[House Hearing, 111 Congress]
[From the U.S. Government Publishing Office]
SUPREME COURT DECISION,
CARCIERI V. SALAZAR,
RAMIFICATIONS TO INDIAN TRIBES
=======================================================================
OVERSIGHT HEARING
before the
COMMITTEE ON NATURAL RESOURCES
U.S. HOUSE OF REPRESENTATIVES
ONE HUNDRED ELEVENTH CONGRESS
FIRST SESSION
__________
Wednesday, April 1, 2009
__________
Serial No. 111-14
__________
Printed for the use of the Committee on Natural Resources
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COMMITTEE ON NATURAL RESOURCES
NICK J. RAHALL, II, West Virginia, Chairman
DOC HASTINGS, Washington, Ranking Republican Member
Dale E. Kildee, Michigan Don Young, Alaska
Eni F.H. Faleomavaega, American Elton Gallegly, California
Samoa John J. Duncan, Jr., Tennessee
Neil Abercrombie, Hawaii Jeff Flake, Arizona
Frank Pallone, Jr., New Jersey Henry E. Brown, Jr., South
Grace F. Napolitano, California Carolina
Rush D. Holt, New Jersey Cathy McMorris Rodgers, Washington
Raul M. Grijalva, Arizona Louie Gohmert, Texas
Madeleine Z. Bordallo, Guam Rob Bishop, Utah
Jim Costa, California Bill Shuster, Pennsylvania
Dan Boren, Oklahoma Doug Lamborn, Colorado
Gregorio Sablan, Northern Marianas Adrian Smith, Nebraska
Martin T. Heinrich, New Mexico Robert J. Wittman, Virginia
George Miller, California Paul C. Broun, Georgia
Edward J. Markey, Massachusetts John Fleming, Louisiana
Peter A. DeFazio, Oregon Mike Coffman, Colorado
Maurice D. Hinchey, New York Jason Chaffetz, Utah
Donna M. Christensen, Virgin Cynthia M. Lummis, Wyoming
Islands Tom McClintock, California
Diana DeGette, Colorado Bill Cassidy, Louisiana
Ron Kind, Wisconsin
Lois Capps, California
Jay Inslee, Washington
Joe Baca, California
Stephanie Herseth Sandlin, South
Dakota
John P. Sarbanes, Maryland
Carol Shea-Porter, New Hampshire
Niki Tsongas, Massachusetts
Frank Kratovil, Jr., Maryland
Pedro R. Pierluisi, Puerto Rico
James H. Zoia, Chief of Staff
Rick Healy, Chief Counsel
Todd Young, Republican Chief of Staff
Lisa Pittman, Republican Chief Counsel
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CONTENTS
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Page
Hearing held on Wednesday, April 1, 2009......................... 1
Statement of Members:
Faleomavaega, Hon. Eni F.H., a Delegate in Congress from
American Samoa............................................. 5
Hastings, Hon. Doc, a Representative in Congress from the
State of Washington........................................ 2
Prepared statement of.................................... 3
Kildee, Hon. Dale, a Representative in Congress from the
State of Michigan.......................................... 4
Prepared statement of.................................... 4
Rahall, Hon. Nick J., II, a Representative in Congress from
the State of West Virginia................................. 1
Prepared statement of.................................... 2
Statement of Witnesses:
Anderson, Michael J., Partner, AndersonTuell, LLP,
Washington, D.C............................................ 12
Prepared statement of.................................... 14
Mitchell, Donald Craig, Esquire, Anchorage, Alaska........... 23
Prepared statement of.................................... 25
Routel, Colette, Visiting Assistant Professor, University of
Michigan Law School, Ann Arbor, Michigan, Assistant
Professor, William Mitchell College of Law, Saint Paul,
Minnesota.................................................. 5
Prepared statement of.................................... 7
OVERSIGHT HEARING ON ``SUPREME COURT DECISION, CARCIERI V. SALAZAR,
RAMIFICATIONS TO INDIAN TRIBES.''
----------
Wednesday, April 1, 2009
U.S. House of Representatives
Committee on Natural Resources
Washington, D.C.
----------
The Committee met, pursuant to call, at 9:57 a.m. in Room
1324, Longworth House Office Building, Hon. Nick J. Rahall, II,
[Chairman of the Committee] presiding.
Present: Representatives Rahall, Hastings, Kildee,
Faleomavaega, Grijalva, Heinrich, Christensen, DeGette, Inslee,
Herseth Sandlin, Sarbanes, Shea-Porter, Gallegly, Smith,
Fleming, Lummis, and Cassidy.
STATEMENT OF THE HONORABLE NICK J. RAHALL, II, A REPRESENTATIVE
IN CONGRESS FROM THE STATE OF WEST VIRGINIA
The Chairman. The Committee on Natural Resources will come
to order early. The Committee is meeting today to conduct an
oversight hearing on the recent Supreme Court decision in
Carcieri v. Salazar and its effects on Indian tribes.
In the decision, the Supreme Court held that the Indian
Reorganization Act did not allow land to be placed into trust
for a tribe that was not now under Federal jurisdiction,
referring to 1934, the date of enactment of the statute.
While there are those who want to portray this decision and
its ramifications solely as a gaming issue, let me assure
everyone that it is much more than a gaming issue.
Land is an essential component of sovereignty for any
government, including tribal governments. Not only does a land
base help promote cultural preservation, which is essential for
the survival of a group of people, but it also affects the
ability of a government to provide for its citizens.
Native Americans already suffer from higher death rates due
to various diseases. They live in substandard housing. They
have lower rates of educational achievement, and they
experience an average poverty rate of 26 percent, with some
tribes suffering from a poverty rate of over 50 percent.
Placing land into trust for an Indian tribe is an essential
component of combating the situations experienced by Indian
tribes as a result of their treatment by the United States of
America. Even beyond the legal responsibility, the Federal
government has a moral responsibility to rectify this
situation.
While all of the potential ramifications of this decision
are not known at this time, there is one thing of which we are
certain: This decision may result in many frivolous lawsuits
being filed to challenge the status of virtually every tribe.
This will require the Federal government and the American
people to return to 1934 to determine what ``now under Federal
jurisdiction'' means.
The early 1930s--now I was not here at the time, but some
on this Committee may have been--was a time of racial
segregation, with many people of color denied the right to vote
and adequate health care and education was only available to a
few. This is not a time to which I wish to return.
I look forward to hearing the testimony of the witnesses on
whether or not the Court was correct in interpreting the
legislative history of the IRA and how the administration has
defined ``now under Federal jurisdiction'' since 1934.
That concludes my opening comments, and I recognize the
Ranking Member, Mr. Hastings.
[The prepared statement of Mr. Rahall follows:]
Statement of The Honorable Nick J. Rahall, Ii, Chairman,
Committee on Natural Resources
The Committee is meeting today to conduct an oversight hearing on
the recent Supreme Court decision in Carcieri v. Salazar and its
effects on Indian tribes.
In the decision, the Supreme Court held that the Indian
Reorganization Act did not allow land to be placed into trust for a
tribe that was not ``now under Federal jurisdiction'' referring to
1934, the date of enactment of the statute.
While there are those who want to portray this decision and its
ramifications solely as a ``gaming'' issue, let me assure everyone that
it is much more than that. Land is an essential component of
sovereignty for any government, including tribal governments. Not only
does a land base help promote cultural preservation which is essential
for the survival of a group of people, but it also affects the ability
of a government to provide for its citizens.
Native Americans already suffer from higher death rates due to
various diseases, live in substandard housing, have lower rates of
educational achievement, and experience an average poverty rate of
26%--with some tribes suffering from a poverty rate of over 50%.
Placing land into trust for an Indian tribe is an essential component
of combating the situations experienced by Indian tribes as a result of
their treatment by the United States. Even beyond the legal
responsibility, the Federal government has a moral responsibility to
rectify this situation.
While all of the potential ramifications of this decision are not
known at this time, there is one thing that we are certain of: This
decision may result in many frivolous lawsuits being filed to challenge
the status of virtually every tribe.
This will require the Federal government and the American people to
return to 1934 to determine what ``now under Federal jurisdiction''
means. The early 1930s was a time of racial segregation, with many
people of color denied the right to vote, and adequate health care and
education was only available to a few. This is not a time that I wish
to return.
I look forward to hearing the testimony of the witnesses on whether
or not the Court was correct in interpreting the legislative history of
the IRA, and how the Administration has defined ``now under Federal
jurisdiction'' since 1934.
______
STATEMENT OF THE HONORABLE DOC HASTINGS, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF WASHINGTON
Mr. Hastings. Thank you very much, Mr. Chairman, for
holding this hearing. I understand that the Department of the
Interior may not be prepared to give the Committee its
testimony at this time, but I hope that when the relevant
political appointees are nominated and confirmed that we will
be able to hold maybe another hearing on this important
subject.
I completely understand the anxiety that a number of
recognized tribes that were not under Federal jurisdiction in
1934 must be feeling right now. Following this Supreme Court
decision, some must undoubtedly wonder if they were under
Federal jurisdiction in 1934 and who will make that
determination and what it means for their trust lands.
As we seek answers to the questions that this case raises,
I hope that we use this opportunity to open the record books
and archives of the Department and the Committee. We are
dealing with 75 years of history, with potentially dozens of
tribes, thousands of acres of land, and with a Department whose
implementation of a major law has been overturned by the Court.
It is important that Congress act carefully when addressing
the effects of the Court's decision, and we must especially
make certain that responsive action comes from Congress.
At the heart of the Supreme Court's ruling is that the
authority to recognize tribes and take land into trust rests
with Congress and not with the attorneys in the Executive
Branch. It is our responsibility in Congress to determine how
to act following the Court's ruling, not simply to sit and wait
to rubber stamp a plan that is written and submitted by the
Interior Department, whose actions, once again, were struck
down by the Supreme Court.
So I look forward to hearing the witnesses' testimony, and
I yield back my time.
[The prepared statement of Mr. Hastings follows:]
Statement of The Honorable Doc Hastings, Ranking Member,
Committee on Natural Resources
Mr. Chairman, thank you for holding this hearing. I understand the
Department of the Interior may not be prepared to give the Committee
its testimony at this time, but I hope that when the relevant political
appointees are nominated and confirmed then we will be able to hold
another hearing on this important subject.
I completely understand the anxiety that a number of recognized
tribes that were not under federal jurisdiction in 1934 must be feeling
right now. Following this Supreme Court decision, some must undoubtedly
wonder if they were under federal jurisdiction in 1934 and who will
make that determination, and what it means for their trust lands.
Mr. Chairman, as we seek answers to the questions this case raises,
I hope we use this opportunity to open the record books and archives of
the Department and the Committee. We are dealing with 75 years of
history, with potentially dozens of tribes, thousands of acres of land,
and with a Department whose implementation of a major law has been
overturned by the Court.
It is important that Congress act carefully when addressing the
effects of the Court's decisions, and we must especially make certain
that responsive action comes from Congress. At the heart of the Supreme
Court's ruling is that the authority to recognize tribes and take land
into trust rests with Congress and not with the attorneys in the
Executive Branch. It is our responsibility in Congress to determine how
to act following the Court's ruling, not simply to sit and wait to
rubberstamp a plan that's written and submitted by the Interior
Department, whose actions were struck down by the Supreme Court.
I look forward to listening to the witnesses' testimony.
______
The Chairman. The Chair recognizes the gentleman from
Michigan, the Chair of our Native American Caucus in the
Congress, Mr. Dale Kildee.
Mr. Kildee. Thank you, Mr. Chairman. A good part of my
testimony--I will submit the entire statement for the record,
The Chairman. Sure, without objection.
STATEMENT OF THE HONORABLE DALE KILDEE, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF MICHIGAN
Mr. Kildee.Mr. Chairman, like you, I am deeply troubled by
the recent U.S. Supreme Court decision against the Narragansett
Tribe of Rhode Island, in which the Court calls into question
the authority of the Secretary of the Interior to take land
into trust for Indian tribes not Federally recognized as of
1934.
The decision affects many Indian tribes, particularly those
who obtained Federal recognition through the Department of the
Interior's administrative process and Indian tribes whose
recognition was obtained after 1934, including eight tribes
from my own State of Michigan. This decision may affect their
pending and future fee-to-trust applications.
Mr. Chairman, I do not believe that the Congress intended
to craft a bifurcated system of doing this. I still think there
are two ways in which they can get their sovereignty
recognized--through the Congress and through the Department of
the Interior--and I hope that the solicitor is soon appointed
so he can act in his capacity to try to defend the rights of
sovereignty of the Native American tribes. I yield back the
balance of my time.
[The prepared statement of Mr. Kildee follows:]
Statement of The Honorable Dale E. Kildee, a Representative in Congress
from the State of Michigan
Mr. Chairman, I am deeply troubled by the recent U.S. Supreme Court
decision against the Narragansett Tribe of Rhode Island in which the
Court calls into question the authority of the Secretary of the
Interior to take land into trust for Indian tribes not Federally
recognized as of 1934.
I disagree with the Court as I do not believe it was the intent of
Congress to establish a bifurcated system that limits the Secretary's
authority for approving trust land applications to tribes Federally
recognized as of 1934.
This decision affects many Indian tribes, particularly those who
obtained Federal recognition through the Department of the Interior's
administrative process.
And for Indian tribes whose recognition was obtained after 1934,
including 8 tribes from my own State of Michigan, this decision may
affect their pending and future fee-to-trust applications.
Mr. Chairman, it is my understanding that the Department of the
Interior's nominee for Solicitor has not yet been confirmed by the
Senate. However, I look forward to a discussion with the Department as
to how it plans to move forward in light of this decision.
Tribes across the country support legislative response to the
Court's decision, which may have its own political challenges from
state and local governments.
Mr. Chairman, I look forward to working with you to develop a
legislative fix.
And I look forward to hearing the testimony today from our
witnesses.
Thank you.
______
The Chairman. Does the gentleman from American Samoa, Mr.
Faleomavaega, wish an opening statement?
STATEMENT OF THE HONORABLE ENI F.H. FALEOMAVAEGA,
A DELEGATE IN CONGRESS FROM AMERICAN SAMOA
Mr. Faleomavaega. Yes, Mr. Chairman, I do, and I want to
first welcome our witnesses this morning.
I am not the least bit surprised, Mr. Chairman, to the
events that have transpired and the decision that the Supreme
Court has made. This three-letter word, ``now,'' has upset and
turned over 75 years of legal precedent and historical
decisions that have been made based on the Reorganization Act
of 1934.
It really saddens me, Mr. Chairman, to the effect that even
defining what an ``Indian'' is--we have gone through the whole
ritual, and we have even been going through the recognition
process, which was never done by the Congress--it was
administratively done by the Department--and to the effect of
defining an ``Indian,'' it reminds me of defining what a
``black'' was, three-fifths of a person, by our own founders of
the Constitution, now defining an Indian to have to have ``50-
percent blood,'' whatever that means.
So it goes down to the very essence of how we have treated
the Native American community so poorly, and it is something
that I am sure that we are not very proud of and that we are
trying to seek remedies and find solutions to the problems that
the Native American community has had to endure in the worst
way, and I am just saddened that this is where we are, and I am
hopeful that, by the recommendations of our panelists, we will
find a quick remedy, legislatively this time, that there will
be no question whatsoever as to the legislative intent of the
law based on what was written then in 1934 and what the
Secretary of the Interior has had to do to accommodate some of
the problems that the Native American communities have had to
go through for all of these years.
So, with that, Mr. Chairman, I do look forward to hearing
from our witnesses this morning and thank you.
The Chairman. Thank you. With that, we will proceed with
our witnesses.
We have a panel this morning consisting of the following
individuals: Ms. Colette Routel, the visiting assistant
professor, University of Michigan Law School, Ann Arbor,
Michigan, and assistant professor, William Mitchell College of
Law, St. Paul, Minnesota. Also is Mr. Michael J. Anderson,
partner, AndersonTuell, LLP, Washington, D.C.; and our third
witness is Mr. Donald Craig Mitchell, Esquire, of Anchorage,
Alaska.
Lady and Gentlemen, we welcome you to our Committee on
Natural Resources this morning. We appreciate your taking the
time to be with us. We do have your prepared testimony. It will
be made part of the record as if actually read, and you may
proceed in the manner you wish and in the order in which I
recognized you. Ms. Routel?
STATEMENT OF COLETTE ROUTEL, VISITING ASSISTANT PROFESSOR,
UNIVERSITY OF MICHIGAN LAW SCHOOL, ANN ARBOR, MICHIGAN, AND
ASSISTANT PROFESSOR, WILLIAM MITCHELL COLLEGE OF LAW, SAINT
PAUL, MINNESOTA
Ms. Routel. Good morning, Mr. Chairman and Members of the
Committee. Thank you for giving me the opportunity to speak
here today about the Supreme Court's recent opinion in Carcieri
v. Salazar.
The Indian Reorganization Act applies to Indians and Indian
tribes, and these are defined terms. The term ``Indian''
includes ``all persons of Indian descent who are members of any
recognized tribe now under Federal jurisdiction.''
At issue in Carcieri, as you have mentioned, was how to
interpret that word ``now.'' Did the phrase, ``now under
Federal jurisdiction,'' require that the tribe be under Federal
jurisdiction in 1934, when the IRA was adopted, or did ``now''
require tribes to be under Federal jurisdiction at the moment
they sought to take advantage of the benefits of the Act?
The Department of the Interior adopted the latter
interpretation, and, for the last 25 years, that has been
formalized in regulations promulgated through notice-and-
comment rulemaking.
Despite this, the Supreme Court recently limited the
benefits of the IRA to only those Indian tribes under Federal
jurisdiction in 1934.
As I have explained in detail in my written testimony, this
decision is not supported by the legislative history of the
Act.
During debate on the bill, Burton Wheeler, who was then
Chairman of the Senate Committee on Indian Affairs, wanted to
ensure that the IRA would not require all Indians under Federal
jurisdiction in 1934 to remain that way indefinitely. Instead,
he believed that the Secretary of the Interior should maintain
the discretion to decide, at a later date, that a particular
Indian had become fully assimilated and no longer needed the
protection of the Federal government.
It was in response to these comments that Collier agreed to
add the phrase, ``now under Federal jurisdiction,'' to the
definition of ``Indian.''
Thus, Congress could not have intended ``now'' to mean
1934. That would have frozen recognition decisions at that
date, and it would not have addressed Wheeler's concern that
the Executive Branch must continue to have flexibility to deny
or to extend recognition to Indian tribes and individual Indian
as it saw fit.
Carcieri ignored this legislative history, and, in my
opinion, this led the Court to render an incorrect
interpretation of the statute.
If allowed to stand, this decision will have profound
effects on Indian Country. Obviously, the Secretary of the
Interior will not be able to acquire trust lands for recently
recognized tribes without additional congressional legislation.
