United States Department of the Interior OFFICE OF THE SOLICITOR washington, D.C. 20240

I'IAY 0 1 2020 Memorandum

To: Tara Sweeney, Assistant Secretary Indian Alfairs

From: Kyle Scherer, Deputy Solicitor for lndian Xtats ,7 9,-Z-."--

Eric Shepard, Associate Solicitor, Division of Indian Affairs Arr> //. Shfa"/

Subj ect: Federal Jurisdiction Status ofSan Pasqual Band ofDiegueno Mission Indians of Califomia in 1934

This Opinion addresses the statutory authority ofthe Secretary ofthe Interior ("Secretary") to acquire land in trust for the San Pasqual Band of Diegueno Mission lndians of Califomia ("San Pasqual" or "Tribe") pursuant to Section 5 ofthe Iadian Reorganization Act of 1934 ("In 4'1.t Section 5 ofthe IRA ("Section 5") authorizes the Secretary to acquire land in trust for "Indians." Section 19 of the Act ("Section 19") defines "Indian" to include several categories ofpersons.2 As relevant here, the first definition inchrdes all persons of Indian descent who are members of "any recognized Indian tribe now under federal jurisdiction" ("Category 1").3 In 2009, the United States Supreme Court ("Supreme Court") in Carcieri v. Salazar constnted the term 1 "now" in Category 1 to refer to 1934, the year of the IRA's enactment. The Supreme Court did not consider the meaning ofthe phrases "under federal junsdiction" or "recognized Indian tribe." ln connection with the Tribe's pending fee-to-trust application.5 you have asked whether the Tribe is eligible for trust land acquisitions under Category 1.6 For the reasons explained below, we conclude that there is evidence presumptively demonstrating that the Tribe was "under '1934. federal jurisdiction" in The Tribe is therefore eligible under Category 1 and, consequently, the Secretary has authority to acquire land into trust for the Tribe.

1 Act ofJune 18, 1934, c. 576, I 5,48 Stat. 984 (!'IRA" or "Act"), codrfied at 25 U.S.C. $ 5108 ("The Secretary of the Interior is hereby authorized, in his discretion, to acquire through purchase, relinquishment, gili, exchange, or assignment, any interest in lands, water rights. or surface rights to lands, within or without existing reservations, including trust or otherwise restricted allotments whether the allottee bc Iiving or deceased, for the purpose of providing land for Indians.") 'z1d. at $ 19, codified at 25 tl.S.C $ 5129. 3 lbid. 1 555 U.S. 3'.79 (2009) (hereafler ','Carcieri"). 5 San Pasqual Band of Dtegueno Mission lndians oJ Cali-fornia, I"ee to Trust Application and Requestfor Reseryation Proclamation for a 29+/- Acre Parcei in San Diego Ctiuntr, California (Sep.3, 2009) ("Application"). 6 This opinion does not ad&ess the Tdbe's eligibiliry under any othcr definition of"lndian" in the IRA- I. BACKGROUND

The Tribe's existing land base consists offive, non-contiguous parcels ofland that total approximately 1,380 acres.T The Tribe's ancestors were Kumeyaay peoples, settled at the pueblo ofSan Pasqual in the San Pasqual Valley in 1835.8 Following the annexation in 1848 of Alta Califomia by the United States, representatives of the Kumeyaay negotiated a treaty with Oliver M. Wozencraft, a commissioner appointcd the Secretary of the Interior. The resulting agreement was signed at Santa Ysabel on January 7, 1852, by Jos6 Panto, the capitan of the Indians at San Pasqual.e The agreement was ncver ratified by the Unitcd States Senate.

In the following decades, a growing number ofnon-Indian settlers established themselves in San Diego County. ln response to increasing tensions among the non-Indian settlers and the Kumeyaay, Secretary ofthe Interior Jacob D- Cox recommended to President Ulysses S. Grant that a reservation be created for the Indians of the San Pasqual Valley. l0 Acting on this recommendation, President Grant set aside 92,000 acres in San Diego County by Executive

Order dated January 3 1, l870.tt This Executive Order was rescinded on February 17, 1 871, and the reservation lands were retumed to the public domain.l2

In 1891, Congress directed the Secretary to form a commission tasked with settling the Mission Indians rcsiding in Califomia upon reservations which would be secured by issuance of a patent held in trust by the United States.r3 By the early 1900s, the United States began acquiring land for displaccd Indians of San Dicgo County, and in 1910, a rcservation at San Pasqual was la formally established. In 1934, Congress enacted the IRA. As a statute of general applicability, the IRA applied to Indian reservations unless, pursuant to Section t8, "a majority ofthe adult Indians, voting at a special election duly called by the Secretary ofthe Intenor, shall vote against its application." On December 15,1934, the Secretary called a Section 18 election for the Indians residing on the reservation and by a vote of 2 to l, the Tribe accepted the IRA. rs The parcel identified in the Application is less than one eighth ofone mile from the reservation established for the Tribe's bcnefit in 1910. 16

7 Application at 3. 8 San Pasqual Band of Mission Indians History, https://www.sanpasqualbandofmissionindians.org/aboultristory (accessed Apr. 21 ,2020). e Glenn J- Farris, "/osi P.lnto, Capitan of the Indian Pueblo of San Pascual, San Diego County 16 JoURNAL oF CALIFoRN"IA AND GREAT BASIN ANTHRoPoLoGY I49-I6I (1994). r0 Valerie Sherer Mathes and Phil Brigandi, Reservations, Removal, and Reform.. The Mission Indian Agents of Southern Califurnia I 8 7 I - I 90 3 (2018). r1 Charles J. Kappler, INDTAN AFFATRS: LAw AND TREATTES, Vor-. I at 819. t2 Id. at 819-820. lt 26 Stat.'l12 (Jan.12, l89l ) ("1891 Acf'). ra Application at 3. .tee a/so Serial Patent Accession No. 142190 (Jul. l, 19l0) (issued to the "San Pasqual Band or Viliage of Indians" purcuant to the l89l Act) available at hftps://glorecods.blm.gov/details/patent/default.aspx?accession:142190&docClass:SER&sid:xrm3 5sxh.y I h#pate ntDetailsTablndex=0. (accessed Apr. 29, 2020) - 15 Theodore II. Llaas, Ten Years of Tribal Government [Jnder LR.A. (lJ.S.lndian Service Tribal Relations Pamphlets Iq47) al l5 (hereafter "Haas Rcpon"). 16 Application at 6, Exhibit 4 (Map showing location ofthe subject parcel relative to boundaies ofthe San Pasqual Rese.r'ation).

2 II. STANDARD OF REVIEW

A, Four-Step Procedure to Determine Eligibility

Scction 5 ofthc IRA provides thc Secretary discretionary authoriry to acquire any intcrcst in lands for the purpose ofproviding lands in trust for Indians.r? Section l9 defines "lndian" in relevant part as including the following three catcgories:

[Category 1] all persons oflndian descent who are members ofany recognized Indian tnbe now under Federal jurisdiction, and [Category 2] all persons who are descendants of such members who were, on Junc 1, 1934, residing within the present boundaries of any Indian reservation, and shall further include [Category 3l all other persons ofone-halfor more lndian b1ood.r8

To guide the implementation of the Secretary's discretionary authority under Section 5 after Carcieri, the Department in 2010 prepared a two-part procedure for determining when an applicant tribe was 'hnder federal jurisdiction" in l934.le The Solicitor of the Interior (Solicitor) later memorialized the Department's interpretation in Sol. Op. M-37029 _20 Despite this, however, uncertainty persisted over what evidencc could be submitted for the inquiry and how the Department would weigh it, prompting some tribes to devote considerable resources to rescarching and collecting any and all forms ofpotentially relevant cvidence, in somc cases leading to submissions totaling thousands ofpages. To address this uncertainty, in 2018 the Solicitor's Of{ice began a review ofthe Department's eligibility procedures to provide guidance for determining relevant evidence. This prompted questions concerning Sol. Op. M-37029's interpretation ofCategory 1, on which its eligibility procedures relied. This uncertainty prompted the Solicitor to review Sol. Op. M-37029's two-part procedure for determining eligibility under Category l, and the interpretation on which it relied.

On March 9,2020, the Solicitor withdrew Sol. Op. M-37029. The Solicitor concluded that its interpretation ofCategory I was not consistent with the ordinary meaning, stahltory context, legislative history, or contemporary administrative understanding ofthe phrase "recognized Indian tribc now under fcdcral jurisdiction."2l In its place, the Solicitor issued a new, four-step

r7 25 u.s.c- $ 5108. t8 25 U.S.C. $ 5129 (bracketed numerals added). re U.S. Dcpt. ofthe Interior, Assistant Secretary tndian Affairs, Record ofDecision,Trust Acquisitioh oJ, and Reservation Proclamdtionfol lhe 151.97-acre Cowlitz Parcel in Cldrk County, llashington, for the Cowlitz lkdian Tribe at'77-106 (Dec. 17, 2010) (hereafter "Cowlitz ROD"). See a/so Memorandum from the Solicitor to Regional Solicitors, Field Solicitors, and SOL-Division of lndian Affain, Checklist for Solicitor's OIfice Review ofFee-to- Trust Applications (Mar. 1 ,2O14), rc.,'ised (Jan.5,2017). Sol. Op. M-37029, The 'Under 'zo Meaning of Federql Jurisdictiofi' for Purposes of the Indian Reorganization Act (Mar. 12, 2014) (hereafter "M-37029"). 'l Sol. Op, M-37055 , Wilhdrawal of M-37029, The Meaning of 'under Federal Jurisdiction' for purposes of the Indian Reorgonization Act (Mat. 9, 2O2O).

J procedure for determining eligibility under Category I to be used by attorneys in the Office of the Solicitor (Solicitor's Office). 22

At Step one, the Solicitor's office determines whether or not congress enacted legislation after 1934 making the IRA applicable to a particular tnbe. The existence ofsuch authority makes it unnecessary to determine if the tribe was "under federal jurisdiction" in 1934. In the absence of such authority, thc Solicitor's Officc procecds to Step Two.

Step Two determincs whcther the applicant tribs was under fedcraljurisdiction in 1934, that is, whether the evidence shows that the federal government exercised or administered its responsibilities toward lndians in 1934 over the applicant tribe or its members as such. Ifso, the applicant tribe may be deemed eligible under category I without further inquiry. The Solicitor's Guidance describes types ofevidence that presumptively demonstrate that a tribe was under federaljurisdiction in 1934. ln the absence ofdispositive evidence, the inquiry proceeds to Step Three.

