[Senate Report 111-247]
[From the U.S. Government Publishing Office]
Calendar No. 515
111th Congress Report
SENATE
2d Session 111-247
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AMENDING THE ACT OF JUNE 18, 1934, TO REAFFIRM THE AUTHORITY OF THE
SECRETARY OF THE INTERIOR TO TAKE LAND INTO TRUST FOR INDIAN TRIBES
_______
August 5, 2010.--Ordered to be printed
_______
Mr. Dorgan, from the Committee on Indian Affairs, submitted the
following
R E P O R T
[To accompany S. 1703]
The Committee on Indian Affairs, to which was referred the
bill (S. 1703) to amend the Act of June 18, 1934, to reaffirm
the authority of the Secretary of the Interior to take land
into trust for Indian tribes, having considered the same,
reports favorably thereon, and recommends that the bill do pass
as amended.
Purpose
S. 1703 clarifies the continuing authority of the Secretary
of the Interior, under the Indian Reorganization Act of 1934,
to take land into trust for all Indian tribes that are
federally recognized on the date on which the land is placed
into trust.
Background
Land holds great meaning to Indian tribes, just as it does
for other governments. For tribes, land provides a means to
advance tribal sovereignty and self-determination. Tribes need
land in trust for a wide range of beneficial purposes. Trust
land is essential to tribes' ability to protect or promote
their historic, cultural and religious ties to land where their
ancestors lived. Trust land is also vital to tribal economic
development and self-government as tribes provide a wide range
of governmental services to their members including, running
schools and health clinics, administering housing, and
providing court, law enforcement and numerous other key social
and governmental services. Land taken into trust for Indian
tribes directly furthers these and other self-determination
functions.
The long history of Indian land losses is well known. From
the very first days of the Republic, Indian tribes have given
up large areas of land to the United States, which in return
has assumed the duty of protecting the tribes on those lands
retained.\1\ But despite the government's trust obligation to
protect Indian landholdings, tribes continued to suffer
devastating land losses at the hands of the federal government.
The federal allotment policy alone resulted in a loss of more
than 100 million acres of tribal homelands.\2\ The destruction
of tribal economies, institutions, and communities followed
directly from the decimation of the tribal land base. The
history and circumstances of land loss and the economic,
social, and cultural consequences of that loss, are at the core
of government's federal trust responsibility toward Indian
tribes.
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\1\See Board of County Comm'rs v. Seber, 318 U.S. 705, 715 (1943).
\2\To Grant Indians Living Under Federal Tutelage the Freedom to
Organize for Purposes of Local Self-Government and Economic Enterprise:
Hearing on S. 2755 Before the Senate Comm. on Indian Affairs, 73rd
Cong., 2d Sess., 30-31 (1934) (testimony of Commissioner of Indian
Affairs John Collier).
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Congress was aware of these problems\3\ and intended to
reverse these tribal land losses when it enacted the Indian
Reorganization Act of 1934, 25 U.S.C. 461-479. The Indian
Reorganization Act (IRA) (also known as the ``Wheeler-Howard
Act'' for the bill's congressional sponsors or informally as
``the Indian New Deal'') sought to strengthen tribal
governments and restore the Indian land base. The sponsors of
the IRA expressed their intent 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.''\4\ The IRA authorized the Secretary of the
Interior to take lands into trust for tribes to reverse the
significant historic losses of tribal homelands. Since the
enactment of the IRA, approximately five million acres of land
have been acquired and placed into trust for Indian tribes and
their members.
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\3\These problems were identified in a 1928 report, known as the
``Meriam Report,'' which was prepared by the Institute for Government
Research at the direction of the Secretary of the Interior, Hubert
Work. The Institute undertook a survey of the social and economic
status of Indians, and found, among other things, that the loss of
Indian land was among the principal causes of the resulting poverty of
Indian people. See Institute for Government Research, ``The Problem of
Indian Administration'' (February 21, 1928.)
