[Senate Hearing 111-136]
[From the U.S. Government Publishing Office]
S. Hrg. 111-136
EXAMINING EXECUTIVE BRANCH AUTHORITY TO ACQUIRE TRUST LANDS FOR INDIAN
TRIBES
=======================================================================
HEARING
before the
COMMITTEE ON INDIAN AFFAIRS
UNITED STATES SENATE
ONE HUNDRED ELEVENTH CONGRESS
FIRST SESSION
__________
MAY 21, 2009
__________
Printed for the use of the Committee on Indian Affairs
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COMMITTEE ON INDIAN AFFAIRS
BYRON L. DORGAN, North Dakota, Chairman
JOHN BARRASSO, Wyoming, Vice Chairman
DANIEL K. INOUYE, Hawaii JOHN McCAIN, Arizona
KENT CONRAD, North Dakota LISA MURKOWSKI, Alaska
DANIEL K. AKAKA, Hawaii TOM COBURN, M.D., Oklahoma
TIM JOHNSON, South Dakota MIKE CRAPO, Idaho
MARIA CANTWELL, Washington MIKE JOHANNS, Nebraska
JON TESTER, Montana
TOM UDALL, New Mexico
_____, _____
Allison C. Binney, Majority Staff Director and Chief Counsel
David A. Mullon Jr., Minority Staff Director and Chief Counsel
C O N T E N T S
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Page
Hearing held on May 21, 2009..................................... 1
Statement of Senator Barrasso.................................... 3
Prepared statement........................................... 3
Statement of Senator Dorgan...................................... 1
Prepared statement........................................... 2
Statement of Senator Tester...................................... 12
Witnesses
Allen, Hon. Ron, Secretary, National Congress of American Indians 13
Prepared statement........................................... 15
Lazarus, Edward P., Partner, Akin Gump Strauss Hauer and Feld,
LLP............................................................ 4
Prepared statement........................................... 6
Long, Hon. Lawrence E., Attorney General, South Dakota; Chairman,
Conference of Western Attorneys General........................ 20
Prepared statement........................................... 21
Appendix
Allyn, Fred, Robert Congdon, Nicholas Mullane, Chief Elected
Officials for the Towns of Ledyard, North Stonington, and
Preston, Connecticut, joint prepared statement................. 85
Blumenthal, Hon. Richard, Attorney General, State of Connecticut,
prepared statement............................................. 45
Bordeaux, Rodney M., President, Rosebud Sioux Tribe, prepared
statement...................................................... 74
Bozsum, Bruce S. ``Two Dogs'', Chairman, Mohegan Tribe of Indians
of Connecticut, prepared statement............................. 47
Carcieri, Donald L., Governor, State of Rhode Island and
Providence Plantations, prepared statement..................... 64
Cranford II, Dueward W., Vice Chairman, Citizens Equal Rights
Alliance, prepared statement................................... 67
Larisa, Jr., Esq., Joseph S., Lawyer, Larisa Law and Consulting,
LLC, prepared statement........................................ 72
Lower Elwha Klallam Tribe, prepared statement.................... 100
Lynch, Ed, Chairman, Citizens Against Reservation Shopping,
prepared statement............................................. 76
Marcellias, Richard, Chairman, Turtle Mountain Band of Chippewa
Indians, prepared statement.................................... 95
Martin, Hon. William, President, Central Council of Tlingit and
Haida Indian Tribes of Alaska, prepared statement.............. 80
McGowan, Mike, Chairman, CSAC Housing, Land Use, and
Transportation Committee and Indian Gaming Working Group,
prepared statement............................................. 54
Mitchell, Donald Craig, Attorney, Anchorage, Alaska, prepared
statement...................................................... 58
Mitchell, Mark, Governor, Pueblo of Tesuque, prepared statement.. 97
Response to Committee written questions submitted to:
Hon. Ron Allen............................................... 176
Edward P. Lazarus............................................ 164
Hon. Lawrence E. Long........................................ 169
Rivera, David J., City Manager, City of Coconut Creek, Florida,
prepared statement............................................. 105
Robb and Ross Law Firm, an Association of Professional
Corporations, prepared statement with attachments.............. 33
Schmit, Cheryl, Director, Stand Up For California, prepared
statement...................................................... 51
Schmitt, John, Mayor, City of Shakopee, Minnesota, prepared
statement...................................................... 70
Smith, Ivan, Chairman, Tonto Apache Tribe, prepared statement
with attachments............................................... 92
Supplementary information submitted by:
Carey, Jeff, Managing Director, Merrill Lynch and Co......... 157
Dawson, Marlene, citizen, Ferndale,.......................... 156
Gomez, Richard, Vice Chairman, Santa Ynez Band of Chumash
Indians.................................................... 125
Hernandez, Alfia M., citizen, Ramona, California............. 138
Iyall, Bill, Tribal Chairman, Cowlitz Indian Tribe........... 141
Kelsay, Marshall K., Chairman, Barona Noise and Pollution
Action Committee........................................... 139
Lattin, Kilma S., Tribal Secretary, Pala Band of Mission
Indians.................................................... 146
Meshigaud, Kenneth, Hannahville Indian Community............. 122
Mabee, Janice W., Chairman, Sauk-Suiattle Indian Tribe....... 126
Miklik, Shirley, citizen, Ramona, California................. 144
National Congress of American Indians........................ 128
Neuburger, Megan, Director, Native American Finance, Fitch
Ratings.................................................... 157
Rincon Band of Luiseno Indians............................... 123
Rivera, George, Governor, Pueblo of Pojoaque................. 147
Sanchez, Chandler, Governor, Pueblo of Acoma................. 133
Sauk-Suiattle Indian Tribe................................... 132
State Attorneys General...................................... 135
Super, Arch, Chairman, Karuk Tribe........................... 143
Varnell, Kathy, member, Karuk Tribe.......................... 161
Williams, Dave, citizen, Bellingham, WA...................... 155
Thomas, Sachem Mathew, Chief, Narragansett Indian Tribe, prepared
statement...................................................... 109
Waukau, Lisa S., Tribal Chairman, Menominee Indian Tribe of
Wisconsin, prepared statement.................................. 99
EXAMINING EXECUTIVE BRANCH AUTHORITY TO ACQUIRE TRUST LANDS FOR INDIAN
TRIBES
----------
THURSDAY, MAY 21, 2009
U.S. Senate,
Committee on Indian Affairs,
Washington, DC.
The Committee met, pursuant to notice, at 2:20 p.m. in room
628, Dirksen Senate Office Building, Hon. Byron L. Dorgan,
Chairman of the Committee, presiding.
OPENING STATEMENT OF HON. BYRON L. DORGAN,
U.S. SENATOR FROM NORTH DAKOTA
The Chairman. We will call the hearing to order.
This is a hearing of the Indian Affairs Committee in the
United States Senate. We welcome three witnesses today who have
joined us.
The Committee will examine the Executive Branch's authority
to acquire trust lands for Indian tribes in light of the
Supreme Court's recent decision in what is called the Carcieri
v. Salazar case.
Unfortunately, we will have a brief interruption this
afternoon. There is a Senate vote scheduled at 2:40, so we will
probably have to take a very brief recess to go vote. I will
cut my opening remarks short so that we can hear the testimony
of all three witnesses, and I will submit my full written
statement for the record.
I just want to say that I am concerned about the court's
decision in Carcieri and the impact it may have on those tribes
that were recognized after 1934. I believe that Congress will
likely need to act to clarify this issue for tribes and to
ensure that the land in trust process is available to all
tribes regardless of when they were recognized.
This is a complicated, interesting and difficult issue. It
is going to require the attention of many Indian tribes across
the Country who will have, or could have significant
consequences as a result of the decision. It is going to
require the attention of this Committee, and this is the first
hearing to address it. And then we will begin thinking through
with experts and others who can give us some direction on what
we might want to do as a response to it.
[The prepared statement of Senator Dorgan follows:]
Prepared Statement of Hon. Byron L. Dorgan, U.S. Senator from North
Dakota
The Committee will come to order. Today the Committee will examine
the Executive Branch's authority to acquire trust lands for Indian
Tribes in light of the Supreme Court's recent decision in the Carcieri
v. Salazar case.
In that case, the Supreme Court held that the Secretary of the
Interior could NOT acquire lands in trust status for an Indian tribe
acknowledged after 1934. That was the year Congress passed the Indian
Reorganization Act.
The purpose of the Indian Reorganization Act was to restore tribal
land bases that were lost because of failed Indian policies of the 19th
Century.
We have a chart that shows the amount of land lost by tribes prior
to the Indian Reorganization Act, and later restored.
[The information referred to follows:]
As you can see in the chart, Tribes ceded close to 200
million acres of land during the treaty-making and removal
periods prior to 1881. Tribes lost an additional 90 million
acres through the Allotment period between 1881 and 1934.
The Indian Reorganization Act has helped to restore
approximately 5 million acres of these lands since 1934.
However, there are still many tribes that seek to recover
lands to improve their communities. I understand that the
purpose of the 31-acre parcel in the Carcieri case was to build
50 homes for the tribe's 2,400 members. The additional land was
needed since two-thirds of the tribe's current reservation
cannot be developed.
Now the Supreme Court's decision jeopardizes the ability of
tribes to acquire lands for such basic needs as housing.
Additionally, the case could impact hundreds of tribes by:
Further slowing the land-into-trust process;
Serving as a basis for costly litigation over the
status of Indian lands;
Further complicating criminal jurisdiction in Indian
Country;
Slowing economic development in tribal communities;
and
Creating unequal treatment among federally
recognized tribes.
Congress passed the Indian Reorganization Act to correct
some of the failed policies that decimated Indian tribes up to
that point. At that time there was no official list of tribes
considered under federal jurisdiction.
The Executive Branch has since established processes by
which tribes who believe they should be recognized as tribes
can submit their case to the government. We on the Committee
know the recognition process needs improvement. But, I do
believe this process is important. In the Carcieri case, we
have a tribe that went through the recognition process and
received federal recognition in 1983.
The tribe then sought to have 31-acres of land placed into
trust status. But now the Supreme Court has decided that the
Secretary doesn't have the authority to take land in trust for
this tribe, because they weren't under federal jurisdiction in
1934. This does not make sense to me.
With that, I welcome the witnesses. I appreciate your
willingness to travel here today to testify. Your full written
testimony will be included in the record.
I understand that this case has generated a lot of
interest. The hearing record will remain open for two weeks to
allow interested parties to submit written comments.
Let me call on Senator Barrasso, the Vice Chairman of the
Committee.
STATEMENT OF HON. JOHN BARRASSO,
U.S. SENATOR FROM WYOMING
Senator Barrasso. Well, thank you, Mr. Chairman, for
holding this oversight Committee hearing. I also, like you,
will submit my statement to the record so we can go right to
the witnesses.
[The prepared statement of Senator Barrasso follows:]
Prepared Statement of Hon. John Barrasso, U.S. Senator from Wyoming
Good afternoon, Mr. Chairman, and thank you for holding
this oversight hearing. I would like to welcome all of our
witnesses, all of whom have traveled great distances to attend
this hearing.
The issues to be examined this afternoon are not new, but
have recently taken on additional significance in light of the
recent Carcieri case. In recent years there has been growing
public interest in the fee-to-trust process at the Department
of the Interior. In particular, there is often strong interest
in the process where it has been associated with a tribal
gaming proposal.
I am aware that there are many different opinions on the
fee-to-trust process and whether it should remain the same or
be reformed. In that regard I appreciate that this afternoon we
will be hearing a fair range of views on this issue.
Thank you again, Mr. Chairman, for the opportunity to
examine these issues in more detail and I look forward to
hearing from our witnesses.
The Chairman. Senator Barrasso, thank you very much.
Today, we have invited only three witnesses, so that we can
have a good discussion from three people that have a very
substantial amount of knowledge about this subject.
Mr. Edward Lazarus is a Partner at Akin Gump Strauss Hauer
and Feld out in Los Angeles, California. The Honorable Ron
Allen is Secretary of the National Congress of American Indians
in Washington, D.C. And the Honorable Lawrence Long is Chairman
of the Conference of Western Attorneys General in Sacramento,
California.
We appreciate all three of you joining us today. And as I
indicated, the Supreme Court decision was a surprise to us, but
of consequence I think to a lot of tribes around the Country
and we wanted to have an opening hearing and then begin some
discussions and thoughts about what our response might be.
We will begin, Mr. Lazarus, with you. We appreciate your
being here today from Los Angeles, and we will include your
entire statement as a part of the permanent record and ask that
you summarize.
STATEMENT OF EDWARD P. LAZARUS, PARTNER, AKIN GUMP STRAUSS
HAUER AND FELD, LLP
Mr. Lazarus. Mr. Chairman, Mr. Vice Chairman, Members of
the Committee, I very much appreciate the opportunity to
testify. As someone who started studying Indian law in junior
high school and who has spent his professional life, first as a
law clerk at the U.S. Supreme Court and then as an analyst of
that court, it is an honor to have been asked to share my views
on Carcieri.
As you know, the Supreme Court issued its decision in
Carcieri, which held that the Secretary of Interior's authority
to take land into trust for an Indian Tribe under the Indian
Reorganization Act is limited to tribes and their members who
were under Federal jurisdiction when the IRA was enacted in
1934.
The potential harm occasioned by this decision cannot be
overstated. The Supreme Court has upset the primary mechanism
by which the Federal Government has for decades promoted the
sovereignty, self-determination, economic stability and
political development of Indian tribes, many of whom were not
formally recognized by the Federal Government until after the
IRA was enacted.
The ability to have land taken into trust is critical to
the preservation and advancement of tribal sovereignty, nation
building, and economic and cultural development. That is
because land held in trust by the United States for tribes is
generally exempt from State and local taxation, State and local
regulation, and State criminal and civil jurisdiction absent
tribal consent.
This protected status lays the groundwork for tribes to
exercise genuine sovereignty and control over their land, and
like all responsible governments, to make decisions about land
and resource use that are needed to protect and promote the
community's well being.
The immediate effect of Carcieri is to create terrible
uncertainty. It casts a pall over lands held in trust for
tribes not recognized by the government until after 1934. It
casts a pall over the businesses that operate on such lands. It
casts a pall over the substantial investments that the Federal
Government has made into tribes not recognized in 1934, as well
as employment, housing and education programs involving such
tribes.
Accordingly, there is an urgent need for the Federal
Government to respond to Carcieri and address the challenges it
has created.
In my written testimony, I suggested a number of potential
options for the government, but this afternoon I would focus
just on two.
First, Congress should amend the IRA to change the language
that led to the Carcieri decision, and thereby reaffirm
Congress's intent to provide authority and flexibility for
rebuilding a tribal land base that had been reduced by roughly
100 million acres during the period when the United States
pursued an aggressive policy of breaking up and allotting
lands.
