```

[House Hearing, 111 Congress]
[From the U.S. Government Publishing Office]

                        SUPREME COURT DECISION,
                         CARCIERI V. SALAZAR,
                    RAMIFICATIONS TO INDIAN TRIBES

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

                           OVERSIGHT HEARING

                               before the

                     COMMITTEE ON NATURAL RESOURCES
                     U.S. HOUSE OF REPRESENTATIVES

                     ONE HUNDRED ELEVENTH CONGRESS

                             FIRST SESSION

                               __________

                        Wednesday, April 1, 2009

                               __________

                           Serial No. 111-14

                               __________

       Printed for the use of the Committee on Natural Resources

  Available via the World Wide Web: http://www.gpoaccess.gov/congress/
                               index.html
                                   or
         Committee address: http://resourcescommittee.house.gov

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                     COMMITTEE ON NATURAL RESOURCES

              NICK J. RAHALL, II, West Virginia, Chairman
          DOC HASTINGS, Washington, Ranking Republican Member

Dale E. Kildee, Michigan             Don Young, Alaska
Eni F.H. Faleomavaega, American      Elton Gallegly, California
    Samoa                            John J. Duncan, Jr., Tennessee
Neil Abercrombie, Hawaii             Jeff Flake, Arizona
Frank Pallone, Jr., New Jersey       Henry E. Brown, Jr., South 
Grace F. Napolitano, California          Carolina
Rush D. Holt, New Jersey             Cathy McMorris Rodgers, Washington
Raul M. Grijalva, Arizona            Louie Gohmert, Texas
Madeleine Z. Bordallo, Guam          Rob Bishop, Utah
Jim Costa, California                Bill Shuster, Pennsylvania
Dan Boren, Oklahoma                  Doug Lamborn, Colorado
Gregorio Sablan, Northern Marianas   Adrian Smith, Nebraska
Martin T. Heinrich, New Mexico       Robert J. Wittman, Virginia
George Miller, California            Paul C. Broun, Georgia
Edward J. Markey, Massachusetts      John Fleming, Louisiana
Peter A. DeFazio, Oregon             Mike Coffman, Colorado
Maurice D. Hinchey, New York         Jason Chaffetz, Utah
Donna M. Christensen, Virgin         Cynthia M. Lummis, Wyoming
    Islands                          Tom McClintock, California
Diana DeGette, Colorado              Bill Cassidy, Louisiana
Ron Kind, Wisconsin
Lois Capps, California
Jay Inslee, Washington
Joe Baca, California
Stephanie Herseth Sandlin, South 
    Dakota
John P. Sarbanes, Maryland
Carol Shea-Porter, New Hampshire
Niki Tsongas, Massachusetts
Frank Kratovil, Jr., Maryland
Pedro R. Pierluisi, Puerto Rico

                     James H. Zoia, Chief of Staff
                       Rick Healy, Chief Counsel
                 Todd Young, Republican Chief of Staff
                 Lisa Pittman, Republican Chief Counsel
                                 ------                                

                                CONTENTS

                              ----------                              
                                                                   Page

Hearing held on Wednesday, April 1, 2009.........................     1

Statement of Members:
    Faleomavaega, Hon. Eni F.H., a Delegate in Congress from 
      American Samoa.............................................     5
    Hastings, Hon. Doc, a Representative in Congress from the 
      State of Washington........................................     2
        Prepared statement of....................................     3
    Kildee, Hon. Dale, a Representative in Congress from the 
      State of Michigan..........................................     4
        Prepared statement of....................................     4
    Rahall, Hon. Nick J., II, a Representative in Congress from 
      the State of West Virginia.................................     1
        Prepared statement of....................................     2

Statement of Witnesses:
    Anderson, Michael J., Partner, AndersonTuell, LLP, 
      Washington, D.C............................................    12
        Prepared statement of....................................    14
    Mitchell, Donald Craig, Esquire, Anchorage, Alaska...........    23
        Prepared statement of....................................    25
    Routel, Colette, Visiting Assistant Professor, University of 
      Michigan Law School, Ann Arbor, Michigan, Assistant 
      Professor, William Mitchell College of Law, Saint Paul, 
      Minnesota..................................................     5
        Prepared statement of....................................     7

 
  OVERSIGHT HEARING ON ``SUPREME COURT DECISION, CARCIERI V. SALAZAR, 
                   RAMIFICATIONS TO INDIAN TRIBES.''

                              ----------                              

                        Wednesday, April 1, 2009

                     U.S. House of Representatives

                     Committee on Natural Resources

                            Washington, D.C.

                              ----------                              

    The Committee met, pursuant to call, at 9:57 a.m. in Room 
1324, Longworth House Office Building, Hon. Nick J. Rahall, II, 
[Chairman of the Committee] presiding.
    Present: Representatives Rahall, Hastings, Kildee, 
Faleomavaega, Grijalva, Heinrich, Christensen, DeGette, Inslee, 
Herseth Sandlin, Sarbanes, Shea-Porter, Gallegly, Smith, 
Fleming, Lummis, and Cassidy.

STATEMENT OF THE HONORABLE NICK J. RAHALL, II, A REPRESENTATIVE 
          IN CONGRESS FROM THE STATE OF WEST VIRGINIA

    The Chairman. The Committee on Natural Resources will come 
to order early. The Committee is meeting today to conduct an 
oversight hearing on the recent Supreme Court decision in 
Carcieri v. Salazar and its effects on Indian tribes.
    In the decision, the Supreme Court held that the Indian 
Reorganization Act did not allow land to be placed into trust 
for a tribe that was not now under Federal jurisdiction, 
referring to 1934, the date of enactment of the statute.
    While there are those who want to portray this decision and 
its ramifications solely as a gaming issue, let me assure 
everyone that it is much more than a gaming issue.
    Land is an essential component of sovereignty for any 
government, including tribal governments. Not only does a land 
base help promote cultural preservation, which is essential for 
the survival of a group of people, but it also affects the 
ability of a government to provide for its citizens.
    Native Americans already suffer from higher death rates due 
to various diseases. They live in substandard housing. They 
have lower rates of educational achievement, and they 
experience an average poverty rate of 26 percent, with some 
tribes suffering from a poverty rate of over 50 percent.
    Placing land into trust for an Indian tribe is an essential 
component of combating the situations experienced by Indian 
tribes as a result of their treatment by the United States of 
America. Even beyond the legal responsibility, the Federal 
government has a moral responsibility to rectify this 
situation.
    While all of the potential ramifications of this decision 
are not known at this time, there is one thing of which we are 
certain: This decision may result in many frivolous lawsuits 
being filed to challenge the status of virtually every tribe. 
This will require the Federal government and the American 
people to return to 1934 to determine what ``now under Federal 
jurisdiction'' means.
    The early 1930s--now I was not here at the time, but some 
on this Committee may have been--was a time of racial 
segregation, with many people of color denied the right to vote 
and adequate health care and education was only available to a 
few. This is not a time to which I wish to return.
    I look forward to hearing the testimony of the witnesses on 
whether or not the Court was correct in interpreting the 
legislative history of the IRA and how the administration has 
defined ``now under Federal jurisdiction'' since 1934.
    That concludes my opening comments, and I recognize the 
Ranking Member, Mr. Hastings.
    [The prepared statement of Mr. Rahall follows:]

       Statement of The Honorable Nick J. Rahall, Ii, Chairman, 
                     Committee on Natural Resources

    The Committee is meeting today to conduct an oversight hearing on 
the recent Supreme Court decision in Carcieri v. Salazar and its 
effects on Indian tribes.
    In the decision, the Supreme Court held that the Indian 
Reorganization Act did not allow land to be placed into trust for a 
tribe that was not ``now under Federal jurisdiction'' referring to 
1934, the date of enactment of the statute.
    While there are those who want to portray this decision and its 
ramifications solely as a ``gaming'' issue, let me assure everyone that 
it is much more than that. Land is an essential component of 
sovereignty for any government, including tribal governments. Not only 
does a land base help promote cultural preservation which is essential 
for the survival of a group of people, but it also affects the ability 
of a government to provide for its citizens.
    Native Americans already suffer from higher death rates due to 
various diseases, live in substandard housing, have lower rates of 
educational achievement, and experience an average poverty rate of 
26%--with some tribes suffering from a poverty rate of over 50%. 
Placing land into trust for an Indian tribe is an essential component 
of combating the situations experienced by Indian tribes as a result of 
their treatment by the United States. Even beyond the legal 
responsibility, the Federal government has a moral responsibility to 
rectify this situation.
    While all of the potential ramifications of this decision are not 
known at this time, there is one thing that we are certain of: This 
decision may result in many frivolous lawsuits being filed to challenge 
the status of virtually every tribe.
    This will require the Federal government and the American people to 
return to 1934 to determine what ``now under Federal jurisdiction'' 
means. The early 1930s was a time of racial segregation, with many 
people of color denied the right to vote, and adequate health care and 
education was only available to a few. This is not a time that I wish 
to return.
    I look forward to hearing the testimony of the witnesses on whether 
or not the Court was correct in interpreting the legislative history of 
the IRA, and how the Administration has defined ``now under Federal 
jurisdiction'' since 1934.
                                 ______
                                 

 STATEMENT OF THE HONORABLE DOC HASTINGS, A REPRESENTATIVE IN 
             CONGRESS FROM THE STATE OF WASHINGTON

    Mr. Hastings. Thank you very much, Mr. Chairman, for 
holding this hearing. I understand that the Department of the 
Interior may not be prepared to give the Committee its 
testimony at this time, but I hope that when the relevant 
political appointees are nominated and confirmed that we will 
be able to hold maybe another hearing on this important 
subject.
    I completely understand the anxiety that a number of 
recognized tribes that were not under Federal jurisdiction in 
1934 must be feeling right now. Following this Supreme Court 
decision, some must undoubtedly wonder if they were under 
Federal jurisdiction in 1934 and who will make that 
determination and what it means for their trust lands.
    As we seek answers to the questions that this case raises, 
I hope that we use this opportunity to open the record books 
and archives of the Department and the Committee. We are 
dealing with 75 years of history, with potentially dozens of 
tribes, thousands of acres of land, and with a Department whose 
implementation of a major law has been overturned by the Court.
    It is important that Congress act carefully when addressing 
the effects of the Court's decision, and we must especially 
make certain that responsive action comes from Congress.