\4\H.R. Rep. No. 1804, 73rd Cong., 2d Sess., at 6 (1934).
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Congressman Howard of Nebraska, the sponsor of the bill in
the House of Representatives and Chairman of the House Indian
Affairs Committee, described the ``staggering'' losses of
Indian lands.\5\ He explained that the Act would help remedy
the problem by preventing ``any further loss of Indian lands''
and permitting the purchase of additional lands.\6\ Congressman
Howard reasoned that the restoration of the tribal land base
was not only a legal but also a moral obligation. ``[T]he land
was theirs under titles guaranteed by treaties and law; and
when the government of the United States set up a land policy
which, in effect, became a forum of legalized misappropriation
of the Indian estate, the government became morally responsible
for the damage that has resulted to the Indians from its
faithless guardianship.'' He further stated that the purpose of
the IRA was ``to build up Indian land holdings until there is
sufficient land for all Indians who will beneficially use
it.''\7\
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\5\78 Cong. Rec. 11,727-28 (1934).
\6\78 Cong. Rec. 11,726-727 (1934) at 11,727; see also 78 Cong.
Rec. 11,123 (June 12, 1934) (statement of Senator Wheeler, sponsor of
the bill in the Senate, echoing the remedial goals in relation to
Indian lands).
\7\78 Cong. Rec. 11,732 (1934).
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Congress understood that a land base was essential for the
economic advancement and self-support of the Indian communities
and the preservation of tribal culture. The need to provide
land for Indians was recognized as an important part of the
Act\8\ as it would be beneficially used to increase Indian
self-support.\9\
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\8\See S. Rep. No. 1080, at 2 (stating that section 5 would ``meet
the needs of landless Indians and of Indian individuals and tribes
whose land holdings are insufficient for self-support''); H.R. Rep. No.
1804, at 6 (noting that the purchase of lands would help ``[t]o make
many of the now pauperized, landless Indians self-supporting''); 78
Cong. Rec. 11,730 (statement of Rep. Howard that section 5 would
``provide land for Indians who have no land or insufficient land, and
who can use land beneficially'')
\9\See, e.g., S. Rep. No. 1080.
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Congress saw the IRA as a means not simply of halting the
prior federal policies that had so destroyed Indian communities
and Indian economies but reversing the course that led to those
losses. The IRA has been recognized as one of the most
important pieces of Indian legislation in American history. It
made a change in federal Indian policy intended ``to establish
machinery whereby Indian tribes would be able to assume a
greater degree of self-government, both politically and
economically.''\10\ By the Act, Congress sought to revitalize
and strengthen the institutions of tribal government,\11\ and
``rehabilitate the Indian's economic life and to give him a
chance to develop the initiative destroyed by a century of
oppression and paternalism'' so that a ``tribe taking advantage
of the Act might generate substantial revenues for the
education and the social and economic welfare of its
people.''\12\ These principles have served as the foundation
for federal Indian policy in the modern era of tribal self-
determination.\13\
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\10\Morton v. Mancari, 417 U.S. 535, 542 (1974).
\11\See Morton, 417 U.S. at 543, Iowa Mutual Ins. Co. v. LaPlante,
480 U.S. 9, 14 n.5 (1987); Fisher v. District Court, 424 U.S. 382, 387
(1976).
\12\Mescalero Apache Tribe v. Jones, 411 U.S. 145, 151-52 (1973)
(citations omitted).
\13\See California v. Cabazon Band of Mission Indians, 480 U.S.
202, 219 (1987); White Mountain Apache Tribe v. Bracker, 448 U.S. 136,
143 & n. 10 (1980).
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Restoration of land to tribal ownership was central to the
overall purposes of the IRA. Congress consistently recognized
that the restoration of tribal land bases by taking land into
trust was essential to tribal self-determination. As
Congressman Howard succinctly stated during the House
consideration of the measure, ``[l]and reform and in [sic] a
measure home rule for the Indians are the essential and basic
features of this bill.''\14\
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\14\78 Cong. Rec. 11,729 (1934).
