the indian reorganization act—75 years later: renewing our

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2012

S. H

. 112–113

THE INDIAN REORGANIZATION ACT—75 YEARS

LATER: RENEWING OUR COMMITMENT TO

RESTORE TRIBAL HOMELANDS AND PROMOTE

SELF–DETERMINATION

HEARING

BEFORE THE

COMMITTEE ON INDIAN AFFAIRS

UNITED STATES SENATE

ONE HUNDRED TWELFTH CONGRESS

FIRST SESSION

JUNE 23, 2011

Printed for the use of the Committee on Indian Affairs

(

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(II)

COMMITTEE ON INDIAN AFFAIRS

DANIEL K. AKAKA, Hawaii, Chairman

JOHN BARRASSO, Wyoming, Vice Chairman

DANIEL K. INOUYE, Hawaii

KENT CONRAD, North Dakota

TIM JOHNSON, South Dakota

MARIA CANTWELL, Washington

JON TESTER, Montana

TOM UDALL, New Mexico

AL FRANKEN, Minnesota

JOHN M

CAIN, Arizona

LISA MURKOWSKI, Alaska

JOHN HOEVEN, North Dakota

MIKE CRAPO, Idaho

MIKE JOHANNS, Nebraska

ORETTA

A. T

UELL

, Majority Staff Director and Chief Counsel

AVID

A. M

ULLON

., Minority Staff Director and Chief Counsel

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(III)

C O N T E N T S

Page

Hearing held on June 23, 2011 ............................................................................... 1

Statement of Senator Akaka ................................................................................... 1

Statement of Senator Barrasso ............................................................................... 2

Statement of Senator Udall .................................................................................... 29

Prepared statement .......................................................................................... 29

ITNESSES

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

Prepared statement .......................................................................................... 50

Finley, Hon. Michael O., Chairman, Confederated Tribes of the Colville Res-

ervation ................................................................................................................. 69

Prepared statement .......................................................................................... 71

Goldberg, Carole E., Jonathan D. Varat Distinguished Professor of Law,

UCLA School of Law ............................................................................................ 21

Prepared statement .......................................................................................... 23

Heeley, Steven J.W., Policy Consultant, Akin, Gump, Strauss, Hauer & Feld,

LLP ........................................................................................................................ 35

Prepared statement .......................................................................................... 36

Hoxie, Frederick E., Swanlund Chair/History Professor, University of Illinois . 3

Prepared statement .......................................................................................... 4

Keel, Hon. Jefferson, President, National Congress of American Indians .......... 66

Prepared statement .......................................................................................... 68

Monette, Richard, Associate Professor of Law, University of Wisconsin Law

School .................................................................................................................... 41

Prepared statement .......................................................................................... 43

Rice, William, Associate Professor of Law, University of Tulsa College of

Law ........................................................................................................................ 12

Prepared statement .......................................................................................... 13

PPENDIX

Cromwell, Hon. Cedric, Chairman, Mashpee Wampanoag Tribe, prepared

statement .............................................................................................................. 77

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(1)

THE INDIAN REORGANIZATION ACT—75

YEARS LATER: RENEWING OUR

COMMITMENT TO RESTORE TRIBAL

HOMELANDS AND PROMOTE SELF–

DETERMINATION

THURSDAY, JUNE 23, 2011

U.S. S

ENATE

OMMITTEE ON

NDIAN

FFAIRS

Washington, DC.

The Committee met, pursuant to notice, at 2:30 p.m. in room

628, Dirksen Senate Office Building, Hon. Daniel K. Akaka,

Chairman of the Committee, presiding.

OPENING STATEMENT OF HON. DANIEL K. AKAKA,

U.S. SENATOR FROM HAWAII

The C

HAIRMAN

. The Committee will come to order.

Aloha and welcome to the Committee’s oversight hearing on the

Indian Reorganization Act—75 Years Later: Renewing Our Com-

mitment to Restore Tribal Homelands and Promote Self-Deter-

mination.

Sometimes in Indian policy, it is necessary to look at the past in

order to move forward. That is what we will be doing today by ex-

amining the original intent and legislative history of the Indian Re-

organization Act and subsequent amendment to the Act.

When Congress enacted the Indian Reorganization Act in 1934,

its intent was very clear. Congress intended to end Federal policies

of termination and allotment and begin an era of empowering

tribes by restoring their homelands and encouraging self-deter-

mination. Those fundamental goals still guide Federal Indian pol-

icy today.

When Congress amended the Indian Reorganization Act in 1994,

it reaffirmed the original intent of the IRA and ensured that all

tribes would be treated equally, no matter when their relationship

with the Federal Government was recognized.

In addition, the Congress explicitly rejected the Department of

Interior Solicitor’s opinions implementing policies which divided

tribes into separate classes. Since 1934, the IRA has stood as the

bedrock of Federal Indian policy.

However, a Supreme Court decision in 2009 narrowly construed

the text of the IRA and completely up-ended the status quo, which

had existed for 75 years, contrary to Congressional intent, legisla-

tive history, and affirmative actions by the Administration.

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I have a great deal of respect for the Supreme Court and the

hard work that they do. However, when the court gets it wrong, it

is the responsibility of Congress to fix it. That is why this Com-

mittee at its first business meeting in the 112th Congress passed

a Carcieri fix out of Committee. My Carcieri fix bill does nothing

more than to simply restore the status quo that existed for 75

years and affirms the original intent of the Indian Reorganization

Act to restore tribal homelands and empower tribal governments to

exercise self-determination.

My colleagues and I understand the importance of this bill to In-

dian Country and our Committee to doing everything we can to

pass a clean Carcieri fix this session of Congress.

At this point, I would like to ask Senator Barrasso if he has any

opening statement to make.

STATEMENT OF HON. JOHN BARRASSO,

U.S. SENATOR FROM WYOMING

Senator B

ARRASSO

. Thank you very much, Mr. Chairman.

Good afternoon and thank you for holding this hearing on the In-

dian Reorganization Act. I want to keep my remarks brief because

we have three panels and eight witnesses who are here today to

testify.

First, as always, I want to thank our witnesses for agreeing to

assist the Committee in its inquiry into the Indian Reorganization

Act. I know it is not easy for people to take time out of their reg-

ular lives not only to travel to the Nation’s capital, which is obvi-

ously a great distance, but also to prepare their testimony. So we

appreciate it very much.

I would like to make just a couple of comments regarding the

subject of today’s hearing as well, Mr. Chairman. I know and ap-

preciate the importance of homelands to Indian people. Certainly,

that concept, the concept of homelands, means many things and it

captures many different values, historic, cultural, religious, spir-

itual and many other values.

Some of the witnesses here today will be speaking to these as-

pects of the Act. And I look forward to hearing what everyone has

to say.

The Act addresses other issues as well, including the issue of

governance. One very important provision of the Act establishes a

process for tribes to organize under a new constitution. I under-

stand that the two Wind River tribes in Wyoming chose not to

adopt an Indian Reorganization Act constitution. However, many

other tribes around the Country accepted the Act and adopted con-

stitutions under this process.

So I would like to hear how these constitutions are working some

75 years after the fact. Are many of them still in effect? And if so,

do they serve the tribes well? Or have tribes adopted changes to

these constitutions to meet new challenges and new needs?

I ask these questions in part because the Committee has been

looking at various aspects of trust land reform, and looking at mod-

ernizing the laws applicable to Indian trust lands. The HEARTH

Act is an example of that, as is the Indian Energy Initiative that

we have been working on. Those are a couple of things. These

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measures would involve much greater control and involvement of

tribal governments in trust land management.

So I would like to hear from tribes on these questions. And with

that, I would like to thank you, Mr. Chairman, and thank the wit-

nesses and look forward to the hearing today.

The C

HAIRMAN

. Thank you very much, Senator Barrasso, my

friend and colleague, as we move this Committee.

With that, I want to welcome the witnesses. I appreciate that

you have all traveled far to come here and look forward to hearing

your testimony on this very important matter.

We have three panels to hear from today, so I ask that you limit

your oral testimony to five minutes. Your full written testimony

will be included in the record.

Also, the record for this hearing will remain open for two weeks

from today, so we welcome written comments from any interested

parties.

I want to, of course, move this along and say that we have a

panel that can talk about the past and what it has been all about.

We will hear from our distinguished panel.

I welcome our first panel of witnesses to the Committee today:

Professor Frederick Hoxie, the Swanlund Chair and Professor of

History at the University of Illinois; Professor William Rice, Asso-

ciate Professor of Law at the University of Tulsa College of Law;

and I also want to welcome Professor Carole Goldberg, the Jona-

than D. Varat Professor of Law at the UCLA School of Law.

So that is our panel. Again, I want to welcome all of you.

Mr. Hoxie, will you please proceed with your testimony?

STATEMENT OF FREDERICK E. HOXIE, SWANLUND CHAIR/

HISTORY PROFESSOR, UNIVERSITY OF ILLINOIS

Mr. H

OXIE

. Thank you, Mr. Chairman. Thank you for this oppor-

tunity.

When Congress approved the Indian Reorganization Act in June,

1934 it articulated and advanced three broad goals. First, the IRA

was intended to end allotment, the government program of individ-

ualizing and privatizing American Indian lands. As a national pol-

icy, allotment had been initiated in 1887 by the Dawes Severalty

Act and had facilitated the transfer of tens of millions of acres of

Indian land from native to non-native ownership.

While the consequences of this devastating loss continues to

plague Indian people down to the present day, the IRA ended Fed-

eral support for the continued erosion of American Indian commu-

nity resources.

Second, the IRA made possible the organization of tribal govern-

ments and tribal corporations. These provisions of the law created

a mechanism by which native people might establish federally rec-

ognized entities that could govern, develop and speak for their com-

munities. From 1934 onward, tribal governments would be a con-

stant visible factor in policymaking.

Third, by ending the allotment policy and providing for the fu-

ture development and even expansion of reservation communities,

Congress endorsed the idea that individuals could be both U.S. and

tribal citizens. For the first time in the Nation’s history, the Fed-

eral Government codified in a general statute the idea that tribal

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citizenship was compatible with national citizenship and that In-

dian-ness would have a continuing place in American life. This ac-

tion brought forward a new generation of American Indian leaders.

Over the past eight decades, the implementation of the IRA has

generally supported these three goals. The individualization of in-

digenous community resources has been halted. Tribal institutions

have flourished. And Indian people have asserted themselves as

citizens of and advocates for their tribe, without jeopardizing their

status as citizens of this Nation.

As a consequence, in the years since 1934, despite periods when

policymakers ignored Indian voices, and despite the persistence of

discrimination, unacceptable rates of poverty and the ongoing cri-

ses in the delivery of social services, native people have not been

viewed by policymakers as a vanishing or deficient people who

must give up their traditional cultures and identities in order to

become American.

Since 1934, Indians across the Nation have been free to be active

citizens in their communities and to assert tribal interests and trib-

al rights without being labeled unpatriotic, backward or uncivi-

lized. We have banished the long-held Indian Office view, neatly

summarized by one Wisconsin Indian Agent a century ago, that

Native Americans, ‘‘cannot improve in civilization and remain Indi-

ans.’’

When assessing the implications of the United States Supreme

Court’s 2009 decision in Carcieri, I hope the Members of this Com-

mittee will consider these original objectives of the Indian Reorga-

nization Act. The passage of this statute marked an important

turning point in the history of relations between the United States

and America’s indigenous peoples. An ambitious Commissioner of

Indian Affairs and an energetic new Administration worked collec-

tively with a skeptical but cooperative Congress to forge a general

statute that ended a half-century assault on Indian landholdings,

initiated the creation of modern tribal governments, and called

forth a new generation of Indian political leaders.

Spurred by the disastrous conditions created by the government’s

own misguided policies over the previous 50 years, encouraged by

Indian leaders, and framed by experienced legislators, the new law

marked a brave decision to turn away from paternalism and to em-

brace a new Federal policy based on mutual respect and faith in

the future of American Indians as citizens of tribes and of the

United States.

In whatever reforms or initiatives you and your colleagues con-

sider in the weeks ahead, I hope that you will both remember and

honor your predecessors’ remarkable and courageous achievement.

Thank you.

[The prepared statement of Mr. Hoxie follows:]

REPARED

TATEMENT OF

REDERICK

E. H

OXIE

, S

WANLUND

HAIR

ISTORY

ROFESSOR

, U

NIVERSITY OF

LLINOIS

Like any statute, the Indian Reorganization Act (IRA) attracted support from leg-

islators who did not agree with one another politically or on every aspect of policy-

making. Nevertheless, when Congress approved this law in June, 1934, it articu-

lated and advanced three broad goals. The clarity of those goals (and their persist-

ence over the past eight decades) enables us to define quite clearly the core intent

of this landmark legislation.

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Annual Report of the Commissioner of Indian Affairs, 1875, 871.

Quoted in Frederick E. Hoxie, A Final Promise: The Campaign to Assimilate the Indians,

1880–1920 (Lincoln: University of Nebraska Press, 1984), 155.

Ibid., 157–8.

First, the IRA was intended to end allotment—the government program of indi-

vidualizing and privatizing American Indian lands. As a national policy, allotment

had been initiated in 1887 by the Dawes Severalty Act and had facilitated the trans-

fer of tens of millions of acres of Indian land from Native to non-Native ownership.

While the consequences of this devastating loss continue to plague Indian people in

the United States down to the present day, the IRA ended federal support for the

continued erosion of American Indian community resources.

Second, the IRA made possible the organization of tribal governments and tribal

corporations. These provisions of the law created a mechanism by which Native peo-

ple could establish federally-recognized entities that could govern, develop—and

speak for—their communities. From 1934 onward, tribal governments would be a

constant, visible factor in policymaking.

Third, by ending the allotment policy and providing for the future development,

and even expansion, of reservation communities, Congress endorsed the idea that

individuals could be both U.S. and tribal citizens. For the first time in the nation’s

history, the Federal Government codified in a general statute the idea that tribal

citizenship was compatible with national citizenship and that ‘‘Indianness’’ would

have a continuing place in American life. This action brought forward a new genera-

tion of Native American leaders.

Over the past eight decades the implementation of the IRA has generally sup-

ported these three goals: the individualization of indigenous community resources

has been halted, tribal institutions have flourished, and Indian people have asserted

themselves as citizens of, and advocates for, their tribes without jeopardizing their

status as citizens of this nation. As a consequence in the years since 1934, despite

periods when policymakers ignored Indian voices, and despite the persistence of dis-

crimination, unacceptable rates of poverty, and ongoing crises in the delivery of so-

cial services, Native people have not been viewed by policymakers as a ‘‘vanishing’’

or deficient people who must give up their traditional cultures and identities in

order to become ‘‘Americans.’’ Since 1934 Indians across the nation have been free

to be active citizens in their communities and to assert tribal interests and tribal

rights without being labeled unpatriotic, backward of ‘‘uncivilized.’’ We have ban-

ished the long-held Indian Office view, neatly summarized by one Wisconsin Indian

agent a century ago, that Native Americans ‘‘cannot improve in civilization and re-

main Indians.’’

In short, the IRA was intended to initiate a new era in which the United States

would support Indian people and tribal communities as continuing and dynamic

members of a modern American nation. This aspect of the law—together with the

national government’s pledge to sustain an ongoing and mutually-satisfactory rela-

tionship with Native tribes—remains its crowning achievement. The fulfillment of

this goal is the reason, despite economic hardships and policy disputes, that the

United States has been a model for other democracies struggling to forge fair, just,

and mutually respectful relations with the indigenous communities within their bor-

ders.

Objective One: Stopping Allotment and the Individualization of Tribal

Resources

The policymakers who crafted the Indian Reorganization Act were acutely aware

of the devastating consequences of allotment. They understood that the previous

generation of Indian Office and congressional leaders had been eager to accelerate

the division of tribal lands and the removal of the restrictions the Dawes Act had

originally placed on the sale and lease of individual allotments. Their predecessors

had applauded in 1903 when the Supreme Court in Lone Wolf v. Hitchcock had en-

dorsed Congress’s ‘‘plenary authority’’ over Indian lands. That decision endorsed the

unilateral abrogation of treaties and the rapid dissolution of collective landowner-

ship (something that had not been provided for in the original allotment law). ‘‘If

you wait for the tribe’s consent in these matters,’’ Commissioner of Indian Affairs

William A. Jones declared at the time, ‘‘it will be fifty years before you can do away

with the reservations.’’

Jones’s colleagues in Congress agreed, endorsing the re-

moval of trust restrictions that would have kept allotments in Indian hands. Con-

necticut’s senior Senator Orville Platt spoke for many when he declared that ‘‘the

easiest Indians in the country to civilize’’ were those who had ‘‘no money, no funds,

no land, no annuities.’’

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Quoted in R. David Edmunds, Frederick E. Hoxie, and Neal Salisbury, The People: A History

of Native America (Boston: Houghton Mifflin, 2007), 371. The original report is The Problem of

Indian Administration: Report of a Survey Made at the Request of Honorable Hubert Work, Sec-

retary of the Interior...(Baltimore: Johns Hopkins Press, 1928).

Legislators in 1934 were aware that their predecessors’ assumption that allot-

ment—and even poverty—would spur Indian ‘‘progress’’ had proven tragically incor-

rect. Not only had the Indian estate shrunk from 151 million acres to 52 million

acres between 1880 and 1933, but this transfer of assets from Indians to non-Indi-

ans had not produced economic prosperity—or even minimal security. In 1928, The

Meriam Report, a federally-funded study of social and economic conditions among

American Indians, found that ‘‘the overwhelming majority of Indians are poor, even

extremely poor.’’ Among its findings:

Health: ‘‘The health of the Indians as compared with that of the general popu-

lation is bad...[T]he death rate and the infant mortality rate are high. Tu-

berculosis is extremely prevalent.

Living Conditions: ‘‘...are conducive to the development and spread of

disease...[T]he diet of the Indians is bad...[T]he use of milk is rare, and

it is generally not available, even for infants.

Economic Conditions: ‘‘The income of the typical Indian family is low and

earned income extremely low. . . . [T]he number of real farmers is compara-

tively small....’’

Seventy one percent of Indians reported a total income of less than $200 per year;

the commission also noted that some income statistics were so low as to be ‘‘unbe-

lievable.’’

The appalling statistics in the Meriam Report proved that the rosy predictions of

progress over the previous three decades had been both self-serving and wrong. As

legislators and Indian Office leaders in the Hoover administration struggled to re-

spond to the growing realization that a dramatic new policy initiative was needed,

the Great Depression hit and conditions grew worse. Native Americans faced crush-

ing hardship and even starvation. In 1931 the Indian Office—with no further re-

sources of its own—was forced to call on the American Red Cross and the U.S. Army

to supply food to needy Indians.

Franklin Roosevelt’s inauguration in 1933 offered the prospect of change. More-

over, his appointment of long-time Indian Office critic John Collier to position of

Commissioner of Indian Affairs indicated that a major new policy initiative would

soon be forthcoming. Collier, an idealistic former New York City social worker,

would serve as Commissioner of Indian Affairs for twelve years, longer than anyone

in American history. Founder and president of the American Indian Defense Asso-

ciation (AIDA), the new commissioner had spent most of the 1920s rallying environ-

mentalists, humanitarians and sympathetic politicians to the cause of protecting In-

dians from exploitation and abuse. His correspondents during that decade included

the popular western writer Mary Austin, Roger Baldwin, the founder of the Amer-

ican Civil Liberties Union, progressive reformers Arthur Morgan, Robert Ely and

Harold Ickes (a Chicago attorney who later became Roosevelt’s Secretary of the Inte-

rior), and political insurgents Robert LaFollette and William Borah. The AIDA was

generously supported by the General Federation of Women’s Clubs and wealthy pa-

trons in California and New York.

Collier’s reform ideas were embodied in a legislative proposal drafted during the

winter of 1933 by Felix Cohen and a team of lawyers in the Interior Department.

The son of philosopher Morris Cohen, Felix held a law degree from Columbia and

a Ph.D. in philosophy from Harvard and was deeply sympathetic to the commis-

sioner’s desire to use federal power to protect and rehabilitate Native communities.

Cohen and Collier believed the most effective method for accomplishing this goal

was an ambitious federal initiative to end allotment, sponsor federally-sanctioned

tribal governments and promote indigenous leaders. They hoped that their reforms

would stop the erosion of Indian resources while facilitating the consolidation of

tribal land holding and the development of modern and productive tribal enter-

prises.

Collier’s February, 1934, draft of the IRA ran to forty-eight pages and included

provisions for a national court of Indian Affairs, and the granting of extensive gov-

ernmental powers to the new reservation governments. Among the proposed powers

were the authority to condemn reservation land owned by tribal members, the right

to manage Indian Office personnel, and the privilege of selecting the particular fed-

eral services each community felt were most appropriate to their needs. Several con-

gressional leaders and many in the Indian service responded to Collier’s proposal

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The best recent analysis of the final bill and its relation to Collier’s original proposal is in

Rusco, A Fateful Time, 255–281.

Exact figures are difficult to retrieve, but the Indian Office budget for 1931 stood at $28 mil-

lion and the 1940 appropriation was $37 million. See Philp, John Collier’s Crusade for Indian

Reform, 96 and The First American, March 16, 1940, 5. Both figures are in current dollars; not

adjusted for inflation.

See Hearings on S.2744 and S.3645 Before the Senate Committee on Indian Affairs, 73rd

Congress, 2 Session, 241 (1934). This aspect of the IRA is discussed at length in BRIEF OF

Continued

with shock, arguing that it represented too radical a shift from past practices. Col-

lier responded to this criticism by organizing nine regional ‘‘Indian congresses’’

which were held during March and April, 1934. At these congresses—unprecedented

in federal Indian policymaking—the commissioner and his representatives explained

the provisions of the proposed law and tried to rally support for it from tribal dele-

gates. The congresses revealed significant pockets of support for Collier’s bill among

Indian communities, but they also generated new questions and concerns. What of

existing business committees and tribal councils? How would the new law affect

treaty rights and claims cases? And how would the rights of individual Indian land-

holders be protected from the power of the new tribal governments? In the wake

of these meetings, Collier revised his bill and began negotiations with key congres-

sional leaders.

Negotiations between Collier and Indian Affairs Committee leaders proceeded

during April and May, and the bill won final approval on June 18. Throughout this

process, Commissioner Collier retained his basic commitment to ending allotment

and launching federally-recognized tribal councils that would empower American In-

dians to govern their own communities under federal supervision and launch new

economic development initiatives. Everything else was negotiable. As Collier and

congressional leaders struggled over the final bill, President Roosevelt, acting at the

behest of Interior Secretary Harold Ickes, intervened with a letter stressing the ur-

gency of the situation. FDR warned that if the negotiators failed to act, the nation

would soon witness the ‘‘extinction of the race.’’ It was this image of a national trag-

edy of vanishing Indians that made the difference. Burton K. Wheeler, Chair of the

Senate Indian Affairs Committee, told the President ‘‘something can be worked out’’

and a few weeks later the legislation was approved.

The final bill was less than half the length of the commissioner’s original draft

but it embodied the key elements of Collier’s and Cohen’s original vision: the end

of allotment, the creation of tribal governments, and an endorsement of tribal citi-

zenship and tribal culture.

The more controversial aspects of Collier’s original pro-

posal—a national Indian court and expansive powers for tribal governments—had

been jettisoned.

The three central elements of the IRA were also supported by ancillary New Deal

programs. Both Collier and congressional leaders supported special programs within

the Civilian Conservation Corps and the Works Progress Administration, for exam-

ple, that created jobs on reservations for day laborers and construction crews. These

programs stimulated local economies and built both new buildings and improved

reservation infrastructure. Other agencies provided funding for reservation schools

and conservation projects and medical facilities, while the Indian Office won a 30

percent in its annual budget.

All of this activity provided new opportunities for

tribal leaders and new forums for the discussion of the Native future within the

United States.

Given the desperate circumstances that produced the IRA, it is not surprising

that the new statute set an ambitious, national agenda for the rehabilitation of In-

dian communities. Indeed, at a May hearing shortly before the bill was approved,

Collier explained the thinking behind the new law’s proposed Section Five which au-

thorized the Secretary of the Interior to acquire land ‘‘for the purpose of providing

land for Indians.’’ Through his many years of advocacy—and at the several regional

congresses he had just completed-Collier had spoken about the suffering of Indian

communities that had become landless during the allotment era. ‘‘Wandering bands

of Indians who have no reservation at all,’’ he declared, would be helped and reha-

bilitated on new reservations. Following passage of the act, a number of groups who

fit this description organized tribal governments under the IRA. These included a

tribe that previously had had no resident agent (Saginaw Chippewa), a tribe whose

lands had been largely abandoned (Pojoaque Pueblo), tribes that no longer con-

trolled any trust land (Bay Mills), and long-neglected groups such as the Catawba

Indian Tribe of South Carolina and the Alabama and Coushatta Indians in Texas.

In the wake of the law’s passage, the Indian Office also created four new reserva-

tions in Nevada to accommodate tribes there.

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HISTORIANS FREDERICK E. HOXIE, PAUL C. ROSIER AND CHRISTIAN W. MCMILLEN

AS AMICI CURIAE SUPPORTING RESPONDENTS, Carcieri v.Kepthorne, 07–526, 10–14.

U.S. Statutes at Large, 49:1967.

Quoted in Francis P. Prucha, The Great Father: The United States Government and the

American Indians (Lincoln: University of Nebraska, 1984) II, 971.

See John Collier, From Every Zenith (Denver: Sage Books, 1963), 126, 123, 119.

John Wesley Powell to Senator Henry Teller, March 23, 1880, quoted in Hoxie, A Final

Promise, 24.

