[Senate Hearing 112-113]
[From the U.S. Government Publishing Office]
S. Hrg. 112-113
THE INDIAN REORGANIZATION ACT--75 YEARS LATER: RENEWING OUR COMMITMENT
RESTORE TRIBAL HOMELANDS AND PROMOTE SELF-DETERMINATION
COMMITTEE ON INDIAN AFFAIRS
UNITED STATES SENATE
ONE HUNDRED TWELFTH CONGRESS
JUNE 23, 2011
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0COMMITTEE ON INDIAN AFFAIRS
DANIEL K. AKAKA, Hawaii, Chairman
JOHN BARRASSO, Wyoming, Vice Chairman
DANIEL K. INOUYE, Hawaii JOHN McCAIN, Arizona
KENT CONRAD, North Dakota LISA MURKOWSKI, Alaska
TIM JOHNSON, South Dakota JOHN HOEVEN, North Dakota
MARIA CANTWELL, Washington MIKE CRAPO, Idaho
JON TESTER, Montana MIKE JOHANNS, Nebraska
TOM UDALL, New Mexico
AL FRANKEN, Minnesota
Loretta A. Tuell, Majority Staff Director and Chief Counsel
David A. Mullon Jr., Minority Staff Director and Chief Counsel
C O N T E N T S
Hearing held on June 23, 2011.................................... 1
Statement of Senator Akaka....................................... 1
Statement of Senator Barrasso.................................... 2
Statement of Senator Udall....................................... 29
Prepared statement........................................... 29
Echohawk, John E., Executive Director, Native American Rights
Prepared statement........................................... 50
Finley, Hon. Michael O., Chairman, Confederated Tribes of the
Colville Reservation........................................... 69
Prepared statement........................................... 71
Goldberg, Carole E., Jonathan D. Varat Distinguished Professor of
Law, UCLA School of Law........................................ 21
Prepared statement........................................... 23
Heeley, Steven J.W., Policy Consultant, Akin, Gump, Strauss,
Hauer & Feld, LLP.............................................. 35
Prepared statement........................................... 36
Hoxie, Frederick E., Swanlund Chair/History Professor, University
of Illinois.................................................... 3
Prepared statement........................................... 4
Keel, Hon. Jefferson, President, National Congress of American
Prepared statement........................................... 68
Monette, Richard, Associate Professor of Law, University of
Wisconsin Law School........................................... 41
Prepared statement........................................... 43
Rice, William, Associate Professor of Law, University of Tulsa
College of Law................................................. 12
Prepared statement........................................... 13
Cromwell, Hon. Cedric, Chairman, Mashpee Wampanoag Tribe,
prepared statement............................................. 77
THE INDIAN REORGANIZATION ACT--75 YEARS LATER: RENEWING OUR
COMMITMENT TO RESTORE TRIBAL
HOMELANDS AND PROMOTE SELF-
THURSDAY, JUNE 23, 2011
Committee on Indian Affairs,
The Committee met, pursuant to notice, at 2:30 p.m. in room
628, Dirksen Senate Office Building, Hon. Daniel K. Akaka,
Chairman of the Committee, presiding.
OPENING STATEMENT OF HON. DANIEL K. AKAKA,
U.S. SENATOR FROM HAWAII
The Chairman. The Committee will come to order.
Aloha and welcome to the Committee's oversight hearing on
the Indian Reorganization Act--75 Years Later: Renewing Our
Commitment to Restore Tribal Homelands and Promote Self-
Sometimes in Indian policy, it is necessary to look at the
past in order to move forward. That is what we will be doing
today by examining the original intent and legislative history
of the Indian Reorganization Act and subsequent amendment to
When Congress enacted the Indian Reorganization Act in
1934, its intent was very clear. Congress intended to end
Federal policies of termination and allotment and begin an era
of empowering tribes by restoring their homelands and
encouraging self-determination. Those fundamental goals still
guide Federal Indian policy today.
When Congress amended the Indian Reorganization Act in
1994, it reaffirmed the original intent of the IRA and ensured
that all tribes would be treated equally, no matter when their
relationship with the Federal Government was recognized.
In addition, the Congress explicitly rejected the
Department of Interior Solicitor's opinions implementing
policies which divided tribes into separate classes. Since
1934, the IRA has stood as the bedrock of Federal Indian
However, a Supreme Court decision in 2009 narrowly
construed the text of the IRA and completely up-ended the
status quo, which had existed for 75 years, contrary to
Congressional intent, legislative history, and affirmative
actions by the Administration.
I have a great deal of respect for the Supreme Court and
the hard work that they do. However, when the court gets it
wrong, it is the responsibility of Congress to fix it. That is
why this Committee at its first business meeting in the 112th
Congress passed a Carcieri fix out of Committee. My Carcieri
fix bill does nothing more than to simply restore the status
quo that existed for 75 years and affirms the original intent
of the Indian Reorganization Act to restore tribal homelands
and empower tribal governments to exercise self-determination.
My colleagues and I understand the importance of this bill
to Indian Country and our Committee to doing everything we can
to pass a clean Carcieri fix this session of Congress.
At this point, I would like to ask Senator Barrasso if he
has any opening statement to make.
STATEMENT OF HON. JOHN BARRASSO,
U.S. SENATOR FROM WYOMING
Senator Barrasso. Thank you very much, Mr. Chairman.
Good afternoon and thank you for holding this hearing on
the Indian Reorganization Act. I want to keep my remarks brief
because we have three panels and eight witnesses who are here
today to testify.
First, as always, I want to thank our witnesses for
agreeing to assist the Committee in its inquiry into the Indian
Reorganization Act. I know it is not easy for people to take
time out of their regular lives not only to travel to the
Nation's capital, which is obviously a great distance, but also
to prepare their testimony. So we appreciate it very much.
I would like to make just a couple of comments regarding
the subject of today's hearing as well, Mr. Chairman. I know
and appreciate the importance of homelands to Indian people.
Certainly, that concept, the concept of homelands, means many
things and it captures many different values, historic,
cultural, religious, spiritual and many other values.
Some of the witnesses here today will be speaking to these
aspects of the Act. And I look forward to hearing what everyone
has to say.
The Act addresses other issues as well, including the issue
of governance. One very important provision of the Act
establishes a process for tribes to organize under a new
constitution. I understand that the two Wind River tribes in
Wyoming chose not to adopt an Indian Reorganization Act
constitution. However, many other tribes around the Country
accepted the Act and adopted constitutions under this process.
So I would like to hear how these constitutions are working
some 75 years after the fact. Are many of them still in effect?
And if so, do they serve the tribes well? Or have tribes
adopted changes to these constitutions to meet new challenges
and new needs?
I ask these questions in part because the Committee has
been looking at various aspects of trust land reform, and
looking at modernizing the laws applicable to Indian trust
lands. The HEARTH Act is an example of that, as is the Indian
Energy Initiative that we have been working on. Those are a
couple of things. These measures would involve much greater
control and involvement of tribal governments in trust land
So I would like to hear from tribes on these questions. And
with that, I would like to thank you, Mr. Chairman, and thank
the witnesses and look forward to the hearing today.
The Chairman. Thank you very much, Senator Barrasso, my
friend and colleague, as we move this Committee.
With that, I want to welcome the witnesses. I appreciate
that you have all traveled far to come here and look forward to
hearing your testimony on this very important matter.
We have three panels to hear from today, so I ask that you
limit your oral testimony to five minutes. Your full written
testimony will be included in the record.
Also, the record for this hearing will remain open for two
weeks from today, so we welcome written comments from any
I want to, of course, move this along and say that we have
a panel that can talk about the past and what it has been all
about. We will hear from our distinguished panel.
I welcome our first panel of witnesses to the Committee
today: Professor Frederick Hoxie, the Swanlund Chair and
Professor of History at the University of Illinois; Professor
William Rice, Associate Professor of Law at the University of
Tulsa College of Law; and I also want to welcome Professor
Carole Goldberg, the Jonathan D. Varat Professor of Law at the
UCLA School of Law.
So that is our panel. Again, I want to welcome all of you.
Mr. Hoxie, will you please proceed with your testimony?
STATEMENT OF FREDERICK E. HOXIE, SWANLUND CHAIR/HISTORY
PROFESSOR, UNIVERSITY OF ILLINOIS
Mr. Hoxie. Thank you, Mr. Chairman. Thank you for this
When Congress approved the Indian Reorganization Act in
June, 1934 it articulated and advanced three broad goals.
First, the IRA was intended to end allotment, the government
program of individualizing and privatizing American Indian
lands. As a national policy, allotment had been initiated in
1887 by the Dawes Severalty Act and had facilitated the
transfer of tens of millions of acres of Indian land from
native to non-native ownership.
While the consequences of this devastating loss continues
to plague Indian people down to the present day, the IRA ended
Federal support for the continued erosion of American Indian
Second, the IRA made possible the organization of tribal
governments and tribal corporations. These provisions of the
law created a mechanism by which native people might establish
federally recognized entities that could govern, develop and
speak for their communities. From 1934 onward, tribal
governments would be a constant visible factor in policymaking.
Third, by ending the allotment policy and providing for the
future development and even expansion of reservation
communities, Congress endorsed the idea that individuals could
be both U.S. and tribal citizens. For the first time in the
Nation's history, the Federal Government codified in a general
statute the idea that tribal citizenship was compatible with
national citizenship and that Indian-ness would have a
continuing place in American life. This action brought forward
a new generation of American Indian leaders.
Over the past eight decades, the implementation of the IRA
has generally supported these three goals. The
individualization of indigenous community resources has been
halted. Tribal institutions have flourished. And Indian people
have asserted themselves as citizens of and advocates for their
tribe, without jeopardizing their status as citizens of this
As a consequence, in the years since 1934, despite periods
when policymakers ignored Indian voices, and despite the
persistence of discrimination, unacceptable rates of poverty
and the ongoing crises in the delivery of social services,
native people have not been viewed by policymakers as a
vanishing or deficient people who must give up their
traditional cultures and identities in order to become
Since 1934, Indians across the Nation have been free to be
active citizens in their communities and to assert tribal
interests and tribal rights without being labeled unpatriotic,
backward or uncivilized. We have banished the long-held Indian
Office view, neatly summarized by one Wisconsin Indian Agent a
century ago, that Native Americans, ``cannot improve in
civilization and remain Indians.''
When assessing the implications of the United States
Supreme Court's 2009 decision in Carcieri, I hope the Members
of this Committee will consider these original objectives of
the Indian Reorganization Act. The passage of this statute
marked an important turning point in the history of relations
between the United States and America's indigenous peoples. An
ambitious Commissioner of Indian Affairs and an energetic new
Administration worked collectively with a skeptical but
cooperative Congress to forge a general statute that ended a
half-century assault on Indian landholdings, initiated the
creation of modern tribal governments, and called forth a new
generation of Indian political leaders.
Spurred by the disastrous conditions created by the
government's own misguided policies over the previous 50 years,
encouraged by Indian leaders, and framed by experienced
legislators, the new law marked a brave decision to turn away
from paternalism and to embrace a new Federal policy based on
mutual respect and faith in the future of American Indians as
citizens of tribes and of the United States.
In whatever reforms or initiatives you and your colleagues
consider in the weeks ahead, I hope that you will both remember
and honor your predecessors' remarkable and courageous
[The prepared statement of Mr. Hoxie follows:]
Prepared Statement of Frederick E. Hoxie, Swanlund Chair/History
Professor, University of Illinois
Like any statute, the Indian Reorganization Act (IRA) attracted
support from legislators who did not agree with one another politically
or on every aspect of policymaking. Nevertheless, when Congress
approved this law in June, 1934, it articulated and advanced three
broad goals. The clarity of those goals (and their persistence over the
past eight decades) enables us to define quite clearly the core intent
of this landmark legislation.
First, the IRA was intended to end allotment--the government
program of individualizing and privatizing American Indian lands. As a
national policy, allotment had been initiated in 1887 by the Dawes
Severalty Act and had facilitated the transfer of tens of millions of
acres of Indian land from Native to non-Native ownership. While the
consequences of this devastating loss continue to plague Indian people
in the United States down to the present day, the IRA ended federal
support for the continued erosion of American Indian community
Second, the IRA made possible the organization of tribal
governments and tribal corporations. These provisions of the law
created a mechanism by which Native people could establish federally-
recognized entities that could govern, develop--and speak for--their
communities. From 1934 onward, tribal governments would be a constant,
visible factor in policymaking.
Third, by ending the allotment policy and providing for the future
development, and even expansion, of reservation communities, Congress
endorsed the idea that individuals could be both U.S. and tribal
citizens. For the first time in the nation's history, the Federal
Government codified in a general statute the idea that tribal
citizenship was compatible with national citizenship and that
``Indianness'' would have a continuing place in American life. This
action brought forward a new generation of Native American leaders.
Over the past eight decades the implementation of the IRA has
generally supported these three goals: the individualization of
indigenous community resources has been halted, tribal institutions
have flourished, and Indian people have asserted themselves as citizens
of, and advocates for, their tribes without jeopardizing their status
as citizens of this nation. As a consequence in the years since 1934,
despite periods when policymakers ignored Indian voices, and despite
the persistence of discrimination, unacceptable rates of poverty, and
ongoing crises in the delivery of social services, Native people have
not been viewed by policymakers as a ``vanishing'' or deficient people
who must give up their traditional cultures and identities in order to
become ``Americans.'' Since 1934 Indians across the nation have been
free to be active citizens in their communities and to assert tribal
interests and tribal rights without being labeled unpatriotic, backward
of ``uncivilized.'' We have banished the long-held Indian Office view,
neatly summarized by one Wisconsin Indian agent a century ago, that
Native Americans ``cannot improve in civilization and remain Indians.''
\1\ Annual Report of the Commissioner of Indian Affairs, 1875, 871.
In short, the IRA was intended to initiate a new era in which the
United States would support Indian people and tribal communities as
continuing and dynamic members of a modern American nation. This aspect
of the law--together with the national government's pledge to sustain
an ongoing and mutually-satisfactory relationship with Native tribes--
remains its crowning achievement. The fulfillment of this goal is the
reason, despite economic hardships and policy disputes, that the United
States has been a model for other democracies struggling to forge fair,
just, and mutually respectful relations with the indigenous communities
within their borders.
Objective One: Stopping Allotment and the Individualization of Tribal
The policymakers who crafted the Indian Reorganization Act were
acutely aware of the devastating consequences of allotment. They
understood that the previous generation of Indian Office and
congressional leaders had been eager to accelerate the division of
tribal lands and the removal of the restrictions the Dawes Act had
originally placed on the sale and lease of individual allotments. Their
predecessors had applauded in 1903 when the Supreme Court in Lone Wolf
v. Hitchcock had endorsed Congress's ``plenary authority'' over Indian
lands. That decision endorsed the unilateral abrogation of treaties and
the rapid dissolution of collective landownership (something that had
not been provided for in the original allotment law). ``If you wait for
the tribe's consent in these matters,'' Commissioner of Indian Affairs
William A. Jones declared at the time, ``it will be fifty years before
you can do away with the reservations.'' \2\ Jones's colleagues in
Congress agreed, endorsing the removal of trust restrictions that would
have kept allotments in Indian hands. Connecticut's senior Senator
Orville Platt spoke for many when he declared that ``the easiest
Indians in the country to civilize'' were those who had ``no money, no
funds, no land, no annuities.'' \3\
\2\ Quoted in Frederick E. Hoxie, A Final Promise: The Campaign to
Assimilate the Indians, 1880-1920 (Lincoln: University of Nebraska
Press, 1984), 155.
\3\ Ibid., 157-8.
Legislators in 1934 were aware that their predecessors' assumption
that allotment--and even poverty--would spur Indian ``progress'' had
proven tragically incorrect. Not only had the Indian estate shrunk from
151 million acres to 52 million acres between 1880 and 1933, but this
transfer of assets from Indians to non-Indians had not produced
economic prosperity--or even minimal security. In 1928, The Meriam
Report, a federally-funded study of social and economic conditions
among American Indians, found that ``the overwhelming majority of
Indians are poor, even extremely poor.'' Among its findings:
Health: ``The health of the Indians as compared with that of
the general population is bad . . . [T]he death rate and the
infant mortality rate are high. Tuberculosis is extremely
Living Conditions: `` . . . are conducive to the development
and spread of disease . . . [T]he diet of the Indians is bad .
. . [T]he use of milk is rare, and it is generally not
available, even for infants.
Economic Conditions: ``The income of the typical Indian family
is low and earned income extremely low. . . . [T]he number of
real farmers is comparatively small . . . .''
Seventy one percent of Indians reported a total income of less than
$200 per year; the commission also noted that some income statistics
were so low as to be ``unbelievable.'' \4\
\4\ Quoted in R. David Edmunds, Frederick E. Hoxie, and Neal
Salisbury, The People: A History of Native America (Boston: Houghton
Mifflin, 2007), 371. The original report is The Problem of Indian
Administration: Report of a Survey Made at the Request of Honorable
Hubert Work, Secretary of the Interior . . . (Baltimore: Johns Hopkins
The appalling statistics in the Meriam Report proved that the rosy
predictions of progress over the previous three decades had been both
self-serving and wrong. As legislators and Indian Office leaders in the
Hoover administration struggled to respond to the growing realization
that a dramatic new policy initiative was needed, the Great Depression
hit and conditions grew worse. Native Americans faced crushing hardship
and even starvation. In 1931 the Indian Office--with no further
resources of its own--was forced to call on the American Red Cross and
the U.S. Army to supply food to needy Indians.
Franklin Roosevelt's inauguration in 1933 offered the prospect of
change. Moreover, his appointment of long-time Indian Office critic
John Collier to position of Commissioner of Indian Affairs indicated
that a major new policy initiative would soon be forthcoming. Collier,
an idealistic former New York City social worker, would serve as
Commissioner of Indian Affairs for twelve years, longer than anyone in
American history. Founder and president of the American Indian Defense
Association (AIDA), the new commissioner had spent most of the 1920s
rallying environmentalists, humanitarians and sympathetic politicians
to the cause of protecting Indians from exploitation and abuse. His
correspondents during that decade included the popular western writer
Mary Austin, Roger Baldwin, the founder of the American Civil Liberties
Union, progressive reformers Arthur Morgan, Robert Ely and Harold Ickes
(a Chicago attorney who later became Roosevelt's Secretary of the
Interior), and political insurgents Robert LaFollette and William
Borah. The AIDA was generously supported by the General Federation of
Women's Clubs and wealthy patrons in California and New York.
Collier's reform ideas were embodied in a legislative proposal
drafted during the winter of 1933 by Felix Cohen and a team of lawyers
in the Interior Department. The son of philosopher Morris Cohen, Felix
held a law degree from Columbia and a Ph.D. in philosophy from Harvard
and was deeply sympathetic to the commissioner's desire to use federal
power to protect and rehabilitate Native communities. Cohen and Collier
believed the most effective method for accomplishing this goal was an
ambitious federal initiative to end allotment, sponsor federally-
sanctioned tribal governments and promote indigenous leaders. They
hoped that their reforms would stop the erosion of Indian resources
while facilitating the consolidation of tribal land holding and the
development of modern and productive tribal enterprises.
Collier's February, 1934, draft of the IRA ran to forty-eight pages
and included provisions for a national court of Indian Affairs, and the
granting of extensive governmental powers to the new reservation
governments. Among the proposed powers were the authority to condemn
reservation land owned by tribal members, the right to manage Indian
Office personnel, and the privilege of selecting the particular federal
services each community felt were most appropriate to their needs.
Several congressional leaders and many in the Indian service responded
to Collier's proposal with shock, arguing that it represented too
radical a shift from past practices. Collier responded to this
criticism by organizing nine regional ``Indian congresses'' which were
held during March and April, 1934. At these congresses--unprecedented
in federal Indian policymaking--the commissioner and his
representatives explained the provisions of the proposed law and tried
to rally support for it from tribal delegates. The congresses revealed
significant pockets of support for Collier's bill among Indian
communities, but they also generated new questions and concerns. What
of existing business committees and tribal councils? How would the new
law affect treaty rights and claims cases? And how would the rights of
individual Indian landholders be protected from the power of the new
tribal governments? In the wake of these meetings, Collier revised his
bill and began negotiations with key congressional leaders.
Negotiations between Collier and Indian Affairs Committee leaders
proceeded during April and May, and the bill won final approval on June
18. Throughout this process, Commissioner Collier retained his basic
commitment to ending allotment and launching federally-recognized
tribal councils that would empower American Indians to govern their own
communities under federal supervision and launch new economic
development initiatives. Everything else was negotiable. As Collier and
congressional leaders struggled over the final bill, President
Roosevelt, acting at the behest of Interior Secretary Harold Ickes,
intervened with a letter stressing the urgency of the situation. FDR
warned that if the negotiators failed to act, the nation would soon
witness the ``extinction of the race.'' It was this image of a national
tragedy of vanishing Indians that made the difference. Burton K.
Wheeler, Chair of the Senate Indian Affairs Committee, told the
President ``something can be worked out'' and a few weeks later the
legislation was approved.
The final bill was less than half the length of the commissioner's
original draft but it embodied the key elements of Collier's and
Cohen's original vision: the end of allotment, the creation of tribal
governments, and an endorsement of tribal citizenship and tribal
culture. \5\ The more controversial aspects of Collier's original
proposal--a national Indian court and expansive powers for tribal
governments--had been jettisoned.
\5\ The best recent analysis of the final bill and its relation to
Collier's original proposal is in Rusco, A Fateful Time, 255-281.
The three central elements of the IRA were also supported by
ancillary New Deal programs. Both Collier and congressional leaders
supported special programs within the Civilian Conservation Corps and
the Works Progress Administration, for example, that created jobs on
reservations for day laborers and construction crews. These programs
stimulated local economies and built both new buildings and improved
reservation infrastructure. Other agencies provided funding for
reservation schools and conservation projects and medical facilities,
while the Indian Office won a 30 percent in its annual budget. \6\ All
of this activity provided new opportunities for tribal leaders and new
forums for the discussion of the Native future within the United
\6\ Exact figures are difficult to retrieve, but the Indian Office
budget for 1931 stood at $28 million and the 1940 appropriation was $37
million. See Philp, John Collier's Crusade for Indian Reform, 96 and
The First American, March 16, 1940, 5. Both figures are in current
dollars; not adjusted for inflation.
Given the desperate circumstances that produced the IRA, it is not
surprising that the new statute set an ambitious, national agenda for
the rehabilitation of Indian communities. Indeed, at a May hearing
shortly before the bill was approved, Collier explained the thinking
behind the new law's proposed Section Five which authorized the
Secretary of the Interior to acquire land ``for the purpose of
providing land for Indians.'' Through his many years of advocacy--and
at the several regional congresses he had just completed-Collier had
spoken about the suffering of Indian communities that had become
landless during the allotment era. ``Wandering bands of Indians who
have no reservation at all,'' he declared, would be helped and
rehabilitated on new reservations. Following passage of the act, a
number of groups who fit this description organized tribal governments
under the IRA. These included a tribe that previously had had no
resident agent (Saginaw Chippewa), a tribe whose lands had been largely
abandoned (Pojoaque Pueblo), tribes that no longer controlled any trust
land (Bay Mills), and long-neglected groups such as the Catawba Indian
Tribe of South Carolina and the Alabama and Coushatta Indians in Texas.
In the wake of the law's passage, the Indian Office also created four
new reservations in Nevada to accommodate tribes there. \7\
\7\ See Hearings on S.2744 and S.3645 Before the Senate Committee
on Indian Affairs, 73rd Congress, 2 Session, 241 (1934). This aspect of
the IRA is discussed at length in BRIEF OF HISTORIANS FREDERICK E.
HOXIE, PAUL C. ROSIER AND CHRISTIAN W. MCMILLEN AS AMICI CURIAE
SUPPORTING RESPONDENTS, Carcieri v.Kepthorne, 07-526, 10-14.
The intention of the IRA's framers to stop the erosion of tribal
resources and begin the process of community rehabilitation is also
made evident by the fact that in 1936, acting at Collier's request,
Congress approved the Oklahoma Indian Welfare Act and the Alaska
Reorganization Act. The Oklahoma law contained a version of the IRA's
original Section Five, empowering the Secretary of the Interior to
acquire land that ``shall be taken into trust for the tribe, band,
group or individual Indian for whose benefit such land is so acquired .
. .'' \8\ The Alaska Act was modified to fit the distinctive conditions
in that territory, but the Commissioner declared that the law's purpose
was consistent with the IRA: to protect Native groups ``who in the past
have seen their land rights almost universally disregarded . . . and
their economic situation grow each year increasingly more desperate.''
\8\ U.S. Statutes at Large, 49:1967.
\9\ Quoted in Francis P. Prucha, The Great Father: The United
States Government and the American Indians (Lincoln: University of
Nebraska, 1984) II, 971.