Congress has the unquestioned power to reject the court's
belated assessment of its intent and to restore the status quo
ante. If Congress were to amend the law by deleting the phrase,
``now under Federal jurisdiction,'' or otherwise clarify that
consistent with the IRA's purpose, the term ``now'' refers to
the time that the IRA is actually applied, the problem would be
eliminated and all federally recognized tribes would be able to
exercise their sovereign rights in a full manner.
In addition, Congress should pass legislation that ratifies
the numerous pre-Carcieri decisions that took significant
tracts of land into trust for tribes recognized after 1934.
Leaving all those decisions in legal limbo, undoubtedly
spawning substantial litigation, would entail enormous resource
and reliability costs for the tribes and for the United States.
Second, in the absence of remedial legislation, the
Department of Interior has an affirmative obligation after
Carcieri if presented with a fee to trust application to
determine whether a tribe that was federally recognized after
1934 was nonetheless, ``under Federal jurisdiction'' in 1934,
thereby qualifying that tribe for trust eligibility under
Section 479 of the Act.
In deciding Carcieri, the majority opinion goes out of its
way to explain that it did not have before it and was not
deciding this question. Indeed, this open question was the
principal subject of Justice Breyer's concurring opinion.
There, Justice Breyer explained that the opportunity to
determine the dual status of tribes was unaffected by the
court's decision and the Interior Department remains free to
address it.
But while Interior retains authority to determine that a
tribe was under Federal jurisdiction in 1934, even though it
was not formally recognized until later, the legal standard is
less clear cut. As described in my written submission, Justice
Breyer got a start on the analysis. He identified a number of
circumstances where a tribe should be considered under Federal
jurisdiction in 1934, even if not recognized by the Federal
Government.
In this regard, the one point I would like to emphasize
here is simply this: the current list of recognized tribes is
surely the best starting point for determining whether a tribe
was under Federal jurisdiction in 1934 because the regulations
that have served for decades as the gateway to inclusion on
that list already effectively embody the concept that to be
formally acknowledged by the Federal Government, the tribe must
have been under Federal jurisdiction at the time the IRA was
enacted.
For example, the first mandatory criterion that a
petitioning group must satisfy to obtain recognition is that it
has been, ``identified as an American Indian entity on a
substantially continuing basis since 1900.''
In other words, in light of the tribal acknowledgment
regulations, it generally should be the case that tribes
recognized by the United States after 1934 actually meet the
criteria such as continuous existence for being under Federal
jurisdiction as of 1934. And it makes no sense to deny the
benefits of the IRA, including the trust land provision, to
tribes who through no fault of their own were left off the
original IRA list despite their continuing existence from
historic times to the present.
But I must emphasize that the current list is only the
starting point, not the end point. Given that the erratic
pattern of Federal recognition at the time of the IRA's
enactment was due in large part to administrative and record
keeping problems on the part of the Department of Interior, and
given that the Supreme Court has now potentially invested those
administrative oversights and mistakes with legal significance,
the Department has a special and affirmative obligation to
exercise its administrative authority and to do so in
consultation with interested tribes, to ensure that the proper
IRA protection is extended to all tribes that were under
Federal jurisdiction in 1934.
It must be said, however, that this approach will surely
trigger very protracted and expensive case-by-case litigation,
and as a result it is only a distant second best alternative to
remedial legislation.
I thank the Committee for its attention.
[The prepared statement of Mr. Lazarus follows:]
Prepared Statement of Edward P. Lazarus, Partner, Akin Gump Strauss
Hauer and Feld, LLP \1\
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\1\ Although I am a partner at the law firm Akin Gump Strauss Hauer
& Feld, I am appearing before this Committee in my personal capacity as
a recognized authority on the Supreme Court with a background of
scholarship, commentary, and teaching in the fields of Constitutional
Law and Federal Indian Law. In Carcieri, Akin Gump submitted an amicus
brief on behalf of the Narragansett Indian Tribe, but I did not work on
that brief and am not representing the Tribe.
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Mr. Chairman and Vice-Chairman, I very much appreciate the
opportunity to testify before this Committee. As someone who started
studying Indian Law in junior high school and who has spent his
professional life first as a law clerk at the United States Supreme
Court and then as an analyst of and practitioner before that Court, it
is honor to have been asked to share my views on Carcieri v. Salazar
and its legal implications.
As you know, on February 24, 2009, the Supreme Court issued its
decision in Carcieri, 129 S. Ct. 1058, which held that the Secretary of
the Interior's authority to take land into trust for an Indian tribe
under the Indian Reorganization Act (IRA), 25 U.S.C. Sec. 465, is
limited to tribes and their members who were ``under federal
jurisdiction'' when the IRA was enacted in 1934. The harm occasioned by
that decision cannot be overstated. The Supreme Court, in an
extraordinarily cramped reading of statutory text, has drastically
curtailed the primary mechanism by which the Federal Government has for
decades promoted the sovereignty, self-determination, economic
stability, and political development of Indian tribes, many of whom
were not recognized by the Federal Government until after the IRA's
enactment. Congress passed the IRA to ``establish machinery whereby
Indian tribes would be able to assume a greater degree of self-
government, both politically and economically.'' Morton v. Mancari, 417
U.S. 535, 542 (1974). The Supreme Court, however, has now held that the
IRA perpetuated the consequences of the Federal Government's prior
assimilationist and tribal-termination policies by limiting IRA's most
fundamental protection and assistance to those tribes which were under
federal jurisdiction (commonly, through recognition) in 1934.
The ability to have land taken into trust is critical to the
preservation and advancement of tribal sovereignty, Nation building,
and economic and cultural development. That is because land held in
trust by the United States for tribes is generally exempt from (i)
state and local taxation, see 25 U.S.C. Sec. 465; (ii) local zoning and
regulatory requirements, see 25 C.F.R. Sec. 1.4(a); and (iii) state
criminal and civil jurisdiction absent tribal consent, see 25 U.S.C.
Sec. Sec. 1321(a), 1322(a). See Connecticut v. United States Department
of the Interior, 228 F.3d 82, 85-56 (2d Cir. 2000). For tribal
governments, placing land into trust also confirms that the land may
not be condemned or otherwise alienated without either tribal consent
or express congressional authorization. See 25 U.S.C. Sec. 177. That
is, in essence, what makes the land a true homeland for tribes. And
this protected status lays the groundwork for tribes to exercise
genuine sovereignty and control over their land and, like all
responsible governments, to make the decisions about land and resource
use that are needed to protect and promote the community's growth and
well-being. Securing the ability of tribes to control their own land,
in other words, is indispensable to fulfilling the United States
government's unique responsibility for preserving and respecting the
status of tribes as distinct sovereigns within our Nation.
Accordingly, there is an urgent need for the Federal Government to
respond to the Carcieri decision and address the challenges it has
created for the Federal Government's fulfillment of its special
obligations to Indian tribes and, in particular, to those tribes whose
recognition and protection by the United States was delayed until after
1934. What follows are the potential options for the government to
pursue, ranging from the clearest and most effective to the plausible
but admittedly tenuous.
First, Congress should amend the IRA to correct the statutory
construction issue that led to the Carcieri decision. As you know, in
that case, the Court addressed the meaning of the term ``now'' in 25
U.S.C. Sec. 479, which provides that the government can take land into
trust for an ``Indian,'' who is defined (as relevant here) to include
``all persons of Indian descent who are members of any recognized
Indian tribe now under Federal jurisdiction.'' The Supreme Court held
that the term ``now'' froze in time those tribes that were under
Federal jurisdiction when the statute was enacted in 1934, rejecting
the Interior Department's argument that ``now'' referred to the time
the trust decision was made.\2\
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\2\ For all the Supreme Court's focus on plain language, the
supposedly crystalline meaning of the phrase ``now under federal
jurisdiction'' was lost on one of the leading experts at the time.
Felix S. Cohen served in the office of the Solicitor of the Department
of the Interior from 1933 to 1947 and edited the first Handbook for
Federal Indian Law in 1941. Cohen was also a principal advocate of, and
heavily involved in the drafting of the IRA, then known as the Wheeler-
Howard Act. In a memorandum written just prior to the IRA's enactment,
Cohen expressed bafflement at the phrase's significance--backhanding it
with the observation ``whatever that may mean''--and argued that the
phrase should be deleted because it would ``likely [] provoke
interminable questions of interpretation.'' Analysis of Differences
Between House Bill and Senate Bill. Box 11, Records Concerning the
Wheeler-Howard Act, 1933-37, folder 4894-1934-066, Part II-C, Section 4
(4 of 4); Differences Between House Bill and Senate Bill, Box 10,
Wheeler-Howard Act 1933-37, Folder 4894-1934-066, Part II-C, Section 2,
Memo of Felix Cohen.
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In so ruling, the Supreme Court defied 70 years of practice and
undermined a generally settled understanding that a main purpose of the
IRA was to provide authority and flexibility for rebuilding a tribal
land base that had been reduced by more than 100 million acres during
the period when the United States pursued an aggressive policy of
breaking up and ``allotting'' Indian lands, as well as trying to
assimilate individual Indians into American society. Congress, however,
has the unquestioned power to reject the Court's belated assessment of
congressional intent and restore the status quo ante. If Congress were
to amend the law by deleting the term ``now'' or otherwise clarifying
that, consistent with IRA's animating purpose, the term ``now'' refers
to the time the decision to take land into trust is made, the problem
would be eliminated and all federally recognized tribes would be able
to exercise the sovereignty rights ordinarily associated with that
status.
In addition, the Congress should pass legislation that ratifies the
numerous pre-Carcieri decisions by Interior taking significant tracts
of land into trust for tribes recognized after 1934. Tribes have
undertaken substantial development and investment in reliance on those
trust decisions. Leaving all of those decisions in legal limbo,
undoubtedly spawning substantial litigation, would entail enormous
resource and reliability costs for the Tribes, the United States
government, and the courts. The impact of the decision on the
substantial investments and developments already made and being made on
trust land would also generate significant economic uncertainty for
Tribes and their surrounding cities, counties, and States, which would
be profoundly unfortunate in these challenging economic times.
Draft language for both bills is appended to this testimony for the
Committee's reference.
Second, in the absence of remedial legislation, the Department of
the Interior has an affirmative obligation after Carcieri to consider,
if presented with a fee to trust application, whether tribes that were
federally recognized after 1934 were nevertheless ``under Federal
jurisdiction'' in 1934, and thus that those tribes qualify for trust
eligibility under Section 479. The Supreme Court held in Carcieri only
that the term ``now'' temporally modified the phrase ``under Federal
jurisdiction.'' The Court did not hold--nor could it grammatically--
that the term ``now'' modifies the time within which a tribe had to be
recognized. That would defy the sentence structure and careful
placement by Congress of the term ``now'' in the statute. See Carcieri,
129 S. Ct. at 1070 (Breyer, J., concurring) (``The statute, after all,
imposes no time limit upon recognition.'').
Importantly, the Carcieri decision leaves open the option for
Interior to determine that a tribe that was recognized by the Federal
Government sometime after 1934 was nonetheless ``under Federal
jurisdiction'' in 1934, thus qualifying for the IRA's protections of
tribal sovereignty. The Supreme Court's opinion explicitly states that
the question of whether that hybrid status could be established was not
before it in the Carcieri case, noting that ``[n]one of the parties or
amici, including the Narragansett Tribe itself, has argued that the
Tribe was under federal jurisdiction in 1934.'' 129 S. Ct. at 1068.
Underscoring that it was not deciding this issue, the Court then
explained that, under the Supreme Court's unique rules of discretionary
certiorari review, the absence of any contest over that issue in the
parties' certiorari briefs required the Court simply ``to accept this
as fact for purposes of our decision in this case.'' Ibid. The Supreme
Court, in other words, made clear in Carcieri that both substantively
and procedurally the question of whether tribes could establish the
dual status of being recognized post-1934 yet under federal
jurisdiction pre-1934 remains an open one.
This open question was the principal subject of Justice Breyer's
concurring opinion. There, Justice Breyer explained at some length (and
without contradiction in the majority opinion) that the opportunity to
determine that dual status was unaffected by the Court's decision and
Interior remained free to address it. 129 S. Ct. at 1069-1070. Indeed,
Justice Breyer noted that, in the past, Interior had determined that
some tribes that were recognized after 1934 were nevertheless ``under
Federal jurisdiction'' in 1934. Id. at 1070. Justices Souter and
Ginsburg echoed Justice Breyer's observation about Interior's retained
authority, explaining that ``[n]othing in the majority opinion
forecloses the possibility that the two concepts, recognition and
jurisdiction, may be given separate content.'' Id. at 1071.
While Interior thus retains the authority to determine that a tribe
was under Federal jurisdiction in 1934 even though it was not
recognized, the legal standard for establishing such jurisdiction is
less clear cut. As Justice Souter and Ginsburg explained in their
concurring opinion in Carcieri, there is ``no body of precedent or
history of practice giving content to the condition sufficient for
gauging the Tribe's chances of satisfying it.'' 129 S. Ct. at 1071.
This is hardly surprising. After all, prior to Carcieri, there was
little reason to focus on the question. Nonetheless, the concurring
opinion of Justice Breyer identifies some relevant indicia of federal
jurisdiction, such as continuing obligations by the United States to
the tribe, an ongoing government-to-government relationship despite the
Federal Government's mistaken belief that the tribe was terminated, or
subjection of the tribe to a congressional appropriation or enrollment
with the Bureau of Indian Affairs (for example, at a BIA school or
judgment distribution rolls). See id. at 1070 (discussing examples).
Other factors include the existence of a written record documenting the
tribe's existence as a separate tribe, the tribal members' receipt of
federal aid, or the fact that the tribe lived as and was considered by
others to be a separate tribe. Indeed, Justice Breyer specifically
noted the case of the Stillaguamish who were not officially recognized
until 1976, but were determined to be entitled to recognition because
the Tribe had maintained treaty rights since 1855. The same is true for
the Samish Tribe, which was not recognized by the government until
1996, even though the Tribe possessed the same federally protected
treaty fishing rights dating from 1855.
Furthermore, a tribe could well have been under federal
jurisdiction even though the Federal Government did not know so at the
time. 129 S. Ct. at 1070 (Breyer, J., concurring). In February 1937,
for example, Interior's Solicitor recommended that land be placed in
trust for the Mole Lake Band members as a tribe, rather than as
individuals of one-half or more Indian blood. Mem. Sol. Int., Feb. 8,
1937, (hereinafter ``Interior Opinions''). The Interior Opinion cited a
number of factors establishing that the group of 141 persons ``mostly
fully bloods'' should be recognized as a tribe, such as the fact that
tribal members received annuities from a Treaty of 1854, other federal
aid, and schooling from the Federal Government. The Interior Opinion
also emphasized that the tribal members were not part of another tribe,
other tribes in the area recognized the Mole Lake Band as a separate
tribe, the tribal members continued to maintain their customary form of
government, and the tribal members persistently refused to leave the
Mole Lake area.
As the Mole Lake situation reflects, whether a tribe is under
federal jurisdiction can be most easily determined if the Department of
the Interior has a sufficient written record of the tribe's existence.