The intention of the IRA’s framers to stop the erosion of tribal resources and

begin the process of community rehabilitation is also made evident by the fact that

in 1936, acting at Collier’s request, Congress approved the Oklahoma Indian Wel-

fare Act and the Alaska Reorganization Act. The Oklahoma law contained a version

of the IRA’s original Section Five, empowering the Secretary of the Interior to ac-

quire land that ‘‘shall be taken into trust for the tribe, band, group or individual

Indian for whose benefit such land is so acquired...’’

The Alaska Act was modi-

fied to fit the distinctive conditions in that territory, but the Commissioner declared

that the law’s purpose was consistent with the IRA: to protect Native groups ‘‘who

in the past have seen their land rights almost universally disregarded...and

their economic situation grow each year increasingly more desperate.’’

Recent critics have charged that the IRA did little to restore the millions of acres

Indian people had lost during the four decades of allotment or to provide material

assistance to Indian farmers who had been marginalized by their mechanized non-

Indian neighbors. These critics add that the law did little to end the pernicious prac-

tice of leasing Indian lands to non-Native farmers, ranchers and mineral resource

developers, a pattern that had begun in the early decades of the 20th century and

which continues to siphon resources from tribal homelands. Many of these criticisms

are warranted, but there can be no doubt that the first objective of the Indian Reor-

ganization Act was to stop the dissolution of the Indian estate and to begin the proc-

ess of community rehabilitation in every Native American community in the nation.

Objective Two: The Organization of Tribal Governments

Inspired both by his experience as a social worker in the immigrant neighbor-

hoods of New York City in the first decades of the nineteenth century, and by his

experience as an Indian policy activist in the 1920s, John Collier believed that the

most effective agents of community development were leaders drawn from the com-

munity itself. In New York he had been an advocate of settlement house organiza-

tions and community celebrations of group identity. His Indian work had begun, fa-

mously, during a Christmas visit to Taos Pueblo in 1920. There he made what he

called his ‘‘earth shaking discovery of American Indians.’’ Witnessing winter cere-

monies at this mountaintop village, he later recalled, he saw ‘‘face to face, primary

social groups’’ that proved to him ‘‘deep community yet lived on in the embattled

Red Indians.’’ In the dozen years that followed, Collier held to that insight, insisting

to paternalistic missionaries, authoritarian BIA officials and doubting legislators

that Native communities—which had maintained their distinctive identities through

centuries of assault and dispossession—represented a ‘‘new hope for the Race of

Man.’’

It is easy at the remove of nearly a century to scoff at the image of an idealistic

New York social worker falling in love with Indians in the winter chill of a Taos

winter ceremony. But however romantic it may have been, Collier’s Taos vision

stayed with him until the day he died—ironically—at Taos, in 1968. More impor-

tant, Collier’s rejection of paternalism—the idea that white people knew what was

best for Indians—set him apart from most of the major policy figures of his day.

In 1920, missionaries and mission societies—all determined to replace Native ‘‘pa-

ganism’’ with Christianity—dominated Indian policymaking. Few of them took Col-

lier seriously. Over the next decade, however, both the growth of popular interest

in Native American culture, and the growing sense that authoritarian efforts to

eradicate Indian lifeways were both unfair and domed to fail, moved popular opinion

in Collier’s direction.

By the time John Collier and his congressional adversaries were negotiating the

details of the Indian Reorganization Act, his idealistic rhapsodies had become main-

stream. For one thing, the academic study of American Indians had revealed that

earlier interpretations of Native culture as backward and primitive were incorrect.

In the era of allotment, anthropologists had applauded the eradication of Indian cul-

tures. John Wesley Powell, for example, the Smithsonian Institution’s preeminent

expert on Native Americans wrote a key congressional leader in 1880 that the only

way the United States’ ‘‘debt’’ to the Indians could be repaid was ‘‘by giving to the

Indians Anglo-Saxon civilization, that they may also have prosperity and happiness

under the new civilization of this continent.’’

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Franz Boas to Franklin D. Roosevelt, March 16, 1933, quoted in Prucha, The Great Father,

II, 939.

Elaine Goodale Eastman, ‘‘Does Uncle Sam Foster Paganism?’’ Christian Century 51 (Au-

gust 8,1934), 1016–1018.

By 1934 Powell’s successors in museums and universities had come to believe that

the peoples of the world had created a variety of distinct and worthy cultural tradi-

tions and that each deserved to be appreciated on its own terms. Franz Boas, the

leading anthropologist of the day, expressed this view in a letter to President Roo-

sevelt on the eve of his inauguration. Urging the President-elect to chart a new

course in Indian affairs, Boas declared that throughout its history the Indian Office

had continuously made ‘‘one fundamental error.’’ It had failed ‘‘to understand the

impossibility of overcoming the deep influence that the old ways of life still exert

upon the Indian community. Whoever is in charge of the Bureau of Indian Affairs,’’

he wrote, ‘‘ought to understand this fact.’’

While many in Congress continued to support the work of missionaries and others

who sought to ‘‘uplift’’ the nation’s Indian communities, the Anglo-Saxon idealism

of Powell and his contemporaries had largely vanished by the time of the New Deal.

Burton Wheeler, Chair of the Senate Indian Affairs Committee, a former labor law-

yer who had been Robert LaFollette’s running mate on the Progressive Party ticket

in 1924, was dubious about the effectiveness of Collier’s ideas, but he had little sym-

pathy for the commissioner’s missionary critics. (One published an article in the

Christian Century magazine entitled, ‘‘Does Uncle Sam Foster Paganism? ’’

) With

the White House urging passage, Wheeler and his congressional colleagues scaled

back many of the most ambitious features of Collier’s original bill—and added an

amendment excluding Oklahoma from its provisions—before agreeing to support it.

In the decade following the passage of the IRA, Senator Wheeler and other west-

ern legislators became critical of Collier and his administration of Indian Affairs.

Many charged that the commissioner was a social engineer who was perpetuating

Indians in a state of dependency. Others believed his programs were wasteful and

too expensive. By the end of the 1930s, the commissioner became a lightning rod

for opponents of the New Deal. But despite this shifting political climate, there was

little appetite in Congress for a return to the authoritarian policies of the allotment

era. Tribal governments were often hobbled by hostile BIA administrators and tiny

budgets, but few in Congress questioned the value of Native organizations or the

importance of some form of Indian participation in policymaking. Even the attacks

on tribal governments that led to the termination of several tribes in the 1950s were

predicated on the assumption that Indians should consent to any shift in their sta-

tus. When termination was stopped and eventually reversed, its critics’ most power-

ful argument was that Indian leaders and tribal organizations opposed it.

Despite disagreements among the authors of the IRA over the powers to be grant-

ed the new tribal governments, the law ratified a new consensus regarding the im-

portance of tribal organizations and Indian leaders and underscored the necessity

of involving Indian people in the formulation of policies affecting their communities.

Debate over the scope of Indian and tribal leadership in policymaking continues into

our own time, but the IRA defined for the first time a new, national approach to

policymaking that would include Indian people and organizations regardless of their

location or history.

Objective Three: Redefining Indian Citizenship

During his negotiations with Congress over his proposal, John Collier had agreed

to an amendment mandating local referendums on the IRA before it could be imple-

mented at any agency. This fact, together with the speed with which the IRA was

proposed and passed, meant that the implementation of the new law would be

marked by extensive, grass-roots debate and the involvement of tribal leaders from

every corner of the nation.

At the time of the IRA’s passage, hundreds of Indian leaders were prepared and

eager to participate in these discussions regarding the future of their communities.

During the previous two decades, most tribes had organized BIA-approved ‘‘business

committees’’ or tribal councils. The Indian Office articulated no specific agenda for

these groups and gave them little authority. Nevertheless, these organizations pro-

vided a forum and training ground for aspiring community leaders (and likely pro-

ducing most of the participants in Commissioner Collier’s ‘‘congresses’’ in the spring

of 1934). In addition, by 1930 nearly two hundred cases had been brought to the

U.S. Court of Claims by tribes charging federal officials with mismanagement of

their resources or failure to pay damages under existing treaties and agreements.

The most famous of these was U.S. v. Sioux Nation (filed first in 1923 and ulti-

mately settled—in court—in 1980), but no matter their size or fame, each one

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See Parker, Singing an Indian Song, 71–2 and D’Arcy McNickle, ‘‘In Maine,’’ Indians at

Work, October 1,1937, 15–18. McNickle’s travels can also be deduced from his comments in a

speech to the Missouri Archaeological Society. See D’Arcy McNickle, ‘‘The Indian Today,’’ Mis-

souri Archaeologist, v.5, n.2 (September, 1939), 1–10.

D’Arcy McNickle, ‘‘Four Years of Indian Reorganization,’’ Indians at Work, v.5, n.11 (July,

1938), 4–11.

brought together generations of tribal leaders and allied lawyers to lobby, gather

evidence and rally community support for the effort. For these reasons, an entire

generation of energized Indian citizens stood poised to participate in the IRA imple-

mentation process, a process which dramatically energized the political life of Native

America.

In the first year following the law’s passage, the Crows and Navajos decided

against organizing under the IRA. The largest Sioux reserves—Pine Ridge and Rose-

bud—voted narrowly to accept the new law in hotly contested balloting held during

the same period. Among these larger tribes, opponents of the IRA focused their at-

tacks on the BIA and its history of incompetence. Their complaints ranged from crit-

icism of the campaign to reduce erosion on the Navajo reservation by reducing the

size of family sheep herds, to divisions between older traditionalists and young,

English speaking leaders, to concerns—expressed most vehemently among the

Sioux, Crow and New York communities—over the impact of the new law on the

force of existing treaties. But while the nature of this opposition varied, every com-

munity faced a similar dilemma: deciding between the promise of new federal pro-

grams and their accompanying subsidies for tribal development, and their long-

standing distrust of Washington bureaucrats appearing to offer them once again a

‘‘solution to the Indian problem.’’

During the New Deal years, the Indian Office sponsored a total of 258 reservation

referendums on the IRA. Two-thirds of the tribes voted to accept the new law, but

heavy negative votes among large tribes such as the Navajos and the Sioux meant

that of the total ballots cast in all IRA elections, only 40 percent were marked ‘‘yes.’’

Still, this disagreement energized the political life of countless Native communities,

creating challenges for older leaders and bringing dozens of younger men and

women into the limelight. Among the latter group was D’Arcy McNickle, a young

aid to commissioner Collier who had grown up on the Flathead Reservation in

northwestern Montana. McNickle became the commissioner’s most senior American

Indian advisor. Over the course of the 1930s, he also became one of his agency’s

principal representatives in the campaign to win ratification of the IRA.

At first—probably because of his youth—McNickle was sent to remote commu-

nities where Indians were poor, vulnerable and likely to welcome the government’s

presence. He traveled to North Dakota to meet with the Missouri River tribes at

Fort Berthold and with landless Crees and Ojibwes near Great Falls, Montana. He

traveled to Iowa to meet with the tiny Sac and Fox tribe and to Maine where he

discovered ‘‘a rather forlorn band of Algonquin-speaking Indians.’’

Wherever he traveled, McNickle presented himself as a loyal defender of the Com-

missioner’s programs. He wrote in 1938, for example, that, ‘‘In years past, the sea-

sons came and went.’’ McNickle wrote, but ‘‘this year, for some Indians, there is a

difference.’’ The ‘‘difference,’’ he declared, was the Indian Reorganization Act under

which ‘‘tribes have become organized...money has gone into tribal treasuries,

land has been purchased, [and] students have secured loans to attend colleges.’’ He

cited federal money distributed to tribes, land purchased by new reservation govern-

ments, and scholarships awarded to Indian students. ‘‘Something has started,’’ he

observed, ‘‘and here is the general direction in which it moves.’’

But McNickle was not simply Collier’s publicist. While he supported the adminis-

tration’s program, his rapid education in the daily reality of tribal life quickly

pushed him in a more practical direction. Like other tribal leaders of his day, he

found himself participating in an ever-widening public discussion of Indian affairs.

He wrote in 1938, for example, that ‘‘What has been done is only a fragment of the

task remaining.’’ The program, ‘‘is not a simple matter of organizing tribes and lend-

ing money to them,’’ he added. ‘‘They will need, for several years, as much encour-

agement and assistance as can be given them.’’ He cited the need for ongoing sub-

sidies for tribal operations, money for land purchases, and support for tribal police

and courts. In his view, the new law had initiated a process of community revitaliza-

tion that was creating a rapidly-multiplying set of needs among the tribes. The as-

sertion of these needs ran straight into—and over—the patronizing racial attitudes

that had long pervaded Indian policymaking in Washington, D.C.

Looking back on the New Deal era from the perspective of the 1950s, McNickle

wrote that ‘‘If one sees Indians as savages, or the often used euphemism ‘‘children,’’

perhaps no other view and no other course of action are possible than to work for

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Harold E. Fey and D’Arcy McNickle, Indians and Other Americans: Two Ways of Life Meet

(New York: Harper and Brothers, 1959), 146–7.

The evolution of McNickle’s view of himself as an Indian advocate was also evident in his

decision in 1939 to sign on to a separate statement issued by Indian delegates at a U.S.-Cana-

dian conference on Indian policy. See Donald Smith, ‘‘Now We Talk—You Listen,’’ Rotunda

(Fall, 1990), 48–52.

Kenneth R. Philp, editor, Indian Self Rule: First Hand Accounts of Indian-White Relations

From Roosevelt to Reagan (Salt Lake City: Howe Brothers, 1986), 90, 91. For a description of

Seneca and Iroquois New Deal programs, see Hauptman, The Iroquois and the New Deal, 106–

135.

their extermination. . . . At the very heart of the Indian problem’’ he added, was

‘‘the need for land and [financial] credit.’’ Outsiders who did not understand this—

even those who rhapsodized over the beauty of Indian ceremonies—condemned the

tribes to a future of picturesque powerlessness—or worse.

The IRA brought the

tribes’ need for ‘‘land and credit’’ sharply into focus and initiated a rapid expansion

of activism among Indian leaders at both the local and national level.

The new

law taught the nation a fundamental lesson that was news to many policymakers:

Indians are not children.

D’Arcy McNickle’s career illustrates how dramatically the policymaking arena

changed during the New Deal. He became a national figure in Indian affairs during

the 1930s, and, in 1944, a central organizer of the National Congress of American

Indians (NCAI). He remained a prominent figure in that organization well into the

1960s. He was also one of the principal organizers of the 1961 American Indian Chi-

cago Conference—at that time the largest gathering of Native leaders ever held in

North America—and a pioneer in the infant field of Native American Studies.

By the end of World War II, an entirely new community of Native leaders was

coming onto the scene. Their activism had begun during the implementation of the

IRA in the 1930s, but was also fueled in many cases by the confidence derived from

service in World War II (and the GI Bill). Some older figures like McNickle or Ruth

Muskrat Bronson of the NCAI presented themselves as brokers between local con-

stituents and those who controlled federal agencies and resources, while younger

tribal leaders such as the Coeur d’Alenes’ Joseph Garry or the Navajos’ Sam Akeah

came forward as vigorous defenders of the relevance of Native traditions in the mod-

ern world. All were participants in a new conversation about the relationship of in-

digenous people to a complex industrial nation. Former Assistant Commissioner

Graham Holmes confirmed this view when he observed at an event held in 1984

to mark the 50th anniversary of the law’s passage, that it fixed ‘‘forever . the rights

of Indian tribes to have a government of their own.’’

The new generation of activists who emerged in the decades following 1934 estab-

lished a new standard of citizenship for American Indians. Vocal in local tribal com-

munities as well as in Washington, D.C., these activists would demand that they

both be consulted as fellow U.S. citizens and recognized as representatives of indige-

nous communities with distinctive claims on the nation. Their lives embodied the

dual citizenship they enjoyed as heirs of the New Deal era. While they recognized

tribal and regional differences among themselves, they made no distinctions regard-

ing their right to speak out on behalf of their tribes and of their rights as Ameri-

cans. They were all modern Indians, heirs of the IRA.

Conclusion

When assessing the implications of the United States Supreme Court’s 2009 deci-

sion in Carcieri v. Salazar, I hope the members of this Committee will consider

these original objectives of the Indian Reorganization Act of 1934. The passage of

this statute, which occurred almost exactly seventy-seven years ago this week,

marked an important turning point in the history of relations between the United

States and America’s indigenous people. An ambitious Commissioner of Indian Af-

fairs and an energetic new administration worked collaboratively with a skeptical,

but cooperative, Congress, to forge a general statute that ended a half-century as-

sault on Indian landholding, initiated the creation of modern tribal governments,

and called forth a new generation of Native political leaders. Spurred by the disas-

trous conditions created by the government’s own misguided policies over the pre-

vious fifty years, encouraged by Indian leaders and their supporters in the academic

and reform communities, and framed by experienced legislators, the new law

marked a brave decision to turn away from paternalism and to embrace a new fed-

eral policy based on mutual respect and faith in the future of American Indians as

citizens of tribes and of the United States. The new directions blazed with this law

established a model for other nations to follow. Therefore, in whatever reforms or

initiatives you and your colleagues consider in the weeks ahead, I hope you will both

remember and honor your predecessors remarkable and courageous achievement.

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The C

HAIRMAN

. Thank you very much, Mr. Hoxie, for your state-

ment.

Mr. Rice, please proceed with your statement.

STATEMENT OF WILLIAM RICE, ASSOCIATE PROFESSOR OF

LAW, UNIVERSITY OF TULSA COLLEGE OF LAW

Mr. R

ICE

. Thank you, Mr. Chairman, Mr. Vice Chairman. I very

much appreciate the opportunity to testify today, and would like to

note with appreciation your work on the Carcieri fix legislation as

it has gone through, and all the hearings you have conducted on

the Declaration on the Rights of Indigenous People.

They are intertwined with this idea of the IRA. The IRA was

something of a precursor to this. Prior to this, Senator Dawes had

come from Massachusetts where they had allotted the

Wampanoags and others there and had applied these principles.

And then they applied the principles of the allotment situation na-

tionwide.

That purpose, as has been said by Professor Hoxie, was to dis-

tribute the tribal land base into individual Indians; to destroy trib-

al governments; and forcibly, if you will, bring the Indians into the

American mainstream.

It did not work. The numbers that Mr. Collier brought to the

Committee when he was advocating for this bill was that Indian

tribes during the allotment era had lost over 90 million acres of

property. There were whole tribes rendered landless; 90 percent of

the lands of the Five Civilized Tribes in Oklahoma had been lost

through the allotment process.

Even the numbers of acres remaining were, if you will, not a

good indicator of what was left. He said to the Congress there were

48 million acres of land left. But of that 48 million, 20 million of

that was in reservations that had not been allotted. Another 20

million was in desert areas where allotments were unfeasible.

Seven million were already in such a bad inheritance situation that

it was up for sale. They were trying to do everything they could do

administratively to keep from selling it, but they really had no

choice under the law. They would end up having to sell.

So almost all of the allotted areas were losing their lands and

lost almost all of their lands. So it was a terrible time. It destroyed

tribal government’s ability to respond. It destroyed the Indian econ-

omy. Collier was quoted as saying that the Indian people in the

Choctaw area in Oklahoma were surviving on $47 per annum; $47

a year as a per capita income in 1934. Now, that left those people

without anything to eat.

And so this is the historical circumstance which the IRA was in-

tended to address. It did this by doing two things. One was ad-

dressing the land issue. One was addressing the paternalism

versus self-determination issue. On the land issue, the purpose was

to, one, stop the loss of existing Federal Indian land; and second,

to acquire mechanisms to restore Indian lands within the tribal

homelands within the reservation.

The third was to put that all together into a system of tribal con-

stitutions and charters where Indian tribes would have real au-

thority over their area; real self-determination that the next Ad-

ministration could not just change the policy and wipe out the trib-

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Although I am a tenured law professor at The University of Tulsa College of Law, I am ap-

pearing before this Committee in my personal capacity as a recognized authority with a back-

ground of litigation, scholarship, commentary, and teaching in the field of Federal Indian Law.

Prior to returning to law school as a professor in 1995, I spent over 16 years in the private

practice of law representing Indian tribes and tribal businesses.

Thursday, June 23 2011, 2:15 p.m., Senate Dirksen Office Building Room 628.

Thursday, June 9, 2011.

S. Hrg. 111–136, May 21, 2009.

al system. So that is what the constitutions and charters were in-

tended to do.

Now, by doing that, they thought that they would give the tribe

the real authority and real power. One of the things that was au-

thorized was tribal land acquisition in section 17, explicitly author-

ized the tribal corporations to acquire land. Section 16 implicitly al-

lowed tribal constitutional governments to acquire land.

And the fourth paragraph of section five required that all lands

acquired pursuant to the Act should be taken in the name of the

United States by the one that acquired it, and also to take that

property and make it non-taxable so it would not be lost. The pur-

pose of that was to provide protection for the tribe’s title and to

provide protection against State taxation.

So those were the primary things that this Act was designed to

do to address the land issue. There were several sections that

brought the land issue into a way of resolution. There were several

sections that prevented further loss of tribal land. All of this was

designed to improve tribal self-determination and to improve tribal

land acquisition processes.

Thank you very much.

[The prepared statement of Mr. Rice follows:]

REPARED

TATEMENT OF

ILLIAM

ICE

, A

SSOCIATE

ROFESSOR OF

NIVERSITY OF

ULSA

OLLEGE OF

Mr. Chairman, Mr. Vice Chairman, and Members of the Committee. I very much

appreciate the opportunity to testify before this Committee today

at its Oversight

Hearing on ‘‘The Indian Reorganization Act—75 Years Later: Renewing our Com-

mitment to Restore Tribal Homelands and Promote Self-Determination.’’

First I would like to note with appreciation recent Committee hearings on ‘‘Set-

ting the Standard: Domestic Policy Implications of the UN Declaration on the

Rights of Indigenous Peoples,’’

and ‘‘Examining Executive Branch Authority to Ac-

quire Trust Lands for Indian Tribes’’

which concerned the land into trust issues

created by the decision in Carcieri v. Salazar, 555 U.S. 379 (2009). I was glad to

see that S. 676 favorably reported to the full Senate and join others in urging that

it be promptly enacted. It seems to me that those matters are intertwined with the

matters which are the focus of this hearing.

One primary purpose of the IRA was to protect and restore tribal homelands by

stopping the loss of Indian lands, and by providing a number of mechanisms for the

consolidation of exist-ing lands and acquisition of additional lands upon which to re-

build strong viable Indian communities. A second primary purpose of the IRA was

to require future administrations to honor the desires of Indian people for self-deter-

mination and self-governance by authorizing reorganized tribal governments and by

creating effective federally chartered Indian business corporations to manage Indian

assets and conduct Indian businesses. To support these primary objectives, the IRA

contained provisions providing scholarships for higher education and providing In-

dian preference in government employment so that Indian people would have the

technical and professional knowledge necessary to obtain Indian service jobs, govern

themselves and their territories effectively, and operate businesses profitably. It also

provided a system of credit in order for Indian people to obtain the resources nec-

essary for these endeavors. I would like to address the historical rationale for the

Indian Reorganization Act, its enactment, and implementation during the Roosevelt-

Ickes-Collier administration. That will, I believe, give some foundation to the two

suggestions that I will make to the Committee.

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G. William Rice, Teaching Decolonization: Reacquisition of Indian Lands Within and Without

the Box—An Essay, 82 N.D. L. Rev. 811 (2006). In particular note the text of that article be-

tween pages 816–22 and 833–34 considering the language of various treaties between the

United States and Indian tribes.

Treaty with the Senecas, Mixed Senecas and Shawnees. Quapaws, Arts. 16, 20, 6 Feb. 23,

1867, 15 Stat. 513; Treaty with the Delawares, July 2, 1861, 12 Stat. 1177 (requiring that if

purchase money was not paid, land had to be returned to United States in trust for the tribe);

Treaty with the Senecas, Tonawanda Band, Art. 3, 11 Stat. 735; 12 Stat. 991, November 5, 1857

(authority to repurchase lands from the holder of ‘‘the fee’’ who had previously purchased the

Indian title).

Elk v. Wilkins, 112 US 94, (1884).

Jones v. Meehan, 175 U.S. 1, 20 S.Ct. 1, 44 L.Ed. 49, (1899).

General Allotment Act of Feb. 8th, 1887, Ch. 119, 24 Stat. 388. For a scholarly view of this

Act, see Judith Royster, The Legacy of Allotment, 27 AZSLJ 1 Spring, 1995.

See Jones v. Meehan, 175 U.S. 1, 24 (1899).

Indian General Allotment (Dawes) Act, ch. 119, 24 Stat. 388 (1887) (codified as amended

in scattered sections of 25 U.S.C., repealed by the Indian Land Consolidation Act of 2000, 114

Stat. 2007).

12S. Comm. on Indian Affairs, Hearings on S. 2755: To Grant To Indians Living Under Fed-

eral Tutelage The Freedom To Organize For Purposes Of Local Self-government And Economic

Enterprise, 73rd Cong., 2nd Sess. Part 1, Pages 17 (Feb. 27, 1934). [hereinafter Hearing on S.

2755, Part 1]; S. Comm. on Indian Affairs, Hearings on S. 2755 and S. 3645: A Bill To Grant

To Indians Living Under Federal Tutelage The Freedom To Organize For Purposes Of Local Self-

government And Economic Enterprise; To Provide For The Necessary Training Of Indians In Ad-

ministrative And Economic Affairs; To Conserve And Develop Indian Lands; And To Promote

The More Effective Administration Of Justice In Matters Affecting Indian Tribes And Commu-

nities By Establishing A Federal Court Of Indian Affairs, 73rd Cong., 2nd Sess. Part 2, Page

58 (April 28, 1934) [hereinafter Hearing on S. 2755 and S. 3645, Part 2].