Recent critics have charged that the IRA did little to restore the
millions of acres Indian people had lost during the four decades of
allotment or to provide material assistance to Indian farmers who had
been marginalized by their mechanized non-Indian neighbors. These
critics add that the law did little to end the pernicious practice of
leasing Indian lands to non-Native farmers, ranchers and mineral
resource developers, a pattern that had begun in the early decades of
the 20th century and which continues to siphon resources from tribal
homelands. Many of these criticisms are warranted, but there can be no
doubt that the first objective of the Indian Reorganization Act was to
stop the dissolution of the Indian estate and to begin the process of
community rehabilitation in every Native American community in the
Objective Two: The Organization of Tribal Governments
Inspired both by his experience as a social worker in the immigrant
neighborhoods of New York City in the first decades of the nineteenth
century, and by his experience as an Indian policy activist in the
1920s, John Collier believed that the most effective agents of
community development were leaders drawn from the community itself. In
New York he had been an advocate of settlement house organizations and
community celebrations of group identity. His Indian work had begun,
famously, during a Christmas visit to Taos Pueblo in 1920. There he
made what he called his ``earth shaking discovery of American
Indians.'' Witnessing winter ceremonies at this mountaintop village, he
later recalled, he saw ``face to face, primary social groups'' that
proved to him ``deep community yet lived on in the embattled Red
Indians.'' In the dozen years that followed, Collier held to that
insight, insisting to paternalistic missionaries, authoritarian BIA
officials and doubting legislators that Native communities--which had
maintained their distinctive identities through centuries of assault
and dispossession--represented a ``new hope for the Race of Man.'' \10\
\10\ See John Collier, From Every Zenith (Denver: Sage Books,
1963), 126, 123, 119.
It is easy at the remove of nearly a century to scoff at the image
of an idealistic New York social worker falling in love with Indians in
the winter chill of a Taos winter ceremony. But however romantic it may
have been, Collier's Taos vision stayed with him until the day he
died--ironically--at Taos, in 1968. More important, Collier's rejection
of paternalism--the idea that white people knew what was best for
Indians--set him apart from most of the major policy figures of his
day. In 1920, missionaries and mission societies--all determined to
replace Native ``paganism'' with Christianity--dominated Indian
policymaking. Few of them took Collier seriously. Over the next decade,
however, both the growth of popular interest in Native American
culture, and the growing sense that authoritarian efforts to eradicate
Indian lifeways were both unfair and domed to fail, moved popular
opinion in Collier's direction.
By the time John Collier and his congressional adversaries were
negotiating the details of the Indian Reorganization Act, his
idealistic rhapsodies had become mainstream. For one thing, the
academic study of American Indians had revealed that earlier
interpretations of Native culture as backward and primitive were
incorrect. In the era of allotment, anthropologists had applauded the
eradication of Indian cultures. John Wesley Powell, for example, the
Smithsonian Institution's preeminent expert on Native Americans wrote a
key congressional leader in 1880 that the only way the United States'
``debt'' to the Indians could be repaid was ``by giving to the Indians
Anglo-Saxon civilization, that they may also have prosperity and
happiness under the new civilization of this continent.'' \11\
\11\ John Wesley Powell to Senator Henry Teller, March 23, 1880,
quoted in Hoxie, A Final Promise, 24.
By 1934 Powell's successors in museums and universities had come to
believe that the peoples of the world had created a variety of distinct
and worthy cultural traditions and that each deserved to be appreciated
on its own terms. Franz Boas, the leading anthropologist of the day,
expressed this view in a letter to President Roosevelt on the eve of
his inauguration. Urging the President-elect to chart a new course in
Indian affairs, Boas declared that throughout its history the Indian
Office had continuously made ``one fundamental error.'' It had failed
``to understand the impossibility of overcoming the deep influence that
the old ways of life still exert upon the Indian community. Whoever is
in charge of the Bureau of Indian Affairs,'' he wrote, ``ought to
understand this fact.'' \12\
\12\ Franz Boas to Franklin D. Roosevelt, March 16, 1933, quoted in
Prucha, The Great Father, II, 939.
While many in Congress continued to support the work of
missionaries and others who sought to ``uplift'' the nation's Indian
communities, the Anglo-Saxon idealism of Powell and his contemporaries
had largely vanished by the time of the New Deal. Burton Wheeler, Chair
of the Senate Indian Affairs Committee, a former labor lawyer who had
been Robert LaFollette's running mate on the Progressive Party ticket
in 1924, was dubious about the effectiveness of Collier's ideas, but he
had little sympathy for the commissioner's missionary critics. (One
published an article in the Christian Century magazine entitled, ``Does
Uncle Sam Foster Paganism? '' \13\ ) With the White House urging
passage, Wheeler and his congressional colleagues scaled back many of
the most ambitious features of Collier's original bill--and added an
amendment excluding Oklahoma from its provisions--before agreeing to
\13\ Elaine Goodale Eastman, ``Does Uncle Sam Foster Paganism?''
Christian Century 51 (August 8,1934), 1016-1018.
In the decade following the passage of the IRA, Senator Wheeler and
other western legislators became critical of Collier and his
administration of Indian Affairs. Many charged that the commissioner
was a social engineer who was perpetuating Indians in a state of
dependency. Others believed his programs were wasteful and too
expensive. By the end of the 1930s, the commissioner became a lightning
rod for opponents of the New Deal. But despite this shifting political
climate, there was little appetite in Congress for a return to the
authoritarian policies of the allotment era. Tribal governments were
often hobbled by hostile BIA administrators and tiny budgets, but few
in Congress questioned the value of Native organizations or the
importance of some form of Indian participation in policymaking. Even
the attacks on tribal governments that led to the termination of
several tribes in the 1950s were predicated on the assumption that
Indians should consent to any shift in their status. When termination
was stopped and eventually reversed, its critics' most powerful
argument was that Indian leaders and tribal organizations opposed it.
Despite disagreements among the authors of the IRA over the powers
to be granted the new tribal governments, the law ratified a new
consensus regarding the importance of tribal organizations and Indian
leaders and underscored the necessity of involving Indian people in the
formulation of policies affecting their communities. Debate over the
scope of Indian and tribal leadership in policymaking continues into
our own time, but the IRA defined for the first time a new, national
approach to policymaking that would include Indian people and
organizations regardless of their location or history.
Objective Three: Redefining Indian Citizenship
During his negotiations with Congress over his proposal, John
Collier had agreed to an amendment mandating local referendums on the
IRA before it could be implemented at any agency. This fact, together
with the speed with which the IRA was proposed and passed, meant that
the implementation of the new law would be marked by extensive, grass-
roots debate and the involvement of tribal leaders from every corner of
At the time of the IRA's passage, hundreds of Indian leaders were
prepared and eager to participate in these discussions regarding the
future of their communities. During the previous two decades, most
tribes had organized BIA-approved ``business committees'' or tribal
councils. The Indian Office articulated no specific agenda for these
groups and gave them little authority. Nevertheless, these
organizations provided a forum and training ground for aspiring
community leaders (and likely producing most of the participants in
Commissioner Collier's ``congresses'' in the spring of 1934). In
addition, by 1930 nearly two hundred cases had been brought to the U.S.
Court of Claims by tribes charging federal officials with mismanagement
of their resources or failure to pay damages under existing treaties
and agreements. The most famous of these was U.S. v. Sioux Nation
(filed first in 1923 and ultimately settled--in court--in 1980), but no
matter their size or fame, each one brought together generations of
tribal leaders and allied lawyers to lobby, gather evidence and rally
community support for the effort. For these reasons, an entire
generation of energized Indian citizens stood poised to participate in
the IRA implementation process, a process which dramatically energized
the political life of Native America.
In the first year following the law's passage, the Crows and
Navajos decided against organizing under the IRA. The largest Sioux
reserves--Pine Ridge and Rosebud--voted narrowly to accept the new law
in hotly contested balloting held during the same period. Among these
larger tribes, opponents of the IRA focused their attacks on the BIA
and its history of incompetence. Their complaints ranged from criticism
of the campaign to reduce erosion on the Navajo reservation by reducing
the size of family sheep herds, to divisions between older
traditionalists and young, English speaking leaders, to concerns--
expressed most vehemently among the Sioux, Crow and New York
communities--over the impact of the new law on the force of existing
treaties. But while the nature of this opposition varied, every
community faced a similar dilemma: deciding between the promise of new
federal programs and their accompanying subsidies for tribal
development, and their long-standing distrust of Washington bureaucrats
appearing to offer them once again a ``solution to the Indian
During the New Deal years, the Indian Office sponsored a total of
258 reservation referendums on the IRA. Two-thirds of the tribes voted
to accept the new law, but heavy negative votes among large tribes such
as the Navajos and the Sioux meant that of the total ballots cast in
all IRA elections, only 40 percent were marked ``yes.'' Still, this
disagreement energized the political life of countless Native
communities, creating challenges for older leaders and bringing dozens
of younger men and women into the limelight. Among the latter group was
D'Arcy McNickle, a young aid to commissioner Collier who had grown up
on the Flathead Reservation in northwestern Montana. McNickle became
the commissioner's most senior American Indian advisor. Over the course
of the 1930s, he also became one of his agency's principal
representatives in the campaign to win ratification of the IRA.
At first--probably because of his youth--McNickle was sent to
remote communities where Indians were poor, vulnerable and likely to
welcome the government's presence. He traveled to North Dakota to meet
with the Missouri River tribes at Fort Berthold and with landless Crees
and Ojibwes near Great Falls, Montana. He traveled to Iowa to meet with
the tiny Sac and Fox tribe and to Maine where he discovered ``a rather
forlorn band of Algonquin-speaking Indians.'' \14\
\14\ See Parker, Singing an Indian Song, 71-2 and D'Arcy McNickle,
``In Maine,'' Indians at Work, October 1,1937, 15-18. McNickle's
travels can also be deduced from his comments in a speech to the
Missouri Archaeological Society. See D'Arcy McNickle, ``The Indian
Today,'' Missouri Archaeologist, v.5, n.2 (September, 1939), 1-10.
Wherever he traveled, McNickle presented himself as a loyal
defender of the Commissioner's programs. He wrote in 1938, for example,
that, ``In years past, the seasons came and went.'' McNickle wrote, but
``this year, for some Indians, there is a difference.'' The
``difference,'' he declared, was the Indian Reorganization Act under
which ``tribes have become organized . . . money has gone into tribal
treasuries, land has been purchased, [and] students have secured loans
to attend colleges.'' He cited federal money distributed to tribes,
land purchased by new reservation governments, and scholarships awarded
to Indian students. ``Something has started,'' he observed, ``and here
is the general direction in which it moves.'' \15\
\15\ D'Arcy McNickle, ``Four Years of Indian Reorganization,''
Indians at Work, v.5, n.11 (July, 1938), 4-11.
But McNickle was not simply Collier's publicist. While he supported
the administration's program, his rapid education in the daily reality
of tribal life quickly pushed him in a more practical direction. Like
other tribal leaders of his day, he found himself participating in an
ever-widening public discussion of Indian affairs. He wrote in 1938,
for example, that ``What has been done is only a fragment of the task
remaining.'' The program, ``is not a simple matter of organizing tribes
and lending money to them,'' he added. ``They will need, for several
years, as much encouragement and assistance as can be given them.'' He
cited the need for ongoing subsidies for tribal operations, money for
land purchases, and support for tribal police and courts. In his view,
the new law had initiated a process of community revitalization that
was creating a rapidly-multiplying set of needs among the tribes. The
assertion of these needs ran straight into--and over--the patronizing
racial attitudes that had long pervaded Indian policymaking in
Looking back on the New Deal era from the perspective of the 1950s,
McNickle wrote that ``If one sees Indians as savages, or the often used
euphemism ``children,'' perhaps no other view and no other course of
action are possible than to work for their extermination. . . . At the
very heart of the Indian problem'' he added, was ``the need for land
and [financial] credit.'' Outsiders who did not understand this--even
those who rhapsodized over the beauty of Indian ceremonies--condemned
the tribes to a future of picturesque powerlessness--or worse. \16\ The
IRA brought the tribes' need for ``land and credit'' sharply into focus
and initiated a rapid expansion of activism among Indian leaders at
both the local and national level. \17\ The new law taught the nation a
fundamental lesson that was news to many policymakers: Indians are not
\16\ Harold E. Fey and D'Arcy McNickle, Indians and Other
Americans: Two Ways of Life Meet (New York: Harper and Brothers, 1959),
\17\ The evolution of McNickle's view of himself as an Indian
advocate was also evident in his decision in 1939 to sign on to a
separate statement issued by Indian delegates at a U.S.-Canadian
conference on Indian policy. See Donald Smith, ``Now We Talk--You
Listen,'' Rotunda (Fall, 1990), 48-52.
D'Arcy McNickle's career illustrates how dramatically the
policymaking arena changed during the New Deal. He became a national
figure in Indian affairs during the 1930s, and, in 1944, a central
organizer of the National Congress of American Indians (NCAI). He
remained a prominent figure in that organization well into the 1960s.
He was also one of the principal organizers of the 1961 American Indian
Chicago Conference--at that time the largest gathering of Native
leaders ever held in North America--and a pioneer in the infant field
of Native American Studies.
By the end of World War II, an entirely new community of Native
leaders was coming onto the scene. Their activism had begun during the
implementation of the IRA in the 1930s, but was also fueled in many
cases by the confidence derived from service in World War II (and the
GI Bill). Some older figures like McNickle or Ruth Muskrat Bronson of
the NCAI presented themselves as brokers between local constituents and
those who controlled federal agencies and resources, while younger
tribal leaders such as the Coeur d'Alenes' Joseph Garry or the Navajos'
Sam Akeah came forward as vigorous defenders of the relevance of Native
traditions in the modern world. All were participants in a new
conversation about the relationship of indigenous people to a complex
industrial nation. Former Assistant Commissioner Graham Holmes
confirmed this view when he observed at an event held in 1984 to mark
the 50th anniversary of the law's passage, that it fixed ``forever .
the rights of Indian tribes to have a government of their own.'' \18\
\18\ Kenneth R. Philp, editor, Indian Self Rule: First Hand
Accounts of Indian-White Relations From Roosevelt to Reagan (Salt Lake
City: Howe Brothers, 1986), 90, 91. For a description of Seneca and
Iroquois New Deal programs, see Hauptman, The Iroquois and the New
The new generation of activists who emerged in the decades
following 1934 established a new standard of citizenship for American
Indians. Vocal in local tribal communities as well as in Washington,
D.C., these activists would demand that they both be consulted as
fellow U.S. citizens and recognized as representatives of indigenous
communities with distinctive claims on the nation. Their lives embodied
the dual citizenship they enjoyed as heirs of the New Deal era. While
they recognized tribal and regional differences among themselves, they
made no distinctions regarding their right to speak out on behalf of
their tribes and of their rights as Americans. They were all modern
Indians, heirs of the IRA.
When assessing the implications of the United States Supreme
Court's 2009 decision in Carcieri v. Salazar, I hope the members of
this Committee will consider these original objectives of the Indian
Reorganization Act of 1934. The passage of this statute, which occurred
almost exactly seventy-seven years ago this week, marked an important
turning point in the history of relations between the United States and
America's indigenous people. An ambitious Commissioner of Indian
Affairs and an energetic new administration worked collaboratively with
a skeptical, but cooperative, Congress, to forge a general statute that
ended a half-century assault on Indian landholding, initiated the
creation of modern tribal governments, and called forth a new
generation of Native political leaders. Spurred by the disastrous
conditions created by the government's own misguided policies over the
previous fifty years, encouraged by Indian leaders and their supporters
in the academic and reform communities, and framed by experienced
legislators, the new law marked a brave decision to turn away from
paternalism and to embrace a new federal policy based on mutual respect
and faith in the future of American Indians as citizens of tribes and
of the United States. The new directions blazed with this law
established a model for other nations to follow. Therefore, in whatever
reforms or initiatives you and your colleagues consider in the weeks
ahead, I hope you will both remember and honor your predecessors
remarkable and courageous achievement.
The Chairman. Thank you very much, Mr. Hoxie, for your
Mr. Rice, please proceed with your statement.
STATEMENT OF WILLIAM RICE, ASSOCIATE PROFESSOR OF LAW,
UNIVERSITY OF TULSA COLLEGE OF LAW
Mr. Rice. Thank you, Mr. Chairman, Mr. Vice Chairman. I
very much appreciate the opportunity to testify today, and
would like to note with appreciation your work on the Carcieri
fix legislation as it has gone through, and all the hearings
you have conducted on the Declaration on the Rights of
They are intertwined with this idea of the IRA. The IRA was
something of a precursor to this. Prior to this, Senator Dawes
had come from Massachusetts where they had allotted the
Wampanoags and others there and had applied these principles.
And then they applied the principles of the allotment situation
That purpose, as has been said by Professor Hoxie, was to
distribute the tribal land base into individual Indians; to
destroy tribal governments; and forcibly, if you will, bring
the Indians into the American mainstream.
It did not work. The numbers that Mr. Collier brought to
the Committee when he was advocating for this bill was that
Indian tribes during the allotment era had lost over 90 million
acres of property. There were whole tribes rendered landless;
90 percent of the lands of the Five Civilized Tribes in
Oklahoma had been lost through the allotment process.
Even the numbers of acres remaining were, if you will, not
a good indicator of what was left. He said to the Congress
there were 48 million acres of land left. But of that 48
million, 20 million of that was in reservations that had not
been allotted. Another 20 million was in desert areas where
allotments were unfeasible. Seven million were already in such
a bad inheritance situation that it was up for sale. They were
trying to do everything they could do administratively to keep
from selling it, but they really had no choice under the law.
They would end up having to sell.
So almost all of the allotted areas were losing their lands
and lost almost all of their lands. So it was a terrible time.
It destroyed tribal government's ability to respond. It
destroyed the Indian economy. Collier was quoted as saying that
the Indian people in the Choctaw area in Oklahoma were
surviving on $47 per annum; $47 a year as a per capita income
in 1934. Now, that left those people without anything to eat.
And so this is the historical circumstance which the IRA
was intended to address. It did this by doing two things. One
was addressing the land issue. One was addressing the
paternalism versus self-determination issue. On the land issue,
the purpose was to, one, stop the loss of existing Federal
Indian land; and second, to acquire mechanisms to restore
Indian lands within the tribal homelands within the
The third was to put that all together into a system of
tribal constitutions and charters where Indian tribes would
have real authority over their area; real self-determination
that the next Administration could not just change the policy
and wipe out the tribal system. So that is what the
constitutions and charters were intended to do.
Now, by doing that, they thought that they would give the
tribe the real authority and real power. One of the things that
was authorized was tribal land acquisition in section 17,
explicitly authorized the tribal corporations to acquire land.
Section 16 implicitly allowed tribal constitutional governments
to acquire land.
And the fourth paragraph of section five required that all
lands acquired pursuant to the Act should be taken in the name
of the United States by the one that acquired it, and also to
take that property and make it non-taxable so it would not be
lost. The purpose of that was to provide protection for the
tribe's title and to provide protection against State taxation.
So those were the primary things that this Act was designed
to do to address the land issue. There were several sections
that brought the land issue into a way of resolution. There
were several sections that prevented further loss of tribal
land. All of this was designed to improve tribal self-
determination and to improve tribal land acquisition processes.
Thank you very much.
[The prepared statement of Mr. Rice follows:]
Prepared Statement of William Rice, Associate Professor of Law,
University of Tulsa College of Law \1\
\1\ Although I am a tenured law professor at The University of
Tulsa College of Law, I am appearing before this Committee in my
personal capacity as a recognized authority with a background of
litigation, scholarship, commentary, and teaching in the field of
Federal Indian Law. Prior to returning to law school as a professor in
1995, I spent over 16 years in the private practice of law representing
Indian tribes and tribal businesses.
Mr. Chairman, Mr. Vice Chairman, and Members of the Committee. I
very much appreciate the opportunity to testify before this Committee
today \2\ at its Oversight Hearing on ``The Indian Reorganization Act--
75 Years Later: Renewing our Commitment to Restore Tribal Homelands and
\2\ Thursday, June 23 2011, 2:15 p.m., Senate Dirksen Office
Building Room 628.
First I would like to note with appreciation recent Committee
hearings on ``Setting the Standard: Domestic Policy Implications of the
UN Declaration on the Rights of Indigenous Peoples,'' \3\ and
``Examining Executive Branch Authority to Acquire Trust Lands for
Indian Tribes'' \4\ which concerned the land into trust issues created
by the decision in Carcieri v. Salazar, 555 U.S. 379 (2009). I was glad
to see that S. 676 favorably reported to the full Senate and join
others in urging that it be promptly enacted. It seems to me that those
matters are intertwined with the matters which are the focus of this
\3\ Thursday, June 9, 2011.
\4\ S. Hrg. 111-136, May 21, 2009.
One primary purpose of the IRA was to protect and restore tribal
homelands by stopping the loss of Indian lands, and by providing a
number of mechanisms for the consolidation of exist-ing lands and
acquisition of additional lands upon which to rebuild strong viable
Indian communities. A second primary purpose of the IRA was to require
future administrations to honor the desires of Indian people for self-
determination and self-governance by authorizing reorganized tribal
governments and by creating effective federally chartered Indian
business corporations to manage Indian assets and conduct Indian
businesses. To support these primary objectives, the IRA contained
provisions providing scholarships for higher education and providing
Indian preference in government employment so that Indian people would
have the technical and professional knowledge necessary to obtain
Indian service jobs, govern themselves and their territories
effectively, and operate businesses profitably. It also provided a
system of credit in order for Indian people to obtain the resources
necessary for these endeavors. I would like to address the historical
rationale for the Indian Reorganization Act, its enactment, and
implementation during the Roosevelt-Ickes-Collier administration. That
will, I believe, give some foundation to the two suggestions that I
will make to the Committee.
Until the allotment period, Indian treaties with rare exceptions,
drew boundaries between the United States and the Indian tribal
nations, or ceded some tribal lands to the United States while
reserving the remainder, or swapped lands with the United States with
the new lands to be held as Indian lands are held as a treaty
recognized title. \5\ Only a few of the several hundred treaties
actually suggest that title to tribal lands was to be held ``in trust''
for the Tribe. \6\ With rare exceptions, federal statutes applicable
within those Indian territories were aimed at controlling American
citizens who were interacting in trade or other capacities with Indian
people. Indian people, by and large, were not citizens of the United
States absent naturalization but were governed by their own laws, \7\
and their land tenure systems were controlled by tribal, not federal or
state law. \8\
\5\ G. William Rice, Teaching Decolonization: Reacquisition of
Indian Lands Within and Without the Box--An Essay, 82 N.D. L. Rev. 811
(2006). In particular note the text of that article between pages 816-
22 and 833-34 considering the language of various treaties between the
United States and Indian tribes.
\6\ Treaty with the Senecas, Mixed Senecas and Shawnees. Quapaws,
Arts. 16, 20, 6 Feb. 23, 1867, 15 Stat. 513; Treaty with the Delawares,
July 2, 1861, 12 Stat. 1177 (requiring that if purchase money was not
paid, land had to be returned to United States in trust for the tribe);
Treaty with the Senecas, Tonawanda Band, Art. 3, 11 Stat. 735; 12 Stat.
991, November 5, 1857 (authority to repurchase lands from the holder of
``the fee'' who had previously purchased the Indian title).
\7\ Elk v. Wilkins, 112 US 94, (1884).
\8\ Jones v. Meehan, 175 U.S. 1, 20 S.Ct. 1, 44 L.Ed. 49, (1899).
The genesis of the Indian Reorganization Act can be traced back at
least to the General Allotment Act of 1887. \9\ In the General
Allotment Act of 1887, Congress for the first time generally imposed
American real property and inheritance law upon many Indian
territories, \10\ forced the division of the tribal domain amongst the
individual citizens of tribes to be held by a United States title ``in
trust'' for the individual allottee and their heirs, and created a
fictitious ``surplus'' of land that the tribe could be required to
sell. \11\ The result was devastating to the Indian land base, and
tribal authority over it as tribal land and property laws were
displaced by those of the United States. In short, the idea of ``trust
land'' and a non-Indian legal system was introduced into many
reservations, usually then followed by an influx of non-Indian settlers
as a result of the taking of the ``surplus'' lands that were
``created'' after the living individual Indians received an allotment.
Though perhaps intended as a benevolent measure by some, the allotment
system could not have been better designed to destroy tribal
government, individualize tribal properties, and pave the way for
assimilation of Indian people, forcibly if necessary, into the mass of
American citizens. It was remarkably effective in converting Indian
lands into non-Indian land.
\9\ General Allotment Act of Feb. 8th, 1887, Ch. 119, 24 Stat. 388.