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The IRA was signed into law on June 18, 1934. Section 5 of
the IRA provides for the recovery of the tribal land base and
is integral to the IRA's overall goals of recovering from the
loss of land and reestablishing tribal economic, governmental
and cultural life:
The Secretary of the Interior is hereby authorized,
in his discretion, to acquire, through purchase,
relinquishment, gift, exchange, or assignment, any
interest in lands, water rights, or surface rights to
lands, within or without existing reservations,
including trust or otherwise restricted allotments,
whether the allottee be living or deceased, for the
purpose of providing land for Indians.
* * * * *
Title to any lands or rights acquired pursuant to
this Act . . . shall be taken in the name of the United
States in trust for the Indian tribe or individual
Indian for which the land is acquired, and such lands
or rights shall be exempt from State and local
taxation.\15\
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\15\25 U.S.C. Sec. 465.
Of the more than 100 million acres of tribal homelands lost
through the allotment process alone, only approximately 8
percent have been restored to trust status since the IRA was
passed 75 years ago. Still today, a number of federally
recognized Indian tribes have no land base or insufficient
lands to support a governing base, or basic community needs
such as housing, education, or economic development. In
addition, many tribal land parcels are deeply fractionated, a
result of allotment policies, which means that far more Indian
land passes out of trust than gets taken into trust each
year.\16\
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\16\G. William Rice, The Indian Reorganization Act, The Declaration
on the Rights of Indigenous Peoples, and a Proposed Carcieri'Fix':
Updating the Trust Land Acquisition Process, 45 Idaho L. Rev. 575, 587-
89 (2009).
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THE DEPARTMENT OF THE INTERIOR'S LAND INTO TRUST PROCESS
For the more than 75 years since enactment of the IRA, the
Department of the Interior understood and construed the Act to
authorize the Secretary to acquire land in trust for the
benefit of any tribe that was federally recognized at the time
of the trust land acquisition. The Interior Department's
statutory construction of the Act was confirmed when the
Department, in 1980, promulgated formal regulations to guide
the Secretary's decision-making process when exercising
authority to place tribal land into trust pursuant to the
IRA.\17\ The regulations at 25 C.F.R. Part 151 define the term
``tribe'' to mean ``any Indian tribe, band, nation, pueblo,
community, Rancheria, colony, or other group of Indians . . .
which is recognized by the Secretary as eligible for the
special programs and services from the Bureau of Indian
Affairs.''\18\ The term ``individual Indian'' means ``any
person who is an enrolled member of a tribe,'' any person who
is a descendant of a tribal member who, in 1934, resided ``on a
federally recognized Indian reservation,'' and persons ``of
one-half or more degree Indian blood of a tribe.''\19\
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\17\Prior to 1980 and after passage of the IRA in 1934, Interior
used an internal process to decide when and how a tribe could put land
in trust. Although the 1980 regulations were subject to comment before
they were finalized, the process as it currently stands closely
resembles Interior's pre-1980 unpublished guidelines. Padraic I. McCoy,
The Land Must Hold the People: Native Modes of Territoriality and
Contemporary Tribal Justifications for Placing Land into Trust Through
25 C.F.R. Part 151, 27 Am. Indian L. Rev. 421, 453-54 (2003).
\18\25 C.F.R. Sec. 151.2(b).
\19\25 C.F.R. Sec. Sec. 151.2(c)(1)-(3).
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These regulations govern both on and off-reservation land
into trust acquisitions. The 151 process is initiated when an
Indian tribe or an individual Indian submits a written request
to take land into trust to their local Bureau of Indian Affairs
(BIA) agency or regional office. The BIA makes several
determinations following the initial request, including whether
the acquisition is mandatory or discretionary and whether the
acquisition is on or off reservation.