Their IRA constitutions and their Section 17 business
corporations will be void, and tribal members will not be able
to receive preference in employment with the BIA. These are
rights found directly in that statute.
It is important to remember, however, that Congress has
also tied other, more recent benefits to the definition of
``Indian'' in the IRA. For example, 25 U.S.C. Section 324
provides that the Secretary of the Interior cannot grant
rights-of-way over trust lands without the consent of the
affected tribe. The definition of ``tribe'' in that statute is
linked to the definition of ``tribe'' in the IRA. So these
sorts of linked benefits will also be lost.
How many tribes will be affected? Probably between 50 and
100, but it is impossible to tell for certain right now.
One of the problems inherent in the Court's decision is a
practical one: Before the IRA was enacted, the Federal
government never created a comprehensive list of recognized
tribes. Additionally, no one is sure what the phrase, ``under
Federal jurisdiction,'' means. Was a tribe under Federal
jurisdiction if it received a share of Federal appropriations
specifically designated for tribes; if it had a treaty with the
United States; if some of its members received services from
the BIA?
The Supreme Court has offered little-to-no guidance in
answering these questions. This existing uncertainty is likely
to spawn lawsuits nearly every Federally recognized tribe must
defend. One lawsuit involving a member of the Jamul Indian
Village in California has already been filed. Tribes have
scarce resources, and now they will be forced to spend millions
of dollars defending their long-established rights.
The Supreme Court's interpretation of the IRA will create
two classes of tribes, the haves and the have nots, and this is
clearly contrary to current congressional policy.
In 1994, Congress passed legislation requiring that all
Federally recognized tribes be treated the same, regardless of
the time or manner of their recognition. In doing so, it
realized that the date of a tribe's recognition is almost
always accidental and is not substantive.
For example, tribes recognized in recent years, through the
BIA's formal administrative process, have had to prove that
they continuously existed as an Indian tribe, politically,
socially, and culturally, from historic times to the present.
So these were tribes that existed in 1934, and they should have
been recognized by John Collier, and were only left off the
list due to an omission or a mistake.
The rights included in and tied to the IRA are important
rights. They are rights that are essential to achieving self-
determination and economic sufficiently, and that is why I
implore you to assist Congress in passing the legislative fix.
Thank you.
[The prepared statement of Ms. Routel follows:]
Statement of Colette Routel, Visiting Assistant Professor, University
of Michigan Law School, Assistant Professor, William Mitchell College
of Law
The Indian Reorganization Act (``IRA''), 48 Stat. 984 (codified as
amended at 25 U.S.C. Sec. 461 et seq.), is universally regarded as one
of the most important pieces of legislation directly affecting Indians.
When enacted by Congress in June 1934, it signaled a major reversal of
governmental policy in Indian affairs. Previously, the United States
had aggressively attempted to eradicate tribalism and assimilate
individual Indians into white society. As the principal component of
the Indian New Deal, however, the IRA was designed to promote tribal
self-government and ultimately restore to Indian tribes the management
of their own affairs.
Under the IRA, tribes were granted the ability to organize both
constitutional governments and business corporations. The allotment
program was abolished, and the periods of trust placed on Indian
allotments were extended indefinitely. Unsold ``surplus'' lands and
individual allotments could be returned to the tribe at the discretion
of the Secretary of the Interior or individual allottee, respectively.
The Secretary of the Interior was also authorized to acquire new trust
land for Indian tribes and individual landless Indians. Lastly,
individual Indians who sought positions in the Bureau of Indian Affairs
were to be given preference in hiring.
The U.S. Supreme Court's recent decision in Carcieri v. Salazar
threatens to eliminate these important IRA benefits (and all benefits
that Congress has subsequently tied to the IRA) for many Indian tribes.
In Carcieri, the Court concluded that the term ``Indian,'' which is
defined in the IRA to include ``all persons of Indian descent who are
members of any recognized tribe now under Federal jurisdiction,''
unambiguously limits the benefits of the Act to those tribes that were
under Federal jurisdiction on June 18, 1934. This decision is contrary
to the legislative history of the IRA and contrary to decades of
executive branch practice in administering the Act. Unless corrected
legislatively, Carcieri will have a profound impact on the more than
fifty tribes that have been recognized by the federal government since
1934.
I. Background: Lack of Consensus Regarding the Meaning of ``Indian''
and ``Indian Tribe'' Prior to the IRA
Today, it is generally well-settled that when statutes apply to
``Indian tribes'' that term is meant to refer only to federally
recognized tribes (i.e., Indian tribes that have a government-to-
government relationship with the United States). Likewise, the term
``Indian'' as used in most federal laws refers to enrolled members of
federally recognized tribes. It is easy to forget, however, that this
clarity is rather recent in origin.
Before 1934, Congress had already enacted hundreds of statutes that
applied to ``Indian country,'' ``Indian tribes,'' ``Indians,''
``Indians not citizens of the United States,'' and ``Indians not
members of any of the states.'' These terms were left undefined by
Congress. Consequently, the executive branch was entrusted with the
authority to determine whether a particular tribe or individual Indian
fell within the purview of a statute. Officials in the Department of
the Interior made such determinations in an ad hoc manner; no criteria
for tribal ``recognition'' existed. In fact, the concept of recognition
of Indian tribes in the jurisdictional sense ``was only beginning to
take shape,'' and it ``was not universally applied, accepted or,
frankly, understood.'' William W. Quinn, Jr., Federal Acknowledgment of
American Indian Tribes: The Historical Development of a Legal Concept,
34 Am. J. Legal Hist. 331, 347 (1990). The terms ``recognize'' and
``acknowledge'' were more often used simply in the cognitive sense,
indicating that a particular tribe was known to the United States. Id.
at 339.
Once a determination had been made about the existence of a
particular Indian tribe, federal courts generally refused to disturb
that executive branch conclusion. See, e.g., The Kansas Indians, 72
U.S. 737, 755 (1866) (``If the tribal organization of the Shawnees
is...recognized by the political department of the government as
existing then they are...governed exclusively by the government of the
Union''); United States v. Holliday, 70 U.S. 407, 419 (1865) (noting
that ``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''). But no
comprehensive list of known Indian tribes was created before the
enactment of the IRA. 1 As a result, situations necessarily
arose where the executive branch had not previously considered the
existence of a particular tribe.
---------------------------------------------------------------------------
\1\ In 1894, the U.S. Census Office published a report that
included a list of ``Principal Tribes known to the Laws of the United
States,'' but as its name indicates, this was not a comprehensive
listing of Indian tribes. See Report on Indians Taxed and Indians Not
Taxed in the United States at the Eleventh Census: 1890 (1894). This
report was not updated, and no other list of Indian tribes was created
by the federal government prior to enactment of the IRA.
---------------------------------------------------------------------------
In these cases, federal courts were required to decide whether an
Indian tribe was included within the scope of a particular statute. In
1901, the Supreme Court finally provided a definition of the term
``tribe'' and ``band'' to aid lower federal courts in making these
determinations:
By a ``tribe'' we understand a body of Indians of the same or a
similar race, united in a community under one leadership or
government, and inhabiting a particular though sometimes ill-
defined territory; by a ``band,'' a company of Indians not
necessarily, though often, of the same race or tribe, but
united under the same leadership in a common design.
Montoya v. United States, 180 U.S. 261, 266 (1901). Yet even with this
simple definition, confusion remained.
Some of this confusion was due to the fact that Indian status was
not static. The purpose of federal policy prior to 1934 was to disband
tribes and assimilate their members. Thus, the executive branch and the
federal courts frequently decided that individual tribal members were
no longer wards of the United States because they had abandoned their
tribal allegiance. Abandonment could be inferred by, for example,
living within white settlements, possessing a certain quantum of white
blood, or owning property in fee. See, e.g., United States v. Kopp, 110
F. 160 (D. Wash. 1901) (concluding that Puyallup tribal member was not
an ``Indian'' because he owned his allotted land in fee simple); Dred
Scott v. Sandford, 60 U.S. 393, 404 (1856) (noting that ``if an
individual should leave his nation or tribe, and take up his abode
among the white population, he would be entitled to all the rights and
privileges which would belong to an emigrant from any other foreign
people''). Likewise, Indian tribes ceased to be under federal
jurisdiction during periods of time when their membership as a whole
was considered to have fully assimilated into white society. Compare
United States v. Joseph, 94 U.S. 614 (1876) (concluding that the
Pueblos were civilized and therefore, they were not an ``Indian tribe''
under the Trade & Intercourse Acts), with United States v. Sandoval,
231 U.S. 28 (1913) (concluding that members of the Santa Clara Pueblo
were uncivilized, and therefore, within the purview of statutes
prohibiting the giving of intoxicating liquors to ``Indians'').
The IRA was drafted, debated and enacted against this backdrop.
II. Meaning of Indian in the IRA: The Legislative History
It is difficult to ascertain the actual ``intent'' of any
legislation, and the IRA is no different in this regard. In fact, the
legislative history of the Act is particularly challenging because the
two individuals primarily responsible for its passage--Commissioner of
Indian Affairs John Collier and Senate Indian Affairs Committee
Chairman Burton Wheeler--had divergent views about the ultimate aims of
federal Indian policy. Senator Wheeler still believed that the
government should be pursuing a policy of forced assimilation, because
Indian societies were inferior. Commissioner Collier, on the other
hand, believed not only that the federal government should abandon its
policy of assimilation, but that it should encourage the continuation
and revitalized of traditional tribal religious beliefs, arts and
crafts, and cooperative institutions. See generally Kenneth R. Philip,
John Collier's Crusade for Indian Reform 1920-1954 (1977); Elmer R.
Rusco, A Fateful Time: The Background and Legislative History of the
Indian Reorganization Act 292-303 (2000). Because of these divergent
perspectives, the legislative history of the IRA must be reviewed in
its entirety to gain a full and correct understanding of who the Act
was meant to benefit.
The original bill presented by Commissioner Collier in February
1934, took the unusual step of attempting to provide definitions for
the terms ``Indian'' and ``tribe'':
The term ``Indian''...shall include all persons of Indian
descent who are members of any recognized Indian tribe, band,
or nation, or are descendants of such members and were, on or
about February 1, 1934, actually residing within the present
boundaries of any Indian reservation, and shall further include
all other persons of one-fourth or more Indian blood...
The term ``tribe'' wherever used in this Act shall be construed
to refer to any Indian tribe, band, nation, pueblo, or other
native political group or organization.
The Indian Reorganization Act: Congresses and Bills 12 (Vine Deloria,
Jr. ed., 2002). These definitions prompted a great deal of debate
between Collier and Wheeler.
In six different hearings held throughout April and May of 1934,
2 Senator Wheeler expressed his concern that the IRA, as
proposed, would apply to an unnecessarily broad number of people. To
Grant to Indians Living Under Federal Tutelage the Freedom to Organize
for Purposes of Local Self-Government and Economic Enterprise: Hearing
on S. 2744 and S. 3645 Before the Senate Committee on Indian Affairs,
73d Cong. 266 (1934) (hereinafter ``Senate Hearings''). First, he
complained that non-tribal Indians should have at least one-half Indian
blood before they were brought under the Act. 3 Collier
ultimately agreed to this change. Yet as the hearings continued,
Senator Wheeler proved far more adamant about another related topic:
the need to ensure that the IRA would not require the guardian-ward
relationship to be permanently maintained over tribal members that, in
his mind, had already or would in the future become, fully assimilated
into white culture.
---------------------------------------------------------------------------
\2\ The Senate Committee on Indian Affairs held hearings on the
draft bill on April 26, 28, 30 and May 3, 4, and 17, 1934.
\3\ Senator Wheeler stated:
I do not think the Government of the United States should go out
here and take a lot of Indians in that are quarter bloods... If they
are Indians of the half-blood then the Government should perhaps take
them in, but not unless they are. If you pass it to where they are
quarter-blood Indians you are going to have all kinds of people coming
in and claiming they are quarter-blood Indians and want to be put upon
the Government rolls, and in my judgment it should not be done. What we
are trying to do is get rid of the Indian problem rather than to add to
it.
Senate Hearing, at 263-64.
---------------------------------------------------------------------------
More specifically, Senator Wheeler argued that certain Indians in
California, Montana and Oklahoma were as capable of handling their own
affairs as white men. He believed that these people should not be wards
of the United States forever; at some point, they must be given the
ability to manage their property as they deemed fit. Thus, Senator
Wheeler repeatedly suggested that the draft bill be amended to ensure
that the Secretary of the Interior would continue to have the
discretion to decide that persons who had fully assimilated were no
longer considered ``Indians.'' See, e.g., Senate Hearing at 66-68, 80,
150-51,163-64, 175, 239, 266.
For example, Senator Wheeler's concerns are captured in the
following exchange with Commissioner Collier on April 30, 1934:
Senator Wheeler: ...There are Indians on some of these lands
that are, say, an eighth blood. They are just as much white men
as any man sitting here, and most of them are just as capable
of handling their own transactions as anybody else. Now, if you
pass, for instance, this law, saying that they shall not in any
instance permit an Indian to be granted any land in fee, it
simply means that some of these Indians are going to have their
land tied up when they ought to be handling it themselves.
We had an illustration of the former Vice President of the
United States 4 having his land in Oklahoma some
place being handled by the Government of the United States and
not having a fee patent to it.
---------------------------------------------------------------------------
\4\ Senator Wheeler is obviously referring to Charles Curtis, who
served as the Vice President of the United States under Herbert Hoover.
Curtis had approximately 1/3 Indian blood (Kaw, Osage and Pottawatomie)
and as a tribal member, had been granted an allotment that was held in
trust by the United States.
---------------------------------------------------------------------------
Commissioner Collier: Upon his own petition, Senator.
Senator Wheeler: Yes; upon his own petition. That ought not to
be permitted as a matter of fact. It ought to be handled by the
former Vice President himself rather than by the Government of
the United States, thereby saving the Government that expense.
Now, here is another case out in California, where we visited
some of those reservations in northern California. There is not
any more reason why those Indians out there should handle their
own affairs than any white man. Hardly any of them are more
than quarter-breeds, and most of them are eighths. They are
white people. And yet the Government of the United States is
handling their affairs. In my judgment, those Indians ought to
have that land allotted to them. They ought to run their own
affairs. They ought to come under the laws of the State of
California, and the guardianship over those Indians ought to
cease completely.
Now, if you are going to pass this bill in its present form,
you are going to prevent these lands from ever being taken out
from under the Government supervision.
Senate Hearing at 150-51. In response to Senator Wheeler, Ward Shepard,
a specialist on land policies in the Office of Indian Affairs, noted
that the bill deliberately chose to eliminate the ability of the
Secretary of the Interior to declare particular Indians fully
assimilated or ``competent.'' Historically, it was this discretion that
caused Indians to lose millions of acres of land. 5 But
Senator Wheeler was not deterred by these comments. He continued:
---------------------------------------------------------------------------
\5\ Competency determinations had resulted in the issuance of fee
simple patents to many Indian allotments that were then lost due to
back taxes, shady dealings, or outright theft.
---------------------------------------------------------------------------
Senator Wheeler: I think the Secretary of the Interior ought to
have some discretion in this matter, for the simple reason, as
I have said to you, there are Indians in my State that are just
as capable of handling their own private affairs as any white
man in this room, and there are innumerable Indians in
California of that kind. As I say, that one reservation we
visited and had hearings, the Commissioner or his
representative was present. They are white people. They are not
Indians. They are just as capable of handling their own affairs
as they can be, and, in my judgment, they ought to cease to be
wards of the Government of the United States, and their
property ought to be turned over to them, and they ought to
handle it in exactly the same way that any white man handles
his property.
What we are interested in particularly is protecting the
long-haired Indians and the Indians that are incapable of
handling their property. But we should not tie the Government
up with handling property and keeping certain Indians as wards
of the Government and their children as wards of the Government
when they really no longer should be subject to that
supervision.
Senate Hearing at 151.
Later in this same hearing, Senator Wheeler once again pressed the
point. This time, however, Commissioner Collier agreed that the
Secretary could retain discretion to decide that certain individuals
would not longer enjoy the benefits of the Act:
Commissioner Collier: ...May I advert for a moment to this
question of allotment being wholly discretionary with the
Secretary of the Interior? One of the horrible examples of the
effects of allotment is the Quanitos, where the timber has all
been allotted and the result has been disastrous. That was done
not through the initiative of the Department, but as a result
of a mandamus, and the court sustained the mandamus and
required the Department to proceed and allot.
Senator Wheeler: Yes; but if you leave it to the discretion of
the Secretary of the Interior and it is in his discretion, they
could not go in and mandamus them to do it, if it were entirely
within his discretion....
Commissioner Collier: ``we feel that looking back over the
admitted errors of the past administrations, which have had
terrible consequences, Congress ought to control that
situation.
Senator Wheeler: But the trouble is Congress cannot control it.
I mean it is something that the Congress cannot control,
because you have individual Indians on some of these
reservations that are absolutely competent to take care of
their own land, and they ought to be given the right to take
care of their own land and carry on their own property if they
are capable and want to do it, and they are capable of doing
it.
Commissioner Collier: If that were left as a discretion [sic],
if it can be given the strong advantages we are talking about,
it would be relatively unimportant then. We are not insistent
upon that.
Senate Hearing at 163-64.
On May 17, 1934, however, when the Committee was reading through
the bill for the final time, Commissioner Collier had still not
incorporated the change suggested by Senator Wheeler. It was at this
point that the phrase ``now under Federal jurisdiction'' was finally
inserted into the IRA:
Senator Wheeler: But the thing about it is this, Senator; I
think you have to sooner or later eliminate those Indians who
are at the present time--as I said the other day, you have a
tribe of Indians here, for instance in northern California,
several so-called ``tribes'' there. They are no more Indians
than you or I, perhaps. I mean they are white people
essentially. And yet they are under the supervision of the
Government of the United States, and there is no reason for it
at all, in my judgment. Their lands ought to be turned over to
them in severalty and divided up and let them go ahead and
operate their own property in their own way.
Senator O'Mahoney: If I may suggest, that could be handled by
some separate provision excluding from the benefits of the act
certain types, but must have a general definition [sic].
Commissioner Collier: Would this not meet your thought,
Senator: After the words ``recognized Indian tribe'' in line 1
insert ``now under Federal jurisdiction''? That would limit the
act to the Indians now under Federal jurisdiction, except that
other Indians of more than one-half Indian blood would get
help.
Senate Hearing at 266. And thus, the bill was amended.