For a scholarly view of this Act, see Judith Royster, The Legacy of
Allotment, 27 AZSLJ 1 Spring, 1995.
\10\ See Jones v. Meehan, 175 U.S. 1, 24 (1899).
\11\ Indian General Allotment (Dawes) Act, ch. 119, 24 Stat. 388
(1887) (codified as amended in scattered sections of 25 U.S.C.,
repealed by the Indian Land Consolidation Act of 2000, 114 Stat. 2007).
In the Committee's prior hearing, S. Hrg. 111-136, a chart at page
two of the hearing transcript shows that in 1850 Indian people owned in
excess of 330,000,000 acres of land. This acreage was reduced to
156,000,000 acres by 1881 according to that chart, a net loss during
the later part of the treaty period of a bit over 50 percent of the
Indian lands. According to information presented to Congress by
Commissioner Collier during the hearings on the Wheeler-Howard Indian
Reorganization Act, the administration placed the figure of tribal land
ownership at the beginning of the allotment period in 1887 as
138,000,000 acres of land. By 1934, Indian land ownership had been
reduced another two-thirds from 138,000,000 to 48,000,000 acres. But
this did not tell the whole story. Even these shocking figures were
misleading. Of the 48,000,000 remaining acres, some 20,000,000 acres
were in unallotted reservations, another 20,000,000 acres were desert
or semi-desert lands, and some 7,000,000 were in fractionated heirship
status awaiting sale to non-Indians. \12\ Between 1908 and 1934 ninety
percent of the lands of the Five Civilized Tribes, some 13,500,000
acres, was lost when most of the restrictions against alienation and
taxation of those lands were removed. \13\ Seventy-two thousand out of
101,000 Indians of the Five Civilized Tribes had been made landless by
1934, and were thrown in Collier's words ``virtually into the bread
line.'' The allotments which remained in Indian ownership were often
held in a fractionated heirship where no owner of the land could use
it. This resulted in a situation where the only administrative recourse
was to sell the lands and divide the money, or lease the land to non-
Indians and divide the lease money.
\12\ 12S. Comm. on Indian Affairs, Hearings on S. 2755: To Grant To
Indians Living Under Federal Tutelage The Freedom To Organize For
Purposes Of Local Self-government And Economic Enterprise, 73rd Cong.,
2nd Sess. Part 1, Pages 17 (Feb. 27, 1934). [hereinafter Hearing on S.
2755, Part 1]; S. Comm. on Indian Affairs, Hearings on S. 2755 and S.
3645: A Bill To Grant To Indians Living Under Federal Tutelage The
Freedom To Organize For Purposes Of Local Self-government And Economic
Enterprise; To Provide For The Necessary Training Of Indians In
Administrative And Economic Affairs; To Conserve And Develop Indian
Lands; And To Promote The More Effective Administration Of Justice In
Matters Affecting Indian Tribes And Communities By Establishing A
Federal Court Of Indian Affairs, 73rd Cong., 2nd Sess. Part 2, Page 58
(April 28, 1934) [hereinafter Hearing on S. 2755 and S. 3645, Part 2].
\13\ H. Comm. on Indian Affairs, Hearings on H.R. 6234: A Bill to
Promote the GeneralWelfare of the Indians of the State of Oklahoma and
for Other Purposes, 74th Cong., 1st Sess. 9 (April 22, 1935).
[hereinafter House Hearings on IRA.]
Of course the impact upon tribal economies, social, cultural, and
governmental systems was devastating. Coupled with the vast discretion
which Congress had placed in the Indian Office, including legal
authority to simply ignore bonafide tribal leadership and governmental
structures--sometime even appointing ``tribal leaders'' hand picked by
the Secretary of the Interior, \14\ tribal lack of resources led to a
situation where tribes effectively had few rights that were
enforceable. \15\ Tribes could not hire an attorney to enforce their
rights without administrative approval (even if they could pay the
legal fee), and the administrative policy regarding what tribal
organization would be ``recognized'' and what authority that
organization would be allowed to exercise depended upon the notions of
the person in the Secretary's office.
\14\ Hearing on S. 2755 and S. 3645, Part 2, Pages 106-07 (April
\15\ Lone Wolf v. Hitchcock, 187 U.S. 553 (1903).
Providing significant limitations upon this administrative
authority in favor of Indian self-determination was the second primary
purpose of the IRA. Commissioner Collier explained the reason the
administration promoted this second major feature of the IRA which was
intended to address the sometimes benevolent but generally problematic
federal Indian policy which prevented long term tribal planning and
self-determination because policy changed with each new appointee to
the position of Secretary of the Interior or Commissioner of Indian
Paralleling this basic purpose [of reversing the allotment
system] is another purpose just as basic. The bill stands on
two legs. At present the Indian Bureau is a czar. It is an
autocrat. It is an autocrat checked here and there by
enactments of Congress; but, in the main, Congress has
delegated to the Indian Office plenary control over Indian
matters. It is a highly centralized autocratic absolutism.
Furthermore, it is a bureaucratic absolutism.
The result is that if the Indians all over the country have
had any rights it has been by the whim of the Indian Office or
the Secretary of the Interior. If they are allowed to organize
it is by our whim. That organization may be wiped out upon our
whim. If they are organized, any authority they have is by our
grace and particularly in the allotted areas our bureaucratic
interference is carried up to the minutiae of life. They are
embalmed in a fraternalism that does not do them any good. On
the contrary, it poisons them.
Therefore we are seeking in title I of this bill statutory
authority and direction to enable us to pass back to the
Indians some measure of home rule and control over their own
lives and domestic affairs. We recognize that that home rule
cannot be accomplished through a blanket authority enacted by
Congress, because conditions are infinitely diverse. Therefore,
title I directs the Secretary of the Interior to proceed to
issue a charter of self-government which may contain more or
less power to the tribes; and what may be included within the
charter is enumerated in title I.
But we do not leave to the Secretary of the Interior the final
discretion to issue charters. No tribe takes a charter unless
it wants to. If it wants to go on like it is going, it does so.
If it does want a charter it petitions for it. . . .Such are
the main purposes; the object in title I being to set up a
graduated scheme whereby the Government may transfer its
paternalism back to the Indians themselves; and unless
something of the kind is enacted, all we can do at best is to
go along as benevolent despots certain to be reversed by our
successors who may be just as benevolent as we are, but who may
have different ideas.
It is a condition of total insecurity in which we are holding
the Indians, and they cannot be expected to build their life up
in the proper way in the absence of firm rights. They are
entitled to constitutional protection, and they cannot have it
except by statutory grant by Congress.
In a nutshell that is the bill. It has gone to the President,
who has not sent a message about it but has authorized it to be
stated that he will if it is necessary, and he has indicated
his personal enthusiasm about it. \16\
\16\ Hearing on S. 2755, Part 1 at 31. A reading of these entire
hearings clearly indicatesthat Collier's vision of ``home-rule'' for
Indian tribes went beyond current ``self-determination'' and ``self-
governance'' program management tools. The Constitutions and Charters
of Tribes were to be binding on the Secretary, as binding as an act of
Congress. See, S. Comm. on Indian Affairs, Hearings on S. 2047: A Bill
to Promote the General Welfare of the Indians of the State of Oklahoma
and for Other Purposes, 74th Cong., 1st Sess. p. 27 (April 9, 1935),
President Roosevelt did send a message supporting enactment of the
Wheeler-Howard Bill. House Hearings on IRA at 233-34, May 1, 1934.
The first target of the Wheeler-Howard Bill, then, was clearly the
allotment system created by the General Allotment Act of 1887 \17\ with
its attendant evils of loss of tribal and allotted lands,
fractionization of allotment titles, poverty, and political disunity.
\18\ In order to protect the remaining Indian lands, Section 1 of the
IRA prohibited further allotment of tribal lands, Section 2 extended
the trust or restricted periods upon Indian lands until further action
by Congress, Section 4 prohibited sales of lands except to the tribe or
its members, and Section 16 allowed organized tribes to prohibit the
sale or encumbrance of tribal lands or assets. In order to restore
tribal homelands and provide a land base for the exercise of self-
determination, Section 3 of the IRA authorized the Secretary to return
surplus lands within reservations to tribal ownership, Section 4
encouraged transfers of allotted lands to the tribe or tribal
corporation, and authorized exchanges of lands to consolidate Indian
land holdings. Section 5 authorized the Secretary of the Interior to
acquire land for Indians, and Sections 16 (by implication) and 17
(expressly) authorized organized and incorporated tribes to acquire
land for Indians. According to the fourth paragraph of Section 5 of the
IRA, title all these acquisitions was to be taken in the name of the
United States in trust for the tribe or individual Indian, and all
these acquisitions were to be exempt from state and local taxation.
\17\ Also referred to as the Dawes Act. 24 Stat. 388 (1887)
(codified in part at 25 U.S.C. 331-381 (1983)). See, Judith V.
Royster, The Legacy of Allotment, 27 AZSLJ 1, Spring 1995.
\18\ See, The Purpose And Operation Of The Wheeler-Howard Indian
Rights Bill. (S. 2755:H.R. 7902) (A memorandum of explanation
respectfully submitted to the Members of the Senate and House
Committees on Indian Affairs by John Collier, Commissioner of Indian
Affairs) reproduced at Hearing on S. 2755, Part 1 at 16. The discussion
of the Allotment Act commences at page 17 of the hearing transcript.
The provision which became Section 5 of the IRA was originally
found at Section 7 of Title III of the Wheeler-Howard Bill. In relevant
part, original Section 7 of Title III provided:
SEC. 7. The Secretary of the Interior is hereby authorized, in
his discretion and under such rules and regulations as he may
prescribe, to acquire, through pur-chase, relinquishment, gift,
exchange, or assignment lands or surface rights to lands,
within or outside of existing reservations, including trust or
otherwise restricted allotments, whether the allottee be living
or deceased, for the purpose of providing land for Indians . .
There is hereby authorized to be appropriated, for the
acquisition of such lands . . . , a sum not to exceed
$2,000,000 for any one fiscal year. The unexpended balances of
appropriations made for any one year pursuant to this Act shall
remain available until expended.
Title to any land acquired pursuant to the provisions of this
section, shall be taken in the name of the United States in
trust for the Indian tribe or community for whom the land is
acquired, but title may be transferred by the Secretary to such
community under the condition set forth in this Act. (emphasis
\19\ House Hearings on IRA, Part 1, Page 9 (Feb. 2, 1934); Hearing
on S. 2755, Part 1 at , Page 9 10, (Feb. 27, 1934.)
Clearly, if this draft had been enacted as written, the plain
language of this section would have made all appropriations authorized
by the Bill available until expended, but would have authorized only
lands acquired by the Secretary pursuant to this section to be taken in
the name of the United States on behalf of Indians. There would have
been no authority to take title to property in trust under any other
section without a similar provision whether acquired by the Secretary,
an organized tribe, federally chartered Indian corporation or anyone
else. If this language had been enacted, the language of 25 C.F.R.
151.3 stating that only the Secretary has authority to take land into
trust for Indians would have been consistent with the statutory
But this language was not enacted.
Prior to enacting the Bill, Congress changed the scope of these two
provisions by limiting the authorization for ``carry-over''
appropriations to the appropriation authorized within that section for
land acquisition, and expanded the requirement that acquisitions be
done in the name of the United States (and the corresponding tax
exemption) to include all acquisitions authorized by the Act, in the
Sec. 5. The Secretary of the Interior is hereby authorized, in
his discretion, to acquire through purchase, relinquishment,
gift, exchange, or assignment, any interests 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. For the acquisition of
such, lands, interests in lands, water rights, and surface
rights, and for expenses incident to such acquisition, there is
hereby appropriated, a sum not to exceed $2,000,000 in any one
The unexpended balances of any appropriations made pursuant to
this section shall remain available until expended.
Title to any lands or rights acquired pursuant to this Act
shall be taken in the name of the United States in trust for
the Indian tribe or individual Indian for which the land is
acquired, and such lands or rights shall be exempt from State
and local taxation. \20\ (emphasis added.)
\20\ 20Act of June 18, 1934, 73d Cong., 2nd Sess., Ch. 576. 5,
June 18, 1934, 48 Stat. 984-988, now codified as amended at 25 U.S.C.
In other words, prior to enactment, Congress revised these two
provisions. With respect to ``carry over'' appropriations, Congress
changed the words ``this Act'' to the words ``this section.'' With
respect to requiring that title to lands and other property be taken in
the name of the United States in trust and non-taxable status, Congress
expressly changed the words ``this section'' to the words ``this Act.''
There is simply no interpretive rule which allows administrative or
judicial revision of the statute in order to change the words enacted
by Congress back to the words Congress rejected in their revision of
this language. The requirement of the fourth paragraph of 25 U.S.C.
465 that title to all land or property rights ``shall be taken in the
name of the United States'' applies equally to every entity authorized
by the Act to acquire such lands or rights, including incorporated
tribes and federally chartered Indian corporations, and to every
section of the Act authorizing an acquisition. \21\
\21\ The discretion accorded the Secretary in the first paragraph
of Section 5 of the IRAappears to extend only to the decision to
acquire some interest in land for the purpose of providing land for
Indians. Once that discretion is exercised and the decision is made to
acquire a tract or tracts of property, the plain language of the fourth
section accords the Secretary no discretion as to how to take title to
said lands. The Secretary must take the title to such property in the
name of the United States in trust for the Indian, tribe, or federally
chartered Indian corporation. The same rule would apply to tribal and
corporate acquisitions. The 1990 amendment authorized leasing by tribal
authority for periods not exceeding twenty-five years, an increase from
the original ten year lease authorization. Act of May 24, 1990, Pub.L.
101-301, 3(c), 104 Stat. 207.
The initial implementation regulations and historical records
retrieved from the National. Archives also support the view that these
federal Indian corporate entities were understood to have authority to
take title to the lands and other property they acquired in the name of
the United States in trust for their corporation, tribe, or tribal
members. The first volume of the Code of Federal Regulations, published
in 1938, contained the following provisions:
25 C.F.R. PART 21--LOANS TO INDIAN CHARTERED CORPORATIONS
21.21 Title to property. Except as otherwise provided for in
the loan agreement between the corporation and the United
States, all property purchased with credit revolving funds
shall be purchased in the name of the United States in trust
for the corporation. \22\
\22\ 25 C.F.R. 21.21 (1938). It should be noted that Section 21.9
of the regulationsprohibited the corporate borrower from obtaining
loans for relending, and Section 23.26 prohibited cooperative
associations from borrowing from anyone but the United States while
they had an outstand-ing loan from the revolving fund. This effectively
required them to acquire all their property in trust status.
PART 23--LOANS TO INDIAN COOPERATIVES, OKLAHOMA
23.20 Title to property. The cooperative may he required to
agree that the title to all property purchased with the loan,
except property purchased for resale, shall remain in the
United States in trust for the cooperative until the loan is
\23\ 25 C.F.R. 23.20 (1938).
The standard forms used by the Indian Office are consistent with
these requirements. The ``Indian Chartered Corporation's Application
for Loan of Revolving Credit Funds'' required that:
4. The corporation agrees that except as noted below, title to
all property and increases therefrom, purchased with funds
obtained under this application, will be taken or held in the
name of the United States in trust for the corporation:'' \24\
\24\ Form 5-806 (Revised), Approved by the Secretary of the
Interior (March 11, 1940). National Archives and Records Administration
(hereafter ``NARA''), RG 75, Ft. Worth record center, Anadarko, Entry
E 49, Box 1.
This provision of the standard form of loan agreement appears to
have been applied to loans to incorporated tribes throughout the United
States and to cooperative associations in Oklahoma.
By letter dated April 2, 1947, Walter Woehlke signing for the
Commissioner of Indian Affairs confirmed to the Caddo Indian Tribe of
Oklahoma that ``The credit regulations and instructions under which you
are operating permit loans for the purchase of land. . . . A portion of
the revolving credit funds now available was justified for loans to
tribes for the purpose of purchasing land, particularly heirship lands,
in the name of the tribe borrowing the money.'' \25\ On October 13,
1948, Mr. Zimmerman as Acting Commissioner of Indian Affairs returned
an application from the Cheyenne and Arapaho Tribes for a $300,000 loan
to Mr. Trent, the Western Oklahoma Consolidated Agency's Supervisor of
Extension and Credit without approval. \26\ In explanation, Mr.
Zimmerman listed a number of deficiencies with the loan application,
including: (1) using $200,000 of the requested monies for land loans
tied up too large a percentage of the money for long term debt, (2) the
provisions describing the types of land loans to be made were too
restrictive, and (3) ``In section 4, provision is made that title to
land purchased by the tribe will not be taken in the name of the United
States in trust for the tribe. We do not know how title could be taken
otherwise. \27\ Finally, the Kenwood Indian Cooperative Livestock
Association was required to take title to the cattle it purchased in
the name of the United States in trust for the Association, \28\ and
the Walters District Poultry Association took title to all of its
property in the name of the United States in trust for the Association
with the exception of ``feed after fed.'' \29\
\25\ NARA. RG-75, Ft. Worth, Anadarko, Entry E-49 Box 1.
\26\ NARA, RG-75, Ft. Worth, Anadarko, Entry E-49 Box 1.
\27\ Id. at page 2, paragraph 4. Since the plan to take title in
fee was one reason to reject the application, the only reasonable
interpretation is that title had to be taken by the incorporated tribe
in the name of the United States in trust for the Tribe.
\28\ NARA RG-75, Ft. Worth, Muskogee/5 Tribes, Entry E-579, Box 3,
Extension and Credit, Hist Loan Cards 1945-65.
\29\ NARA, RG-75, Ft. Worth, Anadarko, E-49 Records Relating to
Indian Credit Assoc &Tribal Committees 1939-57 Box 3.
The only federal court decision revealed by research interpreting
the fourth paragraph of 25 U.S.C. Sec. 465 with regard to tribal and
corporate property acquisitions supports the position that a tribe
organized pursuant to the IRA, or an Indian corporation chartered
pursuant thereto must take title to property it purchases in the name
of the United States. In Mescalero Apache Tribe v. Jones, 411. U.S.
1.45 (1973), the Mescalero Apache Tribe protested the application of a
state use tax assessment on the purchase of materials used to construct
two ski lifts at its ski resort on off reservation leased lands, and
sought refund of sales tax paid on basis of gross receipts of the ski
resort from sale of services and tangible property. The Court held
unanimously that the leasehold interest of the Tribe in nonreservation
lands was protected from state taxation. by 25 U.S.C. Sec. 465 as were
the materials the tribe had purchased and attached to the lands. A
majority held that the State could impose its income tax against the
profits of the business because that was not a tax on the land and the
business was outside the reservation. In short, the court held this
leasehold interest was not taxable by virtue of Sec. 465. If that
portion of the fourth paragraph of Sec. 465 prohibiting state taxation
applies when an incorporated tribe acquires a lease, then the rest of
that sentence requiring trust title must also apply to the tribe's
acquisition of land. There is a strong argument that regardless of
whether title is taken in the form required by the fourth paragraph of
25 U.S.C. Sec. 465, title is held in the required form by operation of
law regardless of the words on the instrument of conveyance. \30\
\30\ United States v. 7,405.3 Acres of Land, 97 F.2d 417 (4th Cir.,
1938); 25 U.S.C. 177. Mescalero, supra.
Section 477 of Title 25 of the United States Code provides that
``Any charter so issued shall not be revoked or surrendered except by
Act of Congress.'' Therefore, there does not appear to be any authority
for the proposition that the Secretary may limit, rescind, or revoke
any charter or power contained therein by regulations such as 25 C.F.R.
Sec. 151.3 or otherwise. The Secretary has recognized this as the law:
The attached Constitution and By-laws of the Confederated
Salish and Kootenai Tribes of the Flathead Reservation, adopted
by popular vote on October 4, and approved by the Secretary of
the Interior on October 28 has the force of law, superseding
all departmental regulations and instructions that may be in
conflict with any of' the provisions of' this document.
This document embodies the solemn pledges of Congress and of
the Department of' the Interior to the Indians of the Flathead
Reservation, and all the activities of the Department affecting
the Flathead Reservation must be carried out with firm regard
for these constitutional provisions and by-laws. \31\
\31\ John Collier, Commissioner of Indian Affairs to Division
Chiefs of the Indian Office and to the Indian Service Employees of the
Flathead Reservation, March 26, 1936, NARA, D.C. Branch, RG75, Entry
132-B Circulars, Orders, and other Issuances, 1877-1947, Box 25,
Tribal constitutions and charters, when they have been adopted
by popular vote and approved by the Secretary of the Interior
in accordance with the Acts of June 18, 1934 (Indian
Reorganization Act), May 1, 1936 (Alaska Act), or June 26, 1936
(Oklahoma Indian Welfare Act), have the force of law,
superseding all Departmental regulations and instructions that
may be in conflict with any of the provisions in those
\32\ Interior Department Order No. 556 on ``The Conduct of Tribal
Government,'' Approved by Commissioner Myer, August 8, 1950, superceded
in 64 IAM 1, Oct. 3, 1955, Page 1 of 14 reasserting the same language.
NARA, RG-75, Ft. Worth, Anadarko, E-47, Box 1, Central files, Records
Relating to Credit, 1948-62.
Commissioner Collier stated the fundamental proposition with
respect to the authority of such constitutions and charters to
Commissioner Collier: Now, the act is extremely simple in this
detail. It says that when they organize under the act, under
the Thomas-Rogers bill, and adopt a constitution and bylaws by
a majority vote, by a vote of the majority of the votes cast at
a referendum, and when thereafter the constitution and bylaws
are O.K.'d by the Secretary of the Interior, from that time
forward, the Secretary may not change the constitution and
bylaws except with the consent of the tribe itself through a
majority vote. He is bound by the constitution and bylaws. They
are binding upon him, as binding as acts of Congress. The tribe
may change its constitution and bylaws. The tribe may abandon
its constitution and go back to the old way. Of course,
Congress may change them, but not the Department. It means that
the Indian organization will have dignity, stability, and
Mr. Donahey. Is this the first time there, has been an act to
embody that principle of Indian home rule?
Mr. Collier. The Wheeler-Howard Act (act of June 18, 1939
[sic], 48 Stat. L. 984) embodies it, and this act carries the
same thing over to the Indians [in Oklahoma]. \33\ (Emphasis
\33\ S. Comm. on Indian Affairs, Hearings on S. 2047: A Bill to
Promote the General Welfare of the Indians of the State of Oklahoma and
for other Purposes, 74th Cong., 1st Sess., p. 27 (April 9, 1935).
The Oklahoma Indian Welfare Act \34\ extended the benefits of the
IRA to all organized Indian Tribes in Oklahoma which choose to accept
its provisions except the Osage. \35\
\34\ Act of June 26, 1936, c. 831, 49 Stat. 1967 (25 U.S.C. 501
\35\ Sac and Fox Nation v. Norton, 585 F.Supp.2d 1293 (W.D. Okla.,
2006). ``Since itsapproval by the President on June 18, 1934, the
Indian Reorganization Act has been modified and extended on four
occasions:. . .4. By the Act of June 26 1936 (49 Stat. L. 1967), 'An
Act to promote the General Welfare of the Indians of the State of
Oklahoma, and for other purposes,' virtually all the features of the
original legislation, from which the Oklahoma tribes were excluded by
section 13 of the Indian Reorganization Act, were made to apply to
Oklahoma, along with additional supporting legislation.''
Report of Acting Secretary of the Interior to Senator Thomas, Chair
of the Senate Committee on Indian Affairs dated April 28, 1937,
National Archives and Records Administration (hereafter ``NARA''), D.C.
Record Center, Record Group 75, Entry 132-B Circulars, Orders, and
other Issuances, 1877-1947, Box 25, Notebook 1. The only provision of
the 1RA not extended to the Tribes in Oklahoma was the right to vote to
reject the IRA under Section 18. See generally, Sections 3,4, 5 of the
OIWA, and numerous references and explanations in the legislative
history of the OIWA. S. Comm. on Indian Affairs, Hearings on S. 2047: A
Bill to Promote the General Welfare of the Indians of the State of
Oklahoma and for Other Purposes, 74th Cong., 1st Sess. (April 8, 9, 10,
and 11, 1935) [Hereafter ``Senate Hearings on OIWA'']; H. Comm. on
Indian Affairs, Hearings on H.R. 6234: A Bill to Promote the General
Welfare of the Indians of the State of Oklahoma and for Other Purposes,
74th Cong., 1st Sess., (April 22 through May 15, 1935) [Hereafter
``House Hearings on OIWA'']. See, Section 8 of the OIWA, 25 U.S.C.
Sec. 508 with respect to the exclusion of the Osage Nation.