Until the allotment period, Indian treaties with rare exceptions, drew boundaries

between the United States and the Indian tribal nations, or ceded some tribal lands

to the United States while reserving the remainder, or swapped lands with the

United States with the new lands to be held as Indian lands are held as a treaty

recognized title.

Only a few of the several hundred treaties actually suggest that

title to tribal lands was to be held ‘‘in trust’’ for the Tribe.

With rare exceptions,

federal statutes applicable within those Indian territories were aimed at controlling

American citizens who were interacting in trade or other capacities with Indian peo-

ple. Indian people, by and large, were not citizens of the United States absent natu-

ralization but were governed by their own laws,

and their land tenure systems

were controlled by tribal, not federal or state law.

The genesis of the Indian Reorganization Act can be traced back at least to the

General Allotment Act of 1887.

In the General Allotment Act of 1887, Congress for

the first time generally imposed American real property and inheritance law upon

many Indian territories,

forced the division of the tribal domain amongst the indi-

vidual citizens of tribes to be held by a United States title ‘‘in trust’’ for the indi-

vidual allottee and their heirs, and created a fictitious ‘‘surplus’’ of land that the

tribe could be required to sell.

The result was devastating to the Indian land base,

and tribal authority over it as tribal land and property laws were displaced by those

of the United States. In short, the idea of ‘‘trust land’’ and a non-Indian legal system

was introduced into many reservations, usually then followed by an influx of non-

Indian settlers as a result of the taking of the ‘‘surplus’’ lands that were ‘‘created’’

after the living individual Indians received an allotment. Though perhaps intended

as a benevolent measure by some, the allotment system could not have been better

designed to destroy tribal government, individualize tribal properties, and pave the

way for assimilation of Indian people, forcibly if necessary, into the mass of Amer-

ican citizens. It was remarkably effective in converting Indian lands into non-Indian

land.

In the Committee’s prior hearing, S. Hrg. 111–136, a chart at page two of the

hearing transcript shows that in 1850 Indian people owned in excess of 330,000,000

acres of land. This acreage was reduced to 156,000,000 acres by 1881 according to

that chart, a net loss during the later part of the treaty period of a bit over 50 per-

cent of the Indian lands. According to information presented to Congress by Com-

missioner Collier during the hearings on the Wheeler-Howard Indian Reorganiza-

tion Act, the administration placed the figure of tribal land ownership at the begin-

ning of the allotment period in 1887 as 138,000,000 acres of land. By 1934, Indian

land ownership had been reduced another two-thirds from 138,000,000 to 48,000,000

acres. But this did not tell the whole story. Even these shocking figures were mis-

leading. Of the 48,000,000 remaining acres, some 20,000,000 acres were in

unallotted reservations, another 20,000,000 acres were desert or semi-desert lands,

and some 7,000,000 were in fractionated heirship status awaiting sale to non-Indi-

ans.

Between 1908 and 1934 ninety percent of the lands of the Five Civilized

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H. Comm. on Indian Affairs, Hearings on H.R. 6234: A Bill to Promote the GeneralWelfare

of the Indians of the State of Oklahoma and for Other Purposes, 74th Cong., 1st Sess. 9 (April

22, 1935). [hereinafter House Hearings on IRA.]

Hearing on S. 2755 and S. 3645, Part 2, Pages 106–07 (April 28, 1934).

Lone Wolf v. Hitchcock, 187 U.S. 553 (1903).

Tribes, some 13,500,000 acres, was lost when most of the restrictions against alien-

ation and taxation of those lands were removed.

Seventy-two thousand out of

101,000 Indians of the Five Civilized Tribes had been made landless by 1934, and

were thrown in Collier’s words ‘‘virtually into the bread line.’’ The allotments which

remained in Indian ownership were often held in a fractionated heirship where no

owner of the land could use it. This resulted in a situation where the only adminis-

trative recourse was to sell the lands and divide the money, or lease the land to

non-Indians and divide the lease money.

Of course the impact upon tribal economies, social, cultural, and governmental

systems was devastating. Coupled with the vast discretion which Congress had

placed in the Indian Office, including legal authority to simply ignore bonafide tribal

leadership and governmental structures—sometime even appointing ‘‘tribal leaders’’

hand picked by the Secretary of the Interior,

tribal lack of resources led to a situ-

ation where tribes effectively had few rights that were enforceable.

Tribes could

not hire an attorney to enforce their rights without administrative approval (even

if they could pay the legal fee), and the administrative policy regarding what tribal

organization would be ‘‘recognized’’ and what authority that organization would be

allowed to exercise depended upon the notions of the person in the Secretary’s office.

Providing significant limitations upon this administrative authority in favor of In-

dian self-determination was the second primary purpose of the IRA. Commissioner

Collier explained the reason the administration promoted this second major feature

of the IRA which was intended to address the sometimes benevolent but generally

problematic federal Indian policy which prevented long term tribal planning and

self-determination because policy changed with each new appointee to the position

of Secretary of the Interior or Commissioner of Indian Affairs:

Paralleling this basic purpose [of reversing the allotment system] is another

purpose just as basic. The bill stands on two legs. At present the Indian Bureau

is a czar. It is an autocrat. It is an autocrat checked here and there by enact-

ments of Congress; but, in the main, Congress has delegated to the Indian Of-

fice plenary control over Indian matters. It is a highly centralized autocratic ab-

solutism. Furthermore, it is a bureaucratic absolutism.

The result is that if the Indians all over the country have had any rights it has

been by the whim of the Indian Office or the Secretary of the Interior. If they

are allowed to organize it is by our whim. That organization may be wiped out

upon our whim. If they are organized, any authority they have is by our grace

and particularly in the allotted areas our bureaucratic interference is carried up

to the minutiae of life. They are embalmed in a fraternalism that does not do

them any good. On the contrary, it poisons them.

Therefore we are seeking in title I of this bill statutory authority and direction

to enable us to pass back to the Indians some measure of home rule and control

over their own lives and domestic affairs. We recognize that that home rule can-

not be accomplished through a blanket authority enacted by Congress, because

conditions are infinitely diverse. Therefore, title I directs the Secretary of the

Interior to proceed to issue a charter of self-government which may contain

more or less power to the tribes; and what may be included within the charter

is enumerated in title I.

But we do not leave to the Secretary of the Interior the final discretion to issue

charters. No tribe takes a charter unless it wants to. If it wants to go on like

it is going, it does so. If it does want a charter it petitions for it. . . .Such are

the main purposes; the object in title I being to set up a graduated scheme

whereby the Government may transfer its paternalism back to the Indians

themselves; and unless something of the kind is enacted, all we can do at best

is to go along as benevolent despots certain to be reversed by our successors

who may be just as benevolent as we are, but who may have different ideas.

It is a condition of total insecurity in which we are holding the Indians, and

they cannot be expected to build their life up in the proper way in the absence

of firm rights. They are entitled to constitutional protection, and they cannot

have it except by statutory grant by Congress.

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Hearing on S. 2755, Part 1 at 31. A reading of these entire hearings clearly indicatesthat

Collier’s vision of ‘‘home-rule’’ for Indian tribes went beyond current ‘‘self-determination’’ and

‘‘self-governance’’ program management tools. The Constitutions and Charters of Tribes were to

be binding on the Secretary, as binding as an act of Congress. See, S. Comm. on Indian Affairs,

Hearings on S. 2047: A Bill to Promote the General Welfare of the Indians of the State of Okla-

homa and for Other Purposes, 74th Cong., 1st Sess. p. 27 (April 9, 1935), President Roosevelt

did send a message supporting enactment of the Wheeler-Howard Bill. House Hearings on IRA

at 233–34, May 1, 1934.

Also referred to as the Dawes Act. 24 Stat. 388 (1887) (codified in part at 25 U.S.C. §§331–

381 (1983)). See, Judith V. Royster, The Legacy of Allotment, 27 AZSLJ 1, Spring 1995.

See, The Purpose And Operation Of The Wheeler-Howard Indian Rights Bill. (S. 2755:H.R.

7902) (A memorandum of explanation respectfully submitted to the Members of the Senate and

House Committees on Indian Affairs by John Collier, Commissioner of Indian Affairs) repro-

duced at Hearing on S. 2755, Part 1 at 16. The discussion of the Allotment Act commences at

page 17 of the hearing transcript.

House Hearings on IRA, Part 1, Page 9 (Feb. 2, 1934); Hearing on S. 2755, Part 1 at , Page

9–10, (Feb. 27, 1934.)

In a nutshell that is the bill. It has gone to the President, who has not sent

a message about it but has authorized it to be stated that he will if it is nec-

essary, and he has indicated his personal enthusiasm about it.

The first target of the Wheeler-Howard Bill, then, was clearly the allotment sys-

tem created by the General Allotment Act of 1887

with its attendant evils of loss

of tribal and allotted lands, fractionization of allotment titles, poverty, and political

disunity.

In order to protect the remaining Indian lands, Section 1 of the IRA pro-

hibited further allotment of tribal lands, Section 2 extended the trust or restricted

periods upon Indian lands until further action by Congress, Section 4 prohibited

sales of lands except to the tribe or its members, and Section 16 allowed organized

tribes to prohibit the sale or encumbrance of tribal lands or assets. In order to re-

store tribal homelands and provide a land base for the exercise of self-determina-

tion, Section 3 of the IRA authorized the Secretary to return surplus lands within

reservations to tribal ownership, Section 4 encouraged transfers of allotted lands to

the tribe or tribal corporation, and authorized exchanges of lands to consolidate In-

dian land holdings. Section 5 authorized the Secretary of the Interior to acquire

land for Indians, and Sections 16 (by implication) and 17 (expressly) authorized or-

ganized and incorporated tribes to acquire land for Indians. According to the fourth

paragraph of Section 5 of the IRA, title all these acquisitions was to be taken in

the name of the United States in trust for the tribe or individual Indian, and all

these acquisitions were to be exempt from state and local taxation.

The provision which became Section 5 of the IRA was originally found at Section

7 of Title III of the Wheeler-Howard Bill. In relevant part, original Section 7 of Title

III provided:

SEC. 7. The Secretary of the Interior is hereby authorized, in his discretion and

under such rules and regulations as he may prescribe, to acquire, through pur-

chase, relinquishment, gift, exchange, or assignment lands or surface rights to

lands, within or outside of existing reservations, including trust or otherwise re-

stricted allotments, whether the allottee be living or deceased, for the purpose

of providing land for Indians ...

There is hereby authorized to be appropriated, for the acquisition of such

lands..., a sum not to exceed $2,000,000 for any one fiscal year. The unex-

pended balances of appropriations made for any one year pursuant to this Act

shall remain available until expended.

Title to any land acquired pursuant to the provisions of this section, shall be

taken in the name of the United States in trust for the Indian tribe or commu-

nity for whom the land is acquired, but title may be transferred by the Sec-

retary to such community under the condition set forth in this Act. (emphasis

added.)

Clearly, if this draft had been enacted as written, the plain language of this sec-

tion would have made all appropriations authorized by the Bill available until ex-

pended, but would have authorized only lands acquired by the Secretary pursuant

to this section to be taken in the name of the United States on behalf of Indians.

There would have been no authority to take title to property in trust under any

other section without a similar provision whether acquired by the Secretary, an or-

ganized tribe, federally chartered Indian corporation or anyone else. If this language

had been enacted, the language of 25 C.F.R. § 151.3 stating that only the Secretary

has authority to take land into trust for Indians would have been consistent with

the statutory language.

But this language was not enacted.

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20Act of June 18, 1934, 73d Cong., 2nd Sess., Ch. 576. § 5, June 18, 1934, 48 Stat. 984–

988, now codified as amended at 25 U.S.C. § 465.

The discretion accorded the Secretary in the first paragraph of Section 5 of the IRAappears

to extend only to the decision to acquire some interest in land for the purpose of providing land

for Indians. Once that discretion is exercised and the decision is made to acquire a tract or

tracts of property, the plain language of the fourth section accords the Secretary no discretion

as to how to take title to said lands. The Secretary must take the title to such property in the

name of the United States in trust for the Indian, tribe, or federally chartered Indian corpora-

tion. The same rule would apply to tribal and corporate acquisitions. The 1990 amendment au-

thorized leasing by tribal authority for periods not exceeding twenty-five years, an increase from

the original ten year lease authorization. Act of May 24, 1990, Pub.L. 101–301, § 3(c), 104 Stat.

207.

25 C.F.R. § 21.21 (1938). It should be noted that Section 21.9 of the regulationsprohibited

the corporate borrower from obtaining loans for relending, and Section 23.26 prohibited coopera-

tive associations from borrowing from anyone but the United States while they had an outstand-

ing loan from the revolving fund. This effectively required them to acquire all their property

in trust status.

Prior to enacting the Bill, Congress changed the scope of these two provisions by

limiting the authorization for ‘‘carry-over’’ appropriations to the appropriation au-

thorized within that section for land acquisition, and expanded the requirement that

acquisitions be done in the name of the United States (and the corresponding tax

exemption) to include all acquisitions authorized by the Act, in the following lan-

guage:

Sec. 5. The Secretary of the Interior is hereby authorized, in his discretion, to

acquire through purchase, relinquishment, gift, exchange, or assignment, any

interests in lands, water rights or surface rights to lands, within or without ex-

isting reservations, including trust or otherwise restricted allotments whether

the allottee be living or deceased, for the purpose of providing land for Indians.

For the acquisition of such, lands, interests in lands, water rights, and surface

rights, and for expenses incident to such acquisition, there is hereby appro-

priated, a sum not to exceed $2,000,000 in any one fiscal year.

The unexpended balances of any appropriations made pursuant to this section

shall remain available until expended.

Title to any lands or rights acquired pursuant to this Act shall be taken in the

name of the United States in trust for the Indian tribe or individual Indian for

which the land is acquired, and such lands or rights shall be exempt from State

and local taxation.

(emphasis added.)

In other words, prior to enactment, Congress revised these two provisions. With

respect to ‘‘carry over’’ appropriations, Congress changed the words ‘‘this Act’’ to the

words ‘‘this section.’’ With respect to requiring that title to lands and other property

be taken in the name of the United States in trust and non-taxable status, Congress

expressly changed the words ‘‘this section’’ to the words ‘‘this Act.’’ There is simply

no interpretive rule which allows administrative or judicial revision of the statute

in order to change the words enacted by Congress back to the words Congress re-

jected in their revision of this language. The requirement of the fourth paragraph

of 25 U.S.C. § 465 that title to all land or property rights ‘‘shall be taken in the

name of the United States’’ applies equally to every entity authorized by the Act

to acquire such lands or rights, including incorporated tribes and federally chartered

Indian corporations, and to every section of the Act authorizing an acquisition.

The initial implementation regulations and historical records retrieved from the

National. Archives also support the view that these federal Indian corporate entities

were understood to have authority to take title to the lands and other property they

acquired in the name of the United States in trust for their corporation, tribe, or

tribal members. The first volume of the Code of Federal Regulations, published in

1938, contained the following provisions:

25 C.F.R. PART 21—LOANS TO INDIAN CHARTERED CORPORATIONS

§ 21.21 Title to property. Except as otherwise provided for in the loan agreement

between the corporation and the United States, all property purchased with

credit revolving funds shall be purchased in the name of the United States in

trust for the corporation.

PART 23—LOANS TO INDIAN COOPERATIVES, OKLAHOMA

§ 23.20 Title to property. The cooperative may he required to agree that the title

to all property purchased with the loan, except property purchased for resale,

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25 C.F.R. 23.20 (1938).

Form 5–806 (Revised), Approved by the Secretary of the Interior (March 11, 1940). National

Archives and Records Administration (hereafter ‘‘NARA’’), RG–75, Ft. Worth record center,

Anadarko, Entry E–49, Box 1.

NARA. RG–75, Ft. Worth, Anadarko, Entry E–49 Box 1.

NARA, RG–75, Ft. Worth, Anadarko, Entry E–49 Box 1.

Id. at page 2, paragraph 4. Since the plan to take title in fee was one reason to reject the

application, the only reasonable interpretation is that title had to be taken by the incorporated

tribe in the name of the United States in trust for the Tribe.

NARA RG–75, Ft. Worth, Muskogee/5 Tribes, Entry E–579, Box 3, Extension and Credit,

Hist Loan Cards 1945–65.

NARA, RG–75, Ft. Worth, Anadarko, E-49 Records Relating to Indian Credit Assoc &Tribal

Committees 1939–57 Box 3.

shall remain in the United States in trust for the cooperative until the loan is

repaid.

The standard forms used by the Indian Office are consistent with these require-

ments. The ‘‘Indian Chartered Corporation’s Application for Loan of Revolving Cred-

it Funds’’ required that:

4. The corporation agrees that except as noted below, title to all property and

increases therefrom, purchased with funds obtained under this application, will

be taken or held in the name of the United States in trust for the corpora-

tion:’’

This provision of the standard form of loan agreement appears to have been ap-

plied to loans to incorporated tribes throughout the United States and to cooperative

associations in Oklahoma.

By letter dated April 2, 1947, Walter Woehlke signing for the Commissioner of

Indian Affairs confirmed to the Caddo Indian Tribe of Oklahoma that ‘‘The credit

regulations and instructions under which you are operating permit loans for the

purchase of land.... A portion of the revolving credit funds now available was jus-

tified for loans to tribes for the purpose of purchasing land, particularly heirship

lands, in the name of the tribe borrowing the money.’’

On October 13, 1948, Mr.

Zimmerman as Acting Commissioner of Indian Affairs returned an application from

the Cheyenne and Arapaho Tribes for a $300,000 loan to Mr. Trent, the Western

Oklahoma Consolidated Agency’s Supervisor of Extension and Credit without ap-

proval.

In explanation, Mr. Zimmerman listed a number of deficiencies with the

loan application, including: (1) using $200,000 of the requested monies for land

loans tied up too large a percentage of the money for long term debt, (2) the provi-

sions describing the types of land loans to be made were too restrictive, and (3) ‘‘In

section 4, provision is made that title to land purchased by the tribe will not be

taken in the name of the United States in trust for the tribe. We do not know how

title could be taken otherwise.

Finally, the Kenwood Indian Cooperative Livestock

Association was required to take title to the cattle it purchased in the name of the

United States in trust for the Association,

and the Walters District Poultry Asso-

ciation took title to all of its property in the name of the United States in trust for

the Association with the exception of ‘‘feed after fed.’’

The only federal court decision revealed by research interpreting the fourth para-

graph of 25 U.S.C. § 465 with regard to tribal and corporate property acquisitions

supports the position that a tribe organized pursuant to the IRA, or an Indian cor-

poration chartered pursuant thereto must take title to property it purchases in the

name of the United States. In Mescalero Apache Tribe v. Jones, 411. U.S. 1.45

(1973), the Mescalero Apache Tribe protested the application of a state use tax as-

sessment on the purchase of materials used to construct two ski lifts at its ski resort

on off reservation leased lands, and sought refund of sales tax paid on basis of gross

receipts of the ski resort from sale of services and tangible property. The Court held

unanimously that the leasehold interest of the Tribe in nonreservation lands was

protected from state taxation. by 25 U.S.C. § 465 as were the materials the tribe had

purchased and attached to the lands. A majority held that the State could impose

its income tax against the profits of the business because that was not a tax on the

land and the business was outside the reservation. In short, the court held this

leasehold interest was not taxable by virtue of § 465. If that portion of the fourth

paragraph of § 465 prohibiting state taxation applies when an incorporated tribe ac-

quires a lease, then the rest of that sentence requiring trust title must also apply

to the tribe’s acquisition of land. There is a strong argument that regardless of

whether title is taken in the form required by the fourth paragraph of 25 U.S.C.

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United States v. 7,405.3 Acres of Land, 97 F.2d 417 (4th Cir., 1938); 25 U.S.C. § 177. Mesca-

lero, supra.

John Collier, Commissioner of Indian Affairs to Division Chiefs of the Indian Office and to

the Indian Service Employees of the Flathead Reservation, March 26, 1936, NARA, D.C. Branch,

RG75, Entry 132–B Circulars, Orders, and other Issuances, 1877–1947, Box 25, Notebook 1.

Interior Department Order No. 556 on ‘‘The Conduct of Tribal Government,’’ Approved by

Commissioner Myer, August 8, 1950, superceded in 64 IAM 1, Oct. 3, 1955, Page 1 of 14 re-

asserting the same language. NARA, RG–75, Ft. Worth, Anadarko, E–47, Box 1, Central files,

Records Relating to Credit, 1948–62.

S. Comm. on Indian Affairs, Hearings on S. 2047: A Bill to Promote the General Welfare

of the Indians of the State of Oklahoma and for other Purposes, 74th Cong., 1st Sess., p. 27

(April 9, 1935).

Act of June 26, 1936, c. 831, 49 Stat. 1967 (25 U.S.C. §§501 et. seq.

Sac and Fox Nation v. Norton, 585 F.Supp.2d 1293 (W.D. Okla., 2006). ‘‘Since itsapproval

by the President on June 18, 1934, the Indian Reorganization Act has been modified and ex-

tended on four occasions:. . .4. By the Act of June 26 1936 (49 Stat. L. 1967), ’An Act to promote

the General Welfare of the Indians of the State of Oklahoma, and for other purposes,’ virtually

all the features of the original legislation, from which the Oklahoma tribes were excluded by

Continued

§ 465, title is held in the required form by operation of law regardless of the words

on the instrument of conveyance.

Section 477 of Title 25 of the United States Code provides that ‘‘Any charter so

issued shall not be revoked or surrendered except by Act of Congress.’’ Therefore,

there does not appear to be any authority for the proposition that the Secretary may

limit, rescind, or revoke any charter or power contained therein by regulations such

as 25 C.F.R. § 151.3 or otherwise. The Secretary has recognized this as the law:

The attached Constitution and By-laws of the Confederated Salish and Kootenai

Tribes of the Flathead Reservation, adopted by popular vote on October 4, and

approved by the Secretary of the Interior on October 28 has the force of law,

superseding all departmental regulations and instructions that may be in con-

flict with any of’ the provisions of’ this document.

This document embodies the solemn pledges of Congress and of the Department

of’ the Interior to the Indians of the Flathead Reservation, and all the activities

of the Department affecting the Flathead Reservation must be carried out with

firm regard for these constitutional provisions and by-laws.

And, again:

Tribal constitutions and charters, when they have been adopted by popular vote

and approved by the Secretary of the Interior in accordance with the Acts of

June 18, 1934 (Indian Reorganization Act), May 1, 1936 (Alaska Act), or June

26, 1936 (Oklahoma Indian Welfare Act), have the force of law, superseding all

Departmental regulations and instructions that may be in conflict with any of

the provisions in those documents.

Commissioner Collier stated the fundamental proposition with respect to the au-

thority of such constitutions and charters to Congress:

Commissioner Collier: Now, the act is extremely simple in this detail. It says

that when they organize under the act, under the Thomas-Rogers bill, and

adopt a constitution and bylaws by a majority vote, by a vote of the majority

of the votes cast at a referendum, and when thereafter the constitution and by-

laws are O.K.’d by the Secretary of the Interior, from that time forward, the

Secretary may not change the constitution and bylaws except with the consent

of the tribe itself through a majority vote. He is bound by the constitution and

bylaws. They are binding upon him, as binding as acts of Congress. The tribe

may change its constitution and bylaws. The tribe may abandon its constitution

and go back to the old way. Of course, Congress may change them, but not the

Department. It means that the Indian organization will have dignity, stability,

and power.

Mr. Donahey. Is this the first time there, has been an act to embody that prin-

ciple of Indian home rule?

Mr. Collier. The Wheeler-Howard Act (act of June 18, 1939 [sic], 48 Stat. L.

984) embodies it, and this act carries the same thing over to the Indians [in

Oklahoma].

(Emphasis added.)

The Oklahoma Indian Welfare Act

extended the benefits of the IRA to all orga-

nized Indian Tribes in Oklahoma which choose to accept its provisions except the

Osage.

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section 13 of the Indian Reorganization Act, were made to apply to Oklahoma, along with addi-

tional supporting legislation.’’

Report of Acting Secretary of the Interior to Senator Thomas, Chair of the Senate Committee

on Indian Affairs dated April 28, 1937, National Archives and Records Administration (hereafter

‘‘NARA’’), D.C. Record Center, Record Group 75, Entry 132–B Circulars, Orders, and other

Issuances, 1877–1947, Box 25, Notebook 1. The only provision of the 1RA not extended to the

Tribes in Oklahoma was the right to vote to reject the IRA under Section 18. See generally,

Sections 3,4, 5 of the OIWA, and numerous references and explanations in the legislative history

of the OIWA. S. Comm. on Indian Affairs, Hearings on S. 2047: A Bill to Promote the General

Welfare of the Indians of the State of Oklahoma and for Other Purposes, 74th Cong., 1st Sess.

(April 8, 9, 10, and 11, 1935) [Hereafter ‘‘Senate Hearings on OIWA’’]; H. Comm. on Indian Af-

fairs, Hearings on H.R. 6234: A Bill to Promote the General Welfare of the Indians of the State

of Oklahoma and for Other Purposes, 74th Cong., 1st Sess., (April 22 through May 15, 1935)

[Hereafter ‘‘House Hearings on OIWA’’]. See, Section 8 of the OIWA, 25 U.S.C. § 508 with re-

spect to the exclusion of the Osage Nation.

25 U.S.C. § 477 can also be thought of as creating a restricted fee by those who insist upon

reading the fourth paragraph of Section 5 of the IRA as it was proposed instead of as it was

enacted. 25 U.S.C. § 177 can also be interpreted to create a restricted fee title whenever land

is bought by any recognized Indian tribe.

