[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

                              ----------                              
                                                                   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\
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
    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



























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    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.

                                  
