[Senate Report 112-166]
[From the U.S. Government Publishing Office]


                                                       Calendar No. 405
112th Congress                                                   Report
                                 SENATE
 2d Session                                                     112-166

======================================================================
 
  AMENDING THE ACT OF JUNE 18, 1934, TO REAFFIRM THE AUTHORITY OF THE 
  SECRETARY OF THE INTERIOR TO TAKE LAND INTO TRUST FOR INDIAN TRIBES

                                _______
                                

                  May 17, 2012.--Ordered to be printed

                                _______
                                

           Mr. Akaka, from the Committee on Indian Affairs, 
                        submitted the following


                              R E P O R T

                             together with

                            ADDITIONAL VIEWS

                         [To accompany S. 676]

      [Including cost estimate of the Congressional Budget Office]

    The Committee on Indian Affairs, to which was referred the 
bill (S. 676) to amend the Act of June 18, 1934, to reaffirm 
the authority of the Secretary of the Interior to take land 
into trust for Indian tribes, having considered the same, 
reports favorably thereon, and recommends that the bill, as 
amended, do pass.

                                Purpose

    S. 676 clarifies the continuing authority of the Secretary 
of the Interior, under the Indian Reorganization Act of 1934, 
to take land into trust for all Indian tribes that are 
federally recognized on the date on which the land is placed 
into trust.

                               Background

    Indian tribes (``tribes'') are distinct and independent 
political communities.\1\ Tribes retain the same inherent 
powers of a self-governing community as they exercised before 
European nations first discovered America.\2\ The inherent 
sovereignty of tribal governments is acknowledged in the United 
States Constitution, treaties, legislation, judicial decisions, 
and administrative practice. The United States Presidents, 
Congress, the Supreme Court, and hundreds of treaties have 
repeatedly reaffirmed that tribes are governing bodies and 
retain their inherent powers of self-government. Tribal 
governmental powers, with some exceptions, are not delegated 
powers granted by express acts of Congress, but are ``inherent 
powers of a limited sovereignty which has never been 
extinguished.''\3\ The foundation of the government-to-
government relationship between the federal government and 
tribal governments is the Treaty Clause\4\ and the Indian 
Commerce Clause\5\ of the Constitution. Treaties and laws have 
created a fundamental contract between Indian tribes and the 
United States: Tribes ceded millions of acres of land that 
helped make the United States what it is today and in return 
retained, among other guarantees, the right of continued self-
government on their own lands.
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    \1\United States v. Lara, 541 U.S. 193, 204-205 (2004) (affirming 
the Supreme Court's ``traditional understanding'' of each tribe as ```a 
distinct political society, separated from others, capable of managing 
its own affairs and governing itself''' (quoting Cherokee Nation v. 
Georgia, 30 U.S. 1, 16-17 (1831))). See also Worcester v. Georgia, 31 
U.S. (6 Pet.) 515, 559 (1832) (``The Indian nations had always been 
considered as distinct, independent political communities, retaining 
their original natural rights, as the undisputed possessors of the 
soil, from time immemorial.'').
    \2\United States v. Wheeler, 435 U.S. 313, 322--23 (1978) (noting 
that prior to the European settlement of the New World, Indian tribes 
were ``self-governing sovereign political communities''). ``Neither the 
passage of time nor the apparent assimilation of native peoples can be 
interpreted as diminishing or abandoning a tribe's status as a self-
governing entity.'' The ``Marshall Trilogy'' gave rise to the concept 
that Indian nations retain their ``inherent sovereign powers'' and 
their status as nations, although their rights to complete sovereignty 
were diminished after the European conquest. The three cases that form 
the ``Marshall Trilogy'' are Worcester v. Georgia, 31 U.S. (6 Pet.) 515 
(1832), Cherokee Nation v. Georgia, 30 U.S. (5 Pet.) 1 (1831), and 
Johnson v. McIntosh, 21 U.S. (8 Wheat.) 543 (1823).
    \3\Wheeler, 435 U.S. at 322 (quoting Felix Cohen, Handbook of 
Federal Indian Law 122 (1945)).
    \4\U.S. Const. art. II, Sec. 2, cl. 2. Congress ended treaty-making 
with Indian tribes in 1871.
    \5\U.S. Const. art. I, Sec. 8, cl. 3. This clause delegates to 
Congress the power ``[t]o regulate Commerce with foreign Nations, and 
among the several States, and with the Indian Tribes.'' The 
Constitution grants Congress plenary and exclusive power to legislate 
in respect to tribes and the U.S. Supreme Court has approved this grant 
of authority. See, e.g., United States v. Lara, 541 U.S. 193, 193-94 
(2004) (``The plenary power of Congress to deal with the special 
problems of Indians is drawn both explicitly and implicitly from the 
Constitution itself.'' (citing Washington v. Confederated Bands and 
Tribes of Yakima Nation, 439 U.S. 463, 470-71 (1979)); Morton v. 
Mancari, 417 U.S. 535, 551-52 (1974))).
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    As it is for all governments, land is important for tribal 
governments as it provides a means to advance tribal 
sovereignty and self-determination. Tribal trust lands are 
especially important to this advancement. Trust lands are most 
often found within the boundaries of a reservation, although 
not all reservation lands are trust lands. Trust status means 
that the land is under tribal governmental authority, but the 
federal government holds title to the land in trust for the 
benefit of current and future generations of tribal members. 
Although trust land is under the authority of the tribal 
government and is generally not subject to state laws, it is 
subject to usage limitations and requires federal approval for 
most transactions with third parties.
    Tribes need land in trust for a wide range of beneficial 
purposes. By acquiring land in trust, tribes are able to 
provide essential governmental services to their members, 
including health care, education, housing, jobs and other 
economic development opportunities, as well as court and law 
enforcement services. Trust land is also necessary for tribes 
to promote and protect their historic, cultural, and religious 
ties to the land.
    The long history of Indian land losses is well-known. From 
the very first days of the Republic, Indian tribes have ceded 
large areas of land to the United States. In return, the 
federal government made promises to provide for the health, 
education, and general welfare of reservation residents.\6\ 
These promises are known as the United States' trust 
responsibility to all Indians. The federal government acquired 
virtually all of its land through treaties or agreements with 
Indian tribes, and it is incumbent upon the federal government 
to protect tribal treaty rights, lands, assets, and resources, 
as well as carry out the mandates of federal law with respect 
to Indians.

    \6\``Of necessity the United States assumed the duty of furnishing 
that protection and with it the authority to do all that was required 
to perform that obligation and to prepare the Indians to take their 
place as independent, qualified members of the modern body politic.'' 
See Bd. of Cnty. Comm'rs v. Seber, 318 U.S. 705, 715 (1943) (quoting 
United States v. Kagama, 118 U.S. 375, 384, 385 (1886) (```From their 
(the Indians') very weakness and helplessness, so largely due to the 
course of dealing of the federal government with them, and the treaties 
in which it has been promised, there arises the duty of protection, and 
with it the power. This has always been recognized by the executive, 
and by congress, and by this court, whenever the question has 
arisen.''')).
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          In carrying out its treaty obligations with the 
        Indian tribes, the Government is something more than a 
        mere contracting party. Under a humane and self-imposed 
        policy, which has found expression in many acts of 
        Congress and numerous decisions of this Court, it has 
        charged itself with moral obligations of the highest 
        responsibility and trust.

    Seminole Nation v. United States, 316 U.S. 286, 296 
(1942).\7\ Despite the federal government's trust 
responsibility to protect Indian landholdings, tribes have 
suffered devastating land losses at the hands of the federal 
government. With the enactment of the General Allotment Act of 
1887 (``Allotment Act'') (sometimes referred to as ``The Dawes 
Act''),\8\ the federal government hoped to further dissolve 
tribal lands and hasten the assimilation of Indian people by 
authorizing the individualization of reservation lands to 
tribal members.\9\
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    \7\Noting that the Supreme Court ``has recognized the distinctive 
obligation of trust incumbent upon the Government in its dealings with 
these dependent and sometimes exploited people'' (citing Cherokee 
Nation v. Georgia, 30 U.S. (5 Pet.) 1 (1831); United States v. Kagama, 
118 U.S. 375, 384, 385 (1886); Choctaw Nation v. United States, 119 
U.S. 1 (1886); United States v. Pelican, 232 U.S. 442 (1914); United 
States v. Creek Nation, 295 U.S. 103 (1935); Tulee v. State of 
Washington, 315 U.S. 681 (1942)).
    \8\General Allotment Act, ch. 119, 24 Stat. 388 (1887), sections 1, 
2, and 3 (25 U.S.C. Sec. Sec. 331, 332, and 333), repealed by Indian 
Land Consolidation Act Amendments of 2000 (25 U.S.C. Sec. 2201).
    \9\The mentality at the time was that ```the easiest Indians in the 
country to civilize were those who had `no money, no funds, no land, no 
annuities.''' The Indian Reorganization Act--75 Years Later: Renewing 
Our Commitment to Restore Tribal Homelands and Promote Self-
Determination: Hearing Before the S. Comm. on Indian Affairs, 112th 
Cong. 6 (June 23, 2011) [hereinafter IRA Hearing] (statement of 
Frederick E. Hoxie, Swanland Chair/History Professor, Univ. of Ill. 
(quoting Connecticut Sen. Orville Platt) (emphasis added)).
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    Under the Allotment Act, Indian families and individuals 
were allotted small parcels of land to be used for either 
agricultural land or grazing.\10\ The United States held this 
land in trust for each individual allottee until the trust 
period expired--usually twenty-five years after the land was 
allotted. After twenty-five years, the allottee secured a 
patent in fee and could dispose of the land as he wished. 
Because most allotted lands were unsuitable for agriculture and 
were insufficient as sustainable economic units, most allottees 
lost their land soon after the trust period expired. By 1933, 
two-thirds of the Indian land base of 1887 was lost and more 
than 90,000 Indians were landless.
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    \10\A head of family would receive 160 acres, a single person or an 
orphan over 18 years would receive 80 acres, and persons under the age 
of 18 would receive 40 acres.
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    The federal allotment policy resulted in the loss of over 
100 million acres of tribal homelands.\11\ The destruction of 
tribal economies, institutions, and communities followed 
directly from the reduction of the tribal land base. Reversing 
the history and circumstances of land loss and the economic, 
social, and cultural consequences of that loss are at the core 
of the government's federal trust responsibility toward Indian 
tribes.\12\
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    \11\IRA Hearing, supra note 9, at 6 (statement of Frederick E. 
Hoxie, Swanland Chair/History Professor, Univ. of Ill. (noting the loss 
of land from 151 million acres to 52 million acres between 1880 and 
1933)).
    \12\78 Cong. Rec. 11,726--11,732 (June 15, 1934) (statement of Rep. 
Edgar Howard (detailing how the government failed in preventing the 
enormous losses of Indian land and how those land losses led to the 
growing number of ``landless Indians,'' the dwindling Indian trust 
funds, the increasing number of Indians who were once self-supporting 
and are now ``virtual paupers,'' and the alarmingly high death rate 
among the Indian population)).
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         THE DESTRUCTIVE EFFECTS OF FEDERAL ALLOTMENT POLICIES

    In 1926, Secretary of the Interior Hubert Work asked the 
Institute for Government Research\13\ to study Indian social 
and economic conditions. The resulting report, known as the 
Meriam Report of 1928,\14\ ``publicized the deplorable living 
conditions on reservations and recommended that health and 
education funding be increased, that the allotment policy be 
ended, and that tribal self-government be encouraged.''\15\ The 
report established that the cause of the declining social and 
economic conditions on reservations was the federal 
government's allotment policy and the loss of Indian homelands 
that occurred as a result of those federal policies.\16\
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    \13\Now known as the Brookings Institution.
    \14\Institute for Government Research, The Problem of Indian 
Administration (L. Meriam ed., John Hopkins Press 1928); http://
www.eric.ed.gov/PDFS/ED087573.pdf. This report examined Indian health, 
education, administration, economic conditions, and law. It was also 
critical of the allotment policy.
    \15\Charles Wilkinson & The American Indian Resources Institute, 
Indian Tribes As Sovereign Governments 11 (2d ed. 2004) (10th prtg. 
2001). See also IRA Hearing, supra note 9, at 6 (statement of Frederick 
E. Hoxie, Swanland Chair/History Professor, Univ. of Ill.
    \16\``Although critical of the performance of the Indian Bureau, 
[the Meriam Report] placed most responsibility on Congress for refusing 
to appropriate adequate funds.'' Kenneth R. Philp, John Collier's 
Crusade for Indian Reform 1920-1954, 90-91 (1977).
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    With the publication of the Meriam Report, Congress became 
acutely aware of the problems caused by federal allotment 
policies and acted to reverse tribal land losses with passage 
of the Indian Reorganization Act of 1934.\17\ The Indian 
Reorganization Act (``IRA'') (also known as the ``Wheeler-
Howard Act'' for the bill's congressional sponsors or 
informally as ``the Indian New Deal'') ended allotment and 
strengthened tribal governments by restoring their land bases. 
The IRA specifically authorized the Secretary of the Interior 
(``Secretary'') to take lands into trust for tribes so that 
tribes could reestablish their homelands.\18\
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    \17\25 U.S.C. Sec. Sec. 461-479.
    \18\25 U.S.C. Sec. 465.
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    Congressman Howard of Nebraska, the sponsor of the IRA in 
the House of Representatives and Chairman of the House Indian 
Affairs Committee, described the ``staggering'' losses of 
Indian lands.\19\ He explained that the IRA would help remedy 
the problem by preventing ``any further loss of Indian lands'' 
and permitting the purchase of additional lands.\20\ 
Congressman Howard made clear that the restoration of the 
tribal land base was not only a legal but also a moral 
obligation. ``[T]he land was theirs under titles guaranteed by 
treaties and law; and when the government of the United States 
set up a land policy which, in effect, became a forum of 
legalized misappropriation of the Indian estate, the government 
became morally responsible for the damage that has resulted to 
the Indians from its faithless guardianship.'' He further 
stated that the purpose of the IRA was ``to build up Indian 
land holdings until there is sufficient land for all Indians 
who will beneficially use it.''\21\ Less than ten percent of 
land has been restored to trust status for Indian tribes and 
their members since the enactment of the IRA.\22\
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    \19\78 Cong. Rec. 11,727-728 (1934).
    \20\Id. at 11,727; see also 78 Cong. Rec. 11,123 (June 12, 1934) 
(statement of Sen. Wheeler, sponsor of the bill in the Senate (echoing 
the remedial goals in relation to Indian lands)).
    \21\78 Cong. Rec. 11,732 (1934).
    \22\Examining Executive Branch Authority to Acquire Trust Lands for 
Indian Tribes, Hearing before the S. Comm. on Indian Affairs, 111th 
Cong. 2 (May 21, 2009) [hereinafter Examining Executive Authority 
Hearing] (statement of Sen. Byron L. Dorgan, Chairman, S. Comm. on 
Indian Affairs). This figure varies from five to eight million, 
depending on the source, but most sources cite figures of approximately 
five million acres. Regardless of whether the figures cited are five or 
eight million acres, both represent less than 10% of lands lost through 
allotment. See also Supreme Court Decision, Carcieri v. Salazar, 
Ramifications to Indian Tribes, Hearing Before the H. Comm. on Natural 
Res. 34 (Apr. 1, 2009) [hereinafter Carcieri's Ramifications to Tribes 
Hearing] (statement of Michael J. Anderson, AndersonTuell, LLP (noting 
that ``[a]bout four million acres have been taken into trust since the 
IRA was passed'')).
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    An adequate land base is essential for the economic 
advancement and self-support of the Indian communities and the 
preservation of tribal culture. The need to provide land for 
Indians was recognized as an important part of the IRA\23\ 
because land could be beneficially used to increase Indian 
self-support.\24\ The IRA was enacted as a means not simply of 
halting the prior federal policies that had destroyed Indian 
communities and Indian economies, but reversing the course that 
had led to those losses.\25\
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    \23\See S. Rep. No. 1080, 73d Cong., 2d Sess., 2 (1934) (stating 
that section 5 would ``meet the needs of landless Indians and of Indian 
individuals and tribes whose land holdings are insufficient for self-
support''); H.R. Rep. No. 1804, at 6 (noting that the purchase of lands 
would help ``[t]o make many of the now pauperized, landless Indians 
self-supporting''); 78 Cong. Rec. 11,730 (statement of Rep. Howard 
(noting that section 5 would ``provide land for Indians who have no 
land or insufficient land, and who can use land beneficially'')).
    \24\S. Rep. No. 1080, 73d Cong., 2d Sess., 1 (1934). See also 78 
Cong. Rec. 11,125 (statement of Sen. Burton K. Wheeler (``This bill . . 
. seeks to get away from the bureaucratic control of the Indian 
Department, and it seeks further to give the Indians the control of 
their own affairs and of their own property; to put it in the hands 
either of an Indian Council or in the hands of a corporation to be 
organized by the Indians.'')).
    \25\See 78 Cong. Rec. 11,123 (June 12, 1934) (statement of Sen. 
Burton K. Wheeler (outlining the purposes of the IRA) (``There is 
nothing in the bill as presented to the Senate which in any wise [sic] 
gives the Department of the Interior the right to impose its will upon 
the Indians on any reservation.'')).
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THE INDIAN REORGANIZATION ACT: THE FOUNDATION FOR FEDERAL INDIAN POLICY 
               IN MODERN ERA OF TRIBAL SELF-DETERMINATION

    By the 1930s, the federal allotment policies had proven 
disastrous for Indian tribes.\26\ As part of the repudiation of 
federal allotment policies, the IRA ended allotment and made 
possible the organization of tribal governments and tribal 
corporations. The passage of the IRA ended the federal support 
that had led to the erosion of Indian land and resources and 
reaffirmed the inherent powers of tribal governments.\27\
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    \26\Hodel v. Irving, 481 U.S. 704, 707 (1987) (``The failure of the 
allotment program became even clearer as successive generations came to 
hold the allotted lands. Thus 40-, 80-, and 160-acre parcels became 
splintered into multiple undivided interests in land, with some parcels 
having hundreds, and many parcels having dozens, of owners. Because the 
land was held in trust and often could not be alienated or partitioned, 
the fractionation problem grew and grew over time. A 1928 report 
commissioned by the Congress [the Meriam Report] found the situation 
administratively unworkable and economically wasteful.'').
    \27\IRA Hearing, supra note 9, at 3 (statement of Frederick E. 
Hoxie, Swanland Chair/History Professor, Univ. of Ill.).
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    The IRA has been recognized as one of the most important 
pieces of Indian legislation in American history. It advanced a 
sweeping change in federal Indian policy intended ``to 
establish machinery whereby Indian tribes would be able to 
assume a greater degree of self-government, both politically 
and economically.''\28\ Through the IRA, Congress sought to 
replace assimilationist policies characterized by the Allotment 
Act and revitalize and strengthen tribal government\29\ and 
``rehabilitate the Indian's economic life and to give him a 
chance to develop the initiative destroyed by a century of 
oppression and paternalism,'' so that a ``tribe taking 
advantage of the IRA might generate substantial revenues for 
the education and the social and economic welfare of its 
people.''\30\ These principles are the foundation for federal 
Indian policy in the modern era of tribal self-
determination.\31\
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    \28\Morton v. Mancari, 417 U.S. 535, 542 (1974).
    \29\See Iowa Mutual Ins. Co. v. LaPlante, 480 U.S. 9, 14 n.5 
(1987); Fisher v. Dist. Court, 424 U.S. 382, 387 (1976); Morton, 417 
U.S. at 543. See also Wilkinson, supra note 15, at 12 (``The most 
significant contribution of the IRA was to promote the exercise of 
self-governing powers.'').
    \30\Mescalero Apache Tribe v. Jones, 411 U.S. 145, 151-52 (1973) 
(citations omitted).
    \31\California v. Cabazon Band of Mission Indians, 480 U.S. 202, 
219 (1987); White Mountain Apache Tribe v. Bracker, 448 U.S. 136, 143 & 
n. 10 (1980).
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    Restoration of land to tribal ownership is one of the 
central purposes of the IRA and has been recognized by Congress 
as essential to tribal self-determination.\32\ As Congressman 
Howard succinctly stated during the House consideration of the 
measure, ``[l]and reform and in [sic] a measure home rule for 
the Indians are the essential and basic features of this 
bill.''\33\
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    \32\See Carcieri Crisis: The Ripple Effect on Jobs, Economic 
Development and Public Safety in Indian Country: Hearing on S. 676 
Before the S. Comm. on Indian Affairs, 112th Cong. (Oct. 13, 2011) 
[hereinafter Carcieri Hearing] (statement of Richard Guest, Staff 
Attorney, Native Am. Rights Fund) (``Congress recognized that tribal 
self-determination and economic self-sufficiency could not be achieved 
without adequate lands.'' (quoting Brief for National Congress of 
American Indians (``NCAI'') as Amici Curiae Supporting Defendants-
Appellees, Carcieri v. Norton, 423 R.3d 45 (1st Cir. 2005) (No. 03-
2647), available at http://www.narf.org/sct/carcieri/1stcircuit/ncai-
tribes-amicus-brief.pdf)).
    \33\78 Cong. Rec. 11,729 (1934).
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    The IRA was signed into law on June 18, 1934. Section 5 of 
the IRA provides for the recovery of the tribal land base and 
is integral to the IRA's overall goals of recovering from the 
loss of land and reestablishing tribal economic, governmental 
and cultural life:

          The Secretary of the Interior is hereby authorized, 
        in his discretion, to acquire, through purchase, 
        relinquishment, gift, exchange, or assignment, any 
        interest in lands, water rights, or surface rights to 
        lands, within or without existing reservations, 
        including trust or otherwise restricted allotments, 
        whether the allottee be living or deceased, for the 
        purpose of providing land for Indians.

