[Senate Report 112-166]
[From the U.S. Government Publishing Office]
Calendar No. 405
112th Congress Report
SENATE
2d Session 112-166
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AMENDING THE ACT OF JUNE 18, 1934, TO REAFFIRM THE AUTHORITY OF THE
SECRETARY OF THE INTERIOR TO TAKE LAND INTO TRUST FOR INDIAN TRIBES
_______
May 17, 2012.--Ordered to be printed
_______
Mr. Akaka, from the Committee on Indian Affairs,
submitted the following
R E P O R T
together with
ADDITIONAL VIEWS
[To accompany S. 676]
[Including cost estimate of the Congressional Budget Office]
The Committee on Indian Affairs, to which was referred the
bill (S. 676) to amend the Act of June 18, 1934, to reaffirm
the authority of the Secretary of the Interior to take land
into trust for Indian tribes, having considered the same,
reports favorably thereon, and recommends that the bill, as
amended, do pass.
Purpose
S. 676 clarifies the continuing authority of the Secretary
of the Interior, under the Indian Reorganization Act of 1934,
to take land into trust for all Indian tribes that are
federally recognized on the date on which the land is placed
into trust.
Background
Indian tribes (``tribes'') are distinct and independent
political communities.\1\ Tribes retain the same inherent
powers of a self-governing community as they exercised before
European nations first discovered America.\2\ The inherent
sovereignty of tribal governments is acknowledged in the United
States Constitution, treaties, legislation, judicial decisions,
and administrative practice. The United States Presidents,
Congress, the Supreme Court, and hundreds of treaties have
repeatedly reaffirmed that tribes are governing bodies and
retain their inherent powers of self-government. Tribal
governmental powers, with some exceptions, are not delegated
powers granted by express acts of Congress, but are ``inherent
powers of a limited sovereignty which has never been
extinguished.''\3\ The foundation of the government-to-
government relationship between the federal government and
tribal governments is the Treaty Clause\4\ and the Indian
Commerce Clause\5\ of the Constitution. Treaties and laws have
created a fundamental contract between Indian tribes and the
United States: Tribes ceded millions of acres of land that
helped make the United States what it is today and in return
retained, among other guarantees, the right of continued self-
government on their own lands.
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\1\United States v. Lara, 541 U.S. 193, 204-205 (2004) (affirming
the Supreme Court's ``traditional understanding'' of each tribe as ```a
distinct political society, separated from others, capable of managing
its own affairs and governing itself''' (quoting Cherokee Nation v.
Georgia, 30 U.S. 1, 16-17 (1831))). See also Worcester v. Georgia, 31
U.S. (6 Pet.) 515, 559 (1832) (``The Indian nations had always been
considered as distinct, independent political communities, retaining
their original natural rights, as the undisputed possessors of the
soil, from time immemorial.'').
\2\United States v. Wheeler, 435 U.S. 313, 322--23 (1978) (noting
that prior to the European settlement of the New World, Indian tribes
were ``self-governing sovereign political communities''). ``Neither the
passage of time nor the apparent assimilation of native peoples can be
interpreted as diminishing or abandoning a tribe's status as a self-
governing entity.'' The ``Marshall Trilogy'' gave rise to the concept
that Indian nations retain their ``inherent sovereign powers'' and
their status as nations, although their rights to complete sovereignty
were diminished after the European conquest. The three cases that form
the ``Marshall Trilogy'' are Worcester v. Georgia, 31 U.S. (6 Pet.) 515
(1832), Cherokee Nation v. Georgia, 30 U.S. (5 Pet.) 1 (1831), and
Johnson v. McIntosh, 21 U.S. (8 Wheat.) 543 (1823).
\3\Wheeler, 435 U.S. at 322 (quoting Felix Cohen, Handbook of
Federal Indian Law 122 (1945)).
\4\U.S. Const. art. II, Sec. 2, cl. 2. Congress ended treaty-making
with Indian tribes in 1871.
\5\U.S. Const. art. I, Sec. 8, cl. 3. This clause delegates to
Congress the power ``[t]o regulate Commerce with foreign Nations, and
among the several States, and with the Indian Tribes.'' The
Constitution grants Congress plenary and exclusive power to legislate
in respect to tribes and the U.S. Supreme Court has approved this grant
of authority. See, e.g., United States v. Lara, 541 U.S. 193, 193-94
(2004) (``The plenary power of Congress to deal with the special
problems of Indians is drawn both explicitly and implicitly from the
Constitution itself.'' (citing Washington v. Confederated Bands and
Tribes of Yakima Nation, 439 U.S. 463, 470-71 (1979)); Morton v.
Mancari, 417 U.S. 535, 551-52 (1974))).
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As it is for all governments, land is important for tribal
governments as it provides a means to advance tribal
sovereignty and self-determination. Tribal trust lands are
especially important to this advancement. Trust lands are most
often found within the boundaries of a reservation, although
not all reservation lands are trust lands. Trust status means
that the land is under tribal governmental authority, but the
federal government holds title to the land in trust for the
benefit of current and future generations of tribal members.
Although trust land is under the authority of the tribal
government and is generally not subject to state laws, it is
subject to usage limitations and requires federal approval for
most transactions with third parties.
Tribes need land in trust for a wide range of beneficial
purposes. By acquiring land in trust, tribes are able to
provide essential governmental services to their members,
including health care, education, housing, jobs and other
economic development opportunities, as well as court and law
enforcement services. Trust land is also necessary for tribes
to promote and protect their historic, cultural, and religious
ties to the land.
The long history of Indian land losses is well-known. From
the very first days of the Republic, Indian tribes have ceded
large areas of land to the United States. In return, the
federal government made promises to provide for the health,
education, and general welfare of reservation residents.\6\
These promises are known as the United States' trust
responsibility to all Indians. The federal government acquired
virtually all of its land through treaties or agreements with
Indian tribes, and it is incumbent upon the federal government
to protect tribal treaty rights, lands, assets, and resources,
as well as carry out the mandates of federal law with respect
to Indians.
\6\``Of necessity the United States assumed the duty of furnishing
that protection and with it the authority to do all that was required
to perform that obligation and to prepare the Indians to take their
place as independent, qualified members of the modern body politic.''
See Bd. of Cnty. Comm'rs v. Seber, 318 U.S. 705, 715 (1943) (quoting
United States v. Kagama, 118 U.S. 375, 384, 385 (1886) (```From their
(the Indians') very weakness and helplessness, so largely due to the
course of dealing of the federal government with them, and the treaties
in which it has been promised, there arises the duty of protection, and
with it the power. This has always been recognized by the executive,
and by congress, and by this court, whenever the question has
arisen.''')).
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In carrying out its treaty obligations with the
Indian tribes, the Government is something more than a
mere contracting party. Under a humane and self-imposed
policy, which has found expression in many acts of
Congress and numerous decisions of this Court, it has
charged itself with moral obligations of the highest
responsibility and trust.
Seminole Nation v. United States, 316 U.S. 286, 296
(1942).\7\ Despite the federal government's trust
responsibility to protect Indian landholdings, tribes have
suffered devastating land losses at the hands of the federal
government. With the enactment of the General Allotment Act of
1887 (``Allotment Act'') (sometimes referred to as ``The Dawes
Act''),\8\ the federal government hoped to further dissolve
tribal lands and hasten the assimilation of Indian people by
authorizing the individualization of reservation lands to
tribal members.\9\
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\7\Noting that the Supreme Court ``has recognized the distinctive
obligation of trust incumbent upon the Government in its dealings with
these dependent and sometimes exploited people'' (citing Cherokee
Nation v. Georgia, 30 U.S. (5 Pet.) 1 (1831); United States v. Kagama,
118 U.S. 375, 384, 385 (1886); Choctaw Nation v. United States, 119
U.S. 1 (1886); United States v. Pelican, 232 U.S. 442 (1914); United
States v. Creek Nation, 295 U.S. 103 (1935); Tulee v. State of
Washington, 315 U.S. 681 (1942)).
\8\General Allotment Act, ch. 119, 24 Stat. 388 (1887), sections 1,
2, and 3 (25 U.S.C. Sec. Sec. 331, 332, and 333), repealed by Indian
Land Consolidation Act Amendments of 2000 (25 U.S.C. Sec. 2201).
\9\The mentality at the time was that ```the easiest Indians in the
country to civilize were those who had `no money, no funds, no land, no
annuities.''' The Indian Reorganization Act--75 Years Later: Renewing
Our Commitment to Restore Tribal Homelands and Promote Self-
Determination: Hearing Before the S. Comm. on Indian Affairs, 112th
Cong. 6 (June 23, 2011) [hereinafter IRA Hearing] (statement of
Frederick E. Hoxie, Swanland Chair/History Professor, Univ. of Ill.
(quoting Connecticut Sen. Orville Platt) (emphasis added)).
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Under the Allotment Act, Indian families and individuals
were allotted small parcels of land to be used for either
agricultural land or grazing.\10\ The United States held this
land in trust for each individual allottee until the trust
period expired--usually twenty-five years after the land was
allotted. After twenty-five years, the allottee secured a
patent in fee and could dispose of the land as he wished.
Because most allotted lands were unsuitable for agriculture and
were insufficient as sustainable economic units, most allottees
lost their land soon after the trust period expired. By 1933,
two-thirds of the Indian land base of 1887 was lost and more
than 90,000 Indians were landless.
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\10\A head of family would receive 160 acres, a single person or an
orphan over 18 years would receive 80 acres, and persons under the age
of 18 would receive 40 acres.
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The federal allotment policy resulted in the loss of over
100 million acres of tribal homelands.\11\ The destruction of
tribal economies, institutions, and communities followed
directly from the reduction of the tribal land base. Reversing
the history and circumstances of land loss and the economic,
social, and cultural consequences of that loss are at the core
of the government's federal trust responsibility toward Indian
tribes.\12\
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\11\IRA Hearing, supra note 9, at 6 (statement of Frederick E.
Hoxie, Swanland Chair/History Professor, Univ. of Ill. (noting the loss
of land from 151 million acres to 52 million acres between 1880 and
1933)).
\12\78 Cong. Rec. 11,726--11,732 (June 15, 1934) (statement of Rep.
Edgar Howard (detailing how the government failed in preventing the
enormous losses of Indian land and how those land losses led to the
growing number of ``landless Indians,'' the dwindling Indian trust
funds, the increasing number of Indians who were once self-supporting
and are now ``virtual paupers,'' and the alarmingly high death rate
among the Indian population)).
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THE DESTRUCTIVE EFFECTS OF FEDERAL ALLOTMENT POLICIES
In 1926, Secretary of the Interior Hubert Work asked the
Institute for Government Research\13\ to study Indian social
and economic conditions. The resulting report, known as the
Meriam Report of 1928,\14\ ``publicized the deplorable living
conditions on reservations and recommended that health and
education funding be increased, that the allotment policy be
ended, and that tribal self-government be encouraged.''\15\ The
report established that the cause of the declining social and
economic conditions on reservations was the federal
government's allotment policy and the loss of Indian homelands
that occurred as a result of those federal policies.\16\
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\13\Now known as the Brookings Institution.
\14\Institute for Government Research, The Problem of Indian
Administration (L. Meriam ed., John Hopkins Press 1928); http://
www.eric.ed.gov/PDFS/ED087573.pdf. This report examined Indian health,
education, administration, economic conditions, and law. It was also
critical of the allotment policy.
\15\Charles Wilkinson & The American Indian Resources Institute,
Indian Tribes As Sovereign Governments 11 (2d ed. 2004) (10th prtg.
2001). See also IRA Hearing, supra note 9, at 6 (statement of Frederick
E. Hoxie, Swanland Chair/History Professor, Univ. of Ill.
\16\``Although critical of the performance of the Indian Bureau,
[the Meriam Report] placed most responsibility on Congress for refusing
to appropriate adequate funds.'' Kenneth R. Philp, John Collier's
Crusade for Indian Reform 1920-1954, 90-91 (1977).
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With the publication of the Meriam Report, Congress became
acutely aware of the problems caused by federal allotment
policies and acted to reverse tribal land losses with passage
of the Indian Reorganization Act of 1934.\17\ The Indian
Reorganization Act (``IRA'') (also known as the ``Wheeler-
Howard Act'' for the bill's congressional sponsors or
informally as ``the Indian New Deal'') ended allotment and
strengthened tribal governments by restoring their land bases.
The IRA specifically authorized the Secretary of the Interior
(``Secretary'') to take lands into trust for tribes so that
tribes could reestablish their homelands.\18\
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\17\25 U.S.C. Sec. Sec. 461-479.
\18\25 U.S.C. Sec. 465.
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Congressman Howard of Nebraska, the sponsor of the IRA in
the House of Representatives and Chairman of the House Indian
Affairs Committee, described the ``staggering'' losses of
Indian lands.\19\ He explained that the IRA would help remedy
the problem by preventing ``any further loss of Indian lands''
and permitting the purchase of additional lands.\20\
Congressman Howard made clear that the restoration of the
tribal land base was not only a legal but also a moral
obligation. ``[T]he land was theirs under titles guaranteed by
treaties and law; and when the government of the United States
set up a land policy which, in effect, became a forum of
legalized misappropriation of the Indian estate, the government
became morally responsible for the damage that has resulted to
the Indians from its faithless guardianship.'' He further
stated that the purpose of the IRA was ``to build up Indian
land holdings until there is sufficient land for all Indians
who will beneficially use it.''\21\ Less than ten percent of
land has been restored to trust status for Indian tribes and
their members since the enactment of the IRA.\22\
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\19\78 Cong. Rec. 11,727-728 (1934).
\20\Id. at 11,727; see also 78 Cong. Rec. 11,123 (June 12, 1934)
(statement of Sen. Wheeler, sponsor of the bill in the Senate (echoing
the remedial goals in relation to Indian lands)).
\21\78 Cong. Rec. 11,732 (1934).
\22\Examining Executive Branch Authority to Acquire Trust Lands for
Indian Tribes, Hearing before the S. Comm. on Indian Affairs, 111th
Cong. 2 (May 21, 2009) [hereinafter Examining Executive Authority
Hearing] (statement of Sen. Byron L. Dorgan, Chairman, S. Comm. on
Indian Affairs). This figure varies from five to eight million,
depending on the source, but most sources cite figures of approximately
five million acres. Regardless of whether the figures cited are five or
eight million acres, both represent less than 10% of lands lost through
allotment. See also Supreme Court Decision, Carcieri v. Salazar,
Ramifications to Indian Tribes, Hearing Before the H. Comm. on Natural
Res. 34 (Apr. 1, 2009) [hereinafter Carcieri's Ramifications to Tribes
Hearing] (statement of Michael J. Anderson, AndersonTuell, LLP (noting
that ``[a]bout four million acres have been taken into trust since the
IRA was passed'')).
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An adequate land base is essential for the economic
advancement and self-support of the Indian communities and the
preservation of tribal culture. The need to provide land for
Indians was recognized as an important part of the IRA\23\
because land could be beneficially used to increase Indian
self-support.\24\ The IRA was enacted as a means not simply of
halting the prior federal policies that had destroyed Indian
communities and Indian economies, but reversing the course that
had led to those losses.\25\
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\23\See S. Rep. No. 1080, 73d Cong., 2d Sess., 2 (1934) (stating
that section 5 would ``meet the needs of landless Indians and of Indian
individuals and tribes whose land holdings are insufficient for self-
support''); H.R. Rep. No. 1804, at 6 (noting that the purchase of lands
would help ``[t]o make many of the now pauperized, landless Indians
self-supporting''); 78 Cong. Rec. 11,730 (statement of Rep. Howard
(noting that section 5 would ``provide land for Indians who have no
land or insufficient land, and who can use land beneficially'')).
\24\S. Rep. No. 1080, 73d Cong., 2d Sess., 1 (1934). See also 78
Cong. Rec. 11,125 (statement of Sen. Burton K. Wheeler (``This bill . .
. seeks to get away from the bureaucratic control of the Indian
Department, and it seeks further to give the Indians the control of
their own affairs and of their own property; to put it in the hands
either of an Indian Council or in the hands of a corporation to be
organized by the Indians.'')).
\25\See 78 Cong. Rec. 11,123 (June 12, 1934) (statement of Sen.
Burton K. Wheeler (outlining the purposes of the IRA) (``There is
nothing in the bill as presented to the Senate which in any wise [sic]
gives the Department of the Interior the right to impose its will upon
the Indians on any reservation.'')).
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THE INDIAN REORGANIZATION ACT: THE FOUNDATION FOR FEDERAL INDIAN POLICY
IN MODERN ERA OF TRIBAL SELF-DETERMINATION
By the 1930s, the federal allotment policies had proven
disastrous for Indian tribes.\26\ As part of the repudiation of
federal allotment policies, the IRA ended allotment and made
possible the organization of tribal governments and tribal
corporations. The passage of the IRA ended the federal support
that had led to the erosion of Indian land and resources and
reaffirmed the inherent powers of tribal governments.\27\
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\26\Hodel v. Irving, 481 U.S. 704, 707 (1987) (``The failure of the
allotment program became even clearer as successive generations came to
hold the allotted lands. Thus 40-, 80-, and 160-acre parcels became
splintered into multiple undivided interests in land, with some parcels
having hundreds, and many parcels having dozens, of owners. Because the
land was held in trust and often could not be alienated or partitioned,
the fractionation problem grew and grew over time. A 1928 report
commissioned by the Congress [the Meriam Report] found the situation
administratively unworkable and economically wasteful.'').
\27\IRA Hearing, supra note 9, at 3 (statement of Frederick E.
Hoxie, Swanland Chair/History Professor, Univ. of Ill.).
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The IRA has been recognized as one of the most important
pieces of Indian legislation in American history. It advanced a
sweeping change in federal Indian policy intended ``to
establish machinery whereby Indian tribes would be able to
assume a greater degree of self-government, both politically
and economically.''\28\ Through the IRA, Congress sought to
replace assimilationist policies characterized by the Allotment
Act and revitalize and strengthen tribal government\29\ and
``rehabilitate the Indian's economic life and to give him a
chance to develop the initiative destroyed by a century of
oppression and paternalism,'' so that a ``tribe taking
advantage of the IRA might generate substantial revenues for
the education and the social and economic welfare of its
people.''\30\ These principles are the foundation for federal
Indian policy in the modern era of tribal self-
determination.\31\
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\28\Morton v. Mancari, 417 U.S. 535, 542 (1974).
\29\See Iowa Mutual Ins. Co. v. LaPlante, 480 U.S. 9, 14 n.5
(1987); Fisher v. Dist. Court, 424 U.S. 382, 387 (1976); Morton, 417
U.S. at 543. See also Wilkinson, supra note 15, at 12 (``The most
significant contribution of the IRA was to promote the exercise of
self-governing powers.'').
\30\Mescalero Apache Tribe v. Jones, 411 U.S. 145, 151-52 (1973)
(citations omitted).
\31\California v. Cabazon Band of Mission Indians, 480 U.S. 202,
219 (1987); White Mountain Apache Tribe v. Bracker, 448 U.S. 136, 143 &
n. 10 (1980).
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Restoration of land to tribal ownership is one of the
central purposes of the IRA and has been recognized by Congress
as essential to tribal self-determination.\32\ As Congressman
Howard succinctly stated during the House consideration of the
measure, ``[l]and reform and in [sic] a measure home rule for
the Indians are the essential and basic features of this
bill.''\33\
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\32\See Carcieri Crisis: The Ripple Effect on Jobs, Economic
Development and Public Safety in Indian Country: Hearing on S. 676
Before the S. Comm. on Indian Affairs, 112th Cong. (Oct. 13, 2011)
[hereinafter Carcieri Hearing] (statement of Richard Guest, Staff
Attorney, Native Am. Rights Fund) (``Congress recognized that tribal
self-determination and economic self-sufficiency could not be achieved
without adequate lands.'' (quoting Brief for National Congress of
American Indians (``NCAI'') as Amici Curiae Supporting Defendants-
Appellees, Carcieri v. Norton, 423 R.3d 45 (1st Cir. 2005) (No. 03-
2647), available at http://www.narf.org/sct/carcieri/1stcircuit/ncai-
tribes-amicus-brief.pdf)).
\33\78 Cong. Rec. 11,729 (1934).
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The IRA was signed into law on June 18, 1934. Section 5 of
the IRA provides for the recovery of the tribal land base and
is integral to the IRA's overall goals of recovering from the
loss of land and reestablishing tribal economic, governmental
and cultural life:
The Secretary of the Interior is hereby authorized,
in his discretion, to acquire, through purchase,
relinquishment, gift, 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 be living or deceased, for the
purpose of providing land for Indians.
* * * * *
Title to any lands or rights acquired pursuant to
this Act . . . shall be taken in the name of the United
States in trust for the Indian tribe or individual
Indian for which the land is acquired, and such lands
or rights shall be exempt from State and local
taxation.
25 U.S.C. Sec. 465. Of the more than 90 million acres of
tribal homelands lost through the allotment process, less than
10 percent have been restored to trust status since the IRA was
passed over 75 years ago.\34\ Still today, a number of
federally recognized Indian tribes do not have a land base, or
have insufficient lands, and cannot support a governing base or
basic community needs such as housing, education, and economic
development. In addition, many tribal land parcels are overly
fractionated,\35\ a disastrous effect of earlier federal
allotment policies which has resulted in far more Indian land
passing out of trust than gets taken into trust each year.