Step Three determines whether an applicant tribe's evidence sufficiently demonstrates that the applicant tribc was "recognized" in or bcforc 1934 and remaincd under jurisdiction in 1934. The Solicitor determined that the phrase "recognized Indian tribe" as used in category I does not have the same mcaning as the modem concept of a "fcderally rccognized,, (or ,.federally acknowledged") tribe, a concept thar did not evolve until the 1970s, after which ir was incorporated in thc Departmcnt's federal acknowlcdgment proccdures.2l Based on thc Department's historic understanding ofthe term, the Solicitor interpreted "recognition" to refer to indicia ofcongressional and executive actions either taken toward a tribe with whom the United States dealt on a more or less government-to-government basis or that clearly acknowledged a trust responsibility consistent with the evolution of federal Indian policy. The Solicitor identificd forms ofevidence that cstablish a rebutrablc prcsumption that that an applicant tnbe was "recognized" in a political-legal sense before 1934 and remained under federal jurisdiction in 1934. In the absencc ofsuch evidence, thc inquiry finally movcs to Step Four. step Four assesses the totality olan applicant tribe's non-dispositive evidence to determine whethcr it is sufficient to show that a tribe was "recognized" in or before 1934 and rcmained "under federal jurisdiction" through 1934. Given the historical changes in federal Indian policy over time, and the corresponding evolution ofthe Department's responsibilities, a one-size-fits- alI approach for evaluating the totality of a tribal applicant's evidence is not possible or desirable. Attorneys in the Solicitor's oflice must evaluate the evidence on a case-by-case basis within the context ofa tribe's uniquc circumstances, and in consultation with the Deputy Solicitor for Indian Affairs and the Associate Solicitor, Division of Indian Affairs.

21 Pro"edure for Determining Eligibilityfor Land-into-Trust undet the First Delinitio of "Indian" in Section 19oJ the Indian Reorgqnization Act,Memorarldum fiom the Solicitor to Regional Solicitors, Field Solicitors, and SOL- Division oflndian Affairs (Mar. 10, 2020) (soliciror's Guidaoce). 'zr 25 C.F.R. Part 83.

1 To further assist Solicitor's Office attorneys in implementing this four-step procedure by understanding the statutory interpretation on which it relies, the Solicitor's Guidance includes a memorandum24 detailing the Department's rcvised interprctation ofthe meaning of the phrases "now under lederal jurisdiction" and "recognized Indian tribe" and how they work together.

B. The Meaning of the Phrase "Now Under Federal Jurisdiction."

l. Statutory Context.

The Solicitor first concluded that the phrase "now under federal jurisdiction" should be read as modifizing the phrase "recognized Indian tribe."2s The Supreme Cotrt in Carcierl did not identifu a temporal requirement for recognition as it did for being under federal jurisdiction,26 and the majority opinion focused on the meaning of"now" without addressing whether or how the phrase "now under federal jurisdiction" modifies the meaning of"recognized lndian tribe."27 In his concurrence, Justice Breyer also advised that a trib e rccognized, after 1934 might nonetheless have been "under federal jurisdiction" in 1934.28 By "recognized," Justice Breyer appeared to mean "federally recognized"2e in the formal, political sense that had evolved by the 1970s, not in the sensc in which Congrcss likely understood the term in 1934. He also considered how "later recognition" might reflect earlier "Federal jurisdiction,"30 and gave examples oftribes federally recognized after 1934 with whom the Unitcd States had negotiated treatics before 1934.3r Justice Breyer's suggestion that Category I does not precludi eligibility for tribes "federally recognized" after 1934 is consistent with interpreting Category 1 as requiring evidence of federal actions toward a tribe with whom the United States dealt on a more or less sovereign-to-sovereign basis or for whom the federal govemment had clearly acknowledged a trust responsibility in or before 1934, as the example ofthe Stillaguamish Tribe oflndians of Washington ("stillaguamish Tribe") shows.32 It is also consistent with the Department,s policies that in order to apply for trust-land acquisitions under thc IRA, a tribe must appear on the official list of entities federally recognized as eligible for the special programs and services provided by the United Statcs to Indians because oftheir status as such.33

2a Determining Eligibility under the First Definition of "lndian" in Section l9 of the Indian Reorganizdtion Act of 19J4, Memorandum fiom the Deputy Solicitor for Indian Affairs to the Solicitor (Mar. 5, 2020) ("Deputy Solicitor's Memorandum"). 25 Deputy Solicitor's Mcmorandum at 19. See also Cty. of Amador v. United States Dep\ of the Interior. 8'12 F.3d ,,jurisdictior,, 1012, 1020, n. 8 (9'h Cir. 2017) (Carcieri leaves open whether "recognition" and requirements axe distinct requiremedts or comprise a single requirement)- 26 Carcieri at 382-83. 21 lbid. (Brcyer, '?3 Id at 398 J., concurring). 2e lbid. 30 ld- at 399 (Breyer, J., concurring). rr 1d. at 398-99 (Breyer, J., concurring) (discussiag Stillaguamish Tribe, Grand Traverse Band of Ottawa and Chippewa Indians, and Mole Lake Chippewa Indians). 12 lbid. 13 pub. Fcderally Recognizcd lndian Tribe List Act of 1994, tit. t, g 104, L. 103-454, 108 Stat. 4791 , codificd at 25 U.S.C. $ 5l3l (mandating annual publication of list ofall lndian tribes recognized by Secretary as eligible for the special programs and services providcd by the United States to Indians because of their status as Indians). The Department's lard-into-trust regulations incorporate the Department's official list offederally recognized tribe by reference. See 25 C.F.R. Q I51.2-

5 The Solicitor noted that Category l's grammar supports this view. The adverb "now" is part of the prepositional phrase "under federaljurisdiction,"3a which it temporally qualifies.r5 Prepositional phrascs function as modifiers and follow the noun phrase that they modifu.r6 Category 1 's grammar therefore supports interpreting the phrase "now under federal jurisdiction" as intended to modiff "recognized Indian tribe." This interpretation finds further support in the IRA's legislative history, discussed below, and in Commissioner of Indian Affairs John Collier's statement that the phrase "now under federal jurisdiction" was intended to limit the IRA's application.rT This suggests Commissioner Collier understood the phrase 'how under federal jurisdiction" to limit and thus modi|l "recognized Indian tribe." This is further consistent with the IRA's purpose and intent, which was to remedy tho harmful effects of allotment.3s These included the loss oflndian lands and the displacement and dispersal of tribal communities.se Lacking an official list of"recognized" tribes at the time,ao it was unclear in 1934 which tribcs remained under federal supervision. Because the policies of allotment and assimilation went hand-in-hand,ar left unmodified, the phrasc "recognized Indian tribe" could includc tribes disestablished or terminated before 1934.

11 The Confederated Tribes ofthe Gla d Ronde Community of Oregon v. Jewell,830 F.3d 552,560 (D.C. Cir. 2016).The Grand Rolde court found "the more difficult question" to be which part ofthc cxpression "recognizcd Indian tribe" the prepositional phrase modified. Ibid. Thc court concluded it modified only the word 'lribe" "before its modification by thc adjective 'rccogr\ized.."' Ibid. But the court appcars to have understood "recognized" as used in the lI{A as meani[g "federally recognizcd" in the modem sense, without considering its mcaning in historical context. ri H. C. House and S.E.}].arman, Descriptiye English Grannar at 163 (New York: Prentice-IIall, Inc. 1934) (hcreafter "House and Harman) (adverbs may modifu prcpositional phrases). 16 L. Beason and M. Lester. A Commonsense Guide to Grammar and Usage (7th ed.) ar 15- 16 (2015) ("Adjective prepositional phrases are always locked into position following the nouns they modifu."); see a/so J. E. Wells, Practicdl Review Gremmar (1928) at 305. A noun phrase consists of a noun and all ofits modifiers. 1d. at 16. 37 Sen. Hrgs. at 266 (statement of Commissioner Colli er). See also Carcieri, 555 U.S. at 389 (citing Letter from John Collier, Commissioner, to Superintendents (Mar. 7, 1936) ([fRA Scction l9] provides, in cffect, that the term '[ndian' as used therein shall include (l) all persons oflndian descent who arc members ofany recognized tribe that was under Federal jurisdiction at the date ofthe Act * + +") (emphasis added by Suprcme Court))l Cty. ol Anador,8'72 F.3d, at 1026 (""under f'ederal jurisdiction" should be read to limit the set of "recognized Indian tribes" to those tribcs that already had soze sort of significant relationship with the fcderal govemment as of 1934, even if those tribes wcrc not yet "recognized" (cmphasis original)); Grand Ronde,830 F.3d at 564 (though thc IRA's jurisdictional nexus was intended as "some kind of limiting principlc," preciseiy how remaincd unclear). 38 Readjustment o!.lndian ,4ffairs. Hearings before the Committee on htdian Alfairs, House of Representatives, Sewn\,-Third Congress, Second Session, on H.R. 7902, A Bill To Grant To Indians Living lJnder Federal Tutelage The Freedom To Organize For Purposes Of Local Self-Government lnd Economic Enletprise; To Provide For The Necessary Training Oflnclians In Administative And Economic A/fairs; To Consente And Develop Indian Lands; And To Promote The More EJJbcttue ldministration OfJustice In Matters Atfecting Indtan Tribes And Communities By Establishing A Federal Court Of Indian Affoirs, 73d. Corrg. at 233-34 (1934) (hereafter "H. Hrgs.") (citing Leuer, President Fmnl

6 2. Statutory Terms.