For the Mole Lake Band, the 1937 Interior Opinion demonstrated that the
Interior Department had a substantial written record dating from 1919
until 1937, which substantiated that the tribe was ``under federal
jurisdiction'' at the time of IRA's enactment. Accordingly, for tribes
whose circumstances support the conclusion, the Department of Interior
retains the authority to conclude that ``later recognition reflects
earlier `Federal jurisdiction,' '' 129 S. Ct. at 1070 (Breyer, J.,
concurring), or to otherwise determine that the tribe was under Federal
jurisdiction in 1934.
It is important to note, however, that the absence of information
within the Department is NOT evidence that a given tribe was not under
federal jurisdiction in 1934. Suffice it to say that record keeping has
not always been the Interior Department's strong suit. And, as
particularly relevant here, part of the unfortunate history of federal
Indian relations is the uneven way in which Indian tribes came to be
recognized or, in some cases, noticed by the government. As Justice
Breyer observed, the Department created a list of 258 tribes covered by
the Act and ``we also know it wrongly left certain tribes off the
list.'' 129 S. Ct. at 1068. As these omissions continued to create
problems for the Department (such as determining which tribes were
entitled to the protection of treaty guaranteed fishing rights), the
Department realized it needed to formalize the way in which it
determined which Indian tribes were eligible for government services.
It was not until 1978, however, that the Department established a
formal process for the acknowledgment or ``recognition'' of Indian
tribes. While this process has been a separate focus of the Congress
and this Committee, the salient point here is that these acknowledgment
regulations already effectively embody the concept that to be formally
acknowledged, the purported Indian tribe must have been under federal
jurisdiction at the time the IRA was enacted. For example, the first
mandatory criterion that a petitioning group must satisfy is that it
has ``been identified as an American Indian entity on a substantially
continuous basis since 1900,'' 25 C.F.R. 83.7(a), which may be
documented through identification by the federal authorities or other
sources, such as state government, historians or newspapers and books.
In other words, in light of the acknowledgment regulations, it
generally should be the case that tribes recognized by the United
States after 1934 actually meet the criteria--such as continuous
existence--for being ``under federal jurisdiction'' as of 1934. And it
makes no sense whatsoever to deny the benefits of the IRA, including
the trust land provision, to tribes that, through no fault of their
own, were left off the original IRA list or otherwise continuously
existed (and thus, were under federal jurisdiction) as an Indian tribe
from historic times to the present. Justice Breyer recognized exactly
this possibility, noting that simply because a group's Indian character
has been overlooked or denied ``from time to time . . . [should] not be
considered to be conclusive evidence that this criterion has not been
met.'' Ibid.
I realize that this suggested approach is in tension with the Bush
Administration's statement at the Supreme Court oral argument that
Interior's ``more recent interpretation'' was that recognition and
under federal jurisdiction were coextensive determinations. Oral Arg.
Tr. 42. But that last-minute litigation position is contrary to what
those published regulations reflect, as well as longstanding agency
practice. That position also renders the phrase ``recognized Indian
tribe'' redundant, contrary to Carcieri's command that ``we are obliged
to give effect, if possible, to every word Congress used.'' 129 S. Ct.
at 1066. By contrast, the prior agency position that the two
determinations are distinct inquiries better comports with the
statutory text because it gives meaning to Congress's decision to
employ both phrases as qualifying yardsticks in Section 479.
Accordingly, Interior retains the authority to reinstate its prior view
as the better reading of statutory text and the view that better
comports with congressional purpose.
As a matter of administrative law, the Solicitor General's oral-
argument pronouncement does not even merit deference normally accorded
agency determinations. ``Deference to what appears to be nothing more
than an agency's convenient litigating position would be entirely
inappropriate.'' Bowen v. Georgetown Univ. Hosp., 488 U.S. 204, 213
(1988); see Kentucky Retirement Sys. v. EEOC, 128 S. Ct. 2361, 2371
(2008) (denying deference to informal agency interpretation that the
agency ``makes little effort to justify''). Thus, there should be no
administrative hindrance to Interior's return to its considered and
longstanding position, embodied in formal agency regulations, that a
tribe could be under federal jurisdiction even if not formally
recognized. In any event, the Supreme Court just reiterated this month
that agencies may reasonably change their interpretation of ambiguous
statutory language. See FCC v. Fox Television Stations, Inc., No. 07-
582, slip op. at 10, 11 (Apr. 28, 2009) (``We find no basis in the
Administrative Procedure Act or in our opinions for a requirement that
all agency change be subjected to more searching review.'' ``[The
agency] need not demonstrate to a court's satisfaction that the reasons
for the new policy are better than the reasons for the old one; it
suffices that the new policy is permissible under the statute, that
there are good reasons for it, and that the agency believes it to be
better.'').
All told, given that the erratic pattern of federal recognition at
the time of the IRA's enactment was due, in large part, to
administrative and record-keeping problems on the part of the
Department of Interior, and given that the Supreme Court has now
invested those administrative oversights and mistakes with legal
significance, the Department now has a special and affirmative
obligation to exercise its administrative authority--in consultation
with interested Tribes--to ensure that proper IRA protection is
extended to all Tribes that were under federal jurisdiction in 1934. It
must be said, however, that this approach will surely trigger
protracted and expensive case-by-case litigation and, as a result, is
only a second-best alternative to remedial legislation.
Third, Section 479 provides a separate definitional mechanism--
entirely distinct from the ``federal jurisdiction'' test--by which the
Secretary may acquire land in trust. Section 479 includes within the
definition of ``Indian[s]'' eligible to have land taken into trust
``all other persons of one-half or more Indian blood.'' 25 U.S.C.
Sec. 479. The Secretary of the Interior even has the authority to
assist such Indians in organizing as a separate Indian tribe by virtue
of such blood quantum. See 25 U.S.C. Sec. Sec. 476 and 479.
On its face, the IRA authorizes Interior's acquisition of land into
trust for Indians possessing one half or more Indian blood regardless
of any temporal relationship to the enactment of the IRA. In fact, a
number of federally recognized Indian tribes first organized as half-
blood communities under the IRA--the St. Croix Band of Chippewa, the
Mississippi Choctaw Tribe, and, more recently, the Jamul Indian Village
in California. In each case, the Department assisted those half-blood
Indians by first acquiring land in trust for their benefit until the
half-blood community could formally organize according to the IRA.
To illustrate, in 1936, the Solicitor of the Interior reviewed a
proposed acquisition of trust land for Choctaw Indians in Mississippi,
who had become separated from the Choctaw Tribe in Oklahoma. The
Solicitor determined that land could be taken into trust for ``such
Choctaw Indians of one-half or more Indian blood, resident in
Mississippi, as shall be designated by the Secretary of the Interior.''
Mem. Sol. Int., Aug. 31, 1936, reprinted in 1 Opinions of the Solicitor
of the Department of the Interior Relating to Indian Affairs 1917-1974,
at 668. The Jamul Indian Village organized in the same manner.
Beginning in the 1970s, representatives of Jamul contacted the Bureau
of Indian Affairs about obtaining federal recognition. The Bureau
explained that the Village could either seek recognition through a
formal petition for federal acknowledgment or organize as a half-blood
community pursuant to Sections 16 and 19 of the IRA, 25 U.S.C.
Sec. Sec. 476 and 479. The Jamul pursued the latter option and
submitted 23 family tree charts to the Area Director. The Bureau
eventually determined that 20 people possessed one-half or more Indian
blood and proceeded to acquire, through donation, a parcel of land to
establish the Jamul Indian Reservation. The grant deed conveyed the
parcel to ``the United States of America in trust for such Jamul
Indians of one-half degree or more Indian blood as the Secretary of the
Interior may designate.'' In May of 1981, the half-blood members
ratified a constitution which formally established the Jamul Indian
Village. Two months later, the Department approved the constitution.
The Secretary of the Interior then included Jamul in the next list of
federally recognized Indian tribes published in the federal register.
47 Fed. Reg. 53,130, 53,132 (Nov. 24, 1982).
Thus, as a matter of plain statutory text and established
administrative practice, the Federal Government retains the authority
to take land into trust for communities of Indians who establish that
they have half or more Indian blood. As Justice Breyer noted, 129 S.
Ct. at 1070, nothing in Carcieri affected that distinct basis for trust
decisions to be made.
Fourth, in 40 U.S.C. Sec. 523, Congress delegated authority to the
General Services Administration to transfer to the Secretary of the
Interior any excess real property owned by the United States that falls
within an Indian reservation. \3\ The statute further provides that
``the Secretary shall hold excess real property transferred under this
section in trust for the benefit and use of the group, band, or tribe
of Indians, within whose reservation the excess real property is
located.'' 40 U.S.C. Sec. 523(b)(1). This statutory authority could be
helpful in the occasional circumstance where federal property, such as
a military base, falls within the historic and undiminished bounds of
an Indian reservation. In those relatively unusual situations, the
Secretary has full statutory authority to effectively return the
``excess'' land to the Tribe in trust status. The statute thus provides
authority to put excess federal land in trust for an Indian tribe as
long as the land falls ``within an Indian reservation'' of a federally
recognized Indian tribe. Shawnee Tribe v. U.S., 405 F.3d 1121, 1126
(10th Cir. 2005).
---------------------------------------------------------------------------
\3\ More specifically, Section 523 provides that ``[t]he
Administrator of General Services shall prescribe procedures necessary
to transfer to the Secretary of the Interior, without compensation,
excess real property located within the reservation of any group, band,
or tribe of Indians that is recognized as eligible for services by the
Bureau of Indian Affairs.''
---------------------------------------------------------------------------
Neither the statute nor the regulations define ``within an Indian
reservation,'' but generally ``[o]nce a block of land is set aside for
an Indian Reservation and no matter what happens to the title of
individual plots within the area, the entire block retains its
reservation status until Congress explicitly indicates otherwise.''
Solem v. Bartlett, 465 U.S. 463, 470 (1984). While the Court has held
that ``only Congress can divest a reservation of its land and diminish
its boundaries,'' ibid., the Court has also held that a tribe may not
reassert jurisdiction over land that has long passed out of Indian
control, even if the reacquired land is within the tribe's reservation.
City of Sherrill v. Oneida Indian Nation, 544 U.S. 197. 202, 219
(2005).
The allotment policy at the turn of the century complicated
question of whether land is within an Indian reservation Solem, 465
U.S. at 466-67. The allotment policy forced Indians onto individual
allotments, which were carved out of reservations, and opened up
unalloted lands for non-Indian settlements. Ibid. The legacy of
allotment has created jurisdictional quandaries where state and federal
officials dispute which sovereign has authority over lands that were
opened by Congress and have since passed out of Indian ownership. Id.
at 467.
Generally, Congress has diminished a reservation boundary by
opening up unallotted lands and freeing the land of its reservation
status. South Dakota v. Yankton Sioux Tribe, 522 U.S. 329, 343 (1998).
But, if Congress ``simply offered non-Indians the opportunity to
purchase land within established reservation boundaries then the opened
area remained Indian country.'' Ibid. Whether Congress has diminished a
reservation's boundaries depends largely on the statutory language used
to open Indian lands. Solem, 465 U.S. at 470. Other factors, however,
weigh into the diminishment question, such as: (1) the events
surrounding the passage of a the congressional act, particularly how
the transaction was negotiated with the tribe involved; (2) the
legislative history of the act; (3) Congress's treatment of the
affected area in the years immediately following the opening of the
land, including how the Bureau of Indian Affairs and local judicial
authorities dealt with unallotted open lands; and (4) the ``Indian
character'' of the land, that is whether non-Indian settlers flooded
into the opened portion of a reservation. Id. at 471.
``Excess property'' is defined as ``property under the control of a
federal agency that the head of the agency determines is not required
to meet the agency's needs or responsibilities.'' 40 U.S.C.
Sec. 102(3). In contrast, ``surplus property'' means excess property
that GSA determines is not required to meet the needs or
responsibilities of any federal agency. Id. Sec. 102(10).
Lastly, whether a tribe is federally recognized may be determined
by referring to the list of the federally recognized tribes that the
Secretary of the Interior is required to publish every year under 25
U.S.C. Sec. 479a-1.
Fifth and finally, it might be argued, though admittedly with
considerable difficulty, that the President retains some inherent
constitutional authority to protect Indian lands as part of his
constitutionally assigned duties to enforce domestic law and security,
as well as to conduct the Federal Government's relations with other
sovereigns. Between 1855 and 1919, the President used executive orders
to set aside 23 million acres of land from the public domain for Indian
reservations. Felix S. Cohen, Handbook of Federal Indian Law 982
(2005). In 1882, the Attorney General authored an advisory opinion
supporting the President's authority to create Indian reservations
through executive orders. 17 Op. A.G. 258 (1882). The opinion first
noted an early historical practice of presidential reservations of land
for public uses, as well as congressional recognition of the
President's power to withdraw lands from the public domain. The opinion
then reasoned that reserving land for Indians constitutes a proper
``public use'' for the land because of the government's longstanding
policy of settling Indians on reservations. With respect to the
question whether the President could ``reserve lands within the limits
of a state for Indian occupation,'' the Attorney General responded that
``it has been done; it has been the practice for many years,'' and ``I
have found no case where the objection has been raised that a
reservation could not be made within the boundaries of a State without
the consent of the State.'' Ibid.
The Supreme Court agreed. In United States v. Midwest Oil Co., 236
U.S. 459 (1915), the Court upheld the President's authority to withdraw
public land from free and open acquisition by citizens, even though
Congress had designated the land for such acquisition. The Court
explained that the President's practice of withdrawing public land that
would otherwise be for open acquisition stretched back at least 80
years, and that Congress knew of and acquiesced in the practice. Id. at
469. The Court concluded that such congressional acquiescence
``operated as an implied grant of power in view of the fact that its
exercise was not only useful to the public, but did not interfere with
any vested right of the citizen.'' Id. at 475.
In 1919, however, Congress withdrew the Executive Branch's
authority to create Indian reservations out of the public domain,
commanding that ``[n]o public lands of the United States shall be
withdrawn by Executive Order, proclamation, or otherwise, for or as an
Indian reservation except by act of Congress.'' 43 U.S.C. Sec. 150. In
1927, Congress further retracted Executive Branch authority by
directing that only Congress may change the boundaries of an Indian
reservation created by the Executive Branch. 25 U.S.C. Sec. 398d; see
Minnesota v. Mille Lacs Band of Chippewa Indians, 526 U.S. 172, 188
(1999) (the President lacked constitutional and statutory authority to
issue an 1850 Executive Order terminating a tribe's hunting, fishing
and gathering rights under a treaty); cf. Youngstown Sheet & Tube Co.
v. Sawyer, 343 U.S. 579, 585 (1952) (``The President's power, if any,
to issue [an executive] order must stem either from an act of Congress
or from the Constitution itself.'').