This legislative history demonstrates that the Supreme Court's
decision in Carcieri v. Salazar is exactly backwards. The addition of
the phrase ``now under federal jurisdiction'' to the definition of
``Indian'' was not intended to fix application of the Act to only those
under jurisdiction in 1934. Senator Wheeler repeatedly stated that he
was concerned about Indians that were, at the time, admittedly under
federal jurisdiction. The phrase in question was inserted to ensure
that the Secretary would continue to have discretion to decide that
individual Indians who had fully assimilated would no longer be granted
the benefits of the IRA. ``Now'' must therefore refer to the date that
the Act is being applied to the particular Indian in question.
Justice Thomas' majority opinion in Carcieri v. Salazar fails to
contain any discussion of this legislative history. 6
---------------------------------------------------------------------------
\6\ Justice Breyer's concurrence does refer to the legislative
history of the IRA, but after seeming to review only a three-page
excerpt of the Committee's final hearing, he misinterprets the
discussion.
---------------------------------------------------------------------------
III. Executive Branch Practice
Rather than discussing the legislative history of the IRA, the
majority in Carcieri v. Salazar supports its decision by reference to a
single letter written by Commissioner Collier, which claims that the
term ``Indian'' includes ``all persons of Indian descent who are
members of any recognized tribe that was under Federal jurisdiction at
the date of the Act.'' That letter, however, was written almost two
years after the bill was enacted.
More revealing than this single, informal piece of correspondence
is the consistent history of formal executive branch decisions
acknowledging that certain groups are Indian tribes under the IRA.
During 1934-35, Commissioner Collier decided that 258 groups were
eligible to organize under the IRA. Yet after that initial wave of
``recognition'' decisions, Collier and others continued to recognize
and apply the IRA to tribes without any consideration of whether they
were ``under federal jurisdiction'' as of June 18, 1934. Additionally,
for the past 25 years, the agency's construction of this statutory
provision has been embodied in formal regulations that allow any Indian
tribe currently recognized by the federal government to take advantage
of the IRA's benefits. Since these regulations were promulgated,
sixteen tribes have--often at the explicit direction of Congress--
endured the grueling process of obtaining federal recognition through
the Department's formal administrative process codified at 25 C.F.R.
Part 83. The Supreme Court's decision in Carcieri threatens to
eliminate many of the most important benefits of federal recognition
for these administratively recognized tribes, even though in most
cases, after reviewing copious volumes of primary and secondary
documentation, the Department concluded that mistake or oversight was
all that precluded their recognition in 1934.
I encourage the members of this Committee to right the injustice
that Carcieri v. Salazar will cause by amending the definition of
``Indian'' contained in the IRA.
Disclaimer: The comments expressed herein are solely those of the
author as an individual member of the academic community; the author
does not represent the University of Michigan or William Mitchell
College of Law for purposes of this testimony.
______
The Chairman. Thank you. Mr. Anderson
STATEMENT OF MICHAEL J. ANDERSON, PARTNER,
ANDERSONTUELL, LLP, WASHINGTON, D.C.
Mr. Anderson. Thank you, Mr. Chairman and Members of the
Committee and Ranking Member Hastings.
I am Michael Anderson of the Washington, D.C., firm of
AndersonTuell here in Washington. I am pleased to present
testimony today, based in part on my experience at the
Department of the Interior as Associate Solicitor for Indian
affairs and Deputy Assistant Secretary for Indian affairs,
respectively, from 1993 to 2001.
The starting point for any discussion addressing Carcieri
must begin with the United States Constitution and Congress's
authority to regulate commerce with foreign nations, the
several states, and with the Indian tribes. This constitutional
doctrine, along with the President's power to make treaties
with Indian tribe, the Executive Branch's trust responsibility
to Indian tribes, Chief Justice John Marshall's recognition of
Indian tribes domestic, dependent nations, which is really the
foundation of modern Federal Indian law, and the inherent
powers of Indian nations all provide the context for reviewing
any Supreme Court decision, like Carcieri, that is detrimental
to tribal sovereignty and Executive Branch powers.
Since the termination era ended in the 1950s, Congress,
often through the leadership of this Committee, has stepped
forward to build on this country's constitutional foundations
to support tribal self-determination. Fortunately for Indian
Country, the modern self-determination era has seen dozens of
statutes that support Indian tribes and their powers.
Even in recent times, Congress has acted with dispatch when
the full purposes of the IRA were not being met for all tribes.
As you know, the IRA was designed to reverse the
assimilation policy of the General Allotment Act in the 1880s,
which President Theodore Roosevelt described as ``a mighty,
pulverizing engine to break up the tribal mass.''
I will highlight three recent examples where Congress acted
to fully implement the IRA.
First, in 1994, Congress amended the IRA to prohibit
Federal agencies from discriminating among Indian tribes with
respect to their privileges and immunities. Until that law was
passed, the Interior Solicitor's Office treated certain tribes
as ``created'' and other tribes as ``historic'' based on their
original organization.
In response, then-Native American Subcommittee Chairman
Bill Richardson made this statement on the House Floor:
``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.''
Second, Congress passed another law, in 1994, that made
clear, Indian tribes may be recognized in at least three ways:
by Congress, by the FAP process, or by the courts.
Third, in 2004, Congress again amended the IRA to ensure
that nothing in the IRA voids a tribal constitution adopted
under a tribe's inherent powers, even if it is adopted after
1934.
Chairman Rahall, these three statutes, and many others,
make clear that Congress will not tolerate the creation of
second-class tribes.
While I was at the Department of the Interior, our practice
was to presume that the Secretary had the authority to acquire
land into trust for Indian tribes. This worked well for more
than 70 years. Indeed, the strength of the IRA led to a
renaissance in Indian Country. The tribes built headquarters,
schools, housing, medical centers, police and fire stations.
Carcieri threatens to undermine these successes with the
creation of a new class of tribes that would not be eligible
for land-into-trust.
The time has come once again for Congress, and this
Committee, to act by clearly affirming the authority of the
Secretary of the Interior to take land into trust for all
tribes. While waiting for congressional action, I would suggest
that this Committee urge Secretary Salazar and Attorney General
Holder to interpret the Carcieri decision in a way that
protects completed land-into-trust conveyances, through the
Quiet Title Act, and to promote future land acquisitions for
all tribes.
The government should adopt a broad view of the ``now under
Federal jurisdiction'' language in the IRA that would equate
this jurisdiction to the broad powers of Congress under the
Constitution.
In other words, virtually all tribes would continue to be
covered by the IRA because Federal jurisdiction would be equal
to Congress's plenary power. This legal principle could be
argued in challenges to land-into-trust acquisitions and
offered as guidance now for pending land acquisitions.
Even though the Secretary and the Attorney General, as
trustees for American Indian tribes, should interpret the
decision to minimize its impact, there is no doubt that Indian
tribes will face years of litigation from opportunistic
plaintiffs if Congress does not act with urgency.
Regrettably, some attorneys and their clients may see the
Carcieri decision as a springboard to revisit assimilationist
and antisovereignty positions best left in the termination era.
Facing such litigation or, possibly, after an erroneous
decision by lower courts, the Department of the Interior could
be compelled to examine the historical record for individual
tribes.
My experience at the Department has shown that gaps in
historic records, staffing shortages, restrictive
interpretations, and well-funded opponents could delay land-
into-trust acquisitions for years. This is especially true in
light of my experience with the FAP process. Suffice to say
that no one wants to create a new office of Federal
jurisdiction that would repeat the history of the FAP process.
In closing, it is reassuring that Secretary Salazar has
said he is disappointed with the Carcieri decision and that
``the Department is committed to supporting the ability of all
Federally recognized tribes to have lands acquired in trust.''
President Obama also supports the principle of tribal self-
determination and has said that the Federal government must
fully enable tribal self-governance. This Committee has always
been in the vanguard of protecting the full reach of the IRA.
Indian nations across the country, again, look to you in the
wake of the Carcieri decision.
Thank you, and I look forward to answering any questions
that the Committee may have.
[The prepared statement of Mr. Anderson follows:]
Statement of Michael J. Anderson, AndersonTuell, LLP
Mr. Chairman and members of the Committee, I am Michael J. Anderson
of the Washington, DC law firm of AndersonTuell, LLP. I am here today
to present testimony based in part on my tenure at the United States
Department of the Interior as Associate Solicitor for Indian Affairs
and Deputy Assistant Secretary for Indian Affairs, respectively, from
1993 to 2001. This written statement is submitted for the record and
offers the following points:
Carcieri v. Salazar overturns nearly 75 years of settled
land into trust policy by limiting the Secretary of the Interior's
authority to accept land into trust for those American Indian Tribes
``under federal jurisdiction'' in 1934.
While virtually all American Indian Tribes were ``under
federal jurisdiction'' under the proper interpretation of that term,
the Carcieri decision does not articulate a test or standard for
resolving that question.
It is inevitable that some private groups will argue that
many recognized tribes should be excluded, and the Department of the
Interior could potentially face dozens of lawsuits. It is possible
that, facing such litigation, or possibly after erroneous decisions by
the lower courts, the Department will be compelled to examine the
historical record for individual tribes.
The Department is ill-equipped to make such
determinations due to a lack of resources.
The decision is creating confusion within federal
agencies and Indian Country.
Carcieri is contrary to modern Congressional and
Executive support for American Indian self-determination, Native
Nation-building, and treating all Tribes the same with respect to
authorities of the Secretary of the Interior.
Congress should act now to restore the Secretary's
authority to accept land into trust for all American Indian Tribes and
all other Secretarial authorities potentially affected by the decision.
Until Congress acts, it should urge the Attorney General,
the Secretary of the Interior and the Chairman of the National Indian
Gaming Commission to interpret the Carcieri decision in a manner that
does not disturb past federal agency decisions and that maximizes the
Secretary's current authority.
I. PURPOSES OF THE IRA
The Supreme Court decision Carcieri v. Salazar 1 runs
directly counter to federal laws and policies that have long expressly
supported self-determination for American Indian Nations. The Indian
Reorganization Act of 1934 was intended to improve the political,
cultural, and economic status of Tribes by ending fifty years of forced
assimilation initiated by the General Allotment Act of 1887,
2 described by President Theodore Roosevelt as a ``mighty
pulverizing engine to break up the tribal mass.'' 3 The IRA
gave authority to the Secretary of the Interior to acquire new or
repurchase former tribal lands on behalf of all Indian tribes.
4 The purpose behind the new tribal land-acquisition policy
was to encourage tribal self-governance and promote tribal self-
determination and economic development.
---------------------------------------------------------------------------
\1\ --U.S.--, 129 S.Ct. 1058 (2009) (``Carcieri'').
\2\ 24 Stat. 388
\3\ President Theodore Roosevelt. First Annual Message (Dec. 3,
1901). John T. Woolley and Gerhard Peters, The American Presidency
Project [online]. Santa Barbara, CA: University of California (hosted),
Gerhard Peters (database). http://www.presidency.ucsb.edu/ws/
?pid=29542.
\4\ See Cohen's Handbook of Federal Indian Law (2005 ed.),
Sec. 1.05.
---------------------------------------------------------------------------
Since 1934, approximately six million acres of land have been
acquired in trust for American Indian tribes. 5 The use of
those lands by tribes has promoted tribal self-determination and well-
being through uses as diverse as for health centers, government
offices, and tribal cultural facilities. Moreover, such lands play a
role in a wide range of economic activities whose benefits spill beyond
tribes themselves to surrounding, non-Indian communities; such economic
activities include agriculture, energy resources development, housing,
clinics, and sacred site protection.
---------------------------------------------------------------------------
\5\ U.S. General Accountability Office. BIA's Efforts to Impose
Time Frames and Collect Better Data Should Improve the Process of Land
in Trust Applications. GAO-06-781 (July 2006), pp. 8-9.
---------------------------------------------------------------------------
II. BACKGROUND OF CARCIERI
Carcieri v. Salazar, which construed Section 19 of the Indian
Reorganization Act of 1934 6 (``IRA''), overturns nearly 75
years of well-settled legislative, judicial, and administrative policy
and precedent with respect to the authority of the Secretary of the
Interior to accept land in trust for Indian Tribes. The decision held
that for purposes of the IRA, the Secretary of the Interior's authority
to take land into Trust for a tribe is limited to those tribes ``under
federal jurisdiction when the IRA was enacted in 1934.'' 7
Justice Thomas wrote the majority opinion. Justice Breyer joined the
opinion but filed a concurrence. Justice Souter concurred in part and
dissented in part joined by Justice Ginsburg. Justice Stevens
dissented.
---------------------------------------------------------------------------
\6\ 48 Stat. 984, codified as amended at 25 U.S.C. 461 et seq.
\7\ Carcieri at 1061.
---------------------------------------------------------------------------
The Supreme Court reversed the First Circuit's determination that
``now under federal jurisdiction'' applies to all currently recognized
tribes and continues a trend wherein the Supreme Court reverses
favorable interpretation of Indian rights from the Circuit Courts.
8 The Supreme Court's majority opinion did not set forth a
test as to what ``under federal jurisdiction'' in 1934 encompasses, but
ruled that it did not apply to the Narragansett Indian Tribe where in
the majority's view the Tribe itself did not argue or contest that it
was not under federal jurisdiction in 1934. Manifestly unfair to the
Narragansett, the majority did not remand the case back to the First
Circuit to allow the Tribe an opportunity to demonstrate that it was in
fact under federal jurisdiction in 1934. Without explanation, the
Supreme Court also ignored Congress' amendments to the IRA in 1994
stating:
---------------------------------------------------------------------------
\8\ See, e.g., David H. Getches, Beyond Indian Law: The Rehnquist
Court's Pursuit of States' Rights, Color-Blind Justice and Mainstream
Values, 86 Minn. Law. Rev. 267, 280 (2001) (of forty Indian law cases
decided by the Supreme Court between 1986 and 2001, tribal interests
prevailed 22.5% of the time, a success rate lower even than that of
convicted criminals).
---------------------------------------------------------------------------
(f) Privileges and immunities of Indian tribes; prohibition on
new regulations: Department or agencies of the United States
shall not promulgate any regulation or make any decision or
determination pursuant to the Act of June 18, 1934 (25 U.S.C.
461 et seq., 48 Stat. 984) as amended, or any other Act of
Congress, with respect to a federally recognized Indian tribe
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. 9
---------------------------------------------------------------------------
\9\ 25 U.S.C. Sec. 476(f).
---------------------------------------------------------------------------
CONCERNS RAISED BY CARCIERI DECISION
By upending well-settled expectations, Carcieri is already creating
confusion in Indian Country and within the Department of the Interior,
the National Indian Gaming Commission, and the Department of Justice.
As a result, it will undoubtedly lead to delays, increased costs, and
new legal challenges in the already cumbersome fee-to-trust process
10. Dozens of pending land-into-trust applications may have
to be reconsidered in the wake of the Supreme Court's ruling, dashing
the hopes of tribes whose well-being depends on timely administrative
action. There are already reports of vague directives from the Bureau
of Indian Affairs requesting tribal confirmation of their jurisdiction
under the IRA. Hindering the prospects for tribal economic development
and self-determination during the worst economic downturn for
generations, the economic consequences of Carcieri could prove
irreversible.
---------------------------------------------------------------------------
\10\ See U.S. General Accountability Office, ``Indian Issues: BIA's
Efforts to Impose Time Frames and Collect Better Data Should Improve
the Process of Land in Trust Applications,'' GAO-06-781 (July 2006).
---------------------------------------------------------------------------
While all tribes with established reservations should be appalled
by the Carcieri decision, landless tribes may have the most to fear.
Without a land base in trust, an Indian Nation's sovereignty over
territory is virtually non-existent and its powers as a domestic Nation
are severely compromised. With a land base, an Indian Nation can
protect sacred places, create a homeland, foster economic development
and employment. When Indian Nations do well, entire communities do
well.
The decision in Carcieri illustrates once again the modern Supreme
Court's rejection of time-honored and well-founded policies for
American Indian Tribes. The many concerns raised by Carcieri are
compounded by the Supreme Court's issuance of a new test of ``under
federal jurisdiction'' in 1934. Without explanation or analysis, the
majority simply held that the Narragansett Indian Tribe would have been
unable to satisfy this newly established criterion back in 1934. In
contrast to the majority's vague articulation (or more properly non-
articulation) of a standard for what constitutes ``under federal
jurisdiction,'' the concurring opinion of Justice Breyer at least set
forth a non-exclusive list of examples of what might provide evidence
of being ``under federal jurisdiction'' in 1934; for example:
continuing obligations by the United States to the tribe;
11
---------------------------------------------------------------------------
\11\ Id. at 1070 (citing Memorandum from Associate Solicitor,
Indian Affairs to Assistant Secretary, Indian Affairs, Request for
Reconsideration of Decision Not to Take Land in Trust for the
Stillaguamish Tribe (Oct. 1, 1980)) (``all groups which existed and as
to which the United States had a continuing course of dealings or some
legal obligation in 1934, whether or not that obligation was
acknowledged at that time'').
---------------------------------------------------------------------------
the continuing existence of a government-to-government
relationship despite the federal government's mistaken belief it was
terminated; 12
---------------------------------------------------------------------------
\12\ Id. (citing Grand Traverse Band of Ottawa & Chippewa Indians
v. Office of U.S. Attorney for Western Dist. of Mich., 369 F.3d 960,
961, and n. 2 (C.A.6 2004)).
---------------------------------------------------------------------------
where the Tribe was the subject of a congressional
appropriation or enrollment with the BIA
cases where even later recognition decisions reflected
earlier federal jurisdiction. 13
---------------------------------------------------------------------------
\13\ Id.
---------------------------------------------------------------------------
The proper application of Justice Breyer's opinion by federal
agencies and the correct interpretation of ``under federal
jurisdiction'' could alleviate fall-out from the Carcieri decision and
perhaps limit it to the Narragansett Tribe. Even so, such favorable
determinations could face challenges by opportunistic opponents of
tribal land acquisition who could delay conveyance of property to the
United States for the benefit of Indian Tribes for years.
The responsibility of the Federal government over Indian tribes is
historically rooted in the Indian Commerce Clause of the Constitution,
which gives Congress plenary power over tribes, unrestricted authority
to assert jurisdiction over Indian communities, and the ability to
determine whether, to what extent, and for what time a tribal community
shall be recognized. 14 Acknowledgment of a tribe implicitly
recognizes that the tribe is a sovereign entity possessing all those
inherent powers not otherwise inconsistent with its status as a
dependent nation. 15 This wide constitutional authority is
reflected in the broad jurisdictional authority of Congress over
tribes, which extends to all Indian tribes, even tribes with which a
government-to-government relation has not been expressly established.
16
---------------------------------------------------------------------------
\14\ U.S. Constitution, Art. I, Sec. 8, Cl. 3; U.S. v. Sandoval,
231 U.S. 28, 46 (1913).
\15\ See Worcester v. Georgia, 31 U.S. 515 (1832); Cherokee Nation
v. Georgia, 30 U.S. 1 (1831).