The Solicitor concurred with the Deputy Solicitor's conclusion that the expression "now under federal jurisdiction" in Category I cannot reasonably be interpreted as synonymous with the sphere ofCongress's plenary authority and is instcad better interprcted as referring to tribes with whom the United States had clearly dealt on or a more or less sovereign-to-sovereign basis or as to whom thc United States had clearly acknowlcdged a trust responsibility in or bcfore 1934. a2

The contemporaneous legal definition of'Jurisdiction" defined it as thc "power and authority" of the courts "as distinguished from the other departments."4r The legal distinction between judicial and administrative jurisdiction is significant. Further, because the statutory phrase at issue here includes more thanjust the word 'Jurisdiction," its use ofthe preposition "under" sheds ..under,' additional light on its meaning. In 1934, BLACK's LAw DrcrroNAny dehned as most frequently used in "its secondary sense meaning of inferior' or'subordinate.'44 It defined 'Jurisdiction" in terms of"power and authority," further defining "authority" as used..Ii]n govemment law" as meaning "the right and powcr ofpublic officers to require obedience to thcir orders lawfully issued in the scope of their public duties."as

Congress added the phrase "under federal jurisdiction" to a statute designed to govem the Department's administration oflndian affairs and certain benefits for Indians. Seen in that tight, these contemporaneous definitions support interpreting the phrase as referring to the federal govemment's exercisc and administration of its responsibilities for tndians. Further support for this interpretation comes from the IRA's context. Congress enacted the IRA to promote tribal self-govemment but made the Secretary responsible for its implementation. Interpreting the phrase "now under federal jurisdiction" as modifying "recognized Indian tribe" supports the interpretation of'Jurisdiction" to mean the continuing administration of federal authority over Indian tribes already "recognized" as such. The addition of the temporal adverb "now" to the phrase provides further grounds for interpreting "recognized" as referring to ap revious exercise of that same authority, that is, in or beforc 1934.46

3. Legislative History.

The IRA's legislative history lcnds additional support for interpreting "now under federal jurisdiction" as modifuing "recognized Indian tribe." A thread that runs throughout the IRA's legislative history is a conccm for whether the Act would apply to Indians not then under federal supervision. On April 26,1934, Commissioner Collier informed members of the Senate

a2 See Deputy Solicitor's Memorandum at 9. 4r BI-ACK's LAw DrcrroNARy at 1038 (3d cd. 1933) (hereafter .,BLACK,s',). a BLAcK's at 1774. a5 BLecr's at 171 . It separately defines "subject to" as meaning "obedient to; govemed or affected by.', a6 Our interpretation of"now under federal jurisdiction" does not require federal officials to have been aware ofa tribe's circumstances or jurisdictional status in 1934. As expiained below, prior to M-37029, the Department long understood the term "recognized" to refer to political or administrative acts that brought a tribg under federal authority. we interprct "now under fcderal jurisdiction" as referring to the issue ofwhether such a "recognized" tribe maintained its jurisdictional status in 1934, i.e-, whether federal tmst obligations remained, not whether particular officials were cognizant ofthose obligations.

7 Committee on Indian Affairs ("Senate Committee") that the original draft bill's definition of "Indian" had been intended to do just that:47

Senator TIIoMAS of Oklahoma. (....) In past years former Commissioners and Secretaries have held that when an Indian was divcsted ofproperty and money in effect under the law he was not an Indian, and because ofthat numerous Indians have gone from under the supervision of the lndian Office.

Commissioner CoLLIER. Ycs.

Senator THOMAS. Numerous tribes have been lost (. . ..) It is contemplated now to hunt those Indians up and give them a status again and try do to something for them?

Commissioner Colrtsn: This bill provides that any Indian who is a member ofa recognized [ndian tribe or band shall be eligible to [slc] Government aid.

Senator THoMAs. Without regard to whether or not he is now under your supervision?

Commissioner CoLLIER. Without regard; yes- It definitely throws open Government aid to those rejected Indians.as

The phrase "rejected Indians" rcferred to lndians who had gone out from undcr federal supervision.ae In Commissioner Collier's view, the IRA "does definitely recognize that an Indian [that] has bcen divested ofhis propcrty is no reason why Uncle Sam does not owc him something- It owes him more."50 Commissioner Collier's broad view was consistent with the bill's original stated policy to "reassert the obligations ofguardianship where such obligations have been improvidently relaxed."5 r

On May 17, 1934, the last day ofhearings, the Senate Committee continued to express concerns over the breadth of the bill's definition of"Indian," returning again to the draft definitions of a7 To Grant to Indians Living Undel Federal Tutelage the fi,eedom to Organize for Purposes of Local Se(- Government and Economic Enterprise: Hedrings on S. 2755 and S. 3645 Before the S- Comm. on Indian Affairs, 73rd Cong- at 80 (Apr. 26, 1934) (tereafter "Sen. Hrgs."). See also The Confederated Tibes ofthe Grand Ronde Community of Oregon v. Jewell,75 F.Supp.3d at 387, 399 (D.D.C.2014) affu 830 F.3d 552 (D.C. Cir. 2016) (noting same). a3 Sen. Hrgs. at 79-80 (Apr.26, 1934) (emphasis added). 49 See LEWIS MERIAM, THE INSTITU-IE FoR GoVT. RTSEARCH, STLIDIES IN ADM0{TSTRATI0N, THE PROBLEM oF INDIAN ADMINISTRATION at 763 (1928) (hcrcafter "MERIAM Rr.poRr") (noting that issuancc ofpatents to individual Indians under Dawes Act or Burke Act had "the effect ofremoving them in part at least from the jurisdiction ofthe national govemment"). See also Sen. Hrgs. at 30 (statement of Commissioner Collicr) (discussing the rolc the Allotment Policy had in making approximately 100,000 Indians landless). 50 Sen. Hrgs. at 80. 5i H.R. 7902, tit. ttl, $ I. See Sen. Hrgs. at 20 ("The bill does not bring to an cnd, or imply or contcmplate, a cessation ofFederal guardianship and special Federal service to Indians. On the conhary, it makes permanent the guardianship services, and reasscrts them for those Indians who have been made landless by the Govemment's own acts.").

li "lndian" as they stood in the committee print. Category I now defined "Indian" as persons of Indian descent who were "members ofany recognized Indian tribe."s2 As on previous days,5l Chairman Wheeler and Senator Thomas questioned both the overlap between definitions and whether they would include Indians not then under federal supervision or persons not otherwise "lndian."5a

Thc Scnate Committee's conccms for thesc issucs touchcd on other provisions ofthe IRA as well. The colloquy that precipitated the addition of"now under federal jurisdiction" began with a discussion ofSection 18, which authorized votes to rcject the IRA by Indians rcsiding on a reservation. Senator Thomas stated that this would exclude "roaming bands" or "remnants ofa band" that are "practically lost" like those in his home state of Oklahoma, who at the time were neither "registered," "enrolled," "supervised," or "under the authority ofthe Indian Office."s5 Senator Thomas felt that "Ifthey are not a tribe ollndians they do not come under [the Act]."s6

5r Scn. Hrgs. at 234 (citing committee print, $ l9). The reviscd bill was renumbered S.3645 and introduced in the Scnate on May 18,1934. Tribal Self-Government and the lndion Reorgohization .4ct of 19j4,10 MICH. L. REv. 955, 963 n. 5 5 ( 1972) (hereafter "Tribal Self-Government") (citir\E'] 8 CoNc. REC. 907I ( 1934). S. 3645 which, as amended, became the IRA, differcd signiflcantly from H.R. 7902 and S.2755, and its changes resulted from discussions berween Chairman Wheeler and Commissioncr John Collicr to resolve and eliminate the main points in controvcrsy. Sen. Hrgs. at 237- The Senatc Committee reportcd S. 3645 out four days after its reintroduction, 78 CONC. Rlic. 9221, which the Senate debatcd soon after. Thc Scnalc passcd the bill on June 12,1934. Id. at lll39. Thc Housc bcgan debate on June 15. Id. at 11724-44. H.R. 7902 was laid on thc table and S. 3645 was passed in its placc thc samc day, with some variations. 1r/. A conferencc committee was then fomed, which submitted a rcport on June 16. /r,/. at 12001-04. The House and Scnatc both approvcd thc final version on June 16. Id. at 12001-04, 12161- 65, which was presented to the Prcsident and signcd on Junc I8, I934. /d at 12340, 12451. See genera$ Tribal Self-Government at 961 -63. t! See, e.g., Sen. Itrgs. at 80 (remarks of Senator Elmer Thomas) (questioning whether bill is interded to extend benefits to tribes not now under federal supervision); irrid. (rcmarks of Chairman Wheeler) (questioning degree of Indian dcscent as drafted); id. at 150-151; rd. at 164 (questioning federal responsibilities to existing wards with minimal lndian descent). 5' See, e.g.. Sen. Hrgs. at 239 (discussing Sec. 3 ), 254 (discussing Sec. l0), 261-62 (discussing Sec. I 8), 263-66 (discussing Scc. l9). 55 Scn. Hrgs. at 263. '6 /6rd. By 'tribe," Scnator Thomas hcre may have mcant thc Indians residing on a reservation. A similar usage appcars earlier in the Committee's discussion of Section I 0 af thc committee print (enacted as Scction l7 of thc IRA), Scn. Hrgs. at 250-55. Section l0 originaily requircd chaficrs to be ratified by a vote ofthe adult Indians residing within "the territory specified in the chaner." 1d at 232. Chairman Wheeler suggested using ..on the resqrvation" instead to prevent "any small band or group of lndians" to "come in on the reservation and ask for a chaner to takc over tribal property." 1d. at 253. senator Joseph o'Mahoney recommended the phrase "within the tcrritory ovcr which the tribc hasjudsdiction" instead, prompting Scnaror Peter Norbeck ro ask what'.tribc', mcant-"ls that the resewation unit?" 1d at 254. Commissioncr Collicr then read from Section 19, which at that time dcfincd "tribe" as "any tndian tribc, band, nation. pueblo. or other nativc political group or organization," a dcfinition thc Chairman suggested he could not support. /6id As ultimately enactcd, Section l7 authorizes thc Secrctary to issue chartcrs ofincorporation to "onc-third of the adult Indians" ifratified, however, "by a majority votc ofthc adult Indians living on the reservation."

9 Chairman Wheeler conceded that such Indians Iacked rights ar the time, but emphasized that the purpose of the Act was intended "as a matter of fact, to take care of the Indians that are taken care of at the present time,"57 that is, those lndians then under fcderal supervision.

Acknowledging that landless Indians ought to bc provided for, Chairman Whcclcr questioned how the Department could do so if they were not "wards of the Government at the present time."58 When Scnator Thomas mentioned that thc Catawbas in South Carolina and the Seminoles in Florida were'Just as much Indians as any others,"5e despite not then being under federal supervision, Commissioner Collicr pointcd out that such groups might still come within Category 3's blood-quantum criterion, which was then one-quarter.60 After a brief digression, Senator Thomas asked whether, ifthe blood quantum were raised to one-half, Indians with less than one-halfblood quantum would be covered by the Act with respect to their trust property.6r Chairman Wheeler thought not, "unless they are enrolled at the present time."62 As the discussion tumed to Scction 19, Chairman Wheclcr retumed to the blood quantum issue, stating that Category 3's blood-quantum criterion should be raised to one-half, which it was in final version ofthc Act.63

Scnator Thomas thcn noted that Category I and Catcgory 2, as drafted, wcrc inconsistent with Category 3. Category I would include any person of"lndian descent" without regard to blood quantum, so long as thcy were membcrs of a "recognizcd Indian tribe," whilc Category 2 included their "descendants" residing on a reservation.e Senator Thomas observed that under these definitions, persons with remote Indian ancestry could come under the Act.65 Commissioner Collier then pointed out that at least with respect to Category 2, the descendants would have to reside within a reservation at the present time.66

After asides on the IRA'S effect on Alaska Natives and the Secretary's authority to issue patcnts,6T Chairman Whceler finally tumed to thc IRA's definition of "tribe,"68 which as then drafted included "any Indian tribe, band, nation, pueblo, or other native political group or organization."6e Chairman Wheelcr and Senator Thomas thought this definition too broad.70 Senator Thomas asked whether it would include the Catawbas.Tl most ofwhose members were

57 lbid. 5" Ibid. 5e lbid. q tbid- 61 ld. at2&. 62 lbid. 6r /6il. (statement of Chairman Burton Wheeler) ('You will find here [i.e., Section 19] later on a provision covering just what you have reference to."). @ Id. at 264-65. 65 Id. at 264. 66 lbid. 61 Id. at 265. 63 tbid. at265. 6e Compare Set Hrgs. at 6 (S. 2755, g l3(b)), with id. at 234 (committee print, g l9). The phrase "native political grcup or organization" was later removed. 'o Sen. Hrgs. at 265. 1t lbid.