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\34\Examining Executive Authority Hearing, supra note 22, at 16
(statement of Ron Allen, Secretary, Nat'l Cong. of Am. Indians).
\35\``Today, an individual plot of allotted land might have up to
one thousand owners, and can therefore be put to no beneficial use.''
Press Release, Senator Akaka, Committee Holds Hearing on the American
Indian Probate Reform Act (Aug. 5, 2011), http://akaka.senate.gov/
press-releases.cfm?method=releases.view&id=63b58e04-857f-465a-9bcc-
c09f75ec6970.
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The IRA focuses on repairing the harm that was done through
prior allotment policies, but the restoration of tribal land is
not the only purpose of the IRA.\36\ The broader intent of the
IRA was about revitalizing tribal government and enabling all
tribes the basis for self-determination. This broader purpose
can only be fulfilled by affording all tribes the opportunity
for land as a territorial base. In passing the IRA, Congress
recognized that the enormous losses of land due to allotment
had deprived the tribes not only of land, but of the base
necessary for self-support.\37\
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\36\IRA Hearing, supra note 9, at 21-22 (testimony of Carole
Goldberg, Jonathan D. Varat Distinguished Professor of Law, UCLA).
``[T]o read that as the exclusive purpose of the Act . . . is not
consistent with what is there in the legislative history.'' See id. at
32-33 (noting that the exchange between Chairman Wheeler and
Commissioner Collier reflects Collier's view that there would be more
flexibility in the application of the IRA).
\37\Self-support, or self-determination, can only be achieved
through the establishment of a territorial basis. See IRA Hearing,
supra note 9, at 6 (testimony of Carole Goldberg, Jonathan D. Varat
Distinguished Professor of Law, UCLA) (IRA policy was to ``abandon the
goal of assimilation in favor of the belief that Native American
societies had a right to exist on the basis of culture different from
the dominate one in the United States, and this could only be achieved
through establishment and reestablishment of the territorial basis for
tribal self-determination. That was a key component of the purpose of
the Indian Reorganization Act.'').
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The IRA policy of reversing the effects of the Allotment
Act was reaffirmed some 65 years later when Congress adopted
the Indian Land Consolidation Act Amendments of 2000, which
states that it is ``the policy of the United States . . . to
reverse the effects of the allotment policy on Indian
tribes.''\38\
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\38\Pub. L. 106-462, Sec. 102(5), 114 Stat. 1992 (codified at 25
U.S.C. Sec. 2201).
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EXECUTIVE AND LEGISLATIVE POLICIES HAVE LONG REFLECTED CONGRESSIONAL
INTENT TO FOSTER TRIBAL SOVEREIGNTY AS EXPRESSED IN THE INDIAN
REORGANIZATION ACT
Congressional support for tribal self-government and self-
determination is clearly expressed in federal statutes,
policies, and practices. Enactment of the IRA was only one in a
series of numerous congressional acts that were passed to
promote and support the sovereignty of all tribal governments.
Congress alone has plenary power over the federal government's
relations with the tribes.\39\ Congressional response to
allotment and assimilation policies was to enact an
unprecedented volume of Indian legislation over the next
century. Most of this legislation reaffirms Congress's
recognition that tribes possess the inherent authority to
govern themselves.
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\39\U.S. Const. art. I, Sec. 8, cl. 3. See also United States v.
Kagama, 118 U.S. 375 (1886) (confirming the plenary power of Congress
over Indian affairs, the domestic, dependent status of the tribes, and
the guardian-ward relationship).
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With the enactment of the Snyder Act in 1921,\40\ Congress
began, for the first time, to authorize appropriations and
expenditures under a broad authority delegated to the Secretary
for the administration of Indian Affairs; including the support
of education, health programs, and economic assistance in
Indian country.\41\ In 1924, Congress naturalized all ``Indians
born within the territorial limits of the United States''\42\
by enacting the Indian Citizenship Act.\43\ American Indians
now had access to education, health, welfare, and other social
service programs.
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\40\25 U.S.C. Sec. 13.
\41\Prior to 1921, appropriations were distributed on an ad hoc
basis by BIA superintendents to the Indians under their purview. This
system tended to be unsystematic and inadequate. For the definition of
``Indian country,'' see 18 U.S.C. Sec. 1151 (defining Indian country
as ``(a) all land within the limits of any Indian reservation under the
jurisdiction of the United States Government, notwithstanding the
issuance of any patent, and, including rights-of-way running through
the reservation, (b) all dependent Indian communities within the
borders of the United States whether within the original or
subsequently acquired territory thereof, and whether within or without
the limits of a state, and (c) all Indian allotments, the Indian titles
to which have not been extinguished, including rights-of-way running
through the same.''
\42\43 Stat. 253, 8 U.S.C. Sec. 1401(a)(2).
\43\8 U.S.C. Sec. 1401 (1924). The Act gave Indians the right to
vote in national elections, but it did not provide full protection
under the Bill of Rights to Indians living under tribal governments.
Later amendments clarified that the Act applied to Alaska Natives as
well.
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The election of President Franklin D. Roosevelt in 1932 led
to the ``Indian New Deal Era''\44\ and it represented something
truly new in federal Indian policy.\45\ Congress repudiated the
forced assimilation of Indians through allotment and other
related federal policies and began to pass laws that encouraged
the development of tribal governments, economies, and cultures.
Their efforts resulted in the IRA--the centerpiece of this new
era.
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\44\Approximately 1928-1947. Although driven by the Meriam Report
in 1928, the ``Indian New Deal Era'' began generating positive legal
changes after the election of President Franklin D. Roosevelt in 1932.
\45\The National Congress of American Indians (``NCAI'') was formed
in 1944, during the ``Indian New Deal Era,'' in response to termination
and assimilation policies that the United States forced upon the tribal
governments in contradiction of their treaty rights and status as
sovereigns. Comprised of mostly BIA employees, NCAI stressed the need
for unity and cooperation among tribal governments for the protection
of their treaty and sovereign rights. NCAI is the oldest, largest, and
most representative group of American Indians and Alaska Natives and is
often viewed as the most politically influential Indian organization in
the United States. National Congress of american Indians (Apr. 24,
2012, 1:30:00 PM), http://www.ncai.org/about-ncai/mission-history.
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The Indian Claims Commission Act was passed in 1946\46\ and
provided for the monetary recovery for all takings of land, no
matter what was the source of Indian title. This Act also
includes a right of recovery for executive order reservations,
allowing for the recovery of unconscionable consideration, and
other improper land acquisitions with claims that occurred
before the date of enactment.
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\46\60 Stat. 1049, 1050 (codified at 25 U.S.C. Sec. 70a).
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In 1968,\47\ President Lyndon Johnson signed into law the
Indian Civil Rights Act,\48\ further emphasizing the federal
government's support of self-governance and self-determination
by providing individual Indians with some statutory protections
against their tribal governments.\49\
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\47\It is important to note that from 1953 to the mid-1960s, the
period known as the ``Termination Era,'' there was a substantial loss
of Indian land as the federal government attempted to sever its trust
relationship with as many tribes as possible in order to expedite
assimilation. Over 100 tribes were terminated and lost their status as
federally recognized and sovereign Indian communities. The termination
policies were discredited in the mid-1960s by President Nixon (and
later, by President Reagan in the 1980s). President Nixon's
condemnation of the Termination Era and his call for Indian self-
determination returned the nation to a policy based on the principles
that were manifested in the IRA and reinforced the importance of
restoring tribal land.
\48\Pub. L. 90-284, 82 Stat. 77 (1968) (codified as amended at 25
U.S.C. Sec. 1301-1303). Although controversial, the Indian Civil Rights
Act is an important measure designed to guarantee Indians living under
tribal governments the same rights as those of other U.S. citizens.
\49\This protection is modeled after the protections the U.S.
Constitution provides to individuals against state and local
governments.
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Recognizing that previous federal interpretations of Indian
policies had been inconsistent, President Richard M. Nixon
issued a landmark statement in 1970 calling for a new federal
policy of ``self-determination'' for Indian nations.\50\
President Nixon signed into law the Indian Education Act in
1972\51\ and ushered in a new era of reconciliation between the
federal government and Indians. The Indian Education Act
promised to provide adequate and appropriate educational
services for Indians in order to guarantee future generations
the tools necessary to compete in modern society without
necessitating the abandonment of their traditional culture and
practices. The Indian Financing Act of 1974\52\ was enacted to
further enhance tribal economic development by increasing the
amount of federal money available for tribal business
enterprises.
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\50\Message from the President of the United States Transmitting
Recommendations for Indian Policy, H.R. Doc. No. 91-363, 91st Cong., 2d
Sess. (July 8, 1970).
\51\20 U.S.C. Sec. Sec. 241aa, 887c, 1211a.
\52\25 U.S.C. Sec. Sec. 1451-1453.
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The government-to-government relationship between the
federal government and Indian tribes has existed since the
formation of the United States and has been reaffirmed by every
President since the 1970s. For over four decades, the United
States' federal policy on Indian Affairs has been one of tribal
self-governance and self-determination. This policy strengthens
tribal governments and provides the means for tribal economic
self-sufficiency.\53\ Congress placed the primary
responsibility for Indian matters with the Department of Health
and Human Services (``HHS'') and the Department of the Interior
(``DOI'').\54\ The United States government and its executive
agencies historically dealt and continue to deal with Indian
tribes as set forth in the United States Constitution.\55\
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\53\See, e.g., The American Indian Agricultural Resource Management
Act, 25 U.S.C. Sec. Sec. 3701-3713 (1993), which was enacted to carry
out the federal government's trust duty to protect, conserve, utilize,
and manage Indian agricultural lands and related renewable resources
with the active participation of the tribal landowner; the Indian
Employment, Training, and Related Services Demonstration Act, Pub. L.
102-477 (amended by Pub. L. 106-568 (1992)), which authorized the
integration of employment, training, and related services provided by
Indian tribal governments; the Indian Mineral Development Act, 25
U.S.C. Sec. 2102-2108 (1982), which authorizes Indian tribes, with
approval of the Secretary, to enter into joint ventures in the
operating, production sharing, service, managerial, leasing, or other
agreements for the extraction, processing or other development of oil,
gas, uranium, coal, geothermal or other energy or non-energy mineral
resources; the Indian Child Welfare Act, 25 U.S.C. Sec. Sec. 1901-1963
(1978), which provides a comprehensive scheme for the adjudication of
child custody cases involving Indian children by deferring to tribal
governments; the American Indian Religious Freedom Act, 42 U.S.C.
Sec. 1996 (1978), which provided an important acknowledgment of Indian
religious tenets.
\54\25 U.S.C. Sec. 450.
\55\See Indian Commerce Clause, U.S. Const. art. I, Sec. 8, cl. 3;
Treaty Clause, U.S. Const. art. II, Sec. 2, cl. 2.
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The Indian Self-Determination and Education Assistance Act
of 1975 (``Self-Determination Act''),\56\ reaffirms the
government-to-government relationship between the federal
government and the tribes by providing for the tribes' full
participation in government and education programs and services
to Indian people and tribal communities. This partnership
establishes a program of assistance to upgrade Indian
education, and encourages Indians to manage their own schools.
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\56\Pub. L. 93-638, 88 Stat. 2203 (codified at 25 U.S.C.A.
Sec. Sec. 450-458e) (amended by Pub. L. 100-202, Pub. L. 101-301, Pub.
L. 100-446, Pub. L. 100-472, Pub. L. 100-581, and Pub. L. 101-644). The
Indian Self-Determination and Education Assistance Act, Pub. L. 93-638,
originally included two acts: Title I is known as the Indian Self-
Determination Act and appears generally at 25 U.S.C. Sec. Sec. 450f-
450n, and Title II is known as the Indian Education Assistance Act and
appears generally at 25 U.S.C. Sec. Sec. 455-458e.
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In the 1980s, President Reagan's policies expanded and
developed the federal Indian self-determination policies of the
1970s.\57\ The President repudiated termination and pledged to
uphold the Indian Self-Determination Act. ``He admitted that
without healthy reservation economies the concept of self-
government had little meaning.''\58\ As a result, the Indian
Land Consolidation Act of 1983\59\ and its amendments are
important pieces of legislation that reverse the effects of
previous federal allotment policies and prevent the further
fractionation of Indian land title. During this time, the
Indian Self-Determination Act was amended to make contracting
easier between federal and tribal governments, thereby
providing for the exercise of greater tribal self-
governance.\60\ The resulting contracts, or compacts, allow
tribes the administration and management of programs,
activities, functions and services previously managed by the
Bureau of Indian Affairs (``BIA'').
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\57\President Reagan was also supportive of tribal self-governance
and self-determination and issued an affirmative statement on January
24, 1983 concerning federal Indian policy. See President Ronald
Reagan's American Indian Policy (Jan. 24, 1983), available at http://
www.schlosserlawfiles.com/consult/reagan83.pdf.
\58\Indian Self-Rule: First-Hand Accounts of Indian-White Relations
from Roosevelt to Reagan 24 (Kenneth R. Philp ed., 1995).
\59\25 U.S.C. Sec. Sec. 2201-2221.
\60\Known as Indian Self-Determination Act Amendments of 1988, Pub.
L. 100-472 (1988) (codified at 25 U.S.C. Sec. Sec. 450a-450n)
(Sec. 450f repealed by Pub. L. 106-260).
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Contrary to dozens of federal statutes and decades of
presidential policies instructing that all tribes be treated
equally, some federal agencies began to discriminate amongst
tribes based on their date of federal recognition or the manner
in which the tribe received recognition. When Congress learned
of the agencies' disparate treatment of tribes, it passed two
amendments to the IRA on May 31, 1994.\61\ The 1994 Amendments
underscored existing congressional policy and guaranteed that
all federally recognized tribes would receive equal treatment
by the federal government and its agencies. ``The purpose of
the amendment[s] [S. 2017] is to clarify that section 16 of the
Indian Reorganization Act was not intended to authorize the
Secretary of the Department of the Interior to create
categories of federally recognized Indian tribes. In the past
year, the Pascua Yaqui Tribe of Arizona has brought to our
attention the fact that the Department of the Interior has
interpreted section 16 to authorize the Secretary to categorize
or classify Indian tribes as being either created or historic *
* * All of this ignores a few fundamental principles of Federal
Indian law and policy * * * Congress itself cannot create
Indian tribes, so there is no authority for the Congress to
delegate to the Secretary in this regard. * * * [T]he
interpretation of section 16 which has been developed by the
Department is inconsistent with the principle policies
underlying the IRA.''\62\
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\61\25 U.S.C. Sec. 476(f) & (g). It should be noted that in the
years between 1988 and 1994 discussed above, there were several
additional statutes enacted that also supported tribal self-governance.
These acts include the Indian Law Enforcement Act (25 U.S.C. Sec. 2801
(1990)); the Native American Graves Protection and Repatriation Act (25
U.S.C. Sec. 3001 (1990)); and the Clean Air Act Amendments (42 U.S.C.
Sec. 7601(d)(2) (1990)).
\62\140 Cong. Rec. S6146 (daily ed. May 19, 1994) (statement of
Sen. John McCain). ``[A] serious mistake has been made by the
Department in construing the intent of Congress in enacting 16 * * *
[S]ection 16 does not authorize or require the Secretary of the
Interior to draw distinctions between tribes or to categorize them
based on their powers of governance. As Mr. [Felix] Cohen noted in his
1942 Handbook on Federal Indian Law, the IRA `had little or no effect
upon the substantive powers of tribal self-government vested in the
various Indian tribes.' The courts have consistently construed the IRA
to have had no substantive effect on tribal sovereign authority.'' 140
Cong. Rec. S4338 (daily ed. Apr. 14, 1994) (statement of Sen. John
McCain).
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Also in 1994, Congress passed the Indian Self-Determination
Act Amendments (also known as the ``Tribal Self-Governance
Act'').\63\ These amendments provided legislative guidance for
tribes who chose to contract for the transfer of federal
programmatic authorities and resources under the Indian Self-
Determination Act.
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\63\Pub. L. 103-413 (1994) (codified at 25 U.S.C. Sec. 450-450n and
458aa-458hh).
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Solidifying its support of tribal sovereignty, Congress
enacted the Federally Recognized Indian Tribe List Act of 1994
(``List Act'').\64\ The List Act requires the BIA to annually
publish the list of federally recognized tribes in the Federal
Register. The List Act documents the federally recognized
status for all tribes on the published list and serves as a
record of federally recognized tribes that are eligible for
funding and services from the BIA by virtue of their status as
Indian tribes.\65\ Unlike in 1934 when the IRA was enacted and
no such list existed, the List Act eliminates the possibility
of administrative termination of tribes.
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\64\Pub. L. 103-454 (1994) (codified at 25 U.S.C. Sec. 479a-1).
This is a list of federally recognized tribes that are eligible for
funding and services from the Bureau of Indian Affairs by virtue of
their status as Indian tribes. The Act also formally established three
ways in which an Indian group may become federally recognized, (1) By
Act of Congress; (2) by the administrative procedures under 25 C.F.R.
Part 83: or (3) by decision of a United States court.
\65\H.R. Rep. No. 103-781 at 3 (1994), as reprinted in 1994
U.S.C.C.A.N. 3768.
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THE 1994 AMENDMENTS REAFFIRM THE INDIAN REORGANIZATION ACT
Congress amended the IRA in 1994 in order to prohibit the
federal government and its agencies from taking any action that
``classifies, enhances, or diminishes the privileges and
immunities available to the Indian tribe relative to other
federally recognized tribes by virtue of their status as Indian
tribes.''\66\ The amendments made it clear that ``tribe'' shall
be defined to include all federally recognized tribes in all
federal statutes affecting Indian tribal governments.\67\
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\66\Pub. L. No. 103-263, 108 Stat. 707 (codified as 25 U.S.C.
Sec. 476(f) & (g)).
\67\Memorandum from John D. Leshy, Solicitor, Office of the
Solicitor, U.S. Dep't of the Interior, to Ada E. Deer, Assistant
Secretary, Office of Indian Affairs, U.S. Dep't of the Interior 3-7
(July 13, 1994) (citing the broad definition of ``tribe'' in the Indian
Civil Rights Act of 1968, 25 U.S.C. Sec. 1301(1): ``any tribe, band, or
other group of Indians subject to the jurisdiction of the United States
and recognized as possessing powers of self-government''). In his
memorandum, Leshy also notes the broad definition of ``tribe'' in many
other federal statutes, including, Indian Land Consolidation Act, 25
U.S.C. Sec. 2201(1); the Indian Child Welfare Act, 25 U.S.C.
Sec. 1903(8); the Indian Self-Determination and Education Assistance
Act, 25 U.S.C. Sec. 450b(e); the Indian Child Protection and Family
Violence Prevention Act, 25 U.S.C. Sec. 3202(10).
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The 1994 amendments revised Section 16 of the IRA by adding
language in subsection (f) and (g) to ensure that federal
agencies treat all federally recognized tribes equally, no
matter when, or how, they received recognition from the federal
government.\68\ In particular, subsection (f) prohibits the
Secretary and other Administrative agencies from promulgating
any regulation that ``classifies, enhances, or diminishes the
privileges and immunities available to the Indian tribe
relative to other federally recognized tribes by virtue of
their status as Indian tribes.''\69\ Subsection (g) of the 1994
amendments ensured that any Administrative actions that treated
tribes in differing ways would be invalid. Specifically,
subsection (g) states that ``[a]ny regulation, administrative
decision, or determination of a Department or agency of the
United States that classifies, enhances, or diminishes the
privileges and immunities'' of an Indian tribe relative to the
privileges and immunities of other federally recognized Indian
tribes shall have no force or effect.\70\
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\68\25 U.S.C. Sec. 476(f) & (g).
\69\25 U.S.C. Sec. 476(f).
\70\25 U.S.C. Sec. 476(g).
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The 1994 amendments put an end to the discriminatory
practices that had been developing within DOI.\71\ DOI had
begun to classify tribes as either ``historic'' and entitled to
the full panoply of inherent sovereign powers not otherwise
divested by treaty or congressional action or ``created'' and
therefore possessing limited sovereign powers.\72\ By enacting
the 1994 amendments and broadening the definition of ``tribe''
in other federal statutes, Congress explicitly rejected DOI's
classifications.\73\ The amendments ensured that DOI upheld the
original intent of the IRA to promote tribal sovereignty by
allowing all federally recognized tribes to organize and self-
govern.\74\
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\71\IRA Hearing, supra note 9, at 35-41 (testimony of Steven
Heeley, Policy Consultant, Akin, Gump, Strauss, Hauer & Feld, LLP
(citing 25 U.S.C. Sec. 476(f)) (noting that DOI's practice came to
light when the Pascua Yaqui Nation of Arizona made efforts to amend
their tribal constitution)). ``Strangely, although the Department was
apparently making this distinction amongst tribes, it appears that the
Department never notified the affected tribes or the Congress of their
new status. Had they done so, we would have acted to correct this
unauthorized arbitrary and unreasonable differentiation of tribal
status long ago * * * [O]ur amendment would void any past determination
by the Department that an Indian tribe is created and would prohibit
any such determinations in the future * * * [O]ur amendment will
correct any instance where any federally recognized Indian tribe has
been classified as `created' and that it will prohibit such
classifications from being imposed or used in the future. Our amendment
makes it clear that it is and has always been Federal law and policy
that Indian tribes recognized by the Federal Government stand on an
equal footing to each other and to the Federal Government.'' 140 Cong.
