[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 
                                  TO 
        RESTORE TRIBAL HOMELANDS AND PROMOTE SELF-DETERMINATION

=======================================================================

                                HEARING

                               before the

                      COMMITTEE ON INDIAN AFFAIRS
                          UNITED STATES SENATE

                      ONE HUNDRED TWELFTH CONGRESS

                             FIRST SESSION

                               __________

                             JUNE 23, 2011

                               __________

         Printed for the use of the Committee on Indian Affairs



                  U.S. GOVERNMENT PRINTING OFFICE
68-389                    WASHINGTON : 2012
-----------------------------------------------------------------------
For sale by the Superintendent of Documents, U.S. Government Printing Office, 
http://bookstore.gpo.gov. For more information, contact the GPO Customer Contact Center, U.S. Government Printing Office. Phone 202�09512�091800, or 866�09512�091800 (toll-free). E-mail, [email protected]  


                      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

                              ----------                              
                                                                   Page
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

                               Witnesses

Echohawk, John E., Executive Director, Native American Rights 
  Fund...........................................................    47
    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 
  Indians........................................................    66
    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

                                Appendix

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-
                             DETERMINATION

                              ----------                              


                        THURSDAY, JUNE 23, 2011


                                       U.S. Senate,
                               Committee on Indian Affairs,
                                                    Washington, DC.
    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-
Determination.
    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 
the Act.
    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 
policy.
    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 
management.
    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 
interested parties.
    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 
opportunity.
    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 
community resources.
    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 
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 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 
American.
    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 
achievement.
    Thank you.
    [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 
resources.
    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\
---------------------------------------------------------------------------
    \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 
        Resources
    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 
        prevalent.

         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 
Press, 1928).
---------------------------------------------------------------------------
    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 
States.
---------------------------------------------------------------------------
    \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.'' 
\9\
---------------------------------------------------------------------------
    \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 
nation.

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 
support it.
---------------------------------------------------------------------------
    \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 
the nation.
    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 
problem.''
    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 
Washington, D.C.
    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 
children.
---------------------------------------------------------------------------
    \16\ Harold E. Fey and D'Arcy McNickle, Indians and Other 
Americans: Two Ways of Life Meet (New York: Harper and Brothers, 1959), 
146-7.
    \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 
Deal, 106-135.
---------------------------------------------------------------------------
    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.

Conclusion
    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 
statement.
    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 
Indigenous People.
    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 
nationwide.
    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 
reservation.
    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 
Promote Self-Determination.''
---------------------------------------------------------------------------
    \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 
hearing.
---------------------------------------------------------------------------
    \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 
28, 1934).
    \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 
Affairs:

         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 
        added.) \19\
---------------------------------------------------------------------------
    \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 
---------------------------------------------------------------------------
language.

    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 
following language:

         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 
        fiscal year.

        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.  
465.

    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 
        repaid. \23\
---------------------------------------------------------------------------
    \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, 
Notebook 1.

---------------------------------------------------------------------------
    And, again:

         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 
        documents. \32\
---------------------------------------------------------------------------
    \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 
---------------------------------------------------------------------------
Congress:

         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 
        power.

         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 
        added.)
---------------------------------------------------------------------------
    \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 
et. seq.
    \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 
incorporated tribe.
    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 
purposes.
    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 
Indian people?
---------------------------------------------------------------------------
    \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 
charter.
    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 
this opportunity.
    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 
origin.
    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 
understood.
    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 
Committee:
    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 
beneficially.''
    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 
origin.
    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 
applied.
    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 
``band'':

        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 
suggestion, stating:

        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 
        present;

        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 
25.
    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.

Conclusion
    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 
your statement.
    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 
that.
    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 
communities?
    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.
    Senator Udall?

                 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 
panels.

    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 
that?
    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 
Reorganization Act.
    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 
Acknowledgment.
    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 
instances.
    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 
courts.
    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-
shut case.
    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 
thank you.
    The Chairman. We will have another round here, Senator 
Udall.
    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 
been met?
    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 
Indian policy.
    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 
decision?
    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?
    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 
desperate moment.
    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 
103-263.
    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 
status.
    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 
tribes.
    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 
administrative action.
    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 
tribal economies.
    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 
Affairs.
    \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 
Services.
    \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 
        order. \9\
---------------------------------------------------------------------------
    \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\
---------------------------------------------------------------------------
    \10\ Id.
    \11\ Id.
    \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\
---------------------------------------------------------------------------
    \15\ Id.

    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\
---------------------------------------------------------------------------
    \16\ Id.
    \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 
Indian tribes:
---------------------------------------------------------------------------
    \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.'' 
\25\
---------------------------------------------------------------------------
    \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 
        authority. \32\
---------------------------------------------------------------------------
    \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 
statement.
    Professor Monette, would you please proceed with your 
statement.

   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 
adopted.
    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 
discussion.
    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.
    [Laughter.]
    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 
those lands.
    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 
discretion.
    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 
your statement.
    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 
the courts.
    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.
    Thank you.
    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 
taxes.
    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 
else.
    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 
here.
    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 
individuals.
    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 
and economically.''
    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 
this Country.
    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 
of application.
    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 
perspective.
    By calling into question which federally recognized tribes 
are or are not eligible for the IRA's provisions, the court's 
ruling in Carcieri threatens the validity of tribal business 
organizations, subsequent contracts and loans, tribal 
reservations and lands, and could affect jurisdiction, public 
safety and provision of services on reservations across the 
country.
    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 
1994 legislation.
    The Chairman. Mr. Echohawk, will you please summarize your 
statement? All of your statement will be included in the 
record.
    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.

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 
thrive.
    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 
agriculture.
    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 
Nation.
    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 
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 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 
others.
    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 
Indians.''
    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 
many others.

    The Chairman. Thank you very much, President Keel, for your 
testimony.
    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 
State.
    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 
non-Indian.
    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 
enforcement.

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 
Tribes today.
    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 
Reservation.
    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 
Colville Reservation.
    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 
developed.
    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 
your testimony.
    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 
that.
    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 
lawsuits.
    And as you have just heard, without a fix, the long-term 
process prognosis would be just a proliferation of these types 
of cases.
    Thank you.
    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 
work.
    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 
identity.
    Gaming is a separate issue. In fact, land acquisition is 
covered under the Indian Gaming Regulatory Act and it is a 
completely separate issue. There are separate guidelines and 
separate tasks that are involved in the acquisition of land for 
gaming purposes.
    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 
Senate.
    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-
determination.
    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 
                                 Tribe

    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 
Massachusetts.
    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 
members.
    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 
land base.
    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.