    At the heart of the Supreme Court's ruling is that the 
authority to recognize tribes and take land into trust rests 
with Congress and not with the attorneys in the Executive 
Branch. It is our responsibility in Congress to determine how 
to act following the Court's ruling, not simply to sit and wait 
to rubber stamp a plan that is written and submitted by the 
Interior Department, whose actions, once again, were struck 
down by the Supreme Court.
    So I look forward to hearing the witnesses' testimony, and 
I yield back my time.
    [The prepared statement of Mr. Hastings follows:]

       Statement of The Honorable Doc Hastings, Ranking Member, 
                     Committee on Natural Resources

    Mr. Chairman, thank you for holding this hearing. I understand the 
Department of the Interior may not be prepared to give the Committee 
its testimony at this time, but I hope that when the relevant political 
appointees are nominated and confirmed then we will be able to hold 
another hearing on this important subject.
    I completely understand the anxiety that a number of recognized 
tribes that were not under federal jurisdiction in 1934 must be feeling 
right now. Following this Supreme Court decision, some must undoubtedly 
wonder if they were under federal jurisdiction in 1934 and who will 
make that determination, and what it means for their trust lands.
    Mr. Chairman, as we seek answers to the questions this case raises, 
I hope we use this opportunity to open the record books and archives of 
the Department and the Committee. We are dealing with 75 years of 
history, with potentially dozens of tribes, thousands of acres of land, 
and with a Department whose implementation of a major law has been 
overturned by the Court.
    It is important that Congress act carefully when addressing the 
effects of the Court's decisions, and we must especially make certain 
that responsive action comes from Congress. At the heart of the Supreme 
Court's ruling is that the authority to recognize tribes and take land 
into trust rests with Congress and not with the attorneys in the 
Executive Branch. It is our responsibility in Congress to determine how 
to act following the Court's ruling, not simply to sit and wait to 
rubberstamp a plan that's written and submitted by the Interior 
Department, whose actions were struck down by the Supreme Court.
    I look forward to listening to the witnesses' testimony.
                                 ______
                                 
    The Chairman. The Chair recognizes the gentleman from 
Michigan, the Chair of our Native American Caucus in the 
Congress, Mr. Dale Kildee.
    Mr. Kildee. Thank you, Mr. Chairman. A good part of my 
testimony--I will submit the entire statement for the record,
    The Chairman. Sure, without objection.

  STATEMENT OF THE HONORABLE DALE KILDEE, A REPRESENTATIVE IN 
              CONGRESS FROM THE STATE OF MICHIGAN

    Mr. Kildee.Mr. Chairman, like you, I am deeply troubled by 
the recent U.S. Supreme Court decision against the Narragansett 
Tribe of Rhode Island, in which the Court calls into question 
the authority of the Secretary of the Interior to take land 
into trust for Indian tribes not Federally recognized as of 
1934.
    The decision affects many Indian tribes, particularly those 
who obtained Federal recognition through the Department of the 
Interior's administrative process and Indian tribes whose 
recognition was obtained after 1934, including eight tribes 
from my own State of Michigan. This decision may affect their 
pending and future fee-to-trust applications.
    Mr. Chairman, I do not believe that the Congress intended 
to craft a bifurcated system of doing this. I still think there 
are two ways in which they can get their sovereignty 
recognized--through the Congress and through the Department of 
the Interior--and I hope that the solicitor is soon appointed 
so he can act in his capacity to try to defend the rights of 
sovereignty of the Native American tribes. I yield back the 
balance of my time.
    [The prepared statement of Mr. Kildee follows:]

Statement of The Honorable Dale E. Kildee, a Representative in Congress 
                       from the State of Michigan

    Mr. Chairman, I am deeply troubled by the recent U.S. Supreme Court 
decision against the Narragansett Tribe of Rhode Island in which the 
Court calls into question the authority of the Secretary of the 
Interior to take land into trust for Indian tribes not Federally 
recognized as of 1934.
    I disagree with the Court as I do not believe it was the intent of 
Congress to establish a bifurcated system that limits the Secretary's 
authority for approving trust land applications to tribes Federally 
recognized as of 1934.
    This decision affects many Indian tribes, particularly those who 
obtained Federal recognition through the Department of the Interior's 
administrative process.
    And for Indian tribes whose recognition was obtained after 1934, 
including 8 tribes from my own State of Michigan, this decision may 
affect their pending and future fee-to-trust applications.
    Mr. Chairman, it is my understanding that the Department of the 
Interior's nominee for Solicitor has not yet been confirmed by the 
Senate. However, I look forward to a discussion with the Department as 
to how it plans to move forward in light of this decision.
    Tribes across the country support legislative response to the 
Court's decision, which may have its own political challenges from 
state and local governments.
    Mr. Chairman, I look forward to working with you to develop a 
legislative fix.
    And I look forward to hearing the testimony today from our 
witnesses.
    Thank you.
                                 ______
                                 
    The Chairman. Does the gentleman from American Samoa, Mr. 
Faleomavaega, wish an opening statement?

       STATEMENT OF THE HONORABLE ENI F.H. FALEOMAVAEGA, 
           A DELEGATE IN CONGRESS FROM AMERICAN SAMOA

    Mr. Faleomavaega. Yes, Mr. Chairman, I do, and I want to 
first welcome our witnesses this morning.
    I am not the least bit surprised, Mr. Chairman, to the 
events that have transpired and the decision that the Supreme 
Court has made. This three-letter word, ``now,'' has upset and 
turned over 75 years of legal precedent and historical 
decisions that have been made based on the Reorganization Act 
of 1934.
    It really saddens me, Mr. Chairman, to the effect that even 
defining what an ``Indian'' is--we have gone through the whole 
ritual, and we have even been going through the recognition 
process, which was never done by the Congress--it was 
administratively done by the Department--and to the effect of 
defining an ``Indian,'' it reminds me of defining what a 
``black'' was, three-fifths of a person, by our own founders of 
the Constitution, now defining an Indian to have to have ``50-
percent blood,'' whatever that means.
    So it goes down to the very essence of how we have treated 
the Native American community so poorly, and it is something 
that I am sure that we are not very proud of and that we are 
trying to seek remedies and find solutions to the problems that 
the Native American community has had to endure in the worst 
way, and I am just saddened that this is where we are, and I am 
hopeful that, by the recommendations of our panelists, we will 
find a quick remedy, legislatively this time, that there will 
be no question whatsoever as to the legislative intent of the 
law based on what was written then in 1934 and what the 
Secretary of the Interior has had to do to accommodate some of 
the problems that the Native American communities have had to 
go through for all of these years.
    So, with that, Mr. Chairman, I do look forward to hearing 
from our witnesses this morning and thank you.
    The Chairman. Thank you. With that, we will proceed with 
our witnesses.
    We have a panel this morning consisting of the following 
individuals: Ms. Colette Routel, the visiting assistant 
professor, University of Michigan Law School, Ann Arbor, 
Michigan, and assistant professor, William Mitchell College of 
Law, St. Paul, Minnesota. Also is Mr. Michael J. Anderson, 
partner, AndersonTuell, LLP, Washington, D.C.; and our third 
witness is Mr. Donald Craig Mitchell, Esquire, of Anchorage, 
Alaska.
    Lady and Gentlemen, we welcome you to our Committee on 
Natural Resources this morning. We appreciate your taking the 
time to be with us. We do have your prepared testimony. It will 
be made part of the record as if actually read, and you may 
proceed in the manner you wish and in the order in which I 
recognized you. Ms. Routel?

  STATEMENT OF COLETTE ROUTEL, VISITING ASSISTANT PROFESSOR, 
  UNIVERSITY OF MICHIGAN LAW SCHOOL, ANN ARBOR, MICHIGAN, AND 
  ASSISTANT PROFESSOR, WILLIAM MITCHELL COLLEGE OF LAW, SAINT 
                        PAUL, MINNESOTA

    Ms. Routel. Good morning, Mr. Chairman and Members of the 
Committee. Thank you for giving me the opportunity to speak 
here today about the Supreme Court's recent opinion in Carcieri 
v. Salazar.
    The Indian Reorganization Act applies to Indians and Indian 
tribes, and these are defined terms. The term ``Indian'' 
includes ``all persons of Indian descent who are members of any 
recognized tribe now under Federal jurisdiction.''
    At issue in Carcieri, as you have mentioned, was how to 
interpret that word ``now.'' Did the phrase, ``now under 
Federal jurisdiction,'' require that the tribe be under Federal 
jurisdiction in 1934, when the IRA was adopted, or did ``now'' 
require tribes to be under Federal jurisdiction at the moment 
they sought to take advantage of the benefits of the Act?
    The Department of the Interior adopted the latter 
interpretation, and, for the last 25 years, that has been 
formalized in regulations promulgated through notice-and-
comment rulemaking.
    Despite this, the Supreme Court recently limited the 
benefits of the IRA to only those Indian tribes under Federal 
jurisdiction in 1934.
    As I have explained in detail in my written testimony, this 
decision is not supported by the legislative history of the 
Act.
    During debate on the bill, Burton Wheeler, who was then 
Chairman of the Senate Committee on Indian Affairs, wanted to 
ensure that the IRA would not require all Indians under Federal 
jurisdiction in 1934 to remain that way indefinitely. Instead, 
he believed that the Secretary of the Interior should maintain 
the discretion to decide, at a later date, that a particular 
Indian had become fully assimilated and no longer needed the 
protection of the Federal government.
    It was in response to these comments that Collier agreed to 
add the phrase, ``now under Federal jurisdiction,'' to the 
definition of ``Indian.''
    Thus, Congress could not have intended ``now'' to mean 
1934. That would have frozen recognition decisions at that 
date, and it would not have addressed Wheeler's concern that 
the Executive Branch must continue to have flexibility to deny 
or to extend recognition to Indian tribes and individual Indian 
as it saw fit.
    Carcieri ignored this legislative history, and, in my 
opinion, this led the Court to render an incorrect 
interpretation of the statute.
    If allowed to stand, this decision will have profound 
effects on Indian Country. Obviously, the Secretary of the 
Interior will not be able to acquire trust lands for recently 
recognized tribes without additional congressional legislation. 
Their IRA constitutions and their Section 17 business 
corporations will be void, and tribal members will not be able 
to receive preference in employment with the BIA. These are 
rights found directly in that statute.