As the foregoing shows, the historical record supports the
proposition that the incorpora-ted tribes have legal authority
independent of the Secretary, and one could reasonably assert are
required, to take title to their property in the name of the United
States in trust for the proper beneficiary. Thereafter, those tribes by
statute and constitutional or charter provisions would have full
authority to own, hold, manage, operate, and dispose of such property
within the limitations imposed by Sec. 477 and any additional
restrictions negotiated in a constitution or charter of the
Simply stated it is not absolutely necessary that Tribes and
individual Indians have ``trust lands'' in order for their lands to be
``Indian lands'' in the classical sense but federal recognition and
protection of Indian lands is a key element. In order to rebuild tribal
homelands and exercise the self-determination and self-government
therein that this Committee supports, and which is clearly called for
by the Declaration on the Rights of Indigenous Peoples, what is needed
is ownership of the tribal homeland, jurisdiction over it, and
exclusion of the jurisdiction of others to the extent necessary for
Indigenous self-determination. This concept should by no means
eliminate any number of cooperative agreements, joint projects or
activities, and other relationships with federal, state, and local
jurisdictions or other tribes based upon principles of mutual respect
and free, prior, informed, and continuing consent. Whether this
ownership is to be thought of as ``trust lands'' owned, held,
controlled, and managed by the tribe or corporate entity under the IRA,
or a recognized, compensable aboriginal title, or some form of
restricted fee seems to be irrelevant. \36\ It is the result which
counts. The IRA and OIWA provide a tool by which progress may be made
toward restoring sufficient tribal homelands for the restoration of
vibrant sound sustainable tribal communities.
\36\ 25 U.S.C. Sec. 477 can also be thought of as creating a
restricted fee by those who insist upon reading the fourth paragraph of
Section 5 of the IRA as it was proposed instead of as it was enacted.
25 U.S.C. Sec. 177 can also be interpreted to create a restricted fee
title whenever land is bought by any recognized Indian tribe.
In this period of history, it is almost mandatory to address the
fears of those who would object to Indians purchasing property because
they dislike Indian gaming and economic development. While I do not
think a full discourse on this question is called for here, I would
make two simple points. First, the Supreme Court has already said in
the Mescalero case that while off reservation interests in lands
acquired by tribes under this authority are tax exempt, tribal
activities upon such lands remain subject to significant state
authority--which would pre-clude off reservation gaming on such lands
absent additional federal action. Of course, on reservation
acquisitions would be Indian country as defined in 18 U.S.C.
Sec. 1151(a) which includes within the definition of Indian country all
lands within the boundaries of any Indian reservation notwithstanding
the issuance of any patent. The second point to make is that with
respect to Indian gaming, Congress has already severely limited gaming
on newly acquired properties to the extent necessary. 25 U.S.C.
Sec. 2719. There is nothing in the IRA or OIWA which would change or
affect the balance already set by Congress on acquisitions for gaming
Because of the historical termination era of the 1950s,
Commissioner Collier's imple-mentation of the IRA was administratively
abandoned without Congressional authority, and forces opposed to the
IRA changed the BIA manual to refuse to recognize the right and obliga-
tion of the incorporated entities and tribes to take title to their
property as provided in the IRA. \37\ This termination era policy still
prevails in the regulations of the Department, 25 C.F.R. Sec. 151.3. To
my knowledge whether that regulation may divest a tribe of it's
chartered powers has not yet been litigated. So, what is it that
Congress can do to make progress toward the goals of the Declaration on
the Rights of Indigenous Peoples, the aspirations of numerous Indian
tribes, and resolving some of the issues facing the government and
\37\ Theodore H. Haas, Chief Counsel, United States Indian Service,
TEN YEARS OF TRIBAL GOVERNMENT UNDER I. R. A., United States Indian
Service Tribal Relations Pamphlet 1 at 5-6 (January 1947); Bureau of
Indian Affairs Bulletin 335, Supp. 1, December 16, 1953. NARA RG-75,
Ft. Worth, Muskogee/ 5 Tribes, E-579, Box 2, Extension and Credit, Hist
Loan Cards 1945-65; Memo Dated June 11, 1954,
First, I would suggest that Congress encourage the Interior
Department to return to the practice of the Roosevelt-Ickes-Collier
administration who developed, enacted, and implemented the IRA by
recognizing and supporting the authority of organized tribes and
corporations to take title to their property in the name of the United
States, and to control, manage, and operate it themselves within the
limits set by 25 U.S.C. Sec. 477. Should the tribe or corporation
exceed its authority, the proper response would be for the government
to sue to cancel the offending instrument, unless additional limited
oversight authority has been freely agreed to by the tribe in its
Second, Congress could provide authority to finally confirm the
promise of the Self-Determination Act and Self-Governance Act that
Tribes would in fact be able to negotiate real political and legal
changes with a view toward recovering legal and political rights which
they have been denied, or preventing the application of legislation
which they deem inimical to their needs or way of life. This is the way
of America--that legitimate government requires the consent of the
governed. In the context of Indian tribes that first meant a treaty
relationship. To the extent possible, the Declaration calls for the
establishment once again of a consensual relationship, if not by treaty
then by some other available means. The Indian Child Welfare Act's
provisions authorizing tribes to reassume jurisdiction over Indian
child custody proceedings, and the IRA's provisions which allowed each
tribe to vote as to whether the IRA would apply on their reservation
are examples of legislation that has provided a mechanism for tribal
people and their leaders to have a direct and important say in the
legal and political structure of the tribal homelands. Negotiation of
tribal constitution and charter provisions would provide a mechanism
for accomplishing such changes. I would encourage Congress to consider
Once again I thank you Mr. Chairman, Mr. Vice Chairman, and Members
of the Committee for the opportunity to testify today, and look forward
to any questions you may have.
The Chairman. Thank you very much, Professor Rice.
Professor Goldberg, please proceed with your statement.
STATEMENT OF CAROLE E. GOLDBERG, JONATHAN D. VARAT
DISTINGUISHED PROFESSOR OF LAW, UCLA SCHOOL OF LAW
Ms. Goldberg. Mr. Chairman, thank you very much for the
opportunity to present this testimony today.
My goal today is to explain the overall purpose of the
Indian Reorganization Act in so far as it illuminates the
interpretive questions posed in the Carcieri case. And you have
already heard two distinguished witnesses indicate what some of
these broad policies are.
I want to underscore my agreement and to refer to some very
prominent historians of the Indian Reorganization Act who have
characterized the Act as embodying a Federal policy they call
the ``tribal alternative.'' And what this policy did was
abandon the goal of assimilation in favor of the belief that
Native American societies had a right to exist on the basis of
a culture different from the dominant one in the United States,
and this could only be achieved through establishment and
reestablishment of the territorial basis for tribal self-
determination. That was a key component of the purpose of the
Indian Reorganization Act.
But I would like to focus specifically on how these broad
purposes have implications for the interpretive question in
Carcieri. And I am going to draw on an amicus curiae brief that
I, along with other law professors, filed in that case trying
to explain that history, and in particular focus on the
question of whether a tribe is considered ``now under Federal
jurisdiction.'' The Carcieri decision says that we should focus
on ``now'' as being 1934.
What I want to emphasize here is that misconstrues how the
understanding was at that time in 1934 of what it actually
meant to be recognized or not recognized under Federal
jurisdiction. Because one of the things that we pointed out is
that today it is pretty clear, Tribes are either on a list,
they are recognized, or they are not on a list, they are
unrecognized. Of course, that makes a huge difference, but this
bright line, nearly permanent differentiation between
recognized and unrecognized tribes, is actually of recent
For the first 70 years of U.S. history, there actually was
no such clear-cut concept. What happened is that Congress would
pass laws that applied to Indian Country or Indian tribes or
Indians, and then it was up to the Executive Branch or to the
Federal courts to determine on an ad hoc basis to whom these
statutes should be applied.
And not surprisingly, given that there weren't a lot of
definitions out there in the statutes, we draft statutes better
these days, there was a lot of confusion about it. And
basically as of 1934, the concept of recognition was really
only beginning to take shape. It wasn't universally applied or
There was no comprehensive list of federally recognized
tribes at the time of enactment of the IRA and no standard set
of criteria other than one court decision, the Montoya case,
that gave a rather open-ended definition of it.
So it is extremely unlikely that Congress in 1934 would
have intended that recognition as of that time be the
prerequisite for the Act to apply. And frankly, if you had
interpreted the Act as applying as of that date, it is
extremely difficult, if not impossible, to apply it based on
that timing now, as we are nearly 100 years later.
In fact, as of 1934, there would have been an awareness
that tribal status has never been static and those who drafted
and passed the Act acted in a historical context in which
tribal status and recognition were known to be fluid in nature.
One of the examples I give in my testimony is the status of the
Pueblo Indians, which according to the Supreme Court at one
point rendered them not Indian and then in the U.S. Supreme
Court's later decision, they were found for purposes of the
Federal liquor control laws to be Indians.
It is very important to understand this. At the time of the
Floor debate and discussions of the IRA back in 1934, the
Chairman then of the Indian Affairs Committee, Burton Wheeler,
was concerned about this very problem and he was reassured by
John Collier that if there was a change in status, that that
would be reflected in the application of the IRA. And I quote
this passage in my testimony to make that clear.
So I think it is very important to have this more flexible
interpretation of the statute and if it needs to be
incorporated in an amendment, I think that is the most
desirable way for it to happen.
[The prepared statement of Ms. Goldberg follows:]
Prepared Statement of Carole E. Goldberg, Jonathan D. Varat
Distinguished Professor of Law, UCLA School of Law
Good afternoon, Chairman Akaka and distinguished members of the
My name is Carole Goldberg and I am the Jonathan D. Varat
Distinguished Professor of Law at UCLA School of Law, where I teach
Federal Indian Law and Tribal Legal Systems, and serve as Director of
our Joint Degree Program in Law and American Indian Studies. I am also
a Justice of the Hualapai Court of Appeals of the Hualapai Tribe in
Arizona, and a Presidential appointee to the Indian Law and Order
Commission, which was authorized by the Tribal Law and Order Act of
2010. The views I am expressing in this testimony are my own as a
scholar and teacher in the field of Federal Indian Law. In my 39 years
as a professor, I have co-authored the 1982 and 2005 editions of
Cohen's Handbook of Federal Indian Law, a casebook entitled American
Indian Law: Native Nations and the Federal System, and numerous other
books and articles on topics including the history of the Indian
Reorganization Act. I was also one of twelve law professors who filed
an amicus brief before the United States Supreme Court in the 2009 case
of Carcieri v. Salazar, relating the history of the Indian
Reorganization Act, and its bearing on the questions of statutory
interpretation presented in that case.
My goal today is to explain the overall purpose of the Indian
Reorganization Act of 1934 (IRA), insofar as it illuminates the
interpretive questions posed in Carcieri. I will also suggest how the
statute could be clarified to ensure consistency with that purpose.
I. Overall Purpose of the Indian Reorganization Act
Respected historical works agree that the primary purpose of the
Indian Reorganization Act was to revitalize tribal governments by
restoring land bases and enabling Native groups to organize governments
that could wrest control over important decisions from the federal
Indian bureaucracy. The most comprehensive study of the history of the
Indian Reorganization Act, Professor Elmer Rusco's A Fateful Time: The
Background and Legislative History of the Indian Reorganization Act
(2000), describes the Act as embodying a federal policy he calls ``the
tribal alternative,'' a term first coined by another distinguished
historian of the IRA, Graham Taylor. According to Rusco, this new
policy ``abandoned the goal of assimilation in favor of the belief that
Native American societies had a right to exist on the basis of a
culture different from the dominant one in the United States.'' Land
acquisition was always viewed as a key component in realizing this
``tribal alternative.'' In the introduction to Title III, an early
version of the Act made it clear that it was the ``policy of Congress
to undertake a constructive program of Indian land use and economic
development, in order to establish a permanent basis of self-support
for Indians living under Federal tutelage; . . . and to provide land
needed for landless Indians and for the consolidation of Indian
landholdings in suitable economic units.''
Supporting the historians' analysis, the terms of the Act
underscore the dual importance of land and self-government if Native
nations are to maintain and strengthen their distinct political, legal,
economic, social, and cultural institutions. On matters affecting land
and resources, the IRA prohibited future allotment; extended existing
trust periods on already allotted lands; authorized the Secretary of
the Interior to restore remaining ``surplus'' lands to tribal
ownership; prohibited sale of tribal lands without the consent of the
tribe; authorized acquisition of lands inside and outside existing
reservations and the taking of such land into trust for the benefit of
tribes; and allowed the Secretary to proclaim new reservations or
expand existing ones. On matters affecting self-government, the IRA
enabled any tribe ``residing on the same reservation'' to organize
``for its common welfare'' under constitutions approved by the federal
government. To reinforce the view that these new constitutional
governments would be exercising preexisting aboriginal self-governing
powers, not newly conferred federal powers, the Act states that ``In
addition to all powers vested in any Indian tribe or tribal council by
existing law, the constitution adopted by said tribe shall also vest in
such tribe or its tribal council'' a set of specified ``rights and
powers.'' As historian Rusco observes, ``This section makes it clear
that the legal theory behind the IRA is that Native American
governments established under its authority exercise aboriginal
authority not withheld from them.''
Legislative history of the IRA also supports the historians'
reading of the Act. The House Report on the IRA confirms that
Congress's purpose was ``to rehabilitate the Indian's economic life and
to give him a chance to develop the initiative destroyed by a century
of oppression and paternalism.'' Both the House and Senate Reports
indicate that Congress believed that a critical aspect of that broad
goal was ``to conserve and develop Indian lands and resources.'' As
Senator Wheeler, one of the IRA's sponsors, said on the floor of the
Senate, the provision for taking land into trust would ``provide land
for Indians who have no land or insufficient land, and who can use land
Historian Elmer Rusco affirms that the terms of the IRA
consistently incorporated the view of land as ``vital to preserving the
distinctive cultures and social structures that still characterized
much of Native America.'' In other words, rectifying unjust losses of
tribal land through land restoration was powerfully linked to self-
determination, self-governance, language revitalization, and cultural
survival for Native peoples. Today, trust status is sought for lands
where tribes are locating housing, medical clinics, education and early
childhood programs, and government offices, among others uses vital to
tribal self-determination. Trust status is used to afford protection to
sacred and culturally significant sites that would otherwise become the
targets for culturally destructive projects, such as the county waste
dump proposed in San Diego County. All of these uses are fulfilling the
original vision of the IRA, and all of these uses should be available
to any tribe that is federally recognized at the time it seeks trust
status for its lands under the IRA.
II. The Interpretive Questions Presented in Carcieri
Under the IRA, 25 U.S.C. 465, the Secretary of the Interior is
authorized to acquire lands for ``Indians,'' a term defined in 25
U.S.C. 479 to include ``all persons of Indian descent who are members
of any recognized Indian tribe now under federal jurisdiction''
(emphasis added) and all persons of at least one-half Indian ancestry.
The IRA also states in section 465 that land may be taken into trust
for an ``Indian tribe or individual Indian,'' and defines the term
``tribe'' in section 479 as ``any Indian tribe, organized band, pueblo,
or the Indians residing on one reservation.'' The question presented in
Carcieri v. Salazar was how to interpret the phrase ``now under federal
jurisdiction.'' Rhode Island argued that the IRA's language allowing
the federal government to acquire land and place it in trust applies
only to Indian tribes that were both recognized and under federal
jurisdiction on June 18, 1934, the date on which the IRA was enacted.
The Narragansett Tribe, whose land-into-trust request the state had
challenged, advanced the view that the Act applies to tribes that are
federally recognized as of the time the land acquisition and placement
in trust occurs. The Court decided that a tribe's status as of the date
of enactment of the IRA was controlling. Exactly what form that status
must take is unclear from the Court's opinion, however, because the
Court assumed, based on certain elements of the record, that the
Narragansett Tribe was not ``under federal jurisdiction'' in 1934.
No matter how the term ``now under federal jurisdiction'' is
construed and applied by the Department of Interior and the courts
after Carcieri, the Court's emphasis on the date of enactment of the
IRA seriously misconstrues the broader purposes of the Act and the way
federal-tribal relations operated during that time. There are no direct
statements in the legislative history of the IRA that clarify this
phrase. Writing in The New Deal and American Indian Tribalism: The
Administration of the Indian Reorganization Act, 1934-1945 (1980),
Graham Taylor observes, ``What is a tribe? The Indian Reorganization
Act did not seriously face this question. . . .'' Rusco notes that the
IRA ``did define Indian and tribe, though ambiguously.'' Nonetheless,
an understanding of the legal and administrative context in which the
IRA was drafted points to a way of interpreting these terms. Drawing
upon the law professors' amicus brief in Carcieri, I will explain how
this understanding of the IRA and the circumstances of its enactment
dictates a more flexible reading of the phrase ``now under federal
jurisdiction,'' one that allows for changes in federal recognition of
tribal status over time.
III. To Fulfill Its Purposes, The Ira Must Apply to any Tribe That is
Recognized as of the Time the Act is Invoked
As I and the other Indian law professors pointed out in our amicus
brief, today all Indian tribes fit into one of two categories:
``recognized'' or ``unrecognized.'' A recognized tribe is entitled to
all of the benefits (health, education, etc.) extended by federal law
to Indian tribes. Unrecognized tribes, on the other hand, are not
entitled to most federal services and can obtain recognition only by
prevailing in the difficult and lengthy administrative process
contained in 25 C.F.R. Part 83, or, on rare occasion, through
congressional legislation. But this bright-lined, nearly permanent
differentiation between recognized and unrecognized tribes is recent in
For the first 70 years of United States history, there actually was
no concept of ``recognized'' versus ``unrecognized'' tribes. According
to a highly respected historian of the federal recognition process,
William W. Quinn, Jr., the terms ``recognize'' and ``acknowledge'' were
almost exclusively used in the cognitive sense, indicating that a
particular tribes was known to the United States. Congress enacted
legislation that applied to ``Indian country,'' ``Indian tribes,''
``Indian nations,'' ``Indians,'' ``Indians not citizens of the United
States,'' ``Indians not members of any of the states,'' and the like.
It was then up to the executive branch and the federal courts to
determine, on an ad hoc basis, to whom these statutes should be
If Congress or the executive branch had previously concluded that a
tribe existed, federal courts generally refused to disturb this
finding. Situations necessarily arose, however, where neither Congress
nor the executive branch had previously acknowledged the existence of a
particular tribe. In these cases, federal courts were required to
decide whether that group constituted an Indian tribes as defined in
particular statutes. In Montoya v. United States (1901), the Supreme
Court eventually provided a definition of the terms ``tribe'' and
By a ``tribe'' we understand a body of Indians of the same or a
similar race, united in a community under one leadership or
government, and inhabiting a particular though sometimes ill-
defined territory; by a ``band,'' a company of Indians not
necessarily, though often, of the same race or tribe, but
united under the same leadership in a common design.
Not surprisingly, however, confusion still remained.
As Quinn points out in a 1990 article in the Journal of Legal
History, by the early twentieth century, the concept of recognition of
Indian tribes in the jurisdictional sense ``was only beginning to take
shape,'' and it ``was not universally applied, accepted or, frankly,
understood.'' No comprehensive list of federally recognized tribes was
ever created prior to enactment of the IRA in 1934, and no standard
criteria for determining whether to recognize an Indian tribe existed
at that time. Thus, it is extremely unlikely that Congress would have
intended the IRA to be interpreted to require formal federal
recognition as of 1934 in order for provisions of the Act to apply.
Furthermore, such an interpretation would make it extraordinarily
difficult, if not impossible, to apply the Act nearly 100 years later.
In fact, tribal status has never been static, and those who drafted
and passed the IRA acted in a historical context in which tribal status
and recognition were known to be fluid in nature. In our amicus brief,
the law professors provide numerous examples of congressional and
judicial decisions reversing previous determinations of the status of
individual tribes. Furthermore, the executive branch has often changed
these determinations to reflect alterations in federal Indian policy
and the fact that tribal groups survived despite policies intended to
remove them from federal responsibility. A prime example are the Pueblo
Indians of New Mexico, first found by the Supreme Court not to be
Indians under the Nonintercourse Act, and forty years later found to be
Indians for purposes of federal Indian liquor control laws that
Congress had expressly extended to the Pueblos. Thus, tribal status was
viewed as fluid, and the determination of which tribes existed was
largely left to Congress and the Executive.
This history is essential to understanding the IRA's definition of
``Indian.'' As originally drafted, this definition was to include ``all
persons of Indian descent who are members of any recognized Indian
tribe.'' Senate Indian Affairs Chairman Burton Wheeler, however, was
concerned that this provision was too broad. He stated:
Chairman. But the thing about it is this, Senator; I think you
have to sooner or later eliminate those Indians who are at the
present time--as I said the other day, you have a tribe of
Indians here, for instance in northern California, several so-
called ``tribes'' there. They are no more Indians than you or
I, perhaps. I mean they are white people essentially. And yet
they are under the supervision of the Government of the United
States, and there is no reason for it at all, in my judgment.
Their lands ought to be turned over to them in severalty and
divided up and let them go ahead and operate their own property
in their own way.
Wheeler obviously believed that once Indians had fully assimilated
into white society, they should no longer be afforded the protection of
the IRA even if they were currently under federal jurisdiction.
Commissioner of Indian Affairs John Collier responded to this
Commissioner Collier. Would this no meet your thought, Senator:
After the words ``recognized Indian tribe'' in line 1 insert
``now under Federal jurisdiction.'' That would limit the act to
the Indians now under Federal jurisdiction, except that other
Indians of more than one-half Indian blood would get help.
It is as a result of this very exchange that the phrase ``now under
federal jurisdiction'' was added to the IRA. In suggesting this
language, Collier obviously intended that, if at a later date, Congress
or the Executive Branch agreed with Senator Wheeler's characterization
of the Indians in question, and chose to terminate the government-
togovernment relationship with that tribe, it would no longer receive
the benefits of the IRA. Thus, ``now'' should refer to the date on
which the Secretary of the Interior attempts to exercise his or her
authority under the Act.
Another reason for taking a more fluid view of the timing of
recognized tribal status, and not fixing it as of 1934, is that the
Department of the Interior made numerous mistakes in identifying tribes
in the immediate aftermath of the IRA. There was no comprehensive list
of federally recognized Indian tribes in June 1934. It was only after
the Act was passed that Commissioner Collier was given the daunting
task of determining which Indian groups were or should be recognized
tribes by the federal government and permitted to organize under the
Act. Collier hastily complied a list of 258 groups. This list is
universally recognized to include serious omissions, and these mistakes
should not be frozen into the IRA.
As the Indian law professors note in our amicus brief, nearly all
of Commissioner Collier's mistakes involved landless Indian tribes.
This was no coincidence. The IRA, as originally enacted, only provided
the right to organize a constitutional government, charter a
corporation, or vote on application of the Act to any ``Indian tribe,
or tribes, residing on the same reservation.'' Thus, Commissioner
Collier logically began determining recognized tribes by referring to
lists of federal land holdings set apart for Indians. For these
reservation tribes, even if he mistakenly believed that they no longer
maintained tribal relations (and therefore, could not be a recognized
tribe) this error could be immediately remedied. The definition of
``Indian'' in the IRA also included descendants of previously
recognized tribes that resided within the boundaries of an Indian
reservation on June 1, 1934. Consequently, despite unrecognized status,
their existing reservation permitted these Indians to organize under
the IRA and immediately regain recognition.
For landless Indian tribes, there was no comparable escape hatch.
Although the IRA provided for the creation of ``new Indian
reservations,'' thus indicating a congressional understanding that
landless tribes could take advantage of the Act, the ad hoc nature of
recognition resulted in many of these tribes being overlooked. Even
where landless tribes did come to his attention, Commissioner Collier
often mistakenly determined that the tribe was no longer in existence.
In 1975, Congress created the American Indian Policy Review Commission,
which was charged with conducting the first comprehensive review of
Indian affairs in almost 50 years. After two years of study, in its
Final Report, the Commission identified dozens of tribes that had not
been recognized by the federal government simply due to bureaucratic
oversight. Litigation brought by east coast tribes in the 1970s, such
as the successful suit by the Passamaquoddy Tribe of Maine, also
highlighted the fact that there were tribes fully subject to federal
responsibility under the Nonintercourse Act that were being denied
protection by the Department of Interior.
Fortunately, since that time, many of these errors have been
rectified, either through congressional legislation or through the
administrative process for federal recognition first established in
1978. To prevail under that administrative process, found in 25 C.F.R.
Part 83, a petitioning group must demonstrate that it satisfies each of
the following criteria:
1. The petitioner has been identified as an American Indian
entity on a substantially continuous basis since 1900;
2. A predominant portion of the petitioning group has existed
as a distinct community from historical times until the
3. The petitioner has maintained political influence or
authority over its members as an autonomous entity from
historical times until the present;
4. The petitioner's membership consists of individuals who
descend from a historical Indian tribe or from historical
Indian tribes which combined and functioned as a single
autonomous political entity; and
5. The membership of the petitioning group is composed
principally of persons who are not members of any other
recognized Indian tribe.