The question remains whether there is some constitutional residuum
(in addition to the specific statutory authority provided by the IRA)
that empowers the Executive Branch (i) to exempt parcels of land from
state and local taxation because such lands have been acquired to
advance the special public purpose of protecting Indian tribes; (2) to
exempt parcels of land from local zoning and regulatory requirements;
(3) to exempt land from state criminal and civil jurisdiction; and (4)
to prevent the land from being alienated. If there is, then it could be
argued that the Secretary retains the authority to give some parcels of
Indian land protections that approximate those accomplished by trust
status.
However, given Congress's statutory partial prohibition against the
Executive Branch's creation of Indian reservations and the
Constitution's assignment of primary responsibility for the control of
public lands and the taking of private lands for public purposes to the
Congress, see U.S. Const. art. I, Sec. 8 & art. IV, Sec. 3; Youngstown,
343 U.S. at 587-588, the argument that the President has independent
authority to create trust lands contrary to Congress's direction in the
IRA will be a difficult one to make. See Youngstown, 343 U.S. at 588-
589. The creation of such lands contrary to statutory direction would
not fall within any obvious grant of power to the Executive Branch in
the Constitution. It is not inherent in the President's power to make
treaties with Indian nations, nor does it entail the enforcement or
execution of laws duly enacted by Congress. Quite the opposite, such
action seems similar to the seizure of private property for a
presidentially identified purpose that was struck down in Youngstown.
An Executive Branch creation of trust land or trust-like land would
``not direct that a congressional policy be executed in a manner
prescribed by Congress--it directs that a presidential policy be
executed in a manner prescribed by the President.'' Id. at 588.
In short, the argument that the President alone could, in effect,
chart an independent course for the creation of trust-like Indian
lands, while finding some support in Midwest, would be difficult to
establish in the face of both contrary statutory and Supreme Court
direction. The argument's greatest chance of success would arise in
case-by-case scenarios where the President could argue based on the
specific facts before him that supplemental protection of the land was
necessary to accomplish congressional purpose, to enforce a law or
treaty, or to stabilize intergovernmental relations.
In sum, although the Carcieri decision upended decades of
consistent agency practice under the IRA, avenues remain open by which
the Federal Government could afford Indian lands the distinct
protection that they merit. Those avenues should be vigorously pursued
both by Congress and the Executive Branch because they are of vital
importance to tribal communities across the Nation.
The Chairman. Mr. Lazarus, thank you very much.
And I did not notice that Senator Tester crept stealthily
into the hearing room without my notice. I did not call on him
for an opening statement. All right?
STATEMENT OF HON. JON TESTER,
U.S. SENATOR FROM MONTANA
Senator Tester. Yes, I will just tell you that we have
eight tribes. Seven of them were created before 1934. I just
want to know how it impacts those seven, if that is in your
statement, and how the impact would be on the tribes.
Mr. Lazarus. Senator Tester, I would be delighted to answer
that during the question period.
The Chairman. Next, we will hear from Mr. Ron Allen,
Secretary of the National Congress of American Indians.
Mr. Allen, welcome once again.
STATEMENT OF HON. RON ALLEN, SECRETARY, NATIONAL CONGRESS OF
AMERICAN INDIANS
Mr. Allen. Thank you, Mr. Chairman.
On behalf of the National Congress of American Indians, it
is definitely an honor to come before the Committee again and
to share our thoughts and views of the countless tribes that we
represent and advocate for their sovereignty and their rights
as governments in our American political system.
I am also the Chair of the Jamestown S'Klallam Tribe and
its CEO, so I actually run the operations and am very aware of
some of the concerns that we might have if this case is
advanced in an ambiguous and negative way that cause a lot of
problems for not just my tribe, but Indian Country as a whole.
I think that we need to step back and reflect on what the
Congress intended in terms of empowering tribal governments.
For the last 30 years, I have been a Chair for 32 years now,
and I have had the opportunity to witness the incredible growth
and progress that tribes have made across Indian Country. The
Self Determination Act, which basically said enough of the
termination-assimilation mentality; it is not going to work and
we need to empower tribes to be able to take care of their
destiny.
The strides that we have made in the last 30 years for a
variety of reasons through a variety of pieces of legislation
has made significant differences not just in our community, but
in the State communities and the local communities that we also
reside in. And we feel that this case if it is not quickly
fixed by the Congress and clarified, then it can unravel the
impact and the positive impact that we have had over the last
basically 30 plus years. So this legislative fix is critically
important.
Mr. Lazarus made a comment that it could end up developing
two classes of Indians. Congress never intended to treat tribes
differently. That was never an agenda of this Congress and the
United States. Tribes are always to be treated exactly the same
way and there are many cases where Congress made it explicit
that we were to be treated the same way.
In terms of where are the tribes, the tribes are across the
United States from Alaska to Florida, and there is a very
explicit list in terms of who the tribes are who are recognized
by the United States Government. We continue to remind Congress
that Congress recognized us in the Constitution. They didn't
list us out in the Constitution. It recognized that there were
Indian tribal governments across the United States that it was
going to have a very special relationship with.
We often talk about the concern over the land that has been
acquired into trust. We regularly remind the Congress that
basically back in 1934, Congress took away 90 million acres of
Indian Country. You look at the 55 to 56 million acres we have
right now, it makes up about 2 percent of America, and the
actual level of acquisition of land being taken into trust is
incredibly slow for us as we acquire those homelands for our
people, for multiple reasons, so that we can become self-
determinant, so we can enhance our economies, so we can create
homes for our people, so we can preserve and protect the
cultural purposes that are important for our community.
And those are important issues for us to be able to
consolidate those land bases. In the vast majority of the land
that was taken away was the good land. If you look at where
Indian Country is, primarily in rural communities. Basically
vast desert lands and swamp lands and lands that America didn't
think there was any value to it, basically putting the Indians
out of sight, out of mind. And so what we are doing is
reacquiring some of the lands that are critically important.
We want to emphasize that the process to acquire land into
trust is a very onerous process. It is not easy and the States
and local governments have a role in that process and they are
concerned in terms of how it is being addressed.
Going back to my first point, I will note that the progress
that we have made, the economies that we have enhanced in our
communities have greatly enhanced the tax bases of the States
and the local economies in communities, creating jobs, allowing
them to be able to build homes, homes that are all in the tax
bases of the local economies and systems that serve their
respective communities. And we have made a major, major
positive stride in that effort.
I also want to point out that we are a little annoyed by
any re-emergence of the old system of fighting the Indians. The
notion that we are still fighting the Indians and Indians need
to be assimilated or terminated is an old mentality. Quite
frankly, we can show you countless examples where the States
and the tribes are working collaboratively with the courts and
compacts and agreements on a whole variety of issues that are
critically important.
My State of Washington is a good example. Montana is a good
example. New Mexico and Arizona are other examples where there
have been very positive relationships as a result of the
collaborative relationship between the tribes and the States.
It is an old mentality to fight Indians. In the 21st century,
it is not appropriate and not necessary.
We really do believe that the Congress needs to fix this
thing and fix it quickly. We don't need our cases, our loans
that we are borrowing for infrastructure, for hospitals, for
clinics, for schools and for our basic operations being
questioned because that land into trust that has been acquired
to be in question and jeopardize business transactions and so
forth enhancing the welfare of our community.
So I really believe that we can fix this thing. We don't
need to spend a lot of our money on lawyers. We don't need to
flood the courts with more cases against tribes. There are
enough in courts today. Let's not do that. Let's continue the
progressive positive movement that you have empowered both the
tribes and the Congress to move forward constructively.
So I thank you for this opportunity. There are probably
many more things that can be said about this case and the
importance of it. The court just did not know what it did when
it made that interpretation.
Thank you, sir.
[The prepared statement of Mr. Allen follows:]
Prepared Statement of Hon. Ron Allen, Secretary, National Congress of
American Indians
On behalf of the National Congress of American Indians, thank you
for the Committee's hearing regarding the adverse implications of the
U.S. Supreme Court's decision in Carcieri v. Salazar. As you know, the
Carcieri decision has called into question the Department of Interior's
longstanding interpretation of law regarding the Indian Reorganization
Act of 1934 (IRA) and sets up disparate and unfair treatment of Indian
tribes. We urge Congress to reinstate the principle that all federally
recognized Indian tribes are eligible for the benefits of the IRA. Our
testimony will also discuss general principles relating to the
Secretary's authority to acquire land in trust for Indian tribes, and
the constitutional principles of federal jurisdiction in Indian
affairs.
Legislative Action Needed to Address Carcieri v. Salazar
The fundamental purpose of the IRA was to reorganize tribal
governments and to restore land bases for Indian tribes that had been
greatly harmed by prior federal policies. The passage of the IRA marked
a dramatic change in federal Indian policy. Congress shifted from
assimilation and allotment policies in favor of legislation to
revitalize tribal governments and Indian culture. In a decision that
runs contrary to these purposes, the Supreme Court held the term
``now'' in the phrase ``now under Federal jurisdiction'' in the
definition of ``Indian'' limits the Secretary's authority to provide
benefits of the IRA to only those Indian tribes ``under federal
jurisdiction'' on June 18, 1934, the date the IRA was enacted.
The Carcieri decision is squarely at odds with the federal policy
of tribal self-determination and tribal economic self-sufficiency. In
particular, the decision runs counter to Congress' intent in the 1994
amendments to the IRA. These amendments directed the Department of
Interior and all other federal agencies, to provide equal treatment to
all Indian tribes regardless of how or when they received federal
recognition, and ratified the Department Interior procedures under 25
C.F.R. Pt. 83 for determining and publishing the list of federally
recognized tribes. NCAI strongly supports the federal process for
federal recognition of all tribes that have maintained tribal relations
from historic times. The maintenance of tribal relations is the key to
federal jurisdiction under the U.S. Constitution.
The Carcieri decision does not address what it means to be ``under
federal jurisdiction'' in 1934. Our concern is that if the Carcieri
decision stands unaddressed by Congress, it will engender costly and
protracted litigation on an esoteric and historic legal question that
serves no public purpose. Our strongly held view is that Indian tribes
and the Federal government should focus their efforts on the future,
rather than attempting to reconstruct the state of affairs in 1934. The
Carcieri decision is likely to create litigation on long settled
actions taken by the Department pursuant to the IRA, as well as on the
Secretary's ability to make future decisions that are in the best
interests of tribes. The decision is already creating significant
delays in Department of Interior decisions on land into trust, a
process that is already plagued with unwarranted delays.
While Carcieri addressed only land in trust, there may be efforts
to use the decision to unsettle other important aspects of tribal life
under the IRA. The IRA is comprehensive legislation that provides for
tribal constitutions and tribal business structures, and serves as a
framework for tribal self-government. Future litigation could threaten
tribal organizations, contracts and loans, tribal reservations and
lands, and provision of services. Ancillary attacks may also come from
criminal defendants seeking to avoid federal or tribal jurisdiction,
and would negatively affect public safety on reservations across the
country.
Congress should view the Carcieri decision and the need for
legislation as similar to the Lilly Ledbetter Fair Pay Act signed by
President Obama on January 29, 2009. When the Supreme Court has
narrowly interpreted an act of Congress in a manner that is
fundamentally unfair and not in accordance with its original purposes,
Congress should move quickly to amend and clarify the law. NCAI urges
Congress to amend the IRA to the effect that all federally recognized
tribes are included in the definitions section, and we have attached a
legislative proposal for your consideration. We greatly appreciate your
leadership and efforts to make clear that IRA benefits are available to
all federally recognized Indian tribes.
With our proposal, you will also see a provision to retroactively
ratify the Department of Interior's past decisions. For over 75 years
the Department of Interior has applied a contrary interpretation and
has formed entire Indian reservations and authorized numerous tribal
constitutions and business organizations under the provisions of the
IRA. NCAI believes it is essential for Congress to address in one
comprehensive amendment all of the problems created by the Supreme
Court in Carcieri.
The Secretary of Interior's Authority and Responsibility to Restore
Land in Trust for Indian Tribes
The principal goal of the Indian Reorganization Act was to halt and
reverse the abrupt decline in the economic, cultural, governmental and
social well-being of Indian tribes caused by the disastrous federal
policy of ``allotment'' and sale of reservation lands. Between the
years of 1887 and 1934, the U.S. Government took more than 90 million
acres from the tribes without compensation, nearly \2/3\ of all
reservation lands, and sold it to settlers and timber and mining
interests. The IRA is comprehensive legislation for the benefit of
tribes that stops the allotment of tribal lands, provides for the
acquisition of new lands, continues the federal trust ownership of
tribal lands, encourages economic development, and provides a framework
for the reestablishment of tribal government institutions on their own
lands.
Section 5 of the IRA, 25 U.S.C. Sec. 465, provides for the recovery
of the tribal land base and is integral to the IRA's overall goals of
recovering from the loss of land and reestablishing tribal economic,
governmental and cultural life:
The Secretary of the Interior is hereby authorized, in his
discretion, to acquire, through purchase, relinquishment, gift,
exchange, or assignment, any interest in lands, water rights,
or surface rights to lands, within or without existing
reservations, including trust or otherwise restricted
allotments, whether the allottee be living or deceased, for the
purpose of providing land for Indians.
Section 5 is broad legislation designed to implement the
fundamental principle that all tribes in all circumstances need a
tribal homeland that is adequate to support tribal culture and self-
determination. As noted by one of the IRA's principal authors,
Congressman Howard of Nebraska, ``the land was theirs under titles
guaranteed by treaties and law; and when the government of the United
States set up a land policy which, in effect, became a forum of
legalized misappropriation of the Indian estate, the government became
morally responsible for the damage that has resulted to the Indians
from its faithless guardianship,'' and said the purpose of the IRA was
``to build up Indian land holdings until there is sufficient land for
all Indians who will beneficially use it.''(78 Cong. Rec. 11727-11728,
1934.)
As Congressman Howard described these land reform measures:
This Congress, by adopting this bill, can make a partial
restitution to the Indians for a whole century of wrongs and of
broken faith, and even more important--for this bill looks not
to the past but to the future--can release the creative
energies of the Indians in order that they may learn to take a
normal and natural place in the American community. 78 Cong.
Rec. 11731 (1934).
Of the 90 million acres of tribal land lost through the allotment
process, only about 8 percent has been reacquired in trust status since
the IRA was passed seventy-five years ago--and most of this was
unallotted lands that were returned soon after 1934. Since 1934, the
BIA has maintained a very conservative policy for putting land in
trust. Still today, many tribes have no developable land base and many
tribes have insufficient lands to support housing and self-government.
In addition the legacy of the allotment policy, which has deeply
fractionated heirship of trust lands, means that for most tribes, far
more Indian land passes out of trust than into trust each year. Section
5 clearly imposes a continuing active duty on the Secretary of
Interior, as the trustee for Indian tribes, to take land into trust for
the benefit of tribes until their needs for self-support and self-
determination are met. The legislative history makes explicit the
history of land loss:
Furthermore, that part of the allotted lands which has been
lost is the most valuable part. Of the residual lands, taking
all Indian-owned lands into account, nearly one half, or nearly
20,000,000 acres, are desert or semidesert lands. . .. Through
the allotment system, more than 80 percent of the land value
belonging to all of the Indians in 1887 has been taken away
from them; more than 85 percent of the land value of all the
allotted Indians has been taken away. Readjustment of Indian
Affairs, Hearings before the House Committee on Indian Affairs
on H.R. 7902, 73rd Cong. 2nd. Session. at 17, 1934.