\16\ See, e.g., Joint Tribal Council of the Passamaquoddy Tribe v.
Morton, 528 F.2d 370 (1st Cir. 1975) (unrecognized tribe within federal
jurisdiction for purposes of claim arising under Trade and Intercourse
Act).
---------------------------------------------------------------------------
Against the historical backdrop of this policy and jurisprudence,
instruction should be provided to interpret ``under federal
jurisdiction'' as it appears in Section 19 of the IRA in an equally
broad manner, on the understanding that, had Congress intended the
statute to be construed narrowly, it would have made that desire clear.
Had Congress intended to restrict Section 19, it could have used
qualifying language. Or Congress could have expressly limited eligible
tribes to those under formal Interior Department ``supervision,''
``tutelage,'' or ``guardianship,'' restrictive terms that appear in the
legislative history of the IRA. Congress avoided such narrow language,
using the broader ``federal jurisdiction'' based precisely on the broad
scope of its authority as rooted in the Constitution.
THE DEPARTMENT OF INTERIOR IS ILL-EQUIPPED TO CREATE AND APPLY NEW
CARCIERI TESTS FOR THE DETERMINING ``UNDER FEDERAL
JURISDICTION''
The Department of the Interior is ill-equipped to apply and
construe IRA terms like ``under federal jurisdiction in 1934,'' due to
a lack of resources and an occasional history of misconstruing and
limiting the IRA. For example, prior to 1994, the Interior Solicitor's
Division of Indian Affairs, Tribal Government and Alaska office
routinely misconstrued the IRA to contrive a distinction between what
it termed ``historic'' tribes and so-called ``non-historic'' tribes--
which referred to tribes originally organized as communities of adult
Indians. This dubious distinction was nowhere found in the original
IRA. It was also undercut by the 1988 Amendments to the IRA which
deleted the language regarding ``adult Indians residing on a
reservation'' and simply referred to tribes as ``tribes.'' In addition,
it was impliedly overruled by the definition of ``tribe'' in statutes
such as the Indian Land Consolidation Act, 17 the Indian
Child Welfare Act, 18 and other laws with broad definitions
of ``tribe,'' such as that used in the Indian Self-Determination and
Education Assistance Act. 19
---------------------------------------------------------------------------
\17\ 25 U.S.C. Sec. Sec. 2201 et seq.
\18\ 25 U.S.C. Sec. Sec. 1901 et seq.
\19\ 25 U.S.C. Sec. Sec. 450 et seq.
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The invidious distinction between historic and non-historic tribes
was summarized in a now infamous Bureau of Indian Affairs letter from
Acting Assistant Secretary Wyman Babby to Chairman George Miller of the
House Resources Committee in 1994 ( the ``Babby Letter'').
20 The firestorm that erupted in Indian Country as a result
of this letter led concerned Members of Congress to reverse the so-
called distinction within months. In 1994, Congress amended the Indian
Reorganization Act to prohibit the classifications asserted by the
Office of the Solicitor, Division of Indian Affairs and to ensure the
same rights and obligations of federal recognition that are available
to all federally recognized tribes. 21 Congress also
clarified that:
---------------------------------------------------------------------------
\20\ See United States Department of the Interior, Acting Assistant
Secretary--Indian Affairs to Hon. George Miller (Jan. 14, 1994).
\21\ See 25 U.S.C. Sec. 476(f)-(g).
---------------------------------------------------------------------------
``(3) Indian tribes presently may be recognized by Act of
Congress; by the administrative procedures set forth in part 83
of the Code of Federal Regulations denominated ``Procedures for
Establishing that an American Indian Group Exists as an Indian
Tribe;'' or by a decision of a United States court;''
22
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\22\ 25 U.S.C.A. Sec. 479a
---------------------------------------------------------------------------
Moreover, in 2004, Congress again amended the IRA to ensure that
the IRA did not invalidate tribal constitutions that were adopted after
June 19, 1934 (the date of the original IRA) where such constitutions
are adopted under a Tribe's ``inherent sovereign power'' 23.
Any attempt to resuscitate such distinctions between tribe's
privileges, immunities and inherent powers must be prevented.
---------------------------------------------------------------------------
\23\ 25 U.S.C.A. Sec. 476(h), Section 103, Public Law 103-454
---------------------------------------------------------------------------
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 Carcieri 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.
While at the Department, I also became aware of Interior Department
practices in the federal acknowledgment process that if applied by the
Department in the land in trust process could unduly restrict the
Secretary's authority. Repeated reports of the General Accounting
Office and this Committee's own hearings demonstrate the long delays,
poor staff support, and unduly restrictive interpretations of the
Department's Office of Federal Acknowledgment (``OFA''). 24
Transferring tribal history questions to OFA is a potential disaster in
the making.
---------------------------------------------------------------------------
\24\ See U.S. General Accountability Office, ``More Consistent and
Timely Tribal Recognition Process Needed,'' GAO 02-415T (Feb. 7, 2002);
``Timeliness of the Tribal Recognition Process Has Improved, but It
Will Take Years to Clear the Existing Backlog of Petitions,'' GAO-05-
347T (Feb. 10, 2005).
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As Associate Solicitor, the Division of Indian Affairs' attorneys I
supervised were not required to engage in an analysis of which tribes
were ``under federal jurisdiction'' when considering land into trust
applications for the simple reason that all tribes were presumed to be
under the Secretary's trust authority, absent some express
Congressional prohibition. The purpose and intent behind this long-
standing practice was ignored in Carcieri.
Plainly the Carcieri decision runs directly counter to federal laws
and policies that have long expressly supported self-determination for
American Indian Nations. The Indian Reorganization Act of 1934 itself
was intended to reverse fifty years of forced assimilation of tribes
through allotment of tribal land by giving the Secretary of the
Interior the authority to acquire lands in trust on behalf of all
Indian tribes. 25 The purpose behind the new tribal land-
acquisition policy was to encourage tribal self-governance and promote
tribal self-determination and economic development.
---------------------------------------------------------------------------
\25\ See General Allotment Act of 1887. 24 Stat. 388.
---------------------------------------------------------------------------
The Executive Branch has followed a similar course as Congress in
supporting and promoting policies of self-determination of Indian
tribes. President Clinton's Executive Order 13084 of May 14, 1998,
Consultation and Coordination with Indian Tribal Governments, mandates
that federal agencies follow principles of respect for Indian Tribal
self-government and sovereignty, for Tribal treaty rights and other
rights and for the responsibilities which arise from the unique federal
trust relationship. 26
---------------------------------------------------------------------------
\26\ Executive Order No. 13084, ``Consultation and Coordination
with Indian Tribal Governments.'' 63 Fed. Reg. 27655 (Apr. 14, 1998).
See also President George W. Bush, ``Memorandum for the Heads of
Executive Departments and Agencies: Government-to-Government
Relationship with Tribal Government,'' (Sept. 23, 2004); President
George H.W. Bush, Statement Reaffirming the Government-to-Government
Relationship between the Federal Government and Tribal Governments
(June 14, 1991); President Ronald M. Reagan, Statement on American
Indian Policy (Jan. 24, 1983), in 19 Weekly Comp. Pres. Doc. 98;
President Richard M. Nixon, Special Message on Indian Affairs, in
Public Papers of the Presidents of the United States: Richard Nixon,
pp. 564-67, 576.
---------------------------------------------------------------------------
CONGRESS MUST PROVIDE A REMEDY NOW
Congress has the opportunity and duty to Indian Tribes to solve
this problem now by confirming the Secretary's authority to take land
in trust for all tribes rather than allowing new and convoluted
bureaucratic processes to take root. Congress should provide an
immediate statutory solution that (1) makes clear that the Secretary of
the Interior has authority to accept land in trust for any and all
federally recognized tribes; and (2) that ratifies all prior
Secretarial decisions under the IRA, including trust acquisitions, that
may be potentially affected by the decision.
Congress should enact new legislation that makes clear the
Secretary of the Interior has authority to accept land in trust for all
federally-recognized Tribes irrespective of a determination of whether
or not they were under federal jurisdiction in 1934. While we wait for
Congress to review the legislative record to restore the Secretary's
authority, we cannot forget that legislative direction to federal
agencies is necessary today. The Secretary of the Interior can make
clear today that nothing from the Carcieri decision will disturb prior
trust land acquisitions. For example, The Quiet Title Act contains an
Indian land exception that expressly precludes lawsuits challenging the
United States' title to ``trust or restricted Indian lands.''
27 All acquisitions prior to Carcieri should therefore
continue to enjoy full effect and all future agency activities related
to these lands must proceed as properly authorized.
---------------------------------------------------------------------------
\27\ 20 U.S.C. Sec. 2409a. See also Sac & Fox Nation of Missouri v.
Salazar, No. 08-3277 (10th Cir. Mar. 3, 2009); Neighbors for Rational
Development, Inc. v. Norton, 379 F.3d 956 (10th Cir. 2004).
---------------------------------------------------------------------------
In the meantime, this Committee could also give important direction
to the Secretary of the Interior, Chairman of the National Indian
Gaming Commission and Attorney General to interpret the Carcieri
decision in the most legally permissible fashion possible, especially
with respect to the standard to be applied for what tribes should be
considered ``under federal jurisdiction'' after Carcieri.
Thank you for the opportunity to testify today and I look forward
to answering any questions the Committee has today or may submit in
writing.
______
EXHIBITS
Exhibit A 25 U.S.C.A. Sec. 476
Privileges and immunities of Indian tribes, Tribal
sovereignty
Exhibit B 25 U.S.C.A. Sec. 479
Definitions
Exhibit C 25 U.S.C.A. Sec. 479a
Federally Recognized List Act of 1994
Exhibit D U.S. Const. Article I, Section 8, Clause 3
Indian Commerce Clause
Exhibit E July 13, 1994 Memorandum to Ada E. Deer, Assistant
Secretary--Indian Affairs from John D. Leshy, Solicitor, regarding
amendment of the Indian Reorganization Act
______
EXHIBIT A
25 u.s.c.a. Sec. 476 (partial)
(f) PRIVILEGES AND IMMUNITIES OF INDIAN TRIBES; PROHIBITION ON NEW
REGULATIONS.--Departments or agencies of the United States
shall not promulgate any regulation or make any decision or
determination pursuant to the Act of June 18, 1934 (25 U.S.C.
461 et seq., 48 Stat. 984) as amended, or any other Act of
Congress, with respect to a federally recognized Indian tribe
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.
(g) PRIVILEGES AND IMMUNITIES OF INDIAN TRIBES; EXISTING
REGULATIONS.--Any regulation or administrative decision or
determination of a department or agency of the United States
that is in existence or effect on May 31, 1994, and that
classifies, enhances, or diminishes the privileges and
immunities available to a federally recognized Indian tribe
relative to the privileges and immunities available to other
federally recognized tribes by virtue of their status as Indian
tribes shall have no force or effect.
(h) Tribal sovereignty
Notwithstanding any other provision of this Act----
(1) each Indian tribe shall retain inherent sovereign power to
adopt governing documents under procedures other than those specified
in this section; and
(2) nothing in this Act invalidates any constitution or other
governing document adopted by an Indian tribe after June 18, 1934, in
accordance with the authority described in paragraph (1).
______
EXHIBIT B
25 u.s.c.a. Sec. 479
The term ``Indian'' as used in this Act shall 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 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.
______
EXHIBIT C
25 u.s.c.a. Sec. 479a
For the purposes of this title:
(1) The term ``Secretary'' means the Secretary of the Interior.
(2) The term ``Indian tribe'' means any Indian or Alaska Native
tribe, band, nation, pueblo, village or community that the Secretary of
the Interior acknowledges to exist as an Indian tribe.
(3) The term ``list'' means the list of recognized tribes
published by the Secretary pursuant to section 479a-1 of this title.
Relevant Findings of 25 U.S.C.A. Sec. 479a
Section 103 of Pub.L. 103-454 provided that: ``The Congress finds
that----
``(3) Indian tribes presently may be recognized by Act of
Congress; by the administrative procedures set forth in part 83 of the
Code of Federal Regulations denominated `Procedures for Establishing
that an American Indian Group Exists as an Indian Tribe;' or by a
decision of a United States court;''
______
EXHIBIT D
united states constitution, article i, section 8, clause 3
The Congress shall have power...
To regulate commerce with foreign nations, and among the several
states, and with the Indian tribes;
United States Constitution, Article II, Section 2, Clause 2
[The President] shall have Power, by and with the Advice and
Consent of the Senate, to make Treaties, provided two thirds of the
Senators present concur....
______
EXHIBIT E
U.S. Department of the Interior
Office of the Solicitor
Washington, D.C.
July 13, 1994
Memorandum
To: Ada E. Deer
Assistant Secretary -- Indian Affairs
From: John D. Leshy
Solicitor
Subject: Amendment of the Indian Reorganization Act
This responds to your request for my views on the meaning of
Section 5(b) of die Technical Corrections Act of 1994 (Pub. Law 103-
263; 108 Slat. 707) which amended Section 16 of the Indian
Reorganization Act of 1934 (ERA), 25 U.S.C. Sec. 476. by adding two new
subsections. The new subsections provide:
(f) PRIVILEGES AND IMMUNITIES OF INDIAN TRIBES; PROHIBITION
ON NEW REGULATIONS.-Departments or agencies of the United
States shall not promulgate any regulation or make any decision
or determination pursuant to the Act of June 18, 1934, (25
U.S.C. 461 et seq., 48 Stat. 984) as amended, or any other Act
of Congress, with respect to a federally recognized Indian
tribe 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.
(g) PRIVILEGES AND IMMUNITIES OF INDIAN TRIBES; EXISTING
REGULATIONS.-Any regulation or administrative decision or
determination of a department or agency of die United States
that is in existence or effect on die date of enactment of this
Act and that classifies, enhances, or diminishes die
privileges, and immunities available to a federally recognized
Indian tribe relative to the privileges and immunities
available to other federally recognized tribes by virtue of
[heir status as Indian tribes shall have no force or effect.
These subsections were added to unrelated technical amendments on
the Senate floor immediately prior to enactment. The only relevant
legislative history is a colloquy between Senators Inouye and McCain.
\1\ In proposing the amendment. Senator McCain stated:
---------------------------------------------------------------------------
\1\ These subsections were previously introduced in independent
bills in the Senate (S. 2017) and House of Representatives (H.R. 4231)
in mid-April. No action was taken on either bill. In remarks nearly
identical to those he made upon introduction of the language added to
the Technical Corrections Act, Senator McCain noted that the Department
might take action on its own to modify its prior interpretation of
section 16. 140 Cong. Rec. S4339 (daily cd. April 14, 1994). When he
introduced H.R. 4231, Congressman Richardson made similar, albeit more
brief, remarks. There is no other legislative history from the House.
---------------------------------------------------------------------------
The purpose of the amendment 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 Yagui [sic]
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.
140 Cong. Rec. S6147 (daily ed. May 19, 1994).
It is clear from their colloquy that Senators Inouye and McCain are
referring to the interpretation in the Solicitor's Opinion dated April
15, 1936, styled ``Sioux--Elections on Constitutions'' (1 Op. Sol, on
Indian Affairs 618 (U.S.D.I. 1979))(``Opinion'') \2\. The Opinion
concluded that, in authorizing the adoption of tribal constitutions in
Section 16 of the Indian Reorganization Act of 1934 (IRA), 25 U.S.C.
Sec. 476, Congress distinguished between the governmental powers which
may be exercised by, respectively, what have come to be known as
``historic'' tribes on the one hand, and ``non-historic'' or
``created'' tribes or adult Indian communities on the other. While not
expressly using the term ``non-historic'' or ``created'' tribe, the
Opinion referred to the latter as Indian ``groups'' which were
``organized on the basis of their residence upon reserved land.''
Opinion, at 618.
---------------------------------------------------------------------------
\2\ The same opinion appears with the heading ``Powers of Indian
Group Organized Under IRA But Not As Historical Tribe'' as Solicitor's
Opinion, April 15.1938.1 Op. Sol, on Indian Affairs 813 (U.S.D.I.
1979). The date of 1938 appears to be a typographical error, because
the elections for the Lower Sioux Indian Community and Prairie Island
Indian Community referred to in the opinion in the future tense were
held on May 16 and 23, 1936, respectively.
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As you know, my office was in the final stages of reviewing that
Opinion, pursuant to your request, when Congress acted. Your January
1994 Senate testimony on the Pascua Yaqui legislation was sharply
critical of the distinction.
The amendment, signed into law by President Clinton on May 31,
1994, overrules the 1936 Opinion. \3\ You should therefore instruct the
Bureau of Indian Affairs to place no reliance on it in future dealings
with Tribes. You may also want to notify the Tribes that have
previously been regarded as ``created'' of this change.
---------------------------------------------------------------------------
\3\ The amendment, which was not provided to my Office in advance
of its introduction, and upon which we had no opportunity to comment,
is not merely a simple overruling of the 1936 Opinion, and Senator
McCain made dear in his-floor statement that its reach was not confined
to the IRA. Instead, he characterized it as ``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.''
140 Cong. Rec. S6147 (daily ed. May 19, 1994). This memorandum does not
address other possible applications of the amendment beyond the 1936
Opinion.
---------------------------------------------------------------------------
While my reconsideration of the Opinion is now moot, some
discussion of it may be helpful to you in applying the new law. With
little elaboration, the Opinion based its conclusion that the IRA
authorized a distinction between ``historic'' and ``non-historic'' or
``created'' tribes on a single sentence found in Section 16 of the IRA.
Section 16 as originally enacted provided, in relevant part:
Any Indian tribe, or tribes, residing on the same reservation,
shall have the right to organize for its common welfare, and
may adopt an appropriate constitution and bylaws, which shall
become effective when ratified by a majority of the adult
members of the tribe, or of the adult Indians residing on such
reservation, as the case may be, at a special election
authorized and called by the Secretary of the Interior under
such rules and regulations as he may prescribe.
The effect of the distinction drawn in the 1936 Opinion was that a
community of adult Indians organized on reserved land under Section 16
of the IRA may not have certain sovereign powers enjoyed by other
``historic'' tribes, unless the powers have been delegated to the tribe
by the Secretary of the Interior or are incidental to the tribe's
ownership of the property or to the carrying on of business. The
tribe's power to regulate law and order, for example, could only be
sustained where there was a delegation of power from the Secretary of
the Interior. Other powers possibly affected include the power to
condemn land of community members; to regulate inheritance of the
property of community members, and to levy taxes upon community members
and others.