Theodore H. Haas, Chief Counsel, United States Indian Service, TEN YEARS OF TRIBAL

GOVERNMENT UNDER I. R. A., United States Indian Service Tribal Relations Pamphlet 1 at

5–6 (January 1947); Bureau of Indian Affairs Bulletin 335, Supp. 1, December 16, 1953. NARA

RG–75, Ft. Worth, Muskogee/ 5 Tribes, E–579, Box 2, Extension and Credit, Hist Loan Cards

1945–65; Memo Dated June 11, 1954,

As the foregoing shows, the historical record supports the proposition that the

incorpora-ted tribes have legal authority independent of the Secretary, and one

could reasonably assert are required, to take title to their property in the name of

the United States in trust for the proper beneficiary. Thereafter, those tribes by

statute and constitutional or charter provisions would have full authority to own,

hold, manage, operate, and dispose of such property within the limitations imposed

by § 477 and any additional restrictions negotiated in a constitution or charter of

the incorporated tribe.

Simply stated it is not absolutely necessary that Tribes and individual Indians

have ‘‘trust lands’’ in order for their lands to be ‘‘Indian lands’’ in the classical sense

but federal recognition and protection of Indian lands is a key element. In order to

rebuild tribal homelands and exercise the self-determination and self-government

therein that this Committee supports, and which is clearly called for by the Declara-

tion on the Rights of Indigenous Peoples, what is needed is ownership of the tribal

homeland, jurisdiction over it, and exclusion of the jurisdiction of others to the ex-

tent necessary for Indigenous self-determination. This concept should by no means

eliminate any number of cooperative agreements, joint projects or activities, and

other relationships with federal, state, and local jurisdictions or other tribes based

upon principles of mutual respect and free, prior, informed, and continuing consent.

Whether this ownership is to be thought of as ‘‘trust lands’’ owned, held, controlled,

and managed by the tribe or corporate entity under the IRA, or a recognized, com-

pensable aboriginal title, or some form of restricted fee seems to be irrelevant.

is the result which counts. The IRA and OIWA provide a tool by which progress may

be made toward restoring sufficient tribal homelands for the restoration of vibrant

sound sustainable tribal communities.

In this period of history, it is almost mandatory to address the fears of those who

would object to Indians purchasing property because they dislike Indian gaming and

economic development. While I do not think a full discourse on this question is

called for here, I would make two simple points. First, the Supreme Court has al-

ready said in the Mescalero case that while off reservation interests in lands ac-

quired by tribes under this authority are tax exempt, tribal activities upon such

lands remain subject to significant state authority—which would pre-clude off res-

ervation gaming on such lands absent additional federal action. Of course, on res-

ervation acquisitions would be Indian country as defined in 18 U.S.C. § 1151(a)

which includes within the definition of Indian country all lands within the bound-

aries of any Indian reservation notwithstanding the issuance of any patent. The sec-

ond point to make is that with respect to Indian gaming, Congress has already se-

verely limited gaming on newly acquired properties to the extent necessary. 25

U.S.C. § 2719. There is nothing in the IRA or OIWA which would change or affect

the balance already set by Congress on acquisitions for gaming purposes.

Because of the historical termination era of the 1950s, Commissioner Collier’s

imple-mentation of the IRA was administratively abandoned without Congressional

authority, and forces opposed to the IRA changed the BIA manual to refuse to recog-

nize the right and obliga-tion of the incorporated entities and tribes to take title to

their property as provided in the IRA.

This termination era policy still prevails

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in the regulations of the Department, 25 C.F.R. § 151.3. To my knowledge whether

that regulation may divest a tribe of it’s chartered powers has not yet been litigated.

So, what is it that Congress can do to make progress toward the goals of the Dec-

laration on the Rights of Indigenous Peoples, the aspirations of numerous Indian

tribes, and resolving some of the issues facing the government and Indian people?

First, I would suggest that Congress encourage the Interior Department to return

to the practice of the Roosevelt-Ickes-Collier administration who developed, enacted,

and implemented the IRA by recognizing and supporting the authority of organized

tribes and corporations to take title to their property in the name of the United

States, and to control, manage, and operate it themselves within the limits set by

25 U.S.C. § 477. Should the tribe or corporation exceed its authority, the proper re-

sponse would be for the government to sue to cancel the offending instrument, un-

less additional limited oversight authority has been freely agreed to by the tribe in

its charter.

Second, Congress could provide authority to finally confirm the promise of the

Self-Determination Act and Self-Governance Act that Tribes would in fact be able

to negotiate real political and legal changes with a view toward recovering legal and

political rights which they have been denied, or preventing the application of legisla-

tion which they deem inimical to their needs or way of life. This is the way of Amer-

ica—that legitimate government requires the consent of the governed. In the context

of Indian tribes that first meant a treaty relationship. To the extent possible, the

Declaration calls for the establishment once again of a consensual relationship, if

not by treaty then by some other available means. The Indian Child Welfare Act’s

provisions authorizing tribes to reassume jurisdiction over Indian child custody pro-

ceedings, and the IRA’s provisions which allowed each tribe to vote as to whether

the IRA would apply on their reservation are examples of legislation that has pro-

vided a mechanism for tribal people and their leaders to have a direct and impor-

tant say in the legal and political structure of the tribal homelands. Negotiation of

tribal constitution and charter provisions would provide a mechanism for accom-

plishing such changes. I would encourage Congress to consider this opportunity.

Once again I thank you Mr. Chairman, Mr. Vice Chairman, and Members of the

Committee for the opportunity to testify today, and look forward to any questions

you may have.

The C

HAIRMAN

. Thank you very much, Professor Rice.

Professor Goldberg, please proceed with your statement.

STATEMENT OF CAROLE E. GOLDBERG, JONATHAN D. VARAT

DISTINGUISHED PROFESSOR OF LAW, UCLA SCHOOL OF LAW

Ms. G

OLDBERG

. Mr. Chairman, thank you very much for the op-

portunity to present this testimony today.

My goal today is to explain the overall purpose of the Indian Re-

organization Act in so far as it illuminates the interpretive ques-

tions posed in the Carcieri case. And you have already heard two

distinguished witnesses indicate what some of these broad policies

are.

I want to underscore my agreement and to refer to some very

prominent historians of the Indian Reorganization Act who have

characterized the Act as embodying a Federal policy they call the

‘‘tribal alternative.’’ And what this policy did was abandon the goal

of assimilation in favor of the belief that Native American societies

had a right to exist on the basis of a culture different from the

dominant one in the United States, and this could only be achieved

through establishment and reestablishment of the territorial basis

for tribal self-determination. That was a key component of the pur-

pose of the Indian Reorganization Act.

But I would like to focus specifically on how these broad pur-

poses have implications for the interpretive question in Carcieri.

And I am going to draw on an amicus curiae brief that I, along

with other law professors, filed in that case trying to explain that

history, and in particular focus on the question of whether a tribe

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is considered ‘‘now under Federal jurisdiction.’’ The Carcieri deci-

sion says that we should focus on ‘‘now’’ as being 1934.

What I want to emphasize here is that misconstrues how the un-

derstanding was at that time in 1934 of what it actually meant to

be recognized or not recognized under Federal jurisdiction. Because

one of the things that we pointed out is that today it is pretty clear,

Tribes are either on a list, they are recognized, or they are not on

a list, they are unrecognized. Of course, that makes a huge dif-

ference, but this bright line, nearly permanent differentiation be-

tween recognized and unrecognized tribes, is actually of recent ori-

gin.

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 ap-

plied.

And not surprisingly, given that there weren’t a lot of definitions

out there in the statutes, we draft statutes better these days, there

was a lot of confusion about it. And basically as of 1934, the con-

cept of recognition was really only beginning to take shape. It

wasn’t universally applied or understood.

There was no comprehensive list of federally recognized tribes at

the time of enactment of the IRA and no standard set of criteria

other than one court decision, the Montoya case, that gave a rather

open-ended definition of it.

So it is extremely unlikely that Congress in 1934 would have in-

tended that recognition as of that time be the prerequisite for the

Act to apply. And frankly, if you had interpreted the Act as apply-

ing as of that date, it is extremely difficult, if not impossible, to

apply it based on that timing now, as we are nearly 100 years

later.

In fact, as of 1934, there would have been an awareness that

tribal status has never been static and those who drafted and

passed the Act acted in a historical context in which tribal status

and recognition were known to be fluid in nature. One of the exam-

ples I give in my testimony is the status of the Pueblo Indians,

which according to the Supreme Court at one point rendered them

not Indian and then in the U.S. Supreme Court’s later decision,

they were found for purposes of the Federal liquor control laws to

be Indians.

It is very important to understand this. At the time of the Floor

debate and discussions of the IRA back in 1934, the Chairman then

of the Indian Affairs Committee, Burton Wheeler, was concerned

about this very problem and he was reassured by John Collier that

if there was a change in status, that that would be reflected in the

application of the IRA. And I quote this passage in my testimony

to make that clear.

So I think it is very important to have this more flexible inter-

pretation of the statute and if it needs to be incorporated in an

amendment, I think that is the most desirable way for it to hap-

pen.

[The prepared statement of Ms. Goldberg follows:]

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REPARED

TATEMENT OF

AROLE

E. G

OLDBERG

, J

ONATHAN

D. V

ARAT

ISTINGUISHED

ROFESSOR OF

, UCLA S

CHOOL OF

Good afternoon, Chairman Akaka and distinguished members of the Committee:

My name is Carole Goldberg and I am the Jonathan D. Varat Distinguished Pro-

fessor of Law at UCLA School of Law, where I teach Federal Indian Law and Tribal

Legal Systems, and serve as Director of our Joint Degree Program in Law and

American Indian Studies. I am also a Justice of the Hualapai Court of Appeals of

the Hualapai Tribe in Arizona, and a Presidential appointee to the Indian Law and

Order Commission, which was authorized by the Tribal Law and Order Act of 2010.

The views I am expressing in this testimony are my own as a scholar and teacher

in the field of Federal Indian Law. In my 39 years as a professor, I have co-authored

the 1982 and 2005 editions of Cohen’s Handbook of Federal Indian Law, a casebook

entitled American Indian Law: Native Nations and the Federal System, and numer-

ous other books and articles on topics including the history of the Indian Reorga-

nization Act. I was also one of twelve law professors who filed an amicus brief before

the United States Supreme Court in the 2009 case of Carcieri v. Salazar, relating

the history of the Indian Reorganization Act, and its bearing on the questions of

statutory interpretation presented in that case.

My goal today is to explain the overall purpose of the Indian Reorganization Act

of 1934 (IRA), insofar as it illuminates the interpretive questions posed in Carcieri.

I will also suggest how the statute could be clarified to ensure consistency with that

purpose.

I. Overall Purpose of the Indian Reorganization Act

Respected historical works agree that the primary purpose of the Indian Reorga-

nization Act was to revitalize tribal governments by restoring land bases and ena-

bling Native groups to organize governments that could wrest control over impor-

tant decisions from the federal Indian bureaucracy. The most comprehensive study

of the history of the Indian Reorganization Act, Professor Elmer Rusco’s A Fateful

Time: The Background and Legislative History of the Indian Reorganization Act

(2000), describes the Act as embodying a federal policy he calls ‘‘the tribal alter-

native,’’ a term first coined by another distinguished historian of the IRA, Graham

Taylor. According to Rusco, this new policy ‘‘abandoned the goal of assimilation in

favor of the belief that Native American societies had a right to exist on the basis

of a culture different from the dominant one in the United States.’’ Land acquisition

was always viewed as a key component in realizing this ‘‘tribal alternative.’’ In the

introduction to Title III, an early version of the Act made it clear that it was the

‘‘policy of Congress to undertake a constructive program of Indian land use and eco-

nomic development, in order to establish a permanent basis of self-support for Indi-

ans living under Federal tutelage;...and to provide land needed for landless In-

dians and for the consolidation of Indian landholdings in suitable economic units.’’

Supporting the historians’ analysis, the terms of the Act underscore the dual im-

portance of land and self-government if Native nations are to maintain and

strengthen their distinct political, legal, economic, social, and cultural institutions.

On matters affecting land and resources, the IRA prohibited future allotment; ex-

tended existing trust periods on already allotted lands; authorized the Secretary of

the Interior to restore remaining ‘‘surplus’’ lands to tribal ownership; prohibited sale

of tribal lands without the consent of the tribe; authorized acquisition of lands in-

side and outside existing reservations and the taking of such land into trust for the

benefit of tribes; and allowed the Secretary to proclaim new reservations or expand

existing ones. On matters affecting self-government, the IRA enabled any tribe ‘‘re-

siding on the same reservation’’ to organize ‘‘for its common welfare’’ under constitu-

tions approved by the federal government. To reinforce the view that these new con-

stitutional governments would be exercising preexisting aboriginal self-governing

powers, not newly conferred federal powers, the Act states that ‘‘In addition to all

powers vested in any Indian tribe or tribal council by existing law, the constitution

adopted by said tribe shall also vest in such tribe or its tribal council’’ a set of speci-

fied ‘‘rights and powers.’’ As historian Rusco observes, ‘‘This section makes it clear

that the legal theory behind the IRA is that Native American governments estab-

lished under its authority exercise aboriginal authority not withheld from them.’’

Legislative history of the IRA also supports the historians’ reading of the Act. The

House Report on the IRA confirms that Congress’s purpose was ‘‘to rehabilitate the

Indian’s economic life and to give him a chance to develop the initiative destroyed

by a century of oppression and paternalism.’’ Both the House and Senate Reports

indicate that Congress believed that a critical aspect of that broad goal was ‘‘to con-

serve and develop Indian lands and resources.’’ As Senator Wheeler, one of the

IRA’s sponsors, said on the floor of the Senate, the provision for taking land into

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trust would ‘‘provide land for Indians who have no land or insufficient land, and

who can use land beneficially.’’

Historian Elmer Rusco affirms that the terms of the IRA consistently incorporated

the view of land as ‘‘vital to preserving the distinctive cultures and social structures

that still characterized much of Native America.’’ In other words, rectifying unjust

losses of tribal land through land restoration was powerfully linked to self-deter-

mination, self-governance, language revitalization, and cultural survival for Native

peoples. Today, trust status is sought for lands where tribes are locating housing,

medical clinics, education and early childhood programs, and government offices,

among others uses vital to tribal self-determination. Trust status is used to afford

protection to sacred and culturally significant sites that would otherwise become the

targets for culturally destructive projects, such as the county waste dump proposed

in San Diego County. All of these uses are fulfilling the original vision of the IRA,

and all of these uses should be available to any tribe that is federally recognized

at the time it seeks trust status for its lands under the IRA.

II. The Interpretive Questions Presented in Carcieri

Under the IRA, 25 U.S.C. § 465, the Secretary of the Interior is authorized to ac-

quire lands for ‘‘Indians,’’ a term defined in 25 U.S.C. § 479 to include ‘‘all persons

of Indian descent who are members of any recognized Indian tribe now under fed-

eral jurisdiction’’ (emphasis added) and all persons of at least one-half Indian ances-

try. The IRA also states in section 465 that land may be taken into trust for an

‘‘Indian tribe or individual Indian,’’ and defines the term ‘‘tribe’’ in section 479 as

‘‘any Indian tribe, organized band, pueblo, or the Indians residing on one reserva-

tion.’’ The question presented in Carcieri v. Salazar was how to interpret the phrase

‘‘now under federal jurisdiction.’’ Rhode Island argued that the IRA’s language al-

lowing the federal government to acquire land and place it in trust applies only to

Indian tribes that were both recognized and under federal jurisdiction on June 18,

1934, the date on which the IRA was enacted. The Narragansett Tribe, whose land-

into-trust request the state had challenged, advanced the view that the Act applies

to tribes that are federally recognized as of the time the land acquisition and place-

ment in trust occurs. The Court decided that a tribe’s status as of the date of enact-

ment of the IRA was controlling. Exactly what form that status must take is unclear

from the Court’s opinion, however, because the Court assumed, based on certain ele-

ments of the record, that the Narragansett Tribe was not ‘‘under federal jurisdic-

tion’’ in 1934.

No matter how the term ‘‘now under federal jurisdiction’’ is construed and applied

by the Department of Interior and the courts after Carcieri, the Court’s emphasis

on the date of enactment of the IRA seriously misconstrues the broader purposes

of the Act and the way federal-tribal relations operated during that time. There are

no direct statements in the legislative history of the IRA that clarify this phrase.

Writing in The New Deal and American Indian Tribalism: The Administration of

the Indian Reorganization Act, 1934–1945 (1980), Graham Taylor observes, ‘‘What

is a tribe? The Indian Reorganization Act did not seriously face this question. . . .’’

Rusco notes that the IRA ‘‘did define Indian and tribe, though ambiguously.’’ None-

theless, an understanding of the legal and administrative context in which the IRA

was drafted points to a way of interpreting these terms. Drawing upon the law pro-

fessors’ amicus brief in Carcieri, I will explain how this understanding of the IRA

and the circumstances of its enactment dictates a more flexible reading of the

phrase ‘‘now under federal jurisdiction,’’ one that allows for changes in federal rec-

ognition of tribal status over time.

III. To Fulfill Its Purposes, The Ira Must Apply to any Tribe That is

Recognized as of the Time the Act is Invoked

As I and the other Indian law professors pointed out in our amicus brief, today

all Indian tribes fit into one of two categories: ‘‘recognized’’ or ‘‘unrecognized.’’ A rec-

ognized tribe is entitled to all of the benefits (health, education, etc.) extended by

federal law to Indian tribes. Unrecognized tribes, on the other hand, are not entitled

to most federal services and can obtain recognition only by prevailing in the difficult

and lengthy administrative process contained in 25 C.F.R. Part 83, or, on rare occa-

sion, through congressional legislation. But this bright-lined, nearly permanent dif-

ferentiation between recognized and unrecognized tribes is recent in origin.

For the first 70 years of United States history, there actually was no concept of

‘‘recognized’’ versus ‘‘unrecognized’’ tribes. According to a highly respected historian

of the federal recognition process, William W. Quinn, Jr., the terms ‘‘recognize’’ and

‘‘acknowledge’’ were almost exclusively used in the cognitive sense, indicating that

a particular tribes was known to the United States. Congress enacted legislation

that applied to ‘‘Indian country,’’ ‘‘Indian tribes,’’ ‘‘Indian nations,’’ ‘‘Indians,’’ ‘‘Indi-

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ans 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 deter-

mine, on an ad hoc basis, to whom these statutes should be applied.

If Congress or the executive branch had previously concluded that a tribe existed,

federal courts generally refused to disturb this finding. Situations necessarily arose,

however, where neither Congress nor the executive branch had previously acknowl-

edged the existence of a particular tribe. In these cases, federal courts were required

to decide whether that group constituted an Indian tribes as defined in particular

statutes. In Montoya v. United States (1901), the Supreme Court eventually pro-

vided a definition of the terms ‘‘tribe’’ and ‘‘band’’:

By a ‘‘tribe’’ we understand a body of Indians of the same or a similar race,

united in a community under one leadership or government, and inhabiting a

particular though sometimes ill-defined territory; by a ‘‘band,’’ a company of In-

dians not necessarily, though often, of the same race or tribe, but united under

the same leadership in a common design.

Not surprisingly, however, confusion still remained.

As Quinn points out in a 1990 article in the Journal of Legal History, by the early

twentieth century, the concept of recognition of Indian tribes in the jurisdictional

sense ‘‘was only beginning to take shape,’’ and it ‘‘was not universally applied, ac-

cepted or, frankly, understood.’’ No comprehensive list of federally recognized tribes

was ever created prior to enactment of the IRA in 1934, and no standard criteria

for determining whether to recognize an Indian tribe existed at that time. Thus, it

is extremely unlikely that Congress would have intended the IRA to be interpreted

to require formal federal recognition as of 1934 in order for provisions of the Act

to apply. Furthermore, such an interpretation would make it extraordinarily dif-

ficult, if not impossible, to apply the Act nearly 100 years later.

In fact, tribal status has never been static, and those who drafted and passed the

IRA acted in a historical context in which tribal status and recognition were known

to be fluid in nature. In our amicus brief, the law professors provide numerous ex-

amples of congressional and judicial decisions reversing previous determinations of

the status of individual tribes. Furthermore, the executive branch has often changed

these determinations to reflect alterations in federal Indian policy and the fact that

tribal groups survived despite policies intended to remove them from federal respon-

sibility. A prime example are the Pueblo Indians of New Mexico, first found by the

Supreme Court not to be Indians under the Nonintercourse Act, and forty years

later found to be Indians for purposes of federal Indian liquor control laws that Con-

gress had expressly extended to the Pueblos. Thus, tribal status was viewed as fluid,

and the determination of which tribes existed was largely left to Congress and the

Executive.

This history is essential to understanding the IRA’s definition of ‘‘Indian.’’ As

originally drafted, this definition was to include ‘‘all persons of Indian descent who

are members of any recognized Indian tribe.’’ Senate Indian Affairs Chairman Bur-

ton Wheeler, however, was concerned that this provision was too broad. He stated:

Chairman. But the thing about it is this, Senator; I think you have to sooner

or later eliminate those Indians who are at the present time—as I said the

other day, you have a tribe of Indians here, for instance in northern California,

several so-called ‘‘tribes’’ there. They are no more Indians than you or I, per-

haps. I mean they are white people essentially. And yet they are under the su-

pervision of the Government of the United States, and there is no reason for

it at all, in my judgment. Their lands ought to be turned over to them in sev-

eralty and divided up and let them go ahead and operate their own property

in their own way.

Wheeler obviously believed that once Indians had fully assimilated into white so-

ciety, they should no longer be afforded the protection of the IRA even if they were

currently under federal jurisdiction.

Commissioner of Indian Affairs John Collier responded to this suggestion, stating:

Commissioner Collier. Would this no meet your thought, Senator: After the

words ‘‘recognized Indian tribe’’ in line 1 insert ‘‘now under Federal jurisdic-

tion.’’ That would limit the act to the Indians now under Federal jurisdiction,

except that other Indians of more than one-half Indian blood would get help.

It is as a result of this very exchange that the phrase ‘‘now under federal jurisdic-

tion’’ was added to the IRA. In suggesting this language, Collier obviously intended

that, if at a later date, Congress or the Executive Branch agreed with Senator

Wheeler’s characterization of the Indians in question, and chose to terminate the

government-togovernment relationship with that tribe, it would no longer receive

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the benefits of the IRA. Thus, ‘‘now’’ should refer to the date on which the Secretary

of the Interior attempts to exercise his or her authority under the Act.

Another reason for taking a more fluid view of the timing of recognized tribal sta-

tus, and not fixing it as of 1934, is that the Department of the Interior made numer-

ous mistakes in identifying tribes in the immediate aftermath of the IRA. There was

no comprehensive list of federally recognized Indian tribes in June 1934. It was only

after the Act was passed that Commissioner Collier was given the daunting task of

determining which Indian groups were or should be recognized tribes by the federal

government and permitted to organize under the Act. Collier hastily complied a list

of 258 groups. This list is universally recognized to include serious omissions, and

these mistakes should not be frozen into the IRA.

As the Indian law professors note in our amicus brief, nearly all of Commissioner

Collier’s mistakes involved landless Indian tribes. This was no coincidence. The IRA,

as originally enacted, only provided the right to organize a constitutional govern-

ment, charter a corporation, or vote on application of the Act to any ‘‘Indian tribe,

or tribes, residing on the same reservation.’’ Thus, Commissioner Collier logically

began determining recognized tribes by referring to lists of federal land holdings set

apart for Indians. For these reservation tribes, even if he mistakenly believed that

they no longer maintained tribal relations (and therefore, could not be a recognized

tribe) this error could be immediately remedied. The definition of ‘‘Indian’’ in the

IRA also included descendants of previously recognized tribes that resided within

the boundaries of an Indian reservation on June 1, 1934. Consequently, despite un-

recognized status, their existing reservation permitted these Indians to organize

under the IRA and immediately regain recognition.

For landless Indian tribes, there was no comparable escape hatch. Although the

IRA provided for the creation of ‘‘new Indian reservations,’’ thus indicating a con-

gressional understanding that landless tribes could take advantage of the Act, the

ad hoc nature of recognition resulted in many of these tribes being overlooked. Even

where landless tribes did come to his attention, Commissioner Collier often mistak-

enly determined that the tribe was no longer in existence. In 1975, Congress created

the American Indian Policy Review Commission, which was charged with con-

ducting the first comprehensive review of Indian affairs in almost 50 years. After

two years of study, in its Final Report, the Commission identified dozens of tribes

that had not been recognized by the federal government simply due to bureaucratic

oversight. Litigation brought by east coast tribes in the 1970s, such as the success-

ful suit by the Passamaquoddy Tribe of Maine, also highlighted the fact that there

were tribes fully subject to federal responsibility under the Nonintercourse Act that

were being denied protection by the Department of Interior.

Fortunately, since that time, many of these errors have been rectified, either

through congressional legislation or through the administrative process for federal

recognition first established in 1978. To prevail under that administrative process,

found in 25 C.F.R. Part 83, a petitioning group must demonstrate that it satisfies

each of the following criteria:

1. The petitioner has been identified as an American Indian entity on a sub-

stantially continuous basis since 1900;

2. A predominant portion of the petitioning group has existed as a distinct com-

munity from historical times until the present;

3. The petitioner has maintained political influence or authority over its mem-

bers as an autonomous entity from historical times until the present;

4. The petitioner’s membership consists of individuals who descend from a his-

torical Indian tribe or from historical Indian tribes which combined and func-

tioned as a single autonomous political entity; and

5. The membership of the petitioning group is composed principally of persons

who are not members of any other recognized Indian tribe.

Voluminous documentary evidence is required to satisfy these criteria. In fact, pe-

titions for recognition take years to assemble and are typically supported by thou-

sands of pages of historical documentation and expert reports.