    It is important to remember, however, that Congress has 
also tied other, more recent benefits to the definition of 
``Indian'' in the IRA. For example, 25 U.S.C. Section 324 
provides that the Secretary of the Interior cannot grant 
rights-of-way over trust lands without the consent of the 
affected tribe. The definition of ``tribe'' in that statute is 
linked to the definition of ``tribe'' in the IRA. So these 
sorts of linked benefits will also be lost.
    How many tribes will be affected? Probably between 50 and 
100, but it is impossible to tell for certain right now.
    One of the problems inherent in the Court's decision is a 
practical one: Before the IRA was enacted, the Federal 
government never created a comprehensive list of recognized 
tribes. Additionally, no one is sure what the phrase, ``under 
Federal jurisdiction,'' means. Was a tribe under Federal 
jurisdiction if it received a share of Federal appropriations 
specifically designated for tribes; if it had a treaty with the 
United States; if some of its members received services from 
the BIA?
    The Supreme Court has offered little-to-no guidance in 
answering these questions. This existing uncertainty is likely 
to spawn lawsuits nearly every Federally recognized tribe must 
defend. One lawsuit involving a member of the Jamul Indian 
Village in California has already been filed. Tribes have 
scarce resources, and now they will be forced to spend millions 
of dollars defending their long-established rights.
    The Supreme Court's interpretation of the IRA will create 
two classes of tribes, the haves and the have nots, and this is 
clearly contrary to current congressional policy.
    In 1994, Congress passed legislation requiring that all 
Federally recognized tribes be treated the same, regardless of 
the time or manner of their recognition. In doing so, it 
realized that the date of a tribe's recognition is almost 
always accidental and is not substantive.
    For example, tribes recognized in recent years, through the 
BIA's formal administrative process, have had to prove that 
they continuously existed as an Indian tribe, politically, 
socially, and culturally, from historic times to the present. 
So these were tribes that existed in 1934, and they should have 
been recognized by John Collier, and were only left off the 
list due to an omission or a mistake.
    The rights included in and tied to the IRA are important 
rights. They are rights that are essential to achieving self-
determination and economic sufficiently, and that is why I 
implore you to assist Congress in passing the legislative fix. 
Thank you.
    [The prepared statement of Ms. Routel follows:]

 Statement of Colette Routel, Visiting Assistant Professor, University 
 of Michigan Law School, Assistant Professor, William Mitchell College 
                                 of Law

    The Indian Reorganization Act (``IRA''), 48 Stat. 984 (codified as 
amended at 25 U.S.C. Sec. 461 et seq.), is universally regarded as one 
of the most important pieces of legislation directly affecting Indians. 
When enacted by Congress in June 1934, it signaled a major reversal of 
governmental policy in Indian affairs. Previously, the United States 
had aggressively attempted to eradicate tribalism and assimilate 
individual Indians into white society. As the principal component of 
the Indian New Deal, however, the IRA was designed to promote tribal 
self-government and ultimately restore to Indian tribes the management 
of their own affairs.
    Under the IRA, tribes were granted the ability to organize both 
constitutional governments and business corporations. The allotment 
program was abolished, and the periods of trust placed on Indian 
allotments were extended indefinitely. Unsold ``surplus'' lands and 
individual allotments could be returned to the tribe at the discretion 
of the Secretary of the Interior or individual allottee, respectively. 
The Secretary of the Interior was also authorized to acquire new trust 
land for Indian tribes and individual landless Indians. Lastly, 
individual Indians who sought positions in the Bureau of Indian Affairs 
were to be given preference in hiring.
    The U.S. Supreme Court's recent decision in Carcieri v. Salazar 
threatens to eliminate these important IRA benefits (and all benefits 
that Congress has subsequently tied to the IRA) for many Indian tribes. 
In Carcieri, the Court concluded that the term ``Indian,'' which is 
defined in the IRA to include ``all persons of Indian descent who are 
members of any recognized tribe now under Federal jurisdiction,'' 
unambiguously limits the benefits of the Act to those tribes that were 
under Federal jurisdiction on June 18, 1934. This decision is contrary 
to the legislative history of the IRA and contrary to decades of 
executive branch practice in administering the Act. Unless corrected 
legislatively, Carcieri will have a profound impact on the more than 
fifty tribes that have been recognized by the federal government since 
1934.
I.  Background: Lack of Consensus Regarding the Meaning of ``Indian'' 
        and ``Indian Tribe'' Prior to the IRA
    Today, it is generally well-settled that when statutes apply to 
``Indian tribes'' that term is meant to refer only to federally 
recognized tribes (i.e., Indian tribes that have a government-to-
government relationship with the United States). Likewise, the term 
``Indian'' as used in most federal laws refers to enrolled members of 
federally recognized tribes. It is easy to forget, however, that this 
clarity is rather recent in origin.
    Before 1934, Congress had already enacted hundreds of statutes that 
applied to ``Indian country,'' ``Indian tribes,'' ``Indians,'' 
``Indians not citizens of the United States,'' and ``Indians not 
members of any of the states.'' These terms were left undefined by 
Congress. Consequently, the executive branch was entrusted with the 
authority to determine whether a particular tribe or individual Indian 
fell within the purview of a statute. Officials in the Department of 
the Interior made such determinations in an ad hoc manner; no criteria 
for tribal ``recognition'' existed. In fact, the concept of recognition 
of Indian tribes in the jurisdictional sense ``was only beginning to 
take shape,'' and it ``was not universally applied, accepted or, 
frankly, understood.'' William W. Quinn, Jr., Federal Acknowledgment of 
American Indian Tribes: The Historical Development of a Legal Concept, 
34 Am. J. Legal Hist. 331, 347 (1990). The terms ``recognize'' and 
``acknowledge'' were more often used simply in the cognitive sense, 
indicating that a particular tribe was known to the United States. Id. 
at 339.
    Once a determination had been made about the existence of a 
particular Indian tribe, federal courts generally refused to disturb 
that executive branch conclusion. See, e.g., The Kansas Indians, 72 
U.S. 737, 755 (1866) (``If the tribal organization of the Shawnees 
is...recognized by the political department of the government as 
existing then they are...governed exclusively by the government of the 
Union''); United States v. Holliday, 70 U.S. 407, 419 (1865) (noting 
that ``it is the rule of this court to follow the action of the 
executive and other political departments of the government, whose more 
special duty it is to determine such affairs. If by them those Indians 
are recognized as a tribe, this court must do the same''). But no 
comprehensive list of known Indian tribes was created before the 
enactment of the IRA. 1 As a result, situations necessarily 
arose where the executive branch had not previously considered the 
existence of a particular tribe.
---------------------------------------------------------------------------
    \1\ In 1894, the U.S. Census Office published a report that 
included a list of ``Principal Tribes known to the Laws of the United 
States,'' but as its name indicates, this was not a comprehensive 
listing of Indian tribes. See Report on Indians Taxed and Indians Not 
Taxed in the United States at the Eleventh Census: 1890 (1894). This 
report was not updated, and no other list of Indian tribes was created 
by the federal government prior to enactment of the IRA.
---------------------------------------------------------------------------
    In these cases, federal courts were required to decide whether an 
Indian tribe was included within the scope of a particular statute. In 
1901, the Supreme Court finally provided a definition of the term 
``tribe'' and ``band'' to aid lower federal courts in making these 
determinations:
        By a ``tribe'' we understand a body of Indians of the same or a 
        similar race, united in a community under one leadership or 
        government, and inhabiting a particular though sometimes ill-
        defined territory; by a ``band,'' a company of Indians not 
        necessarily, though often, of the same race or tribe, but 
        united under the same leadership in a common design.

Montoya v. United States, 180 U.S. 261, 266 (1901). Yet even with this 
simple definition, confusion remained.
    Some of this confusion was due to the fact that Indian status was 
not static. The purpose of federal policy prior to 1934 was to disband 
tribes and assimilate their members. Thus, the executive branch and the 
federal courts frequently decided that individual tribal members were 
no longer wards of the United States because they had abandoned their 
tribal allegiance. Abandonment could be inferred by, for example, 
living within white settlements, possessing a certain quantum of white 
blood, or owning property in fee. See, e.g., United States v. Kopp, 110 
F. 160 (D. Wash. 1901) (concluding that Puyallup tribal member was not 
an ``Indian'' because he owned his allotted land in fee simple); Dred 
Scott v. Sandford, 60 U.S. 393, 404 (1856) (noting that ``if an 
individual should leave his nation or tribe, and take up his abode 
among the white population, he would be entitled to all the rights and 
privileges which would belong to an emigrant from any other foreign 
people''). Likewise, Indian tribes ceased to be under federal 
jurisdiction during periods of time when their membership as a whole 
was considered to have fully assimilated into white society. Compare 
United States v. Joseph, 94 U.S. 614 (1876) (concluding that the 
Pueblos were civilized and therefore, they were not an ``Indian tribe'' 
under the Trade & Intercourse Acts), with United States v. Sandoval, 
231 U.S. 28 (1913) (concluding that members of the Santa Clara Pueblo 
were uncivilized, and therefore, within the purview of statutes 
prohibiting the giving of intoxicating liquors to ``Indians'').
    The IRA was drafted, debated and enacted against this backdrop.
II.  Meaning of Indian in the IRA: The Legislative History
    It is difficult to ascertain the actual ``intent'' of any 
legislation, and the IRA is no different in this regard. In fact, the 
legislative history of the Act is particularly challenging because the 
two individuals primarily responsible for its passage--Commissioner of 
Indian Affairs John Collier and Senate Indian Affairs Committee 
Chairman Burton Wheeler--had divergent views about the ultimate aims of 
federal Indian policy. Senator Wheeler still believed that the 
government should be pursuing a policy of forced assimilation, because 
Indian societies were inferior. Commissioner Collier, on the other 
hand, believed not only that the federal government should abandon its 
policy of assimilation, but that it should encourage the continuation 
and revitalized of traditional tribal religious beliefs, arts and 
crafts, and cooperative institutions. See generally Kenneth R. Philip, 
John Collier's Crusade for Indian Reform 1920-1954 (1977); Elmer R. 
Rusco, A Fateful Time: The Background and Legislative History of the 
Indian Reorganization Act 292-303 (2000). Because of these divergent 
perspectives, the legislative history of the IRA must be reviewed in 
its entirety to gain a full and correct understanding of who the Act 
was meant to benefit.