The distinction drawn in the 1936 Opinion has had a limited
practical effect. The occasions for applying it have been relatively
infrequent; principally, in BIA review of tribal constitutions or
constitutional amendments pursuant to Section 16. \4\ In the nearly
sixty years since the Opinion was issued, in fact, fewer than twenty of
the more than 500 federally recognized tribes have received notice that
their particular constitution or their exercise of constitutional
powers might be impermissible because they were considered to be
``created'' rather than ``historic'' tribes.
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\4\ In 1988 Congress amended Section 16 of the IRA to require the
Secretary to hold elections on proposed new tribal constitutions and
constitutional amendments within stated time periods. The 1988
amendments also required the Secretary to advise the tribe in writing
30 days prior to calling the elections of any provision which he found
contrary to applicable law.
---------------------------------------------------------------------------
The Opinion's impact has also been limited because it recognized
that ``created'' tribes may exercise some of the powers listed above as
incident to other powers they have that do not derive from sovereignty.
As the Opinion put it: ``The group...may have those powers which are
incidental to its ownership of property and to its carrying on of
business, and those which may be delegated by the Secretary of the
Interior.'' Opinion, at 618.
The underlying question is solely one of statutory interpretation--
of the meaning to be ascribed to this sentence in Section 16 of the
IRA. In legislating in the arena of tribal powers. Congress can and
sometimes has differentiated among the powers and authorities of tribes
or Indian groups. \5\
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\5\ Title 25 of the United States Code is replete with special
legislation limiting or otherwise affecting the powers of individual
tribes, such as the Navajos and the Hopis, or groups of tribes,.such as
the Five Civilized Tribes (Cherokees, Creeks, Chickasaws, Choctaws and
Seminoles) or all those tribes in a particular state. For example, all
matters involving tribal powers, immunities and jurisdiction of the
Catawba Tribe are governed by a settlement agreement and the
Congressionally sanctioned State Act (25 U.S.C. Sec. 941h); Oregon has
been granted civil and criminal jurisdiction within the boundaries of
the Coquille Reservation (25 U.S.C. Sec. 715d); New York has criminal
jurisdiction on Indian reservations (25 U.S.C. Sec. 232) and New York
courts have civil jurisdiction (25 U.S.C. Sec. 233); Kansas has
criminal jurisdiction on Indian reservations (18 U.S.C. 5 3243), see.,
Negopsott v. Samuels. U.S., 113 S.Ct. 1119 (1993); Maine has civil and
criminal jurisdiction over, reservations (25 U.S.C. Sec. 1725); Texas
has civil and criminal jurisdiction over the Ysleta Del Sur Pueblo (25
U.S.C. Sec. 1300g-4(f)).
---------------------------------------------------------------------------
While my office was reexamining this Opinion, our research into its
history unearthed some interesting background; specifically, memoranda
from two Assistant Solicitors taking contrary positions on the question
shortly before the Opinion was released. In one, Charlotte Westwood
argued that no distinction should be drawn, while in the other Felix
Cohen, a pioneering figure in Indian law, argued for the distinction.
In the end, the Solicitor sided with Cohen. \6\ The two memoranda are
attached for your information.
---------------------------------------------------------------------------
\6\ But see the statements of Senators McCain and Inouye in
introducing the recent amendment on the Senate floor. 140 Cong. Rec.
S1646 (daily ed. May 19, 1994).
---------------------------------------------------------------------------
Notwithstanding the Solicitor's interpretation, the Opinion has
come into serious question in recent times. For one thing, the
distinction it drew is not based on the express terms of Section 16 of
the IRA. \7\ For another, it may also have been undercut by the 1988
amendments to Section 16. See Pub. L. No. 100-581, 102 Stat. 2938; in
the following paragraph, the 1988 additions are shown in boldface and
the deletions struck-through.
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\7\ After nearly sixty yean of relative obscurity, this Opinion
has, as you know, recently gained a surprising amount of attention. A
front-page article in the April 4, 1994, Seattle Post-Intelligencer,
for example, quoted tribal officials and attorneys who characterized
the Opinion in strongly negative and sweeping terms; e.g., that it
``came out of nowhere,'' was ``just wrong, historically,'' and could be
applicable to more than 200 tribes.
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(a) Any Indian tribe, or tribes, residing on the same
reservation, shall have the right to organize for its common
welfare, and may adopt an appropriate constitution and bylaws,
and any amendments thereto, which shall become effective when--
(1) ratified by a majority of the adult members of the
tribe, or tribes of the adult Indians residing on such
reservation, as the case may be, at a special election
authorized and called by the Secretary of the Interior
under such rules and regulations as he may prescribe;
Section 19 of the IRA defines ``tribe'' to refer to ``any Indian
tribe, organized band, pueblo, or the Indians residing on one
reservation.'' The definition was not changed by the 1988 amendments.
The legislative history of the 1988 amendments simply notes:
The amendment deletes reference to residence on a reservation
and eliminates reservation status or ownership of a tribal land
base as a condition precedent to organization under this Act.
The Committee's deletion of the references to the rights of
Indians residing oil the same reservation to organize under the
1934 Act does not alter the authorities with respect to the
organization of such Indians because of the definition of
``tribe'' in section 19 of the 1934 Act (25 U.S.C. 479) which
includes ``the Indians residing on one reservation.'' In the
case of such a ``tribe'' the members of the tribe are the
residents of the reservation.
S. Rep. No. 100-577, 100th Cong., 2d Sess. 2 (1988).
Moreover, the modern trend of Federal statutes affecting Indian
tribal, governmental powers on a national basis is to define ``tribe''
in broad terms. See, e.g., the definition in the Indian Civil Rights
Act of 1968: ``any tribe, band, or other group of Indians subject to
the jurisdiction of the United States and recognized as possessing
powers of self-government.'' 25 U.S.C. Sec. 1301(1). See also, the
Indian Law Enforcement Reform Act, 25 U.S.C. Sec. 2801(5).
Congress effectively limited or partially overruled the 1936
Opinion in the Indian Land Consolidation Act by defining ``tribe'' to
mean ``any Indian tribe, band, group, pueblo or community for which, or
for the members of which, the United States holds lands in trust.'' 25
U.S.C. Sec. 2201(1). The power to regulate inheritance of property of
community members was one of the sovereign powers not vested in
``created'' or ``non-historic'' tribes, according to the 1936 Opinion,
but the Land Consolidation Act authorizes any Indian tribe so broadly
defined, subject to approval of the Secretary, to ``adopt its own code
of laws, to govern descent and distribution of trust or restricted
lands within that tribe's reservation or otherwise subject to that
tribe's jurisdiction.'' 25 U.S.C. Sec. 22051
---------------------------------------------------------------------------
\1\ Appendixes 1 through 3 in the brief that a group of law
professors, appearing as amici curiae, filed with the U.S. Supreme
Court in Carcieri list forty-eight of the 104 tribes. The list does not
include the Seminole Indians who in 1957 were residing in Florida and
to whom in that year the Secretary of the Interior issued an IRA
Constitution that designated the group as the Seminole Indian Tribe of
Florida, even though no treaty or statute had granted that legal status
to the individual Seminoles, and their descents, who had escaped the
efforts of the army, which ended in 1858, to relocate the Seminoles to
the Indian Territory. The list also does not include 55 ``federally
recognized tribes'' in California that operate gambling casinos, most
of which gained that ersatz legal status in settlement agreements in
lawsuits brought by California Indian Legal Services and to which the
Secretary of the Interior and the Assistant Secretary of the Interior
for Indian Affairs were party. See e.g., Scotts Valley Band of Pomo
Indians v. United States, U.S. District Court for the Northern District
of California No. C-86-3660, Stipulation for Entry of Judgment,
Paragraph No. 3(c)(federal defendants agree that the Scotts Valley and
Guidiville Bands of Pomo Indians, the Lytton Indian Community, and the
Me-Choop-Da Indians of the Chico Rancheria ``shall be eligible for all
rights and benefits extended to other federally recognized Indian
tribes'')(emphasis added).
---------------------------------------------------------------------------
Between 1984 and 1996 when I researched the book that became Sold
American, I read the John Collier papers that are generally available
on microfilm, the Felix Cohen papers at the Beinecke Library at Yale
University, and the Central Office Files (Record Group 75) of the BIA
for the years 1933 to 1953 at the National Archives in Washington, D.C.
While that was some years ago, I do not recall reading any letter,
memorandum, or other document in which John Collier or any other BIA
employee or Felix Cohen suggested that they thought that new
``federally recognized tribes'' would be created subsequent to the
enactment of the IRA. With respect to the accuracy of that assumption,
it is significant that it would be thirty-eight years after the
enactment of the IRA before Congress would create a new tribe. See Pub.
L. No. 92-470, 86 Stat. 783 (1972)(Payson Community of Yavapai-Apache
Indians ``recognized as a tribe of Indians within the purview of the
Act of June 18, 1934'').
I would proffer that the reason John Collier and Felix Cohen did
not think that new tribes would be created was that, while they were
privately committed to bolstering (and indeed inventing) tribal
sovereignty, they knew that the members of the Senate and House
Committees on Indian Affairs believed, as their predecessors had since
the 1880s, that assimilation should be the objective of Congress's
Native American policies. As Representative Edgar Howard, the chairman
of the House Committee on Indian Affairs, explained to the House prior
to the vote to pass the Committee's version of the IRA, the Committee's
rewrite of the bill that John Collier and Felix Cohen had sent to the
Hill ``contains many provisions which are fundamentals of a plan to
enable the Indians generally to become self-supporting and self-
respecting American citizens.'' 78 Cong. Rec. 11,727 (1934).
2
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\2\ I would encourage every member of the Committee who is
interested in understanding the policy objectives that Congress--as
opposed to John Collier and Felix Cohen--believed that its enactment of
the IRA would advance to read the House and Senate debates on the bill.
78 Cong. Rec. 11,122-139, 11,724-744 (1934).
---------------------------------------------------------------------------
That remained Congress's policy objective until the beginning of
the Kennedy administration in 1961 when the Native American tribal
sovereignty movement that today is pervasive throughout Indian country
began.
During the nascent days of the movement, in 1975 the 94th Congress
established a twelve-member American Indian Policy Review Commission.
The Commission was chaired by Senator James Abourezk. The late
Representative Lloyd Meeds, a respected attorney, a former
distinguished member of this Committee, and between 1973 and 1976 the
chairman of the Committee's Subcommittee on Indian Affairs, was vice
chairman. The Commission assembled a paid and unpaid staff of 115
people.
On May 17, 1977 the Commission delivered its 563-page report to the
95th Congress. See AMERICAN INDIAN POLICY REVIEW COMMISSION, FINAL
REPORT (1977) [hereinafter ``Final Report'']. The report contained a
wish-list of 206 recommendations.
Recommendation Nos. 164 through 177 dealt with ``unrecognized''
tribes. See Final Report, at 37-41. Recommendation No. 166 urged
Congress--not the Secretary of the Interior--to ``by legislation,
create a special office...entrusted with the responsibility of
affirming tribes' relationships with the Federal Government and
empowered to direct Federal Indian Programs to these tribal
communities.'' Id. 37-38. Recommendation No. 168 provided:
Tribe or group or community claiming to be Indian or aboriginal
to the United States be recognized unless the United States
acting through the special office created by Congress, can
establish through hearings and investigations that the group
does not meet any one of the following definitional factors....
Id. 38-39.
Representative Meeds, the vice chairman of the Commission, was so
disturbed by the polemical tone of the report that he filed dissenting
views. See Final Report, at 571-612. Representative Meeds stated his
principal objection as follows:
[T]he majority report of this Commission is the product of one-
sided advocacy in favor of American Indian tribes. The
interests of the United States, the States, and non-Indian
citizens, if considered at all, are largely ignored....
* * *
[T]he Commission's staff interpreted the enabling legislation
as a charter to produce a document in favor of tribal
positions....
* * *
For Congress to realistically find this report of any utility,
the report should have been an objective consideration of
existing Indian law and policy, a consideration of the views of
the United States, the States, non-Indian citizens, the tribes,
and Indian citizens. This the Commission did not do. Instead,
the Commission saw its role as an opportunity to represent to
the Congress the position of some American Indian tribes and
their non-Indian advocates.
Id. 571.
Of Representative Meeds's myriad objections to the report's
recommendations, one of the most important related to the
recommendations dealing with ``unrecognized tribes.'' Representative
Meeds explained his concern as follows:
Because the Constitution grants to the Congress the power to
regulate commerce with Indian tribes, article I, section 8, the
recognition of Indians as a tribe, i.e., a separate policy
(sic) [polity], is a political question for the Congress to
determine...Hence, in any given context, resort must be had to
the relevant treaties or statutes by which Congress has made
its declaration. The Commission fails to appreciate this
fundamental principle of constitutional law. (emphasis added).
Id. 609.
In light of the fact that, as a consequence of the Carcieri
decision, it now appears that the Secretary of the Interior has
unlawfully acquired land pursuant to section 5 of the IRA for as many
as 88 ersatz ``federally recognized tribes'' that gained that legal
status through final agency action of the Secretary of the Interior
that was ultra vires, Representative Meeds's concern that the
Commission did not understand that the Indian Commerce Clause reserves
the power to grant tribal recognition to Congress--not to the Secretary
of the Interior, and certainly not to the U.S. District Court--today
appears prescient.
Seven months after the Commission delivered its report to the 95th
Congress, Senator Abourezk introduced S. 2375, 95th Cong. (1977), a
bill whose enactment would have delegated Congress's authority to
create new ``federally recognized tribes'' to the Secretary of the
Interior. See 123 Cong. Rec. 39,277 (1977). Two similar bills, H.R.
11630 and 13773, 95th Cong. (1978), were introduced in the House and
referred to this Committee.
None of those bills were reported, much less enacted.
Instead, two months after the Commission delivered its report to
the 95th Congress (and in complete disregard of Representative Meeds's
admonishment that, pursuant to the Indian Commerce Clause, tribal
recognition is exclusively a congressional responsibility), the Deputy
Commissioner of Indian Affairs published a proposed rule whose adoption
as a final rule would promulgate regulations granting the Secretary of
the Interior authority to create new ``federally recognized tribes'' in
Congress's stead. The Deputy Commissioner explained his rationale for
doing so as follows:
Various Indian groups throughout the United States, thinking it
in their best interest, have requested the Secretary of the
Interior to ``recognize'' them as an Indian tribe. Heretofore,
the sparsity of such requests permitted an acknowledgment of a
group's status to be at the discretion of the Secretary or
representatives of the Department. The recent increase in the
number of such requests before the Department necessitates the
development of procedures to enable that a uniform and
objective approach be taken to their evaluation.
42 Fed. Reg. 30,647 (1977).
In his proposed rule, the Deputy Commissioner asserted that
Congress intended 5 U.S.C. 301 and 25 U.S.C. 2 and 9 to delegate the
Secretary of the Interior authority to create new ``federally
recognized tribes'' in Congress's stead. See id. However, those
statutes contain no such delegation of authority. See William W. Quinn,
Jr., Federal Acknowledgment of American Indian Tribes: Authority,
Judicial Interposition, and 25 C.F.R. 83, 17 American Indian Law Review
37, 47-48 (1992)(5 U.S.C. 301 and 25 U.S.C. 2 and 9 discussed). See
also Federal Recognition of Indian Tribes: Hearing Before the Subcomm.
on Indian Affairs and Public Lands of the House Comm. on Interior and
Insular Affairs, 95th Cong. 14 (1978)(Letter from Rick V. Lavis, Acting
Assistant Secretary, to The Honorable Morris Udall, dated August 8,
1978, admitting that ``there is no specific legislative authorization''
for the Secretary's tribal recognition regulations).
Nevertheless, on September 5, 1978 the Deputy Assistant Secretary
of the Interior for Indian Affairs published a final rule that
promulgated the regulations. See 43 Fed. Reg. 39,361 (1978).
3
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\3\ The regulations were codified at 25 C.F.R. 54.1 et seq. (1978),
today 25 C.F.R. 83.1 et seq. (2009).
---------------------------------------------------------------------------
That was more than thirty years ago.
Today, as a consequence of the Carcieri decision, neither Congress
nor the Secretary of the Interior can any longer ignore the mess that
the Secretary's refusal to heed Representative Meeds's admonition, and
Congress's failure to defend its constitutional prerogative from
usurpation by the BIA, has wrought. And the mess is that there are 88
Native American organizations, and probably more, whose members believe
that they are members of a ``federally recognized tribe'' but who have
no such legal status. And for many of those ersatz ``federally
recognized tribes,'' the Secretary of the Interior has acquired land
pursuant to section 5 of the IRA that, for the reasons the U.S. Supreme
Court explained in Carcieri, he had no legal authority to acquire.
By focusing the attention of this Committee on the situation the
Carcieri decision has done a large service. Because it is more than
three decades past time for Congress to retrieve from the BIA (and the
Solicitors who serve it) the plenary authority that the Indian Commerce
Clause of the U.S. Constitution confers on Congress--and only on
Congress--to decide the nation's Native American policies.
With respect to those policies, to fashion a response to the
Carcieri decision the 111th Congress must decide its position regarding
two questions:
Is it appropriate during the first decade of the twenty-first
century for Congress to designate--or for Congress to authorize the
Secretary of the Interior to designate--new groups of United States
citizens whose members (as 25 C.F.R. 83.7(e) describes the criterion)
``descend [with any scintilla of blood quantum] from a historical
tribe'' as ``federally recognized tribes'' whose governing bodies
possesses sovereign immunity and governmental authority?
Is it appropriate during the first decade of the twenty-first
century for Congress to authorize the Secretary of the Interior to
transform additional parcels of fee title land into trust land over the
objection of the governments of the states, counties, and
municipalities in which the parcels are located?
Mr. Chairman, if the Committee finally is ready to focus its
attention on those extremely important policy questions, and if it
would be useful to the Committee for me to do so, I am available to
share my views regarding those questions with the Committee at any time
and in any forum of its convenience.
Thank you.
______
The Chairman. Thank you, Mr. Mitchell.
Let me ask both, Mr. Anderson and Professor Routel. You
both have testified that a legislative fix is needed here.
Could you elaborate on that just a little bit more, please?
Mr. Anderson. Certainly. I think there are basically two
elements of a legislative fix, one that would ratify and make
clear that all prior decisions, under the Secretary's presumed
authority for 70 years, is valid--that would be one element--
and, second, that, for future acquisitions, the Secretary would
clearly have the authority for all tribes, that there is not a
second class of tribes for those that were not under
jurisdiction in 1934, but for all tribes, just as Congress did
in 1994, when it said that there was no difference between
created and historic tribes.
So I think those two elements of basically an affirmation
or ratification of prior conveyances and then a clear authority
for future conveyances would be the two major elements of
legislation.
I think it would not have to be terribly complicated or
long. The other IRA fixes were fairly brief, legislative,
statutory language fixes, and I think the same thing could be
achieved here.