                             *  *  *  *  *

          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.

    25 U.S.C. Sec. 465. Of the more than 90 million acres of 
tribal homelands lost through the allotment process, less than 
10 percent have been restored to trust status since the IRA was 
passed over 75 years ago.\34\ Still today, a number of 
federally recognized Indian tribes do not have a land base, or 
have insufficient lands, and cannot support a governing base or 
basic community needs such as housing, education, and economic 
development. In addition, many tribal land parcels are overly 
fractionated,\35\ a disastrous effect of earlier federal 
allotment policies which has resulted in far more Indian land 
passing out of trust than gets taken into trust each year.
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    \34\Examining Executive Authority Hearing, supra note 22, at 16 
(statement of Ron Allen, Secretary, Nat'l Cong. of Am. Indians).
    \35\``Today, an individual plot of allotted land might have up to 
one thousand owners, and can therefore be put to no beneficial use.'' 
Press Release, Senator Akaka, Committee Holds Hearing on the American 
Indian Probate Reform Act (Aug. 5, 2011), http://akaka.senate.gov/
press-releases.cfm?method=releases.view&id=63b58e04-857f-465a-9bcc-
c09f75ec6970.
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    The IRA focuses on repairing the harm that was done through 
prior allotment policies, but the restoration of tribal land is 
not the only purpose of the IRA.\36\ The broader intent of the 
IRA was about revitalizing tribal government and enabling all 
tribes the basis for self-determination. This broader purpose 
can only be fulfilled by affording all tribes the opportunity 
for land as a territorial base. In passing the IRA, Congress 
recognized that the enormous losses of land due to allotment 
had deprived the tribes not only of land, but of the base 
necessary for self-support.\37\
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    \36\IRA Hearing, supra note 9, at 21-22 (testimony of Carole 
Goldberg, Jonathan D. Varat Distinguished Professor of Law, UCLA). 
``[T]o read that as the exclusive purpose of the Act . . . is not 
consistent with what is there in the legislative history.'' See id. at 
32-33 (noting that the exchange between Chairman Wheeler and 
Commissioner Collier reflects Collier's view that there would be more 
flexibility in the application of the IRA).
    \37\Self-support, or self-determination, can only be achieved 
through the establishment of a territorial basis. See IRA Hearing, 
supra note 9, at 6 (testimony of Carole Goldberg, Jonathan D. Varat 
Distinguished Professor of Law, UCLA) (IRA policy was to ``abandon the 
goal of assimilation in favor of the belief that Native American 
societies had a right to exist on the basis of culture different from 
the dominate 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.'').
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    The IRA policy of reversing the effects of the Allotment 
Act was reaffirmed some 65 years later when Congress adopted 
the Indian Land Consolidation Act Amendments of 2000, which 
states that it is ``the policy of the United States . . . to 
reverse the effects of the allotment policy on Indian 
tribes.''\38\
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    \38\Pub. L. 106-462, Sec. 102(5), 114 Stat. 1992 (codified at 25 
U.S.C. Sec. 2201).
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 EXECUTIVE AND LEGISLATIVE POLICIES HAVE LONG REFLECTED CONGRESSIONAL 
    INTENT TO FOSTER TRIBAL SOVEREIGNTY AS EXPRESSED IN THE INDIAN 
                           REORGANIZATION ACT

    Congressional support for tribal self-government and self-
determination is clearly expressed in federal statutes, 
policies, and practices. Enactment of the IRA was only one in a 
series of numerous congressional acts that were passed to 
promote and support the sovereignty of all tribal governments. 
Congress alone has plenary power over the federal government's 
relations with the tribes.\39\ Congressional response to 
allotment and assimilation policies was to enact an 
unprecedented volume of Indian legislation over the next 
century. Most of this legislation reaffirms Congress's 
recognition that tribes possess the inherent authority to 
govern themselves.
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    \39\U.S. Const. art. I, Sec.  8, cl. 3. See also United States v. 
Kagama, 118 U.S. 375 (1886) (confirming the plenary power of Congress 
over Indian affairs, the domestic, dependent status of the tribes, and 
the guardian-ward relationship).
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    With the enactment of the Snyder Act in 1921,\40\ Congress 
began, for the first time, to authorize appropriations and 
expenditures under a broad authority delegated to the Secretary 
for the administration of Indian Affairs; including the support 
of education, health programs, and economic assistance in 
Indian country.\41\ In 1924, Congress naturalized all ``Indians 
born within the territorial limits of the United States''\42\ 
by enacting the Indian Citizenship Act.\43\ American Indians 
now had access to education, health, welfare, and other social 
service programs.
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    \40\25 U.S.C. Sec. 13.
    \41\Prior to 1921, appropriations were distributed on an ad hoc 
basis by BIA superintendents to the Indians under their purview. This 
system tended to be unsystematic and inadequate. For the definition of 
``Indian country,'' see 18 U.S.C. Sec.  1151 (defining Indian country 
as ``(a) all land within the limits of any Indian reservation under the 
jurisdiction of the United States Government, notwithstanding the 
issuance of any patent, and, including rights-of-way running through 
the reservation, (b) all dependent Indian communities within the 
borders of the United States whether within the original or 
subsequently acquired territory thereof, and whether within or without 
the limits of a state, and (c) all Indian allotments, the Indian titles 
to which have not been extinguished, including rights-of-way running 
through the same.''
    \42\43 Stat. 253, 8 U.S.C. Sec. 1401(a)(2).
    \43\8 U.S.C. Sec. 1401 (1924). The Act gave Indians the right to 
vote in national elections, but it did not provide full protection 
under the Bill of Rights to Indians living under tribal governments. 
Later amendments clarified that the Act applied to Alaska Natives as 
well.
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    The election of President Franklin D. Roosevelt in 1932 led 
to the ``Indian New Deal Era''\44\ and it represented something 
truly new in federal Indian policy.\45\ Congress repudiated the 
forced assimilation of Indians through allotment and other 
related federal policies and began to pass laws that encouraged 
the development of tribal governments, economies, and cultures. 
Their efforts resulted in the IRA--the centerpiece of this new 
era.
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    \44\Approximately 1928-1947. Although driven by the Meriam Report 
in 1928, the ``Indian New Deal Era'' began generating positive legal 
changes after the election of President Franklin D. Roosevelt in 1932.
    \45\The National Congress of American Indians (``NCAI'') was formed 
in 1944, during the ``Indian New Deal Era,'' in response to termination 
and assimilation policies that the United States forced upon the tribal 
governments in contradiction of their treaty rights and status as 
sovereigns. Comprised of mostly BIA employees, NCAI stressed the need 
for unity and cooperation among tribal governments for the protection 
of their treaty and sovereign rights. NCAI is the oldest, largest, and 
most representative group of American Indians and Alaska Natives and is 
often viewed as the most politically influential Indian organization in 
the United States. National Congress of american Indians (Apr. 24, 
2012, 1:30:00 PM), http://www.ncai.org/about-ncai/mission-history.
---------------------------------------------------------------------------
    The Indian Claims Commission Act was passed in 1946\46\ and 
provided for the monetary recovery for all takings of land, no 
matter what was the source of Indian title. This Act also 
includes a right of recovery for executive order reservations, 
allowing for the recovery of unconscionable consideration, and 
other improper land acquisitions with claims that occurred 
before the date of enactment.
---------------------------------------------------------------------------
    \46\60 Stat. 1049, 1050 (codified at 25 U.S.C. Sec. 70a).
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    In 1968,\47\ President Lyndon Johnson signed into law the 
Indian Civil Rights Act,\48\ further emphasizing the federal 
government's support of self-governance and self-determination 
by providing individual Indians with some statutory protections 
against their tribal governments.\49\
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    \47\It is important to note that from 1953 to the mid-1960s, the 
period known as the ``Termination Era,'' there was a substantial loss 
of Indian land as the federal government attempted to sever its trust 
relationship with as many tribes as possible in order to expedite 
assimilation. Over 100 tribes were terminated and lost their status as 
federally recognized and sovereign Indian communities. The termination 
policies were discredited in the mid-1960s by President Nixon (and 
later, by President Reagan in the 1980s). President Nixon's 
condemnation of the Termination Era and his call for Indian self-
determination returned the nation to a policy based on the principles 
that were manifested in the IRA and reinforced the importance of 
restoring tribal land.
    \48\Pub. L. 90-284, 82 Stat. 77 (1968) (codified as amended at 25 
U.S.C. Sec. 1301-1303). Although controversial, the Indian Civil Rights 
Act is an important measure designed to guarantee Indians living under 
tribal governments the same rights as those of other U.S. citizens.
    \49\This protection is modeled after the protections the U.S. 
Constitution provides to individuals against state and local 
governments.
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    Recognizing that previous federal interpretations of Indian 
policies had been inconsistent, President Richard M. Nixon 
issued a landmark statement in 1970 calling for a new federal 
policy of ``self-determination'' for Indian nations.\50\ 
President Nixon signed into law the Indian Education Act in 
1972\51\ and ushered in a new era of reconciliation between the 
federal government and Indians. The Indian Education Act 
promised to provide adequate and appropriate educational 
services for Indians in order to guarantee future generations 
the tools necessary to compete in modern society without 
necessitating the abandonment of their traditional culture and 
practices. The Indian Financing Act of 1974\52\ was enacted to 
further enhance tribal economic development by increasing the 
amount of federal money available for tribal business 
enterprises.
---------------------------------------------------------------------------
    \50\Message from the President of the United States Transmitting 
Recommendations for Indian Policy, H.R. Doc. No. 91-363, 91st Cong., 2d 
Sess. (July 8, 1970).
    \51\20 U.S.C. Sec. Sec. 241aa, 887c, 1211a.
    \52\25 U.S.C. Sec. Sec. 1451-1453.
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    The government-to-government relationship between the 
federal government and Indian tribes has existed since the 
formation of the United States and has been reaffirmed by every 
President since the 1970s. For over four decades, the United 
States' federal policy on Indian Affairs has been one of tribal 
self-governance and self-determination. This policy strengthens 
tribal governments and provides the means for tribal economic 
self-sufficiency.\53\ Congress placed the primary 
responsibility for Indian matters with the Department of Health 
and Human Services (``HHS'') and the Department of the Interior 
(``DOI'').\54\ The United States government and its executive 
agencies historically dealt and continue to deal with Indian 
tribes as set forth in the United States Constitution.\55\
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    \53\See, e.g., The American Indian Agricultural Resource Management 
Act, 25 U.S.C. Sec. Sec. 3701-3713 (1993), which was enacted to carry 
out the federal government's trust duty to protect, conserve, utilize, 
and manage Indian agricultural lands and related renewable resources 
with the active participation of the tribal landowner; the Indian 
Employment, Training, and Related Services Demonstration Act, Pub. L. 
102-477 (amended by Pub. L. 106-568 (1992)), which authorized the 
integration of employment, training, and related services provided by 
Indian tribal governments; the Indian Mineral Development Act, 25 
U.S.C. Sec. 2102-2108 (1982), which authorizes Indian tribes, with 
approval of the Secretary, to enter into joint ventures in the 
operating, production sharing, service, managerial, leasing, or other 
agreements for the extraction, processing or other development of oil, 
gas, uranium, coal, geothermal or other energy or non-energy mineral 
resources; the Indian Child Welfare Act, 25 U.S.C. Sec. Sec. 1901-1963 
(1978), which provides a comprehensive scheme for the adjudication of 
child custody cases involving Indian children by deferring to tribal 
governments; the American Indian Religious Freedom Act, 42 U.S.C. 
Sec. 1996 (1978), which provided an important acknowledgment of Indian 
religious tenets.
    \54\25 U.S.C. Sec. 450.
    \55\See Indian Commerce Clause, U.S. Const. art. I, Sec. 8, cl. 3; 
Treaty Clause, U.S. Const. art. II, Sec. 2, cl. 2.
---------------------------------------------------------------------------
    The Indian Self-Determination and Education Assistance Act 
of 1975 (``Self-Determination Act''),\56\ reaffirms the 
government-to-government relationship between the federal 
government and the tribes by providing for the tribes' full 
participation in government and education programs and services 
to Indian people and tribal communities. This partnership 
establishes a program of assistance to upgrade Indian 
education, and encourages Indians to manage their own schools.
---------------------------------------------------------------------------
    \56\Pub. L. 93-638, 88 Stat. 2203 (codified at 25 U.S.C.A. 
Sec. Sec. 450-458e) (amended by Pub. L. 100-202, Pub. L. 101-301, Pub. 
L. 100-446, Pub. L. 100-472, Pub. L. 100-581, and Pub. L. 101-644). The 
Indian Self-Determination and Education Assistance Act, Pub. L. 93-638, 
originally included two acts: Title I is known as the Indian Self-
Determination Act and appears generally at 25 U.S.C. Sec. Sec. 450f-
450n, and Title II is known as the Indian Education Assistance Act and 
appears generally at 25 U.S.C. Sec. Sec. 455-458e.
---------------------------------------------------------------------------
    In the 1980s, President Reagan's policies expanded and 
developed the federal Indian self-determination policies of the 
1970s.\57\ The President repudiated termination and pledged to 
uphold the Indian Self-Determination Act. ``He admitted that 
without healthy reservation economies the concept of self-
government had little meaning.''\58\ As a result, the Indian 
Land Consolidation Act of 1983\59\ and its amendments are 
important pieces of legislation that reverse the effects of 
previous federal allotment policies and prevent the further 
fractionation of Indian land title. During this time, the 
Indian Self-Determination Act was amended to make contracting 
easier between federal and tribal governments, thereby 
providing for the exercise of greater tribal self-
governance.\60\ The resulting contracts, or compacts, allow 
tribes the administration and management of programs, 
activities, functions and services previously managed by the 
Bureau of Indian Affairs (``BIA'').
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    \57\President Reagan was also supportive of tribal self-governance 
and self-determination and issued an affirmative statement on January 
24, 1983 concerning federal Indian policy. See President Ronald 
Reagan's American Indian Policy (Jan. 24, 1983), available at http://
www.schlosserlawfiles.com/consult/reagan83.pdf.
    \58\Indian Self-Rule: First-Hand Accounts of Indian-White Relations 
from Roosevelt to Reagan 24 (Kenneth R. Philp ed., 1995).
    \59\25 U.S.C. Sec. Sec. 2201-2221.
    \60\Known as Indian Self-Determination Act Amendments of 1988, Pub. 
L. 100-472 (1988) (codified at 25 U.S.C. Sec. Sec. 450a-450n) 
(Sec. 450f repealed by Pub. L. 106-260).
---------------------------------------------------------------------------
    Contrary to dozens of federal statutes and decades of 
presidential policies instructing that all tribes be treated 
equally, some federal agencies began to discriminate amongst 
tribes based on their date of federal recognition or the manner 
in which the tribe received recognition. When Congress learned 
of the agencies' disparate treatment of tribes, it passed two 
amendments to the IRA on May 31, 1994.\61\ The 1994 Amendments 
underscored existing congressional policy and guaranteed that 
all federally recognized tribes would receive equal treatment 
by the federal government and its agencies. ``The purpose of 
the amendment[s] [S. 2017] is to clarify that section 16 of the 
Indian Reorganization Act was not intended to authorize the 
Secretary of the Department of the Interior to create 
categories of federally recognized Indian tribes. In the past 
year, the Pascua Yaqui Tribe of Arizona has brought to our 
attention the fact that the Department of the Interior has 
interpreted section 16 to authorize the Secretary to categorize 
or classify Indian tribes as being either created or historic * 
* * All of this ignores a few fundamental principles of Federal 
Indian law and policy * * * Congress itself cannot create 
Indian tribes, so there is no authority for the Congress to 
delegate to the Secretary in this regard. * * * [T]he 
interpretation of section 16 which has been developed by the 
Department is inconsistent with the principle policies 
underlying the IRA.''\62\
---------------------------------------------------------------------------
    \61\25 U.S.C. Sec. 476(f) & (g). It should be noted that in the 
years between 1988 and 1994 discussed above, there were several 
additional statutes enacted that also supported tribal self-governance. 
These acts include the Indian Law Enforcement Act (25 U.S.C. Sec. 2801 
(1990)); the Native American Graves Protection and Repatriation Act (25 
U.S.C. Sec. 3001 (1990)); and the Clean Air Act Amendments (42 U.S.C. 
Sec. 7601(d)(2) (1990)).
    \62\140 Cong. Rec. S6146 (daily ed. May 19, 1994) (statement of 
Sen. John McCain). ``[A] serious mistake has been made by the 
Department in construing the intent of Congress in enacting 16 * * * 
[S]ection 16 does not authorize or require the Secretary of the 
Interior to draw distinctions between tribes or to categorize them 
based on their powers of governance. As Mr. [Felix] Cohen noted in his 
1942 Handbook on Federal Indian Law, the IRA `had little or no effect 
upon the substantive powers of tribal self-government vested in the 
various Indian tribes.' The courts have consistently construed the IRA 
to have had no substantive effect on tribal sovereign authority.'' 140 
Cong. Rec. S4338 (daily ed. Apr. 14, 1994) (statement of Sen. John 
McCain).
---------------------------------------------------------------------------
    Also in 1994, Congress passed the Indian Self-Determination 
Act Amendments (also known as the ``Tribal Self-Governance 
Act'').\63\ These amendments provided legislative guidance for 
tribes who chose to contract for the transfer of federal 
programmatic authorities and resources under the Indian Self-
Determination Act.
---------------------------------------------------------------------------
    \63\Pub. L. 103-413 (1994) (codified at 25 U.S.C. Sec. 450-450n and 
458aa-458hh).
---------------------------------------------------------------------------
    Solidifying its support of tribal sovereignty, Congress 
enacted the Federally Recognized Indian Tribe List Act of 1994 
(``List Act'').\64\ The List Act requires the BIA to annually 
publish the list of federally recognized tribes in the Federal 
Register. The List Act documents the federally recognized 
status for all tribes on the published list and serves as a 
record of federally recognized tribes that are eligible for 
funding and services from the BIA by virtue of their status as 
Indian tribes.\65\ Unlike in 1934 when the IRA was enacted and 
no such list existed, the List Act eliminates the possibility 
of administrative termination of tribes.
---------------------------------------------------------------------------
    \64\Pub. L. 103-454 (1994) (codified at 25 U.S.C. Sec. 479a-1). 
This is a list of federally recognized tribes that are eligible for 
funding and services from the Bureau of Indian Affairs by virtue of 
their status as Indian tribes. The Act also formally established three 
ways in which an Indian group may become federally recognized, (1) By 
Act of Congress; (2) by the administrative procedures under 25 C.F.R. 
Part 83: or (3) by decision of a United States court.
    \65\H.R. Rep. No. 103-781 at 3 (1994), as reprinted in 1994 
U.S.C.C.A.N. 3768.
---------------------------------------------------------------------------