Voluminous documentary evidence is required to satisfy these
criteria. In fact, petitions for recognition take years to assemble and
are typically supported by thousands of pages of historical
documentation and expert reports.
The Office of Federal Acknowledgment--which has several research
teams, each consisting of a cultural anthropologist, genealogical
researcher, and an historian--evaluates these petitions, along with any
information presented by other interested parties. While Commissioner
Collier spent less than one year determining the status of nearly every
tribe in the continental United States, an OFA team routinely spends
one year or more on each documented petition before making a
recommendation regarding the merits of that petition to the Assistant
Secretary of Indian Affairs. After reviewing OFA's recommendations, the
Assistant Secretary will publish a final determination in the Federal
Register. Since 1978, the Executive Branch has used this process to
grant recognition to 17 Indian tribes and deny recognition to more than
These recognition decisions have definitively revealed several of
Commissioner Collier's mistakes. In our amicus brief, the Indian law
professors provide two detailed illustrations of such errors in the
1934 determinations, one involving the Cowlitz Indian Tribe or
Washington, the other involving the Grand Traverse Band of Ottawa &
Chippewa Indians of Michigan. In each instance, there was extensive
documentation of the ongoing tribal organization and federal relations
of the tribe, despite lapses in formal federal recognition. An
illustrative statement appears in the Department of the Interior's
decision acknowledging the Cowlitz: ``. . . [T]he Department was
mistaken when, in the 1920s and 1930s, it claimed that the Tribe no
longer maintained its 'tribal organization.' ''
These and other corrective determinations by the Department of the
Interior are designed to undo injustices suffered by tribes that have
been wrongly denied the benefits of federal recognition. As the
sponsors of the IRA understood, key to rectifying these injustices is
the ability to restore the territorial basis for tribal self-
determination. Under Federal Indian Law, the trust status of land is a
prime determinant of Indian country status, which in turn influences
the geographic scope of tribal self-governing powers, and determines
whether tribes will be shielded from state taxation and jurisdiction.
It is the place where tribes can control their sacred, culturally
significant sites, sustain their languages, and determine how resources
should be developed and shared.
It would be a harsh and ironic outcome if tribes could succeed in
the extremely onerous federal recognition process, only to find that
they are unable to revitalize their communities and cultures through
the establishment of a reservation consisting of land taken into trust
under the IRA. For example, I have been working with and writing a book
about a currently non-federally recognized group, the Fernandeno
Tataviam Band of Mission Indians, whose ancestral territory is in the
San Fernando Valley north of downtown Los Angeles. In their pending
petition for federal recognition, they are seeking, among other things,
to rectify injustices that occurred when their land in southern
California was taken from them around the turn of the twentieth
century. Should they eventually prevail in the federal recognition
process, it would indeed be a fulfillment of the original purposes of
the IRA for land to be taken into trust for them so that their tribal
community can advance its culture and collective goals. To achieve that
end, Congress should clarify that the provisions of the IRA apply to
any tribe that is federally recognized as of the time the terms of the
Act are invoked.
Chairman and members of this Committee, I appreciate this
opportunity to testify on the history, significance, and purpose of the
Indian Reorganization Act, especially as they bear on the interpretive
issue presented in Carcieri v. Salazar.
I am happy to answer any questions whenever the time is
appropriate. Thank you.
The Chairman. Thank you very much, Professor Goldberg, for
It is great to hear from you, our distinguished witnesses.
Professor Hoxie, in your testimony, you detailed a
consultation process that John Collier and the Congress
undertook prior to enacting the Indian Reorganization Act.
During those discussions, did the Congress ever decide what it
meant for a tribe to be under Federal jurisdiction?
Mr. Hoxie. No, they did not. The congresses were
unprecedented inventions, really, of Commissioner Collier, who
had proposed his legislation in January; had gotten a kind of
chilly response from Congress. And as he began his negotiations
and discussions with Congressional leaders, he organized nine
congresses around the Country that were general invitations to
Indian people in those regions.
They were held in every region of the Country. Most were
chaired by Collier himself and some some of his staff chaired
them. And they are remarkable events where he asked Indians
what they thought of this law and what they thought of the
provisions. And he made revisions based on some of the
complaints and suggestions and questions that people had.
But there certainly is no evidence that I am aware of that
there was anyone checking people at the door; that there was a
list or there was anything like that. This was an open
consultation with Indian people and it brought a huge variety
of people in all of the complex circumstances that have been
referred to by the other witnesses to those meetings and with
the intention of having the law obviously apply to all of them.
The Chairman. Thank you.
Professor Rice, in your testimony, you mentioned the recent
hearing the Committee held on the United Nations Declaration on
the Rights of Indigenous People. Do you think the policies in
the Indian Reorganization Act and the U.N. Declaration are
compatible when it comes to treatment of Indian lands and self-
governance of indigenous peoples?
Mr. Rice. Mr. Chairman, I believe they can be made so. They
are very, very close as we sit here and look at the text of the
statute and we look at the text of the Declaration. The
statutory authority in the IRA calls for self-determination by
tribes, self-governance by tribes, and the recovery of tribal
homelands that have otherwise been lost. The Declaration calls
for those same things.
The way and the mechanisms that we go about doing those
things may be subject to some adjustment and some of that
adjustment is probably necessary on the administrative side and
it could be encouraged by Congress in a number of ways. I will,
of course, defer to the Committee on the best way to encourage
But self-determination in the sense of recovery and
readjusting tribal homelands means that that authority should
be in the hands of the tribe. If there are adjustments to be
made in the way that allotments are held, these fractionated
lands are to be turned over to tribal lands or otherwise some
process with, that should be in the hands of the tribe. If land
is to be recovered by the tribes within its reservation
boundaries, its homeland area, the tribes should have the
opportunity to do that themselves.
All of that, I think, was in the sights that Collier had.
They were aware of where Collier was trying to go. And all of
that, I believe, would be consistent with the Declaration on
the Rights of Indigenous People, yes, sir.
The Chairman. Thank you.
Professor Goldberg, as a distinguished scholar, you have
written extensively about criminal jurisdiction and law
enforcement in native communities. What is the impact of the
Carcieri case on public safety and law enforcement in native
Ms. Goldberg. Thank you very much, Mr. Chairman.
As a presidential appointee to the Indian Law and Order
Commission that was established under the Tribal Law and Order
Act which the Congress passed last summer, I have a very deep
interest in the potential consequences of the Carcieri decision
for criminal justice in Indian Country.
I have also been conducting for the past several years,
under the sponsorship of the National Institute of Justice in
the U.S. Justice Department, a major nationwide study of law
enforcement and criminal justice in Indian Country.
I do have serious concerns that the Carcieri decision can
lead to or has led to challenges to the appropriate Indian
Country status of lands that have been taken into trust under
long-prevailing policy of the Federal Government. And this type
of questioning of the Indian Country status of lands that were
taken into trust can very well lead to legal challenges in
criminal prosecutions that have been brought in Federal court
under Federal statutes such as the Major Crimes Act or the
Indian Country Crimes Act.
So that the questioning of Indian Country status can in
turn lead to questioning of prosecutions and even convictions
that have already occurred in Federal court. And I think there
is a public safety dimension to the Carcieri decision that
warrants the consideration of this Committee.
The Chairman. Well, thank you. Thank you very much.
Let me now call on my colleague for any questions or
remarks he may wish to make.
STATEMENT OF HON. TOM UDALL,
U.S. SENATOR FROM NEW MEXICO
Senator Udall. Thank you, Chairman Akaka. And thank you for
organizing this hearing and the various panels that we are
going to hear from today.
First of all, let me say I very much support your bill that
you introduced to deal with this. I am a cosponsor of it. I
believe a clean bill on the Carcieri fix is what needs to be
done. So we need to move forward with that as expeditiously as
we can. We almost had it done in the last Congress, as you
know, and we are going to have to find out what those obstacles
were that prevented it from occurring and try to make sure we
get those out of the way so we can get this done.
I would ask consent to put my opening statement in the
record and just go directly to questions.
The Chairman. Without objection, it will be included.
Senator Udall. Thank you.
[The prepared statement of Senator Udall follows:]
I would like to thank the Chairman for holding this important
hearing. The Indian Reorganization Act of 1934 was a monumental
recognition of the rights of tribes to maintain and regain their lands.
Land is a vital part of any society; it is the basis of economic
development, social interaction, and often even identity.
As the members of the Committee and those participating on the
panels and in the audience know, this right, laid out in the Indian
Reorganization Act 75 years ago, has recently been called into question
by the Supreme Court's decision on Carcieri vs. Salazar. Sadly, this
decision has sent ripples through Indian Country as questions of
litigation and federal recognition have reverberated in almost every
Native American Community.
I applaud Chairman Akaka on his quick action this congress to
introduce and pass out of Committee a bill to make a simple yet vital
fix to the Indian Reorganization Act that would reverse the Carcieri
vs. Salazar decision. I am a strong support of this bill (S. 676) and
urge my colleagues in the congress to support this legislation as well.
Thank you, and I look forward to hearing from the witnesses on the
Senator Udall. In your testimony, many of you have
indicated that the Carcieri decision will potentially lead to
extensive litigation for numerous tribes. And I think, Ms.
Goldberg, you talked a little bit about that in your last
answer here. Could you estimate how many tribes would
potentially have to engage in litigation? I mean, how big of a
problem we are looking at here? Do any of you want to jump into
Ms. Goldberg. I think there may be other witnesses who are
going to be testifying today who are going to have a better
sense of that, but I couldn't give you a specific number.
Senator Udall. But you believe, from your last answer, this
has opened up a number of avenues for challenge under the
Ms. Goldberg. I have seen specific instances of it. There
are matters that are before the Department of the Interior
right now calling into question the appropriateness of land
having been taken into trust in light of Carcieri. And these
would definitely include tribes that have been through the
Federal recognition process through the Office of Federal
There are 17 tribes that have been acknowledged through
that process, and I couldn't tell you at this moment how many
of them are in the process of having land taken into trust or
have had land taken into trust. That is certainly one
touchstone, but there are others.
And I think there is certainly jeopardy in all of these
Senator Udall. So what you are saying is one of the
creators of litigation is going to be if a tribe took land into
trust, that now under this decision that can be challenged. And
we all know how expensive it is to go through the trust process
and that. So we are adding on top of that a very extensive
litigation experience and that kind of thing.
Ms. Goldberg. I don't doubt that, and I think it will be
happening at the administrative level, as well as in the
Mr. Rice. Senator?
Senator Udall. Yes, please, Mr. Rice.
Mr. Rice. I am sorry. If I could add something to that, my
experience has been as a litigator before I was a law professor
that people will find a way to bring these challenges when it
is in their own best interest. And for these tribes, not only
the ones that have been acknowledged since the 1934-area date,
but for tribes who have simply renamed themselves in their
constitutions; for tribes who have done exactly what these
statutes and the IRA and the OIWA and the Alaska Act called on
them to do, and that is to reorganize their government.
Sometimes, the Indians on one reservation would divide
themselves into two tribes. Sometimes the two tribes on one
reservation combined themselves into one tribe for purposes of
these constitutions and charters. Were the now-reconstituted,
reorganized tribe, was that tribe recognized in 1934? Do they
have sovereign immunity? Do they have the right to pass
statutes? Do they have the right to organize their political
life and structure under the IRA?
I can see all of these questions being raised in
litigation. I don't think very many tribes are safe, if you
want my real belief. I think many tribes can win, but that is
going to be after years of litigation and thousands and
thousands of dollars of legal fees that tribes simply don't
need to have to spend.
Senator Udall. And they should be investing those dollars
in things that they want to do for their tribes, rather than
for lawyers and in court. Yes.
Mr. Rice. Absolutely. I hate to beat myself out of a legal
fee or other lawyers out of a legal fee, but sir, to be honest
with you, that money should go into health care. It should go
into education for our grandchildren. It should go into other
things besides having to litigate what should be an open-and-
It should be a summary judgment if anybody brings it, but
now only Congress can give that to us.
Senator Udall. Well, usually we think of court cases and
decisions as trying to simplify things and not create more
litigation. And that is just the opposite of what you are
talking about here with this Carcieri decision.
Thank you, Chairman Akaka. I see my time has run out, so
The Chairman. We will have another round here, Senator
Professor Hoxie, you are well versed in the history of the
Indian Reorganization Act and the intent of Congress in
enacting that law. In your opinion, have the goals of the
Indian Reorganization Act been achieved? In other words, do you
see the Act as still necessary today or have its objectives
Mr. Hoxie. I would say that the Indian Reorganization Act
laid out a broad agenda for a fundamental shift in the way the
United States interacted with Indian people and with Indian
communities. And that broad shift involved creating a mutually
respectful relationship on a cultural level, on a political
level and on a legal level so that people could go forward and
live together on this continent.
I think John Collier is often criticized for his very
romantic and very wide-ranging views, but I think they are an
element in this law. Many of his views were batted back and
forth as he negotiated with Congress over the final structure
of the law. But I think everyone involved in that action
realized that they were acting at a moment of disaster. Indian
people were literally starving in this Country at this time.
They had lost tens of millions of acres of land. Their
institutions had been undermined. There was no recognition for
their integrity and their dignity.
This law was intended to reverse that process and chart a
new course. Now, that course has had its ups and downs. A
number of events have occurred in the last 80 years. So I would
say, no, the law has not been fulfilled, but that vision of
being able to live together in a mutually respectful way, to
have Indian people be citizens of their own communities as well
as citizens of the United States, and to organize their own
governments and to live the way most other Americans live, that
is with their own government, is something that has really
become rooted and really become the foundation of Federal
So I don't think in that sense the IRA will ever become
irrelevant because it really has set out that goal, but it has
certainly not been fulfilled.
The Chairman. Thank you.
Professor Rice, in your research of the Indian
Reorganization Act, did you ever come across documentation that
indicated that Congress intended the Indian Reorganization Act
to exist only for a limited number of tribes or for a limited
amount of time?
Mr. Rice. The short answer to that, Senator, is no. As has
already been said, at the time there was no list of federally
recognized tribes. There was no list of tribes under Federal
jurisdiction. The policy and the practice of the previous
Administrations within the Indian Office had been that when an
individual or tribe lost their land, they were no longer
considered as subjects for the Indian Offices to deal with.
And so they had whole tribes of people which Collier
understood to be wandering tribes with no land base; with no
doubt they were Indians, no doubt they were a tribe in
constitutional terms. Certainly, Congress would have the right
to control commerce with that Indian tribe, but they simply
didn't know they were there.
I have seen in my research, in fact, questionnaires that
the Indian Office central office sent out to all the
superintendents asking specifically not only about the tribes
that they were operating with and that they knew about, but
what other groups of Indians are in your territory and in your
area that are not landholders, that are not part of your
situation as we understand it, but that need help.
They were searching for those. They got sociologists and
anthropologists from the big universities to try to make a list
of tribes, and I have seen those records in the National
Archives. They simply didn't know who all the tribes were. Some
had been dropped by the wayside by virtue of a treaty. Some had
just lost their land and nobody knew where they were. Some had
never had a treaty. Some had had treaties with States, but not
with the United States.
So that is where my research has taken me. And this was
supposed to be the new policy. It was supposed to move forward
into the future. There were no time limits set on the IRA. The
only time limit, in fact, was a one-year period which was
later, I believe, extended to another year, for tribes to have
an election to decide whether or not the IRA would apply to
them, and that is the only real time limit that existed.
The Chairman. Thank you.
Professor Goldberg, in your testimony, you reference a
conversation and a legislative record that centered on the
meaning of the words ``under Federal jurisdiction'' in the
Indian Reorganization Act. Do you think the court took the
legislative history into account when it issued the Carcieri
Ms. Goldberg. Mr. Chairman, I think the Court took a very
narrow view of the purpose of the Indian Reorganization Act.
They focused almost exclusively on the repair of harm that was
done through allotment, which was certainly one of the purposes
of the Indian Reorganization Act, but to read that as the
exclusive purpose of the Act I believe is not consistent with
what is there in the legislative history.
And if you look at the passage that I provided, that is the
exchange between Chairman Burton Wheeler and Commissioner John
Collier, what it reflects is a view by Commissioner Collier
that there really would be more flexibility in the application
of the law.
And also, if you look at the broader purpose of the Indian
Reorganization Act, as we have been stressing, it was about
revitalizing tribal governments and enabling all tribes, not
just allotted tribes, that had lost land to restore the
territorial basis for self-determination.
This broader purpose can only be fulfilled by affording the
opportunity for land into trust as of the time the action is
proposed by the Federal Government. That is, whenever the tribe
is deemed a recognized one by the United States.
The Chairman. Well, thank you.
I will ask for further questions from Senator Udall.
Senator Udall. Thank you, Chairman Akaka.
Listening to all three of you talk about this, something
went terribly wrong in the Supreme Court with the way they
interpreted this piece of legislation, this law. And I want to
try to get you to help me understand what happened in terms of
what came out. I have been reading the comment, Ms. Goldberg,
in your presentation and the questions back and forth with
Collier on that.
Typically, 50 years ago, 60 years ago in the Supreme Court,
the U.S. Supreme Court was the last bastion of native rights. I
mean, you would have a case come up and the District Court
would rule against native people and the Circuit Court would
rule against native people, but the Supreme Court of the United
States always seemed to come out on the side of Native people.
They would very carefully analyze things and come out many,
many times, in large percentages advocating, supporting,
supplementing native rights.
What is it that has happened here, in your opinion, that
they could get so far off the mark on this, missing the
legislative history? What is going on?
Mr. Hoxie. I am the non-lawyer here, so perhaps I could
just make a brief comment.
Senator Udall. That isn't just a legal question.
Mr. Hoxie. I guess my point is a fairly simple one, and
that is that I think within the legal community, there are
various rules for constructing congressional intent using the
language of the statute. And one of my definitions of a
historian is the historian is in the context business; is in
the business of trying to get people to understand the setting
in which a law was passed.
And so my brief answer is that I think there was so much
attention on the intricacies of the language of the Act that
there was no attempt made to step back and understand the
context, the setting in which this statute occurred.
Senator Udall. And that goes to what you were talking about
as to where the tribes were historically at that point; that
they were at this very low point; that all of these very
negative things had happened in terms of legislation and
allotments and on and on and on.
And unless you understand that context and you just go do
your court analysis of the legislative history, you can't fit
the two together in a correct way is what you are saying.
Mr. Hoxie. Exactly. And as I point out in my testimony,
this allotment had all of these terrible effects, and then the
Depression hit. And the United States was actually asking the
American Red Cross to come into communities to feed Indians
because they were completely powerless to help them. This was a
Ms. Goldberg. If I may just add to that, one of the things
that seems to be evident in some recent opinions of the United
States Supreme Court is a departure from some very fundamental,
what we call canons of construction, rules for interpreting
statutes that have been part of U.S. Supreme Court doctrine
since the early 1800s and Chief Justice John Marshall.
And what those canons dictate is that when a statute is
presented to the court that is ambiguous, the terms are not
clear, that all of the uncertainties or ambiguities are
supposed to be resolved in favor of supporting outcomes that
favor tribal self-determination and land rights.
And interestingly, I have found in some of the major
historical studies of the Indian Reorganization Act some rather
frank acknowledgment that there was some lack of clarity in the
statute itself about these broader purposes. One historian,
Graham Taylor, wrote, ``What is a tribe? The Indian
Reorganization Act did not seriously face this question,
suggesting some ambiguity.'' Another historian, Elmer Rusco,
wrote, ``The Indian Reorganization Act did define 'Indian' and
'tribe,' though ambiguously.''
Well, if there were such ambiguities, my view is that if
you understand the context that it should have been clear to
the Court, that the point in time where Federal recognition
mattered was at the time the land was to be taken into trust,
the time the action is proposed. But if there was any
ambiguity, it should have been resolved in favor of the tribes,
and the Court seemed to have lost sight of that.
Senator Udall. And in the Carcieri case, they resolved it
against the tribes.
Ms. Goldberg. Precisely.
Senator Udall. Just the opposite as to the way the
legislative construction is supposed to.
Ms. Goldberg. Precisely.
Senator Udall. Yes. Thank you, Mr. Chairman.
The Chairman. Thank you very much, Senator Udall.
I want to thank this panel very much for your distinguished
and expert opinions here on the bill. You can see where we are
trying to reach in and understand what happened and what needs
to happen now, to the point where if it requires any
legislative action, we will be working on that.
But we want to really try hard to bring it about so that
the indigenous people of our Country will be treated with
justice and well.
So again, I want to thank this panel very much for coming
and helping us in doing this. Thank you.
I would like to invite the second panel to the witness
table. Serving on our second panel is Mr. Steven Heeley, a
consultant for Akin Gump Strauss Hauer & Feld; and Professor
Richard Monette, Associate Professor of Law at the University
of Wisconsin Law School.
I want to welcome you both to the Committee.
Mr. Heeley, will you please proceed with your testimony?
STATEMENT OF STEVEN J.W. HEELEY, POLICY CONSULTANT, AKIN, GUMP,
STRAUSS, HAUER & FELD, LLP
Mr. Heeley. Thank you, Mr. Chairman, Vice Chairman
Barrasso, Senator Udall and other Members of the Committee on
Indian Affairs. I am honored to be here today to present
testimony before this Committee.
I will focus my testimony primarily on the 1994 amendments
to the Indian Reorganization Act. Those amendments added
subsections F and G to section 16 of the Act. Subsection F
prohibits the Secretary of Interior and other departments of
the Federal Government and agencies of the U.S. from
promulgating any regulation that classifies, enhances or
diminishes the privileges and immunities available to an Indian
tribe relative to other federally recognized Indian tribes, by
virtue of their status as Indian tribes.
Subsection G provides that any regulation, administrative
decision or determination of a department or agency of the
Federal Government that classifies, enhances or diminishes the
privileges and immunities of an Indian tribe relative to other
Indian tribes shall have no force and effect. These Amendments
were adopted on the Floor of the Senate and became Public Law
Early in the 103rd Congress, this Committee and the House
Subcommittee on Native American Affairs determined that these
amendments were necessary to curb efforts on the part of the
Administration to classify or categorize Indian tribes as
either historic, and therefore entitled to the full panoply of
inherent sovereign powers not divested by treaty or
congressional action; or created and therefore possessing
limited sovereign powers derived primarily from Federal
interests in benefitting Indians, not from their historical
This issue came to light when the Pascua Yaqui Nation, a
federally recognized Indian tribe, submitted amendments to its
tribal constitution under the IRA and the Department of
Interior took that occasion to review the status of the nation
and made the determination that it was not a historic tribe,
but rather a created one. In making this determination, the
Department applied the definition of a historic tribe, found
and set forth in the Federal acknowledgment procedures.
It should be noted that the Federal acknowledgment
procedures do not apply to federally recognized tribes like the
Pascua Yaqui Tribe.
The position articulated by the Department of Interior was
based on two solicitors' opinions. The first in 1934 that
described in general terms the inherent sovereign powers of
tribes, and a 1936 memorandum, a one-pager, that looked at two
tribal constitutions to determine whether the powers enumerated
in those constitutions were in fact powers held by those
The 1936 opinion forms the basis of this distinction
articulated by the department that created tribes lack the full
panoply of powers of other federally recognized Indian tribes.
Specifically, they lack the power to condemn land, to regulate
inheritance of tribal members' property, to assess taxes, and
to regulate law and order.
Such an artificial distinction represents a significant
departure from the Congressional intent and purpose of the IRA
and is reminiscent of the very policies of assimilation that
the IRA was intended to address. In addition, the department's
reliance on the 1936 memorandum is misguided since section 16
had been amended by Congress in 1988 to eliminate references to
Indians residing on a reservation and clarify that any tribe
was entitled to organize for its common welfare and to adopt a
constitution and bylaws.
In enacting Public Law 103-263, Congress rejected the
artificial distinction of historic and created tribes and made
clear that any regulation, rule or administrative decision that
classifies, enhances or diminishes the privileges and
immunities available to a federally recognized tribe relative
to other tribes shall have no force and effect.
These provisions were intended to void any past
determination by the department that an Indian tribe was
created and would prohibit those determinations in the future.