Rec. S6147 (daily ed. May 19, 1994) (statement of Sen. Daniel K. Inouye
(D-Hawaii) (emphasis added).
\72\``Such an artificial distinction represent[ed] a significant
departure from the Congressional intent and purpose of the IRA and
[was] reminiscent of the very policies of assimilation that the IRA was
intended to address * * * In enacting Public Law 103-263 [the 1994
amendments], Congress rejected the artificial distinction of historic
and created tribes and made clear that any regulation, rule or
administrative decision that classifies, enhances or diminishes the
privileges and immunities available to a federally recognized tribe
relative to other tribes shall have no force and effect.'' IRA Hearing,
supra note 9, at 36 (testimony of Steven Heeley, Policy Consultant,
Akin, Gump, Strauss, Hauer & Feld, LLP (citing 25 U.S.C. Sec. 476(f))).
\73\Leshy, supra note 67, at 7. Leshy also noted that the 1994
amendments to the IRA were not ``confined to the IRA,'' but were
```intended to address all instances where such categories or
classifications of Indian tribes have been applied and any statutory
basis which may have been used to establish, ratify, or implement the
categories or classifications.''' Id. at 3, n.3 (quoting 140 Cong. Rec.
S6147 (daily ed. May 19, 1994) (statement of Sen. John McCain)).
\74\Senator Daniel K. Inouye (D-Hawaii), who co-sponsored the
legislation, told Congress that ``The amendment which we are offering *
* * will make it clear that the Indian Reorganization Act does not
authorize or require the Secretary to establish classifications between
Indian tribes * * * [I]t is and has always been Federal law and policy
that Indian tribes recognized by the Federal Government stand on an
equal footing to each other and to the Federal Government * * * Each
federally recognized Indian tribe is entitled to the same privileges
and immunities as other federally recognized tribes and has the right
to exercise the same inherent and delegated authorities. This is true
without regard to the manner in which the Indian tribe became
recognized by the United States or whether it has chosen to organize
under the IRA. By enacting this amendment * * *, we will provide the
stability for Indian tribal governments that the Congress thought it
was providing 60 years ago when the IRA was enacted.'' 140 Cong. Rec.
S6147 (daily ed. May 19, 1994).
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DOI's discriminatory practices were based on two
discredited Solicitors' Opinions: the first was written in 1934
and generally discussed the powers of tribal sovereignty; and
the second was written in 1936.\75\ The 1936 Opinion formed the
basis of DOI's classifications by relying on Section 16 of the
IRA--a section that had been amended by Congress to eliminate
the ``historic'' versus ``created'' distinction in 1988 and in
1994.\76\
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\75\IRA Hearing, supra note 9, at 38 (testimony of Steven Heeley,
Policy Consultant, Akin, Gump, Strauss, Hauer & Feld, LLP) (citing
Letter from Carol A. Bacon, Acting Director, Office of Tribal Services,
Bureau of Indian Affairs, to the Honorable Arcadio Gastelum, Chairman,
Pascua Yaqui Tribal Council (Dec. 3, 1991)). ``The views of the
Department in advancing this artificial distinction between federally
recognized Indian tribes represents a significant departure from the
congressional intent and purpose of the Indian Reorganization Act and
is reminiscent of the very policies of assimilation that the Indian
Reorganization Act was intended to address.'' Id.
\76\IRA Hearing, supra note 9, at 38 (testimony of Steven Heeley,
Policy Consultant, Akin, Gump, Strauss, Hauer & Feld, LLP) (``The views
of the Department in advancing this artificial distinction between
federally recognized Indian tribes represents a significant departure
from the congressional intent and purpose of the Indian Reorganization
Act and is reminiscent of the very policies of assimilation that the
Indian Reorganization Act was intended to address.''). Memoranda and
opinions written in 1936 by other commissioners and solicitors
advocating these artificial distinctions were specifically cited by DOI
as examples of policies that were overruled by the 1994 amendments.
See, e.g., Leshy, supra note 67, at 3, 7 (``The amendment [1994
amendments] * * * overrules the 1936 Opinion. You should therefore
instruct the Bureau of Indian Affairs to place no reliance on it in
future dealing with the Tribes * * * Congress has now settled the
debate by rejecting the distinction drawn in the 1936 Opinion.''
(citing Solicitor's Opinion, Apr. 15, 1936, 1 Op. Sol. on Indian
Affairs, 618 (U.S.D.C. 1979))). Leshy notes that the 1936 Opinion was
undercut by the 1988 amendments to the IRA. Id. at 5 (citing Pub. L.
No. 100-581, 102 Stat. 2938).
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Congress enacted the 1994 legislation to ensure that DOI
upheld the original intent of the IRA to allow tribes to
organize and self-govern, and to ensure that tribal sovereignty
was not eroded by creating differing levels of sovereignty.\77\
Signed into law by President Clinton on May 31, 1994, the
amendments overruled prior practices of classifying tribes
based on date of their date of recognition or manner of
recognition.\78\ These amendments are direct declarations from
Congress that the federal agencies do not have the authority to
discriminate between tribes based on the history of how a
federally recognized tribe reached that status. Congress has
made it clear that ``if a tribe is federally recognized, they
possess the full panoply of powers of sovereign Indian tribes
unless specifically divested by treaty or Congressional
action.''\79\
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\77\140 Cong. Rec. S6147 (daily ed. May 19, 1994) (statement of
Senator Daniel K. Inouye (D-Hawaii).
\78\Leshy, supra note 67, at 3.
\79\IRA Hearing, supra note 9, at 45 (statement of Steven J.W.
Heeley, Policy Consultant, Akin, Gump, Strauss, Hauer & Feld, LLP
(noting also that this ``artificial distinction represents a
significant departure from the Congressional intent and purpose of the
IRA and is reminiscent of the very policies of assimilation that the
IRA was intended to address'')). ``Subsequent amendments to the IRA
also addressed the category of tribes that chose not to * * * organize
under IRA constitutions, and to make clear that federally recognized
Indian tribes had the right to not adopt an IRA constitution if they so
chose.'' Id., at 46. See also .R. Rep. No. 103-781 at 3 (1994) as
reprinted in 1994 USCCAN 3768.
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Since passage of the IRA in 1934, Congress has enacted many
other statutes addressing Indian tribes and their status under
federal law.\80\ Never has Congress amended the IRA provisions
at issue or expressed any concern that the Secretary has
misinterpreted his authority.\81\ The Supreme Court has also
considered section 5 of the IRA on numerous occasions and has
remarked that section 5 ``provides the proper avenue'' for
tribes ``to reestablish sovereign authority over [lost]
territory.''\82\
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\80\See, e.g., Leshy, supra note 67, at 6-7 (citing the Indian Land
Consolidation Act, 25 U.S.C. Sec. 2201(1); the Indian Child Welfare
Act, 25 U.S.C. Sec. 1903(8); the Indian Self-Determination and
Education Assistance Act, 25 U.S.C. Sec. 450b(b); the Indian Child
Protection and Family Violence Prevention Act, 25 U.S.C.
Sec. 3202(10)). See also Federally Recognized Indian Tribe List Act of
1994, Pub. L. 103-454 (1994) (codified at 25 U.S.C. Sec. 479a-1). This
is a list of federally recognized tribes that are eligible for funding
and services from the BIA by virtue of their status as Indian tribes.
The List Act also formally established three ways in which an Indian
group may become federally recognized, (1) By Act of Congress; (2) by
the administrative procedures under 25 C.F.R. Part 83: or (3) by
decision of a United States court.
\81\See Brief for Respondents at 37, Carcieri v. Salazar, 555 U.S.
379 (2009) (No. 07-526) (citing Goodyear Atomic Corp. v. Miller, 486
U.S. 174, 184-185 (1988)).
\82\City of Sherrill v. Oneida Indian Nation of New York, 544 U.S.
197, 200 (2005). See also Cass County v. Leech Lake Band of Chippewa
Indians, 524 U.S. 103, 114 (1998); County of Yakima v. Confederated
Tribes & Bands of Yakima Indian Nation, 502 U.S. 251, 255 (1992);
Mescalero Apache Tribe v. Jones, 411 U.S. 145, 155-59 (1973).
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THE DEPARTMENT OF THE INTERIOR'S LAND INTO TRUST PROCESS
For the more than 75 years since enactment of the IRA, the
Department of the Interior has understood and has construed the
IRA to authorize the Secretary to acquire land in trust for the
benefit of any tribe that was federally recognized at the time
of the trust land acquisition. The Interior Department's
statutory construction of the IRA was confirmed when the
Department, in 1980, promulgated formal regulations to guide
the Secretary's decision-making process when exercising
authority to place tribal land into trust pursuant to the
IRA.\83\
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\83\Prior to 1980 and after the passage of the IRA in 1934,
Interior used an internal process to decide when and how a tribe could
put land in trust. Although the 1980 regulations were subject to
comment before they were finalized, the process as it currently stands
closely resembles Interior's pre-1980 unpublished guidelines. Padraic
I. McCoy, The Land Must Hold the People: Native Modes of Territoriality
and Contemporary Tribal Justifications for Placing Land into Trust
Through 25 C.F.R. Part 151, 27 Am. Indian L. Rev. 421, 453-54 (2003).
---------------------------------------------------------------------------
The regulations are codified at 25 C.F.R. Part 151 and
define the term ``tribe'' to mean ``any Indian tribe, band,
nation, pueblo, community, Rancheria, colony, or other group of
Indians . . . which is recognized by the Secretary as eligible
for the special programs and services from the Bureau of Indian
Affairs.''\84\
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\84\25 C.F.R. Sec. 151.2(b). The definition found in these
regulations further illustrates Congress' intent to treat all tribes
equally and shows how this inclusive practice was on par with many
other Federal statutes. See e.g., the definition of ``tribe'' in the
Indian Self-Determination and Education Assistance Act, 25 U.S.C.
Sec. 450b(b), the Indian Child Welfare Act, 25 U.S.C. Sec. 1903(8), the
Indian Land Consolidation Act, 25 U.S.C. Sec. 2201(1), and the Indian
Child Protection and Family Violence Prevention Act, 25 U.S.C. Sec.
3202(10).
---------------------------------------------------------------------------
The term ``individual Indian'' means ``any person who is an
enrolled member of a tribe,'' any person who is a descendant of
a tribal member who, in 1934, resided ``on a federally
recognized Indian reservation,'' and persons ``of one-half or
more degree Indian blood of a tribe.''\85\
---------------------------------------------------------------------------
\85\25 C.F.R. Sec. Sec. 151.2(c)(1)-(3).
---------------------------------------------------------------------------
These regulations govern both on and off-reservation land
into trust acquisitions. The fee to trust process is initiated
when an Indian tribe or an individual Indian submits a written
request to take land into trust to their local BIA agency or
regional office. The BIA makes several determinations following
the initial request, including whether the acquisition is
mandatory or discretionary and whether the acquisition is on or
off reservation.
For on-reservation land into trust acquisitions, the
applicant must submit (1) a map and a legal description of the
land; (2) a justification of why the land should be placed in
trust; and (3) in- formation on the present use of the
property, the intended use of the property, and whether there
are any improvements on the land. The BIA Regional Office or
Agency Superintendent makes the final determination of whether
to approve the on-reservation application. In making its
decision, the BIA takes into account such factors as the need
of the individual Indian or tribe, the impact on the state and
its political subdivisions resulting from removing the land
from the tax rolls, any jurisdictional issues that may arise,
and whether the BIA is equipped to carry out its trust
responsibilities if the land is acquired. For off-reservation
land acquisitions additional information is required, including
a business plan if the acquisition is to be used for economic
development purposes.
Off-reservation acquisition decisions are made at the BIA's
Central Office in Washington, D.C.\86\ Once all the relevant
information has been provided, the BIA sends out notification
letters to the state, county, and municipal governments with
regulatory jurisdiction over the land, notifying them of the
application and requesting comments on the impact if the lands
are acquired as trust lands.\87\ Specifically, the BIA requests
information on the change to the local government's regulatory
jurisdiction, effect on real property taxes, and special
assessments.\88\ If, following this process, the Secretary
decides to take the land into trust, the Secretary publishes a
notice of the decision in the Federal Register with a statement
that the Secretary shall ``acquire title in the name of the
United States no sooner than 30 days after notice is
published.''\89\
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\86\In making his determination on off-reservation parcels, the
Secretary must take into account the criteria for on-reservation
parcels as well as the location of the land relative to state
boundaries and the distance of the parcel from the reservation, the
anticipated economic benefits associated with the proposed use, and the
comments received from the state and local governments. 25 C.F.R.
Sec. 151.11.
\87\25 C.F.R. Sec. Sec. 151.10, 151.11.
\88\Id.
\89\25 C.F.R. Sec. 151.12(b).
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THE CARCIERI V. SALAZAR CASE
On February 24, 2009, the Supreme Court issued its decision
in Carcieri v. Salazar,\90\ holding that the Secretary did not
have the authority to take land into trust under the IRA for
the Narragansett Indian Tribe (``Tribe'') because the Tribe was
not ``under federal jurisdiction'' in 1934 when the IRA was
enacted.
---------------------------------------------------------------------------
\90\555 U.S. 379 (2009).
---------------------------------------------------------------------------
The Carcieri case involved a challenge by Governor Carcieri
of Rhode Island to the Secretary's authority to take land into
trust status for the Tribe pursuant to the IRA. The Tribe
obtained federal recognition in 1983 through the administrative
process within the Department of the Interior. This process is
set forth through federal regulations adopted in 1978.\91\
These mandatory criteria require, among other things, that a
tribe must be identified as a distinct governing American
Indian entity having existed ``on a substantially continuous
basis since 1900.''\92\ In acknowledging the Narragansett
Tribe's relationship with the federal government, the Assistant
Secretary-Indian Affairs concluded that the Tribe had existed
continuously since first European contact and had a documented
history since 1614.
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\91\25 C.F.R. Sec. 83.
\92\25 C.F.R. Sec. 83.7(a), (b), (c).
---------------------------------------------------------------------------
While the Tribe's petition for federal acknowledgement was
pending before the Department of the Interior, the Tribe also
brought a land claim against the State of Rhode Island in the
1975 to recover its ancestral land, claiming that the State had
misappropriated tribal land in violation of federal law. Those
claims were resolved by a settlement agreement that was
codified by Congress in 1978.\93\ In exchange for 1,800 acres
of land, the Tribe surrendered any past or future claims to
title and agreed that state law would apply to the 1,800 acres.
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\93\Known as the Rhode Island Indian Claims Settlement Act, 25
U.S.C. Sec. Sec. 1701-1716.
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In 1991, the Tribe's housing authority purchased 31 acres
of land adjacent to the Tribe's initial reservation to be used
for a low-income and elderly housing complex. These 31 acres
were part of the original disputed territory in 1975, but were
not a part of the Settlement Lands established by the 1978
agreement, and therefore not subject to state jurisdiction.
Soon after the purchase, a dispute arose about whether the
Tribe's planned construction of housing on the 31-acre parcel
had to comply with local regulations. The Tribe requested that
the Secretary place the land in trust. By having the land taken
into trust, an exercise of tribal sovereignty, the Tribe is
afforded the opportunity to exercise self-government and
economic independence. On March 6, 1998, the Department of the
Interior informed the Tribe of its decision to acquire the land
in trust. Before the land was placed in trust, Rhode Island
challenged the Department's decision in a number of
administrative appeals and then by suit in Federal district
court.
One of the State's arguments was that the phrase ``now
under federal jurisdiction'' in section 19 of the IRA\94\
limited the Secretary's authority to acquire land in trust
under section 5 of the IRA\95\ to only those Indian tribes that
were ``under federal jurisdiction'' as of the IRA enactment
date in 1934. The Secretary contended that the IRA applies to
all tribes that are federally recognized at the time that land
is taken into trust.\96\ The Federal district court held that
since the Narragansett Tribe is currently recognized and
existed at the time of the enactment of the IRA, it qualified
as an Indian tribe within the meaning of the IRA. The First
Circuit Court of Appeals held that the term ``now'' was
ambiguous as to whether it meant at the moment Congress enacted
the law or at the moment the Secretary invokes the law.
Accordingly, the Circuit Court deferred to the Secretary's
interpretation of the provision of the IRA. The State then
sought review by the United States Supreme Court, asking the
Court to determine whether the IRA empowers the Secretary to
take land into trust for Indian tribes that were not recognized
and under federal jurisdiction in 1934.\97\
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\94\25 U.S.C. Sec. 479.
\95\25 U.S.C. Sec. 465.
\96\ IRA Hearing, supra note 9, at 12 (testimony of Carole
Goldberg, Jonathan D. Varat Distinguished Professor of Law, UCLA).
\97\Brief for Petitioner at i, Carcieri v. Salazar, 555 U.S. 379
(2009) (No. 07-526).
---------------------------------------------------------------------------
THE UNITED STATES SUPREME COURT HELD THAT ``NOW'' MEANS ``IN 1934''
The United States Supreme Court held in Carcieri that the
Secretary did not have the authority to take land into trust
for the Tribe under section 5 of the IRA because the Tribe was
not ``under federal jurisdiction,'' as that term is used in the
definition of ``Indian'' in section 19. The Court pointed to
the parties' agreement that the definition of ``Indian'' in
section 19 determines which tribes may rely on section 5, and
stated that the case turned on ``whether the Narragansetts are
members of a `recognized Indian Tribe now under federal
jurisdiction.'''\98\
---------------------------------------------------------------------------
\98\Carcieri v. Salazar, 555 U.S. 379, 388 (2009).
---------------------------------------------------------------------------
The Court determined that ``now'' means ``in 1934,'' when
the IRA was enacted, rather than the date that the Secretary
acted to take land into trust.\99\ It did so notwithstanding
the absence of the word ``now,'' or any other temporal
qualifier in the separate definition of the term
``tribe,''\100\ which also appears in section 19, and despite
its recognition that section 5 authorizes the Secretary to take
land into trust for a tribe.\101\ Nevertheless, the Court found
that, because ``the record establishes that the Narragansett
Tribe was not under federal jurisdiction when the IRA was
enacted,'' the Secretary lacked authority to take land into
trust for the Narragansett Indian Tribe.\102\
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\99\``The Carcieri decision says that we should focus on `now' as
being 1934. What I want to emphasize here is that that misconstrues how
the understanding was at that time in 1934 of what it actually meant to
be recognized or not recognized under Federal jurisdiction.'' IRA
Hearing, supra note 9, at 22 (testimony of Carole Goldberg, Jonathan D.
Varat Distinguished Professor of Law, UCLA).
\100\Carcieri, 555 U.S. at 392-93. ``[L]ater recognition reflects
earlier `Federal jurisdiction.''' Id. at 399 (Breyer, J. concurring
(noting that neither the Tribe nor the Secretary argued that the Tribe
was under federal jurisdiction at the time of the IRA)). While the
established practice of the Department of the Interior does support the
idea that ``now'' was intended as a kind of limitation, the limitation
was a constraint on the individual Indian, not a temporal limit on a
tribe or the date of its recognition. Id. at 398-399 (Breyer, J.,
concurring (explaining that in section 19 of the IRA, the word ``now''
modifies only the phrase ``under federal jurisdiction,'' and it does
not modify the phrase ``recognized Indian tribe, so the result is that
the ``[t]he IRA imposes no time limit upon recognition'')). ``The Court
should have focused on the word `include' instead of `now.' The word
`include' is used pervasively in federal litigation to provide partial
definitions of things that are specifically included, but without
explicit limitation.'' See Scott A. Taylor, Taxation in Indian Country
After Carcieri v. Salazar, Wm. Mitchell L. Rev. 590, 596 (2010). ``The
Court justified its reading of `shall include' to mean `shall mean'
because the list of three categories [in the definition of ``Indian''
in 25 U.S.C. Sec. 479] of Indians was comprehensive. The Court's
logic, however, is flawed because members of tribes to be recognized in
the future would be `Indians' under the generally accepted definition.
Accordingly, the definition easily could be read as insuring inclusion
of members of tribes recognized before enactment of the Indian
Reorganization Act without excluding members of tribes that may be
recognized in the future. This is entirely consistent with the
statutory use of an inclusive, not delimiting, definition of the term
`Indian.''' Id. at 598 (citing Carcieri, 555 U.S. at 391-92).
\101\Carcieri, 555 U.S. at 392-93, 398-399. (Breyer, J.,
concurring). See also Circular No. 3123 from John Collier,
Commissioner, U.S. Dep't of the Interior, Office of Indian Affairs, to
Superintendents, Field Agents, and Others Engaged in Indian
Reorganization Work (Nov. 18, 1935) (explaining the application of
section 19 of the IRA).