       THE 1994 AMENDMENTS REAFFIRM THE INDIAN REORGANIZATION ACT

    Congress amended the IRA in 1994 in order to prohibit the 
federal government and its agencies from taking any action that 
``classifies, enhances, or diminishes the privileges and 
immunities available to the Indian tribe relative to other 
federally recognized tribes by virtue of their status as Indian 
tribes.''\66\ The amendments made it clear that ``tribe'' shall 
be defined to include all federally recognized tribes in all 
federal statutes affecting Indian tribal governments.\67\
---------------------------------------------------------------------------
    \66\Pub. L. No. 103-263, 108 Stat. 707 (codified as 25 U.S.C. 
Sec. 476(f) & (g)).
    \67\Memorandum from John D. Leshy, Solicitor, Office of the 
Solicitor, U.S. Dep't of the Interior, to Ada E. Deer, Assistant 
Secretary, Office of Indian Affairs, U.S. Dep't of the Interior 3-7 
(July 13, 1994) (citing the broad definition of ``tribe'' in the Indian 
Civil Rights Act of 1968, 25 U.S.C. Sec. 1301(1): ``any tribe, band, or 
other group of Indians subject to the jurisdiction of the United States 
and recognized as possessing powers of self-government''). In his 
memorandum, Leshy also notes the broad definition of ``tribe'' in many 
other federal statutes, including, Indian Land Consolidation Act, 25 
U.S.C. Sec. 2201(1); the Indian Child Welfare Act, 25 U.S.C. 
Sec. 1903(8); the Indian Self-Determination and Education Assistance 
Act, 25 U.S.C. Sec. 450b(e); the Indian Child Protection and Family 
Violence Prevention Act, 25 U.S.C. Sec. 3202(10).
---------------------------------------------------------------------------
    The 1994 amendments revised Section 16 of the IRA by adding 
language in subsection (f) and (g) to ensure that federal 
agencies treat all federally recognized tribes equally, no 
matter when, or how, they received recognition from the federal 
government.\68\ In particular, subsection (f) prohibits the 
Secretary and other Administrative agencies from promulgating 
any regulation that ``classifies, enhances, or diminishes the 
privileges and immunities available to the Indian tribe 
relative to other federally recognized tribes by virtue of 
their status as Indian tribes.''\69\ Subsection (g) of the 1994 
amendments ensured that any Administrative actions that treated 
tribes in differing ways would be invalid. Specifically, 
subsection (g) states 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.\70\
---------------------------------------------------------------------------
    \68\25 U.S.C. Sec. 476(f) & (g).
    \69\25 U.S.C. Sec. 476(f).
    \70\25 U.S.C. Sec. 476(g).
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    The 1994 amendments put an end to the discriminatory 
practices that had been developing within DOI.\71\ DOI had 
begun to classify tribes as either ``historic'' and 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.\72\ By enacting 
the 1994 amendments and broadening the definition of ``tribe'' 
in other federal statutes, Congress explicitly rejected DOI's 
classifications.\73\ The amendments ensured that DOI upheld the 
original intent of the IRA to promote tribal sovereignty by 
allowing all federally recognized tribes to organize and self-
govern.\74\
---------------------------------------------------------------------------
    \71\IRA Hearing, supra note 9, at 35-41 (testimony of Steven 
Heeley, Policy Consultant, Akin, Gump, Strauss, Hauer & Feld, LLP 
(citing 25 U.S.C. Sec. 476(f)) (noting that DOI's practice came to 
light when the Pascua Yaqui Nation of Arizona made efforts to amend 
their tribal constitution)). ``Strangely, although the Department was 
apparently making this distinction amongst tribes, it appears that the 
Department never notified the affected tribes or the Congress of their 
new status. Had they done so, we would have acted to correct this 
unauthorized arbitrary and unreasonable differentiation of tribal 
status long ago * * * [O]ur amendment would void any past determination 
by the Department that an Indian tribe is created and would prohibit 
any such determinations in the future * * * [O]ur amendment will 
correct any instance where any federally recognized Indian tribe has 
been classified as `created' and that it will prohibit such 
classifications from being imposed or used in the future. Our amendment 
makes it clear that it is and has always been Federal law and policy 
that Indian tribes recognized by the Federal Government stand on an 
equal footing to each other and to the Federal Government.'' 140 Cong. 
Rec. S6147 (daily ed. May 19, 1994) (statement of Sen. Daniel K. Inouye 
(D-Hawaii) (emphasis added).
    \72\``Such an artificial distinction represent[ed] a significant 
departure from the Congressional intent and purpose of the IRA and 
[was] reminiscent of the very policies of assimilation that the IRA was 
intended to address * * * In enacting Public Law 103-263 [the 1994 
amendments], 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.'' IRA Hearing, 
supra note 9, at 36 (testimony of Steven Heeley, Policy Consultant, 
Akin, Gump, Strauss, Hauer & Feld, LLP (citing 25 U.S.C. Sec. 476(f))).
    \73\Leshy, supra note 67, at 7. Leshy also noted that the 1994 
amendments to the IRA were not ``confined to the IRA,'' but were 
```intended to address all instances where such categories or 
classifications of Indian tribes have been applied and any statutory 
basis which may have been used to establish, ratify, or implement the 
categories or classifications.''' Id. at 3, n.3 (quoting 140 Cong. Rec. 
S6147 (daily ed. May 19, 1994) (statement of Sen. John McCain)).
    \74\Senator Daniel K. Inouye (D-Hawaii), who co-sponsored the 
legislation, told Congress that ``The amendment which we are offering * 
* * will make it clear that the Indian Reorganization Act does not 
authorize or require the Secretary to establish classifications between 
Indian tribes * * * [I]t is and has always been Federal law and policy 
that Indian tribes recognized by the Federal Government stand on an 
equal footing to each other and to the Federal Government * * * Each 
federally recognized Indian tribe is entitled to the same privileges 
and immunities as other federally recognized tribes and has the right 
to exercise the same inherent and delegated authorities. This is true 
without regard to the manner in which the Indian tribe became 
recognized by the United States or whether it has chosen to organize 
under the IRA. By enacting this amendment * * *, we will provide the 
stability for Indian tribal governments that the Congress thought it 
was providing 60 years ago when the IRA was enacted.'' 140 Cong. Rec. 
S6147 (daily ed. May 19, 1994).
---------------------------------------------------------------------------
    DOI's discriminatory practices were based on two 
discredited Solicitors' Opinions: the first was written in 1934 
and generally discussed the powers of tribal sovereignty; and 
the second was written in 1936.\75\ The 1936 Opinion formed the 
basis of DOI's classifications by relying on Section 16 of the 
IRA--a section that had been amended by Congress to eliminate 
the ``historic'' versus ``created'' distinction in 1988 and in 
1994.\76\
---------------------------------------------------------------------------
    \75\IRA Hearing, supra note 9, at 38 (testimony of Steven Heeley, 
Policy Consultant, Akin, Gump, Strauss, Hauer & Feld, LLP) (citing 
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 (Dec. 3, 1991)). ``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.'' Id.
    \76\IRA Hearing, supra note 9, at 38 (testimony of Steven Heeley, 
Policy Consultant, Akin, Gump, Strauss, Hauer & Feld, LLP) (``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.''). Memoranda and 
opinions written in 1936 by other commissioners and solicitors 
advocating these artificial distinctions were specifically cited by DOI 
as examples of policies that were overruled by the 1994 amendments. 
See, e.g., Leshy, supra note 67, at 3, 7 (``The amendment [1994 
amendments] * * * overrules the 1936 Opinion. You should therefore 
instruct the Bureau of Indian Affairs to place no reliance on it in 
future dealing with the Tribes * * * Congress has now settled the 
debate by rejecting the distinction drawn in the 1936 Opinion.'' 
(citing Solicitor's Opinion, Apr. 15, 1936, 1 Op. Sol. on Indian 
Affairs, 618 (U.S.D.C. 1979))). Leshy notes that the 1936 Opinion was 
undercut by the 1988 amendments to the IRA. Id. at 5 (citing Pub. L. 
No. 100-581, 102 Stat. 2938).
---------------------------------------------------------------------------
    Congress enacted the 1994 legislation to ensure that DOI 
upheld the original intent of the IRA to allow tribes to 
organize and self-govern, and to ensure that tribal sovereignty 
was not eroded by creating differing levels of sovereignty.\77\ 
Signed into law by President Clinton on May 31, 1994, the 
amendments overruled prior practices of classifying tribes 
based on date of their date of recognition or manner of 
recognition.\78\ These amendments are direct declarations from 
Congress that the federal agencies do not have the authority to 
discriminate between tribes based on the history of how a 
federally recognized tribe reached that status. Congress has 
made it 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.''\79\
---------------------------------------------------------------------------
    \77\140 Cong. Rec. S6147 (daily ed. May 19, 1994) (statement of 
Senator Daniel K. Inouye (D-Hawaii).
    \78\Leshy, supra note 67, at 3.
    \79\IRA Hearing, supra note 9, at 45 (statement of Steven J.W. 
Heeley, Policy Consultant, Akin, Gump, Strauss, Hauer & Feld, LLP 
(noting also that this ``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'')). ``Subsequent amendments to the IRA 
also addressed the category of tribes that chose not to * * * 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.'' Id., at 46. See also .R. Rep. No. 103-781 at 3 (1994) as 
reprinted in 1994 USCCAN 3768.
---------------------------------------------------------------------------
    Since passage of the IRA in 1934, Congress has enacted many 
other statutes addressing Indian tribes and their status under 
federal law.\80\ Never has Congress amended the IRA provisions 
at issue or expressed any concern that the Secretary has 
misinterpreted his authority.\81\ The Supreme Court has also 
considered section 5 of the IRA on numerous occasions and has 
remarked that section 5 ``provides the proper avenue'' for 
tribes ``to reestablish sovereign authority over [lost] 
territory.''\82\
---------------------------------------------------------------------------
    \80\See, e.g., Leshy, supra note 67, at 6-7 (citing the Indian Land 
Consolidation Act, 25 U.S.C. Sec. 2201(1); the Indian Child Welfare 
Act, 25 U.S.C. Sec. 1903(8); the Indian Self-Determination and 
Education Assistance Act, 25 U.S.C. Sec. 450b(b); the Indian Child 
Protection and Family Violence Prevention Act, 25 U.S.C. 
Sec. 3202(10)). See also Federally Recognized Indian Tribe List Act of 
1994, Pub. L. 103-454 (1994) (codified at 25 U.S.C. Sec. 479a-1). This 
is a list of federally recognized tribes that are eligible for funding 
and services from the BIA by virtue of their status as Indian tribes. 
The List Act also formally established three ways in which an Indian 
group may become federally recognized, (1) By Act of Congress; (2) by 
the administrative procedures under 25 C.F.R. Part 83: or (3) by 
decision of a United States court.
    \81\See Brief for Respondents at 37, Carcieri v. Salazar, 555 U.S. 
379 (2009) (No. 07-526) (citing Goodyear Atomic Corp. v. Miller, 486 
U.S. 174, 184-185 (1988)).
    \82\City of Sherrill v. Oneida Indian Nation of New York, 544 U.S. 
197, 200 (2005). See also Cass County v. Leech Lake Band of Chippewa 
Indians, 524 U.S. 103, 114 (1998); County of Yakima v. Confederated 
Tribes & Bands of Yakima Indian Nation, 502 U.S. 251, 255 (1992); 
Mescalero Apache Tribe v. Jones, 411 U.S. 145, 155-59 (1973).
---------------------------------------------------------------------------

        THE DEPARTMENT OF THE INTERIOR'S LAND INTO TRUST PROCESS

    For the more than 75 years since enactment of the IRA, the 
Department of the Interior has understood and has construed the 
IRA to authorize the Secretary to acquire land in trust for the 
benefit of any tribe that was federally recognized at the time 
of the trust land acquisition. The Interior Department's 
statutory construction of the IRA was confirmed when the 
Department, in 1980, promulgated formal regulations to guide 
the Secretary's decision-making process when exercising 
authority to place tribal land into trust pursuant to the 
IRA.\83\
---------------------------------------------------------------------------
    \83\Prior to 1980 and after the passage of the IRA in 1934, 
Interior used an internal process to decide when and how a tribe could 
put land in trust. Although the 1980 regulations were subject to 
comment before they were finalized, the process as it currently stands 
closely resembles Interior's pre-1980 unpublished guidelines. Padraic 
I. McCoy, The Land Must Hold the People: Native Modes of Territoriality 
and Contemporary Tribal Justifications for Placing Land into Trust 
Through 25 C.F.R. Part 151, 27 Am. Indian L. Rev. 421, 453-54 (2003).
---------------------------------------------------------------------------
    The regulations are codified at 25 C.F.R. Part 151 and 
define the term ``tribe'' to mean ``any Indian tribe, band, 
nation, pueblo, community, Rancheria, colony, or other group of 
Indians . . . which is recognized by the Secretary as eligible 
for the special programs and services from the Bureau of Indian 
Affairs.''\84\
---------------------------------------------------------------------------
    \84\25 C.F.R. Sec. 151.2(b). The definition found in these 
regulations further illustrates Congress' intent to treat all tribes 
equally and shows how this inclusive practice was on par with many 
other Federal statutes. See e.g., the definition of ``tribe'' in the 
Indian Self-Determination and Education Assistance Act, 25 U.S.C. 
Sec. 450b(b), the Indian Child Welfare Act, 25 U.S.C. Sec. 1903(8), the 
Indian Land Consolidation Act, 25 U.S.C. Sec. 2201(1), and the Indian 
Child Protection and Family Violence Prevention Act, 25 U.S.C. Sec.  
3202(10).
---------------------------------------------------------------------------
    The term ``individual Indian'' means ``any person who is an 
enrolled member of a tribe,'' any person who is a descendant of 
a tribal member who, in 1934, resided ``on a federally 
recognized Indian reservation,'' and persons ``of one-half or 
more degree Indian blood of a tribe.''\85\
---------------------------------------------------------------------------
    \85\25 C.F.R. Sec. Sec. 151.2(c)(1)-(3).
---------------------------------------------------------------------------
    These regulations govern both on and off-reservation land 
into trust acquisitions. The fee to trust process is initiated 
when an Indian tribe or an individual Indian submits a written 
request to take land into trust to their local BIA agency or 
regional office. The BIA makes several determinations following 
the initial request, including whether the acquisition is 
mandatory or discretionary and whether the acquisition is on or 
off reservation.
    For on-reservation land into trust acquisitions, the 
applicant must submit (1) a map and a legal description of the 
land; (2) a justification of why the land should be placed in 
trust; and (3) in- formation on the present use of the 
property, the intended use of the property, and whether there 
are any improvements on the land. The BIA Regional Office or 
Agency Superintendent makes the final determination of whether 
to approve the on-reservation application. In making its 
decision, the BIA takes into account such factors as the need 
of the individual Indian or tribe, the impact on the state and 
its political subdivisions resulting from removing the land 
from the tax rolls, any jurisdictional issues that may arise, 
and whether the BIA is equipped to carry out its trust 
responsibilities if the land is acquired. For off-reservation 
land acquisitions additional information is required, including 
a business plan if the acquisition is to be used for economic 
development purposes.
    Off-reservation acquisition decisions are made at the BIA's 
Central Office in Washington, D.C.\86\ Once all the relevant 
information has been provided, the BIA sends out notification 
letters to the state, county, and municipal governments with 
regulatory jurisdiction over the land, notifying them of the 
application and requesting comments on the impact if the lands 
are acquired as trust lands.\87\ Specifically, the BIA requests 
information on the change to the local government's regulatory 
jurisdiction, effect on real property taxes, and special 
assessments.\88\ If, following this process, the Secretary 
decides to take the land into trust, the Secretary publishes a 
notice of the decision in the Federal Register with a statement 
that the Secretary shall ``acquire title in the name of the 
United States no sooner than 30 days after notice is 
published.''\89\
---------------------------------------------------------------------------
    \86\In making his determination on off-reservation parcels, the 
Secretary must take into account the criteria for on-reservation 
parcels as well as the location of the land relative to state 
boundaries and the distance of the parcel from the reservation, the 
anticipated economic benefits associated with the proposed use, and the 
comments received from the state and local governments. 25 C.F.R. 
Sec. 151.11.
    \87\25 C.F.R. Sec. Sec. 151.10, 151.11.
    \88\Id.
    \89\25 C.F.R. Sec. 151.12(b).
---------------------------------------------------------------------------

                      THE CARCIERI V. SALAZAR CASE

    On February 24, 2009, the Supreme Court issued its decision 
in Carcieri v. Salazar,\90\ holding that the Secretary did not 
have the authority to take land into trust under the IRA for 
the Narragansett Indian Tribe (``Tribe'') because the Tribe was 
not ``under federal jurisdiction'' in 1934 when the IRA was 
enacted.
---------------------------------------------------------------------------
    \90\555 U.S. 379 (2009).
---------------------------------------------------------------------------
    The Carcieri case involved a challenge by Governor Carcieri 
of Rhode Island to the Secretary's authority to take land into 
trust status for the Tribe pursuant to the IRA. The Tribe 
obtained federal recognition in 1983 through the administrative 
process within the Department of the Interior. This process is 
set forth through federal regulations adopted in 1978.\91\ 
These mandatory criteria require, among other things, that a 
tribe must be identified as a distinct governing American 
Indian entity having existed ``on a substantially continuous 
basis since 1900.''\92\ In acknowledging the Narragansett 
Tribe's relationship with the federal government, the Assistant 
Secretary-Indian Affairs concluded that the Tribe had existed 
continuously since first European contact and had a documented 
history since 1614.
---------------------------------------------------------------------------
    \91\25 C.F.R. Sec. 83.
    \92\25 C.F.R. Sec. 83.7(a), (b), (c).
---------------------------------------------------------------------------
    While the Tribe's petition for federal acknowledgement was 
pending before the Department of the Interior, the Tribe also 
brought a land claim against the State of Rhode Island in the 
1975 to recover its ancestral land, claiming that the State had 
misappropriated tribal land in violation of federal law. Those 
claims were resolved by a settlement agreement that was 
codified by Congress in 1978.\93\ In exchange for 1,800 acres 
of land, the Tribe surrendered any past or future claims to 
title and agreed that state law would apply to the 1,800 acres.
---------------------------------------------------------------------------
    \93\Known as the Rhode Island Indian Claims Settlement Act, 25 
U.S.C. Sec. Sec. 1701-1716.
---------------------------------------------------------------------------
    In 1991, the Tribe's housing authority purchased 31 acres 
of land adjacent to the Tribe's initial reservation to be used 
for a low-income and elderly housing complex. These 31 acres 
were part of the original disputed territory in 1975, but were 
not a part of the Settlement Lands established by the 1978 
agreement, and therefore not subject to state jurisdiction. 
Soon after the purchase, a dispute arose about whether the 
Tribe's planned construction of housing on the 31-acre parcel 
had to comply with local regulations. The Tribe requested that 
the Secretary place the land in trust. By having the land taken 
into trust, an exercise of tribal sovereignty, the Tribe is 
afforded the opportunity to exercise self-government and 
economic independence. On March 6, 1998, the Department of the 
Interior informed the Tribe of its decision to acquire the land 
in trust. Before the land was placed in trust, Rhode Island 
challenged the Department's decision in a number of 
administrative appeals and then by suit in Federal district 
court.
    One of the State's arguments was that the phrase ``now 
under federal jurisdiction'' in section 19 of the IRA\94\ 
limited the Secretary's authority to acquire land in trust 
under section 5 of the IRA\95\ to only those Indian tribes that 
were ``under federal jurisdiction'' as of the IRA enactment 
date in 1934. The Secretary contended that the IRA applies to 
all tribes that are federally recognized at the time that land 
is taken into trust.\96\ The Federal district court held that 
since the Narragansett Tribe is currently recognized and 
existed at the time of the enactment of the IRA, it qualified 
as an Indian tribe within the meaning of the IRA. The First 
Circuit Court of Appeals held that the term ``now'' was 
ambiguous as to whether it meant at the moment Congress enacted 
the law or at the moment the Secretary invokes the law. 
Accordingly, the Circuit Court deferred to the Secretary's 
interpretation of the provision of the IRA. The State then 
sought review by the United States Supreme Court, asking the 
Court to determine whether the IRA empowers the Secretary to 
take land into trust for Indian tribes that were not recognized 
and under federal jurisdiction in 1934.\97\
---------------------------------------------------------------------------
    \94\25 U.S.C. Sec. 479.
    \95\25 U.S.C. Sec. 465.
    \96\ IRA Hearing, supra note 9, at 12 (testimony of Carole 
Goldberg, Jonathan D. Varat Distinguished Professor of Law, UCLA).
    \97\Brief for Petitioner at i, Carcieri v. Salazar, 555 U.S. 379 
(2009) (No. 07-526).
---------------------------------------------------------------------------

  THE UNITED STATES SUPREME COURT HELD THAT ``NOW'' MEANS ``IN 1934''

    The United States Supreme Court held in Carcieri that the 
Secretary did not have the authority to take land into trust 
for the Tribe under section 5 of the IRA because the Tribe was 
not ``under federal jurisdiction,'' as that term is used in the 
definition of ``Indian'' in section 19. The Court pointed to 
the parties' agreement that the definition of ``Indian'' in 
section 19 determines which tribes may rely on section 5, and 
stated that the case turned on ``whether the Narragansetts are 
members of a `recognized Indian Tribe now under federal 
jurisdiction.'''\98\
---------------------------------------------------------------------------
    \98\Carcieri v. Salazar, 555 U.S. 379, 388 (2009).
---------------------------------------------------------------------------
    The Court determined that ``now'' means ``in 1934,'' when 
the IRA was enacted, rather than the date that the Secretary 
acted to take land into trust.\99\ It did so notwithstanding 
the absence of the word ``now,'' or any other temporal 
qualifier in the separate definition of the term 