Congress' actions in the 103rd Congress was a reassertion
of its plenary authority over Indian affairs and reflects the
read-and-react interplay between Congress and the
Administration in the articulation of Federal Indian policy
where Congress is regularly called upon by Indian tribes to
exercise its plenary authority in response to an overreaching
In the 75 years since its enactment, the IRA has stood as
an enduring bulwark against efforts to infringe upon and
diminish the sovereign powers of tribes. When Congress has had
to periodically revisit the Act to shore up or clarify certain
provisions, as evidenced by the amendments in the 103rd
Congress, the 108th Congress and the 100th Congress, the IRA
continues to stand for the principles articulated by Congress
those many years ago to revitalize tribal governments, to
encourage tribes in the exercise of their inherent sovereign
authority and powers of self-government, and to assist tribes
in the restoration of their tribal land base and to promote
That concludes my statement. I would be happy to answer any
questions, Mr. Chairman.
[The prepared statement of Mr. Heeley follows:]
Prepared Statement of Steven J.W. Heeley, Policy Consultant, Akin,
Gump, Strauss, Hauer & Feld, LLP
I would like to thank you Chairman Akaka, Vice Chairman Barrasso,
and the other distinguished members of the Committee on Indian Affairs
for the invitation to provide testimony on the Indian Reorganization
Act. \1\ I am honored to be here before you today. I have been asked to
focus my testimony on the 1994 Amendments to the Indian Reorganization
Act, which amended Section 16 of the Indian Reorganization Act to add
subsections (f) and (g) to the Act. \2\ Subsection (f) prohibits the
Secretary of the Interior and other Departments and agencies of the
United States from promulgating any regulation which ``classifies,
enhances, or diminishes the privileges and immunities available to the
Indian tribe relative to other federally recognized tribes by virtue of
their status as Indian tribes.'' \3\ Subsection (g) provides that
``[a]ny regulation, administrative decision, or determination of a
Department or agency of the United States that classifies, enhances, or
diminishes the privileges and immunities'' of an Indian tribe relative
to the privileges and immunities of other federally recognized Indian
tribes shall have no force or effect. \4\ These provisions were added
as a Senate floor amendment to S. 1654, the Technical Corrections Act
of 1993, which became Public Law 103-263.
\1\ 25 U.S.C. 461 et seq.
\2\ 25 U.S.C. 476 (f)&(g), Public Law 103-263.
\3\ 25 U.S.C. 476(f).
\4\ 25 U.S.C. 476(g).
Early in the 103rd Congress, this Committee and the House
Subcommittee on Native American Affairs determined that these
amendments were necessary to curb efforts on the part of the
Administration to classify or categorize Indian tribes as either
``historic'' and therefore entitled to the full panoply of inherent
sovereign powers not otherwise divested by treaty or Congressional
action or ``created'' and therefore possessing limited sovereign powers
``derived from the primary federal interest in benefiting Indians, not
from the historical status of the group.'' \5\ The Committees became
aware of the evolving practice of the Department of Interior to
classify federally recognized Indian tribes as either ``historic'' or
``created'' pursuant to Section 16 of the Indian Reorganization Act.
This practice came to light as a result of the efforts of the Pascua
Yaqui Nation of Arizona to amend their tribal constitution. \6\ In
reviewing the proposed amendments to the tribal constitution, the
Department of Interior took that occasion to review the status of the
Pascua Yaqui Nation, a federally recognized Indian tribe, and made the
determination that it was not a ``historic'' tribe but rather a
``created'' one. In making this determination, the Department applied
the definition of a historic tribe set forth in the federal
``Procedures for Establishing that an American Indian Group Exists as
an Indian Tribe'' \7\ to the Pascua Yaqui Nation to determine whether
it qualified as a ``historic'' tribe or a ``created'' one. It should be
noted that the Federal Acknowledgement Procedures relied upon by the
Department specifically exclude ``Indian tribes, organized bands,
pueblos, Alaska Native Villages or communities which are already
acknowledged as such and are receiving services from the Bureau of
Indian Affairs.'' \8\ As a federally recognized Indian tribe, the
Pascua Yaqui Nation is specifically exempt from these procedures.
\5\ See page 12 of the April 30, 1993 Hearing Record of the House
Subcommittee on Native American Affairs on H.R. 734, to amend the act
entitled ``An Act to Provide for the Extension of Certain Federal
Benefits, Services, and Assistance to the Pascua Yaqui Indians of
Arizona, and for Other Purposes'' for the prepared statement of Carol
A. Bacon, Director, Office of Tribal Services, Bureau of Indian
\6\ Both Committees also heard from a number of federally
recognized Indian tribes in California, who had also been subject to
the same administrative diminishment through reclassification by the
Department of the Interior. See page 16 of the April 30, 1993 Hearing
Record of the House Subcommittee on Native American Affairs on H.R.
734, to amend the act entitled ``An Act to Provide for the Extension of
Certain Federal Benefits, Services, and Assistance to the Pascua Yaqui
Indians of Arizona, and for Other Purposes'' for the exchange between
Chairman Richardson and the Acting Director of the BIA Office of Tribal
\7\ 25 C.F.R. 83.1.
\8\ 25 C.F.R. 83.3(b).
Once the Department had made the determination that the Pascua
Yaqui Nation was ``created'' rather than ``historic,'' the Department
could then make a determination on whether the Pascua Yaqui Nation
possessed the inherent sovereign powers set forth in its proposed
amendments to its tribal constitution. In the Department of Interior's
response to the Pascua Yaqui Nation, the Department discussed the
distinctions between ``historic'' and ``created'' tribes:
The Department of the Interior's (Department) position on
historic tribes versus adult Indian communities represents a
longstanding interpretation of the law and historical factual
differences between groups of Indians and the policies of the
Department. Since the passage of the Indian Reorganization Act
of June 18, 1934 (48 Stat. 984), the Department has held that
adult Indian communities may not possess all of the same
attributes of sovereignty as a historic tribe. . . . A historic
tribe has existed since time immemorial. Its powers derive from
its unextinguished, inherent sovereignty. Such a tribe has the
full range of governmental powers except where it has been
removed by Federal law in favor of either the United States or
the state in which the tribe is located. By contrast, a
community of adult Indians is comprised of simply Indian people
who reside together on trust land. . . . The authority of a
community of Indians residing on the same reservation has been
held generally not to include the power to condemn land of
members of the community, the regulation of inheritance of
property of community members, the levying of taxed upon
community member[s] or others, and the [r]egulation of law and
\9\ December 3, 1991 Letter from Carol A. Bacon, Acting Director,
Office of Tribal Services, Bureau of Indian Affairs, to the Honorable
Arcadio Gastelum, Chairman, Pascua Yaqui Tribal Council.
The position articulated by the Department of the Interior was
based on two Solicitor's Opinions interpreting Section 16 of the Indian
Reorganization Act. \10\ The first Solicitor's Opinion was issued on
October 25, 1934 by Solicitor Margold in response to inquiries at the
time regarding what sovereign powers are possessed by Indian tribes and
which powers can be incorporated into tribal constitutions and by-laws
pursuant to Section 16 of the Indian Reorganization Act. \11\ The
opinion surveys a number of court decisions which recognize the various
sovereign powers of Indian tribes as well as various statutory
authorities articulating the powers of self-government of Indian
tribes. Solicitor Margold opines that Indian tribes possess ``those
powers of local self-government which have never been terminated by law
or waived by treaty.'' \12\ The Solicitor concludes that included in
the sovereign powers of Indian tribes is the power to adopt a form of
government and procedures for the election and removal of tribal
officers; to define membership; to regulate domestic relations of
members of the tribe; to prescribe rules of inheritance with respect to
personal and real property; to assess taxes; to remove and exclude non-
members of the tribe from the reservation; to regulate the use and
disposition of property within the reservation; to administer justice
regarding all disputes and offences among members of the tribe; and to
prescribe the duties and regulate the conduct of federal officials
provided such authority has been delegated by the Department of the
Interior to the Indian tribe. \13\
\12\ Page 36, Department of Interior Solicitor's Opinion issued on
October 25, 1934, 55 I.D. 14; 1DOINA 445; 1934 DOINA Lexis 260.
\13\ Id. at page 37.
The second opinion providing the legal foundation for the
Department's practice of administratively diminishing the sovereign
powers of federally recognized Indian tribes through reclassification,
is a one page memorandum to the Assistant Commissioner of Indian
Affairs issued on April 15, 1936 regarding tribal elections on the
proposed constitutions of the Lower Sioux Indian Community and the
Prairie Island Indian Community in Minnesota. \14\ In its review of the
proposed constitutions of both the Lower Sioux Community and the
Prairie Island Community, the Solicitor's Office opines that:
\14\ Page 1, Department of Interior Solicitor's Opinion issued on
April 15, 1936, 1 DOINA 618; 1936 DOINA Lexis 436.
Neither of these two Indian groups constitutes a tribe but each
is being organized on the basis of their residence upon
reserved land. After careful consideration in the Solicitor's
Office it has been determined that under section 16 of the
Indian Reorganization Act a group of Indians which is organized
on the basis of a reservation and which is not an historical
Indian tribe may not have all of the powers enumerated in the
Solicitor's opinion on the Powers of Indian Tribes dated
October 25, 1934. The group may not have such of those powers
as rest upon the sovereign capacity of the tribe but may have
those powers which are incidental to its ownership of property
and its carrying on of business, and those which may have been
delegated by the Secretary of the Interior. \15\
The Solicitor concludes that neither tribe possesses the power to
condemn land of its members; to regulate the inheritance of tribal
members' property; and to assess taxes. \16\ It is this opinion that
forms the basis for the Department's efforts to administratively
diminish the sovereign authority of certain federally recognized Indian
tribes by reclassifying such tribes as ``created'' tribes. It is the
height of irony that the Department relies upon the authorities
contained in the Indian Reorganization Act, an Act intended to
strengthen and revitalize tribal governments and to reverse the impacts
of the federal policy of assimilation, to administratively diminish the
sovereign authority of certain federally recognized Indian tribes. The
views of the Department in advancing this artificial distinction
between federally recognized Indian tribes represents a significant
departure from the congressional intent and purpose of the Indian
Reorganization Act and is reminiscent of the very policies of
assimilation that the Indian Reorganization Act was intended to
address. Further, the Department's reliance on the Solicitor's April
15, 1936 memorandum was misguided since Section 16 of the Indian
Reorganization Act was amended by Congress in 1988 to eliminate the
references to Indians residing on a reservation and clarify that ``any
Indian tribe is entitled to organize for its common welfare, and may
adopt an appropriate constitution and bylaws.'' \17\
\17\ 25 U.S.C. 476(a), see P.L. 100-581.
In hearings before the House Subcommittee on Native American
Affairs the Department of Interior relied on the April 15, 1936
memorandum to support its determination that the Pascua Yaqui Nation,
as a ``created'' tribe, does not possess the inherent power to regulate
law and order, except where that authority has been delegated by the
Secretary. The Department found that the Pascua Yaqui Nation did not
possess inherent sovereign powers, including the power to condemn land,
to regulate inheritance of tribal member's property, and to assess
taxes. \18\ In rejecting the position advanced by the Department of
Interior that the Pascua Yaqui Nation was a ``created'' tribe, the
Congress enacted P.L. 103-357 to clarify that the Pascua Yaqui Nation
``a historic tribe, is acknowledged as a federally recognized Indian
tribe possessing all the attributes of inherent sovereignty which have
not been specifically taken away by Acts of Congress and which are not
inconsistent with such tribal status.'' \19\
\18\ December 3, 1991 Letter from Carol A. Bacon, Acting Director,
Office of Tribal Services, Bureau of Indian Affairs, to the Honorable
Arcadio Gastelum, Chairman, Pascua Yaqui Tribal Council.
\19\ 25 U.S.C. 1300(f)(a).
This Committee and the House Subcommittee on Native American
Affairs recognized that the issues confronted by the Pascua Yaqui
Nation were not isolated, but part of a larger effort of the Department
of Interior to apply this distinction of historic/created tribes to a
large cross section of federally recognized Indian tribes. It had been
the practice of the Department that when Indian tribes submitted
proposed amendments to their tribal constitutions to the Secretary of
the Interior pursuant to Section 16 of the Indian Reorganization Act,
the Department would first determine if the Indian tribe was
``historic'' or ``created.'' Those Indian tribes determined to be
``created,'' like the Pascua Yaqui Nation, were found not to possess
the full panoply of sovereign powers of other federally recognized
Indian tribes. In testimony before the Subcommittee on Native American
Affairs, Department of Interior witnesses testified that in addition to
the Pascua Yaqui Nation there were a number of other ``created''
tribes, however, when requested by the Subcommittee to provide a list
of ``created'' tribes, the Department could not. \20\ In his floor
statement during the consideration of S. 1654, Senator McCain comments
on the Department's classification of ``created'' tribes:
\20\ See page 15 of the April 30, 1993 Hearing Record of the House
Subcommittee on Native American Affairs on H.R. 734, to amend the act
entitled ``An Act to Provide for the Extension of Certain Federal
Benefits, Services, and Assistance to the Pascua Yaqui Indians of
Arizona, and for Other Purposes.''
At the same time, the Department insists that it cannot tell us
which tribes are created and which are historic because this is
determined through a case-by-case review. All of this ignores a
few fundamental principles of Federal Indian law and policy,
Indian tribes exercise powers of self-governance by reason of
their inherent sovereignty and not by virtue of a delegation of
authority from the Federal Government. In addition, neither the
Congress nor the Secretary can create an Indian tribe where
none previously existed.The recognition of an Indian tribe by
the Federal Government is just that--the recognition that there
is a sovereign entity with governmental authority which
predates the U.S. Constitution and with which the Federal
Government has established formal relations. Over the years,
the Federal Government has extended recognition to Indian
tribes through treaties, executive orders, a course of dealing,
decisions of Federal courts, acts of Congress, and
administrative action. Regardless of the method by which
recognition was extended, all Indian tribes enjoy the same
relationship with the United States and exercise the same
inherent authority. \21\
\21\ Statement of Senator John McCain on the consideration of S.
1654, 140 Cong. Rec. S6146, May 19, 1994.
In enacting P.L. 103-263 Congress reasserted its plenary authority
over Indian affairs by prohibiting any departments or agencies of the
Federal Government from promulgating any regulation, rule or make any
decision or determination pursuant to the Indian Reorganization Act
``that classifies, enhances, or diminishes the privileges and
immunities available'' \22\ to federally recognized Indian tribes
because of their status as Indian tribes. In his floor statement during
the consideration of S. 1654, Congressman Richardson discussed the
threat presented by the Department's administrative diminishment of
\22\ 25 U.S.C. 476(f).
``Mr. Speaker, there is great danger in a policy wherein the
Department of the Interior and the Bureau of Indian Affairs are
allowed to limit the inherent sovereign authority of Indian
tribes by the Solicitor's pen. If carried to an extreme, the
Solicitor could by fiat significantly erode tribal sovereignty
through a series of opinions and carry out his or her own
termination policy. With the exception of the framework imposed
by the judicial branch, the formulation of Indian policy is
virtually the sole province of the Congress and Indian tribes.
The Congress has never acknowledged distinctions in or
classifications on inherent sovereignty possessed by federally
recognized Indian tribes. Tribal sovereignty must be preserved
and protected by the executive branch and not limited or
divided into levels which are measured by the Bureau of Indian
Affairs and the Department of the Interior. We must not revisit
the darkest period of Federal Indian policy by allowing the
termination of tribal sovereign authority through the
implementation of the Bureau of Indian Affairs policy
distinction between historic and created Indian tribes. \23\
\23\ Statement of Congressman Richardson on the consideration of S.
1654, Cong. Rec. H3803, May 23, 1994.
The Congress rejected the artificial distinction of ``historic''
and ``created'' tribes and made clear that any regulation, rule or
administrative decision ``that classified, enhances, or diminishes the
privileges and immunities available to a federally recognized Indian
tribe relative to other federally recognized Indian tribes . . . shall
have no force and effect.'' \24\ The Congress intended these provisions
to ``void any past determination by the Department that an Indian tribe
is created and would prohibit any such determinations in the future.''
\24\ 25 U.S.C. 476(g).
\25\ Statement of Senator Daniel Inouye on the consideration of S.
1654, 140 Cong. Rec. S6147, May 19, 1994.
The work of this Committee and the House Subcommittee on Native
American Affairs during the 103rd Congress was not over as the
Committees were presented with yet another effort by the Department to
terminate and/or diminish tribal sovereign authority. The Secretary of
the Interior is required to publish a list of federally recognized
Indian tribes in the Federal Register. It had been the practice of the
Secretary to publish the list at irregular intervals and leaving a
number of federally recognized tribes off the list. In some cases this
practice of leaving certain federally recognized tribes off the list
was inadvertent and in others it was by design. \26\ When an Indian
tribe was not on the published list of federally recognized Indian
tribes, it was no longer eligible for a range of federal programs and
benefits not the least of which is program funding and services from
the Bureau of Indian Affairs. In addition, most other federal agencies
utilize the published list to determine tribal service populations and
funding eligibility. Indian tribes left off the published list were
denied federal benefits and services and their governmental status
called into question. In response to the denial of services to
federally recognized Indian tribes, the Congress passed the ``Federally
Recognized Indian Tribe List Act of 1994.'' \27\ This Act amended the
Indian Reorganization Act to require the Secretary to publish a list of
all federally recognized Indian tribes annually in the Federal
Register. \28\ The intent of the Congress underlying these amendments
to the Indian Reorganization Act are set out in the findings which
recognize Congress' plenary authority over Indian Affairs and the
federal trust responsibility to all federally recognized Indian tribes.
\29\ The findings also state that a federally recognized Indian tribe
may not be terminated except through an Act of Congress. \30\ The Act
requires the Secretary to ensure the that list reflects all of the
federally recognized Indian tribes eligible for the special programs
and services provided by the United States to Indians because of their
status as Indians. \31\ In his floor statement during the consideration
of the Federally Recognized Indian Tribe List Act of 1994, Congressman
Thomas expressed concern that the measure did not go far enough to
prevent continued efforts by the Department to ``de-list'' or
administratively terminate Indian tribes:
\26\ The Committees heard from a number of federally recognized
Indian tribes in California as well as the Central Council of Tlingit
and Haida Indian tribes of Alaska that had been left off the published
list and were being denied federal services.
\27\ 25 U.S.C. 479a & 479a-1; P.L. 103-454.
\28\ 25 U.S.C. 479a-1(b).
\29\ P.L. 103-454, Section 103(1)&(2).
\30\ P.L. 103-454, Section 103(4).
\31\ P.L. 103-454, Section 103 (8).
Mr. Speaker, I predict that our lack of action today will come
back to haunt us. Although the findings section of the title
makes clear that only Congress has the authority to derecognize
a tribe, findings are not legally binding. Until we make the
prohibition unequivocal and give it the force of law, we will
continue to be faced with the prospect of the BIA usurping our
\32\ Statement of Congressman Thomas on the consideration of H.R.
4180, Cong. Rec. H10490, October 3, 1994.
The concerns expressed by Congressman Thomas regarding the
Administration usurping Congress' plenary power are reflective of the
``read & react'' interplay between the Congress and the Administration
in the articulation of federal Indian policy, where Congress is
regularly called upon by Indian tribes to exercise its plenary
authority over Indian affairs in response to an overreaching
administrative action. A further example of this interplay between the
Congress and the Administration occurred during the 108th Congress when
Congress adopted amendments to the Indian Reorganization Act to make
clear that Indian tribes retain their inherent sovereign authority to
organize and adopt governing documents outside the authorities of the
Indian Reorganization Act. \33\
\33\ P.L. 108-204, Section 103.
In the 75 years since its enactment, the Indian Reorganization Act
has stood as an enduring bulwark against efforts to infringe upon and
diminish the sovereign powers of Indian tribes. While Congress has had
to periodically revisit the Indian Reorganization Act to shore up and
clarify certain provisions of the Act as evidenced by the various
amendments enacted in the 103rd Congress and again in the 108th
Congress, \34\ the Indian Reorganization Act continues to stand for the
principles articulated by the Congress those many years ago: to
revitalize tribal governments, to encourage tribes in the exercise of
their inherent sovereign authority and powers of self-government, to
assist tribe in the restoration of their tribal land base and to
promote tribal economies.
\34\ See P.L. 103-263, which added subsections 476(f) & (g); P.L.
103-454, which added subsection 479a and 479a-1; P.L. 108-204,
which added subsection 476(h).
This concludes my prepared statement. I would be happy to answer
any questions the Committee may have.
The Chairman. Thank you very much, Mr. Heeley, for your
Professor Monette, would you please proceed with your
STATEMENT OF RICHARD MONETTE, ASSOCIATE PROFESSOR OF LAW,
UNIVERSITY OF WISCONSIN LAW SCHOOL
Mr. Monette. Good afternoon, Chairman Akaka, Senator Udall.
My colleague Robert Lyttle and I have assisted in advancing
some 30 constitutions for tribes. I also had the luxury of
being on staff on this Committee in 1988 when those amendments
were made. I was the Director of Legislative Affairs down at
the Department of Interior for the BIA in 1994 when that
amendment was made. And I was Chairman of my own tribe in 2001
when that amendment was made. Those three amendments are, I
think, all key here.
For the record, I was not here in 1934 when the IRA was
You have heard the story about the Solicitor's opinions
from a couple of witnesses so I won't repeat those. Suffice it
to say that as Steve has said, it fashioned over time this
distinction between those tribes that were now under Federal
jurisdiction and those tribes thereafter recognized. And as
Steve says, it became a distinction classified as historic or
non-historic or actually using the word created.
And in fact, I brought one of the letters from 1988 when
those amendments were being talked about by this Committee. And
there is a letter to the Ely Colony, and a sentence out of that
letter says, ``The Ely Indian Colony is classified as a created
tribe, as opposed to a historical tribe.'' It went on to
explain that distinction.
And in the letter, they also said that the changes
reflected that the BIA was making in the constitutions was to
make the proposal legally and technically sufficient to conform
with established bureau policy. And so those 1988 amendments
actually took the word policy out of what the bureau was doing
and said that the bureau's review of proposed constitutions and
constitutional amendments were to be limited to Federal law and
policy was to be disregarded. That is because this was one of
the policies at play.
In 1994, it was even more on point, and just a little
aside, I was drafting a constitution for the Wisconsin
Winnebago wherein they changed their name to the Hochunk
Nation. And we got some communication back from the department
that they were going to be labeled a created tribe.
So when I got to be Legislative Affairs Director at the
bureau and the Yacqui Tribe raised this issue, I called some of
the people together to ask what should we do; Congress is going
to want a hearing on this. In fact, Senator McCain had asked
for a list, can you give us a list of these created and
historic tribes so we know who it is we are talking about? They
could not provide a list, of course.
But we did have a meeting, and I will go quickly. Four
categories came up. One of them was, as a couple of witnesses
have said, adult Indians of half-blood or more residing on the
reservations. Frankly, that applied to most of the California
rancherias where, for lack of a better term, remnants of some
of the tribes were settled or herded together to form a
rancheria and a recognized entity.
The second was where we had sort of a confederated or
compound tribe like the Three Affiliated Tribes of the Fort
Berthold Reservation, the Confederated Tribes of the Warms
Springs Reservation. And that one is particularly key later on
in the discussion.
Third was where we had a tribe removed and part of the
tribe stayed back like the Oneida Tribe in New York, and part
went to a State like Wisconsin, and the department said only
one of them could be the historical tribe. The other one must
be the created one.
And finally, as you have heard here, them saying any tribe
that was recognized after 1934 was a created tribe.
And we had a meeting, and interestingly enough one of the
directors of one of the departments down at the BIA was from
the Three Affiliated Tribes and was not happy to learn that the
department was treating his tribe as having less sovereignty
than other tribes, and it helped to kick-start some of the
So the department came up and gave testimony to this
Committee, and we included a statement that the department
actually wanted to take out. The statement said that democracy
requires us to hold that government is by the governed. That
sovereignty derives from those over whom it is exercised.
Imagine that, right, in America.
You would think that sentiment would have ended the
discussion and eliminated the need for the Yacqui Elder to say,
and I will paraphrase, but close with one of my favorite things
I have ever heard. It was to this Committee and he said,
Senator, my people have but one creator, and in all due
respect, you are not it.
Mr. Monette. So in short, the 1994 amendment was sort of
like an equal footing doctrine, a 10th Amendment for tribes
really to recognize that tribes, as the last panel said, have
the right to form their own government and empower their
government to do what it needs to do over them, like any other
people on the planet.
So I would repeat here again today, democracy requires us
to hold that government is of, for, and by the governed; that
sovereignty derives from those over whom it is exercised. And I
would be at a loss to try to decide whose version of democracy
allows us to decide that any less for an Indian tribe.
[The prepared statement of Mr. Monette follows:]
Prepared Statement of Richard Monette, Associate Professor of Law,
University of Wisconsin Law School
Good morning Chairman Akaka and Members of the Committee. My name
is Richard Monette. My colleague, Robert Lyttle, and I have drafted
either single constitutional amendments or total constitutional
revisions for over thirty different tribes. Also, I worked for this
Committee when the 1988 amendments were being legislated. In addition,
I served as Director of the Office of Legislative and Congressional
Affairs in the BIA when the 1994 Amendment to the IRA was enacted.