IO thought to lack sufficrent blood quantum under Category 3, but who descended from tndians and resided on a state reservation.T2 Chairman Wheeler thought not, ifthey could not meet the blood- quantum requirement.T3 Senator O'Mahoncy fiom Wyoming then suggcstcd that Categories I and 3 overlapped, suggesting the Catawbas might still come within the definition ofCategory I sincc they wcre of Indian dcscent and they "certainly are an Indian tribc."7a

Chairman Wheeler appcarcd to conccdc, admitting there "would have to [bc] a limitation after the description ofthe tribe."75 Senator O'Mahoney responded, saying "lfyou wanted to exclude any of them [from the Act] you ccrtainly would in my judgment."76 Chairman Wheelcr proceeded to express concems for those having little or no Indian descent being "under the supervision ofthe Govemment," persons he had earlier suggested should be excluded lrom the Act.7r Apparently in response, Senator O'Mahoney then said, "If I may suggest, that could be handled by some separate provision excluding from the act certain types, but [it] must have a gcneral definition."T8 lt was at this poinr that Commissioner Collier, who attended the moming's hearings with Assistant Solicitor Felix S. Cohen,Te asked

Would this not meet your thought, Senator: After the words 'recognized Indian tribe' in linc I inscrt'now under Federal jurisdiction'? That would limit the act to the Indians now under Federal jurisdiction, except that other Indians of morc than onc-half [ndian blood would get help.80

Without furthcr explanation or discussion, thc hcarings adjoumcd.

The tRA's legislative history does not unambiguously explain what Congress intended "now under federal jurisdiction" to mean or in what way it was intended to limit the phrase "recognized Indian tribe." However, the same phrase was used in submissions by the Indian Rights Association to the House of Representatives Committee on Indian Affairs ("House Committee"), where it described "lndians under Federal jurisdiction" as not being subject to Statc laws.8l Variations ofthc phrasc appcared elsewherc, as well. ln a memorandum dcscribing the draft IRA's purpose and operation, Commissioner Collier stated that under the bill, the affairs of chartcrcd Indian communities would "continue to be, as they are now, subject to Fcderal jurisdiction rather than State jurisdiction."82 Commissioner Collier elsewhere relerred to various wcstcm tribes that occupied "millions ofcontiguous acres, tribally owncd and ander exclusive

17 Id. at 266- The Cztawbas at the time resided on a reservation established for their benefit by the State of Soudr Carolina. See Catawba lndians of South Carolina, Scn. Doc. 92, 7l st Cong. (1930). 1t Id. at 264- 14 Id. at 266. 1t lbid. at 266. 76 /lrid Nevcrtheless, Senator 0'Mahoney did not understand why the Act's benefits should not be extended "ifthey are living as Catawba Indians." 11 lhid. 18 lbid. 7e Id. at 231. 80 Id. ar 266. 8r H. Hrgs. at 337 (statement ofJohn Steere, President, lndian fughts Association) (n.d.). 32 /d. at 25 (Memorandum fiom Commissioner John Collier, The Purpose and Operation of the llheeler-Howard lndian Rights Bill (5.2755; H.R.7902) (Feb.l9, 1934) (emphasis added)), 1l Federal jurisdiction."s3 Assistant Solicitor Charles Fahy, who would later become Solicitor General of the United States,sa described the constitutional authority to regulate commerce with the Indian tribes asbeing"within the Federaljurisdiction and not with the States' jurisdiction."ss These uses of "federal jurisdiction" in the governmental and administrative senses stand alongside its usc throughout thc legislative history in relation to courts specifically.

The IRA's legislativc history elscwhere shows that Commissioner Collier distinguished betwcen Congress's plenary authority generally and its application to tribes in parricular contexts. He notcd that Congrcss had delegated "most of its plcnary authority to the Interior Department or the Bureau of Indian Affairs," which he further described as "clothed with the plenary power."86 But in turning to the draft bill's aim of allowing tribes to take responsibility for their own affairs, Commissioner Collier referred to the "absolute authority" ofthe Department by reference to "its rules and regulations," to which the Indians were subjected.sT Indeed, even before 1934, the Department routinely uscd thc term 'Jurisdiction" to refer to the administrative units ofthc OIA having direct supervision of Indians.88

Construing 'Jurisdiction" as meaning govemmental supervision and administration is further consistent with thc tcrm's prior use by the federal govemment. In 1832, for example, the United States by treaty assured the Creek Indians that they would be allowed to govem themselves free of the laws of any Statc or Territory, "so far as may be compatible with the general jurisdiction" of Congress over the Indians.se ln The Cherokee Tohacco cases, the Supreme Court considered the conflict between subsequent Congressional acts and "[t]reaties with lndian nations within the jurisdiction of the United States."e0 In considering the l4th Amendment's application to lndians,

8r Id. at 184 (statemcnt ofCommissioner Collier) (Apr. 8. 1934). 8r Assistant Solicitor Fahy served as Solicitor General ofthe United States from l94l to 1945. See https://www justice. gov/osg/bio/charles-fahy. rs 1d. at 319 (statement ofAssistant Solicitor Charl€s Fahy). 36 1d. a1 37 (statcment of Commissioner Collier) (Feb. 22, 1934\. 81 lbid. at37 (siatemcnt ofCommissioner Collier) (Feb. 22, 1934\. 88 See, e.g., U.S. Dcpt. of the Interior, Office of tndian Affairs, Circ. No. I53 8, Annual Report and Ccnsus ("ARCIA), I 91 9 (May 7, I 9l 9) (directing Indian agents to enumcrate the Indians rcsiding at their agcncy, with a separate rcport to be madc ofagency'hnder lthe agcot's] jurisdiction"); Circ. No. 3011, Statement ofNew [ndian Service Policies (Jul. 14, 1934) (discussing organization and operation ofCenaal Officc rclated to "jurisdiction administations," i. e., ficld opcrations); ARCIA for 1900 at 22 (noting lack of 'Jurisdiction" over Ncw York Indian students); d at 103 (reporting on matters "within" jurisdiction of Speciat Indian Agent in the tndian Territory); id. at 396 (describing reservations and villages covered byjurisdiction ofPuyallup Consolidated Agercy); MERTAM REPoRT at 140-41 ("[W]hat strikcs the careful observcr in visiting Indian jurisdictions is not their uniformity, but their diversity. . .Because oI this diversity. it seems imperativc to rccommend that a distinctivc program and policy be adopted for each jurisdiction, especially lfied to its nccds."); Sen. Hrgs. at 282-98 (collccting various comments and opinions on the Whcclcr-Howard Bill from tribes from different OIA "jurisdictions"). 3e Treaty of March 24. I832, art. XtV,7 Stat.366,368. See a/so Act of May 8, 1906,34 Stat. 182 (lands allotted to Indians in trust or restricted status to remain "subject to the exclusive jurisdiction ofthe United Srates" until issuance of fec-simple patents)- q The Cherokee Tobacco,'18 U.S. 616, 621 ( l87O). The Court further held that the consequences of such conflicts give risc to political questions "beyond the sphere ofjudicial co gr\izarce." lbid. t2 the Supreme Court in E/k v. Wilkins also construed rhe Constitutional phrase, "subject to the jurisdiction of the United States," in the sense of govemmental authority:er

The evident meaning ofthese last words is, not merely subject in some respect or dcgree to thejurisdiction ofthc United States, but completely subjcct to their political jurisdiction, and owing them direct and immediate allegiance.e2

The terms ofCategory I suggest that the phrase "under federal jurisdiction" should not be interpreted to rcfer to the outer limits ofCongress's plenary authority, since it could cncompass tribes that existed in an anthropological sense but with whom the federal government had never exercised any relationship. Such a result would be inconsistent with the Department's understanding of "recognized Indian tribe" at the time, discussed below, as referring to a tribe with whom the United States had clearly dealt on a more or less sovereign-to-sovereign basis or for whom the federal government had clearly acknowledged a trust responsibility. lf "under federal jurisdiction" is understood to refer to the application and administration ofthe federal government's plenary authority over Indians, then the complete phrase "now under fcdcral jurisdiction" can further be sccn as resolving the tension between Commissioner Collier's desire that the IRA include Indians "[w]ithout regard to whether or not [they are] now under [fcdcral] supervision" and the Senatc Committee's concem to limit the Act's coverage to Indian wards "taken care of at the present time."e3

C. The Meaning of the Phrase "Recognized Indian Tribe."

Today's concept of"federal recognition" merges the cogrritive sense of"recognition" and the political-legal sense of'Jurisdiction." As Carcieri makes clear, however, the issue is what Congress meant in 1934, not how the concepts may have later evolved.ea Congress's authority to recognize Indian tribes flows from its plenary authority over Indian affairs.es Early in this country's history, Congress charged the Secretary and the Commissioner of lndian Affairs with responsibility for managing Indian affairs and implementing general statutes enacted for the

et Elk v. Wilkins, I 12 U. S. 94, 102 ( I 884). See a/.so United States v. Ramsa1,. 271 U.S. 470 ( 1926) (rhe conferring of citizenship does not make Indians subject to laws ofthe states). e. tbid. e] Scn. Hrgs. at 79-80, 263. The district coun in Grard nonle noted these confadictory views. Gntnde Ronde,7 5 l-.Supp.3d at 399-400. Such vicws wcre expressed whilc discussing drcfts ofthc IRA that did not include the phrase "now under federal jurisdiction." q{ M-37029 at 8, n. 5'l (citing Dileclol, Olfice of'Workers' Compensation Programs y. Greenwich Collieries, 512 U.5.267,212 (1994) (in thc absence of a statutory definition of a term, the court's "'task is to construc it in accord with its ordinary or natural meaning."); id at 275 (the coun'!resume[s] Congress intcnded the phrase lcontaining a lcgal terml to have the meaning generally acccptcd in the legal community at the timc of enactment.")). et LJnited States v. Weeler, 435lJ.S.313, 319 ( 1978) (citiILg Lone llolf v. Hitchcock,l8T U.S. 553, 565 (1903) ("Plcnary authority over the tribal relations ofthe Indians has been exercised by Congress from the beginning, and the power has always been deemed a political one, not subject to be controlled by thejudicial department ofthe govemment."))-

13 benefit of Indians. e6 Because Congress has not generally defined "lndian,"e7 it left it to the Secretary to determine to whom such statutes apply.e8 "Recognition" generally is a political question to which thc courts ordinarily dcfer.ee

Relying on the analysis contained in thc Deputy Solicitor's Mcmorandum, the Solicitor concluded that "recognition" as used in the IRA refers to actions taken by appropriate federal officials toward a tribe with whom the United States clearly dcalt on a more-or-lcss sovereign-to- sovereign basis or for whom the federal govemment had clearly acknowledged a trust rcsponsibiliry in or before 1934.

l. Ordinary Meanitrg.