Even today, most tribal lands will not readily support economic
development. Many reservations are located far away from the tribe's
historical, cultural and sacred areas, and from traditional hunting,
fishing and gathering areas. Recognizing that much of the land
remaining to tribes within reservation boundaries was economically
useless, the history and circumstances of land loss, and the economic,
social and cultural consequences of that land loss, Congress explicitly
intended to promote land acquisition to meet the need to restore tribal
lands, to build economic development and promote tribal government and
culture. These paramount considerations are the fundamental obligations
of the federal trust responsibility and moral commitments of the
highest order.
In contemporary implementation of trust land acquisition, we would
like to raise three important points. First, while some controversies
exist, what is often misunderstood is that the vast majority of trust
land acquisitions take place in extremely rural areas and are not
controversial in any way. Most acquisitions involve home sites of 30
acres or less within reservation boundaries. Trust land acquisition is
also necessary for consolidation of fractionated and allotted Indian
lands, which most often are grazing, forestry or agricultural lands.
Other typical acquisitions include land for Indian housing, health care
clinics that serve both Indian and non-Indian communities, and land for
Indian schools.
Second, state and local governments have a role in the land to
trust process. The Interior regulations provide opportunities for all
concerned parties to be heard, and place the burden on tribes to
justify the trust land acquisition, particularly in the off-reservation
context. It is important to recognize that land issues require case by
case balancing of the benefits and costs unique to a particular
location and community. The regulations cannot be expected to
anticipate every situation that might arise, but they do provide an
ample forum for local communities to raise opposition to a particular
acquisition and they reinforce the Secretary's statutory authority to
reject any acquisition. State and local governments have an opportunity
to engage in constructive dialogue with tribes on the most sensible and
mutually agreeable options for restoring Indian land. In many cases, a
``tax loss'' of less than $100 per year is a minimal trade off for the
development of schools, housing, health care clinics, and economic
development ventures that will benefit surrounding communities as well
as the tribe. Whatever issues state governments may have with the land
to trust process, the Carcieri decision is not the place to address it.
Carcieri has created a problem of statutory interpretation that calls
for a narrow fix to ensure equitable treatment of all tribes.
Third, the chief problem with the land to trust process is the
interminable delays caused by inaction at the Bureau of Indian Affairs.
Too often have tribes spent scarce resources to purchase land and
prepare a trust application only to have it sit for years or even
decades without a response. In addition, during inordinate delays
tribes risk losing funding and support for the projects that they have
planned for the land, and environmental review documents grow stale.
Tribal leaders have encouraged the BIA to establish internal time lines
and checklists so that tribes will have a clear idea of when a decision
on their application will be rendered. Tribes should know if progress
is being made at all, and, if not, why not. While we understand that
the BIA is understaffed and that certain requests pose problems that
cannot be resolved quickly, allowing applications to remain unresolved
for years is unacceptable. The issue evokes great frustration over
pending applications and has been raised by tribal leaders at every
NCAI meeting.
U.S. Constitution Creates Presumption of Federal Jurisdiction over
Indian Tribes
Carcieri v. Salazar involved a challenge by the State of Rhode
Island to the authority of the Secretary to take land in to trust for
the Narragansett Tribe under Section 465 of the Indian Reorganization
Act (IRA). The opinion involves the definition of ``Indian'' in Section
479:
25 U.S.C. 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. (emphasis added.)
The Supreme Court's decision reversed the 1st Circuit and held that
the term ``now'' in the phrase ``now under Federal jurisdiction'' is
unambiguous and limits the authority of the Secretary to only take land
in trust for Indian tribes that were under federal jurisdiction on June
18, 1934, the date the IRA was enacted. The Court focused narrowly on
the meaning of the term ``now'' and accepted the State of Rhode
Island's assertion that the Narragansett Tribe was not ``under federal
jurisdiction'' in 1934.
After the Carcieri decision, the phrase ``under federal
jurisdiction'' takes on greater legal significance in the land to trust
process and in all applications of the IRA. The Secretary of Interior
will be faced with questions of whether an Indian tribe was ``under
federal jurisdiction'' on a date 75 years ago--a period of time when
federal administration was highly decentralized and for which record
keeping was often inconsistent. After significant research into the
legislative history of the IRA, NCAI strongly urges both Congress and
the Administration to recognize the constitutional roots of federal
jurisdiction in Indian affairs. The Department of Interior can and
should narrowly interpret the Carcieri decision, but NCAI strongly
urges Congress to reaffirm the principle of equal treatment of all
federally recognized tribes before the vexatious litigation begins in
earnest.
Although the nature of federal Indian law has varied significantly
during the course of U.S. history, there is a central principle that
has remained constant: jurisdiction over Indian affairs is delegated to
the Federal Government in the U.S. Constitution. The authority is
derived from the Indian Commerce Clause, the Treaty Clause, and the
trust relationship created in treaties, course of dealings and the
Constitution's adoption of inherent powers necessary to regulate
military and foreign affairs. See, United States v. Lara, 541 U.S. 193
(2004).
Under the Constitution, all existing Indian tribes are ``under
federal jurisdiction'' and were therefore under federal jurisdiction in
1934. However, federal jurisdiction over Indian tribes is limited by
important legal principles that were at the forefront of Congressional
consideration in 1934. The concept of limited federal jurisdiction over
Indians is not in frequent use today, but was common during Allotment
Era when assimilation was the goal of federal Indian policy. When
Congress began to pass laws that created U.S. citizenship and
allotments of private property for tribal Indians, constitutional
questions arose on whether those citizens could be treated legally as
``Indians'' for the purposes of the federal Indian laws. There was a
significant string of Supreme Court cases from the 1860's to the 1920's
that dealt with these questions, primarily in the context of the
federal criminal laws and liquor control laws related to Indians, and
restrictions on alienation and taxation of Indian property.
The thrust of these decisions is that Indian tribes and Indian
people remain under federal jurisdiction unless they have ceased tribal
relations or federal supervision has been terminated by treaty or act
of Congress. See, U.S. v. Nice, 241 U.S. 591, 598 (1916), ``the tribal
relation may be dissolved and the national guardianship brought to an
end; but it rests with Congress to determine when and how this shall be
done, and whether the emancipation shall at first be complete or only
partial.'' ``The Constitution invested Congress with power to regulate
traffic in intoxicating liquors with the Indian tribes, meaning with
the individuals composing them. That was a continuing power of which
Congress could not devest itself. It could be exerted at any time and
in various forms during the continuance of the tribal relation. . ..''
Id. at 600.
The origins of this constitutional legal doctrine are summarized in
Cohen's Handbook of Federal Indian Law (2005 ed.) Sec. 14.01[2-3],
regarding the prior status of non-citizen Indians and efforts to
assimilate Indians and terminate their tribal status. In this era the
Supreme Court repeatedly affirmed Congress's authority to terminate
federal guardianship, but found that Congress retained jurisdiction
over Indians despite allotment of tribal lands and the grant of U.S.
citizenship to Indians so long as tribal relations were maintained.
See, Hallowell v. United States, 221 U.S. 317 (1911); Tiger v. Western
Invest. Co., 221 U.S. 286 (1911); United States v. Rickert, 188 U.S.
432 (1903); United States v. Celestine, 215 U.S. 278 (1909); United
States v. Sandoval; 231 U.S. 28 (1913); Matter of Heff, 197 U.S. 488
(1905) overruled by United States v. Nice, 241 U.S. 591 (1916); U.S. v.
Ramsey, 271 U.S. 467 (1926).
The exclusion of Indians who had ceased tribal relations was a
significant limitation on the scope of the IRA. During the Allotment
Era, Indian tribes were under severe pressures from federal policies
and warfare, extermination efforts, disease and dislocation. Some
tribes had become fragmented and were no longer maintaining a social or
political organization.
This understanding comports with the unique legislative history of
the phrase ``now under federal jurisdiction'' in Section 479. During a
legislative hearing in 1934 when Commissioner of Indian Affairs John
Collier was presenting the IRA to the Senate Committee on Indian
Affairs, he was asked by Senator Burton Wheeler, the Chairman of the
Committee, whether the legislation would apply to Indian people who
were no longer in a tribal organization. Collier responded by
suggesting the insertion of the terms ``now under Federal
jurisdiction.'' See, Senate Committee on Indian Affairs, To Grant
Indians the Freedom to Organize, 73rd Cong., 2nd Session, 1934, 265-
266. By inserting these terms, Congress excluded the members of tribes
who had ceased tribal relations. As discussed in the hearing record,
those tribal members could only gain the benefits of the IRA if they
met the definition under the ``half-blood'' provisions. Commissioner
Collier submitted a brief to the Committee that reiterated the
principles of broad federal jurisdiction in Indian affairs under the
Constitution. Id at 265. This brief specifically quoted the Supreme
Court's decision in United States v. Sandoval; 231 U.S. 28 at 46
(1913):
Not only does the Constitution expressly authorize Congress to
regulate commerce with the Indian tribes, but long continued
legislative and executive usage and an unbroken current of
judicial decisions have attributed to the United States as a
superior and civilized nation the power and the duty of
exercising a fostering care and protection over all dependent
Indian communities within its borders, whether within its
original territory or territory subsequently acquired, and
whether within or without the limits of a state.
The practices and regulations of the Bureau of Indian Affairs
regarding the establishment of recognition for American Indian tribes,
found in 25 C.F.R. Pt. 83, are also based on these legal principles. 25
C.F.R. Pt. 83.7(b) and (c) are the requirements of continued tribal
relations. 25 C.F.R. 83.7(g) is the requirement that tribal status and
federal relations have not been revoked by Congress. Any tribe
recognized pursuant to Part 83 has already received a factual
determination that the tribe was under federal jurisdiction in 1934.
The only other available methods for organizing under the IRA are to be
recognized as Indians of one-half or more Indian blood, or to receive
federal recognition directly from Congress.
In short, the Carcieri decision's requirement that an Indian tribe
must be ``under federal jurisdiction'' in 1934 does not place a burden
of proof on the tribe to demonstrate that federal jurisdiction existed
or was actively exercised at that time. Instead, a burden is placed on
any party that would oppose the application of the IRA to a federally
recognized tribe. The presumption under the Constitution is that
federal jurisdiction over tribes always exists unless it has been
completely and equivocally revoked by an Act of Congress, or tribal
relations have ceased. Because the practices and regulations of the BIA
regarding federal recognition already include these exclusions, and
have prevented the recognition of tribes that have failed to maintain
tribal relations, there are no federally recognized tribes which were
not ``under federal jurisdiction'' in 1934.
Conclusion
While it is important for the Interior Department to properly apply
the principles we have discussed here, many tribes (and the Federal
Government) would still be subject to vexatious litigation that could
create uncertainty and delay tribal progress for years to come.
Legislation to address Carcieri is the only way to provide the
certainty needed to avoid that wasteful result NCAI urges the Committee
to work closely with Indian tribes and the Administration on
legislation to address Carcieri and allow all federally recognized
Indian tribes to enjoy the benefits of the IRA. We thank you for your
diligent efforts on behalf of Indian country on these and many other
issues.
25 U.S.C. Sec. 479:
The Act entitled ``An Act to conserve and develop Indian lands and
resources; to extend to Indians the right to form business and other
organizations; to establish a credit system for Indians; to grant
certain rights of home rule to Indians; to provide for vocational
education for Indians; and for other purposes'', approved June 18,
1934, is amended by:
Section 1: In Section 19 [25 U.S.C. Sec. 479] deleting in the
first sentence the words ``now under Federal jurisdiction.''
Section 2: Actions of the Secretary taken prior to the date of
enactment of this amendment pursuant to or under color of this
Act [25 U.S.C. Sec. 461 et. seq.] for any Indian tribe that was
federally recognized on the date of the Secretary's action are
hereby, to the extent such actions may be subject to challenge
based on whether the Indian tribe was federally recognized or
under federal jurisdiction on June 18, 1934, ratified and
confirmed as fully to all intents and purposes as if the same
had, by prior act of Congress, been specifically authorized and
directed.
The Chairman. Mr. Allen, thank you very much. As always,
you contribute a lot to our discussions and we appreciate your
being here.
Finally, we will hear from the Honorable Lawrence Long, who
is the Chairman of the Conference of Western Attorneys General
in Sacramento, California.
Mr. Long?
STATEMENT OF HON. LAWRENCE E. LONG, ATTORNEY
GENERAL, SOUTH DAKOTA; CHAIRMAN, CONFERENCE OF
WESTERN ATTORNEYS GENERAL
Mr. Long. Good afternoon, Mr. Chairman and Mr. Vice
Chairman, Members of the Committee.
My name is Larry Long. I am currently the Attorney General
of South Dakota and I serve also currently as the Chair of the
Conference of Western Attorneys General, or CWAG. CWAG thanks
you for the opportunity to address this important issue.
CWAG was organized many years ago by the attorney generals
of several States west of the Mississippi River to address
issues of common concern, largely environmental issues, water
law, and Indian law.
However, within the last two decades, the issues shared and
focused upon by Western States have gained increasing
prominence in States outside of the West. Consequently, several
States not historically thought of as western have associated
with CWAG. Among these are Vermont, Rhode Island, Connecticut,
North Carolina, Florida, Texas, Kansas, Oklahoma, Louisiana and
Iowa.
One of these issues which has expanded our membership is
the taking of land into trust by the Secretary of the Interior.
Each acquisition of land into trust by the Secretary on behalf
of a tribe or a tribal member has two immediate adverse
consequences on local, county and State government.
First, the land is exempt from real property taxes. Thus,
local government is deprived of the tax revenues needed to
perform its necessary functions at the precise time when
additional services may be required because of the acquisition.
Second, the land is exempt from local zoning, according to
the BIA regulations, thus depriving the local government of the
ability to regulate the use of the land consistent with the
overall zoning plan or to enforce public health and safety
goals.
The tax and zoning exempt status of trust land has
frustrated local government in States like South Dakota for
many years. But because the trust land acquisitions between
1934 and 1988 were almost always within an existing reservation
or within a former reservation, the acquisitions were not
routinely challenged and the basic character of the geographic
area did not change. It is the off-reservation acquisitions
which generate the most unanswered questions and thus the most
tension, controversy and litigation.
The first question which must be resolved as to each off-
reservation acquisition is whether the parcel is Indian Country
or not. Some courts have said yes; others have said no. The
answer to that question drives the answers to several more
questions, including: (A) which government has jurisdiction
over crimes committed on the land?; (B) which government has
authority to impose and collect taxes on transactions which
take place on the land? These taxes will likely include sales
tax, gross receipts tax, cigarette taxes, motor fuel taxes and
income taxes; (C) which government has the authority to control
hunting and fishing on the land? Hunting and fishing issues can
be some of the most volatile issues local governments will ever
face; (D) which government has authority to adjudicate civil
disputes which arise on the land, such as tort claims or breach
of contract claims; and last, but certainly not least, which
government can authorize or regulate gaming on the land?