    The original bill presented by Commissioner Collier in February 
1934, took the unusual step of attempting to provide definitions for 
the terms ``Indian'' and ``tribe'':
        The term ``Indian''...shall include all persons of Indian 
        descent who are members of any recognized Indian tribe, band, 
        or nation, or are descendants of such members and were, on or 
        about February 1, 1934, actually residing within the present 
        boundaries of any Indian reservation, and shall further include 
        all other persons of one-fourth or more Indian blood...

        The term ``tribe'' wherever used in this Act shall be construed 
        to refer to any Indian tribe, band, nation, pueblo, or other 
        native political group or organization.

The Indian Reorganization Act: Congresses and Bills 12 (Vine Deloria, 
Jr. ed., 2002). These definitions prompted a great deal of debate 
between Collier and Wheeler.
    In six different hearings held throughout April and May of 1934, 
2 Senator Wheeler expressed his concern that the IRA, as 
proposed, would apply to an unnecessarily broad number of people. To 
Grant to Indians Living Under Federal Tutelage the Freedom to Organize 
for Purposes of Local Self-Government and Economic Enterprise: Hearing 
on S. 2744 and S. 3645 Before the Senate Committee on Indian Affairs, 
73d Cong. 266 (1934) (hereinafter ``Senate Hearings''). First, he 
complained that non-tribal Indians should have at least one-half Indian 
blood before they were brought under the Act. 3 Collier 
ultimately agreed to this change. Yet as the hearings continued, 
Senator Wheeler proved far more adamant about another related topic: 
the need to ensure that the IRA would not require the guardian-ward 
relationship to be permanently maintained over tribal members that, in 
his mind, had already or would in the future become, fully assimilated 
into white culture.
---------------------------------------------------------------------------
    \2\ The Senate Committee on Indian Affairs held hearings on the 
draft bill on April 26, 28, 30 and May 3, 4, and 17, 1934.
    \3\ Senator Wheeler stated:
    I do not think the Government of the United States should go out 
here and take a lot of Indians in that are quarter bloods... If they 
are Indians of the half-blood then the Government should perhaps take 
them in, but not unless they are. If you pass it to where they are 
quarter-blood Indians you are going to have all kinds of people coming 
in and claiming they are quarter-blood Indians and want to be put upon 
the Government rolls, and in my judgment it should not be done. What we 
are trying to do is get rid of the Indian problem rather than to add to 
it.
    Senate Hearing, at 263-64.
---------------------------------------------------------------------------
    More specifically, Senator Wheeler argued that certain Indians in 
California, Montana and Oklahoma were as capable of handling their own 
affairs as white men. He believed that these people should not be wards 
of the United States forever; at some point, they must be given the 
ability to manage their property as they deemed fit. Thus, Senator 
Wheeler repeatedly suggested that the draft bill be amended to ensure 
that the Secretary of the Interior would continue to have the 
discretion to decide that persons who had fully assimilated were no 
longer considered ``Indians.'' See, e.g., Senate Hearing at 66-68, 80, 
150-51,163-64, 175, 239, 266.
    For example, Senator Wheeler's concerns are captured in the 
following exchange with Commissioner Collier on April 30, 1934:
        Senator Wheeler: ...There are Indians on some of these lands 
        that are, say, an eighth blood. They are just as much white men 
        as any man sitting here, and most of them are just as capable 
        of handling their own transactions as anybody else. Now, if you 
        pass, for instance, this law, saying that they shall not in any 
        instance permit an Indian to be granted any land in fee, it 
        simply means that some of these Indians are going to have their 
        land tied up when they ought to be handling it themselves.

          We had an illustration of the former Vice President of the 
        United States 4 having his land in Oklahoma some 
        place being handled by the Government of the United States and 
        not having a fee patent to it.
---------------------------------------------------------------------------
    \4\ Senator Wheeler is obviously referring to Charles Curtis, who 
served as the Vice President of the United States under Herbert Hoover. 
Curtis had approximately 1/3 Indian blood (Kaw, Osage and Pottawatomie) 
and as a tribal member, had been granted an allotment that was held in 
trust by the United States.

---------------------------------------------------------------------------
        Commissioner Collier: Upon his own petition, Senator.

        Senator Wheeler: Yes; upon his own petition. That ought not to 
        be permitted as a matter of fact. It ought to be handled by the 
        former Vice President himself rather than by the Government of 
        the United States, thereby saving the Government that expense.

        Now, here is another case out in California, where we visited 
        some of those reservations in northern California. There is not 
        any more reason why those Indians out there should handle their 
        own affairs than any white man. Hardly any of them are more 
        than quarter-breeds, and most of them are eighths. They are 
        white people. And yet the Government of the United States is 
        handling their affairs. In my judgment, those Indians ought to 
        have that land allotted to them. They ought to run their own 
        affairs. They ought to come under the laws of the State of 
        California, and the guardianship over those Indians ought to 
        cease completely.

        Now, if you are going to pass this bill in its present form, 
        you are going to prevent these lands from ever being taken out 
        from under the Government supervision.

Senate Hearing at 150-51. In response to Senator Wheeler, Ward Shepard, 
a specialist on land policies in the Office of Indian Affairs, noted 
that the bill deliberately chose to eliminate the ability of the 
Secretary of the Interior to declare particular Indians fully 
assimilated or ``competent.'' Historically, it was this discretion that 
caused Indians to lose millions of acres of land. 5 But 
Senator Wheeler was not deterred by these comments. He continued:
---------------------------------------------------------------------------
    \5\ Competency determinations had resulted in the issuance of fee 
simple patents to many Indian allotments that were then lost due to 
back taxes, shady dealings, or outright theft.
---------------------------------------------------------------------------
        Senator Wheeler: I think the Secretary of the Interior ought to 
        have some discretion in this matter, for the simple reason, as 
        I have said to you, there are Indians in my State that are just 
        as capable of handling their own private affairs as any white 
        man in this room, and there are innumerable Indians in 
        California of that kind. As I say, that one reservation we 
        visited and had hearings, the Commissioner or his 
        representative was present. They are white people. They are not 
        Indians. They are just as capable of handling their own affairs 
        as they can be, and, in my judgment, they ought to cease to be 
        wards of the Government of the United States, and their 
        property ought to be turned over to them, and they ought to 
        handle it in exactly the same way that any white man handles 
        his property.

          What we are interested in particularly is protecting the 
        long-haired Indians and the Indians that are incapable of 
        handling their property. But we should not tie the Government 
        up with handling property and keeping certain Indians as wards 
        of the Government and their children as wards of the Government 
        when they really no longer should be subject to that 
        supervision.

Senate Hearing at 151.
    Later in this same hearing, Senator Wheeler once again pressed the 
point. This time, however, Commissioner Collier agreed that the 
Secretary could retain discretion to decide that certain individuals 
would not longer enjoy the benefits of the Act:
        Commissioner Collier: ...May I advert for a moment to this 
        question of allotment being wholly discretionary with the 
        Secretary of the Interior? One of the horrible examples of the 
        effects of allotment is the Quanitos, where the timber has all 
        been allotted and the result has been disastrous. That was done 
        not through the initiative of the Department, but as a result 
        of a mandamus, and the court sustained the mandamus and 
        required the Department to proceed and allot.

        Senator Wheeler: Yes; but if you leave it to the discretion of 
        the Secretary of the Interior and it is in his discretion, they 
        could not go in and mandamus them to do it, if it were entirely 
        within his discretion....

        Commissioner Collier: ``we feel that looking back over the 
        admitted errors of the past administrations, which have had 
        terrible consequences, Congress ought to control that 
        situation.

        Senator Wheeler: But the trouble is Congress cannot control it. 
        I mean it is something that the Congress cannot control, 
        because you have individual Indians on some of these 
        reservations that are absolutely competent to take care of 
        their own land, and they ought to be given the right to take 
        care of their own land and carry on their own property if they 
        are capable and want to do it, and they are capable of doing 
        it.

        Commissioner Collier: If that were left as a discretion [sic], 
        if it can be given the strong advantages we are talking about, 
        it would be relatively unimportant then. We are not insistent 
        upon that.

Senate Hearing at 163-64.
    On May 17, 1934, however, when the Committee was reading through 
the bill for the final time, Commissioner Collier had still not 
incorporated the change suggested by Senator Wheeler. It was at this 
point that the phrase ``now under Federal jurisdiction'' was finally 
inserted into the IRA:
        Senator Wheeler: But the thing about it is this, Senator; I 
        think you have to sooner or later eliminate those Indians who 
        are at the present time--as I said the other day, you have a 
        tribe of Indians here, for instance in northern California, 
        several so-called ``tribes'' there. They are no more Indians 
        than you or I, perhaps. I mean they are white people 
        essentially. And yet they are under the supervision of the 
        Government of the United States, and there is no reason for it 
        at all, in my judgment. Their lands ought to be turned over to 
        them in severalty and divided up and let them go ahead and 
        operate their own property in their own way.

        Senator O'Mahoney: If I may suggest, that could be handled by 
        some separate provision excluding from the benefits of the act 
        certain types, but must have a general definition [sic].

        Commissioner Collier: Would this not meet your thought, 
        Senator: After the words ``recognized Indian tribe'' in line 1 
        insert ``now under Federal jurisdiction''? That would limit the 
        act to the Indians now under Federal jurisdiction, except that 
        other Indians of more than one-half Indian blood would get 
        help.

Senate Hearing at 266. And thus, the bill was amended.
    This legislative history demonstrates that the Supreme Court's 
decision in Carcieri v. Salazar is exactly backwards. The addition of 
the phrase ``now under federal jurisdiction'' to the definition of 
``Indian'' was not intended to fix application of the Act to only those 
under jurisdiction in 1934. Senator Wheeler repeatedly stated that he 
was concerned about Indians that were, at the time, admittedly under 
federal jurisdiction. The phrase in question was inserted to ensure 
that the Secretary would continue to have discretion to decide that 
individual Indians who had fully assimilated would no longer be granted 
the benefits of the IRA. ``Now'' must therefore refer to the date that 
the Act is being applied to the particular Indian in question.
    Justice Thomas' majority opinion in Carcieri v. Salazar fails to 
contain any discussion of this legislative history. 6
---------------------------------------------------------------------------
    \6\ Justice Breyer's concurrence does refer to the legislative 
history of the IRA, but after seeming to review only a three-page 
excerpt of the Committee's final hearing, he misinterprets the 
discussion.