The 1935 edition of WrssrER's NEw INTERNATToNAL DrCTro\-ARy first defines the verb "to recognize" as meaning "to know again (...) to recover or recall knowledge of."l00 Most ofthe remaining entries focus on the legal or political meanings ofthe verb. These include, "To avow knowledge of (...) to admit with a formal acklowledgment; as, to recognize at obligation; to recognize a consul"; Or, "To acknowledge formally (...); specif: (...) To acknowledge by admitting to an associated or privileged status." And, "To acknowledge the indepcndcnce of(...) a community (...) by express declaration or by any overt act sufficiently indicating the intention to recognize."l0r These political-legal understandings seem consistcnt with how Congress used e6 25 U.S.C. $ 2 (charging Commissioncr oflndian Affairs with management ofall tndian affairs and all matters arising out of Indian rclations); 43 U. S.C. {i I45 7 (charging Secretary with supervision of public busincss rclating to lndians); 25 U.S.C. $ 9 (authorizing Prcsidcnt to prescribe regulations ior carrying into effect the provisions ofany act relating to Indian affair:). See a/so H. Hrgs. at 37 (remarks ofCommissioner Collier) ("Congress through a long series ofacts has dclcgated most ofits plenary authority to the [nterior Dcpartment or the Bureau of Indian Affairs, which as instrumentalities ofCongress are clothed with the plenary power, an absolutist power"); id. at 5l (Memorandum ofCommissioner John Collier) (providing sratutory examplcs of"the broad discrctionary powers conferred by Congress on administrative officers of the Government"). e7 U. S. Dept. o f thc Intcrior, Commissioner o f Indian Affairs, "lndian Wardship," Circular )io. 295 8 (Oct. 28, 1933 ) ('No statutory dcfinition seems to exist ofwhat constitutes an Indian or of what Indians are wards of thc

Memorandum tiom Thomas W. Fredericks, Associate Solicitor, Indian AfthiE, to Acting Deputy Commissioner of lndian Affairs (Dec. 4, 1978) ("there exists no universal definition of"lndian"). See d/so Letter ftom Kenl Frizzell, Acting Secretary ofthc Interior, to David H. Cetches, Esq. on behalfofthe Stillaguamish Tribe, at 8-9 (Oct. 27, 1976) (suggesting that "recognized Indian tribc" in lR { l9 refcrs to tribes that wcre "administratively .ccognized" in 1934). eB Secretdry's -,lulhority to Extend Federal Re.ognition to lndian Tribes,Memorandum from Reid P. Chambers. Associate Solicitor, Indian Affairs to Solicitor Kcnt Frizzcll, at I (Aug. 20, 1974) (hereafter "Chambers Memo") ('1he Secretary, in carrying out Congress's plan. must first determine, i.e., recognize. to whom [a statute] applies"); Lctter from LaFollctte tsutler, Acting Dep. Comm. of lndian Affairs to Sen. Hcnry M. Jackson, Chair, Scnate Committee on Interior and Insular AffaiE at 5 (Jun. 7, 1974) (hereafter "Butler Letter") (same)i Dobbs v United Srales, 33 C1. CI. 308, 3 I5- l6 ( 1898) (recognition may be effected "by thosc ofTicers of the Govemmcnt whose duty it was to deal with and report the condition ofthe Indians to the executive branch ofthe Govemmenl'). q Baker v. Carr,169 tJ.S. 186,216(1962)(citinglJnitedStatesv.Holliday,l0tJ.S.40T,4lg(1865)(dcfcningto decisions by the Secretary and Commissioncr of Indian Affairs to recognizc Indians as a tribe as political questions)). See a/.ro Memorandum from Alan K. Palmcr, Acting Associatc Solicitor, lndian Affairs, to Solicitor, Federal "Recognition" oflndian Tribcs at 2-6 (Jul. 17, 1975) (hereafter "Palmer Memorandum"). r00 wrssrrn's IxrrnNATroNAL NEw DrcnoNARy oF rHE ENcLrsH LANGUAcE (2d ed.) (1935), entry for "recognize" (v.t.). t1t lbid., en]Jies 2,3.c,5. See also id., entry for "acknowledge" (v,t,) "2. To own or recognize in a particular character or rclationship; to admit the claims or authority of; to recognizc." t4 the term elsewhere in the IRA. Section I l, for example, authorizes federal appropriations for loans to Indians for tuition and expenses in "recognized vocational and trade schools."l02 While neither the Act nor its legislative history provide further explanation, the context strongly suggests that the phrase "recognized vocational and trade schools" refers to those formally certified or verified as such by an appropriate official.

2. LegislativeHistory.

The IRA's lcgislative history supports interprcting "recognized Indian tribe" in Catcgory I in the political-legal sense.r03 Commissioner Collier, himself a "principal author" of the Ip,q,r0a used the term "recognized" in the political-legal sense in explaining how some American courts had "recognized" tribal customary marriage and divorce.r05 The IRA's legislative history further suggests that Congress did not intend "recognized Indian tribe" to be understood in a cognitive, quasi-anthropological sense. The concems expressed by some members of the Senate Committee for the ambiguous and potentially broad scope of the phrase arguably prompted Commissioner Collier to suggcst inserting "now under federal jurisdiction" in Category I as a limiting phrase. I06

As originally drafted, Category I referred only to "recognized" Indian tribes, leaving unclear whethcr it was used in a cognitive or political-lcgal sense. This ambiguity appears to havc created uncertainty over Category l's scope and its overlap with Section l9's other definitions of "Indian," which appear to have led Congress to insed the limiting phrase "now under fedcral jurisdiction." As noted above, we interpret "now under federal jurisdiction" as modifying "recognized Indian tribe" and as limiting Category 1's scope. By doing so, "now under federal jurisdiction" may be construed as disambiguating "recognized Indian tribe" by clarifying its use in a political-legal sense.

r02 The phrase "recognized Indian tribc" appeared in what was then scction 9 ofthe committee print considered by the Senate Committee on May I 7, I 934. Sen. Htgs. at 232,242. Section 9 provided thc right to organize under a constitution to "[a]ny recognizcd Indian tribe." [t was larer amended to read "[a]ny Indian tribc, or tribes" belore ultimate cnactment as Section l6 ofthc IRA. 25 U.S.C. $ 5123. The tcrm "recognized" also appcared several times in the bill originally irtroduced as H.R. 7902. In thrcc it was used in legal-political sense. H.R. 7902, 73d Cong. (as introduced Fcb. 12, 1934), tit. I, $ 4O (rcquiring chartered communities to be "recognized as succcssor to any existing political powers..."); tit. II, g I (training for Indians in institutions "ofrecognizcd standing"); tit. IV, S 10 (Constitutional proccdural rights to be "recognizcd and observed" in courts oflndiao offenses). H.R. 7902. til. I, $ 13(b) uscd the expression "recognizcd Indian tribe" in defining "Indian." '01 See, e.g., Scr. Hrgs. at 263 (remarks of Senator Thomas of Oklahoma) (discussing prior Administralion's policy "not to recognize lndians exccpt those already under Undian Ofiice] autho ty"); i./. at 69 (remarks of Commissioner Collier) (tribal customary marriages and divorces "recognized" by courts nationally). Representative William W. Hastings of Oklahoma criticized an early draft dcfinition of"tribe" on thc grounds it would allow chartered communities to be "recognized as a tribc" and to exercise tribal powers under section l6 and section l7 ofthc IRA. See id. at 308. laa Catcieri, 555 rJ.5. at 390, n. 4 (citing (Jnited States v. Mitchell,463 rJ.5.206, 221, n. 2 t (1983)). r05 Sen. Hrgs. at 69 (remarks of Commissioner Collier) (Apr. 26, 1934). On at least one occasion, however, Collier appeared to rely on the cognitive sense in referring to "recog[ized" tribes or bands rot under federal supervision. Sen. Hrgs. at 80 (remarks of Commissioner Collier) (Apr. 26, 1934). r06 Justice Breyer concluded that Congress added "now under federal jurisdiction" to Category I "believing it definitivcly resolved a specific underlying difficllJty." Carciei, 555 U.S. at 397-98 (Breyer, J., concurring).