``tribe,''\100\ which also appears in section 19, and despite 
its recognition that section 5 authorizes the Secretary to take 
land into trust for a tribe.\101\ Nevertheless, the Court found 
that, because ``the record establishes that the Narragansett 
Tribe was not under federal jurisdiction when the IRA was 
enacted,'' the Secretary lacked authority to take land into 
trust for the Narragansett Indian Tribe.\102\
---------------------------------------------------------------------------
    \99\``The Carcieri decision says that we should focus on `now' as 
being 1934. What I want to emphasize here is that 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.'' IRA 
Hearing, supra note 9, at 22 (testimony of Carole Goldberg, Jonathan D. 
Varat Distinguished Professor of Law, UCLA).
    \100\Carcieri, 555 U.S. at 392-93. ``[L]ater recognition reflects 
earlier `Federal jurisdiction.''' Id. at 399 (Breyer, J. concurring 
(noting that neither the Tribe nor the Secretary argued that the Tribe 
was under federal jurisdiction at the time of the IRA)). While the 
established practice of the Department of the Interior does support the 
idea that ``now'' was intended as a kind of limitation, the limitation 
was a constraint on the individual Indian, not a temporal limit on a 
tribe or the date of its recognition. Id. at 398-399 (Breyer, J., 
concurring (explaining that in section 19 of the IRA, the word ``now'' 
modifies only the phrase ``under federal jurisdiction,'' and it does 
not modify the phrase ``recognized Indian tribe, so the result is that 
the ``[t]he IRA imposes no time limit upon recognition'')). ``The Court 
should have focused on the word `include' instead of `now.' The word 
`include' is used pervasively in federal litigation to provide partial 
definitions of things that are specifically included, but without 
explicit limitation.'' See Scott A. Taylor, Taxation in Indian Country 
After Carcieri v. Salazar, Wm. Mitchell L. Rev. 590, 596 (2010). ``The 
Court justified its reading of `shall include' to mean `shall mean' 
because the list of three categories [in the definition of ``Indian'' 
in 25 U.S.C. Sec.  479] of Indians was comprehensive. The Court's 
logic, however, is flawed because members of tribes to be recognized in 
the future would be `Indians' under the generally accepted definition. 
Accordingly, the definition easily could be read as insuring inclusion 
of members of tribes recognized before enactment of the Indian 
Reorganization Act without excluding members of tribes that may be 
recognized in the future. This is entirely consistent with the 
statutory use of an inclusive, not delimiting, definition of the term 
`Indian.''' Id. at 598 (citing Carcieri, 555 U.S. at 391-92).
    \101\Carcieri, 555 U.S. at 392-93, 398-399. (Breyer, J., 
concurring). See also Circular No. 3123 from John Collier, 
Commissioner, U.S. Dep't of the Interior, Office of Indian Affairs, to 
Superintendents, Field Agents, and Others Engaged in Indian 
Reorganization Work (Nov. 18, 1935) (explaining the application of 
section 19 of the IRA).
    \102\The basic Indian law canons of construction require that any 
ambiguities within the statute are to be resolved in favor of the 
Indian parties. McClanahan v. Ariz. State Tax Comm'n, 411 U.S. 164, 174 
(1973); Choctaw Nation v. Oklahoma, 397 U.S. 620, 631 (1970); Winters 
v. United States, 207 U.S. 564, 567-77 (1908). Felix Cohen, an advocate 
of, and heavily involved in the drafting of the IRA, expressed his 
concerns with the ambiguous nature of the phrase ``now under federal 
recognition.'' See IRA Hearing, supra note 9, at 34 (statement of 
Frederick E. Hoxie, Swanland Chair/History Professor, Univ. of Ill. 
(``[W]hen 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 . . . 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.'')); Examining Executive 
Authority Hearing, supra note 22, at 2 (testimony of Edward P. Lazarus, 
Partner, Akin Gump Strauss Hauer & Feld, LLP (``In a memorandum written 
just prior to the IRA's enactment, Cohen expressed bafflement at the 
phrase's significance-backhanding it with the observation, `whatever 
that may mean' and argued that the phrase should be deleted because it 
would `likely [ ] provoke interminable questions of interpretation.''' 
(quoting Analysis of Differences Between House Bill and Senate Bill. 
Box 11, Records Concerning the Wheeler-Howard Act, 1933-37, folder 
4894-1934-066, Part II-C, Section 4 (4 of 4); Differences Between House 
Bill and Senate Bill, Box 10, Wheeler-Howard Act 1933-37, Folder 4894-
1934-066, Part II-C, Section 2, Memo of Felix Cohen))). ``The Court 
basically ignored the legislative history dealing with the insertion of 
the word `now' in section 19 of the Indian Reorganization Act. The 
legislative history clearly shows that the word `now' was added to 
section 19 as something of a political compromise over issues totally 
unrelated to the land-to-trust provisions.'' Taylor, supra note 100, at 
596 (citing Carcieri v. Kempthorne, 497 F. 3d 15, 26-30 (1st Cir. 
2007)).
---------------------------------------------------------------------------
    The Carcieri decision sent shockwaves through Indian 
country in great part because the record on which the Supreme 
Court based its interpretation of section 19 of the IRA was 
noticeably incomplete.\103\ Upon this Committee's review of the 
parties' briefs submitted to the Court, it is clear that the 
United States Department of Justice (``DOJ'') and DOI, the 
Departments that represented the Tribe, inexplicably failed to 
argue or contest Rhode Island's assertion that the Tribe was 
not under federal jurisdiction in 1934 and that is why the 
Secretary could not take land into trust.\104\
---------------------------------------------------------------------------
    \103\See also Carcieri's Ramifications to Tribes Hearing, supra 
note 22, at 17 (statement of Michael J. Anderson, AndersonTuell, LLP 
(``Regrettably, the Department of the Interior Solicitor's Office last 
year lodged the 1994 Babby Letter with the United States Supreme Court 
after the briefing was closed in the Carcieiri case (but before the 
decision was issued). This misleading filing was made without also 
lodging the 1994 privileges and immunities statute that reversed the 
historic non-historic tribal distinctions made in the letter. The 
Solicitor's Office also failed to file a July 13, 1994 memorandum from 
Solicitor John Leshy to Assistant Secretary Ada Deer that also 
recognized that Congress for the most part `makes no distinctions among 
Tribes.' The Division of Indian Affairs' incomplete lodging with the 
Supreme Court raises the specter that the discredited practice of 
classifying some tribes as `non-historic' could be revived by the 
Division of Indian Affairs in a new post-Carcieri analysis.'' (citing 
Leshy, supra note 67)).
    \104\See Carcieri v. Salazar, 555 U.S. 379, 395-96 (2009) 
(``Moreover, the petition for writ of certiorari filed in this case 
specifically represented that `[i]n 1934, the Narragansett Indian Tribe 
. . . was neither federally recognized nor under the jurisdiction of 
the federal government.' The respondents' brief in opposition declined 
to contest this assertion. Under our rules, that alone is reason to 
accept this as fact for purposes of our decision in this case. We 
therefore reverse the judgment of the Court of Appeals.''); Carcieri's 
Ramifications to Tribes Hearing, supra note 22, at 15 (statement of 
Michael J. Anderson, AndersonTuell, LLP). However, counsel for the 
Secretary did tell the Court that the Secretary's position had always 
been that recognition and under Federal jurisdiction were ``one and the 
same'' for IRA purposes. See Transcript of Oral Argument at 42, 
Carcieri v. Salazar, 555 U.S. 379 (2009) (No. 07-526).
---------------------------------------------------------------------------
    Whether the Departments' failure was the result of 
negligence or an intentional withholding of information, their 
failure to include key pieces of factual information was 
nevertheless a breach of the federal government's trust 
responsibility to the Tribe. First, because the United States' 
brief did not address Rhode Island's claim that the Tribe was 
not under federal jurisdiction in 1934, and therefore not 
entitled to the benefits of the IRA, the Tribe lost the 
opportunity to confirm their status and prove that the IRA did 
in fact apply:

          In addition to presenting other arguments for denying 
        the petition, the brief in opposition should address 
        any perceived misstatement of fact or law in the 
        petition that bears on what issues properly would be 
        before the Court if certiorari were granted. Counsel 
        are admonished that they have an obligation to the 
        Court to point out in the brief in opposition, and not 
        later, any perceived misstatement made in the petition. 
        Any objection to consideration of a question presented 
        based on what occurred in the proceedings below, if the 
        objection does not go to jurisdiction, may be deemed 
        waived unless called to the Court's attention in the 
        brief in opposition.

    Rules of the Supreme Court of the United States, Rule 
15.\105\ Failure to comply with this rule proved to be fatal to 
the Tribe's chances of success before the Supreme Court.
---------------------------------------------------------------------------
    \105\Adopted Jan. 12, 2010 and effective Feb. 16, 2010, available 
at http://www.supremecourt.gov/ctrules/2010RulesoftheCourt.pdf.
---------------------------------------------------------------------------
    Second, DOJ's Solicitor General failed to proffer all 
relevant documents with the Court. This omission resulted in 
only a partial record of the law. The United States had in its 
possession documents that clearly articulated the DOI's 
understanding that a tribe's date of federal recognition is 
irrelevant to the application of the IRA because of the 
subsequent legislative history of the 1994 amendments to the 
IRA and the many other federal statutes that reflected 
Congress's exercise of plenary power to provide equality for 
all tribes.\106\ These other statutes include legislative acts 
such as the Indian Civil Rights Act of 1968,\107\ the Indian 
Self-Determination and Education Assistance Act,\108\ the 
Indian Child Welfare Act,\109\ the Indian Land Consolidation 
Act,\110\ and the Indian Child Protection and Family Violence 
Prevention Act.\111\ In all of these acts,\112\ Congress 
broadly defined ``tribe'' to include all federally recognized 
tribes.\113\ The United States included a 1936 memorandum that 
detailed administrative views and practices that had since been 
reversed,\114\ and failed to include a 1994 memorandum, which 
acknowledged this reversal. As a result of this omission, the 
Carcieri record was an incomplete view of the legislative 
history that applied outdated administrative practices. Without 
a complete record, the Supreme Court was left to focus on the 
word ``now'' in the IRA.\115\ The Committee finds it misleading 
to proffer an outdated interpretation of the law to support a 
current action while omitting the interpretation that expressly 
reverses the outdated and reflects current law.
---------------------------------------------------------------------------
    \106\The Court did not have the legal and factual information it 
needed to consider the question of whether the Narragansett Tribe was 
or was not under federal jurisdiction in 1934. IRA Hearing, supra note 
9, at 45 (statement of Richard Monette, Associate Professor of Law, 
Univ. of Wis. Law Sch. (explaining why, in his opinion, the 
Administration did not include much discussion of the intent of the 
1994 amendments to the IRA in its brief to the Supreme Court in 
Carcieri, ``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.'')). See also Leshy, 
supra note 67.
    \107\Pub. L. 90-284, 82 Stat. 77 (codified in part at 25 U.S.C. 
Sec. 1301-1303). ``Any tribe, band, or other group of Indians subject 
to the jurisdiction of the United States and recognized as possessing 
powers of self-government.'' Id. at Sec. 1301(1).
    \108\25 U.S.C. Sec. 450b(e) (``any Indian tribe, band, nation, or 
other organized group or community, including any Alaska Native village 
or regional or village corporation as defined in or established 
pursuant to the Alaska Native Claims Settlement Act (85 Stat. 688) [43 
U.S.C.A. Sec. 1601 et seq.], which is recognized as eligible for the 
special programs and services provided by the United States to Indians 
because of their status as Indians'').
    \109\Pub. L. 95-608, 92 Stat. 3069 (1978) (codified at 25 U.S.C. 
Sec. Sec. 1901-1963).
    \110\25 U.S.C. Sec. 2201(1) (``any Indian tribe, band, group, 
pueblo, or community for which, or for the members of which, the United 
States holds lands in trust'').
    \111\25 U.S.C. Sec. Sec. 3201-3211 (1990).
    \112\25 U.S.C. Sec. 3202(10) (using the definition in 25 U.S.C. 
Sec. 450b(e) (``any Indian tribe, band, nation, or other organized 
group or community, including any Alaska Native village or regional or 
village corporation as defined in or established pursuant to the Alaska 
Native Claims Settlement Act (85 Stat. 688) [43 U.S.C.A. Sec. 1601 et 
seq.], which is recognized as eligible for the special programs and 
services provided by the United States to Indians because of their 
status as Indians'')).
    \113\Leshy, supra note 67, at 3-7.
    \114\``[W]e have been advised that the Secretary of the Interior 
may have carried these erroneous classifications into decisions 
authorized by other Federal statutes such as sections 2 and 9 of title 
25 of the United States Code.'' 140 Cong. Rec. S6147 (daily ed. May 19, 
1994) (statement of Sen. John McCain). Circular No. 3134 from John 
Collier, Comm'r, U.S. Dep't of the Interior, Office of Indian Affairs, 
to Superintendents (Mar. 7, 1936). But see Brief for NCAI as Amici 
Curiae, supra note 32, at 29 (``The circular itself is focused 
principally on a different issue--the determination of `half-blood' 
status under Section 479--and contains no analysis of the term `now,' 
which is set forth only in passing in the introduction setting out the 
basic definition of an `Indian.' That circular sheds no light on the 
issues before the Court.''), and Brief of Historians Frederick E. 
Hoxie, Paul C. Rosier, & Christian W. McMillen as Amici Curiae 
Supporting Respondents at 19-20, Carcieri v. Salazar, 555 U.S. 379 
(2009) (No. 07-526), available at http://www.narf.org/sct/carcieri/
merits/historians.pdf (``[T]he Department's practice; the views of 
Collier and other principal supporters; and the fundamental purposes of 
the Act, all support the view that the Act was not, in fact, intended 
(and was not interpreted) to foreclose from IRA benefits tribes that 
came under federal jurisdiction after June 1934.'' (noting, for 
example, that the Alaska Reorganization Act of 1936, 49 Stat. 1250, 
enacted only two years after the IRA, expressly provided that ``Indians 
in Alaska not heretofore recognized as bands or tribes'' could organize 
under the IRA)).
    \115\See Carcieri, 555 U.S. at 390. The Solicitor General's 
incomplete lodging of documents with the Supreme Court formed the basis 
of Justice Thomas's majority opinion. ``[T]he Secretary's current 
interpretation is at odds with the Executive Branch's construction of 
this provision at the time of enactment. In correspondence with those 
who would assist him in implementing the IRA, the Commissioner of 
Indian Affairs, John Collier, explained that: `Section 19 of the Indian 
Reorganization Act of June 18, 1934 (48 Stat. L., 988), provides, in 
effect, that the term `Indian' as used shall include--(1) all persons 
of Indian descent who are members of any recognized tribe that was 
under Federal jurisdiction at the date of the Act . . .''' Id. (quoting 
Letter from John Collier, Comm'r, to Superintendents (Mar. 7, 1936), 
Lodging of Respondents (emphasis in original)).
---------------------------------------------------------------------------
    The Solicitor General lodged four documents with the 
Supreme Court on August 26, 2008.\116\ These four documents, 
dated March 7, 1936,\117\ October 27, 1976,\118\ October 1, 
1980,\119\ and January 14, 1994,\120\ explained some of the 
legislative history, but failed to inform the Court of the 
complete history.
---------------------------------------------------------------------------
    \116\These documents were received and approved by the Clerk of 
Court on Aug. 26, 2008, available at http:www.supremecourt.gov/
Search.aspx?FileName=/docketfiles/07-526.htm.
    \117\Circular No. 3134 from John Collier, Comm'r, U.S. Dep't of the 
Interior, Office of Indian Affairs, to Superintendents (Mar. 7, 1936) 
(discussing enrollment under the IRA).
    \118\Letter from Kent Frizzell, Acting Secretary, Dep't of the 
Interior, to David H. Getches, Esquire, Native American Rights Fund 
(Oct. 27, 1976) (discussing the Stillaguamish Tribe v. Kleppe, Civil 
No. 75-1718 (D.D.C. 1976) (noting that ``[t]his decision of the 
Secretary is limited to the Stillaguamish Tribe and to the particular 
facts of this case'')).
    \119\Memorandum from Hans Walker, Jr., Associate Solicitor, Dep't 
of the Interior, Indian Affairs, to Assistant Secretary, Dep't of the 
Interior, Indian Affairs (Oct. 1, 1980) (Request for Reconsideration of 
the Decision Not to Take Land in Trust for the Stillaguamish Tribe 
(noting ``Our research leads us to the conclusion that neither 
landownership nor formal acknowledgment in 1934 is a prerequisite to 
IRA land benefits so long as the group meets the other definitional 
requirements of a `tribe' within the meaning of Section 19 of the IRA. 
More specifically, it is our opinion that the Stillaguamish are indeed 
an Indian tribe within the meaning of Section 19.'')).
    \120\Letter from Wyman D. Babby, Acting Assistant Secretary, Dep't 
of the Interior, Indian Affairs, to George Miller, Chairman, H. Comm. 
on Natural Res. (Jan. 14, 1994) (noting Sections 5 and 7 of the IRA, 25 
U.S.C. Sec. Sec. 465, 467, ``authorized the Secretary to acquire land 
through purchase for Indians, landless or otherwise, and to proclaim 
new Indian reservations on lands acquired pursuant to any authority 
conferred by the IRA'').
---------------------------------------------------------------------------
    The DOJ omitted a memorandum written by one of its former 
solicitors, John Leshy, which explained how the 1994 amendments 
overruled previous practices.\121\ The Leshy memorandum 
eliminated any confusion regarding the Secretary's authority to 
acquire land into trust for all tribes.\122\ The Committee 
finds the actions of the Departments to be egregious errors or 
omissions. Because of these errors or omissions, the Supreme 
Court did not have all relevant information in the record to 
review. The Court announced that its opinion was consistent 
with the documents that had been lodged, however incomplete and 
misleading those documents were.\123\ Without the full 
legislative history and administrative record, the Court's 
opinion became one of statutory interpretation where the word 
``now'' meant ``in 1934'' based entirely on the plain and 
ordinary meaning of the word ``now.''\124\ Because the 1994 
memorandum had not been lodged with the Court,\125\ the Court 
did not find any evidence contradicting its position and 
reversed the judgment of the Court of Appeals.\126\ ``In this 
case, neither the Secretary nor the Tribe defended the 
acquisition by arguing that the Tribe was under federal 
jurisdiction in 1934. And the evidence in the record on this 
question is to the contrary.''\127\ The United States failed to 
uphold its trust responsibility to the Tribe. As a result of 
this breach, the Supreme Court based its decision\128\ on 
incomplete and erroneous information, consequently 
``shatter[ing] the stability Congress provided through the 1994 
amendments.''\129\
---------------------------------------------------------------------------
    \121\Leshy, supra note 68.
    \122\The Leshy memorandum states that the 1994 amendments overruled 
any previous policies to distinguish between tribes based on their date 
of federal recognition. The Leshy memorandum further noted that any 
attempts to discriminately apply the IRA based on the date a tribe 
received federal recognition were overruled by numerous subsequent 
statutes. Id. (emphasis added).
    \123\The Court found its interpretation to be consistent with the 
1936 letter lodged by DOI. Carcieri v. Salazar, 555 U.S. 379 (2009) 
(Thomas, J., announcing the opinion, Feb. 24, 2009), available at 
http://www.oyez.org/cases/2000-2009/2008/2008-07-526.
    \124\Carcieri v. Salazar, 555 U.S. 379, 388-391 (2009).
    \125\Also missing from the documents lodged by the United States 
were additional 1936 memoranda written by two Assistant Solicitors who 
took differing positions on this issue. See Leshy, supra note 67, at 5 
(noting that discriminating practices in another 1936 opinion ``has 
come into serious question in recent times''). If the Supreme Court had 
known the complete legislative and administrative history, it might 
have better understood the scope of the Secretary's authority. ``The 
scope of the word `now' raises an interpretative question of 
considerable importance; the provision's legislative history makes 
clear that Congress focused directly upon that language, believing it 
definitely resolved a specific underlying difficulty; and nothing in 
that history indicates that Congress believed departmental expertise 
should subsequently play a role in fixing the temporal reference of the 
word `now.' These circumstances indicate that Congress did not intend 
to delegate interpretative authority to the Department. Consequently, 
its interpretation is not entitled to Chevron deference, despite 
linguistic ambiguity.'' Carcieri v. Salazar, 555 U.S. 379, 396-397 
(2009) (Breyer, J., concurring (citing United States v. Mead Corp., 533 
U.S. 218, 227, 229-230 (2001))).
    \126\Carcieri v. Salazar, 555 U.S. 379 (2009) (Thomas, J., 
announcing the opinion, Feb. 24, 2009), available at http://
www.oyez.org/cases/2000-2009/2008/2008-07-526.
    \127\Id.
    \128\Id.
    \129\Carcieri Hearing, supra note 32 (statement of Colette Routel, 
Assistant Professor, William Mitchell Coll. of Law). See also 140 Cong. 
Rec. S6147 (daily ed. May 19, 1994) (statement of Sen. Daniel K. Inouye 
(D-Hawaii) (``By enacting this amendment to section 16 of the IRA, we 
will provide the stability for Indian tribal governments that the 
Congress thought it was providing 60 years ago when the IRA was 
enacted.'')).
---------------------------------------------------------------------------
    By finding that the IRA did not apply to the Narragansett 
Indian Tribe because it was not under federal jurisdiction in 
1934, and by not remanding the case back to the First Circuit 
to allow the Tribe the opportunity to demonstrate that it was 
under federal jurisdiction in 1934, the Supreme Court ignored 
Congress's 1994 amendments to the IRA and numerous other 
congressional statutes and presidential policies\130\ that were 
enacted to ensure that all tribes would be afforded the same 
``privileges and immunities of an Indian tribe relative to any 
other federally recognized tribe.''\131\ The 1994 amendments, 
combined with numerous other federal statutes,\132\ expressly 
articulate a principle of equality among recognized tribes--
that the IRA applies to all tribes regardless of their date or 
manner of federal recognition.\133\
---------------------------------------------------------------------------
    \130\See discussion infra Executive and Legislative Policies Have 
Long Reflected Congressional Intent To Foster Tribal Sovereignty as 
Expressed in the Indian Reorganization Act.
    \131\140 Cong. Rec. E663 (Apr. 14, 1994) (statement of Rep. Bill 
Richardson (``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.'')); Carcieri's Ramifications to Tribes Hearing, supra note 
22, at 15, 17 (statement of Michael J. Anderson, AndersonTuell, LLP). 
See also Examining Executive Authority Hearing, supra note 22, at 7 