All of these issues are serious and legitimate, but are not
easily resolved or answered or capable of negotiated
resolution. Thus, there is litigation.
The CWAG States urge the Committee to use the Carcieri
decision to review and examine the entire process of taking
land into trust on behalf of tribes or tribal members. State
and local governments have legitimate interests which are
impacted by each acquisition of land into trust, whether it be
on-reservation or off-reservation. The entire policy should be
reexamined, keeping in mind the real and legitimate interests
of local government.
Thank you.
[The prepared statement of Mr. Long follows:]
Prepared Statement of Lawrence E. Long, Attorney General, South Dakota;
Chairman, Conference of Western Attorneys General
Mr. Chairman:
I understand that this hearing was prompted by the recent decision
of the Supreme Court in Carcieri v. Salazar,___U.S.___, 129 S.Ct. 1558
(2009). There are those who think that Carcieri should be ``fixed'' and
those who oppose a ``fix''. We are not here today to talk about a
``fix,'' but to put this matter into the larger context of the
relationship among States, Tribes, and local units of government as
that relationship is impacted by the taking of land into trust.
With that as background, we are happy to take this opportunity, as
one of the major stakeholders, to discuss the circumstances in which it
is appropriate for the Department of the Interior to invoke its
statutory authority to take land into trust.
Statutory Foundation for the Authority to Take Land Into Trust
The primary statute which authorizes the taking of land into trust
was enacted in 1934 as part of the Indian Reorganization Act. 25 U.S.C.
465 provides, in part, that:
The Secretary of the Interior is hereby authorized, in his
discretion, to acquire . . . any interest in lands . . . within
or without existing reservations . . . for the purpose of
providing land for Indians.
For the acquisition of such lands . . . there is authorized to
be appropriated . . . a sum not to exceed $2,000,000 in any one
fiscal year.. . .
As can be seen, the text is written very broadly, and has the
effect of allowing the Secretary to acquire lands ``for the purpose of
providing lands for Indians'' either within or without reservations.
While the text of the 1934 statute was broadly written, members of
Congress likely expected it to be narrowly applied, and that its
fundamental purpose, as articulated by Senator Wheeler and
Representative Howard, the two main sponsors, was to assist truly
landless or virtually landless Indians by acquiring land for them by
way of limited Congressional appropriations. See 78 Cong. Rec. 11,123,
11,134 (Comments of Sen. Wheeler); 78 Cong. Rec. 11,726-11,730
(Comments of Rep. Howard); House Report No. 1804, 73rd Cong., 2d Sess.
(May 28, 1934) at 6-7. John Collier, the Commissioner of Indian
Affairs, affirmed that the purpose of the section, as it was finally
revised, was to provide for the purchase of land for landless Indians.
(``The acquisition of land for landless Indians is authorized, with two
million dollars a year appropriated for this purpose.'' 78 Cong. Rec.
611, 743 (1934) (Letter of John Collier.))
This original purpose has been abandoned. Few of the acquisitions
of land in trust within the last half century have been by way of
federal purchase of land through congressional appropriation for
``landless Indians'', except perhaps in the case of restored tribes. In
almost all of the cases since 1950, the tribe or individual is already
the fee title owner of the land when it, he or she seeks to place that
land into trust. 64 Fed. Reg. 17574, 17576 (April 12, 1999).
An Enormous Amount of Land Remains in Trust or has Been Placed in Trust
As of 1997, the last year for which statistics are available, there
were over 56,000,000 acres of land in trust in 36 states. See,
Department of the Interior, Lands under the Jurisdiction of the Bureau
of Indian Affairs as of December 21, 1997.
There are two principal means by which this land came into trust
status. First, at the time of the breaking up of the reservations in
the late 1800's, a significant amount of the original tribal land was
converted into allotted trust land for individual Indians. Allotted
land has a special status in law, and remains Indian country, even if
the reservation from which it derived has been terminated. 18 U.S.C.
1151(c). It is estimated that approximately 47,000,000 acres of
allotted land remain in trust status as of 1997. Second, land can be
taken into trust under 25 U.S.C. 465, the statute discussed immediately
above. We estimate that there were 9,000,000 acres of such statutory
trust land in 1997, which, added to the 47,000,000 acres of allotted
trust land, equals 56,000,000 acres.
To put the 56,000,000 acres into perspective, the state of Maryland
consists of about 8,000,000 acres and the state of Rhode Island
consists of about 1,000,000 acres. The entire area of New England,
including Connecticut, Maine, Massachusetts, New Hampshire, Rhode
Island and Vermont encompasses about 46,000,000 acres. North Dakota is
comprised of about 45,000,000 acres and the state of Washington
includes about 46,000,000 acres.
It is notable that the identity of lands which have trust status is
not stable, with a significant amount of land being acquired and a
significant amount leaving trust status each year. In 1997, the BIA
reported acquiring about 360,000 acres of land in trust, and disposing
of about 260,000 acres, for a net increase of about 100,000 acres.
Government Accountability Office, Indian Issues: BIA's Efforts to
Impose Time Frames and Collect Better Data Should Improve the
Processing of Land Trust Applications (GAO-06-781) (hereinafter Indian
Issues) at 9 n.8, available at http://www.gao.gov/new.items/d06781.pdf.
See also, 64 Fed. Reg. 17574, 17575 (April, 1999) (forecasting annual
requests for 6,594 on reservation and 278 off reservation trust
acquisitions).
Since 1997, Indian gaming revenues have increased at a rapid rate.
The National Indian Gaming Commission reported that net revenues from
Indian gaming increased from $8.5 billion to $26.0 billion from 1998 to
2007. As a consequence, tribes have significantly greater funds
available to purchase land, and seek trust status for that land, than
was true in 1934, when the enabling statute was enacted (25 U.S.C.
465), or even in the 1980's and 1990's when the first implementing
regulations, now set out at 25 C.F.R. Section 151, were written.
The ``Why'' of it--What is the Rationale for Taking Land in Trust in
the 21st Century?
As government theorists, including President Obama, have noted,
government programs sometimes persist long after their purpose has been
accomplished, or persist even though they do little or nothing to reach
the original goal of the enactment at issue.
We suggest that the land into trust program, like every other
government program, merits a thorough review so as to identify the
goals which can reasonably be accomplished by the program, so that the
program can be directed so as to accomplish those goals.
The most common justification offered for the land into trust
program is that the acquisition of land in trust for tribes enhances
their economic position. The evidence, unfortunately, strongly refutes
this thesis and suggests that in many instances, the acquisition of
land in trust for tribes inhibits economic development.
The most detailed study to date of the economic effect of taking
land in trust is Terry L. Anderson, Sovereign Nations or Reservation?:
An Economic History of American Indians (Pacific Research Institute for
Public Policy (1995)). After controlling for land quality to the extent
allowed by the available statistics, Anderson concluded that ``the data
show that the value of agricultural output on individual [trust] lands
is significantly lower than on fee simple lands and that tribal trust
lands do even worse, controlling for variables that might influence
output.'' Id. at 133. Anderson also found that the ``per-acre value of
agricultural output was found to be 85-90 percent lower on tribal trust
land than on fee simple land and 30-40 percent lower on individual
trust land than on fee simple land.'' Id. at 127. The author continued
``the magnitude of these numbers supports the contention that trust
constraints on Indian land reduce agricultural productivity.'' Id.
The reasons that trust status inhibits economic development are
clear, and are inherent in the idea of maintaining the property of
another government or person in trust:
The bureaucratic regulations placed on individual trust lands
increase the cost of management decisions compared to fee-
simple land. First, and perhaps most important, the restriction
on alienation or other encumbrances constrains the use of land
as collateral in the capital market. Banks making loans cannot
easily sell the land to collect on defaulted loans, and even
the government cannot take the land in return for delinquent
taxes.
Id. at 121-22.
A congressional committee report makes a similar point with regard
to individual home ownership. According to the report:
Continued deplorable housing conditions for low income, Native
American families greatly concerns the committee. In many
cases, these deplorable conditions are attributable to several
factors: the unique nature of Native American trust lands,
private industry's inability to understand the special Trust
land status, and the lack of cost-effective ways to build on
Indian lands. Nevertheless, considerable money is appropriated
annually to address these concerns with little result.
House Report 104-628, Departments of Veterans Affairs and
Housing and Urban Development and Independent Agencies
Appropriation Bill, 1997 Committee Report 1, page___(emphasis
added).
See also, Jeremy Fitzpatrick, The Competent Ward, 28 Am. Indian L.
Rev. 189, 195 (2003) (``unnecessary restrictions on the conveying and
leasing of land will often inhibit resource development with respect to
allotted [trust] land.'') But see Steven Cornell and Joseph P. Kalt,
What Can Tribes Do? Strategies and Institutions in American Indian
Economic Development, page 41 (1993) (acknowledging that there are
several disadvantages to trust status, but concluding, after a brief
discussion, that the ``advantages of trust status outweigh those of fee
status'').
Other reasons have also been offered to justify the taking of land
into trust. For example, some applicants have argued that a generalized
treaty right exists, but, so far, none has been located. Some have
argued that the genuine historic oppression of Native Americans justify
a land in trust program, but other races have been subjected to such
oppression, even slavery, and lack the benefit of such a program. It
has also been argued that Native Americans have a special relationship
to the land. The answer often given is that those of other races
likewise have an abiding attachment to their lands, whether the lands
are developed for the purpose of raising a family or maintained in a
relatively wild state.
Having said that, it is likewise clear that in some instances there
is a genuine goal which can be identified and which can be reached.
Some acquisitions of land for the purpose of gaming, for example, are
likely to lead to substantial profits for the tribes. The irony, of
course, is that sometimes these projects are those which raise the most
controversy from the non-Indian community because of their influence on
the surrounding area.
In sum, we do not say today that there is no genuine rationale for
a land into trust program, but it can be said that there is a lack of a
clearly articulated and well-justified reason for this massive
governmental program and that any reform of the program ought to seek
to articulate its goals in a concrete and ascertainable way.
The Interests of the States and Local Units of Governments: Why they
Sometimes Oppose Land Into Trust Applications
No comprehensive study has been done of the rate at which land into
trust applications are opposed by states and local units of government,
but the percentage of applications which the States oppose appears to
be quite low. The low rate is driven by more than one factor, but the
desire to ``get along'' with the Tribes is certainly one factor, and
the unlikelihood of a successful opposition is certainly another.
There are, nonetheless, real interests at stake which justify, in
the view of the States and local governments, opposition to land into
trust applications.
Tax Loss
Every trust acquisition, by the terms of 25 U.S.C. 465, removes the
ability of the States and local units of government to tax the land.
The property tax is, however, the major source of local funding for
schools and local governments generally, so repeated acquisitions of
land in trust can seriously undermine local governments. This situation
is aggravated by the refusal of the BIA to consider the cumulative
effect on the tax rolls of taking new land into trust. Thus, even if
half the land in a county is already in trust, a new 100-acre
acquisition is analyzed as if it were the first acquisition in trust in
the county. See, e.g., Shawano County, Wisconsin, Board of Supervisors
v. Midwest Regional Director, 40 IBIA 241, 249 (2005) (``analysis of
the cumulative effects of tax loss on all lands within Appellants'
jurisdictional boundaries is not required.'')
Loss of Zoning Authority
Federal regulations assert that each acquisition of land in trust
deprives State and local government of zoning authority. 25 C.F.R.
1.4(a). As the Supreme Court has long maintained, the exercise of such
authority is one of the primary ways in which the community can
maintain its integrity.
Jurisdictional Uncertainty
Beyond the loss of the ability to tax imposed by the very terms of
25 U.S.C. 465, and beyond the terms of the loss of zoning authority
imposed by 25 C.F.R. 1.4(a), there are large realms of jurisdictional
uncertainty created, especially when an acquisition of land in trust is
imposed off reservation.
Some courts have found that merely taking land into trust creates
``Indian country'' or reservation, even though 25 U.S.C. 467 requires
the Secretary to invoke his authority under that statute to convert
land in trust into a reservation. Other courts have found to the
contrary, or have left that question up in the air. Compare United
States v. Roberts, 185 F.3d 1125 (10th Cir. 1999) (trust land
constitutes Indian country) with United States v. Stands, 105 F.3d 1565
(8th Cir. 1997) (trust status alone is insufficient to create Indian
country); South Dakota and Moody Country v. United States Department of
the Interior, 487 F.3d 548 (8th Cir. 2007) (determining on rehearing
not to decide the question).
The failure of affirmative federal law to resolve the issue of the
status of off reservation land taken into trust has created, and will
continue to create, tension between the Indian and non-Indian
communities in which the acquisitions occur with regard to both
criminal and civil matters.
Neither the Land in Trust Statute nor the Regulations Provide Adequate
Guidance to the Decision Makers
There are, it seems clear, conflicting interests of the States and
local units of government on one side, and the Tribes on the other
side, in at least some land into trust applications. One problem faced
by both the States and the Tribes is the failure of either the statute
or the regulations to provide substantial guidance on what lands should
be taken into trust.
The key land in trust statute, 25 U.S.C. 465, provides very
generally, as noted above, that the Secretary of the Interior is
``hereby authorized, in his discretion, to acquire . . . lands . . .
for the purpose of providing land for Indians.'' The statute thus
contains virtually no guidance to the decision maker.
Furthermore, the regulations fail to fill the gap left by the
statute. The first regulations applicable to the taking of land in
trust were not promulgated until 1980, evidencing the low level of
acquisitions and their then non-controversial nature.
The regulations are now found at 25 C.F.R. 151. Unfortunately, they
provide little guidance, and impose virtually no limits on the lands
which might be taken into trust. The GAO has found that the
``regulations provide the BIA with wide discretion'' and that the BIA
``has not provided clear guidance for applying them.'' Indian Issues,
supra, at 17. The GAO continued:
For example, one criterion requires BIA to consider the impact
of lost tax revenues on state and local governments. However,
the criterion does not indicate a threshold for what might
constitute an unacceptable level of lost tax revenue and,
therefore, a denial of an application. Furthermore, BIA does
not provide guidance on how to evaluate lost tax revenue, such
as comparing lost revenue with a county's total budget or
evaluating the lost revenue's impact on particular tax-based
services, such as police and fire services.
The GAO set out a table which analyzed the regulations set out in
25 C.F.R. 151. Excerpts from the table, illustrating the main flaws in
the guidance, are set out below:
------------------------------------------------------------------------
Criteria GAO's analysis of the criteria
------------------------------------------------------------------------
The need of the individual Indian or [T]he regulations do not define or
the tribe for additional land. provide guidance on the type of
need to be considered and how the
level of need should be
evaluated.