The Office of Federal Acknowledgment—which has several research teams, each

consisting of a cultural anthropologist, genealogical researcher, and an historian—

evaluates these petitions, along with any information presented by other interested

parties. While Commissioner Collier spent less than one year determining the status

of nearly every tribe in the continental United States, an OFA team routinely

spends one year or more on each documented petition before making a recommenda-

tion regarding the merits of that petition to the Assistant Secretary of Indian Af-

fairs. After reviewing OFA’s recommendations, the Assistant Secretary will publish

a final determination in the Federal Register. Since 1978, the Executive Branch has

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used this process to grant recognition to 17 Indian tribes and deny recognition to

more than 25.

These recognition decisions have definitively revealed several of Commissioner

Collier’s mistakes. In our amicus brief, the Indian law professors provide two de-

tailed illustrations of such errors in the 1934 determinations, one involving the Cow-

litz Indian Tribe or Washington, the other involving the Grand Traverse Band of

Ottawa & Chippewa Indians of Michigan. In each instance, there was extensive doc-

umentation of the ongoing tribal organization and federal relations of the tribe, de-

spite lapses in formal federal recognition. An illustrative statement appears in the

Department of the Interior’s decision acknowledging the Cowlitz: ‘‘. . . [T]he De-

partment was mistaken when, in the 1920s and 1930s, it claimed that the Tribe no

longer maintained its ’tribal organization.’ ’’

These and other corrective determinations by the Department of the Interior are

designed to undo injustices suffered by tribes that have been wrongly denied the

benefits of federal recognition. As the sponsors of the IRA understood, key to recti-

fying these injustices is the ability to restore the territorial basis for tribal self-de-

termination. Under Federal Indian Law, the trust status of land is a prime deter-

minant of Indian country status, which in turn influences the geographic scope of

tribal self-governing powers, and determines whether tribes will be shielded from

state taxation and jurisdiction. It is the place where tribes can control their sacred,

culturally significant sites, sustain their languages, and determine how resources

should be developed and shared.

It would be a harsh and ironic outcome if tribes could succeed in the extremely

onerous federal recognition process, only to find that they are unable to revitalize

their communities and cultures through the establishment of a reservation con-

sisting of land taken into trust under the IRA. For example, I have been working

with and writing a book about a currently non-federally recognized group, the

Fernandeno Tataviam Band of Mission Indians, whose ancestral territory is in the

San Fernando Valley north of downtown Los Angeles. In their pending petition for

federal recognition, they are seeking, among other things, to rectify injustices that

occurred when their land in southern California was taken from them around the

turn of the twentieth century. Should they eventually prevail in the federal recogni-

tion process, it would indeed be a fulfillment of the original purposes of the IRA for

land to be taken into trust for them so that their tribal community can advance its

culture and collective goals. To achieve that end, Congress should clarify that the

provisions of the IRA apply to any tribe that is federally recognized as of the time

the terms of the Act are invoked.

Conclusion

Chairman and members of this Committee, I appreciate this opportunity to testify

on the history, significance, and purpose of the Indian Reorganization Act, especially

as they bear on the interpretive issue presented in Carcieri v. Salazar.

I am happy to answer any questions whenever the time is appropriate. Thank

you.

The C

HAIRMAN

. Thank you very much, Professor Goldberg, for

your statement.

It is great to hear from you, our distinguished witnesses.

Professor Hoxie, in your testimony, you detailed a consultation

process that John Collier and the Congress undertook prior to en-

acting the Indian Reorganization Act. During those discussions, did

the Congress ever decide what it meant for a tribe to be under Fed-

eral jurisdiction?

Mr. H

OXIE

. No, they did not. The congresses were unprecedented

inventions, really, of Commissioner Collier, who had proposed his

legislation in January; had gotten a kind of chilly response from

Congress. And as he began his negotiations and discussions with

Congressional leaders, he organized nine congresses around the

Country that were general invitations to Indian people in those re-

gions.

They were held in every region of the Country. Most were

chaired by Collier himself and some some of his staff chaired them.

And they are remarkable events where he asked Indians what they

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thought of this law and what they thought of the provisions. And

he made revisions based on some of the complaints and suggestions

and questions that people had.

But there certainly is no evidence that I am aware of that there

was anyone checking people at the door; that there was a list or

there was anything like that. This was an open consultation with

Indian people and it brought a huge variety of people in all of the

complex circumstances that have been referred to by the other wit-

nesses to those meetings and with the intention of having the law

obviously apply to all of them.

The C

HAIRMAN

. Thank you.

Professor Rice, in your testimony, you mentioned the recent hear-

ing the Committee held on the United Nations Declaration on the

Rights of Indigenous People. Do you think the policies in the In-

dian Reorganization Act and the U.N. Declaration are compatible

when it comes to treatment of Indian lands and self-governance of

indigenous peoples?

Mr. R

ICE

. Mr. Chairman, I believe they can be made so. They are

very, very close as we sit here and look at the text of the statute

and we look at the text of the Declaration. The statutory authority

in the IRA calls for self-determination by tribes, self-governance by

tribes, and the recovery of tribal homelands that have otherwise

been lost. The Declaration calls for those same things.

The way and the mechanisms that we go about doing those

things may be subject to some adjustment and some of that adjust-

ment is probably necessary on the administrative side and it could

be encouraged by Congress in a number of ways. I will, of course,

defer to the Committee on the best way to encourage that.

But self-determination in the sense of recovery and readjusting

tribal homelands means that that authority should be in the hands

of the tribe. If there are adjustments to be made in the way that

allotments are held, these fractionated lands are to be turned over

to tribal lands or otherwise some process with, that should be in

the hands of the tribe. If land is to be recovered by the tribes with-

in its reservation boundaries, its homeland area, the tribes should

have the opportunity to do that themselves.

All of that, I think, was in the sights that Collier had. They were

aware of where Collier was trying to go. And all of that, I believe,

would be consistent with the Declaration on the Rights of Indige-

nous People, yes, sir.

The C

HAIRMAN

. Thank you.

Professor Goldberg, as a distinguished scholar, you have written

extensively about criminal jurisdiction and law enforcement in na-

tive communities. What is the impact of the Carcieri case on public

safety and law enforcement in native communities?

Ms. G

OLDBERG

. Thank you very much, Mr. Chairman.

As a presidential appointee to the Indian Law and Order Com-

mission that was established under the Tribal Law and Order Act

which the Congress passed last summer, I have a very deep inter-

est in the potential consequences of the Carcieri decision for crimi-

nal justice in Indian Country.

I have also been conducting for the past several years, under the

sponsorship of the National Institute of Justice in the U.S. Justice

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Department, a major nationwide study of law enforcement and

criminal justice in Indian Country.

I do have serious concerns that the Carcieri decision can lead to

or has led to challenges to the appropriate Indian Country status

of lands that have been taken into trust under long-prevailing pol-

icy of the Federal Government. And this type of questioning of the

Indian Country status of lands that were taken into trust can very

well lead to legal challenges in criminal prosecutions that have

been brought in Federal court under Federal statutes such as the

Major Crimes Act or the Indian Country Crimes Act.

So that the questioning of Indian Country status can in turn lead

to questioning of prosecutions and even convictions that have al-

ready occurred in Federal court. And I think there is a public safe-

ty dimension to the Carcieri decision that warrants the consider-

ation of this Committee.

The C

HAIRMAN

. Well, thank you. Thank you very much.

Let me now call on my colleague for any questions or remarks

he may wish to make.

Senator Udall?

STATEMENT OF HON. TOM UDALL,

U.S. SENATOR FROM NEW MEXICO

Senator U

DALL

. Thank you, Chairman Akaka. And thank you for

organizing this hearing and the various panels that we are going

to hear from today.

First of all, let me say I very much support your bill that you

introduced to deal with this. I am a cosponsor of it. I believe a

clean bill on the Carcieri fix is what needs to be done. So we need

to move forward with that as expeditiously as we can. We almost

had it done in the last Congress, as you know, and we are going

to have to find out what those obstacles were that prevented it

from occurring and try to make sure we get those out of the way

so we can get this done.

I would ask consent to put my opening statement in the record

and just go directly to questions.

The C

HAIRMAN

. Without objection, it will be included.

Senator U

DALL

. Thank you.

[The prepared statement of Senator Udall follows:]

I would like to thank the Chairman for holding this important hearing. The In-

dian Reorganization Act of 1934 was a monumental recognition of the rights of

tribes to maintain and regain their lands. Land is a vital part of any society; it is

the basis of economic development, social interaction, and often even identity.

As the members of the Committee and those participating on the panels and in

the audience know, this right, laid out in the Indian Reorganization Act 75 years

ago, has recently been called into question by the Supreme Court’s decision on

Carcieri vs. Salazar. Sadly, this decision has sent ripples through Indian Country

as questions of litigation and federal recognition have reverberated in almost every

Native American Community.

I applaud Chairman Akaka on his quick action this congress to introduce and

pass out of Committee a bill to make a simple yet vital fix to the Indian Reorganiza-

tion Act that would reverse the Carcieri vs. Salazar decision. I am a strong support

of this bill (S. 676) and urge my colleagues in the congress to support this legislation

as well.

Thank you, and I look forward to hearing from the witnesses on the panels.

Senator U

DALL

. In your testimony, many of you have indicated

that the Carcieri decision will potentially lead to extensive litiga-

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tion for numerous tribes. And I think, Ms. Goldberg, you talked a

little bit about that in your last answer here. Could you estimate

how many tribes would potentially have to engage in litigation? I

mean, how big of a problem we are looking at here? Do any of you

want to jump into that?

Ms. G

OLDBERG

. I think there may be other witnesses who are

going to be testifying today who are going to have a better sense

of that, but I couldn’t give you a specific number.

Senator U

DALL

. But you believe, from your last answer, this has

opened up a number of avenues for challenge under the Reorga-

nization Act.

Ms. G

OLDBERG

. I have seen specific instances of it. There are

matters that are before the Department of the Interior right now

calling into question the appropriateness of land having been taken

into trust in light of Carcieri. And these would definitely include

tribes that have been through the Federal recognition process

through the Office of Federal Acknowledgment.

There are 17 tribes that have been acknowledged through that

process, and I couldn’t tell you at this moment how many of them

are in the process of having land taken into trust or have had land

taken into trust. That is certainly one touchstone, but there are

others.

And I think there is certainly jeopardy in all of these instances.

Senator U

DALL

. So what you are saying is one of the creators of

litigation is going to be if a tribe took land into trust, that now

under this decision that can be challenged. And we all know how

expensive it is to go through the trust process and that. So we are

adding on top of that a very extensive litigation experience and

that kind of thing.

Ms. G

OLDBERG

. I don’t doubt that, and I think it will be hap-

pening at the administrative level, as well as in the courts.

Mr. R

ICE

. Senator?

Senator U

DALL

. Yes, please, Mr. Rice.

Mr. R

ICE

. I am sorry. If I could add something to that, my experi-

ence has been as a litigator before I was a law professor that peo-

ple will find a way to bring these challenges when it is in their own

best interest. And for these tribes, not only the ones that have been

acknowledged since the 1934-area date, but for tribes who have

simply renamed themselves in their constitutions; for tribes who

have done exactly what these statutes and the IRA and the OIWA

and the Alaska Act called on them to do, and that is to reorganize

their government.

Sometimes, the Indians on one reservation would divide them-

selves into two tribes. Sometimes the two tribes on one reservation

combined themselves into one tribe for purposes of these constitu-

tions and charters. Were the now-reconstituted, reorganized tribe,

was that tribe recognized in 1934? Do they have sovereign immu-

nity? Do they have the right to pass statutes? Do they have the

right to organize their political life and structure under the IRA?

I can see all of these questions being raised in litigation. I don’t

think very many tribes are safe, if you want my real belief. I think

many tribes can win, but that is going to be after years of litigation

and thousands and thousands of dollars of legal fees that tribes

simply don’t need to have to spend.

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Senator U

DALL

. And they should be investing those dollars in

things that they want to do for their tribes, rather than for lawyers

and in court. Yes.

Mr. R

ICE

. Absolutely. I hate to beat myself out of a legal fee or

other lawyers out of a legal fee, but sir, to be honest with you, that

money should go into health care. It should go into education for

our grandchildren. It should go into other things besides having to

litigate what should be an open-and-shut case.

It should be a summary judgment if anybody brings it, but now

only Congress can give that to us.

Senator U

DALL

. Well, usually we think of court cases and deci-

sions as trying to simplify things and not create more litigation.

And that is just the opposite of what you are talking about here

with this Carcieri decision.

Thank you, Chairman Akaka. I see my time has run out, so

thank you.

The C

HAIRMAN

. We will have another round here, Senator Udall.

Professor Hoxie, you are well versed in the history of the Indian

Reorganization Act and the intent of Congress in enacting that law.

In your opinion, have the goals of the Indian Reorganization Act

been achieved? In other words, do you see the Act as still necessary

today or have its objectives been met?

Mr. H

OXIE

. I would say that the Indian Reorganization Act laid

out a broad agenda for a fundamental shift in the way the United

States interacted with Indian people and with Indian communities.

And that broad shift involved creating a mutually respectful rela-

tionship on a cultural level, on a political level and on a legal level

so that people could go forward and live together on this continent.

I think John Collier is often criticized for his very romantic and

very wide-ranging views, but I think they are an element in this

law. Many of his views were batted back and forth as he negotiated

with Congress over the final structure of the law. But I think ev-

eryone involved in that action realized that they were acting at a

moment of disaster. Indian people were literally starving in this

Country at this time. They had lost tens of millions of acres of

land. Their institutions had been undermined. There was no rec-

ognition for their integrity and their dignity.

This law was intended to reverse that process and chart a new

course. Now, that course has had its ups and downs. A number of

events have occurred in the last 80 years. So I would say, no, the

law has not been fulfilled, but that vision of being able to live to-

gether in a mutually respectful way, to have Indian people be citi-

zens of their own communities as well as citizens of the United

States, and to organize their own governments and to live the way

most other Americans live, that is with their own government, is

something that has really become rooted and really become the

foundation of Federal Indian policy.

So I don’t think in that sense the IRA will ever become irrelevant

because it really has set out that goal, but it has certainly not been

fulfilled.

The C

HAIRMAN

. Thank you.

Professor Rice, in your research of the Indian Reorganization Act,

did you ever come across documentation that indicated that Con-

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gress intended the Indian Reorganization Act to exist only for a

limited number of tribes or for a limited amount of time?

Mr. R

ICE

. The short answer to that, Senator, is no. As has al-

ready been said, at the time there was no list of federally recog-

nized tribes. There was no list of tribes under Federal jurisdiction.

The policy and the practice of the previous Administrations within

the Indian Office had been that when an individual or tribe lost

their land, they were no longer considered as subjects for the In-

dian 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. Cer-

tainly, 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 In-

dian 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 anthro-

pologists from the big universities to try to make a list of tribes,

and I have seen those records in the National Archives. They sim-

ply didn’t know who all the tribes were. Some had been dropped

by the wayside by virtue of a treaty. Some had just lost their land

and nobody knew where they were. Some had never had a treaty.

Some had had treaties with States, but not with the United States.

So that is where my research has taken me. And this was sup-

posed to be the new policy. It was supposed to move forward into

the future. There were no time limits set on the IRA. The only time

limit, in fact, was a one-year period which was later, I believe, ex-

tended to another year, for tribes to have an election to decide

whether or not the IRA would apply to them, and that is the only

real time limit that existed.

The C

HAIRMAN

. Thank you.

Professor Goldberg, in your testimony, you reference a conversa-

tion and a legislative record that centered on the meaning of the

words ‘‘under Federal jurisdiction’’ in the Indian Reorganization

Act. Do you think the court took the legislative history into account

when it issued the Carcieri decision?

Ms. G

OLDBERG

. Mr. Chairman, I think the Court took a very nar-

row view of the purpose of the Indian Reorganization Act. They fo-

cused almost exclusively on the repair of harm that was done

through allotment, which was certainly one of the purposes of the

Indian Reorganization Act, but to read that as the exclusive pur-

pose of the Act I believe is not consistent with what is there in the

legislative history.

And if you look at the passage that I provided, that is the ex-

change between Chairman Burton Wheeler and Commissioner

John Collier, what it reflects is a view by Commissioner Collier

that there really would be more flexibility in the application of the

law.

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And also, if you look at the broader purpose of the Indian Reor-

ganization Act, as we have been stressing, it was about revitalizing

tribal governments and enabling all tribes, not just allotted tribes,

that had lost land to restore the territorial basis for self-determina-

tion.

This broader purpose can only be fulfilled by affording the oppor-

tunity for land into trust as of the time the action is proposed by

the Federal Government. That is, whenever the tribe is deemed a

recognized one by the United States.

The C

HAIRMAN

. Well, thank you.

I will ask for further questions from Senator Udall.

Senator U

DALL

. Thank you, Chairman Akaka.

Listening to all three of you talk about this, something went ter-

ribly wrong in the Supreme Court with the way they interpreted

this piece of legislation, this law. And I want to try to get you to

help me understand what happened in terms of what came out. I

have been reading the comment, Ms. Goldberg, in your presen-

tation and the questions back and forth with Collier on that.

Typically, 50 years ago, 60 years ago in the Supreme Court, the

U.S. Supreme Court was the last bastion of native rights. I mean,

you would have a case come up and the District Court would rule

against native people and the Circuit Court would rule against na-

tive people, but the Supreme Court of the United States always

seemed to come out on the side of Native people. They would very

carefully analyze things and come out many, many times, in large

percentages advocating, supporting, supplementing native rights.

What is it that has happened here, in your opinion, that they

could get so far off the mark on this, missing the legislative his-

tory? What is going on?

Mr. Hoxie?

Mr. H

OXIE

. I am the non-lawyer here, so perhaps I could just

make a brief comment.

Senator U

DALL

. That isn’t just a legal question.

Mr. H

OXIE

. I guess my point is a fairly simple one, and that is

that I think within the legal community, there are various rules for

constructing congressional intent using the language of the statute.

And one of my definitions of a historian is the historian is in the

context business; is in the business of trying to get people to under-

stand the setting in which a law was passed.

And so my brief answer is that I think there was so much atten-

tion on the intricacies of the language of the Act that there was no

attempt made to step back and understand the context, the setting

in which this statute occurred.

Senator U

DALL

. And that goes to what you were talking about

as to where the tribes were historically at that point; that they

were at this very low point; that all of these very negative things

had happened in terms of legislation and allotments and on and on

and on.

And unless you understand that context and you just go do your

court analysis of the legislative history, you can’t fit the two to-

gether in a correct way is what you are saying.

Mr. H

OXIE

. Exactly. And as I point out in my testimony, this al-

lotment had all of these terrible effects, and then the Depression

hit. And the United States was actually asking the American Red

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Cross to come into communities to feed Indians because they were

completely powerless to help them. This was a desperate moment.

Ms. G

OLDBERG

. If I may just add to that, one of the things that

seems to be evident in some recent opinions of the United States

Supreme Court is a departure from some very fundamental, what

we call canons of construction, rules for interpreting statutes that

have been part of U.S. Supreme Court doctrine since the early

1800s and Chief Justice John Marshall.

And what those canons dictate is that when a statute is pre-

sented to the court that is ambiguous, the terms are not clear, that

all of the uncertainties or ambiguities are supposed to be resolved

in favor of supporting outcomes that favor tribal self-determination

and land rights.

And interestingly, I have found in some of the major historical

studies of the Indian Reorganization Act some rather frank ac-

knowledgment that there was some lack of clarity in the statute

itself about these broader purposes. One historian, Graham Taylor,

wrote, ‘‘What is a tribe? The Indian Reorganization Act did not se-

riously face this question, suggesting some ambiguity.’’ Another

historian, Elmer Rusco, wrote, ‘‘The Indian Reorganization Act did

define ’Indian’ and ’tribe,’ though ambiguously.’’

Well, if there were such ambiguities, my view is that if you un-

derstand the context that it should have been clear to the Court,

that the point in time where Federal recognition mattered was at

the time the land was to be taken into trust, the time the action

is proposed. But if there was any ambiguity, it should have been

resolved in favor of the tribes, and the Court seemed to have lost

sight of that.

Senator U

DALL

. And in the Carcieri case, they resolved it against

the tribes.

Ms. G

OLDBERG

. Precisely.

Senator U

DALL

. Just the opposite as to the way the legislative

construction is supposed to.

Ms. G

OLDBERG

. Precisely.

Senator U

DALL

. Yes. Thank you, Mr. Chairman.

The C

HAIRMAN

. Thank you very much, Senator Udall.

I want to thank this panel very much for your distinguished and

expert opinions here on the bill. You can see where we are trying

to reach in and understand what happened and what needs to hap-

pen now, to the point where if it requires any legislative action, we

will be working on that.

But we want to really try hard to bring it about so that the in-

digenous people of our Country will be treated with justice and

well.

So again, I want to thank this panel very much for coming and

helping us in doing this. Thank you.

I would like to invite the second panel to the witness table. Serv-

ing on our second panel is Mr. Steven Heeley, a consultant for Akin

Gump Strauss Hauer & Feld; and Professor Richard Monette, Asso-

ciate Professor of Law at the University of Wisconsin Law School.

I want to welcome you both to the Committee.

Mr. Heeley, will you please proceed with your testimony?

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STATEMENT OF STEVEN J.W. HEELEY, POLICY CONSULTANT,

AKIN, GUMP, STRAUSS, HAUER & FELD, LLP

Mr. H

EELEY

. Thank you, Mr. Chairman, Vice Chairman

Barrasso, Senator Udall and other Members of the Committee on

Indian Affairs. I am honored to be here today to present testimony

before this Committee.

I will focus my testimony primarily on the 1994 amendments to

the Indian Reorganization Act. Those amendments added sub-

sections F and G to section 16 of the Act. Subsection F prohibits

the Secretary of Interior and other departments of the Federal Gov-

ernment and agencies of the U.S. from promulgating any regula-

tion that classifies, enhances or diminishes the privileges and im-

munities available to an Indian tribe relative to other federally rec-

ognized Indian tribes, by virtue of their status as Indian tribes.

Subsection G provides that any regulation, administrative deci-

sion or determination of a department or agency of the Federal

Government that classifies, enhances or diminishes the privileges

and immunities of an Indian tribe relative to other Indian tribes

shall have no force and effect. These Amendments were adopted on

the Floor of the Senate and became Public Law 103–263.

Early in the 103rd Congress, this Committee and the House Sub-

committee on Native American Affairs determined that these

amendments were necessary to curb efforts on the part of the Ad-

ministration to classify or categorize Indian tribes as either his-

toric, and therefore entitled to the full panoply of inherent sov-

ereign powers not divested by treaty or congressional action; or cre-

ated and therefore possessing limited sovereign powers derived pri-

marily from Federal interests in benefitting Indians, not from their

historical status.

This issue came to light when the Pascua Yaqui Nation, a feder-

ally recognized Indian tribe, submitted amendments to its tribal

constitution under the IRA and the Department of Interior took

that occasion to review the status of the nation and made the de-

termination that it was not a historic tribe, but rather a created

one. In making this determination, the Department applied the def-

inition of a historic tribe, found and set forth in the Federal ac-

knowledgment procedures.

It should be noted that the Federal acknowledgment procedures

do not apply to federally recognized tribes like the Pascua Yaqui

Tribe.

The position articulated by the Department of Interior was based

on two solicitors’ opinions. The first in 1934 that described in gen-

eral terms the inherent sovereign powers of tribes, and a 1936

memorandum, a one-pager, that looked at two tribal constitutions

to determine whether the powers enumerated in those constitu-

tions were in fact powers held by those tribes.

The 1936 opinion forms the basis of this distinction articulated

by the department that created tribes lack the full panoply of pow-

ers of other federally recognized Indian tribes. Specifically, they

lack the power to condemn land, to regulate inheritance of tribal

members’ property, to assess taxes, and to regulate law and order.

Such an artificial distinction represents a significant departure

from the Congressional intent and purpose of the IRA and is remi-

niscent of the very policies of assimilation that the IRA was in-

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25 U.S.C. § 461 et seq.

25 U.S.C. § 476 (f)&(g), Public Law 103–263.

25 U.S.C. § 476(f).

25 U.S.C. § 476(g).

tended to address. In addition, the department’s reliance on the

1936 memorandum is misguided since section 16 had been amend-

ed by Congress in 1988 to eliminate references to Indians residing

on a reservation and clarify that any tribe was entitled to organize

for its common welfare and to adopt a constitution and bylaws.

In enacting Public Law 103–263, Congress rejected the artificial

distinction of historic and created tribes and made clear that any

regulation, rule or administrative decision that classifies, enhances

or diminishes the privileges and immunities available to a federally

recognized tribe relative to other tribes shall have no force and ef-

fect.

These provisions were intended to void any past determination

by the department that an Indian tribe was created and would pro-

hibit those determinations in the future.

Congress’ actions in the 103rd Congress was a reassertion of its

plenary authority over Indian affairs and reflects the read-and-

react interplay between Congress and the Administration in the ar-

ticulation of Federal Indian policy where Congress is regularly

called upon by Indian tribes to exercise its plenary authority in re-

sponse to an overreaching administrative action.

In the 75 years since its enactment, the IRA has stood as an en-

during bulwark against efforts to infringe upon and diminish the

sovereign powers of tribes. When Congress has had to periodically

revisit the Act to shore up or clarify certain provisions, as evi-

denced by the amendments in the 103rd Congress, the 108th Con-

gress and the 100th Congress, the IRA continues to stand for the

principles articulated by Congress those many years ago to revi-

talize tribal governments, to encourage tribes in the exercise of

their inherent sovereign authority and powers of self-government,

and to assist tribes in the restoration of their tribal land base and

to promote tribal economies.