(testimony of Edward P. Lazarus, Partner, Akin Gump Strauss Hauer & 
Feld, LLP (``In so ruling, the Supreme Court defied 70 years of 
practice and undermined a generally settled understanding that a main 
purpose of the IRA was to provide authority and flexibility for 
rebuilding a tribal land base that had been reduced by more than 100 
million acres during the period when the United States pursued an 
aggressive policy of breaking up and `allotting' Indian lands, as well 
as trying to assimilate individual Indians into American society. 
Congress, however, has the unquestioned power to reject the Court's 
belated assessment of congressional intent and restore the status quo 
ante.'')).
    \132\See discussion infra Executive and Legislative Policies Have 
Long Reflected Congressional Intent To Foster Tribal Sovereignty as 
Expressed in the Indian Reorganization Act.
    \133\Brief for Respondents at 37, Carcieri v. Salazar, 555 U.S. 379 
(2009) (No. 07-526) (citing 25 U.S.C. 476(f) & (g)) (emphasis added).
---------------------------------------------------------------------------
    In ruling contrary to the Secretary's interpretation of the 
IRA,\134\ and disregarding many other statues that reinforced 
the IRA,\135\ the Supreme Court in Carcieri overturned more 
than 75 years of legal and administrative practice.\136\ ``The 
Carcieri decision [is] inconsistent with the longstanding 
policy and practice of the United States under the Indian 
Reorganization Act of 1934 to assist federally recognized 
tribes in establishing and protecting a land base sufficient to 
allow them to provide for the health, welfare, and safety of 
tribal members.''\137\ Congress intended the IRA to apply to 
``all Indian tribes recognized now or hereafter by the 
legislative or the executive branch of the Federal 
Government''\138\ and it reaffirmed this in the 1994 
amendments, thus solidifying congressional policy to treat all 
tribes alike regardless of their date of Federal 
acknowledgment.\139\ ``[T]he 1994 amendment[s] [were] intended 
to prevent Carcieri.''\140\ The Constitution invests Congress 
alone with plenary power over Indian affairs and Congress must 
exercise its power to enact legislation to right this wrong. 
``Congress was clear when it enacted the Indian Reorganization 
Act in 1934, and again with amendments to the Act in 1994. It 
is the responsibility of Congress to act when its intentions 
are misconstrued by the courts and so it must act now.''\141\
---------------------------------------------------------------------------
    \134\``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.'' IRA Hearing, 
supra note 9, at 24 (statement of Carole Goldberg, Jonathan D. Varat 
Distinguished Professor of Law, UCLA).
    \135\See discussion infra Executive and Legislative Policies Have 
Long Reflected Congressional Intent To Foster Tribal Sovereignty as 
Expressed in the Indian Reorganization Act.
    \136\Carcieri Hearing, supra note 32 (statement of Larry Echo Hawk, 
Assistant Secretary, Indian Affairs, Dep't of the Interior). See also, 
e.g. Memorandum from Nathan R. Margold, Solicitor, to the Commissioner 
of Indian Affairs (Jan. 29, 1941), in 1 OPINIONS OF THE SOLICITOR, 
1971-1974, at 1026 (1982) (explaining that the St. Croix Indians of 
Wisconsin, an unrecognized tribe in 1934, could still organize and be 
recognized under the IRA).
    \137\Carcieri Hearing, supra note 32 (statement of Larry Echo Hawk, 
Assistant Secretary, Indian Affairs, Dep't of the Interior).
    \138\Letter from Oscar L. Chapman, Assistant Secretary, to Nathan 
Margold, Solicitor (Oct. 25, 1934), in 1 Opinions of the Solicitor, 
1971-1974, at 477 (1982) (referring to Section 16 of the IRA) 
(detailing the powers of self-government, emphasizing that these powers 
have never been terminated by law or waived by treaty). Id. at 446.
    \139\Carcieri Hearing, supra note 32 (statement of Larry Echo Hawk, 
Assistant Secretary, Indian Affairs, Dep't of the Interior). The 1994 
amendments ``explicitly prohibited any federal agency from promulgating 
a regulation or making a decision that `classifies, enhances, or 
diminishes the privileges and immunities available to the Indian tribe 
relative to other federally recognized tribes.''' Id. (citing 25 U.S.C. 
Sec. 476(f) & (g)). ```The amendment which we are offering . . . will 
make it clear that the Indian Reorganization Act does not authorize or 
require the Secretary to establish classifications between Indian 
tribes . . . [I]t is and has always been Federal law and policy that 
Indian tribes recognized by the Federal Government stand on an equal 
footing to each other and to the Federal Government . . . Each 
federally recognized Indian tribe is entitled to the same privileges 
and immunities as other federally recognized tribes and has the right 
to exercise the same inherent and delegated authorities. This is true 
without regard to the manner in which the Indian tribe became 
recognized by the United States or whether it has chosen to organize 
under the IRA. By enacting this amendment . . . we will provide the 
stability for Indian tribal governments that the Congress thought it 
was providing 60 years ago when the IRA was enacted.''' Id. (quoting 
Sen. Daniel K. Inouye (D-Hawaii), a co-sponsor of the 1994 amendments, 
140 Cong. Rec. S6147 (daily ed. May 19, 1994)).
    \140\IRA Hearing, supra note 9, at 43 (statement of Richard 
Monette, Associate Professor of Law, Univ. of Wis. Law Sch.).
    \141\Carcieri Hearing, supra note 32 (statement of Daniel K. Akaka, 
Chairman, S. Comm. on Indian Affairs).
---------------------------------------------------------------------------

THE IMPACTS OF CARCIERI V. SALAZAR CONTRAVENE THE INTENT OF THE INDIAN 
                           REORGANIZATION ACT

    Since the enactment of the IRA, federal policy has sought 
to treat all tribes equitably and ensure they are entitled to 
the same federal rights and benefits.\142\ For more than 70 
years, the Department of Interior interpreted and applied the 
phrase ``now under Federal jurisdiction'' to mean at the time 
of application to the Secretary to take land into trust. Under 
this established interpretation, the Department of Interior has 
restored entire Indian reservations and authorized numerous 
tribal constitutions and business organizations.\143\ ``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.''\144\
---------------------------------------------------------------------------
    \142\Id. (statement of Colette Routel, Assistant Professor, William 
Mitchell Coll. of Law). ``[I]n nearly every individual recognition 
statute passed since the 1970s, Congress provided that the newly 
recognized or re-recognized tribe was permitted to access all of the 
rights and benefits provided by the IRA.'' Id. (``The Payson Community 
of Yavapai-Apache Indians shall be recognized as a tribe of Indians 
within the purview of the Act of June 18, 1934 . . . and shall be 
subject to all of the provisions thereof'' (citing Tonto Apache Tribe 
of Arizona, P.L. 92-470 (Oct. 6, 1972))); Pascua Yaqui of Arizona, P.L. 
95-375 (Sept. 18,1978) (``The provisions of the Act of June 18, 1934 . 
. . are extended to such members described in subsection (a) of this 
section''); Cedar City Band of Paiutes in Utah, P.L. 96-227 (Apr. 3, 
1980) (``The provisions of the Act of June 18, 1934 . . . except as 
inconsistent with the specific provisions of this Act, are made 
applicable to the tribe and the members of the tribe. The tribe and the 
members of the tribe shall be eligible for all Federal services and 
benefits furnished to federally recognized tribes''); Mashantucket 
Pequot Indian Tribe of Connecticut, P.L. 98-134 (Oct. 18, 1983) (``all 
laws and regulations of the United States of general application to 
Indians or Indian nations, tribes or bands of Indians which are not 
inconsistent with any specific provision of this Act shall be 
applicable to the Tribe''); Ysleta Del Sur Pueblo of Texas, P.L. 100-89 
(Aug. 18, 1987) (``The Act of June 18, 1934 (28 Stat. 984) as amended, 
and all laws and rules of law of the United States of general 
application to Indians, to nations, tribes, or bands of Indians, or to 
Indian reservations which are not inconsistent with any specific 
provision contained in this title shall apply to members of the tribe, 
the tribe, and the reservation''); Lac Vieux Desert Band of Lake 
Superior Chippewa, P.L. 100-420 (Sept. 8, 1988) (``The Act of June 18, 
1934 (48 Stat. 984), as amended, and all laws and rules of law of the 
United States of general application to Indians, Indian tribes, or 
Indian reservations which are not inconsistent with this Act shall 
apply to the members of the Band, and the reservation''); Yurok Tribe 
of California, P.L. 100-580 (Oct. 31, 1988) (``The Indian 
Reorganization Act of June 18, 1934 (48 Stat. 984; 25 U.S.C. 461 et 
seq.), as amended, is hereby made applicable to the Yurok Tribe''); 
Pokagon Band of Potawatomi Indians of Michigan, P.L. 103-323 (Sept. 21, 
1994) (``Except as otherwise provided in this Act, all Federal laws of 
general application to Indians and Indian tribes, including the Act of 
June 18, 1934 . . . shall apply with respect to the Band and its 
members''); Little River Band of Ottawa Indians and Little Traverse Bay 
Bands of Odawa Indians, P.L. 103-324 (Sept. 21, 1994) (``All laws and 
regulations of the United States of general application to Indians or 
nations, tribes, or bands of Indians, including the Act of June 18, 
1934 . . . which are not inconsistent with any specific provision of 
this Act shall be applicable to the Bands and their members'')).
    \143\IRA Hearing, supra note 9, at 48 (testimony of John E. 
Echohawk, Executive Director, Native Am. Rights Fund). See also 
Memorandum from Hans Walker, Jr., Associate Solicitor, Indian Affairs 
to Assistant Secretary, Indian Affairs (Oct. 1, 1980);
    \144\IRA Hearing, supra note 9, at 48 (testimony of John E. 
Echohawk, Executive Director, Native Am. Rights Fund).
---------------------------------------------------------------------------

Carcieri creates the unequal treatment of Federally recognized Indian 
        Tribes and runs contrary to the 1994 amendments

    The Carcieri decision has had the detrimental effect\145\ 
of creating two classes of Indian tribes--those which were 
``under federal jurisdiction'' as of the date of enactment of 
the IRA in 1934 for whom land may be taken into trust, and 
those which were not. This disparity directly conflicts with 
prior acts of Congress,\146\ the 1994 amendments to the 
IRA,\147\ and federal policy supporting self-determination for 
all federally recognized Indian tribes.\148\
---------------------------------------------------------------------------
    \145\Id. (``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.'').
    \146\25 U.S.C. Sec. Sec. 479a, 479a-1.
    \147\25 U.S.C. Sec. 476(f) & (g).
    \148\140 Cong. Rec. S6146 (daily ed. May 19, 1994) (statement of 
Sen. John McCain) (``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.'').
---------------------------------------------------------------------------
    Under the IRA, the Secretary is authorized to take land 
into trust ``for the purpose of providing land for 
Indians.''\149\ ``Indians'' is defined to ``include all persons 
of Indian descent who are members of any recognized Indian 
tribe now under Federal jurisdiction, and all persons who are 
descendants of such members who were, on June 1, 1934, residing 
within the present boundaries of any Indian reservation, and . 
. . all other persons of one-half or more Indian blood.''\150\ 
The same provision states that ``tribe'' is to ``be construed 
to refer to any Indian tribe, organized band, pueblo, or the 
Indians residing on one reservation.''\151\
---------------------------------------------------------------------------
    \149\25 U.S.C. Sec. 465.
    \150\25 U.S.C. Sec. 479.
    \151\Id.
---------------------------------------------------------------------------
    The term ``under federal jurisdiction'' is not defined in 
federal law, regulation, or in the legislative history leading 
up to the enactment of the IRA. Prior to the IRA, the United 
States had no specific term or designation indicating that an 
Indian tribe was ``recognized.''\152\ The Federal government 
used terms such as ``in amity with the government'' and 
``having existing treaties with the government'' up until the 
late 1800's.\153\ The existence of treaties or statutes 
recognizing a tribe once obviated the need for any more refined 
designations, definitions, or criteria indicating tribal 
status.\154\ If a tribe's status was questioned, courts would 
defer to acts of recognition by the political branches to 
determine whether a tribe was federally recognized.\155\
---------------------------------------------------------------------------
    \152\Arguably, all tribes within the boundaries of the United 
States were once considered ``under federal jurisdiction.'' United 
States v. Sandoval, 231 U.S. 28, 46-47 (1913) (quoting United States v. 
Holliday, 70 U.S. 407, 419 (1865) (``In reference to all matters of 
this kind, it is the rule of this court to follow the action of the 
executive and other political departments of the government, whose more 
special duty it is to determine such affairs. If by them those Indians 
are recognized as a tribe, this court must do the same. If they are a 
tribe of Indians, then, by the Constitution of the United States, they 
are placed, for certain purposes, within the control of the laws of 
Congress.'')) (emphasis added). See also Memorandum from Felix S. 
Cohen, Assistant Solicitor (Apr. 9, 1936) (responding to a prior 
memorandum from Charlotte T. Westwood, Assistant Solicitor) (discussing 
Ms. Westwood's interpretations of Section 17 of the IRA: ``Neither the 
allotting of land in severalty nor the granting of citizenship has 
destroyed the tribal relationship upon which local autonomy rests. Only 
through the laws or treaties of the United States, or administrative 
acts authorized thereunder, can tribal existence be terminated . . . 
[T]he internal sovereignty of the indian [sic] tribes continues, 
unimpaired by the changes that have occurred in the manners and customs 
of indian [sic] life.''). Often, if the Secretary of the Interior was 
exercising power over tribes, a power conferred upon him by Congress, 
Federal jurisdiction was implicit. See Margold, supra note 138, at 412 
(letter from July 14, 1934) (``Federal jurisdiction necessarily 
continues with the right in the Secretary of the Interior to exercise 
all the powers which Congress has conferred upon him expressly or by 
necessary implication.'').
    \153\In 1934, ``federal jurisdiction'' either meant that the 
federal government was providing financial support to the tribe or that 
there was a political relationship, or recognition, between the two 
governments. See Memorandum from Hans Walker, Jr., Associate Solicitor, 
Indian Affairs, to Assistant Secretary, Indian Affairs, on the Request 
for Reconsideration of Decision Not to Take Land in Trust for the 
Stillaguamish Tribe (Oct. 1, 1980). ``The considerations prompting such 
recognition do not always reflect tribal understandings. Thus, for 
example, a tribe that has been terminated by the federal government may 
continue to exist for the native community that was the object of the 
legal action, but not for the purpose of interpreting a federal statute 
granting statutory benefits only to federally recognized tribes. 
Indeed, the successful efforts of some terminated tribes to be restored 
to federally recognized status illustrate tribal persistence apart from 
federal law.'' See Felix S. Cohen, Handbook of Federal Indian Law 137 
(Nell Jessup Newton et al. eds., 2005 ed.) (1941).
    ``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.''). Id. at 
143.
    \154\Cohen, supra note 153, at 143.
    \155\``In reference to all matters of this kind, it is the rule of 
this court to follow the action of the executive and other political 
departments of the government, whose more special duty it is to 
determine such affairs. If by them those Indians are recognized as a 
tribe, this court must do the same.'' Cohen, supra note 153, at 141 
(quoting United States v. Holliday, 70 U.S. 407, 419 (1865). See also 
Sandoval, 231 U.S. at 45-46 (``Not only does the Constitution expressly 
authorize Congress to regulate commerce with the Indian tribes, but 
long continued legislative and executive usage and an unbroken current 
of judicial decisions have attributed to the United States as a 
superior and civilized nation the power and the duty of exercising a 
fostering care and protection over all dependent Indian communities 
within its borders, whether within its original territory or territory 
subsequently acquired, and whether within or without the limits of a 
state.''); IRA Hearing, supra note 9, at 24-25 (statement of Carole 
Goldberg, Jonathan D. Varat Distinguished Professor of Law, UCLA) (``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 tribe as defined in 
particular statutes.''); Cohen, supra note 153, at 143 (noting that 
today, ``the existence of an official list of federally recognized 
tribes dispenses with uncertainty as to those groups included on the 
list'').
---------------------------------------------------------------------------
    When the IRA was enacted in 1934, the concept of equating 
recognition with jurisdiction was only beginning to take 
shape.\156\ Prior to 1934, there was no comprehensive list of 
federally recognized tribes and no standard criteria for 
determining tribal recognition.\157\ Although the work of 
compiling a list of federally recognized tribes began in the 
late 1930s, after the IRA was enacted,\158\ there was no 
complete list that could be reliably referred to until 
1994.\159\ Tribes that were not included on any official list 
from 1934 to 1994, usually due to governmental oversight,\160\ 
could still establish recognition status through other 
means.\161\
---------------------------------------------------------------------------
    \156\IRA Hearing, supra note 9, at 24-25 (testimony of Carole 
Goldberg, Jonathan D. Varat Distinguished Professor of Law, UCLA) 
(``[T]he 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.'' (citing 
William W. Quinn, Jr., Federal Acknowledgement of American Indian 
Tribes? The Historical Development of a Legal Concept, J. Legal Hist. 
(1990))).
    \157\Id. at 25 (statement of Carole Goldberg, Jonathan D. Varat 
Distinguished Professor of Law, UCLA). ``[T]his 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 clear-cut concept.'' Id. at 22. See also id. at 
32 (statement of William Rice, Associate Professor of Law, Univ. of 
Tulsa Coll. of Law (``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 
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 . . . 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.'')).
    \158\``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 
compiled a list of 258 groups. This list is universally recognized to 
include serious omissions, and these mistakes should not be frozen into 
the IRA.'' Id. at 26 (statement of Carole Goldberg, Jonathan D. Varat 
Distinguished Professor of Law, UCLA) (emphasis in original).
    \159\The United States did not maintain an official list of 
federally recognized Indian tribes until after 1994, when Congress 
enacted the Federally Recognized Tribal List Act. See Pub. L. 103-454 
(1994) (codified at 25 U.S.C. Sec. 479a-1).
    \160\``Both the executive branch and Congress have repeatedly 
acknowledged that inaccurate recognition decisions were made in the 
1930s.'' Brief for Amici Curiae Law Professors Specializing in Federal 
Indian Law in Support of Respondents at 22 n.17, Carcieri v. Salazar, 
555 U.S. 379 (2009) (No. 07-526), available at http://
www.americanbar.org/content/dam/aba/publishing/preview/
publiced_preview_briefs_pdfs_07_08_07_526_ 
RespondentAmCuLawProfsofFedInLaw.authcheckdam.pdf. ``After the IRA was 
passed, the Department of the Interior attempted to decide which tribes 
would be eligible to vote on and organize under the Act. In its haste, 
several errors and omissions were made. The 1977 Report of the American 
Indian Policy Review Commission revealed that dozens of tribes had not 
been recognized by the federal government due to inadvertence or 
mistake.'' Id. at 5. See also Elmer R. Rusco, A Fateful Time: The 
Background and Legislative History of the Indian Reorganization Act 157 
(2000) (``In the 1850s the U.S. Senate had not only refused to ratify 
eighteen treaties drawn up with various Native American societies in 
California but also had relegated these treaties to a secret archive, 
where they remained until the early twentieth century. As a result, few 
reservations were established for California Indians, and they had one 
of the smallest land bases of Native peoples west of the Mississippi; 
almost all California Indians were essentially landless.'').
    \161\25 C.F.R. Sec. 83. Tribes that have been acknowledged or have 
had their recognition restored through the Federal Acknowledgment 
Process are Indian tribes that have maintained tribal identities 
``throughout history until the present.'' See 25 C.F.R. Sec. 83.3. 
``You also may hear that tribes not subject to the 1934 act are not 
real tribes, but are new groups of people seeking recognition in order 
to receive federal benefits. The truth is when a tribe is federally 
recognized, it must prove that it has continually existed as a 
political entity for generations. Therefore, it makes no sense to draw 
an arbitrary date for tribal recognition in order to enable the 
Secretary to put land into trust. Many tribes recognized post-1934 have 
treaties that pre-date the existence of the United States.'' Carcieri 
Hearing, supra note 32 (statement of Rep. Tom Cole). Alternative routes 
to establish federal recognition include the BIA's OFA process and 
federal legislation that corrects oversights of earlier legislation, 
resolutions of outstanding land claims; or equal treatment of tribes 
similarly situated. Cohen, supra note 153, at 143-144. ``A final 
determination that a group is an Indian tribe means, among other 
things, that it has continuously existed as a tribe, has inherent 
sovereignty, and is entitled to a government-to-government relationship 
with the United States.'' The Federal Recognition and Acknowledgment 
Process by the Bureau of Indian Affairs, Hearing Before the H. Comm. on 
Natural Res., 108th Cong. 78 (Mar. 31, 2004) (testimony of R. Lee 
Fleming, Director, Office of Federal Acknowledgment, Office of the 
Assistant Sec'y, Indian Affairs, Dep't of the Interior).
---------------------------------------------------------------------------
    Given the goals and long-standing federal acknowledgment 
practices of the IRA, ``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.''\162\ Since its 
enactment, the IRA has applied to all tribes, those recognized 
in 1934 and those recognized after 1934.\163\ ``[T]he 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.''\164\
---------------------------------------------------------------------------
    \162\IRA Hearing, supra note 9, at 22 (testimony of Carole 
Goldberg, Jonathan D. Varat Distinguished Professor of Law, UCLA). See 
id. at 4 (statement of Frederick E. Hoxie, Swanland Chair/History 
Professor, Univ. of Ill. (``[W]hen 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.'')).
    \163\Margold, supra note 138, at 477 (letter from Oct. 25, 1934) 
(``[T]he conclusions advanced are intended to apply to all Indian 
tribes recognized now or hereafter by the legislative or the executive 
branch of the Federal Government.''). ``This broad language meant that 
if and when the federal government recognized an Indian group as a 
distinct entity having the necessary political characteristics, that 
Indian group acquired, or the federal government recognized that it had 
always possessed, all the attributes of a sovereign political power 
whether the group had previously exercised those powers or not.'' Vine 
Deloria, Jr. & Clifford M. Lytle, The Nations Within 160 (1984) 