---------------------------------------------------------------------------
III.  Executive Branch Practice
    Rather than discussing the legislative history of the IRA, the 
majority in Carcieri v. Salazar supports its decision by reference to a 
single letter written by Commissioner Collier, which claims that the 
term ``Indian'' includes ``all persons of Indian descent who are 
members of any recognized tribe that was under Federal jurisdiction at 
the date of the Act.'' That letter, however, was written almost two 
years after the bill was enacted.
    More revealing than this single, informal piece of correspondence 
is the consistent history of formal executive branch decisions 
acknowledging that certain groups are Indian tribes under the IRA. 
During 1934-35, Commissioner Collier decided that 258 groups were 
eligible to organize under the IRA. Yet after that initial wave of 
``recognition'' decisions, Collier and others continued to recognize 
and apply the IRA to tribes without any consideration of whether they 
were ``under federal jurisdiction'' as of June 18, 1934. Additionally, 
for the past 25 years, the agency's construction of this statutory 
provision has been embodied in formal regulations that allow any Indian 
tribe currently recognized by the federal government to take advantage 
of the IRA's benefits. Since these regulations were promulgated, 
sixteen tribes have--often at the explicit direction of Congress--
endured the grueling process of obtaining federal recognition through 
the Department's formal administrative process codified at 25 C.F.R. 
Part 83. The Supreme Court's decision in Carcieri threatens to 
eliminate many of the most important benefits of federal recognition 
for these administratively recognized tribes, even though in most 
cases, after reviewing copious volumes of primary and secondary 
documentation, the Department concluded that mistake or oversight was 
all that precluded their recognition in 1934.
    I encourage the members of this Committee to right the injustice 
that Carcieri v. Salazar will cause by amending the definition of 
``Indian'' contained in the IRA.
    Disclaimer: The comments expressed herein are solely those of the 
author as an individual member of the academic community; the author 
does not represent the University of Michigan or William Mitchell 
College of Law for purposes of this testimony.
                                 ______
                                 
    The Chairman. Thank you. Mr. Anderson

          STATEMENT OF MICHAEL J. ANDERSON, PARTNER, 
              ANDERSONTUELL, LLP, WASHINGTON, D.C.

    Mr. Anderson. Thank you, Mr. Chairman and Members of the 
Committee and Ranking Member Hastings.
    I am Michael Anderson of the Washington, D.C., firm of 
AndersonTuell here in Washington. I am pleased to present 
testimony today, based in part on my experience at the 
Department of the Interior as Associate Solicitor for Indian 
affairs and Deputy Assistant Secretary for Indian affairs, 
respectively, from 1993 to 2001.
    The starting point for any discussion addressing Carcieri 
must begin with the United States Constitution and Congress's 
authority to regulate commerce with foreign nations, the 
several states, and with the Indian tribes. This constitutional 
doctrine, along with the President's power to make treaties 
with Indian tribe, the Executive Branch's trust responsibility 
to Indian tribes, Chief Justice John Marshall's recognition of 
Indian tribes domestic, dependent nations, which is really the 
foundation of modern Federal Indian law, and the inherent 
powers of Indian nations all provide the context for reviewing 
any Supreme Court decision, like Carcieri, that is detrimental 
to tribal sovereignty and Executive Branch powers.
    Since the termination era ended in the 1950s, Congress, 
often through the leadership of this Committee, has stepped 
forward to build on this country's constitutional foundations 
to support tribal self-determination. Fortunately for Indian 
Country, the modern self-determination era has seen dozens of 
statutes that support Indian tribes and their powers.
    Even in recent times, Congress has acted with dispatch when 
the full purposes of the IRA were not being met for all tribes.
    As you know, the IRA was designed to reverse the 
assimilation policy of the General Allotment Act in the 1880s, 
which President Theodore Roosevelt described as ``a mighty, 
pulverizing engine to break up the tribal mass.''
    I will highlight three recent examples where Congress acted 
to fully implement the IRA.
    First, in 1994, Congress amended the IRA to prohibit 
Federal agencies from discriminating among Indian tribes with 
respect to their privileges and immunities. Until that law was 
passed, the Interior Solicitor's Office treated certain tribes 
as ``created'' and other tribes as ``historic'' based on their 
original organization.
    In response, then-Native American Subcommittee Chairman 
Bill Richardson made this statement on the House Floor: 
``Tribal sovereignty must be preserved and protected by the 
Executive Branch and not limited or divided into levels which 
are measured by the Bureau of Indian Affairs.''
    Second, Congress passed another law, in 1994, that made 
clear, Indian tribes may be recognized in at least three ways: 
by Congress, by the FAP process, or by the courts.
    Third, in 2004, Congress again amended the IRA to ensure 
that nothing in the IRA voids a tribal constitution adopted 
under a tribe's inherent powers, even if it is adopted after 
1934.
    Chairman Rahall, these three statutes, and many others, 
make clear that Congress will not tolerate the creation of 
second-class tribes.
    While I was at the Department of the Interior, our practice 
was to presume that the Secretary had the authority to acquire 
land into trust for Indian tribes. This worked well for more 
than 70 years. Indeed, the strength of the IRA led to a 
renaissance in Indian Country. The tribes built headquarters, 
schools, housing, medical centers, police and fire stations.
    Carcieri threatens to undermine these successes with the 
creation of a new class of tribes that would not be eligible 
for land-into-trust.
    The time has come once again for Congress, and this 
Committee, to act by clearly affirming the authority of the 
Secretary of the Interior to take land into trust for all 
tribes. While waiting for congressional action, I would suggest 
that this Committee urge Secretary Salazar and Attorney General 
Holder to interpret the Carcieri decision in a way that 
protects completed land-into-trust conveyances, through the 
Quiet Title Act, and to promote future land acquisitions for 
all tribes.
    The government should adopt a broad view of the ``now under 
Federal jurisdiction'' language in the IRA that would equate 
this jurisdiction to the broad powers of Congress under the 
Constitution.
    In other words, virtually all tribes would continue to be 
covered by the IRA because Federal jurisdiction would be equal 
to Congress's plenary power. This legal principle could be 
argued in challenges to land-into-trust acquisitions and 
offered as guidance now for pending land acquisitions.
    Even though the Secretary and the Attorney General, as 
trustees for American Indian tribes, should interpret the 
decision to minimize its impact, there is no doubt that Indian 
tribes will face years of litigation from opportunistic 
plaintiffs if Congress does not act with urgency.
    Regrettably, some attorneys and their clients may see the 
Carcieri decision as a springboard to revisit assimilationist 
and antisovereignty positions best left in the termination era. 
Facing such litigation or, possibly, after an erroneous 
decision by lower courts, the Department of the Interior could 
be compelled to examine the historical record for individual 
tribes.
    My experience at the Department has shown that gaps in 
historic records, staffing shortages, restrictive 
interpretations, and well-funded opponents could delay land-
into-trust acquisitions for years. This is especially true in 
light of my experience with the FAP process. Suffice to say 
that no one wants to create a new office of Federal 
jurisdiction that would repeat the history of the FAP process.
    In closing, it is reassuring that Secretary Salazar has 
said he is disappointed with the Carcieri decision and that 
``the Department is committed to supporting the ability of all 
Federally recognized tribes to have lands acquired in trust.''
    President Obama also supports the principle of tribal self-
determination and has said that the Federal government must 
fully enable tribal self-governance. This Committee has always 
been in the vanguard of protecting the full reach of the IRA. 
Indian nations across the country, again, look to you in the 
wake of the Carcieri decision.
    Thank you, and I look forward to answering any questions 
that the Committee may have.
    [The prepared statement of Mr. Anderson follows:]

          Statement of Michael J. Anderson, AndersonTuell, LLP

    Mr. Chairman and members of the Committee, I am Michael J. Anderson 
of the Washington, DC law firm of AndersonTuell, LLP. I am here today 
to present testimony based in part on my tenure at the United States 
Department of the Interior as Associate Solicitor for Indian Affairs 
and Deputy Assistant Secretary for Indian Affairs, respectively, from 
1993 to 2001. This written statement is submitted for the record and 
offers the following points:
      Carcieri v. Salazar overturns nearly 75 years of settled 
land into trust policy by limiting the Secretary of the Interior's 
authority to accept land into trust for those American Indian Tribes 
``under federal jurisdiction'' in 1934.
      While virtually all American Indian Tribes were ``under 
federal jurisdiction'' under the proper interpretation of that term, 
the Carcieri decision does not articulate a test or standard for 
resolving that question.
      It is inevitable that some private groups will argue that 
many recognized tribes should be excluded, and the Department of the 
Interior could potentially face dozens of lawsuits. It is possible 
that, facing such litigation, or possibly after erroneous decisions by 
the lower courts, the Department will be compelled to examine the 
historical record for individual tribes.
      The Department is ill-equipped to make such 
determinations due to a lack of resources.
      The decision is creating confusion within federal 
agencies and Indian Country.
      Carcieri is contrary to modern Congressional and 
Executive support for American Indian self-determination, Native 
Nation-building, and treating all Tribes the same with respect to 
authorities of the Secretary of the Interior.
      Congress should act now to restore the Secretary's 
authority to accept land into trust for all American Indian Tribes and 
all other Secretarial authorities potentially affected by the decision.
      Until Congress acts, it should urge the Attorney General, 
the Secretary of the Interior and the Chairman of the National Indian 
Gaming Commission to interpret the Carcieri decision in a manner that 
does not disturb past federal agency decisions and that maximizes the 
Secretary's current authority.
I. PURPOSES OF THE IRA
    The Supreme Court decision Carcieri v. Salazar 1 runs 
directly counter to federal laws and policies that have long expressly 
supported self-determination for American Indian Nations. The Indian 
Reorganization Act of 1934 was intended to improve the political, 
cultural, and economic status of Tribes by ending fifty years of forced 
assimilation initiated by the General Allotment Act of 1887, 
2 described by President Theodore Roosevelt as a ``mighty 
pulverizing engine to break up the tribal mass.'' 3 The IRA 
gave authority to the Secretary of the Interior to acquire new or 
repurchase former tribal lands on behalf of all Indian tribes. 
4 The purpose behind the new tribal land-acquisition policy 
was to encourage tribal self-governance and promote tribal self-
determination and economic development.
---------------------------------------------------------------------------
    \1\ --U.S.--, 129 S.Ct. 1058 (2009) (``Carcieri'').
    \2\ 24 Stat. 388
    \3\ President Theodore Roosevelt. First Annual Message (Dec. 3, 
1901). John T. Woolley and Gerhard Peters, The American Presidency 
Project [online]. Santa Barbara, CA: University of California (hosted), 
Gerhard Peters (database). http://www.presidency.ucsb.edu/ws/
?pid=29542.