That concludes my statement. I would be happy to answer any

questions, Mr. Chairman.

[The prepared statement of Mr. Heeley follows:]

REPARED

TATEMENT OF

TEVEN

J.W. H

EELEY

, P

OLICY

ONSULTANT

, A

KIN

, G

UMP

TRAUSS

, H

AUER

& F

ELD

, LLP

I would like to thank you Chairman Akaka, Vice Chairman Barrasso, and the

other distinguished members of the Committee on Indian Affairs for the invitation

to provide testimony on the Indian Reorganization Act.

I am honored to be here

before you today. I have been asked to focus my testimony on the 1994 Amendments

to the Indian Reorganization Act, which amended Section 16 of the Indian Reorga-

nization Act to add subsections (f) and (g) to the Act.

Subsection (f) prohibits the

Secretary of the Interior and other Departments and agencies of the United States

from promulgating any regulation which ‘‘classifies, enhances, or diminishes the

privileges and immunities available to the Indian tribe relative to other federally

recognized tribes by virtue of their status as Indian tribes.’’

Subsection (g) provides

that ‘‘[a]ny regulation, administrative decision, or determination of a Department or

agency of the United States that classifies, enhances, or diminishes the privileges

and immunities’’ of an Indian tribe relative to the privileges and immunities of

other federally recognized Indian tribes shall have no force or effect.

These provi-

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See page 12 of the April 30, 1993 Hearing Record of the House Subcommittee on Native

American Affairs on H.R. 734, to amend the act entitled ‘‘An Act to Provide for the Extension

of Certain Federal Benefits, Services, and Assistance to the Pascua Yaqui Indians of Arizona,

and for Other Purposes’’ for the prepared statement of Carol A. Bacon, Director, Office of Tribal

Services, Bureau of Indian Affairs.

Both Committees also heard from a number of federally recognized Indian tribes in Cali-

fornia, who had also been subject to the same administrative diminishment through reclassifica-

tion by the Department of the Interior. See page 16 of the April 30, 1993 Hearing Record of

the House Subcommittee on Native American Affairs on H.R. 734, to amend the act entitled

‘‘An Act to Provide for the Extension of Certain Federal Benefits, Services, and Assistance to

the Pascua Yaqui Indians of Arizona, and for Other Purposes’’ for the exchange between Chair-

man Richardson and the Acting Director of the BIA Office of Tribal Services.

25 C.F.R. § 83.1.

25 C.F.R. § 83.3(b).

December 3, 1991 Letter from Carol A. Bacon, Acting Director, Office of Tribal Services, Bu-

reau of Indian Affairs, to the Honorable Arcadio Gastelum, Chairman, Pascua Yaqui Tribal

Council.

sions were added as a Senate floor amendment to S. 1654, the Technical Corrections

Act of 1993, which became Public Law 103–263.

Early in the 103rd Congress, this Committee and the House Subcommittee on Na-

tive American Affairs determined that these amendments were necessary to curb ef-

forts on the part of the Administration to classify or categorize Indian tribes as ei-

ther ‘‘historic’’ and therefore entitled to the full panoply of inherent sovereign pow-

ers not otherwise divested by treaty or Congressional action or ‘‘created’’ and there-

fore possessing limited sovereign powers ‘‘derived from the primary federal interest

in benefiting Indians, not from the historical status of the group.’’

The Committees

became aware of the evolving practice of the Department of Interior to classify fed-

erally recognized Indian tribes as either ‘‘historic’’ or ‘‘created’’ pursuant to Section

16 of the Indian Reorganization Act. This practice came to light as a result of the

efforts of the Pascua Yaqui Nation of Arizona to amend their tribal constitution.

In reviewing the proposed amendments to the tribal constitution, the Department

of Interior took that occasion to review the status of the Pascua Yaqui Nation, a

federally recognized Indian tribe, and made the determination that it was not a

‘‘historic’’ tribe but rather a ‘‘created’’ one. In making this determination, the De-

partment applied the definition of a historic tribe set forth in the federal ‘‘Proce-

dures for Establishing that an American Indian Group Exists as an Indian Tribe’’

to the Pascua Yaqui Nation to determine whether it qualified as a ‘‘historic’’ tribe

or a ‘‘created’’ one. It should be noted that the Federal Acknowledgement Procedures

relied upon by the Department specifically exclude ‘‘Indian tribes, organized bands,

pueblos, Alaska Native Villages or communities which are already acknowledged as

such and are receiving services from the Bureau of Indian Affairs.’’

As a federally

recognized Indian tribe, the Pascua Yaqui Nation is specifically exempt from these

procedures.

Once the Department had made the determination that the Pascua Yaqui Nation

was ‘‘created’’ rather than ‘‘historic,’’ the Department could then make a determina-

tion on whether the Pascua Yaqui Nation possessed the inherent sovereign powers

set forth in its proposed amendments to its tribal constitution. In the Department

of Interior’s response to the Pascua Yaqui Nation, the Department discussed the dis-

tinctions between ‘‘historic’’ and ‘‘created’’ tribes:

The Department of the Interior’s (Department) position on historic tribes versus

adult Indian communities represents a longstanding interpretation of the law

and historical factual differences between groups of Indians and the policies of

the Department. Since the passage of the Indian Reorganization Act of June 18,

1934 (48 Stat. 984), the Department has held that adult Indian communities

may not possess all of the same attributes of sovereignty as a historic tribe. . . .

A historic tribe has existed since time immemorial. Its powers derive from its

unextinguished, inherent sovereignty. Such a tribe has the full range of govern-

mental powers except where it has been removed by Federal law in favor of ei-

ther the United States or the state in which the tribe is located. By contrast,

a community of adult Indians is comprised of simply Indian people who reside

together on trust land....The authority of a community of Indians residing

on the same reservation has been held generally not to include the power to

condemn land of members of the community, the regulation of inheritance of

property of community members, the levying of taxed upon community

member[s] or others, and the [r]egulation of law and order.

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Id.

Page 36, Department of Interior Solicitor’s Opinion issued on October 25, 1934, 55 I.D. 14;

1DOINA 445; 1934 DOINA Lexis 260.

Id. at page 37.

Page 1, Department of Interior Solicitor’s Opinion issued on April 15, 1936, 1 DOINA 618;

1936 DOINA Lexis 436.

Id.

25 U.S.C. § 476(a), see P.L. 100–581.

The position articulated by the Department of the Interior was based on two So-

licitor’s Opinions interpreting Section 16 of the Indian Reorganization Act.

The

first Solicitor’s Opinion was issued on October 25, 1934 by Solicitor Margold in re-

sponse to inquiries at the time regarding what sovereign powers are possessed by

Indian tribes and which powers can be incorporated into tribal constitutions and by-

laws pursuant to Section 16 of the Indian Reorganization Act.

The opinion sur-

veys a number of court decisions which recognize the various sovereign powers of

Indian tribes as well as various statutory authorities articulating the powers of self-

government of Indian tribes. Solicitor Margold opines that Indian tribes possess

‘‘those powers of local self-government which have never been terminated by law or

waived by treaty.’’

The Solicitor concludes that included in the sovereign powers

of Indian tribes is the power to adopt a form of government and procedures for the

election and removal of tribal officers; to define membership; to regulate domestic

relations of members of the tribe; to prescribe rules of inheritance with respect to

personal and real property; to assess taxes; to remove and exclude non-members of

the tribe from the reservation; to regulate the use and disposition of property within

the reservation; to administer justice regarding all disputes and offences among

members of the tribe; and to prescribe the duties and regulate the conduct of federal

officials provided such authority has been delegated by the Department of the Inte-

rior to the Indian tribe.

The second opinion providing the legal foundation for the Department’s practice

of administratively diminishing the sovereign powers of federally recognized Indian

tribes through reclassification, is a one page memorandum to the Assistant Commis-

sioner of Indian Affairs issued on April 15, 1936 regarding tribal elections on the

proposed constitutions of the Lower Sioux Indian Community and the Prairie Island

Indian Community in Minnesota.

In its review of the proposed constitutions of

both the Lower Sioux Community and the Prairie Island Community, the Solicitor’s

Office opines that:

Neither of these two Indian groups constitutes a tribe but each is being orga-

nized on the basis of their residence upon reserved land. After careful consider-

ation in the Solicitor’s Office it has been determined that under section 16 of

the Indian Reorganization Act a group of Indians which is organized on the

basis of a reservation and which is not an historical Indian tribe may not have

all of the powers enumerated in the Solicitor’s opinion on the Powers of Indian

Tribes dated October 25, 1934. The group may not have such of those powers

as rest upon the sovereign capacity of the tribe but may have those powers

which are incidental to its ownership of property and its carrying on of busi-

ness, and those which may have been delegated by the Secretary of the Inte-

rior.

The Solicitor concludes that neither tribe possesses the power to condemn land

of its members; to regulate the inheritance of tribal members’ property; and to as-

sess taxes.

It is this opinion that forms the basis for the Department’s efforts to

administratively diminish the sovereign authority of certain federally recognized In-

dian tribes by reclassifying such tribes as ‘‘created’’ tribes. It is the height of irony

that the Department relies upon the authorities contained in the Indian Reorganiza-

tion Act, an Act intended to strengthen and revitalize tribal governments and to re-

verse the impacts of the federal policy of assimilation, to administratively diminish

the sovereign authority of certain federally recognized Indian tribes. The views of

the Department in advancing this artificial distinction between federally recognized

Indian tribes represents a significant departure from the congressional intent and

purpose of the Indian Reorganization Act and is reminiscent of the very policies of

assimilation that the Indian Reorganization Act was intended to address. Further,

the Department’s reliance on the Solicitor’s April 15, 1936 memorandum was mis-

guided since Section 16 of the Indian Reorganization Act was amended by Congress

in 1988 to eliminate the references to Indians residing on a reservation and clarify

that ‘‘any Indian tribe is entitled to organize for its common welfare, and may adopt

an appropriate constitution and bylaws.’’

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December 3, 1991 Letter from Carol A. Bacon, Acting Director, Office of Tribal Services, Bu-

reau of Indian Affairs, to the Honorable Arcadio Gastelum, Chairman, Pascua Yaqui Tribal

Council.

25 U.S.C. 1300(f)(a).

See page 15 of the April 30, 1993 Hearing Record of the House Subcommittee on Native

American Affairs on H.R. 734, to amend the act entitled ‘‘An Act to Provide for the Extension

of Certain Federal Benefits, Services, and Assistance to the Pascua Yaqui Indians of Arizona,

and for Other Purposes.’’

Statement of Senator John McCain on the consideration of S. 1654, 140 Cong. Rec. S6146,

May 19, 1994.

25 U.S.C. § 476(f).

In hearings before the House Subcommittee on Native American Affairs the De-

partment of Interior relied on the April 15, 1936 memorandum to support its deter-

mination that the Pascua Yaqui Nation, as a ‘‘created’’ tribe, does not possess the

inherent power to regulate law and order, except where that authority has been del-

egated by the Secretary. The Department found that the Pascua Yaqui Nation did

not possess inherent sovereign powers, including the power to condemn land, to reg-

ulate inheritance of tribal member’s property, and to assess taxes.

In rejecting the

position advanced by the Department of Interior that the Pascua Yaqui Nation was

a ‘‘created’’ tribe, the Congress enacted P.L. 103–357 to clarify that the Pascua

Yaqui Nation ‘‘a historic tribe, is acknowledged as a federally recognized Indian

tribe possessing all the attributes of inherent sovereignty which have not been spe-

cifically taken away by Acts of Congress and which are not inconsistent with such

tribal status.’’

This Committee and the House Subcommittee on Native American Affairs recog-

nized that the issues confronted by the Pascua Yaqui Nation were not isolated, but

part of a larger effort of the Department of Interior to apply this distinction of his-

toric/created tribes to a large cross section of federally recognized Indian tribes. It

had been the practice of the Department that when Indian tribes submitted pro-

posed amendments to their tribal constitutions to the Secretary of the Interior pur-

suant to Section 16 of the Indian Reorganization Act, the Department would first

determine if the Indian tribe was ‘‘historic’’ or ‘‘created.’’ Those Indian tribes deter-

mined to be ‘‘created,’’ like the Pascua Yaqui Nation, were found not to possess the

full panoply of sovereign powers of other federally recognized Indian tribes. In testi-

mony before the Subcommittee on Native American Affairs, Department of Interior

witnesses testified that in addition to the Pascua Yaqui Nation there were a number

of other ‘‘created’’ tribes, however, when requested by the Subcommittee to provide

a list of ‘‘created’’ tribes, the Department could not.

In his floor statement during

the consideration of S. 1654, Senator McCain comments on the Department’s classi-

fication of ‘‘created’’ tribes:

At the same time, the Department insists that it cannot tell us which tribes are

created and which are historic because this is determined through a case-by-

case review. All of this ignores a few fundamental principles of Federal Indian

law and policy, Indian tribes exercise powers of self-governance by reason of

their inherent sovereignty and not by virtue of a delegation of authority from

the Federal Government. In addition, neither the Congress nor the Secretary

can create an Indian tribe where none previously existed.The recognition of an

Indian tribe by the Federal Government is just that—the recognition that there

is a sovereign entity with governmental authority which predates the U.S. Con-

stitution and with which the Federal Government has established formal rela-

tions. Over the years, the Federal Government has extended recognition to In-

dian tribes through treaties, executive orders, a course of dealing, decisions of

Federal courts, acts of Congress, and administrative action. Regardless of the

method by which recognition was extended, all Indian tribes enjoy the same re-

lationship with the United States and exercise the same inherent authority.

In enacting P.L. 103–263 Congress reasserted its plenary authority over Indian

affairs by prohibiting any departments or agencies of the Federal Government from

promulgating any regulation, rule or make any decision or determination pursuant

to the Indian Reorganization Act ‘‘that classifies, enhances, or diminishes the privi-

leges and immunities available’’

to federally recognized Indian tribes because of

their status as Indian tribes. In his floor statement during the consideration of S.

1654, Congressman Richardson discussed the threat presented by the Department’s

administrative diminishment of Indian tribes:

‘‘Mr. Speaker, there is great danger in a policy wherein the Department of the

Interior and the Bureau of Indian Affairs are allowed to limit the inherent sov-

ereign authority of Indian tribes by the Solicitor’s pen. If carried to an extreme,

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Statement of Congressman Richardson on the consideration of S. 1654, Cong. Rec. H3803,

May 23, 1994.

25 U.S.C. § 476(g).

Statement of Senator Daniel Inouye on the consideration of S. 1654, 140 Cong. Rec. S6147,

May 19, 1994.

The Committees heard from a number of federally recognized Indian tribes in California

as well as the Central Council of Tlingit and Haida Indian tribes of Alaska that had been left

off the published list and were being denied federal services.

25 U.S.C. § 479a & 479a-1; P.L. 103–454.

25 U.S.C.§ 479a-1(b).

P.L. 103–454, Section 103(1)&(2).

P.L. 103–454, Section 103(4).

P.L. 103–454, Section 103 (8).

the Solicitor could by fiat significantly erode tribal sovereignty through a series

of opinions and carry out his or her own termination policy. With the exception

of the framework imposed by the judicial branch, the formulation of Indian pol-

icy is virtually the sole province of the Congress and Indian tribes. The Con-

gress has never acknowledged distinctions in or classifications on inherent sov-

ereignty possessed by federally recognized Indian tribes. Tribal sovereignty

must be preserved and protected by the executive branch and not limited or di-

vided into levels which are measured by the Bureau of Indian Affairs and the

Department of the Interior. We must not revisit the darkest period of Federal

Indian policy by allowing the termination of tribal sovereign authority through

the implementation of the Bureau of Indian Affairs policy distinction between

historic and created Indian tribes.

The Congress rejected the artificial distinction of ‘‘historic’’ and ‘‘created’’ tribes

and made clear that any regulation, rule or administrative decision ‘‘that classified,

enhances, or diminishes the privileges and immunities available to a federally recog-

nized Indian tribe relative to other federally recognized Indian tribes...shall

have no force and effect.’’

The Congress intended these provisions to ‘‘void any

past determination by the Department that an Indian tribe is created and would

prohibit any such determinations in the future.’’

The work of this Committee and the House Subcommittee on Native American Af-

fairs during the 103rd Congress was not over as the Committees were presented

with yet another effort by the Department to terminate and/or diminish tribal sov-

ereign authority. The Secretary of the Interior is required to publish a list of feder-

ally recognized Indian tribes in the Federal Register. It had been the practice of the

Secretary to publish the list at irregular intervals and leaving a number of federally

recognized tribes off the list. In some cases this practice of leaving certain federally

recognized tribes off the list was inadvertent and in others it was by design.

When

an Indian tribe was not on the published list of federally recognized Indian tribes,

it was no longer eligible for a range of federal programs and benefits not the least

of which is program funding and services from the Bureau of Indian Affairs. In addi-

tion, most other federal agencies utilize the published list to determine tribal service

populations and funding eligibility. Indian tribes left off the published list were de-

nied federal benefits and services and their governmental status called into ques-

tion. In response to the denial of services to federally recognized Indian tribes, the

Congress passed the ‘‘Federally Recognized Indian Tribe List Act of 1994.’’

This

Act amended the Indian Reorganization Act to require the Secretary to publish a

list of all federally recognized Indian tribes annually in the Federal Register.

The

intent of the Congress underlying these amendments to the Indian Reorganization

Act are set out in the findings which recognize Congress’ plenary authority over In-

dian Affairs and the federal trust responsibility to all federally recognized Indian

tribes.

The findings also state that a federally recognized Indian tribe may not

be terminated except through an Act of Congress.

The Act requires the Secretary

to ensure the that list reflects all of the federally recognized Indian tribes eligible

for the special programs and services provided by the United States to Indians be-

cause of their status as Indians.

In his floor statement during the consideration

of the Federally Recognized Indian Tribe List Act of 1994, Congressman Thomas ex-

pressed concern that the measure did not go far enough to prevent continued efforts

by the Department to ‘‘de-list’’ or administratively terminate Indian tribes:

Mr. Speaker, I predict that our lack of action today will come back to haunt

us. Although the findings section of the title makes clear that only Congress has

the authority to derecognize a tribe, findings are not legally binding. Until we

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Statement of Congressman Thomas on the consideration of H.R. 4180, Cong. Rec. H10490,

October 3, 1994.

P.L. 108–204, Section 103.

See P.L. 103–263, which added subsections § 476(f) & (g); P.L. 103–454, which added sub-

section § 479a and § 479a-1; P.L. 108–204, which added subsection § 476(h).

make the prohibition unequivocal and give it the force of law, we will continue

to be faced with the prospect of the BIA usurping our authority.

The concerns expressed by Congressman Thomas regarding the Administration

usurping Congress’ plenary power are reflective of the ‘‘read & react’’ interplay be-

tween the Congress and the Administration in the articulation of federal Indian pol-

icy, where Congress is regularly called upon by Indian tribes to exercise its plenary

authority over Indian affairs in response to an overreaching administrative action.

A further example of this interplay between the Congress and the Administration

occurred during the 108th Congress when Congress adopted amendments to the In-

dian Reorganization Act to make clear that Indian tribes retain their inherent sov-

ereign authority to organize and adopt governing documents outside the authorities

of the Indian Reorganization Act.

In the 75 years since its enactment, the Indian Reorganization Act has stood as

an enduring bulwark against efforts to infringe upon and diminish the sovereign

powers of Indian tribes. While Congress has had to periodically revisit the Indian

Reorganization Act to shore up and clarify certain provisions of the Act as evidenced

by the various amendments enacted in the 103rd Congress and again in the 108th

Congress,

the Indian Reorganization Act continues to stand for the principles ar-

ticulated by the Congress those many years ago: to revitalize tribal governments,

to encourage tribes in the exercise of their inherent sovereign authority and powers

of self-government, to assist tribe in the restoration of their tribal land base and

to promote tribal economies.

This concludes my prepared statement. I would be happy to answer any questions

the Committee may have.

The C

HAIRMAN

. Thank you very much, Mr. Heeley, for your

statement.

Professor Monette, would you please proceed with your state-

ment.

STATEMENT OF RICHARD MONETTE, ASSOCIATE PROFESSOR

OF LAW, UNIVERSITY OF WISCONSIN LAW SCHOOL

Mr. M

ONETTE

. Good afternoon, Chairman Akaka, Senator Udall.

My colleague Robert Lyttle and I have assisted in advancing

some 30 constitutions for tribes. I also had the luxury of being on

staff on this Committee in 1988 when those amendments were

made. I was the Director of Legislative Affairs down at the Depart-

ment of Interior for the BIA in 1994 when that amendment was

made. And I was Chairman of my own tribe in 2001 when that

amendment was made. Those three amendments are, I think, all

key here.

For the record, I was not here in 1934 when the IRA was adopt-

ed.

You have heard the story about the Solicitor’s opinions from a

couple of witnesses so I won’t repeat those. Suffice it to say that

as Steve has said, it fashioned over time this distinction between

those tribes that were now under Federal jurisdiction and those

tribes thereafter recognized. And as Steve says, it became a distinc-

tion classified as historic or non-historic or actually using the word

created.

And in fact, I brought one of the letters from 1988 when those

amendments were being talked about by this Committee. And

there is a letter to the Ely Colony, and a sentence out of that letter

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says, ‘‘The Ely Indian Colony is classified as a created tribe, as op-

posed to a historical tribe.’’ It went on to explain that distinction.

And in the letter, they also said that the changes reflected that

the BIA was making in the constitutions was to make the proposal

legally and technically sufficient to conform with established bu-

reau policy. And so those 1988 amendments actually took the word

policy out of what the bureau was doing and said that the bureau’s

review of proposed constitutions and constitutional amendments

were to be limited to Federal law and policy was to be disregarded.

That is because this was one of the policies at play.

In 1994, it was even more on point, and just a little aside, I was

drafting a constitution for the Wisconsin Winnebago wherein they

changed their name to the Hochunk Nation. And we got some com-

munication back from the department that they were going to be

labeled a created tribe.

So when I got to be Legislative Affairs Director at the bureau

and the Yacqui Tribe raised this issue, I called some of the people

together to ask what should we do; Congress is going to want a

hearing on this. In fact, Senator McCain had asked for a list, can

you give us a list of these created and historic tribes so we know

who it is we are talking about? They could not provide a list, of

course.

But we did have a meeting, and I will go quickly. Four categories

came up. One of them was, as a couple of witnesses have said,

adult Indians of half-blood or more residing on the reservations.

Frankly, that applied to most of the California rancherias where,

for lack of a better term, remnants of some of the tribes were set-

tled or herded together to form a rancheria and a recognized entity.

The second was where we had sort of a confederated or com-

pound tribe like the Three Affiliated Tribes of the Fort Berthold

Reservation, the Confederated Tribes of the Warms Springs Res-

ervation. And that one is particularly key later on in the discus-

sion.

Third was where we had a tribe removed and part of the tribe

stayed back like the Oneida Tribe in New York, and part went to

a State like Wisconsin, and the department said only one of them

could be the historical tribe. The other one must be the created

one.

And finally, as you have heard here, them saying any tribe that

was recognized after 1934 was a created tribe.

And we had a meeting, and interestingly enough one of the direc-

tors of one of the departments down at the BIA was from the Three

Affiliated Tribes and was not happy to learn that the department

was treating his tribe as having less sovereignty than other tribes,

and it helped to kick-start some of the discussion.

So the department came up and gave testimony to this Com-

mittee, and we included a statement that the department actually

wanted to take out. The statement said that democracy requires us

to hold that government is by the governed. That sovereignty de-

rives from those over whom it is exercised. Imagine that, right, in

America.

You would think that sentiment would have ended the discussion

and eliminated the need for the Yacqui Elder to say, and I will par-

aphrase, but close with one of my favorite things I have ever heard.

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It was to this Committee and he said, Senator, my people have but

one creator, and in all due respect, you are not it.

[Laughter.]

Mr. M

ONETTE

. So in short, the 1994 amendment was sort of like

an equal footing doctrine, a 10th Amendment for tribes really to

recognize that tribes, as the last panel said, have the right to form

their own government and empower their government to do what

it needs to do over them, like any other people on the planet.

So I would repeat here again today, democracy requires us to

hold that government is of, for, and by the governed; that sov-

ereignty derives from those over whom it is exercised. And I would

be at a loss to try to decide whose version of democracy allows us

to decide that any less for an Indian tribe.

[The prepared statement of Mr. Monette follows:]

REPARED

TATEMENT OF

ICHARD

ONETTE

, A

SSOCIATE

ROFESSOR OF

NIVERSITY OF

ISCONSIN

CHOOL

Good morning Chairman Akaka and Members of the Committee. My name is

Richard Monette. My colleague, Robert Lyttle, and I have drafted either single con-

stitutional amendments or total constitutional revisions for over thirty different

tribes. Also, I worked for this Committee when the 1988 amendments were being

legislated. In addition, I served as Director of the Office of Legislative and Congres-

sional Affairs in the BIA when the 1994 Amendment to the IRA was enacted.

Thank you for inviting me to provide my views, specifically the opportunity to pro-

vide my perspective on the 1994 Amendment to the IRA and its relationship to the

Carcieri case and other recent legal developments. Today, sadly, we are struggling

with the unfortunate political realities of how to fix Carcieri. I say ‘‘unfortunate’’ be-

cause the 1994 amendment was intended to prevent Carcieri.

After Congress enacted the IRA, the Office of the Solicitor—DOI began to question

the wording and intent of the Act, including the provision that it applied to Tribes

‘‘now under federal jurisdiction’’. The Department concluded that Congress author-

ized reorganization of Tribes which had not historically been recognized in the same

form and fashion. As a result, the Department labeled some Tribes as historic and

others as not historic, or ‘‘created’’, a distinction that cannot be justified, and should

not be rationalized, by a Nation that purports to be the defender of democracy.