15 3, AdministrativeUnderstandings,

Compelling support for interpreting the term "recognized" in the political-legal sense is found in the views ol Department officials around the time of the IRA's enactment and early implemcntation. Assistant Solicitor Cohen discussed thc issue in the Departmcnt's HANDBooK oF FrrDr--RAL INDTAN LAw, which he prepared around the time of the IRA's enactment. The Handbook's relevant passagcs discuss ambiguities in thc meaning ofthe term "tribe."l07 Assistanl Solicitor Cohen explains that the term "tribe" may be understood in both an ethnological and a political-legal sensc.r08 The former denotcs a unique linguistic or cultural community. By contrast, the political-legal sense refers to ethnological groups "recognized as single tribes lor administrative and political purposes" and to single ethnological groups considered as a number of independent tribes "in the political sense."r0e This suggests that while the term "tribe," standing alone, could be interpreted in a cognitive sense, as used in the phrase "recognized Indian tribe" it would have becn understood in a political-legal sense, which presumes the existence ofan ethnological group.ll0

Less than a year after the IRA's enactment, Commissioner Collier further explained that "recognized tribe" meant a tribc "with which the govemmcnt at one time or another has had a treaty or agreement or those for whom reservations or lands have been provided and over whom thc govcmment exercises supcrvision through an o{ficial representative."l I I Addressing thc Oklahoma Indian Welfare Act of 1936 C'OIWA'), Solicitor Nathan Margold opined that because tribes may "pass out ofexistence as such in the course of time, the word "recognized" as used in the [OIWA] should be read as requiring more than "past existence as a tribe and its historical recognition as such," but "recognition" of a currently existing group's activities "by specific actions of the Indian Office, the Departmcnt, or by Congrcss."rr2

Thc Dcpartment maintained similar undcrstandings ofthc term "recognizcd" in the decadcs that followed. In a 1980 memorandum assessing the eligibility of the Stillaguamish Tribe for IRA trustJand acquisitions,l l3 Hans Walker, Jr., Associate Solicitor for Indian Affairs, distinguishcd the modern concept of formal "federal recognition" (or "federal acknowledgment") from the political-lcgal sense of"rccognized" as uscd in Category I in concluding that "formal acknowledgment in 1934" is not a prerequisite for trust-land acquisitions under the IRA, 'to

r07 Unitcd States Departmcnt of the Interior, HANDBooK oF FEDERAL INDIAN LAw ( 1942 ed.) at 268 (hereafter "Cohen 1942"). r08 Cohcn separately discusscd how the term "lndian" itselfcould bc uscd in an "ethnological or in a legal scnsc," noting that a person's legal status as an "lndian" depended on genealogical and social factors- Cohen 1942 at 2. t@ Id. at 268 (emphascs added). 110 lbid. at 268 (validity ofcongrcssional and administrative actions dcpcnd upon the [historical, ethnological] existencc oftribes); United Stoles v. Sandoval,23l U.S- 28 ( l9l3) (Congress may not arbitrarily bring a communiry or group ofpeoplc within the rangc ofits plenary authority over Indian affairs). See @/so 25 C.F.R. Part 83 (establishing mandatory critcria for determining whcther a group is an Indian tribc eligible for spccial programs and services provided by the Unitcd States to Indians bccause oftheir status as lndians). rrr Letter, Commissioner John Collier to Ben C. Shawanesee (Apr. 24, 1935). r12 I OP. SoL. l\T. 864 (Memorandum fiom Solicitor Nathao M. Margold to the Commissioner of Indian Affairs, Oklahoma Recognized Tribes (Dec. 13, 1938)): Coher 1942 at27l. rrr Memorandum fiom Hans Walker, Jr., Associate Solicitor, tndian Affairs, to Assistant Secretary, Indian Affairs. Request for Recoflsideration ofDecision Not to Take Land in Trust for the Stillaguamish Tribe at I (Oct. 1, 1980) (hercaftcr "Stillaguamish Memo").

16 ra long as the group meets the uRA's] other definitional requirements."r These included that the tribe had been "recognized" in 1934. Associate Solicitor Walker construed "recognized" as referring to tribes with whom the United States had "a continuing course ofdealings or somc legal ob'iigation tn 1934 whether or not that obligation was aclonwledged at that time."tts Associate Solicitor Walker thcn noted the Senate Committee's concems for thc potential breadth of"recogrrized Indran tribe." He concluded that Congress intended to exclude some groups that might bc considcrcd Indians in a cultural or governmental sensc, but not "any Indians to whom r6 the Federal Govemment had already asslmed obligations."l Implicitly construing the phrase ..now under federal jurisdiction" to modifo "recognized Indian tribe," Associate Solicitor Walker found it "clear" that Category 1 "requires that some type olobligation or extension ofservices to a tribe must have existed in 1934.-tt1 As already noted, in the case ofthe Stillaguamish Tribe, such obligations wcrc cstablished by thc 1855 Treaty ofPoint Elliott and remained in cffect in 1934. i r8

Associate Solicitor Walker's views in 1980 were consistent with the conclusions reached by the Solicitor's Officc in the mid-1970s following its assessment of how the federal govcmmcnt had historically understood the term "recognition." This assessment was begun under Reid Peyton Chambcrs, Associate Solicitor for Indian Affairs, and offers insight into how Congrcss and the Department understood "recognition" at the time the Act was passed. ln fact, it was this historical review of"recognition" that contributed to the development ofthe Department's I le federal acknowledgment procedures.

Throughout the united States' early history, Indian treaties were negotiated by the President and r20 ratifiea by the Senate pursuant to the Treaty Clause. In I 871 , Congress enacted legislation providing that no tribe within thc territory ofthe United Statcs could thereafter be ;'acknowledged or recognized" as an "independent nation, tribe, or power" with whom the United States could contract by treaty.12l Bchind the act lay thc vicw that though lndian tribes were still "recognized as distinct political communities," they were "wards" in a condition of dependcncy wh-o were "subjcct to the paramount authority ofthe United States."r22 Whilc the

tra Id. at I (emphasis added). Justice Breyer's concurring opiniot in Carcieri draws on Associate Solicitor Walker's analysis in the Stillaguamish Memo. See Carcieti. 555ll.S. at 397-98 (Breyer, J., concurring). t'5 1d. at 2 (emphasis added). r16 ,ld. at 4 (cmphasis added). This is consistent with Justice Breyer's concurring view ir Carcieri. I t1 Id. at 6.ln thc case of rhe Stillaguamish Tribc, such obligations arose in I 85 5 through the Treaty of Point Elliott, and they remaincd in cffect in 1934. rr3 Justice Brcycr's concurring opinion in Carcieli draws on the analysis in the Stillaguamish Memo. See Carcreri, 555 U.S. at 397-98 (Breyer, J., concurring). rre 25 c.F.R. Part 83. 120 U.S. CoNs1., art. ll, $ 2, cl.2. See generally Cohet 1942 at 46-67. rrr Act of March 3, 1871, c. 120, $ 1, 16 Stat. 5.14,566. Section 3 ofthe same Act Fohibited further contracts or agreements with any rribe of Indians or individual lndian not a citizen ofthe United States related to their lands unless in writing and approved by the Commissioner of Indian Affairs and thc Secretary ofthe Interior. 1d-, $ 3, l6 Stat. 570-71. t22 Mille Lac Band of Chippewas v. United States,46 CL Cl. 424,44], (l9l l). t7 question of"recognition" remained one for the political branches,l2l the contexts within which it arose expanded with the United States' obligations as guardian.l2l

After the close of the termination era in the early 1960s, during which the federal government had "endeavored to terminate its supervisory responsibilities for lndian tribes,"l25 lndian groups that the Department did not otherwise consider "recognized" began to seek services and benefits fiom the federal government. The most notable of these claims were aboriginal land claims under the Nonintercourse Act; 126 treaty fishing-rights claims by descendants of treaty signatories; r27 and requests to the BIA for benefits fiom groups of Indians for which no government-to-govemment relationship existed,l28 which included tribes previously recognized and seeking restoration or reaffirmation oftheir status.l2e At around this same time, Congress began a critical historical review ofthe federal govemment's conduct of its special legal relationship with American lndians.l30 In January 1975, it found that federal Indian policies had "shiftcd and changed" across administrations "without apparent rational design,"lsl and that there had been no "general comprehensive review ofconduct of Indian affairs" or its "many problems and issucs" since 1928, before the IRA's enactment.l12 Finding it imperative to do

111 l/nited States v. Holliday,10l.S.407,4t9 ( 1865). lla See Cohcn 1942 at I7-19 (discussing contemporancous views on thc conflicts bctween sovereignty and wardship). Compare, e.g., ,yorcester y. Georgia, 3l U.S. 515 ( I 83 2 ) wrti United States y. Kagan a, I I 8 U. S. 375 (1886). 115 South Carolina v. Catawba Indian Tribe,Inc.,4'16tJ.5.498,501 (1986). See a/so COHEN'S HANDBOOK OF FEDERAL INDIAN LAW at g 1.06 (Nell Jessup Ncmon ed.. 2012) (hereafter "Cohen 2012") (dcscribing history and implementation of termination policy). During the temination era, roughly beginning in 1953 and ending in the mid- 1960s, Congrcss enacted legislation ending fcderal recognition ofmore than 100 tribes and bands in eight states. Michael C. Walsh, Terminating the lndian Termination Policy,35 STAN. L. REV. I l8l, I 186 ( 1983). Congress has sincc restored fedcral recognition to some terminated tribes. See Cohen 2012 at 5 3.02[8][c], n. 246 (listing examples). 116 See, e.g., Joint Tribal Council of Passamaquoddl' Tribe v. Morton,388 F. Supp. 649, 655 (D . Mc.\. alfd sub nom. Joint Trihal Council of the Pa.^samaquoddy Tribe v. Morton, 528 F.2d 370 ( I st Cir. 1975) (Nonintercourse Act claim by unrecognized tribe in Maine); Mashpee Tribe v. Town of Mashpee, 447 lj. Supp. 940, 944 (D. Mass. 1978\, alfd strb non. Mashpee Trihe v. New Seabury Corp., 592 F .2d 57 5 ( I st Cir. I 979) (Nonintercourse Act claim by unrecog'nized tribe in Massachusctts). t2' Llnited States v. State of llash., 384 F. Supp. 3 12. 348 (W.D. W ash. 1974\, alfd and remanded. 52O F .2d, 67 6 (9th Cir. 1975) (treaty fishi-ng rights of unrecognized tribes in Washington State) r13 AMERICAN INDIAN PoLICy Rt:vliw CoMMISSIo\, Final Report, Vol. / lcommittee Print] ar 462 (GPO 1977) (hereafter "AIPRC Final Report") ("A number of [unrecognized] Indian tribes are seeking to formalize relationships with thc United States today but thcre is no available process for such actions."), See a/.ro TASK F0RCE No. l0 oN TERMINATED AND NoNFEDERALLY R€coGNzED INDIANS, Firal Report to the American Indian Polit\ Review Comnission (GPO 1976) (hereafter "Report ofTask ['orce Ten"\. r2e Kirsten Matoy Carlson, Mafing Strotegic Choices: How and ll/hy lndian Groups Advocated for Federal Recognition frorh 1977 to 2012,5l LAw& S(r'y REV. 930 (2017). rr0 Pub. L. No. 93-5110, 88 Stat. I 910 (Jan .2, 1975), as amende4 (hereafter "AIPRC Act"), codifed at 25 lJ.S.C. F 174 note. 1rr /bid. Commissioncr John Collier raised this same issue in hearings on the draft IRA. See H. Hrgs. at 37. Noting that Congress had dclegated most of its plenary authority to the Departmclt or BIA, which Collier dcscribed as "instrumentalities of Congress...clothed with the plenary power." Bcing subject to the Department's authority and its rules and regulations meant that while one administration might take a course "to bestow ghts upon the Indians and to allow them to organize and allow them to take ove. thcir legal affairs in some sclf-goveming schcme," a successor administration "would be complet€ly empowered to revoke the entire grant." rr'7 1rrd. (citing MERIAM RTPORT). l8 so,l3l Congress established the American lndian Policy Review Commissionl3a to prepare an investigation and study oflndian affairs, including "an examination ofthe statutes and procedures for granting Fedcral recognition and extending services to lndian communities."t35 It was against this backdrop that the Department undertook its own review of the history and mcaning of "rccognition." I 36