For on-reservation land into trust acquisitions, the
applicant must submit (1) a map and a legal description of the
land; (2) a justification of why the land should be placed in
trust; and (3) information on the present use of the property,
the intended use of the property, and whether there are any
improvements on the land. The Regional Office or Agency
Superintendent makes the final determination of whether to
approve the on-reservation application. In making its decision,
the BIA takes into account such factors as the need of the
individual Indian or tribe, the impact on the state and its
political subdivisions resulting from removing the land from
the tax rolls, any jurisdictional issues that may arise, and
whether the BIA is equipped to carry out its trust
responsibilities if the land is acquired. For off-reservation
land acquisitions additional information is required, including
a business plan if the acquisition is to be used for economic
development purposes. Off-reservation acquisition decisions are
made at the BIA's Central Office in Washington, D.C.\20\
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\20\In making his determination on off-reservation parcels, the
Secretary must take into account the criteria for on-reservation
parcels as well as the location of the land relative to state
boundaries and the distance of the parcel from the reservation, the
anticipated economic benefits associated with the proposed use, and the
comments received from the state and local governments. 25 C.F.R.
Sec. 151.11.
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Once all the relevant information has been provided, the
BIA sends out notification letters to the state, county, and
municipal governments with regulatory jurisdiction over the
land, notifying them of the application and requesting comments
on the impact if the lands are acquired as trust lands.\21\
Specifically, the BIA requests information on the change to the
local government's regulatory jurisdiction, affect on real
property taxes, and special assessments.\22\ If, following this
process, the Secretary decides to take the land into trust, the
Secretary publishes a notice of the decision in the Federal
Register with a statement that the Secretary shall ``acquire
title in the name of the United States no sooner than 30 days
after notice is published.''\23\
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\21\25 C.F.R. Sec. Sec. 151.10, 151.11.
\22\Id.
\23\25 CFR Sec. 151.12(b).
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Need for the Legislation
The recent Supreme Court decision, Carcieri v. Salazar,\24\
will erode congressional intent of the IRA, and will serve as a
barrier to meeting the Act's goals of tribal land restoration.
The Carcieri decision runs contrary to longstanding and settled
practice of the Department of the Interior regarding trust land
acquisitions; invites disparate treatment of federally
recognized tribes contrary to previous Acts of Congress;
creates uncertainty about the scope of the Secretary's
authority; and threatens unnecessary and burdensome
administrative proceedings and litigation for both the United
States and the tribes on matters that Congress long ago
intended to resolve. As a result, Senator Dorgan introduced,
and the Committee approved, S. 1703 to confirm the Secretary of
the Interior's authority to place land into trust for all
tribes that are federally recognized on the date the Secretary
takes the land into trust, and to ratify trust land
acquisitions already made by the Secretary under the IRA.
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\24\129 S. Ct. 1058 (2009).
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THE CARCIERI V. SALAZAR CASE
On February 24, 2009, the Supreme Court issued its decision
in Carcieri v. Salazar, holding that the Secretary of the
Interior did not have the authority to take land into trust
status under the IRA for the Naragansett Indian Tribe (Tribe)
because the Tribe was not ``under federal jurisdiction'' in
1934 when the IRA was enacted. The majority opinion was written
by Justice Thomas. Justice Breyer filed a concurring opinion.
Justice Souter filed an opinion concurring in part and
dissenting in part, which was joined by Justice Ginsburg.
Justice Stevens was the sole dissenter.
The Carcieri case involved a challenge by the Governor of
Rhode Island to the Secretary of the Interior's authority to
take land into trust status for the Narragansett Indian Tribe
pursuant to the IRA. The Tribe obtained federal recognition in
1983 through the administrative process within the Department
of the Interior. This process is set forth through federal
regulations adopted in 1978.\25\ In acknowledging the Tribe's
relationship with the federal government, the Assistant
Secretary--Indian Affairs had to be satisfied that the Tribe
had existed continuously since first European contact and had a
documented history since 1614.
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\25\25 C.F.R. Sec. 83.