Over the years the historic versus created issue arose in four contexts in par-

ticular:

First, the IRA provided for the reorganization and recognition of adult Indians of

half blood or more residing on the same reservation despite the fact that those adult

Indians might actually represent many different tribes. This was the case with

many reorganized California tribes where citizens of different tribes were settled

onto single ‘‘rancherias’’. Outside California, Tribes falling into this category were

often labeled by the BIA as a Community or Colony. Obviously, given the unfortu-

nate history of California in particular, these newly anointed IRA Tribes were not

the same as the Tribe historically on those lands.

Second, the IRA contemplated reorganization and recognition for Tribes comprised

of multiple pre-existing Tribes, where the entire population of two or more Tribes

were-settled onto one reservation. Examples include the Three Affiliated Tribes of

the Fort Berthold Reservation, the Confederated Tribes of the Warm Springs Res-

ervation, the Shoshone and Arapaho Tribes of the Wind River Reservation. As you

can see, the moniker ‘‘Tribe of the such and such Reservation’’ identified these

Tribes. Again, obviously these newly anointed IRA Tribes were not the same as the

Tribe historically on those lands.

Third, the Secretary facilitated reorganization for Tribes split by America’s unfor-

tunate Removal policy and now living on two or more reservations. Examples in-

cluded the Oneida Nation in New York and the Oneida Tribe in Wisconsin, or the

Choctaw Nation of Oklahoma and the Mississippi Band of Choctaw, or the Wis-

consin Winnebago and the Nebraska Winnebago. Over the years, as illustrated in

the Supreme Court case United States v. John, the Department took the position

that only one of the resulting Tribes, either the removed or the un-removed Tribe,

could represent the Tribe historically dealt with by the United States. Again, obvi-

ously these newly anointed IRA Tribes were not exactly the same as the Tribe his-

torically on those lands, although in this instance the Department would have to

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admit each consisted of distinct Tribes with which the Department historically

dealt.

Fourth, the Department began to label or treat almost every newly recognized

Tribe as ‘‘created’’ simply because the United States had not previously recognized

them. Increasingly, in letters to the Tribes themselves and various papers, the De-

partment resurrected the idea that a created Tribe had less sovereignty than an his-

toric Tribe, particularly when it came to matters governing land.

In 1993 Robert Lyttle and I assisted in drafting the new current constitution for

the Wisconsin Winnebago, wherein the Hochungra proudly changed their sovereign

name from Winnebago—an Algonquin label—to their own name—the Hochunk Na-

tion. The Tribe itself, now stable, progressive, and successful, will tell you the trou-

bles it had prior to adopting a new constitution, so I will not labor the story here.

Nonetheless, because the Hochungra peoples were subjected to official removal from

Wisconsin, the Department threatened that the Hochunk Nation would be labeled

‘‘created’’, arguing the historic group had been removed to Nebraska. Thus, accord-

ing to the Department, the Hochunk Nation would be recognized with less sov-

ereignty, less jurisdiction, less democracy. One can’t help but wonder if Nebraska

Winnebago had reformed their constitution first, whether the Department would

have labeled the Nebraska Winnebago created and the Wisconsin Winnebago his-

toric. At best, the process was riddled with human intervention by career bureau-

crats—at worst it was abuse of discretion.

This matter came to Congress’ attention again in 1994 when the Department

treated the Pasqua Yaqui Tribe as a created Tribe. Senator McCain and this Com-

mittee requested a list of so-called ‘‘created Tribes’’ from the Department, but the

Office of the Solicitor-DOI refused, rationalizing that the distinction was made on

a case by case basis. During the course of those discussions, as Director of the Office

of Legislative Affairs, I sat in departmental meeting when a certain DOI deputy so-

licitor stated that the Three Affiliated Tribes of the Fort Berthold Reservation is a

created Tribe—the Tribe of which the Director of the Office of Tribal Government

was a member. So imagine his shock and personal consternation learning that the

Solicitor’s Office had concocted a legal theory leaving his own Tribe with less sov-

ereignty than other Tribes.

As a result of those discussions the Department offered only irresolute testimony,

but it could not bring itself to strike from its testimony a sentiment that some in-

sisted it contain—that Democracy requires us to hold that government is by the gov-

erned, that sovereignty derives from those over whom it is exercised. That senti-

ment should have been the axiomatic end of story, eliminating the need for a Yaqui

elder to testify, and I paraphrase: ‘‘Senator, my people have but one Creator, and

in all due respect, you’re not it.’’

Is Virginia an historic State but North Dakota only a ‘‘created’’ State? When the

Union was formed was North Dakota ‘‘now under Federal jurisdiction’’ ? Despite the

obvious historical anomalies between States, North Dakota is an ‘‘historical State’’,

a full State of this Union. By virtue of the ‘‘Equal Footing Doctrine’’, which applies

the democracy and the 10th Amendment to after-admitted States, North Dakota is

not ‘‘created’’, but is imbued with the full breadth and panoply of sovereignty as any

of the other State of this Union. Our democracy requires us to conclude that North

Dakota’s 400,000 voters have as much sovereignty to provide their State as Vir-

ginia’s 4 million voters have to give their State.

In short, the 1994 amendment to the Indian Reorganization Act was a statement

of the best that this Country’s democracy has to offer for Indian Tribes—a 10th

Amendment and an equal footing of sorts. In defiance of the power of Congress,

about one week after that amendment was signed into law the Offices of the Solic-

itor and Tribal Government sent out yet another ‘‘created Tribe’’ letter. So I repeat

here today: Democracy requires us to hold that government is of, for, and by the

governed; that sovereignty derives from those over whom it is exercised. Whose

version of democracy allows us to reach any other conclusion when it comes to a

recognized Indian Tribe?

The C

HAIRMAN

. Thank you very much, Professor Monette, for

your statement.

My first question goes to both of you. What is your view on the

Administration’s decision not to include any discussion of the in-

tent of the 1994 amendments to the Indian Reorganization Act in

their brief to the Supreme Court?

Mr. H

EELEY

. Mr. Chairman, Senator Udall, Members of the Com-

mittee, I found it curious in looking at the brief that there was

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scant discussion of any of the subsequent amendments to the In-

dian Reorganization Act. As you heard from the earlier testimony

and our testimony, the Congress has continually gone back to the

IRA and had to address either actions or overreaches by the Ad-

ministration or in some cases actions by the courts.

In the case of the 1994 amendments, it was intended to make

clear that if a tribe is federally recognized, they possess the full

panoply of powers of sovereign Indian tribes unless specifically di-

vested by treaty or Congressional action. In fact, the amendments

that were done in the 100th Congress were specifically designed to

target and deal with the residency requirement that had been used

to create this second lesser category of created tribes or adult In-

dian communities, to assert Congress’ plenary power to say a feder-

ally recognized Indian tribe possesses the full panoply of sovereign

powers unless they have been waived or unless they have been di-

vested by the Congress.

The C

HAIRMAN

. Professor Monette?

Mr. M

ONETTE

. Chairman Akaka, I think you almost want to at-

tribute the best of intentions to them. So in that light, the brief did

reference the 1994 amendment, as well as the others, but the 1994

one, which I think is more on point here, they only referenced it

once on page 19, footnote seven, and really only one sentence that

maybe gets about one-tenth of the way there. And I am not sure

why.

What I did write in my written testimony is about a week after

the President signed the 1994 amendments into law, the depart-

ment, with the Solicitor’s office and the Office of Tribal Govern-

ment, sent out another created and historic tribe letter, just utterly

disregarding what the president had just signed into law.

And so we called a meeting and called them together, and of

course, they said, well, it was an oversight and it was already in

the pipeline, et cetera. But don’t underestimate how deep this dis-

tinction and this now under Federal jurisdiction thing flows in the

department. And in fact, the person who is in there today leading

these issues is also the person who helped to draft this 1988 letter

and one of those people has been there since about 1973.

And they hold it sort of near and dear to their heart for some

strange reason. And they are not going to let it go unless we make

it perfectly clear. And the last time I took a stab at the first lan-

guage, Steve might remember it. It is why sometimes they say that

I pushed the envelope a little too far. The language was a little

more clear, saying that it is crazy to say that there are created

tribes, period.

When it got up to this more august and artistic body, it was re-

drafted to have the privileges and immunities language, but I real-

ly don’t think that is a defense of the Administration for not seeing

that this is what it was intended to address. They really just

missed the boat on it. I hate to attribute any bad intent to them,

but, again, the Solicitor from that department who could have been

helping with those arguments, who should have raised the issue

with the Department of Justice, really holds it near and dear.

The C

HAIRMAN

. Thank you for that.

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Mr. Heeley, do you think the court’s decision in Carcieri creates

the very situation you intended to address in the 1994 amendments

by effectively creating two classes of tribes?

Mr. H

EELEY

. Mr. Chairman, Members of the Committee, Senator

Udall, I think that is problematic. I was Counsel for the House

Subcommittee on Native American Affairs when the amendments

were being developed and passed. And Congress was very clear in

exerting its plenary authority to make clear that there should be

no distinctions as between federally recognized tribes and the pan-

oply of inherent sovereign powers that they exercise.

Subsequent amendments to the IRA also addressed the category

of tribes that chose not to, as the Vice Chairman referenced, orga-

nize under IRA constitutions, and to make clear that federally rec-

ognized Indian tribes had the right to not adopt an IRA constitu-

tion if they so chose.

Thank you.

The C

HAIRMAN

. Thank you.

Senator Udall, any questions you may have?

Senator U

DALL

. I think I am okay, Mr. Chairman, on this panel.

I am looking forward to the next panel.

The C

HAIRMAN

. All right. Thank you.

Senator U

DALL

. Thank you.

The C

HAIRMAN

. Mr. Monette, in your opinion as a former Depart-

ment of Interior official, what impact will the Carcieri case have on

the trust relationship between the Indian tribes and the Depart-

ment of Interior?

Mr. M

ONETTE

. The potential impact is great. The impact was

building when they were on a case-by-case basis deciding whether

a tribe was now under Federal jurisdiction and thus historic, or

thereafter recognized or otherwise acknowledged, and thus created.

And it makes a huge difference depending on who is writing the

letter and who is reading it. This letter says that the created tribes

don’t have the power to condemn land of their members; to regu-

late the inheritance of property; to levy taxes.

Now, Congress passed, for example, the American Indian Probate

Reform Act. I am guessing nobody up here thought we needed to

make sure that the created-historic tribe distinction didn’t put a

wrinkle into that Act. Right? But it might now.

So really I think the ways that people could figure out how this

distinction comes to bear is infinite. And there was a fellow that

walked this area a couple hundred years ago. His name was James

Madison. And he addressed an argument from some people that

were basically saying that the original States and the subsequent

States should be of a different level of sovereignty. And he argued,

as you know, strenuously why States would want to join a union

where they would be subordinate to their other sister States. And

he carried the day with the 10th Amendment and the idea that

sovereignty comes from those over whom it is exercised.

So whether Virginia has 4 million voters or North Dakota has

400,000 voters, they both have the same sovereignty to give to

their government. And that applies to a tribe that has 40,000 peo-

ple or 40 people. And that is the only logic that will allow 200

years of case law and principle be decided consistently, theoreti-

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cally and logically consistently. And anything short of that is good

maybe for lawyers, but nobody else.

The C

HAIRMAN

. I want to thank you very much, panel two, for

your testimony, your statements and your answers to our ques-

tions. Both of you have been part of this history that has been un-

raveling here over the years and we look forward to continuing to

work with you in trying to bring something about here.

Thank you very much for your testimony.

Mr. M

ONETTE

. Thank you, Mr. Chairman.

The C

HAIRMAN

. I would like to now invite the third panel to the

witness table: Mr. John Echohawk, Executive Director with Native

American Rights Fund; the Honorable Jefferson Keel, President of

the National Congress of American Indians; and the Honorable Mi-

chael Finley, Chairman of the Confederated Tribes fo the Colville

Reservation.

I want to welcome all of you to the Committee.

Mr. Echohawk, please proceed with your testimony.

STATEMENT OF JOHN E. ECHOHAWK, EXECUTIVE DIRECTOR,

NATIVE AMERICAN RIGHTS FUND

Mr. E

CHOHAWK

. Thank you, Mr. Chairman.

As you know and as Senator Udall knows, I am the Executive

Director of the Native American Rights Fund. We are a national

nonprofit legal organization dedicated to securing justice on behalf

of Native American tribes, organizations and individuals.

Since 1970, we have undertaken the most important and press-

ing issues facing Native Americans in courtrooms across the Coun-

try and here in the halls of Congress. I am honored to have been

invited to testify at this hearing today regarding the 75-year his-

tory of the Indian Reorganization Act and the severe negative im-

pacts and adverse consequences to all of Indian Country in the

wake of the United States Supreme Court’s 2009 decision in the

Carcieri v. Salazar case.

I have submitted written testimony that provides a little back-

ground information on the IRA. You have already heard today from

a number of witnesses that at one time the IRA was recognized as

sweeping legislation designed in 1934 to serve as the new

foundational charter for this Nation’s Indian policy.

In 1974, the United States Supreme Court in the Morton v.

Mancari case noted, ‘‘the overriding purpose of the IRA was to es-

tablish machinery whereby Indian tribes would be able to assume

a greater degree of self-government, both politically and economi-

cally.’’

My written testimony also provides detail regarding how the Su-

preme Court’s decision in Carcieri v. Salazar in 2009 is becoming

a proverbial wrench in this machinery, impeding the Department

of the Interior from fulfilling its mission to fully implement the

benefits of the IRA for all Indian tribes across this Country.

In my remarks today, I hope to shed a little light on specific liti-

gation being brought by States, local governments and others rais-

ing challenges to applications to have the Secretary acquire lands

into trust for the benefit of Indian tribes based on the court’s ruling

in Carcieri.

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Included in my written testimony is a seven-page summary of

current cases pending before the Federal courts, the Interior Board

of Indian Appeals and the Bureau of Indian Affairs, which illus-

trates the far-reaching consequences and potentially devastating

impacts of the Carcieri decision and the need for Congressional leg-

islation to provide a clean fix which will make clear that it is and

always has been Congress’ intent to have all Indian tribes treated

equally and fairly.

As the Chairman and the Members of this Committee are aware,

on February 24, 2009, the U.S. Supreme Court issued its extraor-

dinarily troubling decision in the Carcieri case, limiting the author-

ity of the Secretary of the Interior under the provisions of the IRA.

Carcieri involved a challenge by the State of Rhode Island to the

authority of the Secretary to take land into trust for the Narragan-

sett Tribe under the IRA. The Supreme Court held that the term

‘‘now’’ in the phrase ‘‘now under Federal jurisdiction and the defini-

tion of Indian’’ is unambiguous and limits the authority of the Sec-

retary to only take lands into trust for those tribes that were under

Federal jurisdiction on June 18, 1934, the date the IRA was en-

acted.

In Carcieri, the Supreme Court invoked a strained and circular

reading of a few sentences in the IRA to create different classes of

tribes. Given the fundamental purpose of the IRA, which was to or-

ganize tribal governments and restore land bases for tribes that

had been torn apart by prior Federal policies, the Court’s ruling is

an affront to the most basic policies underlying the IRA.

Despite our best efforts, an amicus brief filed by Indian tribes,

the National Congress of American Indians, Indian law professors,

and even an historians’ amicus brief spearheaded by Mr. Hoxie,

who has testified here today, the Court simply ignored Congress’

stated purpose under the pretext of interpreting the plain meaning

of the word ‘‘now.’’

The Supreme Court’s decision is destabilizing for a significant

number of Indian tribes. For over 70 years, the Department of Inte-

rior applied a contrary interpretation that the phrase ‘‘now under

Federal jurisdiction’’ means at the time of application.

The department has formed entire Indian reservations and au-

thorized numerous tribal constitutions and business organizations

under this interpretation of the IRA. Now, there are serious ques-

tions about the effect on long-settled actions, as well as on future

decisions. If the decision is not reversed by Congress, the Interior

Department will have to determine the meaning of ‘‘under Federal

jurisdiction’’ in 1934, an uncertain legal question and one that

makes little sense from a policy perspective.

By calling into question which federally recognized tribes are or

are not eligible for the IRA’s provisions, the court’s ruling in

Carcieri threatens the validity of tribal business organizations, sub-

sequent contracts and loans, tribal reservations and lands, and

could affect jurisdiction, public safety and provision of services on

reservations across the country.

You have already heard today that the court’s new interpretation

of the IRA is squarely at odds with Congress’ relatively recent di-

rection to the Federal agencies that all tribes must be treated

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equally regardless of how or when they received Federal recogni-

tion.

Thus, I do not need to repeat that testimony, but simply to im-

press upon the Committee that in order to reverse the damage

being caused to Congress’ overall Federal Indian policy by the

Carcieri decision, an amendment to the IRA is necessary to make

clear that its benefits are available to all tribes regardless of how

or when they achieve Federal recognition.

As I mentioned earlier, I have attached to my written testimony

a detailed summary of the litigation brought in the wake of the

Carcieri decision. As you will notice during your review of this ma-

terial, two petitions have already been filed in the Supreme Court

seeking review of decisions by the U.S. Court of Appeals for the

Federal Circuit which involve Carcieri-related claims. Although the

Court denied review, those two cases illustrate how parties oppos-

ing Indian tribes seeked to have the Supreme Court expand the

types of Carcieri-related claims to include challenges first to lands

already acquired by the Secretary in trust, and secondly, to the

very nature of tribal existence, the old ‘‘historic’’ versus ‘‘created’’

tribe distinction that Congress addressed in the 1994 legislation.

The C

HAIRMAN

. Mr. Echohawk, will you please summarize your

statement? All of your statement will be included in the record.

Mr. E

CHOHAWK

. I would like to bring, in closing, one case in par-

ticular to the attention of the Committee and that is the Patchak

v. Salazar decision, a recent decision for the U.S. Court of Appeals

for the D.C. Circuit which held in direct conflict with the 9th, 10th,

and 11th Circuits that the Carcieri challenge to land already ac-

quired in trust is not barred by the Indian lands exception to the

waiver of immunity under the Quiet Title Act. And to even reach

this unprecedented result, the D.C. Circuit had to first find that a

non-Indian landowner is within the zone of interest created by the

IRA and thus has standing to bring this Carcieri challenge.

This case is a prime example of how Carcieri may have a long-

lasting adverse impact on all 565 federally recognized tribes and

demonstrates the manner in which the lower Federal courts are fol-

lowing the lead of the Supreme Court and effectively terminating

tribal sovereignty, contrary to the stated policies of the Congress.

It illustrates the very real potential for a constant spillover of the

Carcieri decision, polluting other areas of law which traditionally

protected the rights and interests of Indian tribes. The lower courts

have not specifically decided the Carcieri challenge, but the D.C.

Circuit’s ruling has forced both the U.S. and the tribes to file their

petitions later this summer to seek review in the U.S. Supreme

Court.

[The prepared statement of Mr. Echohawk follows:]

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REPARED

TATEMENT OF

OHN

E. E

CHOHAWK

, E

XECUTIVE

IRECTOR

, N

ATIVE

MERICAN

IGHTS

UND

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The C

HAIRMAN

. Thank you very much for your statement.

And now, Mr. Keel, will you please proceed with your statement.

STATEMENT OF HON. JEFFERSON KEEL, PRESIDENT,

NATIONAL CONGRESS OF AMERICAN INDIANS

Mr. K

EEL

. Thank you, Mr. Chairman, Senator Udall.

Our predecessors had a shared vision for our future as Indian

people. Indian reservations should be places where the old ways

are maintained, our languages are spoken, and our children learn

our traditions and pass them on to the next generation. They are

places where there are fish in the stream and game in the field,

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and food and medicines grow wild for harvest; places where our

people can live and be Indian.

At the same time, this vision includes modern life, economic de-

velopment to sustain our people; safety and respectful relationships

with our neighbors; and the blessings of education, health care and

modern technology to help us thrive.

This vision was shared by the U.S. Congress in 1934 when it

passed one of the most important Federal laws in the history of our

Country, the Indian Reorganization Act. With the IRA, Congress

renewed its trust responsibility to protect and restore our tribal

homelands and the Indian way of life.

Two years ago, our shared vision and the Federal responsibility

to Indian tribes were threatened by the Supreme Court’s interpre-

tation of the IRA in Carcieri v. Salazar. Prior to 1934, the Federal

Government policy toward Indian tribes was to sell off the tribal

land base and assimilate Indian people. Kill the Indian and save

the man was the slogan of that era.

The Federal Government did everything it could to disband our

tribes, break up our families and suppress our culture. Over 90

million acres of tribal land held under treaties were taken, more

than two-thirds of the tribal land base, and the remaining lands

were often of little value for development or agriculture.

But in the 1930s, the assimilation policies were widely recog-

nized as failures. The policies did little more than inflict great suf-

fering on Indian people and dishonor our Nation.

In 1934, Congress rejected allotment and assimilation and

passed the IRA. The clear and overriding purpose of Congress was

to reestablish the tribal land base and restore tribal governments

that had withered under prior Federal policy. The legislative his-

tory and the Act itself are filled with references to restoration of

Federal support for tribes that had been cut off and to provide land

for landless Indians.

A problem with our legal system is that lawyers sometimes lose

sight of the fundamental purpose of the law, debate the meaning

of a few words, and suddenly the law is turned on its head. Today,

because of the Carcieri decision, we have opponents arguing that

tribes are not eligible for the benefits of the IRA if they were not

under active Federal supervision by the Bureau of Indian Affairs

in 1934, or if they did not have lands in trust in 1934.

Both of these arguments are contrary to the basic purpose of the

law to reestablish Federal support for tribes that had been aban-

doned or ignored by the BIA and to restore land to tribes that had

little or no land.

Today, 75 years later, the IRA is as necessary as it was in 1934.

The purposes of the IRA were frustrated first by World War II and

then by the termination era. Work did not begin again until the

1970s with the self-determination policy, and since then Indian

tribes are building economies from the ground up and they must

earn every penny to buy back their own land.

Still today, many tribes have no land base and many tribes have

insufficient lands to support housing and self-government and cul-

ture. We will need the IRA for many more years until the tribal

needs for self-support and self-determination are met.

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Two years have passed since the Carcieri decision and our fears

are coming to pass. There are at least 14 pending cases where

tribes and the Secretary of Interior are under challenge. There are

many more tribes whose land-to-trust applications have simply

been frozen while the Department of Interior works through pains-

taking legal and historical analysis.

We are seeing harassment litigation against tribes who were on

treaty reservations in 1934 with a BIA superintendent. It is litiga-

tion merely for the purpose of delay. Land acquisitions are delayed.

Lending and credit are drying up. Jobs are lost or never created.

We fear that this will continue to get worse until Congress acts.

Even worse, that this decision will create two classes of Indian

tribes: those who will benefit from Federal trust responsibility and

those who will not.

I want to thank you, Mr. Chairman, for holding this hearing, and

all the Members of the Senate Committee on Indian Affairs for

your work to pass the necessary legislation that will address this

pressing problem and return us to the understanding of the law

that existed for 75 years prior to the Supreme Court’s decision.

I am confident that we will succeed because our shared vision for

the future of Indian people is the right one. We deeply appreciate

your efforts on this issue and so many others.

Thank you very much.

[The prepared statement of Mr. Keel follows:]

REPARED

TATEMENT OF

. J

EFFERSON

EEL

, P

RESIDENT

, N

ATIONAL

ONGRESS

MERICAN

NDIANS

Our predecessors had a shared vision for our future as Indian people. Indian res-

ervations should be places where the old ways are maintained, our languages are

spoken, and our children learn our traditions and pass them on to the next genera-

tion. They are places where there are fish in the streams and game in the field and

our food and medicines grow wild for harvest—places where our people can live and

be Indian.

At the same time, this vision includes modern life—economic development to sus-

tain our people; safety and respectful relationships with our neighbors; and the

blessings of education, healthcare and modern technology help us thrive.

This vision that was shared by the U.S. Congress in 1934 when it passed one of

the most important federal laws in the history of our country—the Indian Reorga-

nization Act. With the IRA, Congress renewed its trust responsibility to protect and

restore our tribal homelands and the Indian way of life. Two years ago, our shared

vision and the federal responsibility to Indian tribes were threatened by the Su-

preme Court’s interpretation of the IRA in Carcieri v. Salazar.

Prior to 1934, the federal government policy toward Indian tribes was to sell off

the tribal land base and assimilate Indian people. ‘‘Kill the Indian and Save the

Man’’ was the slogan of that era. The federal government did everything it could

to disband our tribes, break up our families, and suppress our culture. 90 million

acres of tribal land that was held under treaties were taken, more than two thirds

of the tribal land base, and the remaining lands were often of little value for devel-

opment or agriculture. By the 1930s the allotment and assimilation policies were

widely recognized as failures. The policies did little more than inflict great suffering

on Indian people and dishonor on our Nation.

In 1934, Congress rejected allotment and assimilation and passed the IRA. The

clear and overriding purpose of Congress was to re-establish the tribal land base

and restore tribal governments that had withered under prior federal policies. The

legislative history and the Act itself are filled with references to restoration of fed-

eral support for tribes that had been cut off, and ‘‘to provide land for landless Indi-

ans.’’

A problem with our legal system is that the lawyers sometimes lose sight of the

fundamental purpose of a law, debate the meaning of a few words, and suddenly

the law is turned on its head.