\102\The basic Indian law canons of construction require that any
ambiguities within the statute are to be resolved in favor of the
Indian parties. McClanahan v. Ariz. State Tax Comm'n, 411 U.S. 164, 174
(1973); Choctaw Nation v. Oklahoma, 397 U.S. 620, 631 (1970); Winters
v. United States, 207 U.S. 564, 567-77 (1908). Felix Cohen, an advocate
of, and heavily involved in the drafting of the IRA, expressed his
concerns with the ambiguous nature of the phrase ``now under federal
recognition.'' See IRA Hearing, supra note 9, at 34 (statement of
Frederick E. Hoxie, Swanland Chair/History Professor, Univ. of Ill.
(``[W]hen a statute is presented to the court that is ambiguous, the
terms are not clear, that all of the uncertainties or ambiguities are
supposed to be resolved in favor of supporting outcomes that favor
tribal self-determination and land rights . . . I have found in some of
the major historical studies of the Indian Reorganization Act some
rather frank acknowledgment that there was some lack of clarity in the
statute itself about these broader purposes.'')); Examining Executive
Authority Hearing, supra note 22, at 2 (testimony of Edward P. Lazarus,
Partner, Akin Gump Strauss Hauer & Feld, LLP (``In a memorandum written
just prior to the IRA's enactment, Cohen expressed bafflement at the
phrase's significance-backhanding it with the observation, `whatever
that may mean' and argued that the phrase should be deleted because it
would `likely [ ] provoke interminable questions of interpretation.'''
(quoting Analysis of Differences Between House Bill and Senate Bill.
Box 11, Records Concerning the Wheeler-Howard Act, 1933-37, folder
4894-1934-066, Part II-C, Section 4 (4 of 4); Differences Between House
Bill and Senate Bill, Box 10, Wheeler-Howard Act 1933-37, Folder 4894-
1934-066, Part II-C, Section 2, Memo of Felix Cohen))). ``The Court
basically ignored the legislative history dealing with the insertion of
the word `now' in section 19 of the Indian Reorganization Act. The
legislative history clearly shows that the word `now' was added to
section 19 as something of a political compromise over issues totally
unrelated to the land-to-trust provisions.'' Taylor, supra note 100, at
596 (citing Carcieri v. Kempthorne, 497 F. 3d 15, 26-30 (1st Cir.
2007)).
---------------------------------------------------------------------------
The Carcieri decision sent shockwaves through Indian
country in great part because the record on which the Supreme
Court based its interpretation of section 19 of the IRA was
noticeably incomplete.\103\ Upon this Committee's review of the
parties' briefs submitted to the Court, it is clear that the
United States Department of Justice (``DOJ'') and DOI, the
Departments that represented the Tribe, inexplicably failed to
argue or contest Rhode Island's assertion that the Tribe was
not under federal jurisdiction in 1934 and that is why the
Secretary could not take land into trust.\104\
---------------------------------------------------------------------------
\103\See also Carcieri's Ramifications to Tribes Hearing, supra
note 22, at 17 (statement of Michael J. Anderson, AndersonTuell, LLP
(``Regrettably, the Department of the Interior Solicitor's Office last
year lodged the 1994 Babby Letter with the United States Supreme Court
after the briefing was closed in the Carcieiri case (but before the
decision was issued). This misleading filing was made without also
lodging the 1994 privileges and immunities statute that reversed the
historic non-historic tribal distinctions made in the letter. The
Solicitor's Office also failed to file a July 13, 1994 memorandum from
Solicitor John Leshy to Assistant Secretary Ada Deer that also
recognized that Congress for the most part `makes no distinctions among
Tribes.' The Division of Indian Affairs' incomplete lodging with the
Supreme Court raises the specter that the discredited practice of
classifying some tribes as `non-historic' could be revived by the
Division of Indian Affairs in a new post-Carcieri analysis.'' (citing
Leshy, supra note 67)).
\104\See Carcieri v. Salazar, 555 U.S. 379, 395-96 (2009)
(``Moreover, the petition for writ of certiorari filed in this case
specifically represented that `[i]n 1934, the Narragansett Indian Tribe
. . . was neither federally recognized nor under the jurisdiction of
the federal government.' The respondents' brief in opposition declined
to contest this assertion. Under our rules, that alone is reason to
accept this as fact for purposes of our decision in this case. We
therefore reverse the judgment of the Court of Appeals.''); Carcieri's
Ramifications to Tribes Hearing, supra note 22, at 15 (statement of
Michael J. Anderson, AndersonTuell, LLP). However, counsel for the
Secretary did tell the Court that the Secretary's position had always
been that recognition and under Federal jurisdiction were ``one and the
same'' for IRA purposes. See Transcript of Oral Argument at 42,
Carcieri v. Salazar, 555 U.S. 379 (2009) (No. 07-526).
---------------------------------------------------------------------------
Whether the Departments' failure was the result of
negligence or an intentional withholding of information, their
failure to include key pieces of factual information was
nevertheless a breach of the federal government's trust
responsibility to the Tribe. First, because the United States'
brief did not address Rhode Island's claim that the Tribe was
not under federal jurisdiction in 1934, and therefore not
entitled to the benefits of the IRA, the Tribe lost the
opportunity to confirm their status and prove that the IRA did
in fact apply:
In addition to presenting other arguments for denying
the petition, the brief in opposition should address
any perceived misstatement of fact or law in the
petition that bears on what issues properly would be
before the Court if certiorari were granted. Counsel
are admonished that they have an obligation to the
Court to point out in the brief in opposition, and not
later, any perceived misstatement made in the petition.
Any objection to consideration of a question presented
based on what occurred in the proceedings below, if the
objection does not go to jurisdiction, may be deemed
waived unless called to the Court's attention in the
brief in opposition.
Rules of the Supreme Court of the United States, Rule
15.\105\ Failure to comply with this rule proved to be fatal to
the Tribe's chances of success before the Supreme Court.
---------------------------------------------------------------------------
\105\Adopted Jan. 12, 2010 and effective Feb. 16, 2010, available
at http://www.supremecourt.gov/ctrules/2010RulesoftheCourt.pdf.
---------------------------------------------------------------------------
Second, DOJ's Solicitor General failed to proffer all
relevant documents with the Court. This omission resulted in
only a partial record of the law. The United States had in its
possession documents that clearly articulated the DOI's
understanding that a tribe's date of federal recognition is
irrelevant to the application of the IRA because of the
subsequent legislative history of the 1994 amendments to the
IRA and the many other federal statutes that reflected
Congress's exercise of plenary power to provide equality for
all tribes.\106\ These other statutes include legislative acts
such as the Indian Civil Rights Act of 1968,\107\ the Indian
Self-Determination and Education Assistance Act,\108\ the
Indian Child Welfare Act,\109\ the Indian Land Consolidation
Act,\110\ and the Indian Child Protection and Family Violence
Prevention Act.\111\ In all of these acts,\112\ Congress
broadly defined ``tribe'' to include all federally recognized
tribes.\113\ The United States included a 1936 memorandum that
detailed administrative views and practices that had since been
reversed,\114\ and failed to include a 1994 memorandum, which
acknowledged this reversal. As a result of this omission, the
Carcieri record was an incomplete view of the legislative
history that applied outdated administrative practices. Without
a complete record, the Supreme Court was left to focus on the
word ``now'' in the IRA.\115\ The Committee finds it misleading
to proffer an outdated interpretation of the law to support a
current action while omitting the interpretation that expressly
reverses the outdated and reflects current law.
---------------------------------------------------------------------------
\106\The Court did not have the legal and factual information it
needed to consider the question of whether the Narragansett Tribe was
or was not under federal jurisdiction in 1934. IRA Hearing, supra note
9, at 45 (statement of Richard Monette, Associate Professor of Law,
Univ. of Wis. Law Sch. (explaining why, in his opinion, the
Administration did not include much discussion of the intent of the
1994 amendments to the IRA in its brief to the Supreme Court in
Carcieri, ``They really just missed the boat on it. I hate to attribute
any bad intent to them, but, again, the Solicitor from that department
who could have been helping with those arguments, who should have
raised the issue with the Department of Justice.'')). See also Leshy,
supra note 67.
\107\Pub. L. 90-284, 82 Stat. 77 (codified in part at 25 U.S.C.
Sec. 1301-1303). ``Any tribe, band, or other group of Indians subject
to the jurisdiction of the United States and recognized as possessing
powers of self-government.'' Id. at Sec. 1301(1).
\108\25 U.S.C. Sec. 450b(e) (``any Indian tribe, band, nation, or
other organized group or community, including any Alaska Native village
or regional or village corporation as defined in or established
pursuant to the Alaska Native Claims Settlement Act (85 Stat. 688) [43
U.S.C.A. Sec. 1601 et seq.], which is recognized as eligible for the
special programs and services provided by the United States to Indians
because of their status as Indians'').
\109\Pub. L. 95-608, 92 Stat. 3069 (1978) (codified at 25 U.S.C.
Sec. Sec. 1901-1963).
\110\25 U.S.C. Sec. 2201(1) (``any Indian tribe, band, group,
pueblo, or community for which, or for the members of which, the United
States holds lands in trust'').
\111\25 U.S.C. Sec. Sec. 3201-3211 (1990).
\112\25 U.S.C. Sec. 3202(10) (using the definition in 25 U.S.C.
Sec. 450b(e) (``any Indian tribe, band, nation, or other organized
group or community, including any Alaska Native village or regional or
village corporation as defined in or established pursuant to the Alaska
Native Claims Settlement Act (85 Stat. 688) [43 U.S.C.A. Sec. 1601 et
seq.], which is recognized as eligible for the special programs and
services provided by the United States to Indians because of their
status as Indians'')).
\113\Leshy, supra note 67, at 3-7.
\114\``[W]e have been advised that the Secretary of the Interior
may have carried these erroneous classifications into decisions
authorized by other Federal statutes such as sections 2 and 9 of title
25 of the United States Code.'' 140 Cong. Rec. S6147 (daily ed. May 19,
1994) (statement of Sen. John McCain). Circular No. 3134 from John
Collier, Comm'r, U.S. Dep't of the Interior, Office of Indian Affairs,
to Superintendents (Mar. 7, 1936). But see Brief for NCAI as Amici
Curiae, supra note 32, at 29 (``The circular itself is focused
principally on a different issue--the determination of `half-blood'
status under Section 479--and contains no analysis of the term `now,'
which is set forth only in passing in the introduction setting out the
basic definition of an `Indian.' That circular sheds no light on the
issues before the Court.''), and Brief of Historians Frederick E.
Hoxie, Paul C. Rosier, & Christian W. McMillen as Amici Curiae
Supporting Respondents at 19-20, Carcieri v. Salazar, 555 U.S. 379
(2009) (No. 07-526), available at http://www.narf.org/sct/carcieri/
merits/historians.pdf (``[T]he Department's practice; the views of
Collier and other principal supporters; and the fundamental purposes of
the Act, all support the view that the Act was not, in fact, intended
(and was not interpreted) to foreclose from IRA benefits tribes that
came under federal jurisdiction after June 1934.'' (noting, for
example, that the Alaska Reorganization Act of 1936, 49 Stat. 1250,
enacted only two years after the IRA, expressly provided that ``Indians
in Alaska not heretofore recognized as bands or tribes'' could organize
under the IRA)).
\115\See Carcieri, 555 U.S. at 390. The Solicitor General's
incomplete lodging of documents with the Supreme Court formed the basis
of Justice Thomas's majority opinion. ``[T]he Secretary's current
interpretation is at odds with the Executive Branch's construction of
this provision at the time of enactment. In correspondence with those
who would assist him in implementing the IRA, the Commissioner of
Indian Affairs, John Collier, explained that: `Section 19 of the Indian
Reorganization Act of June 18, 1934 (48 Stat. L., 988), provides, in
effect, that the term `Indian' as used shall include--(1) all persons
of Indian descent who are members of any recognized tribe that was
under Federal jurisdiction at the date of the Act . . .''' Id. (quoting
Letter from John Collier, Comm'r, to Superintendents (Mar. 7, 1936),
Lodging of Respondents (emphasis in original)).
---------------------------------------------------------------------------
The Solicitor General lodged four documents with the
Supreme Court on August 26, 2008.\116\ These four documents,
dated March 7, 1936,\117\ October 27, 1976,\118\ October 1,
1980,\119\ and January 14, 1994,\120\ explained some of the
legislative history, but failed to inform the Court of the
complete history.
---------------------------------------------------------------------------
\116\These documents were received and approved by the Clerk of
Court on Aug. 26, 2008, available at http:www.supremecourt.gov/
Search.aspx?FileName=/docketfiles/07-526.htm.
\117\Circular No. 3134 from John Collier, Comm'r, U.S. Dep't of the
Interior, Office of Indian Affairs, to Superintendents (Mar. 7, 1936)
(discussing enrollment under the IRA).
\118\Letter from Kent Frizzell, Acting Secretary, Dep't of the
Interior, to David H. Getches, Esquire, Native American Rights Fund
(Oct. 27, 1976) (discussing the Stillaguamish Tribe v. Kleppe, Civil
No. 75-1718 (D.D.C. 1976) (noting that ``[t]his decision of the
Secretary is limited to the Stillaguamish Tribe and to the particular
facts of this case'')).
\119\Memorandum from Hans Walker, Jr., Associate Solicitor, Dep't
of the Interior, Indian Affairs, to Assistant Secretary, Dep't of the
Interior, Indian Affairs (Oct. 1, 1980) (Request for Reconsideration of
the Decision Not to Take Land in Trust for the Stillaguamish Tribe
(noting ``Our research leads us to the conclusion that neither
landownership nor formal acknowledgment in 1934 is a prerequisite to
IRA land benefits so long as the group meets the other definitional
requirements of a `tribe' within the meaning of Section 19 of the IRA.
More specifically, it is our opinion that the Stillaguamish are indeed
an Indian tribe within the meaning of Section 19.'')).
\120\Letter from Wyman D. Babby, Acting Assistant Secretary, Dep't
of the Interior, Indian Affairs, to George Miller, Chairman, H. Comm.
on Natural Res. (Jan. 14, 1994) (noting Sections 5 and 7 of the IRA, 25
U.S.C. Sec. Sec. 465, 467, ``authorized the Secretary to acquire land
through purchase for Indians, landless or otherwise, and to proclaim
new Indian reservations on lands acquired pursuant to any authority
conferred by the IRA'').
---------------------------------------------------------------------------
The DOJ omitted a memorandum written by one of its former
solicitors, John Leshy, which explained how the 1994 amendments
overruled previous practices.\121\ The Leshy memorandum
eliminated any confusion regarding the Secretary's authority to
acquire land into trust for all tribes.\122\ The Committee
finds the actions of the Departments to be egregious errors or
omissions. Because of these errors or omissions, the Supreme
Court did not have all relevant information in the record to
review. The Court announced that its opinion was consistent
with the documents that had been lodged, however incomplete and
misleading those documents were.\123\ Without the full
legislative history and administrative record, the Court's
opinion became one of statutory interpretation where the word
``now'' meant ``in 1934'' based entirely on the plain and
ordinary meaning of the word ``now.''\124\ Because the 1994
memorandum had not been lodged with the Court,\125\ the Court
did not find any evidence contradicting its position and
reversed the judgment of the Court of Appeals.\126\ ``In this
case, neither the Secretary nor the Tribe defended the
acquisition by arguing that the Tribe was under federal
jurisdiction in 1934. And the evidence in the record on this
question is to the contrary.''\127\ The United States failed to
uphold its trust responsibility to the Tribe. As a result of
this breach, the Supreme Court based its decision\128\ on
incomplete and erroneous information, consequently
``shatter[ing] the stability Congress provided through the 1994
amendments.''\129\
---------------------------------------------------------------------------
\121\Leshy, supra note 68.
\122\The Leshy memorandum states that the 1994 amendments overruled
any previous policies to distinguish between tribes based on their date
of federal recognition. The Leshy memorandum further noted that any
attempts to discriminately apply the IRA based on the date a tribe
received federal recognition were overruled by numerous subsequent
statutes. Id. (emphasis added).
\123\The Court found its interpretation to be consistent with the
1936 letter lodged by DOI. Carcieri v. Salazar, 555 U.S. 379 (2009)
(Thomas, J., announcing the opinion, Feb. 24, 2009), available at
http://www.oyez.org/cases/2000-2009/2008/2008-07-526.
\124\Carcieri v. Salazar, 555 U.S. 379, 388-391 (2009).
\125\Also missing from the documents lodged by the United States
were additional 1936 memoranda written by two Assistant Solicitors who
took differing positions on this issue. See Leshy, supra note 67, at 5
(noting that discriminating practices in another 1936 opinion ``has
come into serious question in recent times''). If the Supreme Court had
known the complete legislative and administrative history, it might
have better understood the scope of the Secretary's authority. ``The
scope of the word `now' raises an interpretative question of
considerable importance; the provision's legislative history makes
clear that Congress focused directly upon that language, believing it
definitely resolved a specific underlying difficulty; and nothing in
that history indicates that Congress believed departmental expertise
should subsequently play a role in fixing the temporal reference of the
word `now.' These circumstances indicate that Congress did not intend
to delegate interpretative authority to the Department. Consequently,
its interpretation is not entitled to Chevron deference, despite
linguistic ambiguity.'' Carcieri v. Salazar, 555 U.S. 379, 396-397
(2009) (Breyer, J., concurring (citing United States v. Mead Corp., 533
U.S. 218, 227, 229-230 (2001))).
\126\Carcieri v. Salazar, 555 U.S. 379 (2009) (Thomas, J.,
announcing the opinion, Feb. 24, 2009), available at http://
www.oyez.org/cases/2000-2009/2008/2008-07-526.
\127\Id.
\128\Id.
\129\Carcieri Hearing, supra note 32 (statement of Colette Routel,
Assistant Professor, William Mitchell Coll. of Law). See also 140 Cong.
Rec. S6147 (daily ed. May 19, 1994) (statement of Sen. Daniel K. Inouye
(D-Hawaii) (``By enacting this amendment to section 16 of the IRA, we
will provide the stability for Indian tribal governments that the
Congress thought it was providing 60 years ago when the IRA was
enacted.'')).
---------------------------------------------------------------------------
By finding that the IRA did not apply to the Narragansett
Indian Tribe because it was not under federal jurisdiction in
1934, and by not remanding the case back to the First Circuit
to allow the Tribe the opportunity to demonstrate that it was
under federal jurisdiction in 1934, the Supreme Court ignored
Congress's 1994 amendments to the IRA and numerous other
congressional statutes and presidential policies\130\ that were
enacted to ensure that all tribes would be afforded the same
``privileges and immunities of an Indian tribe relative to any
other federally recognized tribe.''\131\ The 1994 amendments,
combined with numerous other federal statutes,\132\ expressly
articulate a principle of equality among recognized tribes--
that the IRA applies to all tribes regardless of their date or
manner of federal recognition.\133\
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\130\See discussion infra Executive and Legislative Policies Have
Long Reflected Congressional Intent To Foster Tribal Sovereignty as
Expressed in the Indian Reorganization Act.
\131\140 Cong. Rec. E663 (Apr. 14, 1994) (statement of Rep. Bill
Richardson (``Tribal sovereignty must be preserved and protected by the
executive branch and not limited or divided into levels which are
measured by the Bureau of Indian Affairs and the Department of the
Interior.'')); Carcieri's Ramifications to Tribes Hearing, supra note
22, at 15, 17 (statement of Michael J. Anderson, AndersonTuell, LLP).
See also Examining Executive Authority Hearing, supra note 22, at 7
(testimony of Edward P. Lazarus, Partner, Akin Gump Strauss Hauer &
Feld, LLP (``In so ruling, the Supreme Court defied 70 years of
practice and undermined a generally settled understanding that a main
purpose of the IRA was to provide authority and flexibility for
rebuilding a tribal land base that had been reduced by more than 100
million acres during the period when the United States pursued an
aggressive policy of breaking up and `allotting' Indian lands, as well
as trying to assimilate individual Indians into American society.
Congress, however, has the unquestioned power to reject the Court's
belated assessment of congressional intent and restore the status quo
ante.'')).
\132\See discussion infra Executive and Legislative Policies Have
Long Reflected Congressional Intent To Foster Tribal Sovereignty as
Expressed in the Indian Reorganization Act.
\133\Brief for Respondents at 37, Carcieri v. Salazar, 555 U.S. 379
(2009) (No. 07-526) (citing 25 U.S.C. 476(f) & (g)) (emphasis added).
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In ruling contrary to the Secretary's interpretation of the
IRA,\134\ and disregarding many other statues that reinforced
the IRA,\135\ the Supreme Court in Carcieri overturned more
than 75 years of legal and administrative practice.\136\ ``The
Carcieri decision [is] inconsistent with the longstanding
policy and practice of the United States under the Indian
Reorganization Act of 1934 to assist federally recognized
tribes in establishing and protecting a land base sufficient to
allow them to provide for the health, welfare, and safety of
tribal members.''\137\ Congress intended the IRA to apply to
``all Indian tribes recognized now or hereafter by the
legislative or the executive branch of the Federal
Government''\138\ and it reaffirmed this in the 1994
amendments, thus solidifying congressional policy to treat all
tribes alike regardless of their date of Federal
acknowledgment.\139\ ``[T]he 1994 amendment[s] [were] intended
to prevent Carcieri.''\140\ The Constitution invests Congress
alone with plenary power over Indian affairs and Congress must
exercise its power to enact legislation to right this wrong.