Ms. Routel. I would agree, I think, fully with that
response that it is two pronged. You need to make sure that
Congress is ratifying the actions that have taken place in the
past and then also assure that, going forward, all tribes, not
matter when they were recognized or allowed to receive the
benefits of the IRA. I think, today, you could just do that by
eliminating the phrase, ``now under Federal jurisdiction,''
from the statute.
Today, the word ``recognized'' is a term of art, and it
means a tribe that is believed by the Federal government to be
an Indian tribe with a government-government relationship, and
it is a tribe under Federal jurisdiction.
Back in 1934, the term ``recognized'' was used in the
cognitive sense; that is, the Federal government knew of this
tribe.
So, today, clarifying and using that word as a term of art,
I think, would clarify the matter.
The Chairman. Mr. Anderson, as we all know, major crimes
committed on Indian lands are Federal offenses. Is it possible
that individuals who are convicted of a Federal crime may
challenge their conviction by arguing that their tribe was not
under Federal jurisdiction in 1934?
Mr. Anderson. Yes. I think that is a distinct possibility,
Mr. Chairman. When a defense attorney, particularly on appeals,
is looking for new, creative ways to challenge a conviction,
jurisdiction sometimes, in Indian cases, whether it is 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 this decision and mount
potential challenges.
The Chairman. Mr. Mitchell, let me ask you, could certain
government activities, such as operating medical facilities,
social services, and providing low-income housing, operating on
post-1934 land in trust, have their Indian land status be
challenged?
Mr. Mitchell. I am not sure, Mr. Chairman, that the land
status necessarily would be completely relevant to that, in the
sense that, in the Indian Self-determination and Education
Assistance Act and other various statutes, Congress has defined
certain Native American groups as tribes for purposes of those
statutes, and most of the kinds of programs that you are
talking about come through those statutes, and the eligibility
of a group, as an Indian tribe, for purposes of those statutes,
I think, is not affected by this.
I think, in response to what Mr. Anderson just said, as I
indicated in my testimony, what is lurking out here as the
elephant in the room is that Congress certainly has the
constitutional authority to create new tribes. However, this
Committee was told, in 1978, or, actually, a Subcommittee, the
Indian Affairs and Public Lands Subcommittee, that there really
was no statutory authority for the Secretary to get in the
business of recognizing tribes, but, nevertheless, that has
been going on for 30 years.
You bet, if I was an attorney that had an attorney-client
responsibility to someone that became entangled with one of
those tribes, if it was advantageous to me and my client, you
bet I would challenge the tribal status of that group. That is
why this, as I said in my opening testimony, is a mess.
Mr. Anderson. Mr. Chairman, may I just make a comment to
that?
The Chairman. Sure.
Mr. Anderson. One, Congress does not create tribes.
Congress recognizes or acknowledges the inherent authority of
tribes that have been in the U.S. from time immemorial, so it
is not a creation of a tribe but an acknowledgement of an
inherent authority.
Second, while criminal defendants and their lawyers could
challenge trusts and land acquisitions, I do not think they
would be successful. I think the Quiet Title Act and other
policies of the Federal government would prevent that so that
they would lose in court. It would be a litigation, I think,
headache for the Federal government. I think they would
prevail.
In response to Mr. Mitchell's comment about status, even
the Supreme Court did not go to the issue of the status of the
Narragansett Tribe. No courts have upheld or reversed the
Secretary's authority, under the Federal acknowledgement
procedure, or congressional recognitions of tribes, and so I
think any theory that would suggest that there could be a court
that would undo tribal status is really at the fringe.
The Chairman. Professor Routel?
Ms. Routel. Yes. I would like to quickly respond to a point
that I think Mr. Mitchell has made on more than one occasion,
and that is that the Executive Branch does not have the
authority to recognize tribes but Congress does exclusively. I
think it is wrong, as a matter of law.
If you look at the Organic Act, 25 U.S.C. Section 2 or
Section 9, Congress has delegated the Department of the
Interior very broad authority to make regulations in Indian
affairs, and the Executive Branch has been recognizing, and
ceasing to recognize, Indian tribes since this country was
formed, and it was solely the branch that made these
recognition decisions throughout the 1800s and throughout most
of the 1900s.
While Congress certainly has plenary authority and can
recognize Indian tribes, this Committee and other committees
have routinely told tribes, ``Please go through the OFA
process.'' It is a formal process set up by the Department of
the Interior, and they are the ones best equipped to analyze
the historical information and to figure out if you truly have
existed as a tribe continuously, and I think it would be quite
unfair if Congress has been telling these tribes to go through
this process, and they have spent 20 or 30 years going through
that process, and they are now recognized, and the end result
is that they do not have Federal recognition, and that
recognition could only be extended by Congress.
Mr. Mitchell. Mr. Chairman?
The Chairman. Yes, Mr. Mitchell.
Mr. Mitchell. At the risk of allowing this to descend into
a very, what I would consider, entertaining debate between the
panelists, I would say that, with all due respect, everything
you have just heard is legal nonsense, and that is not me
saying it is legal nonsense; it is the former Member of this
Committee, Representative Lloyd Meeds, who says that it is
legal nonsense.
As the Chairman knows, how served with Mr. Meeds, Mr. Meeds
was not only a wonderful human being who was a great personal
friend to me, but he was a very smart lawyer, a very smart
lawyer, and when this entire tribal recognition, inherent-
sovereignty nonsense started with the American Indian Policy
Review Commission, of which Representative Meeds was the Co-
Chair, this stuff was too much for him, and he spent a great
deal of time writing over 100 pages of minority dissenting
views about this very issue.
I would encourage any Member of the Committee who truly
believes that what you have just heard from the other panelist
is legally true to do not pay a single word of attention to
what I tell you but go back, get a copy of the American Indian
Policy Review Commission, pour a cup of coffee or a glass of
wine or whatever, sit down at night, and start at the beginning
of Representative Meeds's dissenting views and read it through
to the end, and, at that point, you decide which of us here is
right this morning.
The Chairman. To be continued but not on my time. The
gentleman from Washington, Mr. Hastings.
Mr. Hastings. Thank you very much, Mr. Chairman.
In your opening remarks, Mr. Mitchell, you kind of might
have anticipated a question I was going to ask, but I did want
to ask all of you if you or your firm have any clients that are
affected by that Supreme Court decision, and, for the record,
Mr. Mitchell, we will start with you.
Mr. Mitchell. Mr. Chairman, no, I do not. What I would say
is I, obviously, am from Alaska. There was an incident back in
the late 1970s where an ANCSA Village Corporation--I do not
want to bore you with the Alaska situation--but the Venetie
Village Corporation, which later led to the U.S. Supreme Court
decision from Venetie, they took their ANCSA fee title land,
the village corporation, conveyed it in fee to the IRA counsel
that was still up in that community. The IRA counsel then went
to the Secretary, in the late 1970s, and said, ``Take all of
this land back into trust under Section 5 of the IRA.''
The associate solicitor for Indian affairs, at that point,
took a look at this entire affair and said, ``It would be an
abuse of discretion for me to do so because Congress had made
the decision that there was not going to be trust land in
Alaska,'' and that is where it was left until Solicitor Leshy,
on his way out the door, rescinded that opinion. But there is
none of that in Alaska at the time----
Mr. Hastings. But you do not represent any tribes right
now?
Mr. Mitchell. No, I do not.
Mr. Hastings. That is my question.
Mr. Mitchell. No, I do not.
Mr. Hastings. OK.
Mr. Anderson. Yes, Mr. Hastings. Our firm represents
American Indian tribal governments. All would be concerned
about the Carcieri decision and be looking to look at its
impacts. At least one is in litigation, where private
plaintiffs have raised Carcieri concerns, and so I certainly do
represent tribes that have a valid interest, I think, in the
outcome of this hearing and also interested in litigation
positions that will be developed.
Mr. Hastings. OK. Dr. Routel?
Ms. Routel. I am not currently representing any tribes that
would be affected by the Carcieri decision. About two years
ago, I embarked on this academic career, and, since then, I
have restricted my practice primarily to just pro bono projects
and submitting amicus briefs, like in this case, where I
believe that there is a history or an academic perspective that
may be useful to the Court.
I am still related as of counsel to an Indian law boutique
firm in St. Paul, Minnesota, called Jacobson, Buffalo,
Magnuson, Anderson & Hogen, and, to be honest with you, I have
no idea whether they are representing tribes right now that may
be affected by Carcieri. Primarily, our relationship is they
continue to maintain my malpractice insurance so I can work on
these pro bono cases, and I am not really involved in their
day-to-day legal work.
Mr. Hastings. OK. I want to ask a question of all of you,
if you would. Under that decision, how many tribes today were
neither recognized nor under Federal jurisdiction in 1934, and
how many acres of lands had been placed in trust for these
tribes, pursuant to the Indian Reorganization Land, any of you?
Mr. Anderson. Since the IRA was passed, about four million
acres have been taken into trust. I do not have the calculation
of the tribes that may have been affected.
The question you asked, Mr. Hastings, about----
Mr. Hastings. Turn on your microphone. I do not think your
microphone is on.
Mr. Anderson. I am sorry. About four million acres have
been taken into trust since the IRA was passed for all tribes.
There is not a calculation as to which tribes have been
potentially affected by this decision and what that allocation
is, but, really, depending on how you interpret the phrase,
``under Federal jurisdiction,'' many tribes could be affected
or even virtually none.
So, at this time, it is hard to say if anyone is going to
be affected by this. Certainly, though, plaintiffs will raise
challenges if it says tribes are affected by this decision.
But, as I mentioned in my opening statement, if you take a very
broad view of jurisdiction, you know, equating to Congress's
powers, then basically every tribe now is under jurisdiction.
Mr. Hastings. Mr. Mitchell?
Mr. Mitchell. Mr. Chairman, I do not know the answer to
that, but it is an excellent question, and one of my thoughts
about this is, I do not believe that this Committee or Congress
can legislate until it has a clear answer to that question.
I know that the Committee has refrained from getting the
Department up here until its new political staff is in the
game, but once that happens, I think it would be appropriate
for them to send up a list of every single tribe that has been
created since 1934 to identify with specificity how that tribe
was created. Was it an act of Congress? There are many tribes
that were created by act of Congress since 1934.
Was it the Secretary of the Interior, through this
administrative process, that Representative Meeds and I both
believe is legally bogus, or was it a court, such as what has
happened with all of the California rancherias, some of which
have one person in the tribe?
Let us find out, with specificity, how these people became
a tribe, and then let us find out, if they have trust land, how
they got that trust land. That could be put on paper. That is a
task that the Department could provide for the Committee, and,
after the Committee gets that information, it is the
Committee's prerogative, not any of us, to figure out what the
implications of that are.
Mr. Hastings. Ms. Routel?
Ms. Routel. I think this is a very difficult question
because, as I mentioned, there was no list of recognized tribes
under Federal jurisdiction when the IRA was passed in 1934.
After it was passed, John Collier essentially sat in his
office for the next year and came up with a list of 258 tribes
that he believed should vote on the IRA, but that list cannot
be viewed as an exclusive list of tribes recognized and under
Federal jurisdiction because, to vote on the IRA, you had to
have had a land base. You already have land or a reservation.
That was a requirement in Section 16 of the Act that has since
been deleted by Congress.
So there may be additional tribes that should have been on
the list but were not simply because they did not have land.
Also, it is not clear whether Collier's decision should be
given conclusive weight, if he forgot about a tribe that was
recognized and under Federal jurisdiction, what that should
mean.
I did attempt to signal the issue to the Supreme Court in
terms of how large a number we were talking about by including
an appendix in the law professor's amicus brief that lists each
tribe that has been recognized in some way from 1960 to the
present, whether by the Executive Branch, by Congress, in the
Executive Branch, either by informal or formal procedures
through that 25 C.F.R., Part 83.
I would be happy to provide the Committee with that list.
I started in 1960 because it is very difficult to determine
what the Department of the Interior was doing between 1934 and
1960. It continued to recognize tribes without really
indicating whether it was st getting around to acknowledge that
they were under jurisdiction in 1934 or whether this was a
tribe that they did not believe to be under Federal
jurisdiction. The reason for that is the Department of the
Interior interpreted this provision differently than the court
did. So it is a difficult question.
I would like to say one other thing about California
rancherias, since I did notice this in Mr. Mitchell's
testimony. I do not think most of them are at play in this case
because those are tribes that existed at the time of the IRA.
They were terminated by Congress, or attempted to be terminated
by Congress, in the fifties and sixties, and a court decision
restored them to Federal recognition, deciding that their
termination had been invalid, but, for most of these tribes,
there is no claim that they were not tribes----
Mr. Hastings. As interesting as maybe the differences that
you have, Mr. Mitchell has expressed that he, at least, thinks
we should have that information.
Let me ask you two, before the Committee moves on whatever
our solution may be on this, do you think we should have
information based on the question that I asked you, how many
tribes, and how many acres? Do you think we should have that
information before we move forward?
Mr. Anderson. I would respectfully suggest that you do not
need a list. I mean, the impact is broad. Whether you calculate
exact numbers, the potential is very large. Having Interior do
the analysis on all of these tribes to determine whether they
are, in fact, impacted, I think, would take you several months,
or maybe years, to do, and, rather than have that list really
be misinterpreted, I think it would be a better course of
action just to understand that there are many cases where this
may affect a tribe.
Mr. Hastings. Dr. Routel, would you think that we should
have that information?
Ms. Routel. Well, I think it would be helpful. I agree that
it is really impossible to determine that in a short period of
time, just because, for each tribe, you are going to need to go
through all of the correspondence with their Indian agent,
figure exactly what kind of services they had in the 1930s.
Historically, this takes an immense amount of time for
tribes to assemble, and I believe it would actually be years to
create that kind of a list.
Mr. Hastings. Well, thank you very much, and thank you for
indulging me, Mr. Chairman. I notice that, on that question, we
had three different answers from three different panelists.
The Chairman. The gentleman from Michigan, Mr. Kildee.
Mr. Kildee. Thank you very much, Mr. Chairman.
Mike, or Mr. Anderson, you said that the Federal
government, whether it be Congress or the Executive Branch,
does not create Indian Nations, and that is certainly true; we
recognize them. Article 1, Section 8, says: ``The Congress will
have power to regulate commerce with foreign nations and among
the several states and with the Indian tribes.''
So we do not create. We cannot create. They have a retained
sovereignty. We do not create Indian tribes any more than when
we recognize Bosnia, they celebrate and say, ``The United
States created this.'' No, the United States recognized Bosnia,
the recognized France, and they recognized England. It is a
recognition. It is not a creation, and I think that is one of
the things that many people in Congress do not quite
understand.
I carry this Constitution with me all of the time, and in
talking about commerce, at least, it puts them at the same
level: foreign nations, the several states, and the Indian
tribes. It is sovereignty.
So I think, again, your point is very, very important in
promulgating all of our thoughts on this, that this is a
question of recognition and not creation.
Mr. Anderson, one of the things I worry about is that we
are going to be creating perhaps another category of Indian
sovereign tribes, those at 1934, those after 1934, who may have
done it through the Congress, and before I suggest a third
category, did the Supreme Court decision here nullify what we
used to call the ``bar decision,'' now the ``FAP decision''?
Did it nullify that?
Mr. Anderson. No. It did not nullify the status of the
tribes, and no court has nullified a recognition of a tribe
through the FAP process, and so that is very good authority,
and then Congress, even in 1994, said expressly that tribes
could be recognized through the FAP process.
Mr. Kildee. So what Congress did in 1934--that was a
congressional act--Congress can have subsequent legislation,
too. That becomes law, does it not?
Mr. Anderson. Absolutely.
Mr. Kildee. Thank you very much, Mr. Anderson.
The Chairman. The gentleman from Louisiana, Mr. Cassidy.
Mr. Cassidy. I am new to this body of knowledge, and so I
am new to this body. So if what I say seems already common
knowledge, I apologize.
But following up what Congressman Hastings asked, it almost
seems like some of your reservation about reviewing all of this
material is that it would take so long and would be so
involved, and yet kind of a constant theme of this testimony is
the ambiguity created by previous legislation, which has then
been seen as an avenue by the Bureau of Indian Affairs or
otherwise commented on.
Is it possible just to take the material that we could get,
in a relatively short period of time, and create a metric by
which future decisions could be guided? So in that metric, we
would have, OK, was it recognized before 1934, and did it go
out of existence, or how many tribe members are there, whatever
things that you know far more than me.
So, as opposed to attempting to get an exhaustive list and
coming up with an answer for each, rather, getting as much of a
list as we can and establishing what appears to be a fair
metric with which to approach the rest, does that make sense?
Mr. Mitchell. Mr. Chairman, I, of course, think it makes
perfect sense, and this whole exercise is not that difficult.
In 1994, Congress directed the Secretary to annually
publish a list of the Native American entities that he or she,
depending upon who the Secretary was, believed to be Federally
recognized tribes. Now, that list exists. It is quite simple to
go through that list and mark the ones that were created after
June of 1934.
Then, with respect to each of those, you do not have to do
what the professor suggested, in terms of go to the National
Archives. The solicitor says, ``Well, how did these people get
to be a tribe?'' and he tells you, under the heading of the
tribe, and then he can look and say, ``Well, it was after 1934,
did they have a land base? How did they get the land base?''
This is not rocket science.
The other thing I would say, because I think it is
important to put on the record, as long as we are actually
getting to the bottom of this, is that I know that
Representative Kildee has very strong views about inherent
tribal sovereignty. I understand that, and I mean those no
disrespect.
However, again, Lloyd Meeds said that that entire invention
was a ``political notion'' that was being transformed into a
``legal doctrine,'' and, in addition to citing Representative
Meeds, there is no more authoritative and influential Native
American historian and attorney in this country than Vine
Deloria, who was the Executive Director of NCAI, for goodness
sakes, and, in 1984, Professor Deloria wrote this book, The
Nations Within, which is his spin on the Indian Reorganization
Act, and he goes on at great length about how Felix Cohen
bamboozled Congress.
After the IRA was enacted, he came back to his office, and
he invented a solicitor's opinion that, out of the sky,
invented inherent tribal sovereignty, and even Vine Deloria
says that ``modern tribal sovereignty begins with this
solicitor's opinion, although it would be another generation
before Indian tribes would understand the difference and begin
to talk in the proper terms about their status.''
This is not Don Mitchell; this is history. This is law, and
this has drifted for 30 years, and it is great. The Carcieri
decision has motivated the Committee and the Congress to
finally pay attention to what has gone on here.
Ms. Routel. If I may respond to that question also, I think
it might be helpful to use an example here, and I am going to
pick an example from Representative Kildee's state, the Grand
Traverse Band of Ottawa and Chippewa Indians.