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While the Tribe's petition for federal acknowledgement was
pending before the Interior Department, the Tribe also brought
a land claim against the State of Rhode Island in the 1970's to
recover its ancestral land, claiming that the State had
misappropriated tribal land in violation of federal law. Those
claims were resolved by a settlement agreement that was
codified by Congress in 1978. Under the settlement agreement,
the Tribe received title to 1,800 acres of land in Rhode
Island, in exchange for relinquishing its past and future
claims to other lands. Those lands became the Tribe's initial
reservation, and remained under state jurisdiction.
In 1991, the Tribe's housing authority purchased 31 acres
of land adjacent to the Tribe's initial reservation. Soon after
the purchase, a dispute arose about whether the Tribe's planned
construction of housing on the 31-acre parcel had to comply
with local regulations. The Tribe requested that the Secretary
of the Interior place the land in trust. On March 6, 1998, the
Interior Department expressed its intent to acquire the land in
trust. Before the land was placed in trust, Rhode Island
challenged the Department's decision in a number of
administrative appeals and then by suit in Federal district
court. One of the State's arguments was that the phrase ``now
under federal jurisdiction'' in section 19 of the IRA, 25
U.S.C. Sec. 479, limited the Secretary's authority to acquire
land in trust under section 5 of the IRA, 25 U.S.C. Sec. 465,
to only those Indian tribes that were ``under federal
jurisdiction'' as of 1934. The Secretary of the Interior
contended that the IRA applies to all tribes that were
federally recognized at the time that land was taken into
trust. The Federal district court held that since the
Narragansett Tribe is currently recognized and existed at the
time of the enactment of the IRA, it qualified as an Indian
tribe' within the meaning of the IRA. The First Circuit Court
of Appeals held that the term ``now'' was ambiguous as to
whether it meant at the moment Congress enacted the law or at
the moment the Secretary invokes the law. Thus, the Circuit
Court deferred to the Secretary's interpretation of the
provision of the IRA. The State then sought review by the
United States Supreme Court.
On February 24, 2009, the Supreme Court issued its decision
in Carcieri v. Salazar, reversing the lower courts' rulings and
holding that the Secretary of the Interior did not have the
authority to take land into trust under 25 U.S.C. Sec. 465 for
the Narragansett Tribe, because the Tribe was not ``under
federal jurisdiction,'' as that term is used in the definition
of ``Indian'' in 25 U.S.C. Sec. 479. The Court pointed to the
parties' agreement that the definition of ``Indian'' in
Sec. 479 determines which tribes may rely on Sec. 465, and
stated that the case turned on ``whether the Narragansetts are
members of a `recognized Indian Tribe now under federal
jurisdiction.'''\26\ The Court then held that ``now'' means
1934, when the Indian Reorganization Act was enacted, rather
than the date that the Secretary intended to act to take land
into trust. It did so notwithstanding the absence of the word
``now,'' or any other temporal qualifier, in the separate
definition of ``tribe,'' which also appears in Sec. 479, and
despite its recognition that Sec. 465 authorizes the Secretary
to take land into trust for a tribe.\27\ No effort was made by
the parties to the case to demonstrate that the Narragansett
were ``under federal jurisdiction'' at the time of the IRA.
Nevertheless, the Court found that because ``the record
establishes that the Narragansett Tribe was not under federal
jurisdiction when the IRA was enacted,'' the Secretary lacked
authority to take land into trust for the Narragansett Indian
Tribe.
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\26\Carcieri, 129 S.Ct. at 1064.
\27\See Id. at 1067.
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UNEQUAL TREATMENT OF FEDERALLY RECOGNIZED INDIAN TRIBES
The Carcieri decision may have the detrimental effect of
creating two classes of Indian tribes--those who were ``under
federal jurisdiction'' as of the date of enactment of the
Indian Reorganization Act in 1934 for whom land may be taken
into trust, and those who were not. This disparity would
directly conflict with prior Acts of Congress, including the
Act of November 2, 1994,\28\ the 1994 Amendments to the IRA,
and federal policy supporting self-determination for all
federally recognized Indian tribes.\29\
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\28\25 U.S.C. Sec. Sec. 479a, 479a-1.