``Congress was clear when it enacted the Indian Reorganization
Act in 1934, and again with amendments to the Act in 1994. It
is the responsibility of Congress to act when its intentions
are misconstrued by the courts and so it must act now.''\141\
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\134\``No matter how the term ``now under federal jurisdiction'' is
construed and applied by the Department of Interior and the courts
after Carcieri, the Court's emphasis on the date of enactment of the
IRA seriously misconstrues the broader purposes of the Act and the way
federal-tribal relations operated during that time.'' IRA Hearing,
supra note 9, at 24 (statement of Carole Goldberg, Jonathan D. Varat
Distinguished Professor of Law, UCLA).
\135\See discussion infra Executive and Legislative Policies Have
Long Reflected Congressional Intent To Foster Tribal Sovereignty as
Expressed in the Indian Reorganization Act.
\136\Carcieri Hearing, supra note 32 (statement of Larry Echo Hawk,
Assistant Secretary, Indian Affairs, Dep't of the Interior). See also,
e.g. Memorandum from Nathan R. Margold, Solicitor, to the Commissioner
of Indian Affairs (Jan. 29, 1941), in 1 OPINIONS OF THE SOLICITOR,
1971-1974, at 1026 (1982) (explaining that the St. Croix Indians of
Wisconsin, an unrecognized tribe in 1934, could still organize and be
recognized under the IRA).
\137\Carcieri Hearing, supra note 32 (statement of Larry Echo Hawk,
Assistant Secretary, Indian Affairs, Dep't of the Interior).
\138\Letter from Oscar L. Chapman, Assistant Secretary, to Nathan
Margold, Solicitor (Oct. 25, 1934), in 1 Opinions of the Solicitor,
1971-1974, at 477 (1982) (referring to Section 16 of the IRA)
(detailing the powers of self-government, emphasizing that these powers
have never been terminated by law or waived by treaty). Id. at 446.
\139\Carcieri Hearing, supra note 32 (statement of Larry Echo Hawk,
Assistant Secretary, Indian Affairs, Dep't of the Interior). The 1994
amendments ``explicitly prohibited any federal agency from promulgating
a regulation or making a decision that `classifies, enhances, or
diminishes the privileges and immunities available to the Indian tribe
relative to other federally recognized tribes.''' Id. (citing 25 U.S.C.
Sec. 476(f) & (g)). ```The amendment which we are offering . . . will
make it clear that the Indian Reorganization Act does not authorize or
require the Secretary to establish classifications between Indian
tribes . . . [I]t is and has always been Federal law and policy that
Indian tribes recognized by the Federal Government stand on an equal
footing to each other and to the Federal Government . . . Each
federally recognized Indian tribe is entitled to the same privileges
and immunities as other federally recognized tribes and has the right
to exercise the same inherent and delegated authorities. This is true
without regard to the manner in which the Indian tribe became
recognized by the United States or whether it has chosen to organize
under the IRA. By enacting this amendment . . . we will provide the
stability for Indian tribal governments that the Congress thought it
was providing 60 years ago when the IRA was enacted.''' Id. (quoting
Sen. Daniel K. Inouye (D-Hawaii), a co-sponsor of the 1994 amendments,
140 Cong. Rec. S6147 (daily ed. May 19, 1994)).
\140\IRA Hearing, supra note 9, at 43 (statement of Richard
Monette, Associate Professor of Law, Univ. of Wis. Law Sch.).
\141\Carcieri Hearing, supra note 32 (statement of Daniel K. Akaka,
Chairman, S. Comm. on Indian Affairs).
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THE IMPACTS OF CARCIERI V. SALAZAR CONTRAVENE THE INTENT OF THE INDIAN
REORGANIZATION ACT
Since the enactment of the IRA, federal policy has sought
to treat all tribes equitably and ensure they are entitled to
the same federal rights and benefits.\142\ For more than 70
years, the Department of Interior interpreted and applied the
phrase ``now under Federal jurisdiction'' to mean at the time
of application to the Secretary to take land into trust. Under
this established interpretation, the Department of Interior has
restored entire Indian reservations and authorized numerous
tribal constitutions and business organizations.\143\ ``By
calling into question which federally recognized tribes are or
are not eligible for the IRA's provisions, the Court's ruling
in Carcieri threatens the validity of tribal business
organizations, subsequent contracts and loans, tribal
reservations and lands, and could affect jurisdiction, public
safety and provision of services on reservations across the
country.''\144\
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\142\Id. (statement of Colette Routel, Assistant Professor, William
Mitchell Coll. of Law). ``[I]n nearly every individual recognition
statute passed since the 1970s, Congress provided that the newly
recognized or re-recognized tribe was permitted to access all of the
rights and benefits provided by the IRA.'' Id. (``The Payson Community
of Yavapai-Apache Indians shall be recognized as a tribe of Indians
within the purview of the Act of June 18, 1934 . . . and shall be
subject to all of the provisions thereof'' (citing Tonto Apache Tribe
of Arizona, P.L. 92-470 (Oct. 6, 1972))); Pascua Yaqui of Arizona, P.L.
95-375 (Sept. 18,1978) (``The provisions of the Act of June 18, 1934 .
. . are extended to such members described in subsection (a) of this
section''); Cedar City Band of Paiutes in Utah, P.L. 96-227 (Apr. 3,
1980) (``The provisions of the Act of June 18, 1934 . . . except as
inconsistent with the specific provisions of this Act, are made
applicable to the tribe and the members of the tribe. The tribe and the
members of the tribe shall be eligible for all Federal services and
benefits furnished to federally recognized tribes''); Mashantucket
Pequot Indian Tribe of Connecticut, P.L. 98-134 (Oct. 18, 1983) (``all
laws and regulations of the United States of general application to
Indians or Indian nations, tribes or bands of Indians which are not
inconsistent with any specific provision of this Act shall be
applicable to the Tribe''); Ysleta Del Sur Pueblo of Texas, P.L. 100-89
(Aug. 18, 1987) (``The Act of June 18, 1934 (28 Stat. 984) as amended,
and all laws and rules of law of the United States of general
application to Indians, to nations, tribes, or bands of Indians, or to
Indian reservations which are not inconsistent with any specific
provision contained in this title shall apply to members of the tribe,
the tribe, and the reservation''); Lac Vieux Desert Band of Lake
Superior Chippewa, P.L. 100-420 (Sept. 8, 1988) (``The Act of June 18,
1934 (48 Stat. 984), as amended, and all laws and rules of law of the
United States of general application to Indians, Indian tribes, or
Indian reservations which are not inconsistent with this Act shall
apply to the members of the Band, and the reservation''); Yurok Tribe
of California, P.L. 100-580 (Oct. 31, 1988) (``The Indian
Reorganization Act of June 18, 1934 (48 Stat. 984; 25 U.S.C. 461 et
seq.), as amended, is hereby made applicable to the Yurok Tribe'');
Pokagon Band of Potawatomi Indians of Michigan, P.L. 103-323 (Sept. 21,
1994) (``Except as otherwise provided in this Act, all Federal laws of
general application to Indians and Indian tribes, including the Act of
June 18, 1934 . . . shall apply with respect to the Band and its
members''); Little River Band of Ottawa Indians and Little Traverse Bay
Bands of Odawa Indians, P.L. 103-324 (Sept. 21, 1994) (``All laws and
regulations of the United States of general application to Indians or
nations, tribes, or bands of Indians, including the Act of June 18,
1934 . . . which are not inconsistent with any specific provision of
this Act shall be applicable to the Bands and their members'')).
\143\IRA Hearing, supra note 9, at 48 (testimony of John E.
Echohawk, Executive Director, Native Am. Rights Fund). See also
Memorandum from Hans Walker, Jr., Associate Solicitor, Indian Affairs
to Assistant Secretary, Indian Affairs (Oct. 1, 1980);
\144\IRA Hearing, supra note 9, at 48 (testimony of John E.
Echohawk, Executive Director, Native Am. Rights Fund).
---------------------------------------------------------------------------
Carcieri creates the unequal treatment of Federally recognized Indian
Tribes and runs contrary to the 1994 amendments
The Carcieri decision has had the detrimental effect\145\
of creating two classes of Indian tribes--those which were
``under federal jurisdiction'' as of the date of enactment of
the IRA in 1934 for whom land may be taken into trust, and
those which were not. This disparity directly conflicts with
prior acts of Congress,\146\ the 1994 amendments to the
IRA,\147\ and federal policy supporting self-determination for
all federally recognized Indian tribes.\148\
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\145\Id. (``Given the fundamental purpose of the IRA, which was to
organize tribal governments and restore land bases for tribes that had
been torn apart by prior Federal policies, the court's ruling is an
affront to the most basic policies underlying the IRA.'').
\146\25 U.S.C. Sec. Sec. 479a, 479a-1.
\147\25 U.S.C. Sec. 476(f) & (g).
\148\140 Cong. Rec. S6146 (daily ed. May 19, 1994) (statement of
Sen. John McCain) (``Regardless of the method by which recognition was
extended, all Indian tribes enjoy the same relationship with the United
States and exercise the same inherent authority.'').
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Under the IRA, the Secretary is authorized to take land
into trust ``for the purpose of providing land for
Indians.''\149\ ``Indians'' is defined to ``include all persons
of Indian descent who are members of any recognized Indian
tribe now under Federal jurisdiction, and all persons who are
descendants of such members who were, on June 1, 1934, residing
within the present boundaries of any Indian reservation, and .
. . all other persons of one-half or more Indian blood.''\150\
The same provision states that ``tribe'' is to ``be construed
to refer to any Indian tribe, organized band, pueblo, or the
Indians residing on one reservation.''\151\
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\149\25 U.S.C. Sec. 465.
\150\25 U.S.C. Sec. 479.
\151\Id.
---------------------------------------------------------------------------
The term ``under federal jurisdiction'' is not defined in
federal law, regulation, or in the legislative history leading
up to the enactment of the IRA. Prior to the IRA, the United
States had no specific term or designation indicating that an
Indian tribe was ``recognized.''\152\ The Federal government
used terms such as ``in amity with the government'' and
``having existing treaties with the government'' up until the
late 1800's.\153\ The existence of treaties or statutes
recognizing a tribe once obviated the need for any more refined
designations, definitions, or criteria indicating tribal
status.\154\ If a tribe's status was questioned, courts would
defer to acts of recognition by the political branches to
determine whether a tribe was federally recognized.\155\
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\152\Arguably, all tribes within the boundaries of the United
States were once considered ``under federal jurisdiction.'' United
States v. Sandoval, 231 U.S. 28, 46-47 (1913) (quoting United States v.
Holliday, 70 U.S. 407, 419 (1865) (``In reference to all matters of
this kind, it is the rule of this court to follow the action of the
executive and other political departments of the government, whose more
special duty it is to determine such affairs. If by them those Indians
are recognized as a tribe, this court must do the same. If they are a
tribe of Indians, then, by the Constitution of the United States, they
are placed, for certain purposes, within the control of the laws of
Congress.'')) (emphasis added). See also Memorandum from Felix S.
Cohen, Assistant Solicitor (Apr. 9, 1936) (responding to a prior
memorandum from Charlotte T. Westwood, Assistant Solicitor) (discussing
Ms. Westwood's interpretations of Section 17 of the IRA: ``Neither the
allotting of land in severalty nor the granting of citizenship has
destroyed the tribal relationship upon which local autonomy rests. Only
through the laws or treaties of the United States, or administrative
acts authorized thereunder, can tribal existence be terminated . . .
[T]he internal sovereignty of the indian [sic] tribes continues,
unimpaired by the changes that have occurred in the manners and customs
of indian [sic] life.''). Often, if the Secretary of the Interior was
exercising power over tribes, a power conferred upon him by Congress,
Federal jurisdiction was implicit. See Margold, supra note 138, at 412
(letter from July 14, 1934) (``Federal jurisdiction necessarily
continues with the right in the Secretary of the Interior to exercise
all the powers which Congress has conferred upon him expressly or by
necessary implication.'').
\153\In 1934, ``federal jurisdiction'' either meant that the
federal government was providing financial support to the tribe or that
there was a political relationship, or recognition, between the two
governments. See Memorandum from Hans Walker, Jr., Associate Solicitor,
Indian Affairs, to Assistant Secretary, Indian Affairs, on the Request
for Reconsideration of Decision Not to Take Land in Trust for the
Stillaguamish Tribe (Oct. 1, 1980). ``The considerations prompting such
recognition do not always reflect tribal understandings. Thus, for
example, a tribe that has been terminated by the federal government may
continue to exist for the native community that was the object of the
legal action, but not for the purpose of interpreting a federal statute
granting statutory benefits only to federally recognized tribes.
Indeed, the successful efforts of some terminated tribes to be restored
to federally recognized status illustrate tribal persistence apart from
federal law.'' See Felix S. Cohen, Handbook of Federal Indian Law 137
(Nell Jessup Newton et al. eds., 2005 ed.) (1941).
``For the first 70 years of U.S. history, there actually was no
such clear-cut concept. What happened is that Congress would pass laws
that applied to Indian Country or Indian tribes or Indians, and then it
was up to the Executive Branch or to the Federal courts to determine on
an ad hoc basis to whom these statutes should be applied.''). Id. at
143.
\154\Cohen, supra note 153, at 143.
\155\``In reference to all matters of this kind, it is the rule of
this court to follow the action of the executive and other political
departments of the government, whose more special duty it is to
determine such affairs. If by them those Indians are recognized as a
tribe, this court must do the same.'' Cohen, supra note 153, at 141
(quoting United States v. Holliday, 70 U.S. 407, 419 (1865). See also
Sandoval, 231 U.S. at 45-46 (``Not only does the Constitution expressly
authorize Congress to regulate commerce with the Indian tribes, but
long continued legislative and executive usage and an unbroken current
of judicial decisions have attributed to the United States as a
superior and civilized nation the power and the duty of exercising a
fostering care and protection over all dependent Indian communities
within its borders, whether within its original territory or territory
subsequently acquired, and whether within or without the limits of a
state.''); IRA Hearing, supra note 9, at 24-25 (statement of Carole
Goldberg, Jonathan D. Varat Distinguished Professor of Law, UCLA) (``If
Congress or the executive branch had previously concluded that a tribe
existed, federal courts generally refused to disturb this finding.
Situations necessarily arose, however, where neither Congress nor the
executive branch had previously acknowledged the existence of a
particular tribe. In these cases, federal courts were required to
decide whether that group constituted an Indian tribe as defined in
particular statutes.''); Cohen, supra note 153, at 143 (noting that
today, ``the existence of an official list of federally recognized
tribes dispenses with uncertainty as to those groups included on the
list'').
---------------------------------------------------------------------------
When the IRA was enacted in 1934, the concept of equating
recognition with jurisdiction was only beginning to take
shape.\156\ Prior to 1934, there was no comprehensive list of
federally recognized tribes and no standard criteria for
determining tribal recognition.\157\ Although the work of
compiling a list of federally recognized tribes began in the
late 1930s, after the IRA was enacted,\158\ there was no
complete list that could be reliably referred to until
1994.\159\ Tribes that were not included on any official list
from 1934 to 1994, usually due to governmental oversight,\160\
could still establish recognition status through other
means.\161\
---------------------------------------------------------------------------
\156\IRA Hearing, supra note 9, at 24-25 (testimony of Carole
Goldberg, Jonathan D. Varat Distinguished Professor of Law, UCLA)
(``[T]he terms ``recognize'' and ``acknowledge'' were almost
exclusively used in the cognitive sense, indicating that a particular
tribes was known to the United States. Congress enacted legislation
that applied to ``Indian country,'' ``Indian tribes,'' ``Indian
nations,'' ``Indians,'' ``Indians not citizens of the United States,''
``Indians not members of any of the states,'' and the like. It was then
up to the executive branch and the federal courts to determine, on an
ad hoc basis, to whom these statutes should be applied.'' (citing
William W. Quinn, Jr., Federal Acknowledgement of American Indian
Tribes? The Historical Development of a Legal Concept, J. Legal Hist.
(1990))).
\157\Id. at 25 (statement of Carole Goldberg, Jonathan D. Varat
Distinguished Professor of Law, UCLA). ``[T]his bright line, nearly
permanent differentiation between recognized and unrecognized tribes,
is actually of recent origin. For the first 70 years of U.S. history,
there actually was no clear-cut concept.'' Id. at 22. See also id. at
32 (statement of William Rice, Associate Professor of Law, Univ. of
Tulsa Coll. of Law (``The policy and the practice of the previous
Administrations within the Indian Office had been that when an
individual or tribe lost their land, they were no longer considered as
subjects for the Indian Offices to deal with. And so they had whole
tribes of people which Collier understood to be wandering tribes with
no land base; with no doubt they were Indians, no doubt they were a
tribe in constitutional terms. Certainly, Congress would have the right
to control commerce with that Indian tribe, but they simply didn't know
they were there. I have seen in my research, in fact, questionnaires
that the Indian Office central office sent out to all the
superintendents asking specifically not only about the tribes that they
were operating with and that they knew about, but what other groups of
Indians are in your territory and in your area that are not
landholders, that are not part of your situation as we understand it,
but that need help. They were searching for those. They got
sociologists and anthropologists from the big universities to try to
make a list of tribes, and I have seen those records in the National
Archives. They simply didn't know who all the tribes were. Some had
just lost their land and nobody knew where they were. Some had never
had a treaty. Some had had treaties with States, but not with the
United States . . . There were no time limits set on the IRA. The only
time limit, in fact, was a one-year period which was later, I believe,
extended to another year, for tribes to have an election to decide
whether or not the IRA would apply to them, and that is the only real
time limit that existed.'')).
\158\``There was no comprehensive list of federally recognized
Indian tribes in June 1934. It was only after the Act was passed that
Commissioner Collier was given the daunting task of determining which
Indian groups were or should be recognized tribes by the federal
government and permitted to organize under the Act. Collier hastily
compiled a list of 258 groups. This list is universally recognized to
include serious omissions, and these mistakes should not be frozen into
the IRA.'' Id. at 26 (statement of Carole Goldberg, Jonathan D. Varat
Distinguished Professor of Law, UCLA) (emphasis in original).
\159\The United States did not maintain an official list of
federally recognized Indian tribes until after 1994, when Congress
enacted the Federally Recognized Tribal List Act. See Pub. L. 103-454
(1994) (codified at 25 U.S.C. Sec. 479a-1).
\160\``Both the executive branch and Congress have repeatedly
acknowledged that inaccurate recognition decisions were made in the
1930s.'' Brief for Amici Curiae Law Professors Specializing in Federal
Indian Law in Support of Respondents at 22 n.17, Carcieri v. Salazar,
555 U.S. 379 (2009) (No. 07-526), available at http://
www.americanbar.org/content/dam/aba/publishing/preview/
publiced_preview_briefs_pdfs_07_08_07_526_
RespondentAmCuLawProfsofFedInLaw.authcheckdam.pdf. ``After the IRA was
passed, the Department of the Interior attempted to decide which tribes
would be eligible to vote on and organize under the Act. In its haste,
several errors and omissions were made. The 1977 Report of the American
Indian Policy Review Commission revealed that dozens of tribes had not
been recognized by the federal government due to inadvertence or
mistake.'' Id. at 5. See also Elmer R. Rusco, A Fateful Time: The
Background and Legislative History of the Indian Reorganization Act 157
(2000) (``In the 1850s the U.S. Senate had not only refused to ratify
eighteen treaties drawn up with various Native American societies in
California but also had relegated these treaties to a secret archive,
where they remained until the early twentieth century. As a result, few
reservations were established for California Indians, and they had one
of the smallest land bases of Native peoples west of the Mississippi;
almost all California Indians were essentially landless.'').
\161\25 C.F.R. Sec. 83. Tribes that have been acknowledged or have
had their recognition restored through the Federal Acknowledgment
Process are Indian tribes that have maintained tribal identities
``throughout history until the present.'' See 25 C.F.R. Sec. 83.3.
``You also may hear that tribes not subject to the 1934 act are not
real tribes, but are new groups of people seeking recognition in order
to receive federal benefits. The truth is when a tribe is federally
recognized, it must prove that it has continually existed as a
political entity for generations. Therefore, it makes no sense to draw
an arbitrary date for tribal recognition in order to enable the
Secretary to put land into trust. Many tribes recognized post-1934 have
treaties that pre-date the existence of the United States.'' Carcieri
Hearing, supra note 32 (statement of Rep. Tom Cole). Alternative routes
to establish federal recognition include the BIA's OFA process and
federal legislation that corrects oversights of earlier legislation,
resolutions of outstanding land claims; or equal treatment of tribes
similarly situated. Cohen, supra note 153, at 143-144. ``A final
determination that a group is an Indian tribe means, among other
things, that it has continuously existed as a tribe, has inherent
sovereignty, and is entitled to a government-to-government relationship
with the United States.'' The Federal Recognition and Acknowledgment
Process by the Bureau of Indian Affairs, Hearing Before the H. Comm. on
Natural Res., 108th Cong. 78 (Mar. 31, 2004) (testimony of R. Lee
Fleming, Director, Office of Federal Acknowledgment, Office of the
Assistant Sec'y, Indian Affairs, Dep't of the Interior).