This is a tribe that had an ongoing treaty relationship
with the United States in the 1800s, and, to me, treaties
symbolize that you are a sovereign. If you are not a sovereign,
if the United States is not recognizing your sovereignty, it
would be entering into contracts, and it would have to enter
into contracts with every single tribal member to take tribal
land. But the United States thought the Grand Traverse Band was
a sovereign, and that is why it entered into a treaty that was
ratified, multiple treaties ratified, by the Senate.
In the late 1800s, and this interpretation continued
through the 1930s, the Executive Branch misinterpreted one
provision from this 1855 treaty and thought that the tribe had
agreed to dissolve itself. Since then, historians have gone
back over the treaty journals, and they have looked at
correspondence, and they all agree that the treaty provision
was not meant to dissolve the tribe.
Mr. Cassidy. But let me ask you, just because I think the
light is about to flip off, is there a metric with which you
could take that through and say, ``What is the validity of that
misinterpretation, et cetera?''
Ms. Routel. What I am saying to you is that they might not
have been considered to be under Federal jurisdiction because
of a mistake in 1934.
Mr. Cassidy. But couldn't you put in the metric where, if
they did, they would lose their recognition from a mistake? If
so, then, therefore, you are prejudiced to believing that they
have recognition. Do you follow what I am saying?
Ms. Routel. Sure, and I think you could, but I think the
important point is that all of these tribes have proved that
they were an historic tribe and that they were continuously
existing as a tribe since historic times to the present. That
is what it takes to get recognized through the FAP process
today.
So any decision, really, in 1934 that these groups were not
tribes was a mistake, or it was an omission, and that is why
looking back at that historical period is not really very
helpful to Congress in considering how to move forward.
Mr. Cassidy. So what I gather from you, it is going to be
critical how you draft the metric. A metric could potentially
work, but the question is, how do you draft the metric? A fair
statement?
Ms. Routel. Sure.
Mr. Anderson. If I could have 30 seconds to respond to Mr.
Cassidy.
A metric that says that the standard is whether you were
under Federal jurisdiction would probably eliminate most of the
tribes from the Carcieri decision. Even Justice Breyer said,
``This may be less restrictive than it first appears.''
The only case it applies to right now is the Narragansett
because the Court found facts that suggested that they were not
under their jurisdiction, but those facts have not been
adjudicated or laid out for other tribes.
So to try to create a list of just tribes that were even
recognized in the 1990s or 2000, I think, would be very
misleading to put them on a list, when, as Ms. Routel said,
some tribes, the Supreme Court even acknowledged, by Justice
Breyer, that tribes being acknowledged in the 1980s or 1990s
were not affected by the case.
So I just think how you design the metric will be very
important, and I think, if it is designed properly, it is
probably not going to have many tribes on the list.
The Chairman. The gentleman from America Samoa, Mr.
Faleomavaega.
Mr. Faleomavaega. Thank you, Mr. Chairman. I just wanted to
ask, first, a question. I believe there are currently 569
Federally recognized tribes in the books, and I wanted to ask
the panel, based on the Supreme Court's decision, what does
this mean? Do we have to go through every one of these tribes
to look at if it is in compliance with the most recent decision
now that the Supreme Court has made, get rid of their lands and
whatever it is that was made since the IRA Act in 1934,
Professor Mitchell?
Mr. Mitchell. Yes. Mr. Chairman, the short answer to that,
in my view, is yes, which is why this is a mess. I would say
that half of those purported tribes come out of my home State
of Alaska, where Assistant Secretary of Indian Affairs Ada Deer
waved a magic wand in 1993 and blessed them all as tribes.
So that is presently at issue up there and always has been
ever since, so let us just take them out of the play. So that
leaves you about 250. Of those, you have got----
Mr. Faleomavaega. My time is limited, and I do not want to
get into that.
In essence, what is your best recommendation of how we can
cure this problem that the Supreme Court has now presented to
the Congress to fix? I assume this is really what the Supreme
Court wants us to do, to fix the problem.
Mr. Mitchell. Well, no. You may recall when Chief Justice
Roberts was----
Mr. Faleomavaega. By the way, this is not a very persuasive
decision because it was a split decision. Justice Stevens, I
thought, gave a very good dissenting opinion. The other three
justices were half and half. In fact, they even recommended
that the case be remanded back to the lower courts for
reconsideration.
So I just wanted to check with you, but this case is not
persuasive.
Mr. Mitchell. With all due respect, I call it eight-to-one.
Mr. Faleomavaega. Eight-to-one when it is----
Mr. Mitchell. Be that as it may, I was going to say about
the Supreme Court that when Justice Roberts was being
confirmed----
Mr. Faleomavaega. Please, I do not want to get into the
history. I just want to say to the point I wanted to suggest,
even adding another question, Professor Mitchell. How did we
end up with Native Alaskans being defined as the same equal
status as American Indians when there were no Indians, and, as
far as Alaska, there was not even the State of Alaska at the
time?
Mr. Mitchell. Representative, I spent 18 years writing two
books about that, and I would be happy to send both of them to
you.
Mr. Faleomavaega. Well, I am curious because the natives of
Alaska are indigenous peoples to the state, the same way that
American Indians are indigenous to the state, and the same
problem we are faced with the Native Hawaiians that are
indigenous to their state, and yet they are being denied the
same status as Native Alaskans.
Mr. Mitchell. At the beginning of the assimilation era, in
1884, Congress laid down the marker in the Alaska Organic Act
that it was going to have a Native American policy in Alaska
that was completely different from everything we have been
talking about this morning.
I am not defending it. I am not not defending it. I am just
telling you, that is the historical reality----
Mr. Faleomavaega. Would you say that that was a mess also?
Mr. Mitchell. No. I am telling you that Congress did that,
and I would say, in terms of the Supreme Court, I was going to
say about Justice Roberts, when he was being confirmed, and he
was asked about this, he says, ``You know, my job, as the Chief
Justice of the Supreme Court, will be to just call the balls
and strikes.''
Mr. Faleomavaega. Yes, I know.
Mr. Mitchell. And they called the balls and strikes on this
one. Whether or not Congress wants to deal with it, I do not
think--the Court does not have an institutional interest.
Mr. Faleomavaega. Professor Mitchell, taking back my time,
I believe you. There is no question; there seems to be
consensus that the majority of the Court, as it now stands, are
strict constructionists of the Constitution; at least, that is
how they interpret themselves.
So one little word, three-letter word, ``now,'' has upset
the whole basis of 75 years and all that has been done. You are
saying that it was just a bunch of baloney.
Mr. Mitchell. I am saying, as a lawyer, that words have
consequences, and that is why there is a legislative counsel
today sitting in the basement of the Cannon Building, the last
time that I looked, that would not allow this situation to
happen.
I have thought that it would be fun if you took Congress's
policy choices in the IRA from 1934 and allowed technicians,
like all of us today, to redraft that, it would look completely
different.
Mr. Faleomavaega. Reclaiming my time, Professor Mitchell,
we could talk about history until we are blue in the face, but
the fact of the matter is, this is where we are at, and I am
trying to get some best-offered suggestions on how we can cure
the situation.
I would like to ask Mr. Anderson and Ms. Routel for their
quick opinions before the red light comes on.
Mr. Anderson. If we ratify all prior conveyances made by
the Secretary, and then we make it clear that the Secretary has
authority now to take land into trust for all tribes, just one
comment. Even the Alaska Supreme Court has upheld the
sovereignty of Alaska Native sovereignty. The Congress has also
recognized them through the list and, in addition, even Alaska
tribes were formed under the IRA. So there is a long history of
native sovereignty that shows the positions as espoused by Mr.
Mitchell are totally not credible.
Mr. Faleomavaega. Ms. Routel?
Ms. Routel. I would just second what Mr. Anderson has said.
I really do not think there is any need to go back and redig
through historical materials from the 1930s. I do not think
that is relevant to Congress deciding how to proceed in this
case.
Congress has authorized, through historical statutes and
through shuttling tribes to the Executive Branch, Congress has
authorized these tribes to be recognized and has continued to
recognize these tribes, and the Supreme Court's decision really
does not change anything going forward, I think, in terms of
Congress's policy, which is self-determination and economic
self-sufficiency.
Giving these tribes less rights, when they are often the
tribes that have been hardest hit; the mistakes that the United
States has made them lose all of their land, and they are only
now regaining a footing, and there is no reason to further that
injustice by now deciding that they are going to be permanently
second-class citizens.
Mr. Faleomavaega. Thank you, Mr. Chairman.
The Chairman. The gentlelady from Wyoming, Mrs. Lummis?
Mrs. Lummis. Thank you, Mr. Chairman. My apologies for
joining this hearing late, but thank you, panelists, for
joining us today.
My first question is for Ms. Routel. You state that the
U.S. Supreme Court's recent decision threatens to eliminate
important IRA benefits for many Indian tribes. Are you
suggesting, then, that the decision affects not only the
Interior Department's ability to take land into trust but other
sovereignty benefits granted to tribes Federally recognized
after 1934?
Ms. Routel. I am. The definition that the Supreme Court was
interpreting is the term ``Indian'' and actually the term
``tribe'' as well in the Indian Reorganization Act.
So, as an initial matter, any tribe that does not fit the
Supreme Court's interpretation of that definition does not
receive any of the benefits of the IRA. So individual members
would not receive preference in hiring in the BIA. The tribe
would not be permitted to continue as a constitutional
government organized under the IRA. They would not be allowed
to have those business corporations organized under Section 17.
So this is an issue that affects not only the ability of
the Department of the Interior to acquire trusts for these
tribes under Section 5 but essentially all of the IRA.
In my testimony this morning, I tried to highlight that
Congress, in the years since 1934, has sometimes tied new
benefits to the definition of ``tribe'' or ``Indian'' in the
IRA, and we really need to look through all of those statutes,
but the scope is going to be even broader than just those
specific rights that are included in the IRA.
Mrs. Lummis. OK. Mr. Chairman, is it safe to say that your
opinion is that the IRA should be interpreted to apply to
tribes once under Federal jurisdiction rather than now under
Federal jurisdiction?
Mr. Anderson. I would say the IRA should apply to all
recognized tribes. Once a tribe is on the Federally recognized
tribes list, then they should receive all of the benefits of
the IRA.
Mrs. Lummis. OK. I have a memo here that Committee staff
prepared, and they make a statement here that I want to run by
you and see if you agree, and I would like to know if each of
the three of you agrees.
The sentence is this: ``The decision implies--'' meaning
the Carcieri decision--is that how you pronounce it?----
Mr. Anderson. Carcieri.
Mrs. Lummis.--Carcieri, thank you--``the Carcieri decision
implies that Congress, and not the Department, was meant, by
the authors of the IRA, to decide whether or not to acquire
lands in trust for tribes not under Federal jurisdiction in
1934.'' Do you agree with that statement or disagree with that
statement?
Ms. Routel. Could you repeat that one more time?
Mrs. Lummis. OK. Here is the sentence: ``The Court decision
implies that Congress--''
The Chairman. Would the gentlelady yield for a
clarification?
Mrs. Lummis. Yes, sir.
The Chairman. That it is a minority staff-prepared----
Mrs. Lummis. Yes, yes. OK.
The Chairman. The majority staff would always be more
clear.
Mrs. Lummis. [Laughter.] It is a minority staff briefing
paper, OK, and here is the sentence: ``The Court decision
implies that Congress, and not the Department, was meant, by
the authors of the IRA, to decide whether or not to acquire
lands in trust for tribes not under Federal jurisdiction in
1934.''
So I am curious here about, does the decision put
obligations to act on Congress?
Mr. Mitchell. Mr. Chairman, my answer to that would be,
yes, that is a correct statement, that my reading of it, and I
have described this in my written testimony, is that Congress
and Commissioner Collier, in 1934, thought they were dealing,
in my view, with the known universe, which was that there was
not going to be any new tribes after 1934. You might have to go
through some drill to figure out what tribes were there in
1934, but we are doing something in the IRA for the tribes that
existed.
I see nothing, in my research over the years, having read
all of the central office files of the BIA from 1933 all the
way up to 1953, that indicates to me that they ever thought
that Congress was going to start off creating additional
tribes.
Now, if Congress wishes to do that, and it has in a number
of statutes, then Congress then needs, in my view, to make a
decision about what authority to delegate to the Secretary for
that particular newly created tribe with respect to land. Maybe
it wants to give it land; maybe it does not. That is Congress's
business. But, yes, that is a factual statement as to what
happened in 1934, you bet.
Mrs. Lummis. OK. Thank you. Mr. Anderson, do you agree?
Mr. Anderson. I think the IRA had very express, delegated
authorities to the Secretary of the Interior. The Secretary of
the Interior would not have authorities outside of the IRA,
unless there was another statute. So I would agree that the
language of the IRA is really the foundation of the Secretary's
authority, and if the Secretary wanted to engage in additional
acquisitions outside that authority, he would need Congress's
approval.
Mrs. Lummis. Mr. Chairman, may I ask Ms. Routel to respond
as well? Thank you.
Ms. Routel. I think I agree with the statement, in that the
way that the Supreme Court has interpreted the IRA, it means
that the Secretary of the Interior can only acquire lands for
these tribes that were recognized under Federal jurisdiction in
1934, and, therefore, you could imply that, for other tribes,
either Congress needs to take land into trust, or Congress
needs to go back and delegate that authority to the Secretary
of the Interior.
I think what I am asking this Committee to do is to put
forth a bill that would delegate the authority to the Secretary
of the Interior that, in my mind, would correct the Supreme
Court's decision.
Mrs. Lummis. OK. Thank you. Mr. Chairman, thank you very
much.
The Chairman. Thank you. The gentlelady from the Virgin
Islands, Dr. Christensen?
Mrs. Christensen. Thank you, Mr. Chairman, and thank you
for holding this hearing so quickly upon the Supreme Court's
decision, which threatens to set this country back and the
first Americans back to some earlier times, and our
determination is that that is never going to happen.
I have a few questions. Michael Anderson, the 1994
solicitor letter that you submitted concerns Section 16 of the
IRA. Why or how does that affect the other provisions of the
IRA?
Mr. Anderson. Well, it should have no effect, at this
stage, but, at the time, what the Interior Solicitor's Office
did, the Division of Indian Affairs branch of government in
Alaska, was to devise a difference, really, two classes of
tribes: one they called ``created'' when they were formed as an
adult community of Indians on the reservation and then what
they called ``historic,'' tribes that are traditionally
recognized through treaty rights or have reservations.
So Congress repaired that in 1994. The concern is that old
lists could be revived in the context of whether the tribe was
under Federal jurisdiction in 1934, and so this whole created
historic distinction, which has been roundly rejected by
Congress, could be revived in some way.
I should also note, Congresswoman, that that letter was
filed with the Supreme Court in a lodging without the corrected
memos that also interpreted and showed that Congress reversed
that decision, and I think it was a misleading filing.
Mrs. Christensen. I guess I would ask you and Attorney
Mitchell, when the Dictionary Act was passed in 1947 that
provided that when interpreting acts of Congress, unless the
context indicates otherwise, words used in the present tense,
like ``now,'' include the future as well as the present, did
not that clarify this issue?
Mr. Mitchell. Well, I can only respond, based upon how the
U.S. Supreme Court looked at that, and they indicated quite
clearly in the opinion they looked at Black's Law Dictionary,
and they looked at other dictionaries, and it was their view
that the common dictionary meaning of ``now'' was ``now,'' as
in now, 1934. That was their call on it.
That would be how I would come out. If this was a statute
that dealt with, you know, agriculture policy or something, and
you were just doing statutory construction, I would come out in
the same way.
Mr. Anderson. Yes. I think the First Circuit found that
``now'' is ambiguous and actually ruled in favor of the
Narragansett.
The Dictionary Act, I think, was probably not applied here
because there was more specific legislative history that the
Court looked at rather than simply the phrase itself.
Mrs. Christensen. OK. Both to Mr. Anderson and Ms. Routel,
by calling into question which Federally recognized tribes are
or are not eligible for the IRA's provisions, could the
decision threaten the adoption of tribal constitutions, the
creation of tribal corporations, or debt obligations, or the
validity of tribal business enterprises, and, in turn,
undermine certain kinds of contracts and loans entered into by
certain IRA-organized tribal governments?
Ms. Routel. Yes and no. I mean, I think, after the Native
American Technical Corrections Act, Congress has made it clear
that tribes can organize constitutional governments outside of
the Indian Reorganization Act, and, of course, tribes can
organize tribally chartered business corporations or state-
chartered corporations.
I think it still would be a tremendous loss for recently
recognized tribes to not receive the benefits of the IRA
because, as a non-Indian business, if you want to do business
with a tribe, one thing that you are looking for is certainty,
and that is, in a way, what the IRA provides.
If you have a Federally chartered corporation, you know it
is not something that can just, poof, not be there the next
day. If you have a Federally approved constitution, there is a
process that you have to go through that is quite lengthy to
amend the constitution.
So businesses, when they look at tribal governments that
are formed under the IRA, or corporations formed under the IRA,
they feel, ``I have a lot of certainty about the deal that I am
doing and that this corporation and this constitution will stay
the same throughout the time period of the deal,'' and I think
that is a very important provision for tribes that are looking
to get capital in today's market.
Mr. Anderson. Just with respect to loans, if a lender is
making a loan, and the collateral is trust land or businesses
on trust land, not on the trust land itself, I think, and this
decision has now been widely circulated, I think that lender is
going to have some real concerns and may either decline the
loan or raise the interest rate to carry that risk and have to
get insurance to cover that risk. So it is going to have a
profound impact, I think, on pending transactions.
Mrs. Christensen. Thank you. Thank you, Mr. Chairman.
The Chairman. The gentleman from Arizona, Mr. Grijalva?
Mr. Grijalva. Thank you, Mr. Chairman.
Professor Routel, I think you mentioned in your testimony
that Congress should fix the definition of ``Indian'' to
correct the Court's decision. What would you recommend that
definition be changed to?
Ms. Routel. Today, the term ``recognized tribe'' is a term
of art, and it does mean tribes that have a government-to-
government relationship with the Federal government, and that
is different from its usage in the IRA in 1934, when it was
referring to known tribes in the cognitive sense.
So, really, today, all that you would need to say is that
recognized tribes have all of the same benefits, under the IRA
and under all other congressional statutes; that is, there is
no two-tiered system.
And then, I think, as Mr. Anderson pointed out earlier, you
would also need to clarify and make sure we have ratified all
of the past Executive Branch actions that occurred before
Congress made that fix.
Mr. Grijalva. Let me just, if I may, Professor, a fellow
panelist, Mr. Mitchell, in his testimony, said he believes the
purpose of the IRA was to further the assimilation of Indians.