(writing in response to Margold's opinion above) (emphasis in 
original).
    \164\IRA Hearing, supra note 9, at 9 (statement of Frederick E. 
Hoxie, Swanland Chair/History Professor, Univ. of Ill.).
---------------------------------------------------------------------------
    The concurring opinions of Justices Breyer and Souter in 
Carcieri also acknowledged this fact. They noted that even 
though a tribe was not formally recognized by the federal 
government in 1934, that tribe may not be precluded from being 
considered to have been ``under federal jurisdiction'' at that 
time. In his concurring opinion Justice Breyer draws attention 
to the fact that many tribes were left off of the list of 
tribes covered by the IRA reportedly compiled by the Department 
of the Interior. Other tribes were later acknowledged to have 
been under federal jurisdiction at an earlier time, even though 
circumstances prevented the government from knowing that at the 
time.\165\ Justice Souter also made this point stating that 
``nothing in the majority opinion forecloses the possibility 
that the two concepts, recognition and jurisdiction, may be 
given separate content.''\166\
---------------------------------------------------------------------------
    \165\Brief for Amici Curiae Law Professors Specializing in Federal 
Indian Law, supra note 160.
    \166\Carcieri v. Salazar, 555 U.S. 379, 400 (2009).
---------------------------------------------------------------------------

Carcieri threatens public safety and tribal law enforcement

    Carcieri creates a significant threat to public safety on 
tribal lands. By upending decades-old interpretations regarding 
the status of Indian lands, the Supreme Court has thrown into 
doubt the question of who has jurisdictional authority over the 
lands. The geographic scope of federal criminal jurisdiction 
depends upon the existence of Indian country\167\--a term that 
includes trust land. The Carcieri decision casts doubt on 
federal prosecution of crimes committed in Indian country as 
well as civil jurisdiction over much of Indian country. The 
proposed IRA amendment, S. 676, would alleviate these concerns, 
clarifying that the Secretary can lawfully take land into trust 
for all federally recognized tribes, thereby ratifying the 
Secretary's past trust acquisitions.\168\
---------------------------------------------------------------------------
    \167\Indian Country is defined as ``(a) all land within the limits 
of any Indian reservation under the jurisdiction of the United States 
Government, notwithstanding the issuance of any patent, and, including 
rights-of-way running through the reservation, (b) all dependent Indian 
communities within the borders of the United States whether within the 
original or subsequently acquired territory thereof, and whether within 
or without the limits of a state, and (c) all Indian allotments, the 
Indian titles to which have not been extinguished, including rights-of-
way running through the same.'' 18 U.S.C. Sec. 1151.
    \168\The President's Fiscal Year 2012 Budget for Tribal Programs, 
Hearing Before the S. Comm. on Indian Affairs, 112th Cong. 81-82 (Mar. 
15, 2011) (statement of Early Barby, Chairman, Tunica-Biloxi Tribe of 
Louisiana & Chair, USET Carcieri Task Force).
---------------------------------------------------------------------------
    Jurisdictional issues have created challenges for many 
Indian communities. Criminal jurisdiction in Indian country has 
been called a ``jurisdictional maze''; the result of a complex 
matrix of federal laws, policies, and court decisions. 
``Police, prosecutors, defense attorneys and judges must deal 
with this jurisdictional maze in all cases.''\169\ All 
questions relating to Indian country criminal jurisdiction must 
begin with determining whether the alleged crime occurred in 
Indian country. ''\170\ Creating even more jurisdictional 
uncertainty by calling into question the status of the land in 
Indian country, Carcieri threatens the public safety of all 
those who live in and near Indian communities and has become a 
significant barrier to promoting safe tribal communities. Even 
worse, the Carcieri decision undercuts prior congressional 
actions addressing jurisdiction.
---------------------------------------------------------------------------
    \169\Hearing on S. 1763, S. 872 and S. 1192 Before the S. Comm. on 
Indian Affairs, 112th Cong. (Nov. 10, 2011) (statement of Thomas B. 
Heffelfinger, Attorney, Best & Flanagan LLP). See also Native Women: 
Protecting, Shielding, and Safeguarding Our Sisters, Mothers, and 
Daughters: Hearing Before S. Comm. on Indian Affairs, 112th Cong. (July 
14, 2011) (statement of Sarah Deer, Assistant Professor, William 
Mitchell Coll. of Law) (``The federal government has created a complex 
interrelation between federal, state and tribal jurisdictions that 
undermines tribal authority and often allows perpetrators to evade 
justice.'').
    \170\Native Women: Protecting, Shielding, and Safeguarding Our 
Sisters, Mothers, and Daughters: Hearing Before S. Comm. on Indian 
Affairs, 112th Cong. (July 14, 2011) (statement of Sarah Deer, 
Assistant Professor, William Mitchell Coll. of Law).
---------------------------------------------------------------------------
    Statutes such as the Tribal Law and Order Act 
(``TLOA'')\171\ help to ensure that every person in Indian 
country lives in a safe community. The various public safety 
problems that plague tribal communities are the result of the 
complex jurisdictional scheme, decades of underfunding for 
tribal criminal justice systems, and the centuries-old failure 
by the federal government to fulfill its public safety 
obligations on Indian lands.\172\ Both of these laws had 
bipartisan support, reflecting Congress's intent to protect all 
people in Indian country and support tribal self-determination 
and self-governance.\173\
---------------------------------------------------------------------------
    \171\Pub. L. No. 111-211 (2010).
    \172\``Federal prosecutors decline to file charges in 60-70 percent 
of cases involving the most serious crimes committed on Indian 
reservations.'' Tribal Law and Order Act One Year Later: Have We 
Improved Public Safety and Justice Throughout Indian Country?, Hearing 
Before the S. Comm. on Indian Affairs, 112th Cong. (Sept. 22, 2011) 
(statement of Sen. Tester (D-Montana)).
    \173\``Native American families have a right to live in a safe and 
secure environment. The federal government has treaty and trust 
obligations to see that they do. For much of our history, however, the 
federal government has done a poor job of meeting those obligations. 
This legislation will help turn that failure around and is a big step 
forward in fighting violent crime in Indian Country.'' Press Release, 
United States Senate Committee on Indian Affairs (June 24, 2010) 
(quoting Sen. Byron Dorgan (D-North Dakota), TLOA's main sponsor), 
available at http://www.indian.senate.gov/news/pressreleases/2010-06-
24.cfm.
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    By permitting tribal governments to have more authority 
over the sentencing of crimes that occur on tribal lands, TLOA 
helps tribes better exercise their sovereignty. TLOA was 
enacted into law in July 2010 to improve public safety in 
Indian country and reduce violent crimes that are reaching 
epidemic levels on tribal land. TLOA holds federal agencies 
more accountable in serving Indian country.\174\
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    \174\``According to a 2010 GAO Study, U.S. Attorneys decline to 
prosecute 67% of sexual abuse and related matters that occur in Indian 
Country.'' Tribal Law and Order Act One Year Later: Have We Improved 
Public Safety and Justice Throughout Indian Country?: Hearing Before S. 
Comm. on Indian Affairs, 112th Cong. (Sept. 22, 2011) (statement of 
Jacqueline Johnson Pata, Executive Director, Nat'l Cong. of Am. 
Indians) (citing U.S. Government Accountability Office, GAO-11-167R, 
U.S. Department of Justice Declinations of Indian Country Criminal 
Matters 3 (2010)).
---------------------------------------------------------------------------
    One of the main goals of the TLOA is to lower the high 
rates of domestic violence and sexual assault on reservations. 
Achieving the goals of TLOA has become more difficult because 
of the Carcieri decision. ``In addition to economic 
development, trust land allows tribes territory to provide 
essential government services. These services include tribal 
police and courts. Without a sovereign land base, tribal 
justice systems will be undermined. This is just another way 
the Carcieri decision hurts tribes' ability to provide 
essential government services to the most challenged 
Americans.''\175\
---------------------------------------------------------------------------
    \175\Carcieri Hearing, supra note 32 (statement of Rep. Tom Cole).
---------------------------------------------------------------------------
    The jurisdictional maze that already exists among tribes, 
states and the federal government over criminal jurisdiction on 
Indian lands is further complicated by the Carcieri 
decision.\176\ These jurisdictional issues could give rise to 
individual suits presenting challenges to their sentencing on 
the basis of the status of the lands in question.\177\ In 
testimony before the Committee, witnesses expressed serious 
concerns about new jurisdictional uncertainty that has resulted 
from Carcieri. ``[Carcieri] may only be the cornerstone of 
future litigation that will not only further confuse 
jurisdictional boundaries in Indian Country, but perhaps cause 
a debilitating blurring of the lines that will hamper the 
execution of public safety and law enforcement in Indian 
country.''\178\
---------------------------------------------------------------------------
    \176\Tribal Law and Order Act One Year Later: Have We Improved 
Public Safety and Justice Throughout Indian Country?: Hearing Before 
the S. Comm. on Indian Affairs, 112th Cong. (Sept. 22, 2011) (statement 
of Larry Echo Hawk, Assistant Secretary, Indian Affairs, Dep't of the 
Interior).
    \177\Carcieri's Ramifications to Tribes Hearing, supra note 22, at 
31 (statement of Michael J. Anderson, AndersonTuell, LLP (``When a 
defense attorney, particularly on appeals, is looking for new, creative 
ways to challenge a conviction, jurisdiction sometimes, in Indian 
cases, whether a crime committed on fee land or allotted land or within 
a checkerboard reservation, frequently jurisdiction is seen as a 
potential challenge to that conviction. Here, the fundamental 
acquisition itself could potentially be challenged, and so I think 
clever criminal defense attorneys across the country could look at [the 
Carcieri] decision and mount potential challenges.'')).
    \178\Carcieri Hearing, supra note 32 (statement of Carl J. Artman, 
Professor of Practice & Director, Econ. Dev. in Indian Country Program, 
Ariz. State Univ. Sandra Day O'Connor Coll. of Law).
---------------------------------------------------------------------------
    According to testimony before the Committee, there is now 
the potential for legal challenges of criminal prosecutions 
brought in Federal court under Federal statutes such as the 
Major Crimes Act\179\ or the Indian Country Crimes Act\180\ due 
to the uncertain jurisdictional status of lands taken into 
trust under the long-prevailing policy before the Carcieri 
decision. This uncertainty threatens everyone. ``[T]he 
questioning of Indian Country status can in turn lead to 
questioning of prosecutions and even convictions that have 
already occurred in Federal court . . . [T]here is a public 
safety dimension to the Carcieri decision that warrants [] 
consideration.''\181\ Because criminal jurisdiction in Indian 
Country is already confusing, witnesses have testified before 
the Committee that jurisdictional issues ``will become 
debilitating if the Carcieri holding is not addressed.''\182\
---------------------------------------------------------------------------
    \179\18 U.S.C. Sec. 1153. The Major Crimes Act gives the United 
States jurisdiction to prosecute offenses such as: assault, murder, 
manslaughter, kidnapping, arson, burglary, robbery and child sexual 
abuse. Federal jurisdiction under this statute is limited to the 
prosecution of Indians only.
    \180\Also known as the General Crimes Act, 18 U.S.C. Sec. 1152. 
This Act gives the United States jurisdiction to prosecute all federal 
offenses in Indian Country except when the suspect and the victim are 
both Indian, where the suspect has already been convicted in tribal 
court or in the case of offenses where exclusive jurisdiction over an 
offense has been retained by the tribe by way of treaty.
    \181\IRA Hearing, supra note 9, at 8-9 (statement of Carole E. 
Goldberg, Jonathan D. Varat Distinguished Professor of Law, UCLA).
    \182\Carcieri Hearing, supra note 32 (statement of Carl J. Artman, 
Professor of Practice & Director, Econ. Dev. in Indian Country Program, 
Ariz. State Univ. Sandra Day O'Connor Coll. of Law); Strengthening 
Self-Sufficiency: Overcoming Barriers to Economic Development in Native 
Communities, Field Hearing Before the S. Comm. on Indian Affairs, 112th 
Cong. (Aug. 17, 2011) (statement of Brian Patterson, President, United 
Southern and Eastern Tribes (``Congressional action is needed to ensure 
permanent resolution of this issue.'')).
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Carcieri is a barrier to economic development

    Tribal land bases are the foundation of tribal economies. 
The Committee's record shows that tribal economic development 
benefits Indians and non-Indians alike.\183\ Tribes are often 
the largest employers and purchasers of goods and services in 
the counties and cities surrounding their reservations.\184\ 
The Committee has received testimony that the majority of 
employees hired by many tribal businesses, especially those 
located in rural areas, are non-Indian.\185\ Tribal-state 
revenue sharing agreements provide millions of dollars in 
additional revenue to state and local governments.\186\ As 
tribes succeed, local governmental costs decrease, revenue 
bases expand, and job opportunities increase for everyone.\187\ 
``The ripple effects [of the Carcieri decision] will not only 
impact tribal economic development opportunities, but will 
eliminate revenue for state and local governments, and will 
destroy much-needed jobs for both Indians and non-
Indians.''\188\
---------------------------------------------------------------------------
    \183\``Trust acquisition is not only the central means of restoring 
and protecting tribal homelands, but is critical to tribal economic 
development that benefits tribes and their neighboring communities.'' 
Carcieri Hearing, supra note 32 (statement of Richard Guest, Staff 
Attorney, Native Am. Rights Fund). In his testimony, Mr. Guest noted 
that the Match-e-be-nash-she-wish Band of Pottawatomi (also known as 
the Gun Lake Tribe) in Michigan created 900 new jobs and generated new 
business for nearby hotels, restaurants, and other service providers as 
a result of opening a gamily facility in February 2011--giving the 
local economy ``a much needed boost'' at a time when Michigan's 
economic troubles have been described as ``ground zero.'' Id. For 
example, the United Tribes Technical College in Bismark, North Dakota 
generated $31.8 million that directly impacted the local economy in 
2010. United Tribes Technical College with the Assistance of TK 
Associates International, The Economic Impact of United Tribes 
Technical College on The Economy of the Bismark/Mandan, ND Area (Jan. 
2011), http://www.uttc.edu/news/story/021811<01a.pdf.
    \184\Deficit Reduction and Job Creation: Regulatory Reform in 
Indian Country: Hearing Before the S. Comm. on Indian Affairs, 112th 
Cong. (Dec. 1, 2011) (testimony of Pearl E. Casias, Chairman, S. Ute 
Indian Tribe) (noting that the Southern Ute Indian Tribe is the 
County's largest employer, employing over 1,500 people from the County 
and New Mexico). ``Clearly, bold action is needed to unlock the 
economic potential of Indian tribes which will provide jobs, income and 
hope to tribes and their members, as well as to surrounding communities 
who will also benefit enormously from stronger tribal economies.'' Id. 
Some tribes are among the top employers in the state. See State 
Shouldn't Mess With State's 6th Largest Employer, Latest MIGA News 
(Oct. 13, 2011), http://latestmiganews.blogspot.com/2011/10/state-
shouldnt-mess-with-states-6th.html (noting that in Minnesota, for 
example, tribes employ over 20,550 people--16,000 of those jobs are in 
rural areas--collectively making the tribes the state's sixth largest 
employer).
    \185\Carcieri Hearing, supra note 32 (statement of William Lomax, 
President, Native Am. Fin. Officers Ass'n (noting that a further study 
would find that ``far more'' jobs would be created than these estimates 
and that ``many of these jobs would be created in economically 
depressed rural areas, with a majority of the jobs going to non-Indians 
in the local area'')).
    \186\One example is the Gun Lake Tribe, only 1 of 12 federally 
recognized tribes in Michigan. For the period from Apr. 1, 2011 to 
September 30, 2011, the Tribe had given the State of Michigan over $10 
million. Levi Rickert, Gun Lake Tribe's State and Local Revenue Sharing 
Over $10 Million YTD, Native News Network (Nov. 29, 2011, 7:00 AM), 
http://www.native newsnetwork.com/gun-lake-tribe-state-local-revenue-
sharing-over-10-million-ytd.html. It should be noted that the Gun Lake 
Tribe is the subject of the Patchak case in which the United States 
Supreme Court granted certiorari on December 12, 2011).
    \187\See Promises Fulfilled: The Role of the SBA 8(a) Program in 
Enhancing Economic Development in Indian Country: Hearing Before the S. 
Comm. on Indian Affairs, 112th Cong. (Apr. 7, 2011) (statement of Sen. 
Mike Johanns) (noting that the unemployment rate for the Winnebago 
Tribe in Nebraska fell from 70% to less than 10% in the 1990s as a 
result of the Tribe's creation of the economic development corporation 
called Ho-Chunk Inc.).
    \188\Carcieri Hearing, supra note 32 (statement of Richard Guest, 
Staff Attorney, Native Am. Rights Fund).
---------------------------------------------------------------------------
    Witnesses have testified before the Committee that if S. 
676 were adopted, at least 80,000 new construction jobs and 
60,000 new permanent jobs would be created for both Indians and 
non-Indians alike.\189\ Without the adoption of S. 676, 
frivolous litigation is likely to continue.\190\ Litigation 
halts this success and affects tribes' ability to govern, 
create jobs, and provide for both Indians and non-Indians as 
resources are diverted.\191\ ``The great uncertainty caused by 
[the Carcieri] decision is preventing tribes from every part of 
the country from growing and diversifying their economies, 
engaging in economic development, and creating new jobs. . . . 
Carcieri is killing jobs in Indian Country, and it is killing 
jobs in the local non-Indian communities which neighbor Indian 
Country.''\192\
---------------------------------------------------------------------------
    \189\Id. (statement of William Lomax, President, Native Am. Fin. 
Officers Ass'n); id. (statement of Colette Routel, Assistant Professor, 
William Mitchell Coll. of Law). See also IRA Hearing, supra note 9, at 
73 (testimony of Michael O. Finley, Chairman, Confederated Tribes of 
the Colville Reservation) (noting that if repurchased land has timber, 
for example, it would create the kind of jobs that get tribal members 
back to work).
    \190\Carcieri Hearing, supra note 32 (statement of Richard Guest, 
Staff Attorney, Native Am. Rights Fund).
    \191\IRA Hearing, supra note 9, at 73 (testimony of John E. 
Echohawk, Executive Director, Native Am. Rights Fund). See id. at 74 
(testimony of Michael O. Finley, Chairman, Confederated Tribes of the 
Colville Reservation) (``Our land base is what feeds our families. 
Without a land, we are not a people.'').
    \192\Carcieri Hearing, supra note 32 (statement of William Lomax, 
President, Native Am. Fin. Officers Ass'n) (emphasis in original).
---------------------------------------------------------------------------
    The United States is suffering one of the worst economic 
declines and stagnant job markets in generations. The effects 
of this disaster hit especially hard in rural communities, 
where many reservations are located. Many reservations are 
located in remote, rural areas that lack adequate facilities, 
infrastructure, and housing. The rural locations of many 
reservations mean that jobs are scarce and many Indians living 
on reservations suffer from great poverty. Because of these 
limitations, existing reservation lands do not readily support 
tribal economic development.\193\ As a result, tribes aspire to 
add land that is on or adjacent to their existing reservations.
---------------------------------------------------------------------------
    \193\Examining Executive Authority Hearing, supra note 22, at 16 
(statement of Ron Allen, Secretary, Nat'l Cong. of Am. Indians).
---------------------------------------------------------------------------
    Carcieri has exacerbated the double-digit unemployment 
rates many tribal communities were already experiencing before 
the economic downturn.\194\ The Carcieri decision has resulted 
in even greater delays to trust land acquisitions, further 
hindering opportunities for economic development and job 
creation. At a time when acquiring trust land could make a 
difference by providing jobs that would allow Indian and non-
Indian residents of these rural communities the opportunity to 
support their families and the chance to contribute to the 
local and national economies, tribes are instead faced with the 
obstacles caused by Carcieri. ``[T]he economic consequences of 
Carcieri could prove irreversible.''\195\
---------------------------------------------------------------------------
    \194\Unemployment in some tribal communities has reached as high as 
75 percent, when the average national unemployment rate is at 8.3 
percent. See Deficit Reduction and Job Creation: Regulatory Reform in 
Indian Country, Hearing Before the S. Comm. on Indian Affairs, 112th 
Cong. (Dec. 1, 2011) (statement of Sen. Daniel K. Akaka (D-Hawaii), 
Chairman, S. Comm. on Indian Affairs). ``For tribes, double digit 
unemployment have [sic] been the norm for generations, not the 
exception.'' State and Federal Tax Policy: Building New Markets in 
Indian Country, Hearing Before the S. Comm. on Indian Affairs, 112th 
Cong. (Dec. 8, 2011) (statement of Sen. Al Franken, Member, S. Comm. on 
Indian Affairs).
    \195\Carcieri's Ramifications to Tribes Hearing, supra note 22, at 
16 (statement of Michael J. Anderson, AndersonTuell, LLP). See also 
Deficit Reduction and Job Creation: Regulatory Reform in Indian 
Country, Hearing Before the S. Comm. on Indian Affairs, 112th Cong. 3 
(Dec. 1, 2011) (statement of Sen. Al Franken, Member, S. Comm. on 
Indian Affairs (``If there is economic development, there are jobs. 
Where there are jobs, there is hope, there is dignity and a sense of 
purpose. There is housing for families and kids have a better chance 
for a good education. But if economic development is hindered, all 
those are at risk.'')).
---------------------------------------------------------------------------
    Land is critical for the exercise of tribal self-governance 
and self-determination and tribes have been working for decades 
to overcome the devastating effects of federal allotment and 
assimilation policies and build brand new economies from the 
ground up.\196\ Under the IRA, tribes have been able to rebuild 
their lost land bases that are the foundation of tribal 
governance. Many Indian communities are still reliant upon the 
land for subsistence through hunting, fishing, gathering, or 
agriculture.\197\ Acquiring trust land is necessary for the 
success of tribal governmental operations, cultural activities, 