The purposes for which the land will The regulations do not provide any
be used. guidance on how the criterion
applies to applications from
individual Indians.
If the land is to be acquired for an No guidance in the regulations on
individual Indian, the amount of how the amount of land owned by
trust or restricted land already an individual Indian should be
owned by or for that individual and weighted against their need for
the degree to which the individual assistance in handling their
needs assistance in handling business matters.
business matters.
If the land to be acquired is in No guidance in the regulations on
unrestricted fee status, the impact what constitutes an acceptable
on the state and its political level of tax loss or how to
subdivisions resulting from the evaluate the tax loss from
removal of the land from the tax approving an application.
rolls.
Jurisdictional problems and No guidance in the regulations on
potential conflicts of land use what types of jurisdictional and
that may arise. land use concerns might warrant
denial of the application.
If the land to be acquired is in fee No guidance in the regulations on
status, whether BIA is equipped to how the BIA should evaluate its
discharge the additional ability to discharge additional
responsibilities resulting from the duties.
acquisition of the land in trust.
The extent to which the applicant No guidance provided on the amount
has provided information that or type of information needed by
allows the Secretary to comply with BIA to make the required
environmental requirements, environmental determinations.
particularly NEPA.
------------------------------------------------------------------------
Id. at 18. Furthermore, as the GAO points out, the criteria are not
``pass/fail'' and ``responses to the criteria'' do not even
``necessarily result in an approval or a denial of an application.''
Id.
The Process Lacks an Impartial Decision Maker
In most cases, the initial decision maker is the local
Superintendent of the Agency. The Superintendent, of course, is
expected to be, and is almost inevitably, a strong advocate for tribal
interests. In some cases, the Superintendent is actually a member of
the tribe. The decision is then subject to review by the Regional
Director, who succeeded to his or her position, presumably, by
achieving success as a Superintendent. The final level of review is the
in the Interior Board of Indian Appeals, which is highly deferential to
the decision makers below.
The system is structured such that the States and local units of
government do not have the perception of being given an impartial
hearing, even though their very governmental jurisdiction is at stake.
Conclusion
The Carcieri decision provides this Committee with a unique
opportunity to re-examine the land into trust process and, in
cooperation with all of the stakeholders, to provide a twenty-first
century rationale for trust land acquisitions. Further, the Committee
has an opportunity to reform the structure of trust land decision
making to assure that the process both appears impartial and fair, and
is impartial and fair.
The Chairman. Mr. Attorney General, thank you very much.
I am trying to just get my hands around this issue some, so
let me ask a couple of questions.
Do we have a list of--they were hearkening back to 1934.
Correct? Is there a list of recognized tribes for 1934 that any
of you are aware of?
Mr. Lazarus. There was a list compiled shortly, during the
period and the immediate aftermath of the----
The Chairman. Right after that?
Mr. Lazarus. Yes.
The Chairman. Okay.
As I understand it, there are about 90 tribes, maybe
perhaps 90 to 100 tribes that would be affected by this, after
1934. And then the other question would be what about all the
tribes that were recognized prior to that time, do they have
consequences as a result of this with respect to other elements
of the decision?
So there are, as I understand the testimony and the
information, there are about 56 million acres of trust land in
the Country, Indian trust land. Is that correct?
Mr. Long. I believe so, Mr. Chairman.
The Chairman. And much of that came into the hands of the
Federal Government as a result of the dissolution of
reservations and so on. And then there is trust land that is
bought and sold every year; land coming into trust, land going
out of trust by tribes making judgments about these things. Is
that correct?
So it seems to me that this decision casts a large question
mark over a lot of issues, perhaps the issues of law
enforcement. Are these trust lands, lands that were acquired by
a tribe who was not recognized in 1934? We have since set up a
tribal recognition provision in law and recognized tribes who
will then have Indian trust land and perhaps there will have
been crimes committed on those lands, Indian land, and
attorneys for those who have been convicted may well now go
back and say that was not Indian land. The Supreme Court
decision in Carcieri says it was not.
So I just mention that as one example. But there are so
many other examples you can think of.
Tell me, what do you think are the consequences of us doing
nothing at this point? Let's assume that the Supreme Court
decision stands. We do nothing.
The consequences of that, Mr. Allen?
Mr. Allen. Well, Mr. Chair, in my opinion it opens up a
Pandora's Box for the lawyers. You do nothing, you actually
initiate a stimulus bill for the lawyers.
I can tell you that--and I don't mean to make a joke out of
it, Mr. Chair. But the fact is that there are still a lot of
folks out there, for different reasons, they may not be anti-
Indian. They just may be anti-tribal government in our
jurisdiction. They can't accept it in their own minds that we
have the authority that we have, and want to call it into
question whether or not we have the authority.
We have agreements, as I mentioned earlier, all over the
United States. We have law enforcement agreements that are in
place. We have courts that recognize and respect each other
with regard to jurisdiction. All those kinds of issues are
called into question, much less the financial questions that
are in place with regard to leveraging loans and bonds for
activities on our reservation.
So it opens up a Pandora's Box and I think will just cause
a lot of problems, and to make matters worse, it creates more
reasons for the bureaucracy to go slow and do nothing, and
basically punt in terms of their responsibility to the tribes.
The Chairman. My own view is I think the Supreme Court's
decision was a misapplication of the law as it was written. And
so I don't think that this Committee will do nothing. I don't
think this Congress will do nothing. I think we have the
responsibility to address this decision that I believe is
wrong.
But let me ask Mr. Lazarus, the way the decision is
interpreted--of course, this is a decision about one tribe in
Rhode Island, I think, with 31 acres. But it has ramifications
extending far beyond that.
So what does the court's decision, what does it mean with
respect to lands that were taken into trust after 1934?
Mr. Lazarus. Well, it creates a great deal of uncertainty.
We don't know exactly what it is going to mean. And that is one
of the worst things that can happen with respect to real
property. The whole system of real property going back to the
English common law is basically to try and create certainty of
title so that land moves to its highest and best use.
The Chairman. Is it reasonable to assume that some of this
land taken into trust is perhaps used as collateral for the
tribes to engage in some loans to build projects? All of a
sudden the question of that collateral is did that land
really--was it really in the hands of the tribe? Was it taken
into trust appropriately?
Mr. Lazarus. Absolutely right, Senator. Beyond that, the
way the court structured its decision, what it is doing is it
has made a determination about the definition of the term
Indian in the Act. And so any other provision of the Act that
is also linked to the definition of Indian also can potentially
be the subject of litigation now.
And I would agree with Chairman Allen that the greatest
beneficiary of inaction will be the host of lawyers on both
sides of this issue who will take this to court and the losers
will be both the tribes, but also the Federal Government which
is going to be immersed in very, very expensive and time-
consuming controversies until something is done to clarify the
situation.
Mr. Allen. Remember, Mr. Chairman, the IRA Act not just
empowered the Secretary to take land into trust, but it
empowered the Secretary to coordinate with tribes to reorganize
their government and to establish corporations, the Section 17
corporation. If we have Section 17 corporations, and many of us
do, that is our business arm for our government, and that is
the vehicle that we have all of our financial packages for our
various operations. Now, it calls that into question whether or
not those are legitimate corporations and are those loans and
those transactions legitimate.
The Chairman. Senator Tester?
Senator Tester. Thank you, Mr. Chairman.
I get the feeling by the questions that you asked that I
don't know if we are going to get answers totally to the same
question I had, which is very similar to yours.
The tribes that were recognized before 1934, and I will
direct it to Mr. Lazarus, do we know how it is going to impact
them on land they acquired after 1934?
Mr. Lazarus. For tribes where there can be no doubt as to
their status as of 1934 as being under Federal jurisdiction----
Senator Tester. Right.
Mr. Lazarus.--will be less directly affected by this court
decision. I think that is a fair statement. But as you pointed
out, Senator, there is at least one tribe in your State that is
in the now gray area, so to speak. But beyond that, I think,
Senator, it is important to recognize the larger context in
which this case comes up.
There is now a Supreme Court that is very hostile to issues
of Indian sovereignty and Indian governments generally. And
there is going to be--this decision will encourage other kinds
of challenges to tribal sovereignty and self-determination
beyond just the scope of Carcieri. And I think a signal from
the Congress reaffirming its commitment to Indian self-
determination by taking on the Carcieri decision would be a
welcome signal to the court that this is the Congress's intent.
Senator Tester. The Little Shell Tribe is the tribe that we
refer to. They are also known as landless Indians.
Mr. Lazarus. Yes.
Senator Tester. If they get under this settlement or
decision, if they get recognized, they still would be landless
Indians.
Mr. Lazarus. The question of whether the Secretary could
take land into trust on their behalf would be clouded with
significant doubt.
Senator Tester. Oh, so there is some potential that they
could----
Mr. Lazarus. Well, the question would be whether they could
show that notwithstanding the failure to be recognized in 1934,
they were nonetheless under Federal jurisdiction in 1934.
Senator Tester. I've got you.
What about land swaps that could occur--and this can go to,
I don't mean to occupy Mr. Lazarus's time entirely, but what
about land swaps? What if a tribe wanted to swap some land out?
Take some land out of trust and put some land in trust that
hadn't been in trust before. Would it prevent that?
Mr. Lazarus. That would depend on the nature of the tribe.
That is the problem.
Senator Tester. If they were recognized before 1934 could
they do that?
Mr. Lazarus. If they were under Federal jurisdiction in
1934, they ought to continue to be able to do that.
Senator Tester. Okay.
Mr. Lazarus. That would be right.
Senator Tester. Okay. I think it was Mr. Long that talked
about the fact that, and correct me if I am wrong, that this
really wasn't an issue until about 1984 or 1985?
Mr. Long. Eighty-eight.
Senator Tester. Eight-eight. Okay. Why is that?
Mr. Long. My view is the Indian Gaming Regulatory Act.
Senator Tester. And that is when it came into effect?
Mr. Long. Yes.
Senator Tester. And it was at that point in time where land
was starting to be put in trust that was away from the
reservations?
Mr. Long. It became much more attractive to have off-
reservation land acquisitions placed in trust for purposes of
establishing gaming under the Indian Gaming Regulatory Act.
Senator Tester. Do any of you have any numbers as to how
many times that has occurred since 1988? I am talking about
off-reservation land that was acquired exclusively for gaming.
Mr. Allen. Three.
Senator Tester. Three of them?
Mr. Allen. It is a very high bar to get over, and the
Governor has a veto. People forget about the Indian Gaming
Regulatory Act, Section 20, which is the process to take land
into trust for the purposes of exercising the gaming activity,
you have to pass a number of criteria that is far beyond what
the normal land into trust process is. And the Governor has to
agree.
Senator Tester. Okay. All right.
That is all for now. I appreciate the folks who provided
the testimony. I agree with the Chairman. I think we need to do
something to clarify.
The Chairman. I am trying to understand just a bit. The
Narragansett Tribe is what was involved here in the decision.
And my understanding is the tribal relationship with the
Federal Government, the BIA, it was determined that the tribe
has existed autonomously since the first European contact and
had documented history going back to 1614. Is that correct?
Mr. Lazarus. That is correct.
The Chairman. And so despite that documentation with the
tribe's relationship with the Federal Government, how does that
impact with respect to the decision here?
Mr. Lazarus. Senator, I would say that the way the Supreme
Court decided to handle this particular issue really leaves
open the question of whether the Narragansett can go back in
another forum at another time to show that indeed they were
under Federal jurisdiction in 1934. It is just that the way the
case was litigated, that question never came up because nobody
thought that that was the relevant inquiry. And so when the
Supreme Court looked at it, it said nobody's saying that they
were under Federal jurisdiction in 1934, so for the purposes of
this decision, we will take that at face value and we are just
going to reverse the lower court.
The Chairman. But my understanding is there isn't even a
comprehensive list of tribes under Federal jurisdiction in
1934.
Mr. Lazarus. That is correct, and the reason for that is
that what we know from experience is that there have been
mistakes made on the subject over and over and over again, and
lots of tribes that have been recognized since 1934 were in
fact under Federal jurisdiction in 1934.
I can't emphasize enough that nobody has really ever felt
that that phrase was so meaningful until the day after Carcieri
was decided. And that is why it is going to be the subject of
tremendous litigation going forward in the absence of
congressional action.
The Chairman. Well, that is the concern, the dramatic
amount of litigation on a whole range of issues, as I
mentioned, law enforcement and commercial property and a whole
range of issues.
Mr. Long, in your written testimony you indicate that the
rationale for taking land into trust was to purchase land for
landless Indians. Is it the Conference's position that the
Federal Government should limit tribal land acquisitions only
to tribes that are landless? I am trying to understand what you
were saying there.
Mr. Long. Well, I think that was the original purpose, Mr.
Chairman. Let me use for an example the county in which I grew
up, which is Bennett County in southwestern South Dakota. It is
a checkerboard area. It was originally part of the Pine Ridge
Reservation. The surplus land was purchased in 1912 from the
Federal Government. It was opened for non-Indian homesteading.
My grandparents went out there and homesteaded. About one-third
of that county is still checkerboarded and is still held in
trust primarily by tribal member allottees.
My view, which I think is reflected in the Indian
Reorganization Act was that the $2 million which was supposed
to be appropriated every year to the Secretary to buy land was,
at least in large part, the design was that the Secretary was
supposed to go back into areas just exactly like that and buy
back the deeded land that had once belonged to the tribe or to
individual Indians and reacquire it, place it back in trust,
and consolidate the tribal land holdings. That in fact was
never done, but that was the original purpose.
Right now, and the point we attempt to make in the written
remarks, is that the Secretary has virtually unlimited
discretion in terms of what he takes, when or where and under
what circumstances he takes it.
The Chairman. That is correct, and it is a case since
Indian gaming began that there has been some appetite for off-
reservation gaming, which then moves some to want to find a
parcel in downtown Manhattan. But I do think, aside from the
gaming question--and I am not a big fan of off-reservation
gaming, and I would think many on this Committee are not. Aside
from that, there are legitimate reasons for the commerce needs
of tribes to engage in movement of trust lands, purchasing
some, disposing of others and so on.
And I just would ask the question, since the Supreme Court
has made this ruling, issued the ruling, are there any
consequences of it out there? Are you seeing any consequences,
any challenges?
Mr. Allen, can you describe it to us?
Mr. Allen. Not to my knowledge yet, Mr. Chairman. I know
that the Bureau stepped back in terms of what it should be
doing. My understanding is they feel that as long as they have
what they believe is the nexus of the existence of the tribe
back into pre-1934, then they have a legitimate right to have
that land be taken into trust.
The Chairman. Right.
Mr. Allen. But it requires an additional test to know
whether or not that is true, going back to treaties, or
treaties that weren't confirmed, or statutes or executive
orders pre-dating 1934. So they have to look at those kinds of
issues in terms of what they can do. But it still creates that
gray area out there.
So I think that it is still so gray that we need to fix it
so that there is no doubt whatsoever. And then whether it is
100 or more or less of tribes that are negatively affected by
reacquiring their homelands, they still have to have that equal
right.
