Later On

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The Supreme Court and Native Americans

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Interesting article:

Once upon a time, it was the received wisdom that American Indians always won their cases at the Supreme Court. And if one looks back at the opinions from the 1970s and 80s, the record will reflect that this is only a mild exaggeration. Justices Thurgood Marshall and Harry Blackmun wrote dozens of opinions rectifying historical wrongs, liberally construing the powers of tribal self-government, broadly defining the federal government’s "trust responsibility" vis-à-vis the tribes, and upholding preferential treatment of Indians in everything from employment to how statutes should be interpreted.

The winning streak for tribal interests began to wane in the mid-1980s. But now it’s gotten to the point of a complete reversal of the historical pattern. Today, the tribes rarely win at the Court, and these losses have cut back sharply on their power of self-government and diminished the positive aspects of their relationship with the federal government.

This week, in deciding Carcieri v. Salazar, the Supreme Court continued its recent pattern. At issue in Carcieri was the power of the federal government to take into trust on behalf of the Narragansett Tribe of Indians a 31-acre parcel of land that the Tribe had purchased from a local developer. The Secretary of the Interior had done this for the Tribe pursuant to the Indian Reorganization Act of 1934, a landmark Indian-rights statute that includes provisions for the U.S. Government to help rebuild tribal land holdings by acquiring land and holding it in trust for the benefit of Indians.

The state of Rhode Island — within which the Narragansett are located – objected to having the land moved into trust and sued to prevent it. Both the district court and Court of Appeals had upheld the Secretary of Interior’s power to confer this benefit on the Tribe. But the Supreme Court has now held otherwise. It was a disturbing ruling that continues a disturbing trend on the Court.

The Story Behind the Carcieri Case

The story of the Narragansett Tribe is a tragic tale, not unlike the stories that surround other once powerful tribal groups on the Eastern Seaboard. Over the centuries, war and disease took a terrible toll on the Tribe. In 1880, what was left of the Narragansett Tribe agreed to accept "detribalization" by the state of Rhode Island and to reduce its landholdings to a meager two acres in exchange for $5000.
The Tribe spent much of the next century trying to undo that terrible choice and reclaim some of its land base. In 1983, the Narragansett finally achieved the status of a "federally recognized tribe" – a sine qua non for being able to receive a host of federal benefits, including (or at so the Narragansett thought) the benefit at issue in Carcieri: the ability to petition the Secretary of Interior to have land taken into trust on the Tribe’s behalf.

The Main Issue Before the Court: How to Interpret the Word "Now" As Used in the Statute

The language of the statute at issue says that it was enacted "for the purpose of providing land for Indians." The statute then defines "Indian" to include "all persons of Indian descent who are members of any recognized Tribe now under federal jurisdiction." …

Continue reading.

Written by Leisureguy

27 February 2009 at 10:50 am

Posted in Daily life, Government, Law

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