    \4\ See Cohen's Handbook of Federal Indian Law (2005 ed.), 
Sec. 1.05.
---------------------------------------------------------------------------
    Since 1934, approximately six million acres of land have been 
acquired in trust for American Indian tribes. 5 The use of 
those lands by tribes has promoted tribal self-determination and well-
being through uses as diverse as for health centers, government 
offices, and tribal cultural facilities. Moreover, such lands play a 
role in a wide range of economic activities whose benefits spill beyond 
tribes themselves to surrounding, non-Indian communities; such economic 
activities include agriculture, energy resources development, housing, 
clinics, and sacred site protection.
---------------------------------------------------------------------------
    \5\ U.S. General Accountability Office. BIA's Efforts to Impose 
Time Frames and Collect Better Data Should Improve the Process of Land 
in Trust Applications. GAO-06-781 (July 2006), pp. 8-9.
---------------------------------------------------------------------------
II. BACKGROUND OF CARCIERI
    Carcieri v. Salazar, which construed Section 19 of the Indian 
Reorganization Act of 1934 6 (``IRA''), overturns nearly 75 
years of well-settled legislative, judicial, and administrative policy 
and precedent with respect to the authority of the Secretary of the 
Interior to accept land in trust for Indian Tribes. The decision held 
that for purposes of the IRA, the Secretary of the Interior's authority 
to take land into Trust for a tribe is limited to those tribes ``under 
federal jurisdiction when the IRA was enacted in 1934.'' 7 
Justice Thomas wrote the majority opinion. Justice Breyer joined the 
opinion but filed a concurrence. Justice Souter concurred in part and 
dissented in part joined by Justice Ginsburg. Justice Stevens 
dissented.
---------------------------------------------------------------------------
    \6\ 48 Stat. 984, codified as amended at 25 U.S.C. 461 et seq.
    \7\ Carcieri at 1061.
---------------------------------------------------------------------------
    The Supreme Court reversed the First Circuit's determination that 
``now under federal jurisdiction'' applies to all currently recognized 
tribes and continues a trend wherein the Supreme Court reverses 
favorable interpretation of Indian rights from the Circuit Courts. 
8 The Supreme Court's majority opinion did not set forth a 
test as to what ``under federal jurisdiction'' in 1934 encompasses, but 
ruled that it did not apply to the Narragansett Indian Tribe where in 
the majority's view the Tribe itself did not argue or contest that it 
was not under federal jurisdiction in 1934. Manifestly unfair to the 
Narragansett, the majority did not remand the case back to the First 
Circuit to allow the Tribe an opportunity to demonstrate that it was in 
fact under federal jurisdiction in 1934. Without explanation, the 
Supreme Court also ignored Congress' amendments to the IRA in 1994 
stating:
---------------------------------------------------------------------------
    \8\ See, e.g., David H. Getches, Beyond Indian Law: The Rehnquist 
Court's Pursuit of States' Rights, Color-Blind Justice and Mainstream 
Values, 86 Minn. Law. Rev. 267, 280 (2001) (of forty Indian law cases 
decided by the Supreme Court between 1986 and 2001, tribal interests 
prevailed 22.5% of the time, a success rate lower even than that of 
convicted criminals).
---------------------------------------------------------------------------
        (f) Privileges and immunities of Indian tribes; prohibition on 
        new regulations: Department or agencies of the United States 
        shall not promulgate any regulation or make any decision or 
        determination pursuant to the Act of June 18, 1934 (25 U.S.C. 
        461 et seq., 48 Stat. 984) as amended, or any other Act of 
        Congress, with respect to a federally recognized Indian tribe 
        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. 9
---------------------------------------------------------------------------
    \9\ 25 U.S.C. Sec. 476(f).
---------------------------------------------------------------------------
CONCERNS RAISED BY CARCIERI DECISION
    By upending well-settled expectations, Carcieri is already creating 
confusion in Indian Country and within the Department of the Interior, 
the National Indian Gaming Commission, and the Department of Justice. 
As a result, it will undoubtedly lead to delays, increased costs, and 
new legal challenges in the already cumbersome fee-to-trust process 
10. Dozens of pending land-into-trust applications may have 
to be reconsidered in the wake of the Supreme Court's ruling, dashing 
the hopes of tribes whose well-being depends on timely administrative 
action. There are already reports of vague directives from the Bureau 
of Indian Affairs requesting tribal confirmation of their jurisdiction 
under the IRA. Hindering the prospects for tribal economic development 
and self-determination during the worst economic downturn for 
generations, the economic consequences of Carcieri could prove 
irreversible.
---------------------------------------------------------------------------
    \10\ See U.S. General Accountability Office, ``Indian Issues: BIA's 
Efforts to Impose Time Frames and Collect Better Data Should Improve 
the Process of Land in Trust Applications,'' GAO-06-781 (July 2006).
---------------------------------------------------------------------------
    While all tribes with established reservations should be appalled 
by the Carcieri decision, landless tribes may have the most to fear. 
Without a land base in trust, an Indian Nation's sovereignty over 
territory is virtually non-existent and its powers as a domestic Nation 
are severely compromised. With a land base, an Indian Nation can 
protect sacred places, create a homeland, foster economic development 
and employment. When Indian Nations do well, entire communities do 
well.
    The decision in Carcieri illustrates once again the modern Supreme 
Court's rejection of time-honored and well-founded policies for 
American Indian Tribes. The many concerns raised by Carcieri are 
compounded by the Supreme Court's issuance of a new test of ``under 
federal jurisdiction'' in 1934. Without explanation or analysis, the 
majority simply held that the Narragansett Indian Tribe would have been 
unable to satisfy this newly established criterion back in 1934. In 
contrast to the majority's vague articulation (or more properly non-
articulation) of a standard for what constitutes ``under federal 
jurisdiction,'' the concurring opinion of Justice Breyer at least set 
forth a non-exclusive list of examples of what might provide evidence 
of being ``under federal jurisdiction'' in 1934; for example:
      continuing obligations by the United States to the tribe; 
11
---------------------------------------------------------------------------
    \11\ Id. at 1070 (citing Memorandum from Associate Solicitor, 
Indian Affairs to Assistant Secretary, Indian Affairs, Request for 
Reconsideration of Decision Not to Take Land in Trust for the 
Stillaguamish Tribe (Oct. 1, 1980)) (``all groups which existed and as 
to which the United States had a continuing course of dealings or some 
legal obligation in 1934, whether or not that obligation was 
acknowledged at that time'').
---------------------------------------------------------------------------
      the continuing existence of a government-to-government 
relationship despite the federal government's mistaken belief it was 
terminated; 12
---------------------------------------------------------------------------
    \12\ Id. (citing Grand Traverse Band of Ottawa & Chippewa Indians 
v. Office of U.S. Attorney for Western Dist. of Mich., 369 F.3d 960, 
961, and n. 2 (C.A.6 2004)).
---------------------------------------------------------------------------
      where the Tribe was the subject of a congressional 
appropriation or enrollment with the BIA
      cases where even later recognition decisions reflected 
earlier federal jurisdiction. 13
---------------------------------------------------------------------------
    \13\ Id.
---------------------------------------------------------------------------
    The proper application of Justice Breyer's opinion by federal 
agencies and the correct interpretation of ``under federal 
jurisdiction'' could alleviate fall-out from the Carcieri decision and 
perhaps limit it to the Narragansett Tribe. Even so, such favorable 
determinations could face challenges by opportunistic opponents of 
tribal land acquisition who could delay conveyance of property to the 
United States for the benefit of Indian Tribes for years.
    The responsibility of the Federal government over Indian tribes is 
historically rooted in the Indian Commerce Clause of the Constitution, 
which gives Congress plenary power over tribes, unrestricted authority 
to assert jurisdiction over Indian communities, and the ability to 
determine whether, to what extent, and for what time a tribal community 
shall be recognized. 14 Acknowledgment of a tribe implicitly 
recognizes that the tribe is a sovereign entity possessing all those 
inherent powers not otherwise inconsistent with its status as a 
dependent nation. 15 This wide constitutional authority is 
reflected in the broad jurisdictional authority of Congress over 
tribes, which extends to all Indian tribes, even tribes with which a 
government-to-government relation has not been expressly established. 
16
---------------------------------------------------------------------------
    \14\ U.S. Constitution, Art. I, Sec. 8, Cl. 3; U.S. v. Sandoval, 
231 U.S. 28, 46 (1913).
    \15\ See Worcester v. Georgia, 31 U.S. 515 (1832); Cherokee Nation 
v. Georgia, 30 U.S. 1 (1831).
    \16\ See, e.g., Joint Tribal Council of the Passamaquoddy Tribe v. 
Morton, 528 F.2d 370 (1st Cir. 1975) (unrecognized tribe within federal 
jurisdiction for purposes of claim arising under Trade and Intercourse 
Act).
---------------------------------------------------------------------------
    Against the historical backdrop of this policy and jurisprudence, 
instruction should be provided to interpret ``under federal 
jurisdiction'' as it appears in Section 19 of the IRA in an equally 
broad manner, on the understanding that, had Congress intended the 
statute to be construed narrowly, it would have made that desire clear. 
Had Congress intended to restrict Section 19, it could have used 
qualifying language. Or Congress could have expressly limited eligible 
tribes to those under formal Interior Department ``supervision,'' 
``tutelage,'' or ``guardianship,'' restrictive terms that appear in the 
legislative history of the IRA. Congress avoided such narrow language, 
using the broader ``federal jurisdiction'' based precisely on the broad 
scope of its authority as rooted in the Constitution.
THE DEPARTMENT OF INTERIOR IS ILL-EQUIPPED TO CREATE AND APPLY NEW 
        CARCIERI TESTS FOR THE DETERMINING ``UNDER FEDERAL 
        JURISDICTION''
    The Department of the Interior is ill-equipped to apply and 
construe IRA terms like ``under federal jurisdiction in 1934,'' due to 
a lack of resources and an occasional history of misconstruing and 
limiting the IRA. For example, prior to 1994, the Interior Solicitor's 
Division of Indian Affairs, Tribal Government and Alaska office 
routinely misconstrued the IRA to contrive a distinction between what 
it termed ``historic'' tribes and so-called ``non-historic'' tribes--
which referred to tribes originally organized as communities of adult 
Indians. This dubious distinction was nowhere found in the original 
IRA. It was also undercut by the 1988 Amendments to the IRA which 
deleted the language regarding ``adult Indians residing on a 
reservation'' and simply referred to tribes as ``tribes.'' In addition, 
it was impliedly overruled by the definition of ``tribe'' in statutes 
such as the Indian Land Consolidation Act, 17 the Indian 
Child Welfare Act, 18 and other laws with broad definitions 
of ``tribe,'' such as that used in the Indian Self-Determination and 
Education Assistance Act. 19
---------------------------------------------------------------------------
    \17\ 25 U.S.C. Sec. Sec. 2201 et seq.