agricultural or forestry activities, energy development,\198\ 
increased housing, social and community services, health care 
and educational facilities. Tribal trust acquisitions have 
helped protect traditional practices and have helped promote 
tribal economic development. In turn, tribal trust acquisitions 
have created much-needed financial resources and jobs for 
tribal communities and the surrounding non-Indian communities. 
The purpose of the Secretary's land-into-trust authority is to 
restore Indian land bases, to rehabilitate Indian economic life 
and to foster recovery from centuries of oppression. Economic 
development has long been an expressed purpose of Federal 
Indian policy and it is the obligation of the federal 
government to ensure the restoration of tribal lands to build 
economic development and promote tribal government and 
culture.\199\
---------------------------------------------------------------------------
    \196\``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.'' IRA Hearing, supra note 9, at 67 
(testimony of Jefferson Keel, President, Nat'l Cong. of Am. Indians). 
Economic development is not only about gaming. See Jeff R. Keohane, 
Protecting the Sacred, 33 Human Rights 9-12 (Spring 2006) (``Tribal 
gaming falls far short of explaining tribal economic development in the 
1990s. Between 1990 and 2000, the median household income on gaming 
reservations rose 35 percent, from $17,500 to $23,700, but on nongaming 
reservations the median household income rose at a slightly faster 36 
percent, from $15,300 to $20,700. At the same time, the median 
household income for all Americans rose 4 percent, from $40,400 to 
$42,000. Census Bureau statistics suggest that most of this economic 
growth in tribal areas comes from small business growth. From 1982 to 
1997, the number of privately and tribally owned Native American 
businesses grew more than tenfold. In 1997, 197,300 Native American 
businesses had 298,700 employees and gross revenues of $40.3 billion--
more than four times the tribal casino receipts of $8.8 billion that 
year (in 2004 dollars). The Census Bureau excluded tribally owned 
businesses from its 2002 survey, yet a preliminary figure for privately 
owned Native American business receipts was $27.8 billion. If they 
continued their 1992 to1997 trajectory through 2002, privately and 
tribally owned Native American business revenues would have reached 
$100 billion (in 2004 dollars). Even assuming the more modest growth 
rate of non-Native American businesses, gross revenues would have 
reached $50 billion in 2002, dwarfing the $15.5 billion brought in by 
tribal government casinos.'').
    \197\``[T]rust lands provide the greatest protection for many 
communities who rely on subsistence hunting and agriculture.'' Carcieri 
Hearing, supra note 32 (statement of Larry Echo Hawk, Assistant 
Secretary, Indian Affairs, U.S. Dep't of the Interior).
    \198\Although tribal lands make up only 5 percent of the land 
within the United States, they house an estimated 10 percent of 
available energy resources. Energy Development in Indian Country, 
Hearing Before the S. Comm. on Indian Affairs, 112th Cong. (Feb. 16, 
2012). ``Last year, the U.S. GAO stated that the uncertainty in 
accruing land in trust for tribes as a result of the Carcieri decision 
is a barrier to economic development in Indian Country. . . . The 
ability to take land into trust is critical to creating an environment 
that is conducive to economic development and attracting investment in 
Indian communities. This includes energy planning and improving energy 
development capacity. Trust acquisitions allow tribes to grant certain 
rights of way and enter into leases that are necessary for tribes to 
negotiate the use and sale of their natural resources.'' Id. (statement 
of Jodi Gillette, Deputy Assistant Secretary Indian Affairs, U.S. Dep't 
of the Interior).
    \199\Examining Executive Authority Hearing, supra note 22, at 16-19 
(statement of Ron Allen, Secretary, Nat'l Congress of Am. Indians).
---------------------------------------------------------------------------

                   Carcieri freezes access to capital

    Inadequate access to capital is one of the primary 
impediments to economic development in Indian Country.\200\ 
Even prior to the Carcieri decision, ``[t]he hurdles to 
economic development and job creation in Indian Country already 
are significantly higher than they are for main-stream 
America.''\201\ Due to unfamiliarity with tribal jurisdictional 
issues, ``investors are quick to narrow borrowing options in 
response to general uncertainties and perceived credit risk 
when dealing with tribal governments.''\202\ After Carcieri, 
tribes hoping to access capital for economic development have 
an additional layer of uncertainty to overcome and more costs 
to pay because financial firms think they need to apply some 
sort of ``Carcieri test'' before doing business in Indian 
Country.\203\
---------------------------------------------------------------------------
    \200\During several roundtables hosted in 2011 by Loretta Tuell, 
Majority Staff Director & Chief Counsel, U.S. S. Comm. on Indian 
Affairs, tribal leaders articulated new challenges and obstacles they 
face in the wake of the Carcieri decision when they attempt to secure 
capital for their tribes' economic futures. See Hearings and Meetings 
for Session 1 of the 112th Congress, U.S. S. Comm. on Indian Affairs 
(Mar. 1, 2012), http://www.indian.senate.gov/hearings/
index.cfm?t=session&c=112&s=1&p=all.
    \201\Carcieri Hearing, supra note 32 (statement of William Lomax, 
President, Native Am. Fin. Officers Ass'n).
    \202\Id.
    \203\Opportunities and Challenges for Economic Development in 
Indian Country, Hearing Before the S. Comm. on Banking, Housing, & 
Urban Affairs, 112th Cong. (Apr. 7, 2011) (testimony of Dante 
Desiderio, Executive Director, Native Am. Fin. Officers Ass'n ).
---------------------------------------------------------------------------
    Post-hoc challenges to trust land acquisitions by the 
Federal government create even more uncertainty and greater 
instability in tribal governments' ability to use this 
land.\204\ The Committee has received testimony describing how 
the uncertainty of the status of trust land drives up the risk 
to investors and contractors and drives away potential 
investors. Investors are adverse to this kind of risk\205\ and 
will either refuse to finance or charge prohibitively high 
interest rates.\206\ ``The insertion of the Carcieri 
uncertainty into the mix, however, has all but killed off the 
investment community's willingness to invest in projects 
involving tribes that even might have a Carcieri 
problem.''\207\ Without access to capital, tribes acquiring 
trust lands after 1934 and the surrounding communities--
especially those tribes and communities in rural areas--will 
continue to face the economic hardship and unemployment that 
the IRA intended to change.
---------------------------------------------------------------------------
    \204\``If we fail to address the Carcieri problem, we condemn an 
unknown number of tribes to second-class status and to perpetual 
economic hardship and unemployment. Of all the hurdles to economic 
development and job creation in Indian Country, the uncertainty caused 
by Carcieri should be the easiest and most straightforward hurdle that 
can be removed.'' Carcieri Hearing, supra note 32 (statement of William 
Lomax, President, Native Am. Fin. Officers Ass'n).
    \205\``If a tribe has existing trust land that is potentially 
threatened by Carcieri, investors will not provide the capital 
necessary to develop the resource because of the uncertain regulatory 
regime. If a land stays in trust, investors will know what to expect. 
But if there is a chance the land might be pulled out of trust, this 
could impose new and potentially unfavorable regulations on the 
project.'' Id.
    \206\Id. (statement of Colette Routel, Assistant Professor, William 
Mitchell Coll. of Law).
    \207\Id. (statement of William Lomax, President, Native Am. Fin. 
Officers Ass'n) (emphasis in original). ``Fewer and fewer reputable 
lending institutions and fewer and few [sic] reputable private 
investors are willing to take the risk of lending money to a tribal 
economic development project because even the most savvy investor has 
no real way to determine whether some tribes will fall within, or 
outside of, Carcieri's new `under federal jurisdiction' test.'' Id.
---------------------------------------------------------------------------

Carcieri increases Federal litigation over settled Federal policy and 
        practice

    There is significant potential for increased litigation 
over the fee-to-trust process and the use or status of existing 
trust land.\208\ ``Without a clean Carcieri fix by Congress, 
litigation, much of it frivolous litigation, will continue over 
the meaning of the phrase `now under Federal 
jurisdiction.'''\209\
---------------------------------------------------------------------------
    \208\Litigation in the wake of Carcieri has already begun. See Id. 
(written testimony of Richard Guest, Staff Attorney, Native Am. Rights 
Fund) (Mr. Guest submitted a detailed summary of the 14 cases pending 
in the courts and at the administrative level in the wake of the 
Carcieri decision, available at http://www.indian.senate.gov/hearings/
upload/Richard-Guest-testimony-and-Attachment.pdf). See also id. 
(statement of Larry Echo Hawk, Assistant Secretary, Indian Affairs, 
Dep't of the Interior (``In the Department's [DOI] 2009 testimony 
before the House Natural Resources Committee, we predicted that the 
uncertainty spawned by the Carcieri decision would lead to complex and 
costly litigation. Unfortunately, this prediction has come to pass, and 
the Department [of Interior] is engaged in litigation regarding how it 
has interpreted and applied section 5 of the Indian Reorganization Act 
to particular tribes for whom it has acquired land in trust.'')) and 
(statement of Colette Routel, Assistant Professor, William Mitchell 
Coll. Of Law) (highlighting the problems the Fond du Lac Band and the 
Rosebud Sioux Tribe are now facing in their recent trust applications).
    \209\Id. (statement of Richard Guest, Staff Attorney, Native Am. 
Rights Fund). See also Taylor, supra note 100, at 620 (noting the 
litigation is sure to involve the regulation and taxation of tribes and 
their land).
---------------------------------------------------------------------------
    Questions regarding the Secretary's authority or a tribe's 
status based on the Carcieri decision have been raised in at 
least fourteen legal challenges involving tribes since February 
2009.\210\ This current litigation involves tribes who were 
unmistakably ``under federal jurisdiction'' in 1934 when the 
IRA was enacted.\211\ Even if tribes prevail in these cases, 
frivolous lawsuits siphon time and resources away from 
important tribal business, health care and other programs, and 
economic development.\212\ Such cases require tribes to divert 
funds away from providing jobs and essential governmental 
services to their members. These cases present challenges to 
long settled legal principals and legislative history and could 
further erode tribal sovereignty if they are not decided in 
favor of the tribes.\213\ ``[I]f Congress fails to act, the 
standard set forth in Carcieri v. Salazar will be devastating 
to tribal sovereignty and economic development. Resolving any 
ambiguity in the Indian Reorganization Act is vital to 
protecting tribal interests and avoiding costly and protracted 
litigation.''\214\
---------------------------------------------------------------------------
    \210\See Carcieri Hearing, supra note 32 (submitted testimony of 
Richard Guest, supra note 208). See also IRA Hearing, supra note 9, at 
68 (testimony of Jefferson Keel, President, Nat'l Cong. of Am. Indians) 
(noting there are ``at least 14 pending cases'' and ``many more tribes 
whose land-to-trust applications have simply been frozen while the 
Department of Interior works through painstaking legal and historical 
analysis'').
    \211\Each tribe qualifying for federal acknowledgement since 1978 
under the DOI regulations has established that it ``has been identified 
as an American Indian entity on a substantially continuous basis since 
1900,'' and has therefore established that it has been under Federal 
jurisdiction as of 1934. 25 C.F.R. Sec. 83.7(a). See also Examining 
Executive Authority Hearing, supra note 22, at 5-6, 9 (testimony of 
Edward P. Lazarus, Partner, Akin Gump Strauss Hauer & Feld, LLP), 
available at http://www.indian.senate.gov/public/--files/May212009.pdf 
(cautioning that anything short of legislation would likely result in 
protracted and costly litigation). Mr. Lazarus suggested two possible 
legislative approaches: (1) Amending the IRA to remove ``now'' from 
``now under Federal jurisdiction'' and (2) ratifying any pre-Carcieri 
land-into-trust administrative determinations under the IRA for tribes 
not formally recognized in 1934. At the same hearing, Ron Allen also 
provided draft language for an amendment to the IRA to remove the word 
``now'' from ``now under federal jurisdiction'' and to protect pre-
Carcieri decisions by the Secretary to take land into trust from 
judicial invalidation based on a tribe's not having been recognized in 
1934. See id. (testimony of Ron Allen, Secretary, Nat'l Cong. of Am. 
Indians), available at http://www.indian.senate.gov/public/--files/
May212009.pdf. Like Mr. Lazarus, Mr. Allen also indicated that although 
an administrative solution to the potential effects of Carcieri is 
possible, anything other than legislation is likely to result in 
wasteful and protracted litigation. Id.
    \212\IRA Hearing, supra note 9, at 73 (testimony of Jefferson Keel, 
President, Nat'l Cong. of Am. Indians) (noting that, instead of 
spending time and money fighting frivolous lawsuits, ``tribes would be 
better served if those funds and those resources were directed back 
into housing, health care, other social service needs'').
    \213\Carcieri Hearing, supra note 32 (statement of Colette Routel, 
Assistant Professor, William Mitchell Coll. of Law (``[T]he Rosebud 
Sioux Tribe is a ``treaty tribe'' and has seemingly maintained 
continuous federal recognition as an Indian tribe. The Tribe voted in 
favor of the IRA on October 27, 1934, just four months after the 
statute was enacted. Its IRA Constitution was approved by the Secretary 
of the Interior in November 1935, and a Section 17 Charter was issued 
to the Tribe on March 16, 1937. Despite these seemingly 
incontrovertible facts, the State of South Dakota is currently 
challenging three of the Tribe's pending trust applications, claiming 
that the Rosebud Sioux Tribe was not ``under federal jurisdiction'' 
when the IRA was passed. These trust applications are for: (1) Bear 
Butte Lodge, a sacred site located in the Black Hills; (2) a nursing 
home that has already been operating for nearly 20 years and is located 
within the exterior boundaries of the Rosebud Reservation on land that 
was lost due to allotment; and (3) the Chamberlain Ranch, which is land 
currently owned by the Tribe and leased to a tribal member for 
agricultural use. Trust applications for these three locations have 
been pending with the Bureau of Indian Affairs for more than two years 
now.'')).
    \214\Id. (statement of Rep. Tom Cole).
---------------------------------------------------------------------------
    As a result of Carcieri, Indian tribes, DOI, and federal 
courts reviewing future land into trust acquisitions are left 
without formal guidance or fixed regulations regarding what 
would be considered ``under federal jurisdiction.'' Because the 
United States did not have an accurate list of federally 
recognized Indian tribes until after 1994, the initial 
determination of whether a tribe was formally recognized in 
1934, and therefore considered ``under federal jurisdiction,'' 
is a difficult question to answer. The Committee has received 
testimony of how this kind of uncertainty will flood federal 
courtrooms with lawsuits for decades and cost both tribes and 
the United States significant resources. ``[T]he Carcieri 
decision overturns over 70 years of precedent and puts billions 
of dollars' worth of trust land in legal limbo. Without a 
legislative fix, more billions of dollars and decades will be 
spent on litigation and disputes between Tribes and state and 
local governments.''\215\
---------------------------------------------------------------------------
    \215\Id.
---------------------------------------------------------------------------
    Such litigation is burdensome, expensive, and causes delays 
in the government's exercise of its general trust 
responsibility to Indian tribes and its specific obligations 
under the IRA.\216\ As a result of Carcieri, the BIA must now 
determine which tribes were ``under federal jurisdiction'' in 
1934, before it can extend the benefit of taking fee lands into 
trust for an Indian tribe.\217\ ``[T]he manner in which an 
Indian tribe became recognized is once again crucial * * * 
tribes that were recognized by Congress are generally insulated 
from the impacts of Carcieri through express provisions in 
their recognition bills that make the IRA applicable to both 
the tribe and its members. Indian tribes recognized through the 
Office of Federal Acknowledgment (``OFA''), however, have no 
such insulation.''\218\ The Carcieri decision makes it 
significantly more difficult for tribes recognized through the 
OFA process to acquire trust lands.\219\ These delays in turn 
undermine the broad remedial policies of the IRA, the 1994 
amendments reaffirming those policies, and the current federal 
policy of tribal self-determination.\220\
---------------------------------------------------------------------------
    \216\``The Carcieri decision has disrupted the fee-to-trust process 
by requiring the Secretary to engage in a burdensome legal and factual 
analysis [sic] for each tribe seeking to have the Secretary acquire 
land in trust. The decision also calls into question the Secretary's 
authority to approve pending applications, as well as the effect of 
such approval by imposing criteria that had not previously been 
construed or applied.'' Id. (statement of Larry Echo Hawk, Assistant 
Secretary, Indian Affairs, U.S. Dep't of the Interior).
    \217\Prior to the Carcieri decision, applications for the 
acquisition of trust land would be reviewed in six to nine months. Id. 
(testimony of Donald Laverdure, Principal Deputy Assistant Secretary, 
Indian Affairs, Dep't of the Interior) (``[T]he timeline and the 
spectrum of these decisions going out further and further and further 
and then even when those are decided after going through the vast 
histories and details of each tribal nation, and they all are unique, 
on top of that, and then you end up in litigation on top of it. So you 
then double the time that it took to begin with, whereas if we had the 
questioned [sic] answered to decrease uncertainty, decrease risk, we 
could make those decisions much sooner than later.''). These delays 
mean that the business and job opportunities are postponed even longer, 
some indefinitely. See id. (``[B]ecause of the increased uncertainty 
and the increased risk, there are numerous projects that are not going 
to be going forward.''). Additional administrative burdens can delay 
resources for much-needed federal programs and create potentially 
dangerous public safety concerns resulting from these delays. See 
discussion infra Carcieri Threatens Public Safety and Tribal Law 
Enforcement.
    \218\Carcieri Hearing, supra note 32 (statement of Colette Routel, 
Assistant Professor, William Mitchell Coll. of Law). ).
    \219\Id. (further noting that over the last decade, Congress has 
not granted federal recognition to any Indian tribes. The last tribe 
recognized through Congressional legislation was the Loyal Shawnee 
Tribe of Oklahoma, P.L. 106-568 (Dec. 27, 2000))).
    \220\``GAO predicted that until the uncertainty created by the 
Carcieri decision is resolved, Indian tribes would be asking Congress 
for tribe-specific legislation to take land into trust, rather than 
submitting fee-to-trust applications to the department. The department 
understands that this prediction is coming true and Indian tribes are 
seeking their Members of Congress for legislation to take land into 
trust. Thus, instead of a uniform fee-to-trust process under the Indian 
Reorganization Act, a variety of tribe-specific fee-to-trust laws could 
lead to a patchwork of laws that could be difficult for the department 
to administer.'' Id. (statement of Larry Echo Hawk, Assistant 
Secretary, Indian Affairs, U.S. Dep't of the Interior).
---------------------------------------------------------------------------
    One such example, Salazar v. Patchak,\221\ involves a 
challenge by an individual landowner to the Quiet Title Act. 
The Quiet Title Act bars all suits against lands that the 
United States holds in trust for tribes and tribal 
members.\222\ As such, the Quiet Title Act would protect any 
lands that have already been taken into trust from a Carcieri 
challenge. If this case were to be decided in favor of the 
landowner, it would not only place all prior trust lands in 
jeopardy, but it would also allow any citizen to file suit 
against any tribal trust acquisition.\223\
---------------------------------------------------------------------------
    \221\632 F.3d 702 (2011), petition for cert. filed, 80 U.S.L.W. 
3125 (U.S. Aug. 25, 2011) (No. 11-247). An ``unprecedented result,'' 
Patchak ``is a prime example of how Carcieri may have a long-lasting 
adverse impact on all 565 [now 566] 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.'' IRA Hearing, 
supra note 9, at 49 (testimony of John E. Echohawk, Executive Director, 
Native Am. Rights Fund).
    \222\28 U.S.C. Sec. 2409a.
    \223\``An already confusing patchwork of public safety and 
jurisdiction issues will become more complicated for law enforcement 
officers, the victims, and the legal bar if this challenge to the Quiet 
Title Act, and based on the Carcieri decision * * * This may soon allow 
the defense attorneys, prosecutors, and judges in criminal cases to 
determine the parameters of Indian country and reservations, a right 
reserved to Congress and the delegated to the Secretary of the 
Interior.'' Carcieri Hearing, supra note 32 (statement of Carl J. 
Artman, Professor of Practice & Director, Econ. Dev. in Indian Country 
Program, Ariz. State Univ. Sandra Day O'Connor Coll. of Law).
---------------------------------------------------------------------------
    A separate case, Rosales v. United States,\224\ once again 
raises the distinction between ``created'' tribes and 
``historical'' tribes. In this challenge, the plaintiffs claim 
that lands are held in trust for individual families and not a 
tribe and argue that the tribe in this case was a ``created'' 
tribe.\225\ The issue of ``created'' versus ``historical'' was 
already decided by Congress when it enacted the 1994 amendments 
to the IRA in order to put to rest any distinction between the 
rights granted to tribes.
---------------------------------------------------------------------------
    \224\Fed. Cir. No. 2010-5028.
    \225\Carcieri Hearing, supra note 32 (statement of Colette Routel, 
Assistant Professor, William Mitchell Coll. of Law (noting that to make 
the distinction between ``created'' and ``historic'' tribes is ``odd'' 
because Congress does not have the power to create an Indian tribe and 
may not ``bring a community or body of people within the range of [its] 
power by arbitrarily calling them an Indian tribe'' (citing United 
States v. Sandoval, 231 U.S. 28 (1913))).
---------------------------------------------------------------------------
    These two cases illustrate the uncertainty created by the 
Carcieri decision. Cases such as these have made it 
increasingly more difficult for tribes to bring economic 
development to their reservations. ``Uncertainty prompts 