a. The Palmer Memorandum

In July 1975, thc acting Associate Solicitor for Indian Affairs prepared a 28-page memorandum on "Federal 'Recognition' of Indian Tribes" (the "Palmer Memorandum").117 Among other things, it examined the historical meaning of"recognition" in federal law, and ofthe Secretary's authority to "recognize" unrecognized groups. After surveying statutes and case law before and after the IRA's enactment, as well as its early implementation by the Department, the mcmorandum notes that "thc cntire conccpt is in fact quitc murky.-lr8 The Palmer Memorandum finds that the case law lacked a coherent distinction between "tribal existence and tribal recognition," and that clcar standards or procedures for recognition had never bccn established Ile by statute. It further finds there to be a "consistent ambiguity" over whether formal rccognition consistcd ofan assessment "ofpast govemmcntal action" - the approach "articulated in the cases and [Departmental] memoranda" - or whether it "included authority to take such actions ln the rtr instance."la0 Despite these ambiguities, the Palmer Memorandum concludes that the concept of"recognition" could not be dispensed with, as it had become an accepted part of Indian law.lal

Indirectly addressing the two senses ofthe term "tribe" described above, the Palmer Memorandum found that beforc the IRA, the concept of"recognition" was often indistinguishable from the question oftribal existence,ra2 and was linked with the treaty-making powers ofthc Executive and Lcgislative branches, for which reason it was likcned to diplomatic l4l recognition ol foreign govemments. Though treaties remained a "prime indicia" of political

ttl lbid. rr4 AIRPC Acr, g l(a). rr5 /d., $ 2(3). r16 See, e.g., Letter from LaFollette Butler, Acting Dep. Comm. of Indian Affairs to Sen. Henry M. Jackson, Chair, Senate Commiftee on lnterior and Insular Affairs (Jun. 7, 1974) (hcrcafter "Butler Lefter") (describing authority for recognizing tribes since 1954); Memora[dum from Reid P. Chambers, Associate Solicitor, Indian Affairs to Solicitor Kent Frizzell, Secrelary's Authority to Extend Federal Rccognition to Indian Tribes (Aug. 20, 1974) (hereafter "Chambers Memo") (discussing Secretary's authority to recognize the Stillaguamish Tribe); Memorandum from Alan K. Palmer, Acting Associate Solicitor, Indian Affairs, to Solicitor, Federal "Recognition" of Indian Tribes (Jul. I 7, 1975 ) (hereaffer "Palmer Memo"). rl? Associate Solicitor Reid P. Chambcrs approved the Palmer Mcmo in draft form. 1bid. The Palmer Memo camc on thc hcels ofearlicr consideration by the Depanment ofthe Secretary's authority to acknowledgc tribes. rl3 Palmer Memo at 23. 13e Id. at23-24. tao Id. at 24. The memorandum concluded that the former question necessarily implied the latter. t1t Ibid. at 24. r{2 The Palmer Memo noted that based on the political question doctrine, the courts rarely looked behind a "recognition" dccision to determinc questions oftribal existencc pcr se. Id. at 14. )a1 ld. at 13. See also Cohen 1942 at 12 (describing origin oflndian Sewice as "diplomatic sewice handling ncgotiations betwccn the United Statcs and Indian nations and tribcs").

19 "recognition,"laa the memorandum noted that other evidence could include Congressional recognition by non-treaty means and administrative actions fulfilling statutory responsibilities lai 146 toward Indians as "domestic dependent nations," including the provision of trust serviccs.

Having notcd thc term's ambiguity and its political and administrative uscs, the Palmer Memorandum then surveyed the case law to identify "indicia ofcongressional and executive rai recogrition." It describes thesc indicia as including both federal actions taken toward a tribe with whom the United States dealt on a "more or less sovereign-to-sovereign basis," as well as r48 actions that "clearly acknowlcdged a trust responsibitity" toward a tribe, consistent with the evolution of federal lndian policy.rae

The indicia identified by the Solicitor's Office in 1975 as evidencing "recognition" in a political- legal sense included the following: treaties;150 the establishment ofreservations; and the treatment of a tribe as having collective rights in land, even ifnot denominated a 1ribe."l5l Specific indicia ofCongressional "recognition" included enactments specifically refening to a tribe as an cxisting entity; authorizing appropriations to bc expended for the bcnefit of a tribc; ls2

t* Id. at 3. tas Cherokee Nation v. Georgia,3O lJ.S. I , I 7 ( t 83 I ). See a/so AIPRC Final Report at 462 ("Administrative actions try Federal oflicials and occasionally by military officers havc sornetimes laid a foundation lor federal acknowledgmcnt ofa tribe's rights."); Report of Task Force i.ea at 1660 (during the Nixon Administration, "federally rccognized" included tribcs rccognized by treaty or statutc and tribes trcated as recognized "through a historical pattcm oladministrative action."). ra6 Palmer Memo at 2; ATPRC Final Rcport at I I I (treaties but one method ofdcaling with tribes and treaty law generally applies to agreements, statutes, and Executive orders dealing with Indians, noting the trust relationship has been applied in numerous nonfeaty situations). Many non-treaty tribcs receive BIA scrvices, just as some reaty- tribes receive no BIA services. AIPRC Final Report at 462; Terry Anderson & Kirke Kickingbird, An Ilistorical Penpcctive on the lssue of Federal Recognition and Non-Recognition, lnstitute for thc Dcvelopment of Indian Law at I (1978\. See also Legal Status ol rhe lndians-Validity of lndian Mariages, l3 YALI L.J. 250, 25 I ( 1904) ("The United States, however, continued to rcgard the lndians as nations and made treaties with them as such until 1871, when aftcr an hundrcd years ofthe trcaty making system ofgovcmment a new departure was taken in govcming them by acts ofCongress."). u7 Id. at 2-14. 1181d. at 1.1. r3e Having ratificd no new trcaties since I868, ARCIA 1872 at tl3 (1872). Congress endcd the practicc oftreaty- making in 1871, more than 60 years before the IRA'S enactment. See Acr of March 3, 1871, ch. 120, I l, l6 Stat. 566, codified at 25 U.S-C. $ 7l . This caused the Commissioner of Indian Affai$ at thc time to ask what would become of the rights of dbes with which the United States had not yet aeated. ARCIA 1872 at 83. As a practical matter, thc cnd of trcaty-making tippcd the policy scales toward expanding the treatmcnt of Indians as wards undcr fcderal guardianship, expandilg the rolc of administrative officials in the management and implementation oflndian Affairs. Cohen 1942 at I 7- l9 (discussing contemporaneous views on the conflicts betwecn sovereignty and wardship);Browa v. United States,32 Ct. Cl. 432, 439 (1897) ("But since the Act 3d March, l87l (16 Star. L., 566. $ l), thc lndian tribes have ceased to bc trcaty-making powers and have becomc simply thc wards ofthe nation."): United States v. Kagama, I l8 U.S. 375, 382 ( 1886) ("But, aftcr an expericncc ofa hundred years of the treaty-making system ofgovcmment, cong.ess has detcrmined upon a new departure,-to govem them by acts ol congress. This is seen in the act of March 3, 1871..-"). I50 Butler Letter at 6; Palmer Memo at 3 (executed treaties a "prime indicia" of"federal recognition" oftibe as distinct political body). r5r Butler Letter at 6 (citing Cohen 1942 at 271); Palmer Memo at 19. r52 Butlcr Letter at 5; Palmer Memo at 6-8 (citing United States v. Sandoval,23l U.5.28.39-40 (1913), United St.ltes !. Nice,24l U.S. 591,601 (1916), United States v. Boylan,265 F. 165, l7l (2d Cit. 1920)); id. at 8-10 (ciring

){\ authorizing tribal funds to be held in the federal feasury; directing officials of the Government to exercise supervisory authority over a tribe; and prohibiting state taxation ofa tribe. Specific indicia ofExccutive or administrative "rccognition" beforc 1934 includcd the sctting aside or acquisition oflands for lndians by Executive order;153 the presence ofan lndian agent on a reservation; denomination ofa tribe in an Executive ordcr;lsa the establishment ofschools and other service institutions lor the benefit of a tribe; the supervision of tribal contracts; the establishment by thc Department ofan agcncy officc or Superintendent for a tribe; the institution of suits on behalf of a tribe;155 and the expenditure of funds appropriated for the use of particular lndian groups.

The Palmer Memorandum also considered the Departrnent's early implementation of the IRA. when the Solicitor's Office was called upon to determine tribal eligibility for the Act. While this did not provide a "coherent body ofclear legal principles," it showed that Department officials closely associated with thc IRA's enacrment believed that whether a tribe was "recognized" was "an administrative question" that the Department could determine.ls6 In making such determinations, thc Department lookcd to indicia established by federal courts.r5T Therc, indicia ofCongressional recognition had primary importance, but in its absence, indicia ofExecutive action alone might suffice.rs8 Early on, thc factors the Department considcred were "principally retrospective," reflecting a concern for "whether a particular tribe or band had been recognized, not whether it s, ould be-"lse Because the Department had the authority to "recognize" a tribe for purposes of implementing the IRA, the absence of "formal" recognition in the past was "not deemed controlling" i,f there were sufficient indicia of govemmental dealings with a tribe "on a sovereign or quasi-sovercign basis."160 The manner in which the Departmcnt undcrstood "recognition" before, in, and long-after l934l6l supports the view that Congress and the Department understood "recognizcd" to refcr to actions taken by federal officials with respcct to a tribe for political or administrative purposes in or before 1934.