\29\25 U.S.C. Sec. 450b(e).
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Congress affirmed its intent that all federally recognized
tribes be equally treated under the law in 1994 when Congress
passed the ``Federally Recognized Indian Tribe List Act of
1994'' (Tribal List Act)\30\ which requires the Secretary to
publish an annual list of all federally recognized tribes
which, Congress explained, ``establishes tribal status for all
federal purposes.''\31\ Also in 1994, Congress amended the IRA
to prohibit federal agencies from taking action that
``classifies, enhances, or diminishes the privileges and
immunities available to the Indian tribe relative to other
federally recognized tribes by virtue of their status as Indian
tribes.'' 25 U.S.C. Sec. 476(f). By these statutes, Congress
instructed that there be no second class tribes. These Acts are
direct statements from Congress that federal agencies do not
have the right to discriminate based on the history of how a
federally recognized tribe reached that status.\32\
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\30\Pub. L. 103-454 (1994), codified at 25 U.S.C. 479a-1.
\31\H.R. Rep. No. 103-781 at 3 (1994) as reprinted in 1994 USCCAN
3768.
\32\Id.
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The Carcieri case, however, threatens to create two classes
of tribes contrary to settled law and express Congressional
intent. The Committee believes there is no logical policy
reason for treating tribes differently based on date of federal
recognition.
HIGH COSTS OF LITIGATION TO THE UNITED STATES AND INDIAN TRIBES
The Carcieri decision may provoke a large number of
lawsuits regarding pending and already acquired lands and the
issue of whether tribes were ``under federal jurisdiction'' in
1934. Such litigation would be burdensome and cause delay in
the government's exercise of its general trust responsibility
to Indian tribes, and its specific obligations under the IRA.
These delays will in turn undermine the broad remedial policies
of the IRA and the current federal policy of tribal self-
determination. S. 1703 seeks to prevent litigation over trust
land acquisitions that might otherwise arise from the Carcieri
decision.
The term ``under federal jurisdiction'' is not defined in
federal law, regulation, or in the legislative history leading
up to the enactment of the Indian Reorganization Act. Even
prior to enactment of the IRA, the United States had no formal
term for acknowledging the existence of an Indian tribe. The
federal government used the terms ``in amity with the
government'' and ``having existing treaties with the
government'' up until the late 1800's. It was not until then
that the terms ``recognized'' and ``recognition'' were used in
the jurisdictional sense. As a result, Indian Tribes, the
Department of the Interior, and Federal courts reviewing future
land into trust acquisitions have little insight as to whether
a tribe that was not formally recognized in 1934 would be
considered ``under federal jurisdiction.'' In addition, the
United States did not have an accurate list of federally
recognized Indian tribes until after 1994, when Congress
enacted the Federally Recognized Tribal List Act.\33\ Thus,
even the initial determination of whether a tribe was formally
recognized in 1934 will be a difficult question to determine.
This significant uncertainty will flood federal court rooms
with lawsuits for decades and cost both tribes and the United
States significant resources.
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\33\25 U.S.C. sec. 479a-479a-1.
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The concurring opinions of Justices Breyer and Souter
acknowledged this fact. They noted that even though a tribe was
not formally recognized by the federal government in 1934, that
tribe may not be precluded from having been ``under federal
jurisdiction'' at that time. In his concurring opinion Justice
Breyer draws attention to the fact that many tribes were left
off of the list of tribes covered by the IRA reportedly
compiled by the Department of the Interior. Other tribes were
later acknowledged to have been under federal jurisdiction at
an earlier time, even though circumstances prevented the
government from knowing that at the time. Justice Souter also
made this point stating that ``nothing in the majority opinion
forecloses the possibility that the two concepts, recognition
and jurisdiction, may be given separate content.''
Another concern generated by the Carcieri decision relates
to parcels already held in trust by the federal government.