litigation and it scares investors.''\226\ It is difficult for 
tribes to attract investors when litigation occurs and calls 
into question the status of lands where development could 
otherwise occur.
---------------------------------------------------------------------------
    \226\Id. (statement of Colette Routel, Assistant Professor, William 
Mitchell Coll. of Law).
---------------------------------------------------------------------------
    There are nearly 2,000 requests for the Secretary to take 
land into trust for tribes,\227\ and ``[o]ver 95% of those 
requests are for non-gaming purposes.''\228\ Since the Carcieri 
decision, tribal housing projects have been stalled, basic 
infrastructure projects have been halted, and many business 
investors have found investment in Indian Country too time 
consuming,\229\ too risky, and far too expensive. ``Resolving 
any ambiguity in the Indian Reorganization Act is vital to 
protecting tribal interests and avoiding costly and protracted 
litigation.''\230\ S. 676 seeks to prevent litigation over 
trust land acquisitions that might otherwise arise from the 
Carcieri decision. ``[A] clean Carcieri fix does not advance 
any issue or cause for Indian country. A clean Carcieri fix, 
such as S. 676, simply restores Indian tribes to the status 
quo, to the status quo of 75 years of practice by the Secretary 
of the Interior to acquire lands in trust for all federally 
recognized tribes regardless of the date of their Federal 
recognition.''\231\
---------------------------------------------------------------------------
    \227\Id. (statement of Rep. Tom Cole).
    \228\Id. (noting also that a Carcieri fix would not undercut 
states' tax base, ``Like any federal land, trust land is not subject to 
state taxation; neither is land housing military bases, national parks 
and national forests--just to name a few.''). See id. (testimony of 
Larry Echo Hawk, Assistant Secretary, Indian Affairs, Dep't of the 
Interior) (``And how many [recently approved applications were for] 
gaming out of 541? Three.''). See also IRA Hearing, supra note 9, at 
74-75 (testimony of Jefferson Keel, President, Nat'l Cong. of Am. 
Indians) (``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 * * * 
[Gaming] is a separate bill and it should be considered separately.'').
    \229\Frivolous challenges may be brought solely for the purposes of 
delay, adding to unpredictable outcomes and tremendous costs. IRA 
Hearing, supra note 9, at 73 (testimony of Jefferson Keel, President, 
Nat'l Cong. of Am. Indians).
    \230\Carcieri Hearing, supra note 32 (statement of Rep. Tom Cole).
    \231\Id. (statement of Richard Guest, Staff Attorney, Native Am. 
Rights Fund).
---------------------------------------------------------------------------

                       THE REAL COSTS OF CARCIERI

    Although the Carcieri decision involved only one tribe, the 
devastating effects resulting from the decision impact all 
tribes. Failing to enact S. 676 will deprive tribal governments 
of important rights and benefits that the IRA intended to 
provide; including the ability to restore and protect their 
homelands through the acquisition of tribal trust lands\232\ 
and the potential to develop and sustain tribal economic 
development\233\ through the creation of businesses that 
provide jobs and other economic opportunities for tribal 
members and residents of the surrounding communities.
---------------------------------------------------------------------------
    \232\``The first section of the Indian Reorganization Act expressly 
discontinued the allotment of Indian lands, while the next section 
preserved the trust status of Indian lands.'' Id. (statement of Larry 
Echo Hawk, Assistant Secretary, Indian Affairs, Dep't of the Interior).
    \233\See discussion infra EXECUTIVE AND LEGISLATIVE POLICIES HAVE 
LONG REFLECTED CONGRESSIONAL INTENT TO FOSTER TRIBAL SOVEREIGNTY AS 
EXPRESSED IN THE INDIAN REORGANIZATION ACT. See also Cole, supra note 
175.
---------------------------------------------------------------------------
    Passage of S. 676 will cost taxpayers nothing. The costs to 
taxpayers if S. 676 is not passed will, however, continue to 
grow. Congressional inaction has also generated significant 
costs of time and money for the federal government and tribes--
merely to defend the challenges brought as a result of 
Carcieri. Expending time and resources examining issues that 
have already been settled is a misallocation of federal and 
tribal resources that could be used to promote and develop 
tribal self-determination and self-government.

                          Need for Legislation

    When Congress enacted the IRA in 1934, it ended the federal 
policies that had devastated tribal communities and governments 
and moved toward an era of empowering Indian tribes by 
restoring their tribal homelands and promoting self-
determination and self-governance. Congress has continuously 
reaffirmed that all federally recognized tribes are to be 
treated equally, and has confirmed its support of equality for 
all tribes when it amended the IRA in 1994.\234\ The record 
proffered by the Solicitor General in Carcieri omitted much of 
the legislative history. Decades of congressional action and 
administrative policies have been undermined by the Carcieri 
decision.
---------------------------------------------------------------------------
    \234\The 1994 amendments explicitly demonstrate Congress' intent to 
include, rather than exclude, tribes by clearly stating that 
discrimination against tribes, based on the date of their recognition, 
``is inconsistent with the principle policies underlying the IRA, which 
were to stabilize Indian trib[al] governments and to encourage self-
government.'' 140 Cong. Rec. S6146 (daily ed. May 19, 1994) (statement 
of Sen. John McCain).
---------------------------------------------------------------------------
    The Supreme Court's decision in  Carcieri ignores dozens of 
federal statutes passed by Congress\235\ and over 75 years of 
administrative practice that Congress has delegated to the 
executive agencies.\236\ Carcieri has become a barrier to 
restoring tribal lands and interferes with the federal 
government's obligation to fulfill its trust 
responsibility.\237\
---------------------------------------------------------------------------
    \235\See discussion infra EXECUTIVE AND LEGISLATIVE POLICIES HAVE 
LONG REFLECTED CONGRESSIONAL INTENT TO FOSTER TRIBAL SOVEREIGNTY AS 
EXPRESSED IN THE INDIAN REORGANIZATION ACT.
    \236\25 U.S.C. Sec. Sec. 1, 2 & 9.
    \237\``Congress may fulfill its treaty obligations and its 
responsibilities to the Indian tribes by enacting legislation dedicated 
to their circumstances and needs.'' Rice v. Cayetano, 528 U.S. 495, 519 
(2000) (citing Washington v. Washington State Commercial Passenger 
Fishing Vessel Ass'n., 443 U.S. 658, 673, n. 20 (1979); United States 
v. Antelope, 430 U.S. 641, 645-647 (1977); Delaware Tribal Business 
Comm. v. Weeks, 430 U.S. 73, 84-85 (1977); Moe v. Confederated Salish 
and Kootenai Tribes of Flathead Reservation, 425 U.S. 463, 479-480 
(1976); Fisher v. Dist. Court of Sixteenth Judicial Dist. of Montana, 
424 U.S. 382, 390-391 (1976)). See also Examining Executive Authority 
Hearing, supra note 22, at 16 (statement of Ron Allen, Secretary, Nat'l 
Cong. of Am. Indians) (``The Carcieri decision is squarely at odds with 
the federal policy of tribal self-determination and tribal economic 
self-sufficiency. In particular, the decision runs counter to Congress' 
intent in the 1994 amendments to the IRA. These amendments directed the 
Department of the Interior and all other federal agencies, to provide 
equal treatment to all Indian tribes regardless of how or when they 
received federal recognition, and ratified the Department [of the] 
Interior procedures under 25 C.F.R. Pt. 83 for determining and 
publishing the list of federally recognized tribes.'').
---------------------------------------------------------------------------
    The Carcieri decision only allows tribes that were ``under 
federal jurisdiction'' in 1934 to acquire trust land, thereby 
inviting disparate treatment among federally recognized tribes 
contrary to the very act of Congress the Court was called upon 
to interpret in Carcieri. The Court's selective and 
insufficient analysis of the IRA runs afoul of Congressional 
intent; it also overrules dozens of legislative actions in 
which Congress had exercised its plenary power to enact and 
overturns more than 75 years of well-settled administrative 
practice regarding tribal trust land acquisitions.\238\ This 
legislative history is clarified in the 1994 memorandum that 
was not lodged with the Supreme Court. ``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 Allotment Act], the Court's ruling 
is an affront to the most basic policies underlying the 
IRA.''\239\ The uncertainty regarding the scope of the 
Secretary's authority to acquire land in trust cannot be 
reconciled with the longstanding practice of the Department, a 
practice that was authorized by Congress decades ago.\240\
---------------------------------------------------------------------------
    \238\IRA Hearing, supra note 9, at 48 (testimony of John E. 
Echohawk, Executive Director Native Am. Rights Fund) (noting that for 
over 70 years, the Department of Interior applied an interpretation of 
the IRA that the phrase ``now under Federal jurisdiction'' meant at the 
time of application).
    \239\Id.
    \240\ Carcieri Hearing, supra note 32 (statement of Larry Echo 
Hawk, Assistant Secretary, Indian Affairs, Dep't of the Interior (``The 
Department continues to believe that legislation is the best means to 
address the issues arising from the Carcieri decision, and to reaffirm 
the Secretary's authority to secure tribal homelands for federally 
recognized tribes under the Indian Reorganization Act. A clear 
congressional reaffirmation will prevent costly litigation and lengthy 
delays for both the Department and the tribes to which the United 
States owes a trust responsibility.'')).
---------------------------------------------------------------------------
    President Barack Obama fully supports the ``Carcieri fix'' 
legislation that would ``make clear--in the wake of [Carcieri 
v. Salazar]--that the Secretary of the Interior can take land 
into trust for all federally recognized tribes.''\241\ This is 
important for the safety and security of all those who live in 
or near Indian country. Unlike other areas of governmental 
spending, the federal government has a unique legal, treaty, 
and trust obligation to provide for the public safety of Indian 
country. Failing to enact the proposed amendment deprives 
tribal governments of important benefits of the IRA.
---------------------------------------------------------------------------
    \241\The White House, Working with Tribal Nations to Build a 
Brighter Future: Synopsis of the 2010 White House Tribal Nations 
Conference 5, 14 (Dec. 2010), available at http://www.whitehouse.gov/
sites/default/files/Tribal_Nations_Conference_Final_0.pdf.
---------------------------------------------------------------------------
    As a result, Senator Akaka (D-Hawaii) introduced, and the 
Committee approved, S. 676 to confirm the Secretary's authority 
to place land into trust for all tribes that are federally 
recognized on the date the Secretary takes the land into trust, 
and to ratify trust land acquisitions already made by the 
Secretary under the IRA. S. 676 is a bicameral and bipartisan 
bill\242\ and is supported by Indian country.\243\
---------------------------------------------------------------------------
    \242\Two companion bills have been introduced in the House of 
Representatives: H.R. 1234 (introduced by Rep. Dale E. Kildee (D-
Michigan-5) on Mar. 29, 2011) and H.R. 1291 (introduced by Rep. Tom 
Cole (R-Oklahoma-4) on Mar. 31, 2011). See Rep. Tom Cole (R-Oklahoma-
4), Op-Ed., Resolving  Carcieri Crisis Would Create Jobs, Cost 
Taxpayers Nothing, THE HILL, Nov. 15, 2011, available at http://
thehill.com/opinion/op-ed/193837-resolving-Carcieri-crisis-would-
create-jobs-cost-taxpayers-nothing.
    \243\See The National Congress of American Indians Resolutions NGF-
09-022 (2009), NGF-09-028 (2009), RAP-10-024 (2010), and RAP-10-058c 
(2010), available at http://www.ncai.org/Resolutions.5.0.html.
---------------------------------------------------------------------------

                          Legislative History

    On March 30, 2011, Senator Akaka (D-Hawaii) introduced S. 
676, along with Senators Conrad (D-North Dakota), Franken (D-
Minnesota), Inouye (D-Hawaii), Johnson (D-South Dakota), Kerry 
(D-Massachusetts.), Tester (D-Montana) and Udall (D-New 
Mexico). Senators Baucus and Stabenow were later added as co-
sponsors. On April 7, 2011, the Committee on Indian Affairs 
favorably reported S. 676 out with an amendment.
    Two companion bills were introduced in the House of 
Representatives. On March 29, 2011, Congressman Kildee (D-
Michigan-05) introduced H.R. 1234 and on March 31, 2011, 
Congressman Cole (R-Oklahoma-04) introduced H.R. 1291. The 
House Committee on Natural Resources held a legislative hearing 
on these two bills on July 12, 2011.
    Similar Carcieri fix measures were introduced in the 111th 
Congress. The House passed H.R. 3082, which included the 
Carcieri fix language, and the Committee reported S. 1703. 
Neither bill was enacted prior to the end of the 111th 
Congress.

                        Summary of the Amendment

    Senator Akaka (D-Hawaii) offered S. 676 to amend the Act 
commonly known as the Indian Reorganization Act to apply the 
Act to all federally recognized Indian tribes, regardless of 
when any tribe became recognized. S. 676 modifies the original 
Act by adding language to the definition of the term ``Indian 
tribe'' and by adding language to ensure that nothing in the 
Act or the amendments to the Act would affect the application 
of any other federal law, other than the Indian Reorganization 
Act.
    The Committee accepted an amendment to S. 676 offered by 
Senator Barrasso (R-Wyoming) that would require a study by the 
Department of the Interior that would identify the impact of 
the Carcieri decision on Indian tribes and tribal lands and 
publish a list of each affected Indian tribe and parcel of 
tribal land.

                      Section-by-Section Analysis


Sec. 1. Modification of definition

    Subsection (a). This section modifies a portion of the 
definition of ``Indian'' in 25 U.S.C. 479 from, ``any 
recognized Indian tribe now under Federal jurisdiction'' to 
``any federally recognized Indian tribe.'' It further applies 
this amended definition effective as of June 18, 1934.
    Subsection (b) ratifies and confirms any action taken by 
the Secretary pursuant to the IRA for any Indian tribe that was 
federally recognized on the date of the Secretary's action.
    Subsection (c) clarifies that the legislation does not 
affect any law other than the Indian Reorganization Act or 
limit the authority of the Secretary of the Interior under any 
federal law or regulation other than the Indian Reorganization 
Act.
    Subsection (d) requires the Secretary of the Interior to 
conduct, and submit to Congress, a study describing the effects 
of the Carcieri decision on Indian tribes and tribal land; and 
including a list of each affected Indian tribe and parcel of 
tribal land. The study would be required to be submitted within 
one year of enactment of S. 676 and the Secretary will publish 
the list in the Federal Register and on the Department of the 
Interior's public Web site.

                        Committee Recommendation

    On April 7, 2011, the Senate Committee on Indian Affairs 
convened a business meeting to consider S. 676 and other 
measures. The amendment offered by Senator Barrasso, and 
accepted by the Committee, will require the Department of the 
Interior to submit a study identifying the impact of the 
Carcieri decision on Indian tribes and tribal lands to Congress 
within a year. The Committee ordered the bill, as amended, be 
reported to the full Senate with the recommendation that the 
bill, as amended, do pass.

                   Cost and Budgetary Considerations

    The following cost estimate, as provided by the 
Congressional Budget Office, dated May 26, 2011, was prepared 
for S. 676:

                                                      May 26, 2011.
Hon. Daniel K. Akaka,
Chairman, Committee on Indian Affairs,
U. S. Senate, Washington, DC.
    Dear Mr. Chairman: The Congressional Budget Office has 
prepared the enclosed cost estimate for S. 676, a bill to amend 
the act of June 18, 1934, to reaffirm the authority of the 
Secretary of the Interior to take land into trust for Indian 
tribes.
    If you wish further details on this estimate, we will be 
pleased to provide them. The CBO staff contact is Martin von 
Gnechten.
            Sincerely,
                                              Douglas W. Elmendorf.
    Enclosure.

S. 676--A bill to amend the act of June 18, 1934, to reaffirm the 
        authority of the Secretary of the Interior to take land into 
        trust for Indian tribes

    S. 676 would amend the Indian Reorganization Act to allow 
the Secretary of the Interior to take land into trust for all 
federally recognized Indian tribes. Based on information from 
the Department of the Interior (DOI), CBO estimates that 
implementing the legislation would have no significant cost. 
Enacting S. 676 would not affect direct spending or revenues; 
therefore, pay-as-you-go procedures do not apply.
    Under current law, as established by the Supreme Court's 
2009 decision in Carcieri v. Salazar, the Secretary of the 
Interior's authority to take land into trust for Indian tribes 
is limited to those tribes that were federally recognized prior 
to the enactment of the Indian Reorganization Act of 1934. 
Under the bill, the Secretary would have the authority to take 
land into trust for any federally recognized Indian tribe, 
regardless of when a tribe became federally recognized. Because 
current law requires DOI personnel to determine which tribes 
would be eligible to have lands taken into trust, CBO expects 
that implementing S. 676 could reduce the workload of DOI 
staff. CBO expects that any savings resulting from that reduced 
workload would be small and probably would be used by the 
agency to carry out other activities related to holding land in 
trust. Thus, we expect that implementing the legislation would 
have a negligible effect on the federal budget.
    S. 676 would impose both intergovernmental and private-
sector mandates as defined in the Unfunded Mandates Reform Act 
(UMRA).
    S. 676 would limit the ability of public and private 
entities or individuals to file some types of claims in court 
related to lands taken into trust for Indian tribes. That 
limitation would be both an intergovernmental and private-
sector mandate. The cost of the mandate would be the forgone 
value of awards and settlements of such claims if they would 
have been successful under current law. CBO expects that the 
annual number of claims involving such land and the value of 
the awards and settlements in those claims would be small.
    S. 676 also would impose an intergovernmental mandate by 
expanding the authority of DOI to take land into trust for 
tribes that were not under federal jurisdiction in 1934. Land 
taken into trust would be exempt from state and local taxes. 
Given the types and amounts of land typically taken into trust, 
CBO estimates that the forgone tax revenue to state and local 
governments from that expansion would be small.
    CBO estimates that the cost of all mandates in the bill to 
intergovernmental and private-sector entities would fall below 
the annual thresholds established in UMRA ($71 million and $142 
million in 2011, respectively, adjusted annually for 
inflation).
    The CBO staff contacts for this estimate are Martin von 
Gnechten (for federal costs), Melissa Merrell (for state, 
local, and tribal costs), and Marin Randall (for the private-
sector impact). The estimate was approved by Theresa Gullo, 
Deputy Assistant Director for Budget Analysis.

               Regulatory and Paperwork Impact Statement

    Paragraph 11(b) of rule XXVI of the Standing Rules of the 
Senate requires each report accompanying a bill to evaluate the 
regulatory and paperwork impact that would be incurred in 
carrying out the bill. The Committee believes that S. 676 will 
have a minimal impact on regulatory or paperwork requirements.

                        Executive Communications

    The Committee received the following letters from Secretary 
Salazar, Department of the Interior in support of S. 676:


            ADDITIONAL VIEWS OF VICE CHAIRMAN JOHN BARRASSO

    I concur with most of the Chairman's views regarding the 
effects of the decision of the Supreme Court in the case of 
Carcieri v. Salazar and the purposes of the Indian 
Reorganization Act of 1934--although, at the same time, I 
acknowledge that there are other, differing views, held in good 
faith, about the Supreme Court's decision in that case.
    For my part, I do not claim to know enough about the 
Government's internal deliberations and legal strategies in the 
Carcieri case to say that there were deliberate or even 
careless omissions from the record presented to the Supreme 
Court. But whether that happened or not is ``water under the 
bridge'' and therefore much less important than the 
consequences of the decision itself. As the Chairman's report 
points out, the Committee has received significant information 
from a number of sources asserting that the Carcieri decision 
is having serious impacts on economic development and capital 
investment in many parts of Indian country and creating further 
confusion over law enforcement authority or criminal 
jurisdiction on some Indian lands taken into trust prior to the 
decision in the Carcieri case. Those consequences are very 
unfortunate. Indian people neither need nor deserve these 
problems, and they played no part in bringing them about.
    Like many, if not most, of the challenges facing Indian 
country, the issues created by the Carcieri decision do not 
follow partisan lines, and neither do the reactions to that 
decision. While this bill was introduced by Chairman Akaka in 
the Senate, there are two House versions of this measure, one 
introduced by Congressman Cole, a Republican, and the other by 
Congressman Kildee, a Democrat. I suspect there are mixed views 
on all of these bills held by Members from both political 
parties on either side of the Capitol.
    The amended bill adopted by the Committee reflects the 
Committee's best efforts to address the fallout from the 
Supreme Court's decision. It may not be a perfect solution, but 
in this instance there is likely no such thing.

                        Changes in Existing Law

    In accordance with subsection 12 of rule XXVI of the 
Standing Rules of the Senate, changes in existing law made by 
the bill S. 676, as ordered reported, are shown as follows 
(existing law proposed to be omitted is enclosed in black 
brackets, new matter printed in italic):

25 U.S.C. Sec. 479. Definitions.

    Effective beginning on June 18, 1934, the term [The term] 
``Indian'' as used in this Act shall include all persons of 
Indian descent who are members of any federally recognized 
Indian tribe [any recognized Indian tribe now under Federal 
jurisdiction], and all persons who are descendants of such 
members who were, on June 1, 1934, residing within the present 
boundaries of any Indian reservation, and shall further include 
all other persons of one-half or more Indian blood. For the 
purposes of this Act, Eskimos and other aboriginal peoples of 
Alaska shall be considered Indians. The term ``tribe'' wherever 
used in this Act shall be construed to refer to any Indian 
tribe, organized band, pueblo, or the Indians residing on one 
reservation. The words ``adult Indians'' wherever used in this 
Act shall be construed to refer to Indians who have attained 
the age of twenty-one years.

                                  
