671 (2d ed.1934).

16 Black’s Law Dictionary 1262 (3d ed.1933) (“noting that ‘“now” as used in a statute ordinarily refers to the date of its taking effect...’” (emphasis added in Carcieri v. Salazar, 129 S.Ct. 1059)). 

17 See Carcieri, 129 S.Ct. at 1064. 

18 See id. at 1065 (emphasis added by Thomas, J.).

19 534 U.S. 438, 452 (2002).

20 Supra note 18.

21 Id. at 1066.

22 See id. at 1068-69 (Breyer, J., concurring).

23 Id. at 1069.

24 Id. at 1078 (Stevens, J., dissenting) (quoting Morton v. Mancari, 417 U.S. 535, 542 (1974)).

25 Carcieri, 129 S.Ct. at 1078 (quoting County of Yakima v. Confederated Tribes and Bands of Yakima Nation, 502 U.S. 251, 269 (1992) (quoting Montana v. Blackfeet Tribe, 471 U.S. 759, 767-768 (1985))).

26 Carcieri, 129 S. Ct. at 1075 (noting that when statutes are designed to limit or direct the Secretary’s residuary power to take Indian land into trust, provisions do so very specifically).

27 Id. at 1072.

28 Id. at 1078 (emphasis added).

29 Andrew Martin, Carcieri v. Salazar Will be Questioned, Charino Times, May 1, 2009. available at http://www.ricentral.com/content/ view/163050/239/ (last visited July 8, 2009).

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