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On November 23, 2016, Nielsen Merksamer litigators filed an amicus curiae brief on behalf of the California State Association of Counties and Amador County, California, asking the United States Supreme Court to grant certiorari in Citizens Against Reservation Shopping v. Jewell, #16-572.

In that case—a follow-on to the Court’s decision in Carcieri v. Salazar, 555 U.S. 379 (2009)—the Court is being asked to review a ruling of the D.C. Circuit Court of Appeals interpreting the Secretary of Interior’s authority to take land into trust for “Indian” tribes.

In Carcieri, the Supreme Court held that the Secretary’s authority to take land into trust on behalf of “persons of Indian descent who are members of any recognized Indian tribe now under Federal jurisdiction” unambiguously refers to a tribe “under federal jurisdiction” on June 1, 1934, rather than a tribe “under federal jurisdiction” at the time the Secretary sought to take the land into trust. In the wake of that decision, the Bureau of Indian Affairs has adopted the position that the terms “recognized” and “federal jurisdiction” are ambiguous, and have advanced sweeping interpretations of those phrases that give the Bureau virtuallly unfettered discretion to take land into trust for tribes, notwithstanding Congress’s clear intention to limit such discretion in adopting the IRA in the first place.

The D.C. Circuit accepted the Secretary of Interior’s contention that “recognition” and “under federal jurisdiction” are ambiguous, and—giving the Secretary’s interpretations deference—accepted the broad readings advanced by the government.

The D.C. Circuit case is the first of a number of similar pending cases that raise these issues, including an appeal by Amador County that is currently pending in the Ninth Circuit.