    \18\ 25 U.S.C. Sec. Sec. 1901 et seq.
    \19\ 25 U.S.C. Sec. Sec. 450 et seq.
---------------------------------------------------------------------------
    The invidious distinction between historic and non-historic tribes 
was summarized in a now infamous Bureau of Indian Affairs letter from 
Acting Assistant Secretary Wyman Babby to Chairman George Miller of the 
House Resources Committee in 1994 ( the ``Babby Letter''). 
20 The firestorm that erupted in Indian Country as a result 
of this letter led concerned Members of Congress to reverse the so-
called distinction within months. In 1994, Congress amended the Indian 
Reorganization Act to prohibit the classifications asserted by the 
Office of the Solicitor, Division of Indian Affairs and to ensure the 
same rights and obligations of federal recognition that are available 
to all federally recognized tribes. 21 Congress also 
clarified that:
---------------------------------------------------------------------------
    \20\ See United States Department of the Interior, Acting Assistant 
Secretary--Indian Affairs to Hon. George Miller (Jan. 14, 1994).
    \21\ See 25 U.S.C. Sec. 476(f)-(g).
---------------------------------------------------------------------------
        ``(3) Indian tribes presently may be recognized by Act of 
        Congress; by the administrative procedures set forth in part 83 
        of the Code of Federal Regulations denominated ``Procedures for 
        Establishing that an American Indian Group Exists as an Indian 
        Tribe;'' or by a decision of a United States court;'' 
        22
---------------------------------------------------------------------------
    \22\ 25 U.S.C.A. Sec. 479a
---------------------------------------------------------------------------
    Moreover, in 2004, Congress again amended the IRA to ensure that 
the IRA did not invalidate tribal constitutions that were adopted after 
June 19, 1934 (the date of the original IRA) where such constitutions 
are adopted under a Tribe's ``inherent sovereign power'' 23. 
Any attempt to resuscitate such distinctions between tribe's 
privileges, immunities and inherent powers must be prevented.
---------------------------------------------------------------------------
    \23\ 25 U.S.C.A. Sec. 476(h), Section 103, Public Law 103-454
---------------------------------------------------------------------------
    Regrettably, the Department of the Interior Solicitor's Office last 
year lodged the 1994 Babby Letter with the United States Supreme Court 
after the briefing was closed in the Carcieri case (but before the 
decision was issued). This misleading filing was made without also 
lodging the 1994 privileges and immunities statute that reversed the 
historic non-historic tribal distinctions made in the letter. The 
Solicitor's Office also failed to file a July 13, 1994 memorandum from 
Solicitor John Leshy to Assistant Secretary Ada Deer that also 
recognized that Congress for the most part ``makes no distinctions 
among Tribes.'' The Division of Indian Affairs incomplete lodging with 
the Supreme Court raises the specter that the discredited practice of 
classifying some tribes as ``non-historic'' could be revived by the 
Division of Indian Affairs in a new post-Carcieri analysis.
    While at the Department, I also became aware of Interior Department 
practices in the federal acknowledgment process that if applied by the 
Department in the land in trust process could unduly restrict the 
Secretary's authority. Repeated reports of the General Accounting 
Office and this Committee's own hearings demonstrate the long delays, 
poor staff support, and unduly restrictive interpretations of the 
Department's Office of Federal Acknowledgment (``OFA''). 24 
Transferring tribal history questions to OFA is a potential disaster in 
the making.
---------------------------------------------------------------------------
    \24\ See U.S. General Accountability Office, ``More Consistent and 
Timely Tribal Recognition Process Needed,'' GAO 02-415T (Feb. 7, 2002); 
``Timeliness of the Tribal Recognition Process Has Improved, but It 
Will Take Years to Clear the Existing Backlog of Petitions,'' GAO-05-
347T (Feb. 10, 2005).
---------------------------------------------------------------------------
    As Associate Solicitor, the Division of Indian Affairs' attorneys I 
supervised were not required to engage in an analysis of which tribes 
were ``under federal jurisdiction'' when considering land into trust 
applications for the simple reason that all tribes were presumed to be 
under the Secretary's trust authority, absent some express 
Congressional prohibition. The purpose and intent behind this long-
standing practice was ignored in Carcieri.
    Plainly the Carcieri decision runs directly counter to federal laws 
and policies that have long expressly supported self-determination for 
American Indian Nations. The Indian Reorganization Act of 1934 itself 
was intended to reverse fifty years of forced assimilation of tribes 
through allotment of tribal land by giving the Secretary of the 
Interior the authority to acquire lands in trust on behalf of all 
Indian tribes. 25 The purpose behind the new tribal land-
acquisition policy was to encourage tribal self-governance and promote 
tribal self-determination and economic development.
---------------------------------------------------------------------------
    \25\ See General Allotment Act of 1887. 24 Stat. 388.
---------------------------------------------------------------------------
    The Executive Branch has followed a similar course as Congress in 
supporting and promoting policies of self-determination of Indian 
tribes. President Clinton's Executive Order 13084 of May 14, 1998, 
Consultation and Coordination with Indian Tribal Governments, mandates 
that federal agencies follow principles of respect for Indian Tribal 
self-government and sovereignty, for Tribal treaty rights and other 
rights and for the responsibilities which arise from the unique federal 
trust relationship. 26
---------------------------------------------------------------------------
    \26\ Executive Order No. 13084, ``Consultation and Coordination 
with Indian Tribal Governments.'' 63 Fed. Reg. 27655 (Apr. 14, 1998). 
See also President George W. Bush, ``Memorandum for the Heads of 
Executive Departments and Agencies: Government-to-Government 
Relationship with Tribal Government,'' (Sept. 23, 2004); President 
George H.W. Bush, Statement Reaffirming the Government-to-Government 
Relationship between the Federal Government and Tribal Governments 
(June 14, 1991); President Ronald M. Reagan, Statement on American 
Indian Policy (Jan. 24, 1983), in 19 Weekly Comp. Pres. Doc. 98; 
President Richard M. Nixon, Special Message on Indian Affairs, in 
Public Papers of the Presidents of the United States: Richard Nixon, 
pp. 564-67, 576.
---------------------------------------------------------------------------
CONGRESS MUST PROVIDE A REMEDY NOW
    Congress has the opportunity and duty to Indian Tribes to solve 
this problem now by confirming the Secretary's authority to take land 
in trust for all tribes rather than allowing new and convoluted 
bureaucratic processes to take root. Congress should provide an 
immediate statutory solution that (1) makes clear that the Secretary of 
the Interior has authority to accept land in trust for any and all 
federally recognized tribes; and (2) that ratifies all prior 
Secretarial decisions under the IRA, including trust acquisitions, that 
may be potentially affected by the decision.
    Congress should enact new legislation that makes clear the 
Secretary of the Interior has authority to accept land in trust for all 
federally-recognized Tribes irrespective of a determination of whether 
or not they were under federal jurisdiction in 1934. While we wait for 
Congress to review the legislative record to restore the Secretary's 
authority, we cannot forget that legislative direction to federal 
agencies is necessary today. The Secretary of the Interior can make 
clear today that nothing from the Carcieri decision will disturb prior 
trust land acquisitions. For example, The Quiet Title Act contains an 
Indian land exception that expressly precludes lawsuits challenging the 
United States' title to ``trust or restricted Indian lands.'' 
27 All acquisitions prior to Carcieri should therefore 
continue to enjoy full effect and all future agency activities related 
to these lands must proceed as properly authorized.
---------------------------------------------------------------------------
    \27\ 20 U.S.C. Sec. 2409a. See also Sac & Fox Nation of Missouri v. 
Salazar, No. 08-3277 (10th Cir. Mar. 3, 2009); Neighbors for Rational 
Development, Inc. v. Norton, 379 F.3d 956 (10th Cir. 2004).
---------------------------------------------------------------------------
    In the meantime, this Committee could also give important direction 
to the Secretary of the Interior, Chairman of the National Indian 
Gaming Commission and Attorney General to interpret the Carcieri 
decision in the most legally permissible fashion possible, especially 
with respect to the standard to be applied for what tribes should be 
considered ``under federal jurisdiction'' after Carcieri.
    Thank you for the opportunity to testify today and I look forward 
to answering any questions the Committee has today or may submit in 
writing.
                                 ______
                                 
                                EXHIBITS
Exhibit A     25 U.S.C.A. Sec. 476
             Privileges and immunities of Indian tribes, Tribal 
sovereignty

Exhibit B     25 U.S.C.A. Sec. 479
             Definitions

Exhibit C     25 U.S.C.A. Sec. 479a
             Federally Recognized List Act of 1994

Exhibit D     U.S. Const. Article I, Section 8, Clause 3
             Indian Commerce Clause

Exhibit E      July 13, 1994 Memorandum to Ada E. Deer, Assistant 
Secretary--Indian Affairs from John D. Leshy, Solicitor, regarding 
amendment of the Indian Reorganization Act
                                 ______
                                 
                               EXHIBIT A
                     25 u.s.c.a. Sec. 476 (partial)
(f)  PRIVILEGES AND IMMUNITIES OF INDIAN TRIBES; PROHIBITION ON NEW 
        REGULATIONS.--Departments or agencies of the United States 
        shall not promulgate any regulation or make any decision or 
        determination pursuant to the Act of June 18, 1934 (25 U.S.C. 
        461 et seq., 48 Stat. 984) as amended, or any other Act of 
        Congress, with respect to a federally recognized Indian tribe 
        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.
(g)  PRIVILEGES AND IMMUNITIES OF INDIAN TRIBES; EXISTING 
        REGULATIONS.--Any regulation or administrative decision or 
        determination of a department or agency of the United States 
        that is in existence or effect on May 31, 1994, and that 
        classifies, enhances, or diminishes the privileges and 
        immunities available to a federally recognized Indian tribe 
        relative to the privileges and immunities available to other 
        federally recognized tribes by virtue of their status as Indian 
        tribes shall have no force or effect.