United States v. Nice,24l U.5.591, 60t (1916); Tully v. United States, 32 Cr. Cl. I (1896) (recognition for purposcs ofDepredations Act by federal officers charged with responsibility for reporting thereon). r5r Palmer Memo at 19 (citing Cohen 1942 at 271\\; Butler Letrer ar 4. ria Palmcr Memo at 19 (citing Cohen 1942at27l). t5s (Jnited Id. at 6, 8 (citlng Linited States v. Sandoval,231 U.S. 28, 39-40 ( 1 9 13 ), States v. Boylan,265 F. I65, l7l (2d Cir. 1920) (suit brought on behalfofOneida Indians)). 156 Id. at. 18. 151 lbid. 153 lbid. r5e 16id. (emphasis in original). See a/so Stillaguamish Memo at 2 (Catqgory I includes "all groups which cxisted and as to which the United Statcs had a continuing course ofdealings or some legal obligation in 1934 whether or not that obligation was acknowledged at thar rime."). ro Palmer Memo at 18. 16r See, e.g, Stillaguamish Memo. See d/so 25 C.F.R. $ 83.12 (describing evidence to show "previous Federal acknowlcdgment" as including: treaty relations; denomination as a tribe in Congressional act or Executive Ordcr; treatment by Fedcral govemment as having collective rights in lands or funds; and federally-held lands for collecrivc ancestors). 2l D. Construing the Expression "Recognized Indian Tribe Now Under Federal Jurisdiction" as a Whole.

Based on the interpretation above, the phrase "any recognized Indian tribe now under federal jurisdiction" as a wholc should be intcrpreted as intended to limit the lI{A's coveragc to tribcs who were brought under federal jurisdiction in or before 1934 by the actions of federal officials clcarly dealing with the tribc on a morc or less sovereign-to-sovcreign basis or clearly acknowledging a trust responsibility, and who remained under federal authority in 1934.

Each phrase referred to a different aspect of a tribe's trust relationship with the United States.

Before and after 1934, the Department and the courts regularly used the term "recognized" to refer to exercises of federal authority over a tribe that initiated or continued a course of dealings with the tribe pursuant to Congress'plenary authority. By contrast, the phrase "under federal jurisdiction" referred to the supewisory and administrative responsibilities of federal authori!ies toward a tribe thereby established. The entire phrase "any recognized Indian tribe now under federal jurisdiction" should therefore be interpreted to refer to recognized tribes for whom the United States maintaincd trust responsibilities in 1934.

Based on this understanding, the phrasc "now under federaljurisdiction" can be secn to excludc two categories of tribe from Category I . The first category consists of tribes never "recognized" by thc United States in or bcfore 1934. The second category consists oftribes who were "recognized" before 1934 but no longer remained under federal jurisdiction in 1934. This would include tribes who had absented themselves from thejurisdiction ofthe United States or had otherwise lost their jurisdictional status, for example, because ofpolicies predicated on "the dissolution and elimination oftribal relations," such as allotment and assimilation. r62 Though outside Category 1's definition of"Indian," Congress may later enact legislation recognizing and extending the IRA's benefits to such tribes, as Carcieri instructs.l63 For purposes ofthe eligibility analysis, however, it is important to bear in mind that neither ofthese categorics would

162 Hackford r. Babbitt, 14F.3d,1457, 1459 (lOth Cir. 1994) ("The "ultimate purposc ofthe Undian General Allotment Act wasl to abrogate the Indian tribal organization, to abolish the reservation system and to place the lndians on an equal footing with other citizens ofthe country."); see also Montana \,. United Stotes,4SO tJ.5. 544, 5 59 ( I 981 ) (citing I I CoNc. REC. 779 (Sen. Vcst), 782 (Sen. Coke), 783-784 (Sen. Saunders), 875 ( Sens. Morgan and Hoar).881 (Sen. Brown),905 (Sen. Butlcr),939 (Sen. Tcller), 1003 (Sen. Morgan), 1028 (Scn. Hoar), 1064, 1065 (Sen. Plumb), 1067 (Scn. Williams) ( l88l); SECRETARY oI, rHE INTERToR ANN. REp. 1885 at 25 28: ST]CRI.]TARY OI. THE INTERIoR A)iN. REP, I886 at 4; ARCIA I887 at IV X; SECRETARY o!.THE INTERIoR ANN, REP. l888atXXIX XXXII; ARCIA 1889at34:ARCIA l890at\rI. XXXIX; ARCIA l89t at3 9.26;ARCIA l892ar 5; SECRIITARY oF THF. I NTFTRIoR A\N. Rrp. 1894 at IV). .tee a lso Cohen 1942 at 27 2 ("Civen adequate evidcnce of thc cxistencc of a tribe during some period in thc rcmote or rcccnt past, thc question may always be raised: Has the existencc ofthis tribe bcen terminated in somc way?"). 161 Carcieri,555 U.S. at 392, n.6 (listi[g statutes by which Congress expanded the Secretary's authority to acquire land in trust to tribes not ncccssarily encompassed by Section l9).

22 include tribes who were "recognized" and for whom the United States maintained trust responsibilities in 1934, despite the federal govemment's neglect ofthose responsibilities. r6a

III. ANALYSIS

A. Procedure for Determining Eligibility.

As noted, the Solicitor's Guidance provides a four-step process to determine whether a tribe falls within Category I of Scction 19.165 It is not, howcver, necessary to proceed through each step of the procedure for every fee-to-trust application.r66 The Solicitor's Guidance identifies forms of cvidence that presumptively satisry each of the first three steps.l67 Only in the absence of presumptive evidence should the inquiry proceed to Step Four, which requires the Department to weigh the totality ofan applicant tribe's evidence.r68 The Tribe, as explained below, provided dispositive evidence under Step Two that it was "under federal jurisdiction" in 1934 and therefore eligible for the benefits of Section 5 of the II{A.

B. Dispositive Evidence ofFederal Jurisdiction in 1934.

Having identified no separate statutory aurhoriry makrng the IRA applicable to the Tribe under Stcp One, our analysis proceeds to Step Two of rhc eligibility inquiry, which looks to whethcr any evidence unambiguously demonstrates that the Tribe was under federal jurisdiction in 1934.r6e This criterion dcrives from an undcrstanding of the meaning ofthe phrase'hndcr federal jurisdiction" as relerring to the federal govemment's administration of its Indian affairs authority with rcspect to particular groups of Indians. Certain qpes of fcdcral acrions may constitute dispositive evidence of federal supervisory or administrative authority over Indians in 1934. These include: elections conducted by the Department pursuant to Section l8 ofthe IRA; approval by the Secretary ofa constitution following an election held pursuant to Section 16 of the IRA; issuance ofa chaner ofincorporation following a petition submitted pursuant to Section l7 ofthe IRA; adjudicated treaty rights; inclusion in 1934 on the Department's Indian population Repon; and land acquisitions by the United States for groups of Indians in the years leading up to 1934.r70 Where any ofthcsc forms ofcvidencc cxist, then the Solicitor's Officc may.oniidc. the tribe to have been under federal jurisdiction in 1934 and eligible under Category I .r7r

t@ See, e.g., Grand Trayerse Band of Ottawa & Chippewa lndians v. Olfice of U.S. Atty. /or W. Div. of Michigan, 198 F. Supp. 2d 920, 934 (W.D. Mich.20O2), aff'd,369 F.3d 960 (6th Cir_ 2004) (improper termination of treaty- tribe's status before 1934). 165 Solicitor's Cuidance at l. 166 lbid. 167 lbid. t68 lbid. t6e Id. at 2. 11o Id. at2-4. 111 ld ar2

23 l. San Pasqual IRA Section lE Election.

The IRA is a statute ofgeneral applicability, but includes a provision that would render it rT2 inapplicable. Section 18, as amended, directs the Secretary to conduct elections to allow lndians rcsiding on a reservation to vote to rcject the imposition ofthe Act.lTr In order for thc secretary to conclude that a reservation was eligible for an election, a determination had to be made that the rclevant Indians satisficd onc of thc IRA's definitions of"lndian." The calling ofa Section 18 election confirmed the Secretary's finding that the voters were "lndians" within the meaning of Section 19, as such an election is "certainly an acknowledgment offcderal powcr and responsibility (i.e., federal jurisdiction)" toward the Indians for whom the election was called.rTa From 1934-1936, the Department conducted 258 Section l8 elections, the results of which it compiled by th€ Department in what later became knowl as the Haas Report.lT5 Federal courts and the Interior Board of Indian Appeals have repeatedly held that Section l8 elections constitute unambiguous evidence that the Department considercd a tribc or rescrvation to be undcr fcderal r76 jurisdiction in t 934.

In 1934, the United States understood that the Tribe and its reservation were under the federal jurisdiction and supervision ofthc United States, and that the adult residents ofthe Tribe,s reservation met the IRA's definition of "lndian." As detailed in the Haas Report, on December 15, 1934, a majority of the adult Indians rcsiding on the reservation elected to adopt the IRA by a vote of 2 to 1.177

IV. CO\CLUSION consistent with Step 2 ofthe Solicitor's Guidance, the Section l8 election that the Department conducted at the Tribe's reservation on December 15, 1934 unambiguously establishes that the United States considered the Tribe to be under lederaljurisdiction in 1934. As such, the Tribe satisfies category l. we therefore conclude that the secretary has the authority to acquire land- in+rust for the Tribe under Section 5 of the lRA.

tzz 1p,1, g 18. \13 lbid. t1a Stand Up for Califtrnia! v. U.S. Department of the lnterior,204 F.S\pp.3d 212, 289 (D.D.C. 2016\, afl"d,879 F.3d I 177 (D.C. Cir.2018), cert_ den., 139 S.Ct. 786 (Jan. 7, 2019). 175 Haas Report at 3, Table A at l3-20 (listing Scction I8 clcctions conducted). t16 See, e.g., Stand (lp.for California! v. U.S. Dep\ of &e lnrerior.9t9 F.Supp.2d 5 t, 67-68 (D.D.C. 20l j) (Section l8 elections conclusive cvidence ofbeing under federal juris diction); Stand UpJbr Califurnia! v. united States Depl of Inteior,879 F.3d I f77 (D-C. Cir.2018), cert den, 139 S.Ct. 786 (Jan. 7, 20t9): Cachil Dehe Band of Winnn lndians ofColusa lndidn Cmty. v. Zinke,889 F.3d 584, 596 (9th Cir. 2018); Village of llobart, Wisc. v. Acting Midwest Re4. Dir., Bureau of Indian AJfairs, 57 lBlA 4, 2 I (201 3) (Sec. I 8 clection provides "brighrline tesf; for determining UFJ); s, a' ano county, wisc. v. Acting Midwest Reg. Dit., Bureau oJ lndian AlJitirs. s3lBlA 62,'.,4 (201 I ) (Sec. l8 vote necessarily recogniz,cd and determined that a t be was undcr fcdcral jurisdiction, "notwithstanding the Department ofthe lnterior's admittedly inconsistent dealings with the Tribe in previous years."). r77 Haas Report at l5 (listed under the Mission Agcncy as San pascual).

24