You testified that the IRA was designed to promote tribal self-
government. Tell me about that consistency.
Ms. Routel. I think you can come to two different
conclusions if you do not read the legislative history as a
whole; that is, if you just go into the testimony, and you
cherry pick what particular senators or particular
representatives were saying because the IRA was a sea change.
It was the beginning of an Indian ``New Deal,'' and it was a
change in Federal policy toward self-determination in tribal
management.
Now, not everybody was on board with that sea change when
it happened, and so, for example, I have talked about Chairman
Wheeler's discussion with John Collier in the Senate Committee
on Indian Affairs hearings, but John Collier was the primary
proponent of the bill, and he was the primary drafter of the
bill, and he spent a lot of time with Indian tribes in the
Southwest and was convinced that assimilation had been a
terrible policy for them and that what the government should be
doing is allowing tribes to manage their own business and to
preserve and protect tribal culture and tribal traditional
governments. That, I think, is the well-recognized, scholarly
view of the IRA.
Mr. Grijalva. And that is the policy position that
prevailed.
Ms. Routel. Yes. That is the policy that still prevails
today.
Mr. Grijalva. Thank you. Mr. Anderson, it is estimated
that, in Indian Country, Native Indian tribes have a
significant amount of renewable energy--oil, gas, coal, et
cetera--on their lands, including wind, solar, et cetera. How
will the Court's decision affect the ability of tribal
governments to develop these resources that they have?
Mr. Anderson. They could have a very negative impact on
these tribes.
Just a couple of weeks ago, the Bureau of Indian Affairs
announced a very large grant program for just the very types of
programs you mentioned--alternative fuels, windmills--but you
have to be on trust land. So if you are a landless tribe, and
you cannot acquire this trust land, you are not eligible for a
great program under the new Recovery Act.
Also, as I mentioned, loans, trying to get loans on current
land could be a risk.
Mr. Grijalva. In your testimony, you talked about that
virtually all tribes are under Federal jurisdiction under the
proper interpretation of what that term means. Since Congress
already prohibits the Department from treating tribes
differently, should the proper interpretation be that once a
tribe is recognized, it will be eligible for benefits and
services, regardless of when or how it was recognized?
Mr. Anderson. That is a great formulation, yes, sir.
Mr. Grijalva. Thank you. Mr. Mitchell, going back to a
point that the professor made, is it possible that this
decision could cause two tiers of Federal recognition; in other
words, two classes of tribal government: those that were
recognized and under Federal jurisdiction since 1934, when the
IRA was enacted, and those that were not, as a result of this
decision?
Mr. Mitchell. The short answer is, yes, that Congress said
that it was delegating, in Section 5 of the IRA, a very narrow
authority, and that authority goes to a certain class of
tribes. There have been tribes that have been created, either
lawfully or unlawfully, depending on who you want to talk to,
subsequent to that date, and they are in another
classification, and the Congress needs----
Mr. Grijalva. If I may, Mr. Mitchell, before my time runs
out, it is your opinion that Congress should be the only body
that can recognize Indian tribes and place land into trust for
tribes.
Mr. Mitchell. No. It is my opinion that, under the Indian
commerce clause of the U.S. Constitution, that the
Constitutional Convention of 1787, not Don Mitchell, has
decided that that is how it should work. Congress certainly has
the authority, constitutionally, if it chooses to do so, to
delegate that, and we have not talked about the fact that
Section 5 contains no standards whatsoever, and that was not at
issue in the Carcieri decision, but that is the next thing that
is heading like a freight train right at the Congress.
Mr. Grijalva. Thank you, Mr. Chairman.
The Chairman. The gentleman from New Mexico, Mr. Heinrich?
Mr. Heinrich. Thank you, Mr. Chairman.
Mr. Anderson, while Congress considers the best way to
reverse this decision and make it clear that the 1934 Indian
Recognition Reorganization Act applies to all Federally
recognized tribes, and I guess I am communicating my bias on
this issue, but is there a threat to lands currently held in
trust for tribes whose status is in doubt as a result of that
decision?
Mr. Anderson. Yes. I think there is a threat of lawsuits
and challenges from some who may be opportunistic about this
decision.
Mr. Heinrich. In your opinion, what steps do you think that
the Department can take to defend existing Indian lands from
challenge under this decision?
Mr. Anderson. I think they should aggressively protect
settled conveyances and use the Quiet Title Act to do that, to
invoke the sovereign immunity of the United States to protect
against those lawsuits.
Mr. Heinrich. Ms. Routel, many tribes were recognized by
the BIA and seemed to be under the phrase, ``under Federal
jurisdiction,'' in 1934, but, later, as you alluded to, the
Federal relationship with many of those tribes, for instance,
in California, was terminated and then later restored.
Does the Supreme Court's decision support a finding that
once a tribe is terminated, the Department may still place land
into trust for that kind of tribe?
Ms. Routel. It does. I mean, that is one of the ironic
parts of the holding, and I think it was something that was
argued by both the United States and by a National Congress of
American Indians in their briefing, which was that if you
freeze recognition of tribes and of individual Indians in 1934,
well, that means they are permanently recognized for purposes
of taking land into trust, and, supposedly, the Secretary of
the Interior could continue to acquire land for these tribes
that have been terminated, and that is particularly true, in
light of the fact that the Court does view repeal by
implications very narrowly.
So you would have to look at the Termination Act and say,
``Well, hey, did it explicitly take away this authority from
the Secretary of the Interior, or does that still survive?''
So I think it is one of the ironic parts about the
decision.
Mr. Heinrich. As you know, a number of tribes, many tribes,
chose not to organize under the IRA. Did the BIA stop Federal
relationships with those tribes, and are those tribes eligible
to have land placed into trust for them under Section 5 of the
IRA? Ms. Routel?
Ms. Routel. I do not know of examples where the BIA chose
to stop a government-to-government relationship with tribes
that voted against the Act, and I certainly believe that the
Department still thinks that it can acquire land in trust for
them. You know, the New York Indians, for example, most of them
voted against application of the IRA, and the Navajo Nation, of
course.
So I do not believe this decision affects them, but we have
yet to see how those arguments will play out.
Mr. Heinrich. Mr. Chair, I will get ready here to yield
back the balance of my time, but I do think it bears mentioning
that the gentleman from Arizona, who just left, I think he
really hit this issue on the head, that creating multiple
classes of tribes is bad policy and, frankly, I do not think, a
very moral approach to an issue that has been with us, as Mr.
Kildee said, since we wrote the Constitution.
The Chairman. Thank you. The gentleman from Washington, Mr.
Inslee?
Mr. Inslee. Thank you. Maybe just a technical question. If
this decision stands and is not remedied by Congress, who
actually will become the owner of the property that the tribes
have acquired?
Mr. Anderson. Well, I think it is very unlikely that the
tribes will actually lose the Quiet Title Act defenses, but if
they did lose the trust status, it would probably resort back
to the tribe in fee, so they would still own it but without any
preemption from the Federal preemption statutes.
Mr. Inslee. So they would hold it just as any other fee-
title holder, then----
Mr. Anderson. Exactly.
Mr. Inslee.--without any trust application.
Mr. Anderson. The only consequence is maybe some abilities
of the tribes are based solely on their trust land authorities.
So, for example, some of these energy grant opportunities could
be nullified by such a return back to fee-simple status.
Mr. Inslee. I am sorry that I missed your earlier
testimony. You have probably talked about this, but, as far as
remedying this problem, just a simple do-over by Congress,
saying, ``These previous transaction are hereby deemed valid,''
and the blue ribbon seal of approval; that is doable. Is there
any reason that that is constitutionally not doable?
Mr. Anderson. It is constitutionally doable, but also
making clear that, for all tribes in the future, that they
would also have those same authorities.
Mr. Inslee. And who is voicing an argument that we should
not do that?
Mr. Anderson. Today, no one has, as I understand it,
weighed into Congress with an opposing view. There have been
court cases, though, with people citing the current Carcieri
case, to argue that certain transactions were not authorized,
but I have not heard of any opposition to a bill to date.
Mr. Inslee. So, Mr. Chair, I recommend unanimous consent to
pass a bill that has not been written yet and solve this
problem. I will look forward to that. Thank you.
The Chairman. The gentleman's suggestions will be taken
into consideration.
The Chair is going to recognize Mr. Kildee for a second
round of questions.
Mr. Kildee. Thank you very much, Mr. Chairman.
Mr. Mitchell, you mentioned Lloyd Meeds, a mutual friend. I
served with him here and had a glass of wine with him, as a
matter of fact, at his home over here.
But I also read John Marshall. Now, I did not have a chance
to have a glass of wine with him. I have been here a long time
but not quite that long. John Marshall, in that very famous
decision of Worcester v. Georgia, said, ``The Indian Nations
had always been considered as distinct, independent, political
communities retaining their original natural rights as the
undisputed possessors of the soil.''
Then he goes on to say, ``We have applied the words
'treaty' and 'nation' to Indians as we have applied them to the
other nations of the Earth. They are applied to all in the same
sense.''
That is very strong language from a very famous decision of
John Marshall. Now, Andrew Jackson did not obey that decision,
but that was the decision of the Chief Justice of the U.S.
Supreme Court, who gave us the principle of judicial review.
So while I respect Mr. Meeds' 90-page article, I am guided
both by the Constitution and John Marshall's statement that it
is a retained sovereignty, and the word ``nation'' is applied
to Indian tribes, just as any other nation.
Mr. Mitchell. As I indicated in my earlier remarks, I
understand that you have very strong views about this, and I
certainly mean those views no disrespect, but I would say that
the Marshall opinions--someday, if I ever have nothing else to
do, I would love to write a law review article about it.
John Marshall was not the Chairman of the Indian
Subcommittee; he was a Federalist, and all of the Marshall
decisions were Marshall enforcing Congress's will against the
states. He was dealing with Federal treaties that state
governments were not recognizing, and he shoved those treaties
onto the states. He was enforcing the policy decisions that
this Congress made, not just making stuff up.
To the extent he made stuff up, he was entitled to his
opinion. I have not looked at those decisions in a long time,
but my recollection is that those were multiple decisions in
those cases by the U.S. Supreme Court, of which John Marshall
opined with what he thought that day.
Mr. Kildee. But he was not just someone sitting at the bar
down maybe where the Willard sits right now. He was making
those statements not as he was sipping his wine at some local
pub. He was making those statements as Chief Justice of the
U.S. Supreme Court.
You might want to demean him a bit by saying, ``Well, he
was a Federalist.'' Well, George Washington was a Federalist,
too, not a bad guy. John Adams was a Federalist also.
Mr. Mitchell. I am a Federalist.
Mr. Kildee. God bless you.
Mr. Mitchell. I was not using the term ``Federalist''
pejoratively by telling you that his decisions really did not
have so much to do with Indians as they had to do with
establishing some basic relationships between this Congress and
the states at a very new time in our nation's history, and, as
I said, John Marshall certainly had his views, but that does
not mean that his views were the law.
Mr. Kildee. I think, though, to determine the political
affiliation of the Supreme Court is probably as useful as us
trying to determine the political affiliation of Roberts. I
mean, what the Supreme Court says does become the supreme law
of the land, unless it is reversed by another Supreme Court.
So this language is certainly much stronger and of greater
validity and force to us, as members of this Congress who take
an oath to uphold the Constitution, than the great writings by
a very good friend, Lloyd Meeds.
Mr. Mitchell. And all I am saying is that the Constitution
means what the U.S. Supreme Court says it means when there are
five votes on the Court, and I am just saying that there were
not five votes for many of John Marshall's pronouncements, and
that is just a historical legal fact.
Mr. Kildee. Well, I will tell you, five votes have made a
great difference in this country in many, many instances, and
when I agree with them, I am very happy; when I disagree, I am
very unhappy, but the fact of the matter is, it is the law of
the land, whether Dale Kildee is happy or not. Thank you, Mr.
Chairman.
The Chairman. Mr. Faleomavaega, do you have anything?
Mr. Faleomavaega. Thank you, Mr. Chairman. Yes, I do.
The Chairman. OK.
Mr. Faleomavaega. I just have a couple of comments. I have
so many questions, I do not know where to begin, but I just
wanted to say that there was an earlier discussion about the
tribes of California.
To my understanding, there are at least 100 tribes in
California that are still yet to be recognized, and I want to
say for the record, Mr. Chairman, these tribes were not
terminated; they were decimated, a very dark page of our
country's history on how we dealt with the tribes of California
that, to this day, still has not been properly addressed.
What I do want to say, Professor Mitchell, like my
colleague, Mr. Kildee, I, too, have a very, very affectionate
memory of the late congressman, Lloyd Meeds, but I gather that
you seem to say that because Senator Abourezk was the Chairman
of that commission, as you know, you seem to suggest that
everything was bent toward giving the Indians more rights and
their sovereignty and all of that and I gather that what Lloyd
Meeds was simply trying to say, to make sure that there is an
active participation on the part of the Congress, as expressly
stated in the Constitution, but not to say that he was anti-
Indian, to that extent, because you seem to suggest that, and
he certainly was not that. He did all that he could to be of
help to the needs of our Native American communities.
Mr. Mitchell. And I think that is my point, Mr. Chairman.
The track record of Representative Meeds as an advocate for
Native Americans in this Committee is unparalleled. I was not
around at the time, but I have written several books about the
Native Claims Settlement Act, and I will tell you that it would
not have happened the way it did, as fairly as it did, if a
very junior Member of this Committee named Lloyd Meeds had not
gone straight at Chairman Aspinall. He was a very tenacious
advocate for Native Americans. However, there is a----
Mr. Faleomavaega. Mr. Mitchell, my time is up. I hate to
cut you off like this, but are you suggesting that what we did
to the Native Alaskans was not right, as a matter of policy and
the law that we passed to give the Native Alaskans all of the
benefits that they currently have under the way the Congress
has structured that law?
Mr. Mitchell. No. I am saying the opposite. I am saying
that it would not have been as generous to the Native American
community in Alaska as it was but for Representative Meeds'
advocacy for them.
I have spent a quarter of a century making that statute
work, and it would not have worked as well as it did, which has
been an up or down track record, if it had not been for
Representative Meeds.
Mr. Faleomavaega. I would like to ask one more follow-up
question to the members of the panel.
Any other additional recommendations that you would like to
offer to whatever bill that the Chairman and our senior Ranking
Member may have intended in correcting this problem? There is
nothing in the Supreme Court decision that says that Congress
cannot take action. Right? It does not say that this is it and
that we cannot do anything further. Am I correct on that?
Mr. Anderson. That is correct. It is a statutory
interpretation that has been applied for 70 years. The First
Circuit thought it was a fair one, and so, yes, Congress could
certainly act, as they have done, as I mentioned in my
testimony, three times over the last 10 years.
Mr. Faleomavaega. And Professor Routel, I noticed with
interest, in your statement, that Senator Wheeler really went
out of his way to say, We do not want too many Indians. Whether
you are one-eighth or a quarter blood, make them one-half so
that to prevent the Federal government from giving further
assistance, economic assistance, to the Indians.
Wasn't this the basis of how the 50-percent blood quantum
that is now, to me, in my opinion, is very racist? But it was a
way to prevent more assistance to the Indians, and that is how
it ended up with a 50-percent quantum. Am I correct on that?
Ms. Routel. Absolutely, and that is why I think the real
question for Congress is, you know, what should be a law going
forward, not looking back to 1934? And if you look at how the
half-blood provision that you are referring to, how that was
implemented back in the 1930s, when you had commissions out
there that were going around measuring people's skulls, I mean,
they did not know who was one-half or who was not.
They were making these decisions based on really racist
assumptions. If you were part African-American, you could not
be Indian. If you had a certain skull size, you were one-half.
Then, of course, could you speak English, and were you
assimilated?
Mr. Faleomavaega. Well, we did the same thing to the Native
Hawaiians: a 50-percent blood quantum to be a Native Hawaiian.
They tried to do it on my people, too. To be considered a
Samoan, you had to be 50 percent. What does that mean, a blue-
eyed Indian, a Cherokee? Practically everybody in America is
part-Cherokee, from what I hear.
Mr. Chairman, I know my time is up, but I gladly yield to
my colleague from Michigan.
Mr. Kildee. I want to clarify one thing to Mr. Mitchell. I
hold Mr. Meeds in the same high regard as you do. He certainly
was a great friend and passionate friend of the Indians. He was
a very, very dear friend of mine. I want to make sure people
understand that.
Mr. Mitchell. And I recognize that. That is one thing.
Reasonable people can disagree about these other issues, but we
both agree, 100 percent, on that.
Mr. Kildee. Thank you.
Mr. Faleomavaega. Thank you, Mr. Chairman.
The Chairman. The gentleman from New Mexico, do you have
any further questions?
Mr. Heinrich. No questions.
The Chairman. The gentleman from Washington?
Mr. Hastings. No, thank you.
The Chairman. If not, I will use my second round of
questions to make a closing comment.
First, I do thank each of the witnesses for being here
today. It has been a very interesting and informative morning,
and we appreciate your time and your patience.
It is clear to me that the important issue here is not
whether the Supreme Court's decision was correct or not.
Instead, the issue is the need to clarify Federal policy
regarding land-into-trust.
The Court has interpreted the IRA to require Indian tribes
to have been under Federal jurisdiction in 1934 in order for
the Secretary to place land into trust on the tribes' behalf.
Although the decision appears to overturn Congress's clear
statement, in 1994, that the Bureau of Indian Affairs is not to
treat tribes differently, the decision has been made, and now
we all must decide what, if anything, needs to be done.
If the decision stands unchallenged, the consequences could
be severe. The Department of the Interior will surely be
bombarded with litigation challenging the status of Indian
lands. The Federal court system will be flooded with
litigation. Federal prisoners will claim they were unfairly
convicted as being on Indian land, and they would demand their
release.
The mere existence of Indian housing, hospitals, schools,
nursing homes, and businesses will be challenged, and Congress
will have to enact legislation every time a tribe wants land
placed into trust.
Indian tribes will have to spend valuable time and
resources proving they were under Federal jurisdiction in 1934,
despite the Federal government's atrocious treatment of them,
and Indian communities, already experiencing conditions much
worse than the rest of the U.S. population, will deteriorate.
In order to prevent these consequences, we must decide
whether to continue the policy of encouraging strong tribal
economies and tribal self-governance. We must also decide the
best way to fulfill the United States' legal and moral
responsibility to Indian tribes and Indian trust land, and the
Committee will continue to work to address this matter and,
again, I thank the witnesses, and I thank the Members of the
Committee, those that have been here today for this entire
hearing, and those who have come and gone, I appreciate very
much, on both sides of the aisle, their participation. Thank
you. The Committee stands adjourned.
[Whereupon, at 11:37 a.m., the Committee was adjourned.]