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Today, because of the Carcieri decision, we have opponents arguing that tribes are

not eligible for the benefits of the IRA if they were not under active federal super-

vision by the BIA in 1934, or if they did not have lands in trust 1934. Both of these

arguments are contrary to the basic purpose of the law to re-establish federal sup-

port for tribes that had been abandoned or ignored by the BIA, and to restore land

to tribes that had little or no land.

Today, 75 years later—the IRA is just as necessary as it was in 1934. The pur-

poses of IRA were frustrated, first by WWII and then by the Termination Era. The

work did not begin again until the 1970’s with the Self-Determination Policy, and

since then Indian tribes are building economies from the ground up, and must earn

every penny to buy back their own land. Still today, many tribes have no land base

and many tribes have insufficient lands to support housing and self-government and

culture. We will need the IRA for many more years until the tribal needs for self-

support and self-determination are met. Two years have passed since the Carcieri

decision, and our fears are coming to pass. There are at least fourteen pending cases

where tribes and the Secretary of Interior are under challenge. There are many

more tribes whose land to trust applications have simply been frozen while the De-

partment of Interior works through painstaking legal and historical analysis. We

are seeing harassment litigation against tribes who were on treaty reservations in

1934 with a BIA Superintendant. It is litigation merely for the purposes of delay.

Land acquisitions are delayed. Lending and credit are drying up. Jobs and opportu-

nities are lost or never created. We fear that this will continue to get worse until

Congress acts. Even worse, that this decision will create two classes of Indian

tribes—those who will benefit from the federal trust responsibility and those who

will not.

Thank you Chairman Akaka and Vice Chairman Barrasso, and all the members

of the Senate Committee on Indian Affairs for your work to pass the necessary legis-

lation that will address this pressing problem and return us to the understanding

of the law that existed for 75 years prior to the Supreme Court’s decision. I am con-

fident that we will succeed, because our shared vision for the future of Indian people

is the right one. We deeply appreciate your efforts on this issue and so many others.

The C

HAIRMAN

. Thank you very much, President Keel, for your

testimony.

And now, Mr. Finley, will you proceed with your statement?

STATEMENT OF HON. MICHAEL O. FINLEY, CHAIRMAN,

CONFEDERATED TRIBES OF THE COLVILLE RESERVATION

Mr. F

INLEY

. Thank you. [greeting in native language].

Thank you for calling this hearing today.

My name is Michael Finley. I represent the Colville Confederated

Tribes of Northeast Washington State. I presently serve as Chair-

man. The Colville Tribes is a confederacy of 12 different distinct

aboriginal tribes that have existed since time immemorial and

today make up one tribe in Washington State.

Our original land base or original reservation that was created

in 1872 by executive order included all the land within the United

States that is bounded by the Columbia and Okanogan Rivers and

was about 3 million acres. We lost half of that, roughly, in 1891

via an agreement called the McLaughlin Agreement, also known as

the North Half Agreement to those at Colville. So in 1935, Colville

was asked to take the vote on IRA and we were one of the few

tribes that voted no, against accepting the IRA terms, by a vote of

562 no and 421 yes.

There was a lot of upheaval at the time because a lot of our trib-

al members, our elders who are around today share with us that

the superintendent of BIA at the Colville Agency was telling many

of our members that they need not show up to vote; that if they

did not show up to vote that their vote would be accepted as a yes

vote.

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So consequently, many of our members didn’t show up and IRA

didn’t pass. So we created a constitution in 1938 outside of the IRA

and today we exercise our sovereignty and jurisdiction under that

constitution.

Our elders also tell us that around that time, we had seen a lot

of our lands moving out of trust into fee ownership to non-Indians

following that 1935 vote. And many of those lands are cherished

lands around our lakes and rivers and today around many of the

larger municipalities that border our reservation. And so with that,

we get this checkerboard effect across the Colville Reservation and

it has created what I call a jurisdictional conundrum because of the

difficulties that we have with exercising our jurisdiction and sov-

ereignty on those lands around these municipalities.

Luckily, we do have a couple of cross-deputization agreements

with the counties that lie within the Colville Reservation, that

being the Okanogan and Ferry, but the larger cities, that being

Cooley Dam and Omak, we don’t have that. And so many of the

times when we respond to a call, we don’t have that necessary in-

formation that clearly identifies if it is fee or trust. We just respond

to all the calls.

And so because of that, it stretches our resources thin. Some-

times we have only one officer at any given time on an area the

size of 1.4 million acres, which is bigger than the State of Dela-

ware. And so there may be a possibility that that officer is respond-

ing from one end of the reservation to the other just to get to find

out that it is fee land involving a non-Indian.

As I stated, this has created a lot of problems for us. It has cre-

ated what I call bad case law. We have expended an enormous

amount of dollars trying to get this clearly identified through the

appropriate courts and this question is raised through various

means and times throughout the history since this was passed.

We have also had problems with the State of Washington with

jurisdiction over Lake Roosevelt because the Bureau of Reclama-

tion and the Federal Government sought to construct Grand Coulee

Dam just before IRA was presented. And so we didn’t have ade-

quate representation as we walked through that process. And so

consequently, we lost thousands of acres that are now inundated

beneath the backwaters of Lake Roosevelt.

And so with that, we continue to have jurisdictional rows because

there is clearly identifiable legislation that designates certain por-

tions of that lake bottom under certain authorities. And so now be-

cause of that, we have the State of Washington asserting their ju-

risdiction wholly within the boundaries of the reservation because

those backwaters go up certain tributaries of the Columbia River

such as the Sanpoll and the Okanogan. And with that, we are con-

tinually trying to assert our jurisdiction or authority, but it has

created an unfortunate situation and we are actually in litigation

as I speak today with the State of Washington over certain portions

of what they believe to be their authority.

So with that, I will close and I just want to thank the Committee

for allowing me to speak today and to present our views and our

hardships in Colville as a result of us not signing the IRA.

So thank you.

[The prepared statement of Mr. Finley follows:]

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REPARED

TATEMENT OF

. M

ICHAEL

O. F

INLEY

, C

HAIRMAN

, C

ONFEDERATED

RIBES OF THE

OLVILLE

ESERVATION

Good morning Chairman Akaka, Vice Chairman Barrasso, and members of the

Committee. On behalf of the Confederated Tribes of the Colville Reservation

(‘‘Colville Tribes’’ or the ‘‘Tribes’’), I would like to thank the Committee for con-

vening this hearing on the Indian Reorganization Act of 1934 (‘‘IRA’’) and allowing

me to testify. My name is Michael Finley and I am the Chairman of the Colville

Tribes and am testifying today in that capacity. In addition, I also serve as the

Chairman for the Intertribal Monitoring Association on Indian Trust, a national or-

ganization comprised of 65 federally recognized tribes from all regions of the coun-

try.

Today, I am pleased to share the Colville Tribes’ views and a bit of our history

regarding the IRA. My remarks today will focus on the legacy that the Colville

Tribes’ 1935 IRA election has left on the Colville Reservation, specifically as it re-

lates to our land and law enforcement.

The Colville Tribes and the IRA

Although now considered a single Indian tribe, the Confederated Tribes of the

Colville Reservation is, as the name states, a confederation of 12 aboriginal tribes

and bands from all across eastern Washington State. The present-day Colville Res-

ervation is located in north-central Washington State and was established by Execu-

tive Order in 1872. At that time, the Colville Reservation consisted of all lands with-

in the United States bounded by the Columbia and Okanogan Rivers, roughly 3 mil-

lion acres. In 1891, the 1.5 million acre North Half of the 1872 Reservation was

opened to the public domain. The Colville Tribes and its members possess reserved

hunting, fishing and gathering rights on the North Half.

The Colville Tribes rejected the IRA in an election held in April 1935, with 421

adult members voting in favor and 562 against. Peter Gunn, President of an orga-

nized group called the Colville Indian Association, protested to Commissioner of In-

dian Affairs John Collier that the local superintendent misled eligible Colville In-

dian voters into believing that the withheld votes would be counted as votes in favor

of adopting the IRA. Despite the protest, no new election was held. The Spokane

Tribe, which was also under the supervision of the same superintendant, perhaps

not coincidentally also voted to reject the IRA. Colville Indians ultimately voted to

approve a non-IRA constitution in February 1938. That constitution established the

Colville Business Council, the 14 member body that governs the Colville Tribes

today.

The Colville Tribes today has more than 9,400 enrolled members, making it one

of the largest Indian tribes in the Northwest. About half of the Tribes’ members live

on or near the Colville Reservation. Between the tribal government and the Tribes’

enterprise division, the Colville Tribes collectively account for more than 1,700 jobs

and is one of the largest employers in north-central Washington State.

The 1935 IRA election at the Colville Agency had long-term impacts on the

Colville Reservation, many of which continue to this day. As the Committee is

aware, Section 18 of the IRA provides that none of the provisions of the IRA apply

to any Indian tribe where a majority of adult Indians voted against its application.

Regardless of the integrity of our 1935 election, the outcome of that election meant

that the IRA did not apply to the Colville Reservation.

Checkerboarded Jurisdiction and Public Safety

According to our elders, it was the years immediately following the 1935 IRA elec-

tion that much of the valuable land on the Colville Reservation—specifically those

lands adjacent to lakes and rivers—passed into non-Indian hands. This is one of the

most visible legacies of the Tribes’ rejection of the IRA because it has resulted in

‘‘checkerboarded’’ jurisdiction on many areas of the Colville Reservation.

The Colville Tribes possesses more trust land within its borders than many land-

based Indian tribes, but this is only because the Colville Tribes has for the last sev-

eral decades set aside funds from its own tribal timber sales to repurchase fee lands.

Our checkerboarded areas today are near the more populated areas of the Reserva-

tion and in border communities. These also happen to be the areas where the

Colville Tribes’ police force receive the majority of its calls.

The Colville Tribes have been fortunate to have been able to enter into cross-dep-

utization agreements with the two counties on the Colville Reservation that miti-

gate the checkerboarding issues to a certain extent. The largest community on the

Colville Reservation, Omak, has its own police force and the Colville Tribes does not

have a cross-deputization agreement with that police department. The Tribes simi-

larly does not have a cross-deputization agreement with the Coulee Dam Police De-

partment, which is another populated border town on the Colville Reservation.

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In absence of a fast and reliable way to ascertain title of the land prior to re-

sponding to a call, the Colville Tribes’ police force generally responds to all calls on

the Colville Reservation out of an abundance of caution. The lack of cross-deputiza-

tion agreements is most apparent when calls originate on fee land within these mu-

nicipalities. Like many land based tribes, the Colville Tribes’ police force has a very

small number of officers to patrol a large area. In our case, we occasionally have

only a single officer to patrol the entire 1.4 million acre Colville Reservation. In cir-

cumstances where the Colville Tribes responds to calls where it is later determined

that these municipalities actually possess jurisdiction, it would not be inaccurate to

describe these situations as a diversion of tribal resources. Again, the continued

alienation of tribal land following the 1935 IRA election at least contributed to this

problem.

Loss of Protection of Tribal Lands

The legacy of the Colville Tribes’ 1935 IRA election is apparent in other areas be-

sides mixed ownership of land within the Colville Reservation. The United States

began construction on the Grand Coulee Dam in 1933, a massive project that would

ultimately inundate thousands of acres of tribal land through the creation of its res-

ervoir, Lake Roosevelt, and destroy the Tribes’ traditional fisheries forever. Histo-

rians have observed that without the structure of the IRA, the Colville Tribes (and

the Spokane Tribe) was at a disadvantage when dealing with the United States

when Reclamation began the project. Instead, the tribes were almost entirely de-

pendent on the Office of Indian Affairs to look out for their interests as the project

was developed.

To this day, the Colville Tribes continues to have jurisdictional disputes with

state and local officials on areas within the Lake Roosevelt management area. Some

of these disputes are attributable to checkerboarding, others to the creation and

management of the Lake itself by federal officials. All them in some way can be

traced to the 1935 Colville IRA election.

Another unfortunate legacy of the IRA was the loss of lands in the North Half.

Section 3 of the IRA authorized the Secretary of the Interior ‘‘to restore to tribal

ownership the remaining surplus lands’’ that were formerly part of an Indian res-

ervation but that had been open to disposal by the United States under any of its

public land laws. For the Colville Tribes, this meant that our lands in the North

Half generally remained unprotected from falling into non-Indian lands. Many of

these lands had already been subject to claims under the 1872 Mining Act. Although

the Secretary of the Interior took steps to protect these lands and Congress ulti-

mately took action in 1956, the outcome of the Tribes’ 1935 election complicated

matters significantly.

Other Legacies of the IRA

For the Colville Indians and others that rejected the IRA, the ability to utilize

certain IRA authorities remained in limbo for decades or, in some cases, still remain

unclear. For example, it was not until passage of the Indian Land Consolidation Act

in 1983 that Indian tribes that rejected the IRA were expressly allowed to have land

taken into trust under Section 5 of the IRA, 25 U.S.C. § 465. Tribes that rejected

the IRA would not be able to issue corporate charters under Section 17 of the IRA

until passage of the 1990 amendments to the IRA. Although Congress has not ex-

plicitly addressed this issue, it was not until last year that the Department of the

Interior reversed its prior position and concluded that the Secretary possessed the

authority to proclaim reservations under Section 7 of the IRA for tribes that pre-

viously voted against it.

The Colville Tribes appreciates the Committee convening this hearing and is

grateful to be able to share this history and perspective. At this time I would be

happy to answer any questions that the Committee may have.

The C

HAIRMAN

. Thank you very much, Chairman Finley, for your

testimony.

Mr. Echohawk, in your testimony, you indicate that the Carcieri

decision threatens the validity of many legal existing arrangements

between tribes and other businesses and even government entities.

In your opinion, if Congress does not enact a Carcieri fix, what are

the implications for tribes, businesses and neighboring commu-

nities?

Mr. E

CHOHAWK

. Mr. Chairman, I think as illustrated by these 14

cases that already exist out there over these Carcieri-related

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issues, I think we would only see a proliferation of more lawsuits

challenging all kinds of Federal and tribal actions that raise this

Carcieri issue. I don’t see any end to that.

The C

HAIRMAN

. Thank you.

President Keel, in your testimony you noted that there has been

‘‘harassment litigation’’ brought against tribes following the

Carcieri decision. Can you elaborate on what you mean by harass-

ment litigation and tell us what long-term impact you think this

continued litigation will have on the tribes involved and Indian

Country as a whole?

Mr. K

EEL

. Thank you, Mr. Chairman.

Right now, as I stated, there at least 14 cases that are pending.

These cases really serve no purpose other than delaying the inevi-

table. One thing that does concern me is that these lawsuits seem

to be frivolous, seemingly, as I said, for purposes of delay.

The long term effects of this litigation does concern me. The Fed-

eral courts are so unpredictable that every time a tribe subjects

itself to the Federal courts, we have no idea what the outcome may

be.

The other part of that is the cost, the tremendous cost to a tribe

in resources to hire lawyers to fight these cases. The tribes would

be better served if those funds and those resources were directed

back into housing, health care, other social service needs rather

than fight these frivolous lawsuits.

And as you have just heard, without a fix, the long-term process

prognosis would be just a proliferation of these types of cases.

Thank you.

The C

HAIRMAN

. Thank you very much, President Keel.

Chairman Finley, your tribe has been very active in its efforts to

restore your tribal homelands. Can you tell the Committee what

benefits the tribe and your local communities have seen from reac-

quisition of your homelands?

Mr. F

INLEY

. Well, historically, the Colville Tribes are a forest

products tribe, roughly 660,000 acres of our 1.4 million acres that

is left remaining of our reservation is commercial timber property.

And so we have diligently and aggressively been buying back land

since the 1980s. Today, we are second in the Pacific Northwest of

all tribes that retain trust ownership of our reservation, that being

1.2 million acres of the 1.4 million is in trust. And a lot of tribes

in the Northwest don’t have that luxury.

So since the 1980s, we have had an aggressive repurchase ac-

count wherein we use 10 percent of our profits from our timber

sales to purchase our own lands. And so because of that, we have

been able to employ a lot of our people in the woods. We have been

able to repurchase those lands that have an enormous amount of

timber on them. And that, in itself, creates the jobs that gets our

people out in the woods and back to work.

The C

HAIRMAN

. Thank you very much.

Mr. Echohawk, what overall impact do you think continued liti-

gation will have on the ability of tribes to govern, create jobs and

provide for their membership?

Mr. E

CHOHAWK

. I think because they are going to be facing these

challenges based upon Carcieri-related claims, their ability to ad-

dress all of the primary functions of tribal governments will be lim-

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ited. Their resources will be diverted to have to deal with this liti-

gation over whether they were under Federal jurisdiction in 1934

as it relates to all kinds of decisions by the Federal Government

that affect their tribal interests and decisions by the tribe itself

that affect tribal interests as well.

It is just going to be a tremendous distraction that can only be

fixed by this Congress with the Carcieri fix.

The C

HAIRMAN

. President Keel, in the last session of Congress,

we approved the Cobell settlement. Part of that settlement is for

tribes and individual Indians to consolidate and reacquire their

lands. In your view, does that settlement reaffirm the intent of

Congress and the Administration to encourage restoration of tribal

homelands?

Mr. K

EEL

. Mr. Chairman, I believe that one of the most impor-

tant features of the settlement itself was that it did set aside right

at $2 billion for the consolidation of those fractionated lands. And

I believe that indicates that Congress is still committed to restoring

those lands.

There was bipartisan support for that bill, so it wasn’t a partisan

bill. I think it does indicate that Congress still is committed to that

original IRA concept.

The C

HAIRMAN

. Thank you.

Chairman Finley, if the tribes were to be limited in their ability

to reacquire lands, what impact would that have on your ability to

self-govern and provide for your tribal membership?

Mr. F

INLEY

. Our land base is what feeds our families. Without

a land, we are not a people. And so I would say that because we

are able to buy back land at a high rate, we are able to expand

our jurisdiction and sovereignty.

In my earlier testimony, I alluded to the fact that we are having

problems with exercising that jurisdiction over lands because of

bad case law. And if we purchase that land back, we convert it to

trust, then we now have complete control of that land and the right

to govern and police our own.

However, I would urge the Committee, and I have been saying

this for some time, that to totally fix the problem, to have criminal

jurisdiction over non-members, we need an Oliphant fix, and you

don’t hear enough of that. We are talking about the welfare and

safety of our people. And I think that until we get that, tribes can’t

truly exercise their sovereign jurisdiction over their lands whether

it is fee or trust.

The C

HAIRMAN

. Thank you.

President Keel, there have been efforts that try to tie this issue

to gaming and lands taken into trust for gaming purposes. What

is your view on whether concerns about gaming are appropriate in

the context of the Carcieri discussions?

Mr. K

EEL

. Thank you, Mr. Chairman.

They are clearly separate issues. Trust land acquisition is a fun-

damental right of Indian tribes, primarily for community needs,

housing, natural resources protection, cultural activities, those

things that have to do with an Indian tribe’s identity.

Gaming is a separate issue. In fact, land acquisition is covered

under the Indian Gaming Regulatory Act and it is a completely

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separate issue. There are separate guidelines and separate tasks

that are involved in the acquisition of land for gaming purposes.

I am not saying that gaming is not important, because it has be-

come the life-blood of many of those communities. And I under-

stand that Senator Feinstein has introduced legislation, and I ap-

plaud her for that, but I want to reiterate that that is a separate

bill and it should be considered separately.

The C

HAIRMAN

. Thank you very much for that.

I want to tell you that we have had great witnesses today. All

three panels have done well. Your testimonies have been valuable

to us. We look forward to continuing to work with all of you on

this.

Again, I want to say mahalo and thank you to the witnesses at

today’s hearing. This has been very informative and one that I felt

we needed. We needed to air out the issues and get your feeling

about it. So we needed to have it as the Committee moves to ad-

vance S. 676, our Carcieri fix language, through the Senate.

I think that what we heard today just illustrates that Congress

was clear in its intent when it passed the Indian Reorganization

Act in 1934, and again with the amended Act in 1994. And I think

it is also clear that it is the responsibility of Congress to act when

its intentions have been misconstrued by the court.

It was great to hear from you folks about what you think about

these issues. Again, I am repeating, it will help us in our work

here.

My colleagues and I on the Committee are committed to pre-

serving the original intent of the Indian Reorganization Act to

allow tribes to restore their homelands and exercise self-determina-

tion.

Again, mahalo, thank you to all of you who participated in to-

day’s hearing. And I want to remind you that the Committee record

will remain open for two weeks from today. And I keep saying that

because I want you to feel that you can respond to us with what-

ever your feelings are and we would be delighted to receive your

responses.

Again, thank you very much and this hearing is adjourned.

[Whereupon, at 4:15 p.m., the Committee was adjourned.]

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(77)

APPENDIX

REPARED

TATEMENT OF

. C

EDRIC

ROMWELL

, C

HAIRMAN

, M

ASHPEE

AMPANOAG

RIBE

I thank the Committee for this opportunity to supplement the hearing record to

provide additional context for the need for the 1934 enactment of the Indian Reorga-

nization Act.

I appreciate the Committee’s interest in reviewing the context of the Congress’s

intent when enacting the Indian Reorganization Act—to provide relief to tribes ad-

versely affected by the prior policies that sought to dismantle tribal communities by

destroying tribal land bases and traditional lifestyle.

The Mashpee Wampanoag Tribe, whose government to government relationship

with the United States was reaffirmed in 2007, once occupied a large land area

throughout eastern Massachusetts and into present day Rhode Island. Today, it

lacks a single acre of federal trust land base. As many have stated, Congress in-

tended, through the Indian Reorganization Act, to repudiate the process of allotting

tribal land. To reach that goal, it empowered the Secretary of the Interior to acquire

land in trust to begin to restore tribal land holdings. The confusion in the wake of

the Carcieri decision is complicating our efforts to begin such restoration.

As others have testified, the process of allotting tribal lands was part of a massive

effort to disrupt tribal common land tenure. It has its origins with the General Al-

lotment Act of 1887, commonly referred to as the Dawes Act. Named after its prin-

cipal sponsor, Massachusetts Senator Henry Dawes, the Act established the most

powerful federal apparatus for dispossessing tribal communities of their lands. Sen-

ator Dawes was continuing an effort that had already proved successful in Massa-

chusetts.

Decades before the General Allotment Act, the Mashpee Wampanoag Tribe was

among the first to be harmed by allotment policy. Massachusetts was among the

first states to use that strategy to separate the people from their homeland.

The Mashpee Tribe, as part of the Wampanoag Confederacy, once exercised con-

trol over a land area that extended from Cape Cod to the Blackstone River and Nar-

ragansett Bay in present day Rhode Island and up to the Merrimack River near

present day Gloucester, Massachusetts. The spread of disease, colonization and

English Settlement quickly decimated that base. Despite the trauma of first contact,

years after the establishment of the Plymouth Colony, a remnant of tribal homeland

was still protected.

For centuries after English settlement, the Mashpee Tribe still held approxi-

mately 55 square miles of land in common based on historic deeds to the Tribe. This

was confirmed by deeds that the Plymouth Bay Colony reexecuted and recorded as

Marshpee Plantation in 1671. The deeds provided that land could not be sold out-

side the Tribe without unanimous consent of the whole Tribe.

Through deed restrictions, Tribal lands were protected against alienation for two

centuries, assuring that the Wampanoag had a secure, if diminished, homeland that

was capable of housing our people and providing them with food from the land and

the waters. The Colony and later the Commonwealth of Massachusetts respected

the tribal right to possess the land until an 1842 Act of the General Court provided

for the land to be divided up and then allotted in severalty to tribal members.

In 1869, two votes in Mashpee were held seeking the Tribe’s consent to this allot-

ment policy. Tribal voters twice rejected the proposal. However, in 1870, each tribal

member over 18 received 60 acres of land—freely alienable and fully taxable. The

effect of this law was to destroy the Tribe’s reservation and deprive the Tribe of

thousands of acres of tribal common lands. This single act by the Massachusetts leg-

islature seriously wounded our Tribe.

The Mashpee experience thereafter foreshadowed the effect that the Allotment

Act had throughout Indian country. Once lands were alienable, desperately poor

tribal members would in short time lose their parcels. By 1871, outsiders had ac-

quired control of the choicest plots of land in Mashpee, immediately clear-cutting

much of the last remaining hardwood in Massachusetts. Speculative development

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soon followed. Even though the Mashpee Tribe retained political control of the Town

of Mashpee as long as outsiders were not permanent residents, the die was cast.

By the late twentieth century, the Tribe had lost control of its land base.

As Mashpee development accelerated, the Tribe and its members continued to lose

land, the environment continued to degrade, and the tribal members, forced out of

Town government, received no benefit. Today, many tribal members cannot afford

to live where their ancestors are buried, and we are struggling to overcome the bar-

riers that the Carcieri case has imposed to our ability to restore even a small por-

tion of our homeland.

Although we believe that the Secretary of the Interior retains the ability to take

land in trust for our Tribe, the uncertainty surrounding the Carcieri decision has

caused confusion as well as the promise of protracted and costly litigation when our

initial reservation is approved.

The Mashpee Tribe was one of the first targets of the allotment policy that Massa-

chusetts Senator Henry Dawes brought to bear on other tribes throughout the coun-

try. We now urge this Congress to take action to finish the job it started in 1934,

and provide meaningful relief—to Mashpee and to other Indian tribes that have

been harmed.

The Mashpee Tribe has been here long before 1934. Despite centuries of pro-

tecting our homeland from encroachment, we were devastated by the first impact

of forced allotment. In 1934 Congress recognized that allotment was a failed policy,

unfairly destructive of tribal communities. We suffered that harm before 1934 and

continue to suffer from it today. We ought to benefit from the actions and the assist-

ance that Congress promised in 1934. This Congress should stand by its promise,

and enact the fix necessary to avoid the further harm posed by the flawed decision

of the Supreme Court.

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