Although challenges to the validity of title to Indian trust
are barred by existing law and the Quiet Title Act, 28 U.S.C.
2409a, and should ultimately be dismissed, illegitimate,
unsuccessful legal challenges can be brought. Such cases would
impose significant costs on the United States and tribal
governments. S. 1703 is intended to prevent such challenges to
land already held in trust by ratifying the Secretary's action
in taking such lands into trust.
Legislative History
On May 21, 2009, the Committee held a hearing to examine
Executive Branch authority to acquire trust lands for Indian
tribes. On September 24, 2009, Senator Dorgan introduced S.
1703, along with Senators Akaka, Baucus, Bingaman, Franken,
Inouye, Tester and Udall. Senators Landrieu, Stabenow and
LeMieux were later added as co-sponsors.
Two companion bills were introduced in the House of
Representatives. On October 1, 2009, Congressman Cole
introduced H.R. 3697 and on October 7, 2009, Congressman Kildee
introduced H.R. 3742. The House Committee on Natural Resources
held a legislative hearing on these two bills on November 4,
2009.
Summary of the Amendments
Senator Dorgan offered an amendment in the nature of a
substitute. The amendment in the nature of a substitute amends
the original bill by removing the revisions to the definition
of the term ``Indian tribe'' and by adding language to ensure
that nothing in the Act or the amendments to the Act would
affect the application of any other federal law, other than the
Indian Reorganization Act.
Senator Murkowski offered a second degree amendment to
ensure that the language of S. 1703 will not affect the
validity of any existing Department of Interior regulations
concerning the taking of land into trust in Alaska.
Senator Coburn offered an amendment to require a study be
prepared by the Department of the Interior and submitted to
Congress identifying the impact of the Carcieri decision on
Indian tribes and tribal lands. The offered amendment would
have required the study to be completed prior to S. 1703
becoming effective. A second degree amendment was agreed upon
which would require the study to be submitted within one year
of enactment of S. 1703. The Committee intends that the study
shall not limit the Secretary's authority to take land into
trust for any tribe that is federally recognized on the date
the Secretary takes the land into trust, or cause any delay
with regard to any trust land acquisition authorized by law.
Section-by-Section Analysis
Section 1. Modification of definition
Subsection 1(a) This section modifies a portion of the
definition of ``Indian'' in 25 U.S.C. 479 from, ``any
recognized Indian tribe now under Federal jurisdiction'' to
``any federally recognized Indian tribe.'' It further
retroactively applies this amended definition from June 18,
1934.
Subsection 1(b) makes the amendments in subsection (a)
retroactive as if included in the Indian Reorganization Act as
of date of enactment of that Act on June 18, 1934.
Subsection 1(c) clarifies that the legislation does not
affect any law other than the Indian Reorganization Act or
limit the authority of the Secretary of the Interior under any
federal law or regulation other than the Indian Reorganization
Act.
Subsection 1(d) requires the Secretary of the Interior to
conduct, and submit to Congress, a study describing the effects
of the Carcieri decision on Indian tribes and tribal land; and
including a list of each affected Indian tribe and parcel of
tribal land. The study would be required to be submitted within
one year of enactment of S. 1703.
Committee Recommendation
On December 17, 2009, the Senate Committee on Indian
Affairs convened a business meeting to consider S. 1703 and
other measures. The amendment in the nature of a substitute,
along with the second degree amendments by Senators Murkowski
and Senator Coburn, were approved by the Committee by voice
vote. The Committee ordered the bill, as amended, be reported
to the full Senate with the recommendation that the bill, as
amended, do pass.
Cost and Budgetary Considerations
The following cost estimate, as provided by the
Congressional Budget Office, dated March 26, 2010, was prepared
for S. 1703:
S. 1703--A bill to amend the act of June 18, 1934, to reaffirm the
authority of the Secretary of the Interior to take land into
trust for Indian tribes
S. 1703 would amend the Indian Reorganization Act to allow
the Secretary of the Interior to take land into trust for all
federally recognized Indian tribes. Based on information from
the Department of the Interior (DOI), CBO estimates that
implementing the legislation would have no significant cost.