---------------------------------------------------------------------------
Given the goals and long-standing federal acknowledgment
practices of the IRA, ``it is extremely unlikely that Congress
in 1934 would have intended that recognition as of that time be
the prerequisite for the Act to apply.''\162\ Since its
enactment, the IRA has applied to all tribes, those recognized
in 1934 and those recognized after 1934.\163\ ``[T]he IRA
defined for the first time a new, national approach to
policymaking that would include Indian people and organizations
regardless of their location or history.''\164\
---------------------------------------------------------------------------
\162\IRA Hearing, supra note 9, at 22 (testimony of Carole
Goldberg, Jonathan D. Varat Distinguished Professor of Law, UCLA). See
id. at 4 (statement of Frederick E. Hoxie, Swanland Chair/History
Professor, Univ. of Ill. (``[W]hen Congress approved this law in June,
1934, it articulated and advanced three broad goals. The clarity of
those goals (and their persistence over the past eight decades) enables
us to define quite clearly the core intent of this landmark
legislation.'')).
\163\Margold, supra note 138, at 477 (letter from Oct. 25, 1934)
(``[T]he conclusions advanced are intended to apply to all Indian
tribes recognized now or hereafter by the legislative or the executive
branch of the Federal Government.''). ``This broad language meant that
if and when the federal government recognized an Indian group as a
distinct entity having the necessary political characteristics, that
Indian group acquired, or the federal government recognized that it had
always possessed, all the attributes of a sovereign political power
whether the group had previously exercised those powers or not.'' Vine
Deloria, Jr. & Clifford M. Lytle, The Nations Within 160 (1984)
(writing in response to Margold's opinion above) (emphasis in
original).
\164\IRA Hearing, supra note 9, at 9 (statement of Frederick E.
Hoxie, Swanland Chair/History Professor, Univ. of Ill.).
---------------------------------------------------------------------------
The concurring opinions of Justices Breyer and Souter in
Carcieri also acknowledged this fact. They noted that even
though a tribe was not formally recognized by the federal
government in 1934, that tribe may not be precluded from being
considered to have been ``under federal jurisdiction'' at that
time. In his concurring opinion Justice Breyer draws attention
to the fact that many tribes were left off of the list of
tribes covered by the IRA reportedly compiled by the Department
of the Interior. Other tribes were later acknowledged to have
been under federal jurisdiction at an earlier time, even though
circumstances prevented the government from knowing that at the
time.\165\ Justice Souter also made this point stating that
``nothing in the majority opinion forecloses the possibility
that the two concepts, recognition and jurisdiction, may be
given separate content.''\166\
---------------------------------------------------------------------------
\165\Brief for Amici Curiae Law Professors Specializing in Federal
Indian Law, supra note 160.
\166\Carcieri v. Salazar, 555 U.S. 379, 400 (2009).
---------------------------------------------------------------------------
Carcieri threatens public safety and tribal law enforcement
Carcieri creates a significant threat to public safety on
tribal lands. By upending decades-old interpretations regarding
the status of Indian lands, the Supreme Court has thrown into
doubt the question of who has jurisdictional authority over the
lands. The geographic scope of federal criminal jurisdiction
depends upon the existence of Indian country\167\--a term that
includes trust land. The Carcieri decision casts doubt on
federal prosecution of crimes committed in Indian country as
well as civil jurisdiction over much of Indian country. The
proposed IRA amendment, S. 676, would alleviate these concerns,
clarifying that the Secretary can lawfully take land into trust
for all federally recognized tribes, thereby ratifying the
Secretary's past trust acquisitions.\168\
---------------------------------------------------------------------------
\167\Indian Country is defined as ``(a) all land within the limits
of any Indian reservation under the jurisdiction of the United States
Government, notwithstanding the issuance of any patent, and, including
rights-of-way running through the reservation, (b) all dependent Indian
communities within the borders of the United States whether within the
original or subsequently acquired territory thereof, and whether within
or without the limits of a state, and (c) all Indian allotments, the
Indian titles to which have not been extinguished, including rights-of-
way running through the same.'' 18 U.S.C. Sec. 1151.
\168\The President's Fiscal Year 2012 Budget for Tribal Programs,
Hearing Before the S. Comm. on Indian Affairs, 112th Cong. 81-82 (Mar.
15, 2011) (statement of Early Barby, Chairman, Tunica-Biloxi Tribe of
Louisiana & Chair, USET Carcieri Task Force).
---------------------------------------------------------------------------
Jurisdictional issues have created challenges for many
Indian communities. Criminal jurisdiction in Indian country has
been called a ``jurisdictional maze''; the result of a complex
matrix of federal laws, policies, and court decisions.
``Police, prosecutors, defense attorneys and judges must deal
with this jurisdictional maze in all cases.''\169\ All
questions relating to Indian country criminal jurisdiction must
begin with determining whether the alleged crime occurred in
Indian country. ''\170\ Creating even more jurisdictional
uncertainty by calling into question the status of the land in
Indian country, Carcieri threatens the public safety of all
those who live in and near Indian communities and has become a
significant barrier to promoting safe tribal communities. Even
worse, the Carcieri decision undercuts prior congressional
actions addressing jurisdiction.
---------------------------------------------------------------------------
\169\Hearing on S. 1763, S. 872 and S. 1192 Before the S. Comm. on
Indian Affairs, 112th Cong. (Nov. 10, 2011) (statement of Thomas B.
Heffelfinger, Attorney, Best & Flanagan LLP). See also Native Women:
Protecting, Shielding, and Safeguarding Our Sisters, Mothers, and
Daughters: Hearing Before S. Comm. on Indian Affairs, 112th Cong. (July
14, 2011) (statement of Sarah Deer, Assistant Professor, William
Mitchell Coll. of Law) (``The federal government has created a complex
interrelation between federal, state and tribal jurisdictions that
undermines tribal authority and often allows perpetrators to evade
justice.'').
\170\Native Women: Protecting, Shielding, and Safeguarding Our
Sisters, Mothers, and Daughters: Hearing Before S. Comm. on Indian
Affairs, 112th Cong. (July 14, 2011) (statement of Sarah Deer,
Assistant Professor, William Mitchell Coll. of Law).
---------------------------------------------------------------------------
Statutes such as the Tribal Law and Order Act
(``TLOA'')\171\ help to ensure that every person in Indian
country lives in a safe community. The various public safety
problems that plague tribal communities are the result of the
complex jurisdictional scheme, decades of underfunding for
tribal criminal justice systems, and the centuries-old failure
by the federal government to fulfill its public safety
obligations on Indian lands.\172\ Both of these laws had
bipartisan support, reflecting Congress's intent to protect all
people in Indian country and support tribal self-determination
and self-governance.\173\
---------------------------------------------------------------------------
\171\Pub. L. No. 111-211 (2010).
\172\``Federal prosecutors decline to file charges in 60-70 percent
of cases involving the most serious crimes committed on Indian
reservations.'' Tribal Law and Order Act One Year Later: Have We
Improved Public Safety and Justice Throughout Indian Country?, Hearing
Before the S. Comm. on Indian Affairs, 112th Cong. (Sept. 22, 2011)
(statement of Sen. Tester (D-Montana)).
\173\``Native American families have a right to live in a safe and
secure environment. The federal government has treaty and trust
obligations to see that they do. For much of our history, however, the
federal government has done a poor job of meeting those obligations.
This legislation will help turn that failure around and is a big step
forward in fighting violent crime in Indian Country.'' Press Release,
United States Senate Committee on Indian Affairs (June 24, 2010)
(quoting Sen. Byron Dorgan (D-North Dakota), TLOA's main sponsor),
available at http://www.indian.senate.gov/news/pressreleases/2010-06-
24.cfm.
---------------------------------------------------------------------------
By permitting tribal governments to have more authority
over the sentencing of crimes that occur on tribal lands, TLOA
helps tribes better exercise their sovereignty. TLOA was
enacted into law in July 2010 to improve public safety in
Indian country and reduce violent crimes that are reaching
epidemic levels on tribal land. TLOA holds federal agencies
more accountable in serving Indian country.\174\
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\174\``According to a 2010 GAO Study, U.S. Attorneys decline to
prosecute 67% of sexual abuse and related matters that occur in Indian
Country.'' Tribal Law and Order Act One Year Later: Have We Improved
Public Safety and Justice Throughout Indian Country?: Hearing Before S.
Comm. on Indian Affairs, 112th Cong. (Sept. 22, 2011) (statement of
Jacqueline Johnson Pata, Executive Director, Nat'l Cong. of Am.
Indians) (citing U.S. Government Accountability Office, GAO-11-167R,
U.S. Department of Justice Declinations of Indian Country Criminal
Matters 3 (2010)).
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One of the main goals of the TLOA is to lower the high
rates of domestic violence and sexual assault on reservations.
Achieving the goals of TLOA has become more difficult because
of the Carcieri decision. ``In addition to economic
development, trust land allows tribes territory to provide
essential government services. These services include tribal
police and courts. Without a sovereign land base, tribal
justice systems will be undermined. This is just another way
the Carcieri decision hurts tribes' ability to provide
essential government services to the most challenged
Americans.''\175\
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\175\Carcieri Hearing, supra note 32 (statement of Rep. Tom Cole).
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The jurisdictional maze that already exists among tribes,
states and the federal government over criminal jurisdiction on
Indian lands is further complicated by the Carcieri
decision.\176\ These jurisdictional issues could give rise to
individual suits presenting challenges to their sentencing on
the basis of the status of the lands in question.\177\ In
testimony before the Committee, witnesses expressed serious
concerns about new jurisdictional uncertainty that has resulted
from Carcieri. ``[Carcieri] may only be the cornerstone of
future litigation that will not only further confuse
jurisdictional boundaries in Indian Country, but perhaps cause
a debilitating blurring of the lines that will hamper the
execution of public safety and law enforcement in Indian
country.''\178\
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\176\Tribal Law and Order Act One Year Later: Have We Improved
Public Safety and Justice Throughout Indian Country?: Hearing Before
the S. Comm. on Indian Affairs, 112th Cong. (Sept. 22, 2011) (statement
of Larry Echo Hawk, Assistant Secretary, Indian Affairs, Dep't of the
Interior).
\177\Carcieri's Ramifications to Tribes Hearing, supra note 22, at
31 (statement of Michael J. Anderson, AndersonTuell, LLP (``When a
defense attorney, particularly on appeals, is looking for new, creative
ways to challenge a conviction, jurisdiction sometimes, in Indian
cases, whether a crime committed on fee land or allotted land or within
a checkerboard reservation, frequently jurisdiction is seen as a
potential challenge to that conviction. Here, the fundamental
acquisition itself could potentially be challenged, and so I think
clever criminal defense attorneys across the country could look at [the
Carcieri] decision and mount potential challenges.'')).
\178\Carcieri Hearing, supra note 32 (statement of Carl J. Artman,
Professor of Practice & Director, Econ. Dev. in Indian Country Program,
Ariz. State Univ. Sandra Day O'Connor Coll. of Law).
---------------------------------------------------------------------------
According to testimony before the Committee, there is now
the potential for legal challenges of criminal prosecutions
brought in Federal court under Federal statutes such as the
Major Crimes Act\179\ or the Indian Country Crimes Act\180\ due
to the uncertain jurisdictional status of lands taken into
trust under the long-prevailing policy before the Carcieri
decision. This uncertainty threatens everyone. ``[T]he
questioning of Indian Country status can in turn lead to
questioning of prosecutions and even convictions that have
already occurred in Federal court . . . [T]here is a public
safety dimension to the Carcieri decision that warrants []
consideration.''\181\ Because criminal jurisdiction in Indian
Country is already confusing, witnesses have testified before
the Committee that jurisdictional issues ``will become
debilitating if the Carcieri holding is not addressed.''\182\
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\179\18 U.S.C. Sec. 1153. The Major Crimes Act gives the United
States jurisdiction to prosecute offenses such as: assault, murder,
manslaughter, kidnapping, arson, burglary, robbery and child sexual
abuse. Federal jurisdiction under this statute is limited to the
prosecution of Indians only.
\180\Also known as the General Crimes Act, 18 U.S.C. Sec. 1152.
This Act gives the United States jurisdiction to prosecute all federal
offenses in Indian Country except when the suspect and the victim are
both Indian, where the suspect has already been convicted in tribal
court or in the case of offenses where exclusive jurisdiction over an
offense has been retained by the tribe by way of treaty.
\181\IRA Hearing, supra note 9, at 8-9 (statement of Carole E.
Goldberg, Jonathan D. Varat Distinguished Professor of Law, UCLA).
\182\Carcieri Hearing, supra note 32 (statement of Carl J. Artman,
Professor of Practice & Director, Econ. Dev. in Indian Country Program,
Ariz. State Univ. Sandra Day O'Connor Coll. of Law); Strengthening
Self-Sufficiency: Overcoming Barriers to Economic Development in Native
Communities, Field Hearing Before the S. Comm. on Indian Affairs, 112th
Cong. (Aug. 17, 2011) (statement of Brian Patterson, President, United
Southern and Eastern Tribes (``Congressional action is needed to ensure
permanent resolution of this issue.'')).
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Carcieri is a barrier to economic development
Tribal land bases are the foundation of tribal economies.
The Committee's record shows that tribal economic development
benefits Indians and non-Indians alike.\183\ Tribes are often
the largest employers and purchasers of goods and services in
the counties and cities surrounding their reservations.\184\
The Committee has received testimony that the majority of
employees hired by many tribal businesses, especially those
located in rural areas, are non-Indian.\185\ Tribal-state
revenue sharing agreements provide millions of dollars in
additional revenue to state and local governments.\186\ As
tribes succeed, local governmental costs decrease, revenue
bases expand, and job opportunities increase for everyone.\187\
``The ripple effects [of the Carcieri decision] will not only
impact tribal economic development opportunities, but will
eliminate revenue for state and local governments, and will
destroy much-needed jobs for both Indians and non-
Indians.''\188\
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\183\``Trust acquisition is not only the central means of restoring
and protecting tribal homelands, but is critical to tribal economic
development that benefits tribes and their neighboring communities.''
Carcieri Hearing, supra note 32 (statement of Richard Guest, Staff
Attorney, Native Am. Rights Fund). In his testimony, Mr. Guest noted
that the Match-e-be-nash-she-wish Band of Pottawatomi (also known as
the Gun Lake Tribe) in Michigan created 900 new jobs and generated new
business for nearby hotels, restaurants, and other service providers as
a result of opening a gamily facility in February 2011--giving the
local economy ``a much needed boost'' at a time when Michigan's
economic troubles have been described as ``ground zero.'' Id. For
example, the United Tribes Technical College in Bismark, North Dakota
generated $31.8 million that directly impacted the local economy in
2010. United Tribes Technical College with the Assistance of TK
Associates International, The Economic Impact of United Tribes
Technical College on The Economy of the Bismark/Mandan, ND Area (Jan.
2011), http://www.uttc.edu/news/story/021811<01a.pdf.
\184\Deficit Reduction and Job Creation: Regulatory Reform in
Indian Country: Hearing Before the S. Comm. on Indian Affairs, 112th
Cong. (Dec. 1, 2011) (testimony of Pearl E. Casias, Chairman, S. Ute
Indian Tribe) (noting that the Southern Ute Indian Tribe is the
County's largest employer, employing over 1,500 people from the County
and New Mexico). ``Clearly, bold action is needed to unlock the
economic potential of Indian tribes which will provide jobs, income and
hope to tribes and their members, as well as to surrounding communities
who will also benefit enormously from stronger tribal economies.'' Id.
Some tribes are among the top employers in the state. See State
Shouldn't Mess With State's 6th Largest Employer, Latest MIGA News
(Oct. 13, 2011), http://latestmiganews.blogspot.com/2011/10/state-
shouldnt-mess-with-states-6th.html (noting that in Minnesota, for
example, tribes employ over 20,550 people--16,000 of those jobs are in
rural areas--collectively making the tribes the state's sixth largest
employer).
\185\Carcieri Hearing, supra note 32 (statement of William Lomax,
President, Native Am. Fin. Officers Ass'n (noting that a further study
would find that ``far more'' jobs would be created than these estimates
and that ``many of these jobs would be created in economically
depressed rural areas, with a majority of the jobs going to non-Indians
in the local area'')).
\186\One example is the Gun Lake Tribe, only 1 of 12 federally
recognized tribes in Michigan. For the period from Apr. 1, 2011 to
September 30, 2011, the Tribe had given the State of Michigan over $10
million. Levi Rickert, Gun Lake Tribe's State and Local Revenue Sharing
Over $10 Million YTD, Native News Network (Nov. 29, 2011, 7:00 AM),
http://www.native newsnetwork.com/gun-lake-tribe-state-local-revenue-
sharing-over-10-million-ytd.html. It should be noted that the Gun Lake
Tribe is the subject of the Patchak case in which the United States
Supreme Court granted certiorari on December 12, 2011).
\187\See Promises Fulfilled: The Role of the SBA 8(a) Program in
Enhancing Economic Development in Indian Country: Hearing Before the S.
Comm. on Indian Affairs, 112th Cong. (Apr. 7, 2011) (statement of Sen.
Mike Johanns) (noting that the unemployment rate for the Winnebago
Tribe in Nebraska fell from 70% to less than 10% in the 1990s as a
result of the Tribe's creation of the economic development corporation
called Ho-Chunk Inc.).
\188\Carcieri Hearing, supra note 32 (statement of Richard Guest,
Staff Attorney, Native Am. Rights Fund).
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Witnesses have testified before the Committee that if S.
676 were adopted, at least 80,000 new construction jobs and
60,000 new permanent jobs would be created for both Indians and
non-Indians alike.\189\ Without the adoption of S. 676,
frivolous litigation is likely to continue.\190\ Litigation
halts this success and affects tribes' ability to govern,
create jobs, and provide for both Indians and non-Indians as
resources are diverted.\191\ ``The great uncertainty caused by
[the Carcieri] decision is preventing tribes from every part of
the country from growing and diversifying their economies,
engaging in economic development, and creating new jobs. . . .
Carcieri is killing jobs in Indian Country, and it is killing
jobs in the local non-Indian communities which neighbor Indian
Country.''\192\
---------------------------------------------------------------------------
\189\Id. (statement of William Lomax, President, Native Am. Fin.
Officers Ass'n); id. (statement of Colette Routel, Assistant Professor,
William Mitchell Coll. of Law). See also IRA Hearing, supra note 9, at
73 (testimony of Michael O. Finley, Chairman, Confederated Tribes of
the Colville Reservation) (noting that if repurchased land has timber,
for example, it would create the kind of jobs that get tribal members
back to work).
\190\Carcieri Hearing, supra note 32 (statement of Richard Guest,
Staff Attorney, Native Am. Rights Fund).
\191\IRA Hearing, supra note 9, at 73 (testimony of John E.
Echohawk, Executive Director, Native Am. Rights Fund). See id. at 74
(testimony of Michael O. Finley, Chairman, Confederated Tribes of the
Colville Reservation) (``Our land base is what feeds our families.
Without a land, we are not a people.'').
\192\Carcieri Hearing, supra note 32 (statement of William Lomax,
President, Native Am. Fin. Officers Ass'n) (emphasis in original).
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The United States is suffering one of the worst economic
declines and stagnant job markets in generations. The effects
of this disaster hit especially hard in rural communities,
where many reservations are located. Many reservations are
located in remote, rural areas that lack adequate facilities,
infrastructure, and housing. The rural locations of many
reservations mean that jobs are scarce and many Indians living
on reservations suffer from great poverty. Because of these
limitations, existing reservation lands do not readily support
tribal economic development.\193\ As a result, tribes aspire to
add land that is on or adjacent to their existing reservations.
---------------------------------------------------------------------------
\193\Examining Executive Authority Hearing, supra note 22, at 16
(statement of Ron Allen, Secretary, Nat'l Cong. of Am. Indians).
---------------------------------------------------------------------------
Carcieri has exacerbated the double-digit unemployment
rates many tribal communities were already experiencing before
the economic downturn.\194\ The Carcieri decision has resulted
in even greater delays to trust land acquisitions, further
hindering opportunities for economic development and job
creation. At a time when acquiring trust land could make a
difference by providing jobs that would allow Indian and non-
Indian residents of these rural communities the opportunity to
support their families and the chance to contribute to the
local and national economies, tribes are instead faced with the
obstacles caused by Carcieri. ``[T]he economic consequences of
Carcieri could prove irreversible.''\195\
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\194\Unemployment in some tribal communities has reached as high as
75 percent, when the average national unemployment rate is at 8.3
percent. See Deficit Reduction and Job Creation: Regulatory Reform in
Indian Country, Hearing Before the S. Comm. on Indian Affairs, 112th
Cong. (Dec. 1, 2011) (statement of Sen. Daniel K. Akaka (D-Hawaii),
Chairman, S. Comm. on Indian Affairs). ``For tribes, double digit
unemployment have [sic] been the norm for generations, not the
exception.'' State and Federal Tax Policy: Building New Markets in
Indian Country, Hearing Before the S. Comm. on Indian Affairs, 112th
Cong. (Dec. 8, 2011) (statement of Sen. Al Franken, Member, S. Comm. on
Indian Affairs).