Thank you for inviting me to provide my views, specifically the
opportunity to provide my perspective on the 1994 Amendment to the IRA
and its relationship to the Carcieri case and other recent legal
developments. Today, sadly, we are struggling with the unfortunate
political realities of how to fix Carcieri. I say ``unfortunate''
because the 1994 amendment was intended to prevent Carcieri.
After Congress enacted the IRA, the Office of the Solicitor--DOI
began to question the wording and intent of the Act, including the
provision that it applied to Tribes ``now under federal jurisdiction''.
The Department concluded that Congress authorized reorganization of
Tribes which had not historically been recognized in the same form and
fashion. As a result, the Department labeled some Tribes as historic
and others as not historic, or ``created'', a distinction that cannot
be justified, and should not be rationalized, by a Nation that purports
to be the defender of democracy.
Over the years the historic versus created issue arose in four
contexts in particular:
First, the IRA provided for the reorganization and recognition of
adult Indians of half blood or more residing on the same reservation
despite the fact that those adult Indians might actually represent many
different tribes. This was the case with many reorganized California
tribes where citizens of different tribes were settled onto single
``rancherias''. Outside California, Tribes falling into this category
were often labeled by the BIA as a Community or Colony. Obviously,
given the unfortunate history of California in particular, these newly
anointed IRA Tribes were not the same as the Tribe historically on
Second, the IRA contemplated reorganization and recognition for
Tribes comprised of multiple pre-existing Tribes, where the entire
population of two or more Tribes were-settled onto one reservation.
Examples include the Three Affiliated Tribes of the Fort Berthold
Reservation, the Confederated Tribes of the Warm Springs Reservation,
the Shoshone and Arapaho Tribes of the Wind River Reservation. As you
can see, the moniker ``Tribe of the such and such Reservation''
identified these Tribes. Again, obviously these newly anointed IRA
Tribes were not the same as the Tribe historically on those lands.
Third, the Secretary facilitated reorganization for Tribes split by
America's unfortunate Removal policy and now living on two or more
reservations. Examples included the Oneida Nation in New York and the
Oneida Tribe in Wisconsin, or the Choctaw Nation of Oklahoma and the
Mississippi Band of Choctaw, or the Wisconsin Winnebago and the
Nebraska Winnebago. Over the years, as illustrated in the Supreme Court
case United States v. John, the Department took the position that only
one of the resulting Tribes, either the removed or the un-removed
Tribe, could represent the Tribe historically dealt with by the United
States. Again, obviously these newly anointed IRA Tribes were not
exactly the same as the Tribe historically on those lands, although in
this instance the Department would have to admit each consisted of
distinct Tribes with which the Department historically dealt.
Fourth, the Department began to label or treat almost every newly
recognized Tribe as ``created'' simply because the United States had
not previously recognized them. Increasingly, in letters to the Tribes
themselves and various papers, the Department resurrected the idea that
a created Tribe had less sovereignty than an historic Tribe,
particularly when it came to matters governing land.
In 1993 Robert Lyttle and I assisted in drafting the new current
constitution for the Wisconsin Winnebago, wherein the Hochungra proudly
changed their sovereign name from Winnebago--an Algonquin label--to
their own name--the Hochunk Nation. The Tribe itself, now stable,
progressive, and successful, will tell you the troubles it had prior to
adopting a new constitution, so I will not labor the story here.
Nonetheless, because the Hochungra peoples were subjected to official
removal from Wisconsin, the Department threatened that the Hochunk
Nation would be labeled ``created'', arguing the historic group had
been removed to Nebraska. Thus, according to the Department, the
Hochunk Nation would be recognized with less sovereignty, less
jurisdiction, less democracy. One can't help but wonder if Nebraska
Winnebago had reformed their constitution first, whether the Department
would have labeled the Nebraska Winnebago created and the Wisconsin
Winnebago historic. At best, the process was riddled with human
intervention by career bureaucrats--at worst it was abuse of
This matter came to Congress' attention again in 1994 when the
Department treated the Pasqua Yaqui Tribe as a created Tribe. Senator
McCain and this Committee requested a list of so-called ``created
Tribes'' from the Department, but the Office of the Solicitor-DOI
refused, rationalizing that the distinction was made on a case by case
basis. During the course of those discussions, as Director of the
Office of Legislative Affairs, I sat in departmental meeting when a
certain DOI deputy solicitor stated that the Three Affiliated Tribes of
the Fort Berthold Reservation is a created Tribe--the Tribe of which
the Director of the Office of Tribal Government was a member. So
imagine his shock and personal consternation learning that the
Solicitor's Office had concocted a legal theory leaving his own Tribe
with less sovereignty than other Tribes.
As a result of those discussions the Department offered only
irresolute testimony, but it could not bring itself to strike from its
testimony a sentiment that some insisted it contain--that Democracy
requires us to hold that government is by the governed, that
sovereignty derives from those over whom it is exercised. That
sentiment should have been the axiomatic end of story, eliminating the
need for a Yaqui elder to testify, and I paraphrase: ``Senator, my
people have but one Creator, and in all due respect, you're not it.''
Is Virginia an historic State but North Dakota only a ``created''
State? When the Union was formed was North Dakota ``now under Federal
jurisdiction'' ? Despite the obvious historical anomalies between
States, North Dakota is an ``historical State'', a full State of this
Union. By virtue of the ``Equal Footing Doctrine'', which applies the
democracy and the 10th Amendment to after-admitted States, North Dakota
is not ``created'', but is imbued with the full breadth and panoply of
sovereignty as any of the other State of this Union. Our democracy
requires us to conclude that North Dakota's 400,000 voters have as much
sovereignty to provide their State as Virginia's 4 million voters have
to give their State.
In short, the 1994 amendment to the Indian Reorganization Act was a
statement of the best that this Country's democracy has to offer for
Indian Tribes--a 10th Amendment and an equal footing of sorts. In
defiance of the power of Congress, about one week after that amendment
was signed into law the Offices of the Solicitor and Tribal Government
sent out yet another ``created Tribe'' letter. So I repeat here today:
Democracy requires us to hold that government is of, for, and by the
governed; that sovereignty derives from those over whom it is
exercised. Whose version of democracy allows us to reach any other
conclusion when it comes to a recognized Indian Tribe?
The Chairman. Thank you very much, Professor Monette, for
My first question goes to both of you. What is your view on
the Administration's decision not to include any discussion of
the intent of the 1994 amendments to the Indian Reorganization
Act in their brief to the Supreme Court?
Mr. Heeley. Mr. Chairman, Senator Udall, Members of the
Committee, I found it curious in looking at the brief that
there was scant discussion of any of the subsequent amendments
to the Indian Reorganization Act. As you heard from the earlier
testimony and our testimony, the Congress has continually gone
back to the IRA and had to address either actions or
overreaches by the Administration or in some cases actions by
In the case of the 1994 amendments, it was intended to make
clear that if a tribe is federally recognized, they possess the
full panoply of powers of sovereign Indian tribes unless
specifically divested by treaty or Congressional action. In
fact, the amendments that were done in the 100th Congress were
specifically designed to target and deal with the residency
requirement that had been used to create this second lesser
category of created tribes or adult Indian communities, to
assert Congress' plenary power to say a federally recognized
Indian tribe possesses the full panoply of sovereign powers
unless they have been waived or unless they have been divested
by the Congress.
The Chairman. Professor Monette?
Mr. Monette. Chairman Akaka, I think you almost want to
attribute the best of intentions to them. So in that light, the
brief did reference the 1994 amendment, as well as the others,
but the 1994 one, which I think is more on point here, they
only referenced it once on page 19, footnote seven, and really
only one sentence that maybe gets about one-tenth of the way
there. And I am not sure why.
What I did write in my written testimony is about a week
after the President signed the 1994 amendments into law, the
department, with the Solicitor's office and the Office of
Tribal Government, sent out another created and historic tribe
letter, just utterly disregarding what the president had just
signed into law.
And so we called a meeting and called them together, and of
course, they said, well, it was an oversight and it was already
in the pipeline, et cetera. But don't underestimate how deep
this distinction and this now under Federal jurisdiction thing
flows in the department. And in fact, the person who is in
there today leading these issues is also the person who helped
to draft this 1988 letter and one of those people has been
there since about 1973.
And they hold it sort of near and dear to their heart for
some strange reason. And they are not going to let it go unless
we make it perfectly clear. And the last time I took a stab at
the first language, Steve might remember it. It is why
sometimes they say that I pushed the envelope a little too far.
The language was a little more clear, saying that it is crazy
to say that there are created tribes, period.
When it got up to this more august and artistic body, it
was redrafted to have the privileges and immunities language,
but I really don't think that is a defense of the
Administration for not seeing that this is what it was intended
to address. They really just missed the boat on it. I hate to
attribute any bad intent to them, but, again, the Solicitor
from that department who could have been helping with those
arguments, who should have raised the issue with the Department
of Justice, really holds it near and dear.
The Chairman. Thank you for that.
Mr. Heeley, do you think the court's decision in Carcieri
creates the very situation you intended to address in the 1994
amendments by effectively creating two classes of tribes?
Mr. Heeley. Mr. Chairman, Members of the Committee, Senator
Udall, I think that is problematic. I was Counsel for the House
Subcommittee on Native American Affairs when the amendments
were being developed and passed. And Congress was very clear in
exerting its plenary authority to make clear that there should
be no distinctions as between federally recognized tribes and
the panoply of inherent sovereign powers that they exercise.
Subsequent amendments to the IRA also addressed the
category of tribes that chose not to, as the Vice Chairman
referenced, organize under IRA constitutions, and to make clear
that federally recognized Indian tribes had the right to not
adopt an IRA constitution if they so chose.
The Chairman. Thank you.
Senator Udall, any questions you may have?
Senator Udall. I think I am okay, Mr. Chairman, on this
panel. I am looking forward to the next panel.
The Chairman. All right. Thank you.
Senator Udall. Thank you.
The Chairman. Mr. Monette, in your opinion as a former
Department of Interior official, what impact will the Carcieri
case have on the trust relationship between the Indian tribes
and the Department of Interior?
Mr. Monette. The potential impact is great. The impact was
building when they were on a case-by-case basis deciding
whether a tribe was now under Federal jurisdiction and thus
historic, or thereafter recognized or otherwise acknowledged,
and thus created.
And it makes a huge difference depending on who is writing
the letter and who is reading it. This letter says that the
created tribes don't have the power to condemn land of their
members; to regulate the inheritance of property; to levy
Now, Congress passed, for example, the American Indian
Probate Reform Act. I am guessing nobody up here thought we
needed to make sure that the created-historic tribe distinction
didn't put a wrinkle into that Act. Right? But it might now.
So really I think the ways that people could figure out how
this distinction comes to bear is infinite. And there was a
fellow that walked this area a couple hundred years ago. His
name was James Madison. And he addressed an argument from some
people that were basically saying that the original States and
the subsequent States should be of a different level of
sovereignty. And he argued, as you know, strenuously why States
would want to join a union where they would be subordinate to
their other sister States. And he carried the day with the 10th
Amendment and the idea that sovereignty comes from those over
whom it is exercised.
So whether Virginia has 4 million voters or North Dakota
has 400,000 voters, they both have the same sovereignty to give
to their government. And that applies to a tribe that has
40,000 people or 40 people. And that is the only logic that
will allow 200 years of case law and principle be decided
consistently, theoretically and logically consistently. And
anything short of that is good maybe for lawyers, but nobody
The Chairman. I want to thank you very much, panel two, for
your testimony, your statements and your answers to our
questions. Both of you have been part of this history that has
been unraveling here over the years and we look forward to
continuing to work with you in trying to bring something about
Thank you very much for your testimony.
Mr. Monette. Thank you, Mr. Chairman.
The Chairman. I would like to now invite the third panel to
the witness table: Mr. John Echohawk, Executive Director with
Native American Rights Fund; the Honorable Jefferson Keel,
President of the National Congress of American Indians; and the
Honorable Michael Finley, Chairman of the Confederated Tribes
fo the Colville Reservation.
I want to welcome all of you to the Committee.
Mr. Echohawk, please proceed with your testimony.
STATEMENT OF JOHN E. ECHOHAWK, EXECUTIVE DIRECTOR, NATIVE
AMERICAN RIGHTS FUND
Mr. Echohawk. Thank you, Mr. Chairman.
As you know and as Senator Udall knows, I am the Executive
Director of the Native American Rights Fund. We are a national
nonprofit legal organization dedicated to securing justice on
behalf of Native American tribes, organizations and
Since 1970, we have undertaken the most important and
pressing issues facing Native Americans in courtrooms across
the Country and here in the halls of Congress. I am honored to
have been invited to testify at this hearing today regarding
the 75-year history of the Indian Reorganization Act and the
severe negative impacts and adverse consequences to all of
Indian Country in the wake of the United States Supreme Court's
2009 decision in the Carcieri v. Salazar case.
I have submitted written testimony that provides a little
background information on the IRA. You have already heard today
from a number of witnesses that at one time the IRA was
recognized as sweeping legislation designed in 1934 to serve as
the new foundational charter for this Nation's Indian policy.
In 1974, the United States Supreme Court in the Morton v.
Mancari case noted, ``the overriding purpose of the IRA was to
establish machinery whereby Indian tribes would be able to
assume a greater degree of self-government, both politically
My written testimony also provides detail regarding how the
Supreme Court's decision in Carcieri v. Salazar in 2009 is
becoming a proverbial wrench in this machinery, impeding the
Department of the Interior from fulfilling its mission to fully
implement the benefits of the IRA for all Indian tribes across
In my remarks today, I hope to shed a little light on
specific litigation being brought by States, local governments
and others raising challenges to applications to have the
Secretary acquire lands into trust for the benefit of Indian
tribes based on the court's ruling in Carcieri.
Included in my written testimony is a seven-page summary of
current cases pending before the Federal courts, the Interior
Board of Indian Appeals and the Bureau of Indian Affairs, which
illustrates the far-reaching consequences and potentially
devastating impacts of the Carcieri decision and the need for
Congressional legislation to provide a clean fix which will
make clear that it is and always has been Congress' intent to
have all Indian tribes treated equally and fairly.
As the Chairman and the Members of this Committee are
aware, on February 24, 2009, the U.S. Supreme Court issued its
extraordinarily troubling decision in the Carcieri case,
limiting the authority of the Secretary of the Interior under
the provisions of the IRA. Carcieri involved a challenge by the
State of Rhode Island to the authority of the Secretary to take
land into trust for the Narragansett Tribe under the IRA. The
Supreme Court held that the term ``now'' in the phrase ``now
under Federal jurisdiction and the definition of Indian'' is
unambiguous and limits the authority of the Secretary to only
take lands into trust for those tribes that were under Federal
jurisdiction on June 18, 1934, the date the IRA was enacted.
In Carcieri, the Supreme Court invoked a strained and
circular reading of a few sentences in the IRA to create
different classes of tribes. Given the fundamental purpose of
the IRA, which was to organize tribal governments and restore
land bases for tribes that had been torn apart by prior Federal
policies, the Court's ruling is an affront to the most basic
policies underlying the IRA.
Despite our best efforts, an amicus brief filed by Indian
tribes, the National Congress of American Indians, Indian law
professors, and even an historians' amicus brief spearheaded by
Mr. Hoxie, who has testified here today, the Court simply
ignored Congress' stated purpose under the pretext of
interpreting the plain meaning of the word ``now.''
The Supreme Court's decision is destabilizing for a
significant number of Indian tribes. For over 70 years, the
Department of Interior applied a contrary interpretation that
the phrase ``now under Federal jurisdiction'' means at the time
The department has formed entire Indian reservations and
authorized numerous tribal constitutions and business
organizations under this interpretation of the IRA. Now, there
are serious questions about the effect on long-settled actions,
as well as on future decisions. If the decision is not reversed
by Congress, the Interior Department will have to determine the
meaning of ``under Federal jurisdiction'' in 1934, an uncertain
legal question and one that makes little sense from a policy
By calling into question which federally recognized tribes
are or are not eligible for the IRA's provisions, the court's
ruling in Carcieri threatens the validity of tribal business
organizations, subsequent contracts and loans, tribal
reservations and lands, and could affect jurisdiction, public
safety and provision of services on reservations across the
You have already heard today that the court's new
interpretation of the IRA is squarely at odds with Congress'
relatively recent direction to the Federal agencies that all
tribes must be treated equally regardless of how or when they
received Federal recognition.
Thus, I do not need to repeat that testimony, but simply to
impress upon the Committee that in order to reverse the damage
being caused to Congress' overall Federal Indian policy by the
Carcieri decision, an amendment to the IRA is necessary to make
clear that its benefits are available to all tribes regardless
of how or when they achieve Federal recognition.
As I mentioned earlier, I have attached to my written
testimony a detailed summary of the litigation brought in the
wake of the Carcieri decision. As you will notice during your
review of this material, two petitions have already been filed
in the Supreme Court seeking review of decisions by the U.S.
Court of Appeals for the Federal Circuit which involve
Carcieri-related claims. Although the Court denied review,
those two cases illustrate how parties opposing Indian tribes
seeked to have the Supreme Court expand the types of Carcieri-
related claims to include challenges first to lands already
acquired by the Secretary in trust, and secondly, to the very
nature of tribal existence, the old ``historic'' versus
``created'' tribe distinction that Congress addressed in the
The Chairman. Mr. Echohawk, will you please summarize your
statement? All of your statement will be included in the
Mr. Echohawk. I would like to bring, in closing, one case
in particular to the attention of the Committee and that is the
Patchak v. Salazar decision, a recent decision for the U.S.
Court of Appeals for the D.C. Circuit which held in direct
conflict with the 9th, 10th, and 11th Circuits that the
Carcieri challenge to land already acquired in trust is not
barred by the Indian lands exception to the waiver of immunity
under the Quiet Title Act. And to even reach this unprecedented
result, the D.C. Circuit had to first find that a non-Indian
landowner is within the zone of interest created by the IRA and
thus has standing to bring this Carcieri challenge.
This case is a prime example of how Carcieri may have a
long-lasting adverse impact on all 565 federally recognized
tribes and demonstrates the manner in which the lower Federal
courts are following the lead of the Supreme Court and
effectively terminating tribal sovereignty, contrary to the
stated policies of the Congress.
It illustrates the very real potential for a constant
spillover of the Carcieri decision, polluting other areas of
law which traditionally protected the rights and interests of
Indian tribes. The lower courts have not specifically decided
the Carcieri challenge, but the D.C. Circuit's ruling has
forced both the U.S. and the tribes to file their petitions
later this summer to seek review in the U.S. Supreme Court.
[The prepared statement of Mr. Echohawk follows:]
Prepared Statement of John E. Echohawk, Executive Director, Native
American Rights Fund
The Chairman. Thank you very much for your statement.
And now, Mr. Keel, will you please proceed with your
STATEMENT OF HON. JEFFERSON KEEL, PRESIDENT, NATIONAL CONGRESS
OF AMERICAN INDIANS
Mr. Keel. Thank you, Mr. Chairman, Senator Udall.
Our predecessors had a shared vision for our future as
Indian people. Indian reservations should be places where the
old ways are maintained, our languages are spoken, and our
children learn our traditions and pass them on to the next
generation. They are places where there are fish in the stream
and game in the field, and food and medicines grow wild for
harvest; places where our people can live and be Indian.
At the same time, this vision includes modern life,
economic development to sustain our people; safety and
respectful relationships with our neighbors; and the blessings
of education, health care and modern technology to help us
This vision was shared by the U.S. Congress in 1934 when it
passed one of the most important Federal laws in the history of
our Country, the Indian Reorganization Act. With the IRA,
Congress renewed its trust responsibility to protect and
restore our tribal homelands and the Indian way of life.
Two years ago, our shared vision and the Federal
responsibility to Indian tribes were threatened by the Supreme
Court's interpretation of the IRA in Carcieri v. Salazar. Prior
to 1934, the Federal Government policy toward Indian tribes was
to sell off the tribal land base and assimilate Indian people.
Kill the Indian and save the man was the slogan of that era.
The Federal Government did everything it could to disband
our tribes, break up our families and suppress our culture.
Over 90 million acres of tribal land held under treaties were
taken, more than two-thirds of the tribal land base, and the
remaining lands were often of little value for development or
But in the 1930s, the assimilation policies were widely
recognized as failures. The policies did little more than
inflict great suffering on Indian people and dishonor our
In 1934, Congress rejected allotment and assimilation and
passed the IRA. The clear and overriding purpose of Congress
was to reestablish the tribal land base and restore tribal
governments that had withered under prior Federal policy. The
legislative history and the Act itself are filled with
references to restoration of Federal support for tribes that
had been cut off and to provide land for landless Indians.
A problem with our legal system is that lawyers sometimes
lose sight of the fundamental purpose of the law, debate the
meaning of a few words, and suddenly the law is turned on its
head. Today, because of the Carcieri decision, we have
opponents arguing that tribes are not eligible for the benefits
of the IRA if they were not under active Federal supervision by
the Bureau of Indian Affairs in 1934, or if they did not have
lands in trust in 1934.
Both of these arguments are contrary to the basic purpose
of the law to reestablish Federal support for tribes that had
been abandoned or ignored by the BIA and to restore land to
tribes that had little or no land.
Today, 75 years later, the IRA is as necessary as it was in
1934. The purposes of the IRA were frustrated first by World
War II and then by the termination era. Work did not begin
again until the 1970s with the self-determination policy, and
since then Indian tribes are building economies from the ground
up and they must earn every penny to buy back their own land.
Still today, many tribes have no land base and many tribes
have insufficient lands to support housing and self-government
and culture. We will need the IRA for many more years until the
tribal needs for self-support and self-determination are met.
Two years have passed since the Carcieri decision and our
fears are coming to pass. There are at least 14 pending cases
where tribes and the Secretary of Interior are under challenge.
There are many more tribes whose land-to-trust applications
have simply been frozen while the Department of Interior works
through painstaking legal and historical analysis.
We are seeing harassment litigation against tribes who were
on treaty reservations in 1934 with a BIA superintendent. It is
litigation merely for the purpose of delay. Land acquisitions
are delayed. Lending and credit are drying up. Jobs are lost or
We fear that this will continue to get worse until Congress
acts. Even worse, that this decision will create two classes of
Indian tribes: those who will benefit from Federal trust
responsibility and those who will not.
I want to thank you, Mr. Chairman, for holding this
hearing, and all the Members of the Senate Committee on Indian
Affairs for your work to pass the necessary legislation that
will address this pressing problem and return us to the
understanding of the law that existed for 75 years prior to the
Supreme Court's decision.
I am confident that we will succeed because our shared
vision for the future of Indian people is the right one. We
deeply appreciate your efforts on this issue and so many
Thank you very much.
[The prepared statement of Mr. Keel follows:]
Prepared Statement of Hon. Jefferson Keel, President, National Congress
of American Indians
Our predecessors had a shared vision for our future as Indian
people. Indian reservations should be places where the old ways are
maintained, our languages are spoken, and our children learn our
traditions and pass them on to the next generation. They are places
where there are fish in the streams and game in the field and our food
and medicines grow wild for harvest--places where our people can live
and be Indian.
At the same time, this vision includes modern life--economic
development to sustain our people; safety and respectful relationships
with our neighbors; and the blessings of education, healthcare and
modern technology help us thrive.
This vision that was shared by the U.S. Congress in 1934 when it
passed one of the most important federal laws in the history of our
country--the Indian Reorganization Act. With the IRA, Congress renewed
its trust responsibility to protect and restore our tribal homelands
and the Indian way of life. Two years ago, our shared vision and the
federal responsibility to Indian tribes were threatened by the Supreme
Court's interpretation of the IRA in Carcieri v. Salazar.
Prior to 1934, the federal government policy toward Indian tribes
was to sell off the tribal land base and assimilate Indian people.
``Kill the Indian and Save the Man'' was the slogan of that era. The
federal government did everything it could to disband our tribes, break
up our families, and suppress our culture. 90 million acres of tribal
land that was held under treaties were taken, more than two thirds of
the tribal land base, and the remaining lands were often of little
value for development or agriculture. By the 1930s the allotment and
assimilation policies were widely recognized as failures. The policies
did little more than inflict great suffering on Indian people and
dishonor on our Nation.
In 1934, Congress rejected allotment and assimilation and passed
the IRA. The clear and overriding purpose of Congress was to re-
establish the tribal land base and restore tribal governments that had
withered under prior federal policies. The legislative history and the
Act itself are filled with references to restoration of federal support
for tribes that had been cut off, and ``to provide land for landless
A problem with our legal system is that the lawyers sometimes lose
sight of the fundamental purpose of a law, debate the meaning of a few
words, and suddenly the law is turned on its head.