Enacting S. 1703 would not affect direct spending or revenues;
therefore, pay-as-you-go procedures would apply.
Under current law, as established by the Supreme Court
decision in Carcieri v. Salazar (2009), the Secretary of the
Interior's authority to take land into trust for Indian tribes
is limited to those tribes that were federally recognized prior
to the enactment of the Indian Reorganization Act of 1934.
Under the bill, the Secretary would have the authority to take
land into trust for all federally recognized Indian tribes,
regardless of when those tribes became federally recognized.
Because current law requires DOI personnel to determine which
tribes would be eligible to have lands taken into trust, CBO
expects that implementing S. 1703 could reduce the workload of
DOI staff. CBO expects that any savings due to the reduced
workload would be used by the agency to carry out other
activities related to holding land in trust. Thus, we expect
that implementing the legislation would have a negligible
effect on the federal budget.
S. 1703 would expand an existing intergovernmental mandate,
as defined in the Unfunded Mandates Reform Act (UMRA), that
exempts from state and local taxes land taken into trust for
tribal individuals or tribal governments. While state and local
governments may have the ability to collect taxes on some lands
as a result of the Carcieri v. Salazar decision, CBO has no
data indicating that those governments currently levy or have
plans to levy taxes on that land. Therefore, CBO estimates that
enacting S. 1703 would not result in a loss of revenue for
state or local governments.
S. 1703 also would impose intergovernmental and private-
sector mandates as defined in UMRA by limiting the ability of
public and private entities or individuals to file claims in
court related to lands taken into trust for Indian tribes
federally recognized after 1934. The cost of the mandate would
be the forgone value of awards and settlements of such claims.
CBO expects that the annual number of claims involving such
land and the value of the awards and settlements in those
claims would be small. Consequently, the cost of the mandate to
public and private entities would fall below the annual
thresholds established in UMRA for intergovernmental and
private-sector mandates ($70 million and $141 million in 2010
respectively, adjusted annually for inflation).
The CBO staff contacts for this estimate are Jeff LaFave
(for federal costs), Melissa Merrell (for state, local, and
tribal costs), and Marin Randall (for the private-sector
impact). The estimate was approved by Theresa Gullo, Deputy
Assistant Director for Budget Analysis.
Regulatory and Paperwork Impact Statement
Paragraph 11(b) of rule XXVI of the Standing Rules of the
Senate requires each report accompanying a bill to evaluate the
regulatory and paperwork impact that would be incurred in
carrying out the bill. The Committee believes that S. 1703 will
have a minimal impact on regulatory or paperwork requirements.
Executive Communications
The Committee received the following letters from Secretary
Salazar, Department of the Interior in support of S. 1703:
Changes in Existing Law
In accordance with subsection 12 of rule XXVI of the
Standing Rules of the Senate, changes in existing law made by
the bill S. 1703, as ordered reported, are shown as follows
(existing law proposed to be omitted is enclosed in black
brackets, new matter printed in italic):
25 U.S.C. 479. Definitions
Effective beginning on June 18, 1934, the term [The term]
``Indian'' as used in this Act shall include all persons of
Indian descent who are members of any federally recognized
Indian tribe [any recognized Indian tribe now under Federal
jurisdiction], and all persons who are descendants of such
members who were, on June 1, 1934, residing within the present
boundaries of any Indian reservation, and shall further include
all other persons of one-half or more Indian blood. For the
purposes of this Act, Eskimos and other aboriginal peoples of
Alaska shall be considered Indians. The term ``tribe'' wherever
used in this Act shall be construed to refer to any Indian
tribe, organized band, pueblo, or the Indians residing on one
reservation. The words ``adult Indians'' wherever used in this
Act shall be construed to refer to Indians who have attained
the age of twenty-one years.