Letter to Secretary Salazar - Carcieri v. Salazar

Press Release

Today, U.S. Senator Charles E. Schumer announced that he has sent a personal letter to the Secretary of the Department of Interior, Ken Salazar, urging him to hold off on administrative action that would change current U.S. law that governs the land into trust process, as it relates to the Supreme Court's Carcieri v. Salazar decision. This decision held that the Secretary of the Interior did not have the authority under the Indian Reorganization Act (25 U. S. C. §479 ) to take land into trust for tribes not "under federal jurisdiction" in 1934. Recently it has been reported that the Administration was considering moving unilaterally, through the rule making process, to try to circumvent this ruling. Today, Schumer said that the administration should not take such actions, as the Supreme Court clearly stated that action would need to be taken by the legislative branch.

"This is an issue that has important impacts and must be handled with careful deliberation and adequate input from all parties involved, and Congress, not the federal bureaucracy, is the appropriate place for that to happen," Schumer said. "The Supreme Court clearly stated that any change in the law needed to be enacted by Congress so today I am calling on the Interior Department not to try to circumvent the judicial and legislative branches through unilateral action."

The Supreme Court held in Carcieri v. Salazar that the Secretary of the Interior did not have the authority under the Indian Reorganization Act (25 U. S. C. §479 ) to take land into trust for tribes not "under federal jurisdiction" in 1934. According to this decision, the plain language of the statute "unambiguously" prohibited the Department of the Interior from taking land into trust for the Narragansett Tribe in Rhode Island because it was not federally recognized until 1983. The Court's opinion held that, if Congress wanted to give the Secretary the authority to take lands into trust for tribes recognized after 1934, it could have done so.

"Here, the statutory context makes clear that "now" does not mean "now or hereafter" or "at the time of application." Had Congress intended to legislate such a definition, it could have done so explicitly, as it did in §§468 and 472, or it could have omitted the word "now" altogether. Instead, Congress limited the statute by the word "now" and "we are obliged to give effect, if possible, to every word Congress used." Reiter v. Sonotone Corp., 442 U. S. 330, 339 (1979)." 555 U. S. ____ at *11 (emphasis added).

Schumer was disturbed by reports that the Department of the Interior may be considering circumventing the legislative process, and the decision of the Supreme Court, in an effort to address the Carcieri decision unilaterally, outside of the normal legislative process. Legislation is currently pending before Congress to address the decision in Carcieri (S.1703). Given that the issues surrounding the land-trust process are challenging, and affect different parts of the country differently, Congress is the best place to mete out these issues.

"The bottom line is that, following a Supreme Court decision like this, Congress is the only appropriate forum for any reconsideration of the Indian Reorganization Act," said Senator Schumer.

In the letter, Schumer wrote: "I hope and trust that the Department of the Interior will not reach beyond its appropriate role and attempt to undercut the decision of the Supreme Court and the authority of Congress with respect to the land trust process." And added: "The specific words chosen by Congress demonstrate that it was the will of legislature to limit the authority of the Secretary with respect to taking land into trust. This limitation can be changed only be another act of Congress, not unilaterally by the executive branch."

Schumer added, "Decisions like these, that profoundly impact many New Yorkers and many Americans, need to be done through the normal legislative process--not by the federal bureaucracy."

March 8, 2010

Dear Secretary Salazar:

I write to express concerns about reports concerning a potential administrative "fix" to the Supreme Court's decision in Carcieri v. Salazar, 555 U. S. ____ (2009) (slip op.). While I understand that there are strong feelings on both sides of this issue, I believe it is critical that the administration proceed cautiously and with respect for the decision of the Supreme Court and the jurisdiction of Congress in determining the statutory authority of the Department of the Interior as it relates to the Indian Reorganization Act. The bottom line is that, following a Supreme Court decision like this, Congress is the only appropriate forum for any reconsideration of the Indian Reorganization Act.

As you know, the Supreme Court held in Carcieri v. Salazar that Secretary of the Interior did not have the authority under the Indian Reorganization Act (25 U. S. C. §479 ) to take land into trust for tribes not "under federal jurisdiction" in 1934. According to this decision, the plain language of the statute "unambiguously" prohibited the Department of the Interior from taking land into trust for the Narragansett Tribe in Rhode Island because it was not federally recognized until 1983.

The Court's opinion held that, if Congress wanted to give the Secretary the Authority to take lands into trust for tribes recognized after 1934, it could have done so. Specifically, the majority stated:

"Here, the statutory context makes clear that "now" does not mean "now or hereafter" or "at the time of application." Had Congress intended to legislate such a definition, it could have done so explicitly, as it did in §§468 and 472, or it could have omitted the word "now" altogether. Instead, Congress limited the statute by the word "now" and "we are obliged to give effect, if possible, to every word Congress used." Reiter v. Sonotone Corp., 442 U. S. 330, 339 (1979)." 555 U. S. ____ at *11 (emphasis added).

The specific words chosen by Congress demonstrate that it was the will of legislature to limit the authority of the Secretary with respect to taking land into trust. This limitation can be changed only be another act of Congress, not unilaterally by the executive branch. Indeed, the Court noted "Congress left no gap in 25 U. S. C. §479 for the agency to fill." 555 U. S. ____ at *11

Accordingly, I have been disturbed to see reports that the Department of the Interior may be considering circumventing the legislative process and the decision of the Supreme Court in an effort to address the Carcieri decision unilaterally. As you know, there is legislation currently pending before Congress to address the decision in Carcieri (e.g., S.1703). This legislation has been and will continue to be debated, and all sides of the argument about the proper authority of the Department of the Interior will be considered. This is the only appropriate process and forum for any reconsideration of the Indian Reorganization Act.

The issues surrounding the land-trust process are challenging, and affect different parts of the country differently. For years, my own position on the land-into-trust process has been clear. Because any decision to take land into trust is profound and permanent and will have both positive and negative effects on all parties involved it is critical that congress remain integral to any efforts to expand or restrain these powers. I am skeptical of any efforts to broaden the land-trust process beyond what is already legislatively approved.

To summarize, I hope and trust that the Department of the Interior will not reach beyond its appropriate role and attempt to undercut the decision of the Supreme Court and the authority of Congress with respect to the land trust process. I look forward to continuing to work with you to address these issues in the appropriate fashion.

Sincerely,

Senator Charles E. Schumer.

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