\195\Carcieri's Ramifications to Tribes Hearing, supra note 22, at
16 (statement of Michael J. Anderson, AndersonTuell, LLP). See also
Deficit Reduction and Job Creation: Regulatory Reform in Indian
Country, Hearing Before the S. Comm. on Indian Affairs, 112th Cong. 3
(Dec. 1, 2011) (statement of Sen. Al Franken, Member, S. Comm. on
Indian Affairs (``If there is economic development, there are jobs.
Where there are jobs, there is hope, there is dignity and a sense of
purpose. There is housing for families and kids have a better chance
for a good education. But if economic development is hindered, all
those are at risk.'')).
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Land is critical for the exercise of tribal self-governance
and self-determination and tribes have been working for decades
to overcome the devastating effects of federal allotment and
assimilation policies and build brand new economies from the
ground up.\196\ Under the IRA, tribes have been able to rebuild
their lost land bases that are the foundation of tribal
governance. Many Indian communities are still reliant upon the
land for subsistence through hunting, fishing, gathering, or
agriculture.\197\ Acquiring trust land is necessary for the
success of tribal governmental operations, cultural activities,
agricultural or forestry activities, energy development,\198\
increased housing, social and community services, health care
and educational facilities. Tribal trust acquisitions have
helped protect traditional practices and have helped promote
tribal economic development. In turn, tribal trust acquisitions
have created much-needed financial resources and jobs for
tribal communities and the surrounding non-Indian communities.
The purpose of the Secretary's land-into-trust authority is to
restore Indian land bases, to rehabilitate Indian economic life
and to foster recovery from centuries of oppression. Economic
development has long been an expressed purpose of Federal
Indian policy and it is the obligation of the federal
government to ensure the restoration of tribal lands to build
economic development and promote tribal government and
culture.\199\
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\196\``The purposes of the IRA were frustrated first by World War
II and then by the termination era. Work did not begin again until the
1970s with the self-determination policy, and since then Indian tribes
are building economies from the ground up and they must earn every
penny to buy back their own land.'' IRA Hearing, supra note 9, at 67
(testimony of Jefferson Keel, President, Nat'l Cong. of Am. Indians).
Economic development is not only about gaming. See Jeff R. Keohane,
Protecting the Sacred, 33 Human Rights 9-12 (Spring 2006) (``Tribal
gaming falls far short of explaining tribal economic development in the
1990s. Between 1990 and 2000, the median household income on gaming
reservations rose 35 percent, from $17,500 to $23,700, but on nongaming
reservations the median household income rose at a slightly faster 36
percent, from $15,300 to $20,700. At the same time, the median
household income for all Americans rose 4 percent, from $40,400 to
$42,000. Census Bureau statistics suggest that most of this economic
growth in tribal areas comes from small business growth. From 1982 to
1997, the number of privately and tribally owned Native American
businesses grew more than tenfold. In 1997, 197,300 Native American
businesses had 298,700 employees and gross revenues of $40.3 billion--
more than four times the tribal casino receipts of $8.8 billion that
year (in 2004 dollars). The Census Bureau excluded tribally owned
businesses from its 2002 survey, yet a preliminary figure for privately
owned Native American business receipts was $27.8 billion. If they
continued their 1992 to1997 trajectory through 2002, privately and
tribally owned Native American business revenues would have reached
$100 billion (in 2004 dollars). Even assuming the more modest growth
rate of non-Native American businesses, gross revenues would have
reached $50 billion in 2002, dwarfing the $15.5 billion brought in by
tribal government casinos.'').
\197\``[T]rust lands provide the greatest protection for many
communities who rely on subsistence hunting and agriculture.'' Carcieri
Hearing, supra note 32 (statement of Larry Echo Hawk, Assistant
Secretary, Indian Affairs, U.S. Dep't of the Interior).
\198\Although tribal lands make up only 5 percent of the land
within the United States, they house an estimated 10 percent of
available energy resources. Energy Development in Indian Country,
Hearing Before the S. Comm. on Indian Affairs, 112th Cong. (Feb. 16,
2012). ``Last year, the U.S. GAO stated that the uncertainty in
accruing land in trust for tribes as a result of the Carcieri decision
is a barrier to economic development in Indian Country. . . . The
ability to take land into trust is critical to creating an environment
that is conducive to economic development and attracting investment in
Indian communities. This includes energy planning and improving energy
development capacity. Trust acquisitions allow tribes to grant certain
rights of way and enter into leases that are necessary for tribes to
negotiate the use and sale of their natural resources.'' Id. (statement
of Jodi Gillette, Deputy Assistant Secretary Indian Affairs, U.S. Dep't
of the Interior).
\199\Examining Executive Authority Hearing, supra note 22, at 16-19
(statement of Ron Allen, Secretary, Nat'l Congress of Am. Indians).
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Carcieri freezes access to capital
Inadequate access to capital is one of the primary
impediments to economic development in Indian Country.\200\
Even prior to the Carcieri decision, ``[t]he hurdles to
economic development and job creation in Indian Country already
are significantly higher than they are for main-stream
America.''\201\ Due to unfamiliarity with tribal jurisdictional
issues, ``investors are quick to narrow borrowing options in
response to general uncertainties and perceived credit risk
when dealing with tribal governments.''\202\ After Carcieri,
tribes hoping to access capital for economic development have
an additional layer of uncertainty to overcome and more costs
to pay because financial firms think they need to apply some
sort of ``Carcieri test'' before doing business in Indian
Country.\203\
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\200\During several roundtables hosted in 2011 by Loretta Tuell,
Majority Staff Director & Chief Counsel, U.S. S. Comm. on Indian
Affairs, tribal leaders articulated new challenges and obstacles they
face in the wake of the Carcieri decision when they attempt to secure
capital for their tribes' economic futures. See Hearings and Meetings
for Session 1 of the 112th Congress, U.S. S. Comm. on Indian Affairs
(Mar. 1, 2012), http://www.indian.senate.gov/hearings/
index.cfm?t=session&c=112&s=1&p=all.
\201\Carcieri Hearing, supra note 32 (statement of William Lomax,
President, Native Am. Fin. Officers Ass'n).
\202\Id.
\203\Opportunities and Challenges for Economic Development in
Indian Country, Hearing Before the S. Comm. on Banking, Housing, &
Urban Affairs, 112th Cong. (Apr. 7, 2011) (testimony of Dante
Desiderio, Executive Director, Native Am. Fin. Officers Ass'n ).
---------------------------------------------------------------------------
Post-hoc challenges to trust land acquisitions by the
Federal government create even more uncertainty and greater
instability in tribal governments' ability to use this
land.\204\ The Committee has received testimony describing how
the uncertainty of the status of trust land drives up the risk
to investors and contractors and drives away potential
investors. Investors are adverse to this kind of risk\205\ and
will either refuse to finance or charge prohibitively high
interest rates.\206\ ``The insertion of the Carcieri
uncertainty into the mix, however, has all but killed off the
investment community's willingness to invest in projects
involving tribes that even might have a Carcieri
problem.''\207\ Without access to capital, tribes acquiring
trust lands after 1934 and the surrounding communities--
especially those tribes and communities in rural areas--will
continue to face the economic hardship and unemployment that
the IRA intended to change.
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\204\``If we fail to address the Carcieri problem, we condemn an
unknown number of tribes to second-class status and to perpetual
economic hardship and unemployment. Of all the hurdles to economic
development and job creation in Indian Country, the uncertainty caused
by Carcieri should be the easiest and most straightforward hurdle that
can be removed.'' Carcieri Hearing, supra note 32 (statement of William
Lomax, President, Native Am. Fin. Officers Ass'n).
\205\``If a tribe has existing trust land that is potentially
threatened by Carcieri, investors will not provide the capital
necessary to develop the resource because of the uncertain regulatory
regime. If a land stays in trust, investors will know what to expect.
But if there is a chance the land might be pulled out of trust, this
could impose new and potentially unfavorable regulations on the
project.'' Id.
\206\Id. (statement of Colette Routel, Assistant Professor, William
Mitchell Coll. of Law).
\207\Id. (statement of William Lomax, President, Native Am. Fin.
Officers Ass'n) (emphasis in original). ``Fewer and fewer reputable
lending institutions and fewer and few [sic] reputable private
investors are willing to take the risk of lending money to a tribal
economic development project because even the most savvy investor has
no real way to determine whether some tribes will fall within, or
outside of, Carcieri's new `under federal jurisdiction' test.'' Id.
---------------------------------------------------------------------------
Carcieri increases Federal litigation over settled Federal policy and
practice
There is significant potential for increased litigation
over the fee-to-trust process and the use or status of existing
trust land.\208\ ``Without a clean Carcieri fix by Congress,
litigation, much of it frivolous litigation, will continue over
the meaning of the phrase `now under Federal
jurisdiction.'''\209\
---------------------------------------------------------------------------
\208\Litigation in the wake of Carcieri has already begun. See Id.
(written testimony of Richard Guest, Staff Attorney, Native Am. Rights
Fund) (Mr. Guest submitted a detailed summary of the 14 cases pending
in the courts and at the administrative level in the wake of the
Carcieri decision, available at http://www.indian.senate.gov/hearings/
upload/Richard-Guest-testimony-and-Attachment.pdf). See also id.
(statement of Larry Echo Hawk, Assistant Secretary, Indian Affairs,
Dep't of the Interior (``In the Department's [DOI] 2009 testimony
before the House Natural Resources Committee, we predicted that the
uncertainty spawned by the Carcieri decision would lead to complex and
costly litigation. Unfortunately, this prediction has come to pass, and
the Department [of Interior] is engaged in litigation regarding how it
has interpreted and applied section 5 of the Indian Reorganization Act
to particular tribes for whom it has acquired land in trust.'')) and
(statement of Colette Routel, Assistant Professor, William Mitchell
Coll. Of Law) (highlighting the problems the Fond du Lac Band and the
Rosebud Sioux Tribe are now facing in their recent trust applications).
\209\Id. (statement of Richard Guest, Staff Attorney, Native Am.
Rights Fund). See also Taylor, supra note 100, at 620 (noting the
litigation is sure to involve the regulation and taxation of tribes and
their land).
---------------------------------------------------------------------------
Questions regarding the Secretary's authority or a tribe's
status based on the Carcieri decision have been raised in at
least fourteen legal challenges involving tribes since February
2009.\210\ This current litigation involves tribes who were
unmistakably ``under federal jurisdiction'' in 1934 when the
IRA was enacted.\211\ Even if tribes prevail in these cases,
frivolous lawsuits siphon time and resources away from
important tribal business, health care and other programs, and
economic development.\212\ Such cases require tribes to divert
funds away from providing jobs and essential governmental
services to their members. These cases present challenges to
long settled legal principals and legislative history and could
further erode tribal sovereignty if they are not decided in
favor of the tribes.\213\ ``[I]f Congress fails to act, the
standard set forth in Carcieri v. Salazar will be devastating
to tribal sovereignty and economic development. Resolving any
ambiguity in the Indian Reorganization Act is vital to
protecting tribal interests and avoiding costly and protracted
litigation.''\214\
---------------------------------------------------------------------------
\210\See Carcieri Hearing, supra note 32 (submitted testimony of
Richard Guest, supra note 208). See also IRA Hearing, supra note 9, at
68 (testimony of Jefferson Keel, President, Nat'l Cong. of Am. Indians)
(noting there are ``at least 14 pending cases'' and ``many more tribes
whose land-to-trust applications have simply been frozen while the
Department of Interior works through painstaking legal and historical
analysis'').
\211\Each tribe qualifying for federal acknowledgement since 1978
under the DOI regulations has established that it ``has been identified
as an American Indian entity on a substantially continuous basis since
1900,'' and has therefore established that it has been under Federal
jurisdiction as of 1934. 25 C.F.R. Sec. 83.7(a). See also Examining
Executive Authority Hearing, supra note 22, at 5-6, 9 (testimony of
Edward P. Lazarus, Partner, Akin Gump Strauss Hauer & Feld, LLP),
available at http://www.indian.senate.gov/public/--files/May212009.pdf
(cautioning that anything short of legislation would likely result in
protracted and costly litigation). Mr. Lazarus suggested two possible
legislative approaches: (1) Amending the IRA to remove ``now'' from
``now under Federal jurisdiction'' and (2) ratifying any pre-Carcieri
land-into-trust administrative determinations under the IRA for tribes
not formally recognized in 1934. At the same hearing, Ron Allen also
provided draft language for an amendment to the IRA to remove the word
``now'' from ``now under federal jurisdiction'' and to protect pre-
Carcieri decisions by the Secretary to take land into trust from
judicial invalidation based on a tribe's not having been recognized in
1934. See id. (testimony of Ron Allen, Secretary, Nat'l Cong. of Am.
Indians), available at http://www.indian.senate.gov/public/--files/
May212009.pdf. Like Mr. Lazarus, Mr. Allen also indicated that although
an administrative solution to the potential effects of Carcieri is
possible, anything other than legislation is likely to result in
wasteful and protracted litigation. Id.
\212\IRA Hearing, supra note 9, at 73 (testimony of Jefferson Keel,
President, Nat'l Cong. of Am. Indians) (noting that, instead of
spending time and money fighting frivolous lawsuits, ``tribes would be
better served if those funds and those resources were directed back
into housing, health care, other social service needs'').
\213\Carcieri Hearing, supra note 32 (statement of Colette Routel,
Assistant Professor, William Mitchell Coll. of Law (``[T]he Rosebud
Sioux Tribe is a ``treaty tribe'' and has seemingly maintained
continuous federal recognition as an Indian tribe. The Tribe voted in
favor of the IRA on October 27, 1934, just four months after the
statute was enacted. Its IRA Constitution was approved by the Secretary
of the Interior in November 1935, and a Section 17 Charter was issued
to the Tribe on March 16, 1937. Despite these seemingly
incontrovertible facts, the State of South Dakota is currently
challenging three of the Tribe's pending trust applications, claiming
that the Rosebud Sioux Tribe was not ``under federal jurisdiction''
when the IRA was passed. These trust applications are for: (1) Bear
Butte Lodge, a sacred site located in the Black Hills; (2) a nursing
home that has already been operating for nearly 20 years and is located
within the exterior boundaries of the Rosebud Reservation on land that
was lost due to allotment; and (3) the Chamberlain Ranch, which is land
currently owned by the Tribe and leased to a tribal member for
agricultural use. Trust applications for these three locations have
been pending with the Bureau of Indian Affairs for more than two years
now.'')).
\214\Id. (statement of Rep. Tom Cole).
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As a result of Carcieri, Indian tribes, DOI, and federal
courts reviewing future land into trust acquisitions are left
without formal guidance or fixed regulations regarding what
would be considered ``under federal jurisdiction.'' Because the
United States did not have an accurate list of federally
recognized Indian tribes until after 1994, the initial
determination of whether a tribe was formally recognized in
1934, and therefore considered ``under federal jurisdiction,''
is a difficult question to answer. The Committee has received
testimony of how this kind of uncertainty will flood federal
courtrooms with lawsuits for decades and cost both tribes and
the United States significant resources. ``[T]he Carcieri
decision overturns over 70 years of precedent and puts billions
of dollars' worth of trust land in legal limbo. Without a
legislative fix, more billions of dollars and decades will be
spent on litigation and disputes between Tribes and state and
local governments.''\215\
---------------------------------------------------------------------------
\215\Id.
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Such litigation is burdensome, expensive, and causes delays
in the government's exercise of its general trust
responsibility to Indian tribes and its specific obligations
under the IRA.\216\ As a result of Carcieri, the BIA must now
determine which tribes were ``under federal jurisdiction'' in
1934, before it can extend the benefit of taking fee lands into
trust for an Indian tribe.\217\ ``[T]he manner in which an
Indian tribe became recognized is once again crucial * * *
tribes that were recognized by Congress are generally insulated
from the impacts of Carcieri through express provisions in
their recognition bills that make the IRA applicable to both
the tribe and its members. Indian tribes recognized through the
Office of Federal Acknowledgment (``OFA''), however, have no
such insulation.''\218\ The Carcieri decision makes it
significantly more difficult for tribes recognized through the
OFA process to acquire trust lands.\219\ These delays in turn
undermine the broad remedial policies of the IRA, the 1994
amendments reaffirming those policies, and the current federal
policy of tribal self-determination.\220\
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\216\``The Carcieri decision has disrupted the fee-to-trust process
by requiring the Secretary to engage in a burdensome legal and factual
analysis [sic] for each tribe seeking to have the Secretary acquire
land in trust. The decision also calls into question the Secretary's
authority to approve pending applications, as well as the effect of
such approval by imposing criteria that had not previously been
construed or applied.'' Id. (statement of Larry Echo Hawk, Assistant
Secretary, Indian Affairs, U.S. Dep't of the Interior).
\217\Prior to the Carcieri decision, applications for the
acquisition of trust land would be reviewed in six to nine months. Id.
(testimony of Donald Laverdure, Principal Deputy Assistant Secretary,
Indian Affairs, Dep't of the Interior) (``[T]he timeline and the
spectrum of these decisions going out further and further and further
and then even when those are decided after going through the vast
histories and details of each tribal nation, and they all are unique,
on top of that, and then you end up in litigation on top of it. So you
then double the time that it took to begin with, whereas if we had the
questioned [sic] answered to decrease uncertainty, decrease risk, we
could make those decisions much sooner than later.''). These delays
mean that the business and job opportunities are postponed even longer,
some indefinitely. See id. (``[B]ecause of the increased uncertainty
and the increased risk, there are numerous projects that are not going
to be going forward.''). Additional administrative burdens can delay
resources for much-needed federal programs and create potentially
dangerous public safety concerns resulting from these delays. See
discussion infra Carcieri Threatens Public Safety and Tribal Law
Enforcement.
\218\Carcieri Hearing, supra note 32 (statement of Colette Routel,
Assistant Professor, William Mitchell Coll. of Law). ).
\219\Id. (further noting that over the last decade, Congress has
not granted federal recognition to any Indian tribes. The last tribe
recognized through Congressional legislation was the Loyal Shawnee
Tribe of Oklahoma, P.L. 106-568 (Dec. 27, 2000))).
\220\``GAO predicted that until the uncertainty created by the
Carcieri decision is resolved, Indian tribes would be asking Congress
for tribe-specific legislation to take land into trust, rather than
submitting fee-to-trust applications to the department. The department
understands that this prediction is coming true and Indian tribes are
seeking their Members of Congress for legislation to take land into
trust. Thus, instead of a uniform fee-to-trust process under the Indian
Reorganization Act, a variety of tribe-specific fee-to-trust laws could
lead to a patchwork of laws that could be difficult for the department
to administer.'' Id. (statement of Larry Echo Hawk, Assistant
Secretary, Indian Affairs, U.S. Dep't of the Interior).
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One such example, Salazar v. Patchak,\221\ involves a
challenge by an individual landowner to the Quiet Title Act.
The Quiet Title Act bars all suits against lands that the
United States holds in trust for tribes and tribal
members.\222\ As such, the Quiet Title Act would protect any
lands that have already been taken into trust from a Carcieri
challenge. If this case were to be decided in favor of the
landowner, it would not only place all prior trust lands in
jeopardy, but it would also allow any citizen to file suit
against any tribal trust acquisition.\223\
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\221\632 F.3d 702 (2011), petition for cert. filed, 80 U.S.L.W.
3125 (U.S. Aug. 25, 2011) (No. 11-247). An ``unprecedented result,''
Patchak ``is a prime example of how Carcieri may have a long-lasting
adverse impact on all 565 [now 566] federally recognized tribes and
demonstrates the manner in which the lower Federal courts are following
the lead of the Supreme Court and effectively terminating tribal
sovereignty, contrary to the stated policies of the Congress. It
illustrates the very real potential for a constant spillover of the
Carcieri decision, polluting other areas of law which traditionally
protected the rights and interests of Indian tribes.'' IRA Hearing,
supra note 9, at 49 (testimony of John E. Echohawk, Executive Director,
Native Am. Rights Fund).
\222\28 U.S.C. Sec. 2409a.
\223\``An already confusing patchwork of public safety and
jurisdiction issues will become more complicated for law enforcement
officers, the victims, and the legal bar if this challenge to the Quiet
Title Act, and based on the Carcieri decision * * * This may soon allow
the defense attorneys, prosecutors, and judges in criminal cases to
determine the parameters of Indian country and reservations, a right
reserved to Congress and the delegated to the Secretary of the
Interior.'' Carcieri Hearing, supra note 32 (statement of Carl J.
Artman, Professor of Practice & Director, Econ. Dev. in Indian Country
Program, Ariz. State Univ. Sandra Day O'Connor Coll. of Law).
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A separate case, Rosales v. United States,\224\ once again
raises the distinction between ``created'' tribes and
``historical'' tribes. In this challenge, the plaintiffs claim
that lands are held in trust for individual families and not a
tribe and argue that the tribe in this case was a ``created''
tribe.\225\ The issue of ``created'' versus ``historical'' was
already decided by Congress when it enacted the 1994 amendments
to the IRA in order to put to rest any distinction between the
rights granted to tribes.