Today, because of the Carcieri decision, we have opponents arguing
that tribes are not eligible for the benefits of the IRA if they were
not under active federal supervision by the BIA in 1934, or if they did
not have lands in trust 1934. Both of these arguments are contrary to
the basic purpose of the law to re-establish federal support for tribes
that had been abandoned or ignored by the BIA, and to restore land to
tribes that had little or no land.
Today, 75 years later--the IRA is just as necessary as it was in
1934. The purposes of IRA were frustrated, first by WWII and then by
the Termination Era. The work did not begin again until the 1970's with
the Self-Determination Policy, and since then Indian tribes are
building economies from the ground up, and must earn every penny to buy
back their own land. Still today, many tribes have no land base and
many tribes have insufficient lands to support housing and self-
government and culture. We will need the IRA for many more years until
the tribal needs for self-support and self-determination are met. Two
years have passed since the Carcieri decision, and our fears are coming
to pass. There are at least fourteen pending cases where tribes and the
Secretary of Interior are under challenge. There are many more tribes
whose land to trust applications have simply been frozen while the
Department of Interior works through painstaking legal and historical
analysis. We are seeing harassment litigation against tribes who were
on treaty reservations in 1934 with a BIA Superintendant. It is
litigation merely for the purposes of delay. Land acquisitions are
delayed. Lending and credit are drying up. Jobs and opportunities are
lost or never created. We fear that this will continue to get worse
until Congress acts. Even worse, that this decision will create two
classes of Indian tribes--those who will benefit from the federal trust
responsibility and those who will not.
Thank you Chairman Akaka and Vice Chairman Barrasso, and all the
members of the Senate Committee on Indian Affairs for your work to pass
the necessary legislation that will address this pressing problem and
return us to the understanding of the law that existed for 75 years
prior to the Supreme Court's decision. I am confident that we will
succeed, because our shared vision for the future of Indian people is
the right one. We deeply appreciate your efforts on this issue and so
The Chairman. Thank you very much, President Keel, for your
And now, Mr. Finley, will you proceed with your statement?
STATEMENT OF HON. MICHAEL O. FINLEY, CHAIRMAN, CONFEDERATED
TRIBES OF THE COLVILLE RESERVATION
Mr. Finley. Thank you. [greeting in native language].
Thank you for calling this hearing today.
My name is Michael Finley. I represent the Colville
Confederated Tribes of Northeast Washington State. I presently
serve as Chairman. The Colville Tribes is a confederacy of 12
different distinct aboriginal tribes that have existed since
time immemorial and today make up one tribe in Washington
Our original land base or original reservation that was
created in 1872 by executive order included all the land within
the United States that is bounded by the Columbia and Okanogan
Rivers and was about 3 million acres. We lost half of that,
roughly, in 1891 via an agreement called the McLaughlin
Agreement, also known as the North Half Agreement to those at
Colville. So in 1935, Colville was asked to take the vote on
IRA and we were one of the few tribes that voted no, against
accepting the IRA terms, by a vote of 562 no and 421 yes.
There was a lot of upheaval at the time because a lot of
our tribal members, our elders who are around today share with
us that the superintendent of BIA at the Colville Agency was
telling many of our members that they need not show up to vote;
that if they did not show up to vote that their vote would be
accepted as a yes vote.
So consequently, many of our members didn't show up and IRA
didn't pass. So we created a constitution in 1938 outside of
the IRA and today we exercise our sovereignty and jurisdiction
under that constitution.
Our elders also tell us that around that time, we had seen
a lot of our lands moving out of trust into fee ownership to
non-Indians following that 1935 vote. And many of those lands
are cherished lands around our lakes and rivers and today
around many of the larger municipalities that border our
reservation. And so with that, we get this checkerboard effect
across the Colville Reservation and it has created what I call
a jurisdictional conundrum because of the difficulties that we
have with exercising our jurisdiction and sovereignty on those
lands around these municipalities.
Luckily, we do have a couple of cross-deputization
agreements with the counties that lie within the Colville
Reservation, that being the Okanogan and Ferry, but the larger
cities, that being Cooley Dam and Omak, we don't have that. And
so many of the times when we respond to a call, we don't have
that necessary information that clearly identifies if it is fee
or trust. We just respond to all the calls.
And so because of that, it stretches our resources thin.
Sometimes we have only one officer at any given time on an area
the size of 1.4 million acres, which is bigger than the State
of Delaware. And so there may be a possibility that that
officer is responding from one end of the reservation to the
other just to get to find out that it is fee land involving a
As I stated, this has created a lot of problems for us. It
has created what I call bad case law. We have expended an
enormous amount of dollars trying to get this clearly
identified through the appropriate courts and this question is
raised through various means and times throughout the history
since this was passed.
We have also had problems with the State of Washington with
jurisdiction over Lake Roosevelt because the Bureau of
Reclamation and the Federal Government sought to construct
Grand Coulee Dam just before IRA was presented. And so we
didn't have adequate representation as we walked through that
process. And so consequently, we lost thousands of acres that
are now inundated beneath the backwaters of Lake Roosevelt.
And so with that, we continue to have jurisdictional rows
because there is clearly identifiable legislation that
designates certain portions of that lake bottom under certain
authorities. And so now because of that, we have the State of
Washington asserting their jurisdiction wholly within the
boundaries of the reservation because those backwaters go up
certain tributaries of the Columbia River such as the Sanpoll
and the Okanogan. And with that, we are continually trying to
assert our jurisdiction or authority, but it has created an
unfortunate situation and we are actually in litigation as I
speak today with the State of Washington over certain portions
of what they believe to be their authority.
So with that, I will close and I just want to thank the
Committee for allowing me to speak today and to present our
views and our hardships in Colville as a result of us not
signing the IRA.
So thank you.
[The prepared statement of Mr. Finley follows:]
Prepared Statement of Hon. Michael O. Finley, Chairman, Confederated
Tribes of the Colville Reservation
Good morning Chairman Akaka, Vice Chairman Barrasso, and members of
the Committee. On behalf of the Confederated Tribes of the Colville
Reservation (``Colville Tribes'' or the ``Tribes''), I would like to
thank the Committee for convening this hearing on the Indian
Reorganization Act of 1934 (``IRA'') and allowing me to testify. My
name is Michael Finley and I am the Chairman of the Colville Tribes and
am testifying today in that capacity. In addition, I also serve as the
Chairman for the Intertribal Monitoring Association on Indian Trust, a
national organization comprised of 65 federally recognized tribes from
all regions of the country.
Today, I am pleased to share the Colville Tribes' views and a bit
of our history regarding the IRA. My remarks today will focus on the
legacy that the Colville Tribes' 1935 IRA election has left on the
Colville Reservation, specifically as it relates to our land and law
The Colville Tribes and the IRA
Although now considered a single Indian tribe, the Confederated
Tribes of the Colville Reservation is, as the name states, a
confederation of 12 aboriginal tribes and bands from all across eastern
Washington State. The present-day Colville Reservation is located in
north-central Washington State and was established by Executive Order
in 1872. At that time, the Colville Reservation consisted of all lands
within the United States bounded by the Columbia and Okanogan Rivers,
roughly 3 million acres. In 1891, the 1.5 million acre North Half of
the 1872 Reservation was opened to the public domain. The Colville
Tribes and its members possess reserved hunting, fishing and gathering
rights on the North Half.
The Colville Tribes rejected the IRA in an election held in April
1935, with 421 adult members voting in favor and 562 against. Peter
Gunn, President of an organized group called the Colville Indian
Association, protested to Commissioner of Indian Affairs John Collier
that the local superintendent misled eligible Colville Indian voters
into believing that the withheld votes would be counted as votes in
favor of adopting the IRA. Despite the protest, no new election was
held. The Spokane Tribe, which was also under the supervision of the
same superintendant, perhaps not coincidentally also voted to reject
the IRA. Colville Indians ultimately voted to approve a non-IRA
constitution in February 1938. That constitution established the
Colville Business Council, the 14 member body that governs the Colville
The Colville Tribes today has more than 9,400 enrolled members,
making it one of the largest Indian tribes in the Northwest. About half
of the Tribes' members live on or near the Colville Reservation.
Between the tribal government and the Tribes' enterprise division, the
Colville Tribes collectively account for more than 1,700 jobs and is
one of the largest employers in north-central Washington State.
The 1935 IRA election at the Colville Agency had long-term impacts
on the Colville Reservation, many of which continue to this day. As the
Committee is aware, Section 18 of the IRA provides that none of the
provisions of the IRA apply to any Indian tribe where a majority of
adult Indians voted against its application. Regardless of the
integrity of our 1935 election, the outcome of that election meant that
the IRA did not apply to the Colville Reservation.
Checkerboarded Jurisdiction and Public Safety
According to our elders, it was the years immediately following the
1935 IRA election that much of the valuable land on the Colville
Reservation--specifically those lands adjacent to lakes and rivers--
passed into non-Indian hands. This is one of the most visible legacies
of the Tribes' rejection of the IRA because it has resulted in
``checkerboarded'' jurisdiction on many areas of the Colville
The Colville Tribes possesses more trust land within its borders
than many land-based Indian tribes, but this is only because the
Colville Tribes has for the last several decades set aside funds from
its own tribal timber sales to repurchase fee lands. Our checkerboarded
areas today are near the more populated areas of the Reservation and in
border communities. These also happen to be the areas where the
Colville Tribes' police force receive the majority of its calls.
The Colville Tribes have been fortunate to have been able to enter
into cross-deputization agreements with the two counties on the
Colville Reservation that mitigate the checkerboarding issues to a
certain extent. The largest community on the Colville Reservation,
Omak, has its own police force and the Colville Tribes does not have a
cross-deputization agreement with that police department. The Tribes
similarly does not have a cross-deputization agreement with the Coulee
Dam Police Department, which is another populated border town on the
In absence of a fast and reliable way to ascertain title of the
land prior to responding to a call, the Colville Tribes' police force
generally responds to all calls on the Colville Reservation out of an
abundance of caution. The lack of cross-deputization agreements is most
apparent when calls originate on fee land within these municipalities.
Like many land based tribes, the Colville Tribes' police force has a
very small number of officers to patrol a large area. In our case, we
occasionally have only a single officer to patrol the entire 1.4
million acre Colville Reservation. In circumstances where the Colville
Tribes responds to calls where it is later determined that these
municipalities actually possess jurisdiction, it would not be
inaccurate to describe these situations as a diversion of tribal
resources. Again, the continued alienation of tribal land following the
1935 IRA election at least contributed to this problem.
Loss of Protection of Tribal Lands
The legacy of the Colville Tribes' 1935 IRA election is apparent in
other areas besides mixed ownership of land within the Colville
Reservation. The United States began construction on the Grand Coulee
Dam in 1933, a massive project that would ultimately inundate thousands
of acres of tribal land through the creation of its reservoir, Lake
Roosevelt, and destroy the Tribes' traditional fisheries forever.
Historians have observed that without the structure of the IRA, the
Colville Tribes (and the Spokane Tribe) was at a disadvantage when
dealing with the United States when Reclamation began the project.
Instead, the tribes were almost entirely dependent on the Office of
Indian Affairs to look out for their interests as the project was
To this day, the Colville Tribes continues to have jurisdictional
disputes with state and local officials on areas within the Lake
Roosevelt management area. Some of these disputes are attributable to
checkerboarding, others to the creation and management of the Lake
itself by federal officials. All them in some way can be traced to the
1935 Colville IRA election.
Another unfortunate legacy of the IRA was the loss of lands in the
North Half. Section 3 of the IRA authorized the Secretary of the
Interior ``to restore to tribal ownership the remaining surplus lands''
that were formerly part of an Indian reservation but that had been open
to disposal by the United States under any of its public land laws. For
the Colville Tribes, this meant that our lands in the North Half
generally remained unprotected from falling into non-Indian lands. Many
of these lands had already been subject to claims under the 1872 Mining
Act. Although the Secretary of the Interior took steps to protect these
lands and Congress ultimately took action in 1956, the outcome of the
Tribes' 1935 election complicated matters significantly.
Other Legacies of the IRA
For the Colville Indians and others that rejected the IRA, the
ability to utilize certain IRA authorities remained in limbo for
decades or, in some cases, still remain unclear. For example, it was
not until passage of the Indian Land Consolidation Act in 1983 that
Indian tribes that rejected the IRA were expressly allowed to have land
taken into trust under Section 5 of the IRA, 25 U.S.C. 465. Tribes
that rejected the IRA would not be able to issue corporate charters
under Section 17 of the IRA until passage of the 1990 amendments to the
IRA. Although Congress has not explicitly addressed this issue, it was
not until last year that the Department of the Interior reversed its
prior position and concluded that the Secretary possessed the authority
to proclaim reservations under Section 7 of the IRA for tribes that
previously voted against it.
The Colville Tribes appreciates the Committee convening this
hearing and is grateful to be able to share this history and
perspective. At this time I would be happy to answer any questions that
the Committee may have.
The Chairman. Thank you very much, Chairman Finley, for
Mr. Echohawk, in your testimony, you indicate that the
Carcieri decision threatens the validity of many legal existing
arrangements between tribes and other businesses and even
government entities. In your opinion, if Congress does not
enact a Carcieri fix, what are the implications for tribes,
businesses and neighboring communities?
Mr. Echohawk. Mr. Chairman, I think as illustrated by these
14 cases that already exist out there over these Carcieri-
related issues, I think we would only see a proliferation of
more lawsuits challenging all kinds of Federal and tribal
actions that raise this Carcieri issue. I don't see any end to
The Chairman. Thank you.
President Keel, in your testimony you noted that there has
been ``harassment litigation'' brought against tribes following
the Carcieri decision. Can you elaborate on what you mean by
harassment litigation and tell us what long-term impact you
think this continued litigation will have on the tribes
involved and Indian Country as a whole?
Mr. Keel. Thank you, Mr. Chairman.
Right now, as I stated, there at least 14 cases that are
pending. These cases really serve no purpose other than
delaying the inevitable. One thing that does concern me is that
these lawsuits seem to be frivolous, seemingly, as I said, for
purposes of delay.
The long term effects of this litigation does concern me.
The Federal courts are so unpredictable that every time a tribe
subjects itself to the Federal courts, we have no idea what the
outcome may be.
The other part of that is the cost, the tremendous cost to
a tribe in resources to hire lawyers to fight these cases. The
tribes would be better served if those funds and those
resources were directed back into housing, health care, other
social service needs rather than fight these frivolous
And as you have just heard, without a fix, the long-term
process prognosis would be just a proliferation of these types
The Chairman. Thank you very much, President Keel.
Chairman Finley, your tribe has been very active in its
efforts to restore your tribal homelands. Can you tell the
Committee what benefits the tribe and your local communities
have seen from reacquisition of your homelands?
Mr. Finley. Well, historically, the Colville Tribes are a
forest products tribe, roughly 660,000 acres of our 1.4 million
acres that is left remaining of our reservation is commercial
timber property. And so we have diligently and aggressively
been buying back land since the 1980s. Today, we are second in
the Pacific Northwest of all tribes that retain trust ownership
of our reservation, that being 1.2 million acres of the 1.4
million is in trust. And a lot of tribes in the Northwest don't
have that luxury.
So since the 1980s, we have had an aggressive repurchase
account wherein we use 10 percent of our profits from our
timber sales to purchase our own lands. And so because of that,
we have been able to employ a lot of our people in the woods.
We have been able to repurchase those lands that have an
enormous amount of timber on them. And that, in itself, creates
the jobs that gets our people out in the woods and back to
The Chairman. Thank you very much.
Mr. Echohawk, what overall impact do you think continued
litigation will have on the ability of tribes to govern, create
jobs and provide for their membership?
Mr. Echohawk. I think because they are going to be facing
these challenges based upon Carcieri-related claims, their
ability to address all of the primary functions of tribal
governments will be limited. Their resources will be diverted
to have to deal with this litigation over whether they were
under Federal jurisdiction in 1934 as it relates to all kinds
of decisions by the Federal Government that affect their tribal
interests and decisions by the tribe itself that affect tribal
interests as well.
It is just going to be a tremendous distraction that can
only be fixed by this Congress with the Carcieri fix.
The Chairman. President Keel, in the last session of
Congress, we approved the Cobell settlement. Part of that
settlement is for tribes and individual Indians to consolidate
and reacquire their lands. In your view, does that settlement
reaffirm the intent of Congress and the Administration to
encourage restoration of tribal homelands?
Mr. Keel. Mr. Chairman, I believe that one of the most
important features of the settlement itself was that it did set
aside right at $2 billion for the consolidation of those
fractionated lands. And I believe that indicates that Congress
is still committed to restoring those lands.
There was bipartisan support for that bill, so it wasn't a
partisan bill. I think it does indicate that Congress still is
committed to that original IRA concept.
The Chairman. Thank you.
Chairman Finley, if the tribes were to be limited in their
ability to reacquire lands, what impact would that have on your
ability to self-govern and provide for your tribal membership?
Mr. Finley. Our land base is what feeds our families.
Without a land, we are not a people. And so I would say that
because we are able to buy back land at a high rate, we are
able to expand our jurisdiction and sovereignty.
In my earlier testimony, I alluded to the fact that we are
having problems with exercising that jurisdiction over lands
because of bad case law. And if we purchase that land back, we
convert it to trust, then we now have complete control of that
land and the right to govern and police our own.
However, I would urge the Committee, and I have been saying
this for some time, that to totally fix the problem, to have
criminal jurisdiction over non-members, we need an Oliphant
fix, and you don't hear enough of that. We are talking about
the welfare and safety of our people. And I think that until we
get that, tribes can't truly exercise their sovereign
jurisdiction over their lands whether it is fee or trust.
The Chairman. Thank you.
President Keel, there have been efforts that try to tie
this issue to gaming and lands taken into trust for gaming
purposes. What is your view on whether concerns about gaming
are appropriate in the context of the Carcieri discussions?
Mr. Keel. Thank you, Mr. Chairman.
They are clearly separate issues. Trust land acquisition is
a fundamental right of Indian tribes, primarily for community
needs, housing, natural resources protection, cultural
activities, those things that have to do with an Indian tribe's
Gaming is a separate issue. In fact, land acquisition is
covered under the Indian Gaming Regulatory Act and it is a
completely separate issue. There are separate guidelines and
separate tasks that are involved in the acquisition of land for
I am not saying that gaming is not important, because it
has become the life-blood of many of those communities. And I
understand that Senator Feinstein has introduced legislation,
and I applaud her for that, but I want to reiterate that that
is a separate bill and it should be considered separately.
The Chairman. Thank you very much for that.
I want to tell you that we have had great witnesses today.
All three panels have done well. Your testimonies have been
valuable to us. We look forward to continuing to work with all
of you on this.
Again, I want to say mahalo and thank you to the witnesses
at today's hearing. This has been very informative and one that
I felt we needed. We needed to air out the issues and get your
feeling about it. So we needed to have it as the Committee
moves to advance S. 676, our Carcieri fix language, through the
I think that what we heard today just illustrates that
Congress was clear in its intent when it passed the Indian
Reorganization Act in 1934, and again with the amended Act in
1994. And I think it is also clear that it is the
responsibility of Congress to act when its intentions have been
misconstrued by the court.
It was great to hear from you folks about what you think
about these issues. Again, I am repeating, it will help us in
our work here.
My colleagues and I on the Committee are committed to
preserving the original intent of the Indian Reorganization Act
to allow tribes to restore their homelands and exercise self-
Again, mahalo, thank you to all of you who participated in
today's hearing. And I want to remind you that the Committee
record will remain open for two weeks from today. And I keep
saying that because I want you to feel that you can respond to
us with whatever your feelings are and we would be delighted to
receive your responses.
Again, thank you very much and this hearing is adjourned.
[Whereupon, at 4:15 p.m., the Committee was adjourned.]
A P P E N D I X
Prepared Statement of Hon. Cedric Cromwell, Chairman, Mashpee Wampanoag
I thank the Committee for this opportunity to supplement the
hearing record to provide additional context for the need for the 1934
enactment of the Indian Reorganization Act.
I appreciate the Committee's interest in reviewing the context of
the Congress's intent when enacting the Indian Reorganization Act--to
provide relief to tribes adversely affected by the prior policies that
sought to dismantle tribal communities by destroying tribal land bases
and traditional lifestyle.
The Mashpee Wampanoag Tribe, whose government to government
relationship with the United States was reaffirmed in 2007, once
occupied a large land area throughout eastern Massachusetts and into
present day Rhode Island. Today, it lacks a single acre of federal
trust land base. As many have stated, Congress intended, through the
Indian Reorganization Act, to repudiate the process of allotting tribal
land. To reach that goal, it empowered the Secretary of the Interior to
acquire land in trust to begin to restore tribal land holdings. The
confusion in the wake of the Carcieri decision is complicating our
efforts to begin such restoration.
As others have testified, the process of allotting tribal lands was
part of a massive effort to disrupt tribal common land tenure. It has
its origins with the General Allotment Act of 1887, commonly referred
to as the Dawes Act. Named after its principal sponsor, Massachusetts
Senator Henry Dawes, the Act established the most powerful federal
apparatus for dispossessing tribal communities of their lands. Senator
Dawes was continuing an effort that had already proved successful in
Decades before the General Allotment Act, the Mashpee Wampanoag
Tribe was among the first to be harmed by allotment policy.
Massachusetts was among the first states to use that strategy to
separate the people from their homeland.
The Mashpee Tribe, as part of the Wampanoag Confederacy, once
exercised control over a land area that extended from Cape Cod to the
Blackstone River and Narragansett Bay in present day Rhode Island and
up to the Merrimack River near present day Gloucester, Massachusetts.
The spread of disease, colonization and English Settlement quickly
decimated that base. Despite the trauma of first contact, years after
the establishment of the Plymouth Colony, a remnant of tribal homeland
was still protected.
For centuries after English settlement, the Mashpee Tribe still
held approximately 55 square miles of land in common based on historic
deeds to the Tribe. This was confirmed by deeds that the Plymouth Bay
Colony reexecuted and recorded as Marshpee Plantation in 1671. The
deeds provided that land could not be sold outside the Tribe without
unanimous consent of the whole Tribe.
Through deed restrictions, Tribal lands were protected against
alienation for two centuries, assuring that the Wampanoag had a secure,
if diminished, homeland that was capable of housing our people and
providing them with food from the land and the waters. The Colony and
later the Commonwealth of Massachusetts respected the tribal right to
possess the land until an 1842 Act of the General Court provided for
the land to be divided up and then allotted in severalty to tribal
In 1869, two votes in Mashpee were held seeking the Tribe's consent
to this allotment policy. Tribal voters twice rejected the proposal.
However, in 1870, each tribal member over 18 received 60 acres of
land--freely alienable and fully taxable. The effect of this law was to
destroy the Tribe's reservation and deprive the Tribe of thousands of
acres of tribal common lands. This single act by the Massachusetts
legislature seriously wounded our Tribe.
The Mashpee experience thereafter foreshadowed the effect that the
Allotment Act had throughout Indian country. Once lands were alienable,
desperately poor tribal members would in short time lose their parcels.
By 1871, outsiders had acquired control of the choicest plots of land
in Mashpee, immediately clear-cutting much of the last remaining
hardwood in Massachusetts. Speculative development soon followed. Even
though the Mashpee Tribe retained political control of the Town of
Mashpee as long as outsiders were not permanent residents, the die was
cast. By the late twentieth century, the Tribe had lost control of its
As Mashpee development accelerated, the Tribe and its members
continued to lose land, the environment continued to degrade, and the
tribal members, forced out of Town government, received no benefit.
Today, many tribal members cannot afford to live where their ancestors
are buried, and we are struggling to overcome the barriers that the
Carcieri case has imposed to our ability to restore even a small
portion of our homeland.
Although we believe that the Secretary of the Interior retains the
ability to take land in trust for our Tribe, the uncertainty
surrounding the Carcieri decision has caused confusion as well as the
promise of protracted and costly litigation when our initial
reservation is approved.
The Mashpee Tribe was one of the first targets of the allotment
policy that Massachusetts Senator Henry Dawes brought to bear on other
tribes throughout the country. We now urge this Congress to take action
to finish the job it started in 1934, and provide meaningful relief--to
Mashpee and to other Indian tribes that have been harmed.
The Mashpee Tribe has been here long before 1934. Despite centuries
of protecting our homeland from encroachment, we were devastated by the
first impact of forced allotment. In 1934 Congress recognized that
allotment was a failed policy, unfairly destructive of tribal
communities. We suffered that harm before 1934 and continue to suffer
from it today. We ought to benefit from the actions and the assistance
that Congress promised in 1934. This Congress should stand by its
promise, and enact the fix necessary to avoid the further harm posed by
the flawed decision of the Supreme Court.