And I also would point out that sometimes they get caught
up in the tax base. Mr. Long made a comment about you take land
into trust, you take it off the tax base. Quite frankly, that
happens in America. Look at your municipalities, your
townships, your county governments in terms of how those lands
get taken and brought in, and often one tax base into another
tax base.
We are a tribal government. We are a government like them.
You don't tax our land base. We don't tax your land base. That
is the way it works. So all we are doing is asking for that
equal treatment. But we are having to buy our land back at a
premium market price, where it was taken from us at a steal.
The Chairman. It is the case that this ruling, the kind of
a ruling that is dealing with the smaller State, small parcel
of land, provides great legal uncertainty across the Country in
many different circumstances.
So I think we need to find a way to address that
uncertainty. It is almost required for us to address that
uncertainty or we will create some very significant problems
for tribal governments across the Country.
What I would like to do is this. I was going to recess, but
here is what I think we should do. A vote is underway over in
the Senate. Senator Tester and I both have to go and vote. What
we wanted to do today was to have a hearing with just three
witnesses to begin a discussion.
Mr. Lazarus, you and several others across the Country who
know a lot about this, I know of almost no one who started
studying Indian law as a junior in high school, but good for
you.
Mr. Lazarus. It is a family tradition. My father has
practiced in the area for I think 58 years now.
The Chairman. All right.
What we would like to do is to call on you and a few others
around the Country who have a substantial amount of expertise
and have researched these issues.
Mr. Allen and the National Congress is a great resource for
us.
Mr. Long, the Attorneys General, are people we respect
because you are out there every day understanding what is
happening in the various States.
What I would like to do is for our Committee to be able to
address additional questions to the three of you. We will be
having additional opportunities for hearings, and we would say
to all of those who watch these hearings from Indian Country
that this Committee is going to find a way to try to remove the
uncertainty. The uncertainty will be very difficult for Indian
tribes across the Country. We are going to find a way to
address it.
We will go through that carefully and make judgments about
that, and we will consult with the three of you as we do.
So let me thank you very much. Some of you have come some
long way to testify, and we will call on you again.
This hearing is adjourned.
[Whereupon, at 3:03 p.m., the Committee was adjourned.]
A P P E N D I X
Prepared Statement of Robb and Ross Law Firm, an Association of
Professional Corporations
Attachments
______
Prepared Statement of Hon. Richard Blumenthal, Attorney General, State
of Connecticut
______
Prepared Statement of Bruce S. ``Two Dogs'' Bozsum, Chairman, Mohegan
Tribe of Indians of Connecticut
______
Prepared Statement of Cheryl Schmit, Director, Stand Up For California
______
Prepared Statement of Mike McGowan, Chairman, CSAC Housing, Land Use,
and Transportation Committee and Indian Gaming Working Group
______
Prepared Statement of Donald Craig Mitchell, Attorney, Anchorage,
Alaska
Mr. Chairman, members of the Committee, my name is Donald Craig
Mitchell. I am an attorney in Anchorage, Alaska, who has been involved
in Native American legal and policy issues from 1974 to the present day
in Alaska, on Capitol Hill, and in the federal courts.
From 1977 to 1993 I served as Washington, D.C., counsel, then as
vice president, and then as general counsel for the Alaska Federation
of Natives, the statewide organization Alaska Natives organized in 1967
to urge Congress to settle Alaska Native land claims by enacting the
Alaska Native Claims Settlement Act (ANCSA). From 1984 to 1986 I was
counsel to the Governor of Alaska's Task Force on Federal-State-Tribal
Relations and authored the Task Force's report on the history of Alaska
Native tribal status that the Alaska Supreme Court later described as
an analysis of ``impressive scholarship.'' And from 2000 to 2009 I was
a legal advisor to the leadership of the Alaska State Legislature
regarding Alaska Native and Native American issues, including the
application of the Indian Gaming Regulatory Act in Alaska.
I also have written a two-volume history of the Federal
Government's involvement with Alaska's indigenous Indian, Eskimo, and
Aleut peoples from the Alaska purchase in 1867 to the enactment of
ANCSA in 1971, Sold American: The Story of Alaska Natives and Their
Land, 1867-1959, and Take My Land Take My Life: The Story of Congress's
Historic Settlement of Alaska Native Land Claims, 1960-1971. Former
Secretary of the Interior Stewart Udall has described Sold American as
``the most important and comprehensive book about Alaska yet written.''
And in 2006 the Alaska Historical Society named Sold American and Take
My Land Take My Life two of the most important books that have been
written about Alaska.
I appreciate the opportunity to submit testimony on the subject of
executive branch authority to acquire trust lands for Indian tribes
subsequent to the decision of the U.S. Supreme Court in Carcieri v.
Salazar, Slip Opinion No. 07-526 (February 24, 2009).
Section 5 of the Indian Reorganization Act (IRA), Pub. L. No. 73-
383, 48 Stat. 984, delegates the Secretary of the Interior authority to
acquire land, and to take title to the acquired land into trust, ``for
the purpose of providing land for Indians.'' (emphasis added).
In Carcieri five-members of the Court--Chief Justice Roberts and
Justices Thomas, Scalia, Kennedy, and Alito--held that the 73d
Congress, which in 1934 enacted the IRA, intended the phrase
``recognized tribe now under Federal jurisdiction'' (emphasis added) in
the section 19 of the IRA definition of the term ``Indian'' to prohibit
the Secretary of the Interior from acquiring land for an ``Indian
tribe'' pursuant to section 5 of the IRA unless that ``Indian tribe''
was both ``recognized'' and ``under Federal jurisdiction'' on the date
of enactment of the IRA, i.e., on June 18, 1934.
Three other members of the Court--Justices Breyer, Souter, and
Ginsberg--disagreed in part with that determination of congressional
intent and opined that the 73d Congress intended the phrase
``recognized tribe now under Federal jurisdiction'' to require an
Indian tribe to have been ``under Federal jurisdiction'' on June 18,
1934, but to allow the tribe to have been ``recognized'' years or
decades after that date.
Subsequent to the 73d Congress's enactment of the IRA in 1934, and
particularly subsequent to the 100th Congress's enactment of the Indian
Gaming Regulatory Act in 1988, the Secretary of the Interior has
acquired numerous parcels of land pursuant to section 5 of the IRA for
numerous groups of Native Americans that were not ``recognized'' as
``Indian tribes'' and were not ``under Federal jurisdiction'' on June
18, 1934. Today, on a number of those parcels a number of those groups
operate gambling casinos that collectively annually generate billions
of dollars of revenue. For those reasons, the majority opinion in
Carcieri has quite understandably roiled Indian country.
To decide on its position regarding the legal and policy
consequences that flow from the Carcieri decision requires the
Committee on Indian Affairs to consider three questions:
1. Does the majority opinion in Carcieri accurately discern the
intent of the 73d Congress embodied in the phrase ``recognized
Indian tribe now under Federal jurisdiction''?
2. If the answer to that question is yes, is the policy result
that the 73d Congress intended to effectuate in 1934
appropriate in 2009?
3. If the answer to that question is no, what should the
Committee recommend to the 111th Congress regarding amendments
to section 5 and/or section 19 of the IRA whose enactment will
effectuate the policy result that the Committee determines is
appropriate?
My own views regarding the answers to those questions are as
follows:
The Majority Opinion in Carcieri Accurately Discerned the
Intent of the 73d Congress Embodied in the Phrase ``Recognized
Indian Tribe Now Under Federal Jurisdiction.''
The majority opinion in Carcieri easily reasoned to its result by
concluding that the intent of the 73d Congress embodied in the phrase
``recognized Indian tribe now under Federal jurisdiction'' (emphasis
added) is clear and unambiguous because the U.S. Supreme Court may
presume that, like every Congress, the 73d Congress intended undefined
words in its statutory texts to have their common dictionary meaning,
and in 1934 the common dictionary meaning of the word ``now'' was ``at
the present time; at this moment.'' See Majority Opinion, at 8.
However, the Majority Opinion also relied on the extrinsic fact
that in 1936 Commissioner of Indian Affairs John Collier believed that
that was the result the 73d Congress intended. See id. 9-10. In his
concurring opinion, Justice Breyer also found that same extrinsic fact
determinative. See Concurring Opinion, at 2 (Justice Breyer noting that
``the very Department [of the Interior] official who suggested the
phrase to Congress during the relevant legislative hearings
subsequently explained its meaning in terms that the Court now
adopts'').
The Court's reliance on Commissioner Collier's interpretation in
1936 of the intent of the 73d Congress embodied in the word ``now,''
rather than on the contrary interpretation that the Bureau of Indian
Affairs (BIA), through the Solicitor General, presented to the Court in
2008, is an important development whose consequence for relations
between Congress and the executive branch transcends the statutory
construction dispute the Court decided in Carcieri.
A quarter of a century ago in Chevron U.S.A. Inc. v. Natural
Resources Defense Council, Inc., 467 U.S. 837 (1984), the U.S. Supreme
Court invented the analytical construct that if the meaning of the text
of a statute is ambiguous, Congress, by creating the ambiguity,
intended to delegate the executive branch agency responsible for
implementing the statute authority to resolve the ambiguity by making
whatever policy choice that it--the executive branch agency--deems
appropriate without any investigation of what the Congress that enacted
the statute actually intended. As the Court recently explained in
National Cable & Telecommunications Association v. Brand X Internet
Services, 545 U.S. 967, 980 (2005):
In Chevron, this Court held that ambiguities in statutes within
an agency's jurisdiction to administer are delegations of
authority to the agency to fill the statutory gap in reasonable
fashion. Filling these gaps, the Court explained, involves
difficult policy choices that agencies are better equipped to
make than courts.
But, as the Court noted in Carcieri, the reason a federal court
should give deference to an interpretation of the intent of Congress
embodied in the text of statute made by the executive branch agency
that is responsible for implementing the statute is not because
Congress has delegated the agency authority to impose the agency's,
rather than Congress's, policy choices. Rather, it is because the
agency's involvement in Congress's enactment of the statute makes its
understanding of what Congress intended more authoritative than a guess
by a federal judge based on often nonexistent legislative history.
That was the situation in Carcieri. See Majority Opinion, at 10 n.
5 (Justice Thomas noting that ``[i]n addition to serving as
Commissioner of Indian Affairs, John Collier was a principal author of
the IRA. And . . . he appears to have been responsible for the
insertion of the words `now under Federal jurisdiction' into what is
now 25 U.S.C. 479'')(citation and internal punctuation marks omitted).
But for the U.S. Supreme Court, or any lower federal court, to rely
on the interpretation of the intent of Congress embodied in the text of
a statute made by the executive branch agency responsible for
implementing the statute because the agency's involvement in Congress's
enactment of the statute makes its understanding of what Congress
intended authoritative presupposes that, in reasoning to its
interpretation, the agency has vigorously--and intellectually
honestly--analyzed what the Congress that enacted the statute intended.
See United States v. Wise, 370 U.S. 405, 411 (1962)(noting that
``statutes are construed by the courts with reference to the
circumstances existing at the time of the passage'').
But during the thirty-five years I have been involved in
litigating, and in participating in Congress's enactment of, statutes
dealing with Native American subject matters I have not encountered an
executive branch bureaucracy more committed than the BIA (and the
Division of Indian Affairs in the Office of the Solicitor that serves
it) to discharging that obligation in the breach.
Examples, while legion, are beyond the scope of this hearing. What
can be said here is that, despite the efforts of the BIA and its
Solicitors to prevent it from doing so, in Carcieri the U.S. Supreme
Court did its job. And that job was to correctly interpret the intent
of the 73d Congress embodied in the phrase ``recognized tribe now under
Federal jurisdiction.''
The Carcieri Decision Presents an Opportunity for the 111th
Congress to Reassert Congress's Indian Commerce Clause
Authority Over the Nation's Native American Policies.
The reason the Carcieri decision has roiled Indian country is that
since June 18, 1934 Congress and, most importantly, the Secretary of
the Interior have created at least 104 ``federally recognized tribes''
that were neither ``recognized'' nor ``under Federal jurisdiction'' on
the date the 73d Congress enacted the IRA. As a consequence, the
Secretary had no authority pursuant to section 5 of the IRA to acquire
land for any of those tribes.
Sixteen of those tribes were created by Congress. The other 88 were
created by the Secretary of the Interior through ultra vires final
agency action, and by the U.S. District Court acting beyond its
jurisdiction and in a manner that violated the Doctrine of Separation
of Powers. \1\
---------------------------------------------------------------------------
\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 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\
---------------------------------------------------------------------------
\2\ I 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 the House Committee on Interior and Insular
Affairs, and between 1973 and 1976 the chairman of that 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 described 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.
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 Acting
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 of the Interior for Indian Affairs, 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\
---------------------------------------------------------------------------
\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 twentyfirst
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.
______
Prepared Statement of Donald L. Carcieri, Governor, State of Rhode
Island and Providence Plantations
______
Prepared Statement of Dueward W. Cranford II, Vice Chairman, Citizens
Equal Rights Alliance
______
Prepared Statement of John Schmitt, Mayor, City of Shakopee, Minnesota
______
Prepared Statement of Joseph S. Larisa, Jr., Esq., Lawyer, Larisa Law
and Consulting, LLC
______
Prepared Statement of Rodney M. Bordeaux, President, Rosebud Sioux
Tribe
______
Prepared Statement of Ed Lynch, Chairman, Citizens Against Reservation
Shopping
______
Prepared Statement of Hon. William Martin, President, Central Council
of Tlingit and Haida Indian Tribes of Alaska
______
Joint Prepared Statement of Fred Allyn, Robert Congdon, Nicholas
Mullane, Chief Elected Officials for the Towns of Ledyard, North
Stonington, and Preston, Connecticut
______
Prepared Statement of Ivan Smith, Chairman, Tonto Apache Tribe
______
Prepared Statement of Richard Marcellias, Chairman, Turtle Mountain
Band of Chippewa Indians
______
Prepared Statement of Mark Mitchell, Governor, Pueblo of Tesuque
______
Prepared Statement of Lisa S. Waukau, Tribal Chairman, Menominee Indian
Tribe of Wisconsin
______
Prepared Statement of the Lower Elwha Klallam Tribe
______
Prepared Statement of David J. Rivera, City Manager, City of Coconut
Creek, Florida
______
Prepared Statement of Sachem Mathew Thomas, Chief, Narragansett Indian
Tribe
______
______
______
______
Additional supplementary information have been retained in
Committee files including:
The Indian Reorganization Act, The Declaration on the Rights of
Indigenous Peoples, and a Proposed Carcieri ``Fix'': Updating
the Trust Land Acquisition Process, by G. William Rice. It is
printed in the Idaho Law Review Volume 45.
Federal Acknowledgment of American Indian Tribes: The
Historical Development of a Legal Concept by William W. Quinn,
Jr.
Ten Years of Tribal Government Under I.R.A. by Theodore H.
Haas.