---------------------------------------------------------------------------
\224\Fed. Cir. No. 2010-5028.
\225\Carcieri Hearing, supra note 32 (statement of Colette Routel,
Assistant Professor, William Mitchell Coll. of Law (noting that to make
the distinction between ``created'' and ``historic'' tribes is ``odd''
because Congress does not have the power to create an Indian tribe and
may not ``bring a community or body of people within the range of [its]
power by arbitrarily calling them an Indian tribe'' (citing United
States v. Sandoval, 231 U.S. 28 (1913))).
---------------------------------------------------------------------------
These two cases illustrate the uncertainty created by the
Carcieri decision. Cases such as these have made it
increasingly more difficult for tribes to bring economic
development to their reservations. ``Uncertainty prompts
litigation and it scares investors.''\226\ It is difficult for
tribes to attract investors when litigation occurs and calls
into question the status of lands where development could
otherwise occur.
---------------------------------------------------------------------------
\226\Id. (statement of Colette Routel, Assistant Professor, William
Mitchell Coll. of Law).
---------------------------------------------------------------------------
There are nearly 2,000 requests for the Secretary to take
land into trust for tribes,\227\ and ``[o]ver 95% of those
requests are for non-gaming purposes.''\228\ Since the Carcieri
decision, tribal housing projects have been stalled, basic
infrastructure projects have been halted, and many business
investors have found investment in Indian Country too time
consuming,\229\ too risky, and far too expensive. ``Resolving
any ambiguity in the Indian Reorganization Act is vital to
protecting tribal interests and avoiding costly and protracted
litigation.''\230\ S. 676 seeks to prevent litigation over
trust land acquisitions that might otherwise arise from the
Carcieri decision. ``[A] clean Carcieri fix does not advance
any issue or cause for Indian country. A clean Carcieri fix,
such as S. 676, simply restores Indian tribes to the status
quo, to the status quo of 75 years of practice by the Secretary
of the Interior to acquire lands in trust for all federally
recognized tribes regardless of the date of their Federal
recognition.''\231\
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\227\Id. (statement of Rep. Tom Cole).
\228\Id. (noting also that a Carcieri fix would not undercut
states' tax base, ``Like any federal land, trust land is not subject to
state taxation; neither is land housing military bases, national parks
and national forests--just to name a few.''). See id. (testimony of
Larry Echo Hawk, Assistant Secretary, Indian Affairs, Dep't of the
Interior) (``And how many [recently approved applications were for]
gaming out of 541? Three.''). See also IRA Hearing, supra note 9, at
74-75 (testimony of Jefferson Keel, President, Nat'l Cong. of Am.
Indians) (``Gaming is a separate issue. In fact, land acquisition is
covered under the Indian Gaming Regulatory Act and it is a completely
separate issue. There are separate guidelines and separate tasks that
are involved in the acquisition of land for gaming purposes * * *
[Gaming] is a separate bill and it should be considered separately.'').
\229\Frivolous challenges may be brought solely for the purposes of
delay, adding to unpredictable outcomes and tremendous costs. IRA
Hearing, supra note 9, at 73 (testimony of Jefferson Keel, President,
Nat'l Cong. of Am. Indians).
\230\Carcieri Hearing, supra note 32 (statement of Rep. Tom Cole).
\231\Id. (statement of Richard Guest, Staff Attorney, Native Am.
Rights Fund).
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THE REAL COSTS OF CARCIERI
Although the Carcieri decision involved only one tribe, the
devastating effects resulting from the decision impact all
tribes. Failing to enact S. 676 will deprive tribal governments
of important rights and benefits that the IRA intended to
provide; including the ability to restore and protect their
homelands through the acquisition of tribal trust lands\232\
and the potential to develop and sustain tribal economic
development\233\ through the creation of businesses that
provide jobs and other economic opportunities for tribal
members and residents of the surrounding communities.
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\232\``The first section of the Indian Reorganization Act expressly
discontinued the allotment of Indian lands, while the next section
preserved the trust status of Indian lands.'' Id. (statement of Larry
Echo Hawk, Assistant Secretary, Indian Affairs, Dep't of the Interior).
\233\See discussion infra EXECUTIVE AND LEGISLATIVE POLICIES HAVE
LONG REFLECTED CONGRESSIONAL INTENT TO FOSTER TRIBAL SOVEREIGNTY AS
EXPRESSED IN THE INDIAN REORGANIZATION ACT. See also Cole, supra note
175.
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Passage of S. 676 will cost taxpayers nothing. The costs to
taxpayers if S. 676 is not passed will, however, continue to
grow. Congressional inaction has also generated significant
costs of time and money for the federal government and tribes--
merely to defend the challenges brought as a result of
Carcieri. Expending time and resources examining issues that
have already been settled is a misallocation of federal and
tribal resources that could be used to promote and develop
tribal self-determination and self-government.
Need for Legislation
When Congress enacted the IRA in 1934, it ended the federal
policies that had devastated tribal communities and governments
and moved toward an era of empowering Indian tribes by
restoring their tribal homelands and promoting self-
determination and self-governance. Congress has continuously
reaffirmed that all federally recognized tribes are to be
treated equally, and has confirmed its support of equality for
all tribes when it amended the IRA in 1994.\234\ The record
proffered by the Solicitor General in Carcieri omitted much of
the legislative history. Decades of congressional action and
administrative policies have been undermined by the Carcieri
decision.
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\234\The 1994 amendments explicitly demonstrate Congress' intent to
include, rather than exclude, tribes by clearly stating that
discrimination against tribes, based on the date of their recognition,
``is inconsistent with the principle policies underlying the IRA, which
were to stabilize Indian trib[al] governments and to encourage self-
government.'' 140 Cong. Rec. S6146 (daily ed. May 19, 1994) (statement
of Sen. John McCain).
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The Supreme Court's decision in Carcieri ignores dozens of
federal statutes passed by Congress\235\ and over 75 years of
administrative practice that Congress has delegated to the
executive agencies.\236\ Carcieri has become a barrier to
restoring tribal lands and interferes with the federal
government's obligation to fulfill its trust
responsibility.\237\
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\235\See discussion infra EXECUTIVE AND LEGISLATIVE POLICIES HAVE
LONG REFLECTED CONGRESSIONAL INTENT TO FOSTER TRIBAL SOVEREIGNTY AS
EXPRESSED IN THE INDIAN REORGANIZATION ACT.
\236\25 U.S.C. Sec. Sec. 1, 2 & 9.
\237\``Congress may fulfill its treaty obligations and its
responsibilities to the Indian tribes by enacting legislation dedicated
to their circumstances and needs.'' Rice v. Cayetano, 528 U.S. 495, 519
(2000) (citing Washington v. Washington State Commercial Passenger
Fishing Vessel Ass'n., 443 U.S. 658, 673, n. 20 (1979); United States
v. Antelope, 430 U.S. 641, 645-647 (1977); Delaware Tribal Business
Comm. v. Weeks, 430 U.S. 73, 84-85 (1977); Moe v. Confederated Salish
and Kootenai Tribes of Flathead Reservation, 425 U.S. 463, 479-480
(1976); Fisher v. Dist. Court of Sixteenth Judicial Dist. of Montana,
424 U.S. 382, 390-391 (1976)). See also Examining Executive Authority
Hearing, supra note 22, at 16 (statement of Ron Allen, Secretary, Nat'l
Cong. of Am. Indians) (``The Carcieri decision is squarely at odds with
the federal policy of tribal self-determination and tribal economic
self-sufficiency. In particular, the decision runs counter to Congress'
intent in the 1994 amendments to the IRA. These amendments directed the
Department of the Interior and all other federal agencies, to provide
equal treatment to all Indian tribes regardless of how or when they
received federal recognition, and ratified the Department [of the]
Interior procedures under 25 C.F.R. Pt. 83 for determining and
publishing the list of federally recognized tribes.'').
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The Carcieri decision only allows tribes that were ``under
federal jurisdiction'' in 1934 to acquire trust land, thereby
inviting disparate treatment among federally recognized tribes
contrary to the very act of Congress the Court was called upon
to interpret in Carcieri. The Court's selective and
insufficient analysis of the IRA runs afoul of Congressional
intent; it also overrules dozens of legislative actions in
which Congress had exercised its plenary power to enact and
overturns more than 75 years of well-settled administrative
practice regarding tribal trust land acquisitions.\238\ This
legislative history is clarified in the 1994 memorandum that
was not lodged with the Supreme Court. ``Given the fundamental
purpose of the IRA, which was to organize tribal governments
and restore land bases for tribes that had been torn apart by
prior Federal policies [the Allotment Act], the Court's ruling
is an affront to the most basic policies underlying the
IRA.''\239\ The uncertainty regarding the scope of the
Secretary's authority to acquire land in trust cannot be
reconciled with the longstanding practice of the Department, a
practice that was authorized by Congress decades ago.\240\
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\238\IRA Hearing, supra note 9, at 48 (testimony of John E.
Echohawk, Executive Director Native Am. Rights Fund) (noting that for
over 70 years, the Department of Interior applied an interpretation of
the IRA that the phrase ``now under Federal jurisdiction'' meant at the
time of application).
\239\Id.
\240\ Carcieri Hearing, supra note 32 (statement of Larry Echo
Hawk, Assistant Secretary, Indian Affairs, Dep't of the Interior (``The
Department continues to believe that legislation is the best means to
address the issues arising from the Carcieri decision, and to reaffirm
the Secretary's authority to secure tribal homelands for federally
recognized tribes under the Indian Reorganization Act. A clear
congressional reaffirmation will prevent costly litigation and lengthy
delays for both the Department and the tribes to which the United
States owes a trust responsibility.'')).
---------------------------------------------------------------------------
President Barack Obama fully supports the ``Carcieri fix''
legislation that would ``make clear--in the wake of [Carcieri
v. Salazar]--that the Secretary of the Interior can take land
into trust for all federally recognized tribes.''\241\ This is
important for the safety and security of all those who live in
or near Indian country. Unlike other areas of governmental
spending, the federal government has a unique legal, treaty,
and trust obligation to provide for the public safety of Indian
country. Failing to enact the proposed amendment deprives
tribal governments of important benefits of the IRA.
---------------------------------------------------------------------------
\241\The White House, Working with Tribal Nations to Build a
Brighter Future: Synopsis of the 2010 White House Tribal Nations
Conference 5, 14 (Dec. 2010), available at http://www.whitehouse.gov/
sites/default/files/Tribal_Nations_Conference_Final_0.pdf.
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As a result, Senator Akaka (D-Hawaii) introduced, and the
Committee approved, S. 676 to confirm the Secretary's authority
to place land into trust for all tribes that are federally
recognized on the date the Secretary takes the land into trust,
and to ratify trust land acquisitions already made by the
Secretary under the IRA. S. 676 is a bicameral and bipartisan
bill\242\ and is supported by Indian country.\243\
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\242\Two companion bills have been introduced in the House of
Representatives: H.R. 1234 (introduced by Rep. Dale E. Kildee (D-
Michigan-5) on Mar. 29, 2011) and H.R. 1291 (introduced by Rep. Tom
Cole (R-Oklahoma-4) on Mar. 31, 2011). See Rep. Tom Cole (R-Oklahoma-
4), Op-Ed., Resolving Carcieri Crisis Would Create Jobs, Cost
Taxpayers Nothing, THE HILL, Nov. 15, 2011, available at http://
thehill.com/opinion/op-ed/193837-resolving-Carcieri-crisis-would-
create-jobs-cost-taxpayers-nothing.
\243\See The National Congress of American Indians Resolutions NGF-
09-022 (2009), NGF-09-028 (2009), RAP-10-024 (2010), and RAP-10-058c
(2010), available at http://www.ncai.org/Resolutions.5.0.html.
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Legislative History
On March 30, 2011, Senator Akaka (D-Hawaii) introduced S.
676, along with Senators Conrad (D-North Dakota), Franken (D-
Minnesota), Inouye (D-Hawaii), Johnson (D-South Dakota), Kerry
(D-Massachusetts.), Tester (D-Montana) and Udall (D-New
Mexico). Senators Baucus and Stabenow were later added as co-
sponsors. On April 7, 2011, the Committee on Indian Affairs
favorably reported S. 676 out with an amendment.
Two companion bills were introduced in the House of
Representatives. On March 29, 2011, Congressman Kildee (D-
Michigan-05) introduced H.R. 1234 and on March 31, 2011,
Congressman Cole (R-Oklahoma-04) introduced H.R. 1291. The
House Committee on Natural Resources held a legislative hearing
on these two bills on July 12, 2011.
Similar Carcieri fix measures were introduced in the 111th
Congress. The House passed H.R. 3082, which included the
Carcieri fix language, and the Committee reported S. 1703.
Neither bill was enacted prior to the end of the 111th
Congress.
Summary of the Amendment
Senator Akaka (D-Hawaii) offered S. 676 to amend the Act
commonly known as the Indian Reorganization Act to apply the
Act to all federally recognized Indian tribes, regardless of
when any tribe became recognized. S. 676 modifies the original
Act by adding language to the definition of the term ``Indian
tribe'' and by adding language to ensure that nothing in the
Act or the amendments to the Act would affect the application
of any other federal law, other than the Indian Reorganization
Act.
The Committee accepted an amendment to S. 676 offered by
Senator Barrasso (R-Wyoming) that would require a study by the
Department of the Interior that would identify the impact of
the Carcieri decision on Indian tribes and tribal lands and
publish a list of each affected Indian tribe and parcel of
tribal land.
Section-by-Section Analysis
Sec. 1. Modification of definition
Subsection (a). This section modifies a portion of the
definition of ``Indian'' in 25 U.S.C. 479 from, ``any
recognized Indian tribe now under Federal jurisdiction'' to
``any federally recognized Indian tribe.'' It further applies
this amended definition effective as of June 18, 1934.
Subsection (b) ratifies and confirms any action taken by
the Secretary pursuant to the IRA for any Indian tribe that was
federally recognized on the date of the Secretary's action.
Subsection (c) clarifies that the legislation does not
affect any law other than the Indian Reorganization Act or
limit the authority of the Secretary of the Interior under any
federal law or regulation other than the Indian Reorganization
Act.
Subsection (d) requires the Secretary of the Interior to
conduct, and submit to Congress, a study describing the effects
of the Carcieri decision on Indian tribes and tribal land; and
including a list of each affected Indian tribe and parcel of
tribal land. The study would be required to be submitted within
one year of enactment of S. 676 and the Secretary will publish
the list in the Federal Register and on the Department of the
Interior's public Web site.
Committee Recommendation
On April 7, 2011, the Senate Committee on Indian Affairs
convened a business meeting to consider S. 676 and other
measures. The amendment offered by Senator Barrasso, and
accepted by the Committee, will require the Department of the
Interior to submit a study identifying the impact of the
Carcieri decision on Indian tribes and tribal lands to Congress
within a year. The Committee ordered the bill, as amended, be
reported to the full Senate with the recommendation that the
bill, as amended, do pass.
Cost and Budgetary Considerations
The following cost estimate, as provided by the
Congressional Budget Office, dated May 26, 2011, was prepared
for S. 676:
May 26, 2011.
Hon. Daniel K. Akaka,
Chairman, Committee on Indian Affairs,
U. S. Senate, Washington, DC.
Dear Mr. Chairman: The Congressional Budget Office has
prepared the enclosed cost estimate for S. 676, a bill to amend
the act of June 18, 1934, to reaffirm the authority of the
Secretary of the Interior to take land into trust for Indian
tribes.
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contact is Martin von
Gnechten.
Sincerely,
Douglas W. Elmendorf.
Enclosure.
S. 676--A bill to amend the act of June 18, 1934, to reaffirm the
authority of the Secretary of the Interior to take land into
trust for Indian tribes
S. 676 would amend the Indian Reorganization Act to allow
the Secretary of the Interior to take land into trust for all
federally recognized Indian tribes. Based on information from
the Department of the Interior (DOI), CBO estimates that
implementing the legislation would have no significant cost.
Enacting S. 676 would not affect direct spending or revenues;
therefore, pay-as-you-go procedures do not apply.
Under current law, as established by the Supreme Court's
2009 decision in Carcieri v. Salazar, the Secretary of the
Interior's authority to take land into trust for Indian tribes
is limited to those tribes that were federally recognized prior
to the enactment of the Indian Reorganization Act of 1934.
Under the bill, the Secretary would have the authority to take
land into trust for any federally recognized Indian tribe,
regardless of when a tribe became federally recognized. Because
current law requires DOI personnel to determine which tribes
would be eligible to have lands taken into trust, CBO expects
that implementing S. 676 could reduce the workload of DOI
staff. CBO expects that any savings resulting from that reduced
workload would be small and probably would be used by the
agency to carry out other activities related to holding land in
trust. Thus, we expect that implementing the legislation would
have a negligible effect on the federal budget.
S. 676 would impose both intergovernmental and private-
sector mandates as defined in the Unfunded Mandates Reform Act
(UMRA).
S. 676 would limit the ability of public and private
entities or individuals to file some types of claims in court
related to lands taken into trust for Indian tribes. That
limitation would be both an intergovernmental and private-
sector mandate. The cost of the mandate would be the forgone
value of awards and settlements of such claims if they would
have been successful under current law. CBO expects that the
annual number of claims involving such land and the value of
the awards and settlements in those claims would be small.
S. 676 also would impose an intergovernmental mandate by
expanding the authority of DOI to take land into trust for
tribes that were not under federal jurisdiction in 1934. Land
taken into trust would be exempt from state and local taxes.
Given the types and amounts of land typically taken into trust,
CBO estimates that the forgone tax revenue to state and local
governments from that expansion would be small.
CBO estimates that the cost of all mandates in the bill to
intergovernmental and private-sector entities would fall below
the annual thresholds established in UMRA ($71 million and $142
million in 2011, respectively, adjusted annually for
inflation).
The CBO staff contacts for this estimate are Martin von
Gnechten (for federal costs), Melissa Merrell (for state,
local, and tribal costs), and Marin Randall (for the private-
sector impact). The estimate was approved by Theresa Gullo,
Deputy Assistant Director for Budget Analysis.
Regulatory and Paperwork Impact Statement
Paragraph 11(b) of rule XXVI of the Standing Rules of the
Senate requires each report accompanying a bill to evaluate the
regulatory and paperwork impact that would be incurred in
carrying out the bill. The Committee believes that S. 676 will
have a minimal impact on regulatory or paperwork requirements.
Executive Communications
The Committee received the following letters from Secretary
Salazar, Department of the Interior in support of S. 676:
ADDITIONAL VIEWS OF VICE CHAIRMAN JOHN BARRASSO
I concur with most of the Chairman's views regarding the
effects of the decision of the Supreme Court in the case of
Carcieri v. Salazar and the purposes of the Indian
Reorganization Act of 1934--although, at the same time, I
acknowledge that there are other, differing views, held in good
faith, about the Supreme Court's decision in that case.
For my part, I do not claim to know enough about the
Government's internal deliberations and legal strategies in the
Carcieri case to say that there were deliberate or even
careless omissions from the record presented to the Supreme
Court. But whether that happened or not is ``water under the
bridge'' and therefore much less important than the
consequences of the decision itself. As the Chairman's report
points out, the Committee has received significant information
from a number of sources asserting that the Carcieri decision
is having serious impacts on economic development and capital
investment in many parts of Indian country and creating further
confusion over law enforcement authority or criminal
jurisdiction on some Indian lands taken into trust prior to the
decision in the Carcieri case. Those consequences are very
unfortunate. Indian people neither need nor deserve these
problems, and they played no part in bringing them about.
Like many, if not most, of the challenges facing Indian
country, the issues created by the Carcieri decision do not
follow partisan lines, and neither do the reactions to that
decision. While this bill was introduced by Chairman Akaka in
the Senate, there are two House versions of this measure, one
introduced by Congressman Cole, a Republican, and the other by
Congressman Kildee, a Democrat. I suspect there are mixed views
on all of these bills held by Members from both political
parties on either side of the Capitol.
The amended bill adopted by the Committee reflects the
Committee's best efforts to address the fallout from the
Supreme Court's decision. It may not be a perfect solution, but
in this instance there is likely no such thing.
Changes in Existing Law
In accordance with subsection 12 of rule XXVI of the
Standing Rules of the Senate, changes in existing law made by
the bill S. 676, as ordered reported, are shown as follows
(existing law proposed to be omitted is enclosed in black
brackets, new matter printed in italic):
25 U.S.C. Sec. 479. Definitions.
Effective beginning on June 18, 1934, the term [The term]
``Indian'' as used in this Act shall include all persons of
Indian descent who are members of any federally recognized
Indian tribe [any recognized Indian tribe now under Federal
jurisdiction], and all persons who are descendants of such
members who were, on June 1, 1934, residing within the present
boundaries of any Indian reservation, and shall further include
all other persons of one-half or more Indian blood. For the
purposes of this Act, Eskimos and other aboriginal peoples of
Alaska shall be considered Indians. The term ``tribe'' wherever
used in this Act shall be construed to refer to any Indian
tribe, organized band, pueblo, or the Indians residing on one
reservation. The words ``adult Indians'' wherever used in this
Act shall be construed to refer to Indians who have attained
the age of twenty-one years.