Update: Supreme Court v. Indians

In the days since the Carcieri decision [PDF], tribes around the country are scrambling to determine how they are likely to be affected. A legal adviser to Michigan tribes has affirmed that completed fee-to-trust acquisitions on behalf of Indian tribes will not be undone by this decision, even if the tribe in question was not recognized in 1934.

Some tribes were recognized in 1934, but lost that recognition afterward, then regained it again. You’d think they’d be OK, but one never knows what to expect from this court when it comes to Indians. Tribes that were not yet recognized in 1934 may still be able to prove that they were “under federal jurisdiction” in 1934, a test that might satisfy even this court. But that’s going to take further litigation. Cross your fingers.

Skeptics may think it silly that Indian tribes continue to be recognized by the federal government. But the fact is that many Indian cultures have been officially written off, even though they survived as distinct people. Choctaws in Alabama, for instance, were reclassified as “Cajuns” by white politicians in the 1880s, and even an act of Congress (if Jo Bonner’s bill ever passes) will not be enough to get the label reversed.

Federal recognition of a tribe is an exacting process, demanding improbable amounts of documentation. Nevertheless, suppressed tribes have been managing to meet the government’s standard of proof, often with the help of historians and archivists — and on at least one occasion, with the help of Jack Abramoff and illegal campaign contributions.

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