(h)  Tribal sovereignty
    Notwithstanding any other provision of this Act----
    (1)  each Indian tribe shall retain inherent sovereign power to 
adopt governing documents under procedures other than those specified 
in this section; and
    (2)  nothing in this Act invalidates any constitution or other 
governing document adopted by an Indian tribe after June 18, 1934, in 
accordance with the authority described in paragraph (1).
                                 ______
                                 
                               EXHIBIT B
                          25 u.s.c.a. Sec. 479
    The term ``Indian'' as used in this Act shall include all persons 
of Indian descent who are members of any recognized Indian tribe now 
under Federal jurisdiction, and all persons who are descendants of such 
members who were, on June 1, 1934, residing within the present 
boundaries of any Indian reservation, and 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.
                                 ______
                                 
                               EXHIBIT C
                         25 u.s.c.a. Sec. 479a
    For the purposes of this title:
    (1)  The term ``Secretary'' means the Secretary of the Interior.
    (2)  The term ``Indian tribe'' means any Indian or Alaska Native 
tribe, band, nation, pueblo, village or community that the Secretary of 
the Interior acknowledges to exist as an Indian tribe.
    (3)  The term ``list'' means the list of recognized tribes 
published by the Secretary pursuant to section 479a-1 of this title.
Relevant Findings of 25 U.S.C.A. Sec. 479a
Section 103 of Pub.L. 103-454 provided that: ``The Congress finds 
that----
    ``(3)  Indian tribes presently may be recognized by Act of 
Congress; by the administrative procedures set forth in part 83 of the 
Code of Federal Regulations denominated `Procedures for Establishing 
that an American Indian Group Exists as an Indian Tribe;' or by a 
decision of a United States court;''
                                 ______
                                 
                               EXHIBIT D
       united states constitution, article i, section 8, clause 3
The Congress shall have power...
    To regulate commerce with foreign nations, and among the several 
states, and with the Indian tribes;
United States Constitution, Article II, Section 2, Clause 2
    [The President] shall have Power, by and with the Advice and 
Consent of the Senate, to make Treaties, provided two thirds of the 
Senators present concur....
                                 ______
                                 
                               EXHIBIT E

                    U.S. Department of the Interior

                        Office of the Solicitor

                            Washington, D.C.

                             July 13, 1994

Memorandum
To:      Ada E. Deer
         Assistant Secretary -- Indian Affairs
From:   John D. Leshy
         Solicitor
Subject: Amendment of the Indian Reorganization Act
    This responds to your request for my views on the meaning of 
Section 5(b) of die Technical Corrections Act of 1994 (Pub. Law 103-
263; 108 Slat. 707) which amended Section 16 of the Indian 
Reorganization Act of 1934 (ERA), 25 U.S.C. Sec. 476. by adding two new 
subsections. The new subsections provide:
          (f) PRIVILEGES AND IMMUNITIES OF INDIAN TRIBES; PROHIBITION 
        ON NEW REGULATIONS.-Departments or agencies of the United 
        States shall not promulgate any regulation or make any decision 
        or determination pursuant to the Act of June 18, 1934, (25 
        U.S.C. 461 et seq., 48 Stat. 984) as amended, or any other Act 
        of Congress, with respect to a federally recognized Indian 
        tribe 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.
          (g) PRIVILEGES AND IMMUNITIES OF INDIAN TRIBES; EXISTING 
        REGULATIONS.-Any regulation or administrative decision or 
        determination of a department or agency of die United States 
        that is in existence or effect on die date of enactment of this 
        Act and that classifies, enhances, or diminishes die 
        privileges, and immunities available to a federally recognized 
        Indian tribe relative to the privileges and immunities 
        available to other federally recognized tribes by virtue of 
        [heir status as Indian tribes shall have no force or effect.
    These subsections were added to unrelated technical amendments on 
the Senate floor immediately prior to enactment. The only relevant 
legislative history is a colloquy between Senators Inouye and McCain. 
\1\ In proposing the amendment. Senator McCain stated:
---------------------------------------------------------------------------
    \1\ These subsections were previously introduced in independent 
bills in the Senate (S. 2017) and House of Representatives (H.R. 4231) 
in mid-April. No action was taken on either bill. In remarks nearly 
identical to those he made upon introduction of the language added to 
the Technical Corrections Act, Senator McCain noted that the Department 
might take action on its own to modify its prior interpretation of 
section 16. 140 Cong. Rec. S4339 (daily cd. April 14, 1994). When he 
introduced H.R. 4231, Congressman Richardson made similar, albeit more 
brief, remarks. There is no other legislative history from the House.
---------------------------------------------------------------------------
    The purpose of the amendment is to clarify that section 16 of the 
Indian Reorganization Act was not intended to authorize the Secretary 
of the Department of the Interior to create categories of federally 
recognized Indian tribes. In the past year, the Pascua Yagui [sic] 
Tribe of Arizona has brought to our attention the fact that the 
Department of the Interior has interpreted section 16 to authorize the 
Secretary to categorize or classify Indian tribes as being either 
created or historic.

140 Cong. Rec. S6147 (daily ed. May 19, 1994).
    It is clear from their colloquy that Senators Inouye and McCain are 
referring to the interpretation in the Solicitor's Opinion dated April 
15, 1936, styled ``Sioux--Elections on Constitutions'' (1 Op. Sol, on 
Indian Affairs 618 (U.S.D.I. 1979))(``Opinion'') \2\. The Opinion 
concluded that, in authorizing the adoption of tribal constitutions in 
Section 16 of the Indian Reorganization Act of 1934 (IRA), 25 U.S.C. 
Sec. 476, Congress distinguished between the governmental powers which 
may be exercised by, respectively, what have come to be known as 
``historic'' tribes on the one hand, and ``non-historic'' or 
``created'' tribes or adult Indian communities on the other. While not 
expressly using the term ``non-historic'' or ``created'' tribe, the 
Opinion referred to the latter as Indian ``groups'' which were 
``organized on the basis of their residence upon reserved land.'' 
Opinion, at 618.
---------------------------------------------------------------------------
    \2\ The same opinion appears with the heading ``Powers of Indian 
Group Organized Under IRA But Not As Historical Tribe'' as Solicitor's 
Opinion, April 15.1938.1 Op. Sol, on Indian Affairs 813 (U.S.D.I. 
1979). The date of 1938 appears to be a typographical error, because 
the elections for the Lower Sioux Indian Community and Prairie Island 
Indian Community referred to in the opinion in the future tense were 
held on May 16 and 23, 1936, respectively.
---------------------------------------------------------------------------
    As you know, my office was in the final stages of reviewing that 
Opinion, pursuant to your request, when Congress acted. Your January 
1994 Senate testimony on the Pascua Yaqui legislation was sharply 
critical of the distinction.
    The amendment, signed into law by President Clinton on May 31, 
1994, overrules the 1936 Opinion. \3\ You should therefore instruct the 
Bureau of Indian Affairs to place no reliance on it in future dealings 
with Tribes. You may also want to notify the Tribes that have 
previously been regarded as ``created'' of this change.
---------------------------------------------------------------------------
    \3\ The amendment, which was not provided to my Office in advance 
of its introduction, and upon which we had no opportunity to comment, 
is not merely a simple overruling of the 1936 Opinion, and Senator 
McCain made dear in his-floor statement that its reach was not confined 
to the IRA. Instead, he characterized it as ``intended to address all 
instances where such categories or classifications of Indian tribes 
have been applied and any statutory basis which may have been used to 
establish, ratify, or implement the categories or classifications.'' 
140 Cong. Rec. S6147 (daily ed. May 19, 1994). This memorandum does not 
address other possible applications of the amendment beyond the 1936 
Opinion.
---------------------------------------------------------------------------
    While my reconsideration of the Opinion is now moot, some 
discussion of it may be helpful to you in applying the new law. With 
little elaboration, the Opinion based its conclusion that the IRA 
authorized a distinction between ``historic'' and ``non-historic'' or 
``created'' tribes on a single sentence found in Section 16 of the IRA.
    Section 16 as originally enacted provided, in relevant part:
        Any Indian tribe, or tribes, residing on the same reservation, 
        shall have the right to organize for its common welfare, and 
        may adopt an appropriate constitution and bylaws, which shall 
        become effective when ratified by a majority of the adult 
        members of the tribe, or of the adult Indians residing on such 
        reservation, as the case may be, at a special election 
        authorized and called by the Secretary of the Interior under 
        such rules and regulations as he may prescribe.
    The effect of the distinction drawn in the 1936 Opinion was that a 
community of adult Indians organized on reserved land under Section 16 
of the IRA may not have certain sovereign powers enjoyed by other 
``historic'' tribes, unless the powers have been delegated to the tribe 
by the Secretary of the Interior or are incidental to the tribe's 
ownership of the property or to the carrying on of business. The 
tribe's power to regulate law and order, for example, could only be 
sustained where there was a delegation of power from the Secretary of 
the Interior. Other powers possibly affected include the power to 
condemn land of community members; to regulate inheritance of the 
property of community members, and to levy taxes upon community members 
and others.
    The distinction drawn in the 1936 Opinion has had a limited 
practical effect. The occasions for applying it have been relatively 
infrequent; principally, in BIA review of tribal constitutions or 
constitutional amendments pursuant to Section 16. \4\ In the nearly 
sixty years since the Opinion was issued, in fact, fewer than twenty of 
the more than 500 federally recognized tribes have received notice that 
their particular constitution or their exercise of constitutional 
powers might be impermissible because they were considered to be 
``created'' rather than ``historic'' tribes.
---------------------------------------------------------------------------
    \4\ In 1988 Congress amended Section 16 of the IRA to require the 
Secretary to hold elections on proposed new tribal constitutions and 
constitutional amendments within stated time periods. The 1988 
amendments also required the Secretary to advise the tribe in writing 
30 days prior to calling the elections of any provision which he found 
contrary to applicable law.
---------------------------------------------------------------------------
    The Opinion's impact has also been limited because it recognized 
that ``created'' tribes may exercise some of the powers listed above as 
incident to other powers they have that do not derive from sovereignty. 
As the Opinion put it: ``The group...may have those powers which are 
incidental to its ownership of property and to its carrying on of 
business, and those which may be delegated by the Secretary of the 
Interior.'' Opinion, at 618.
    The underlying question is solely one of statutory interpretation--
of the meaning to be ascribed to this sentence in Section 16 of the 
IRA. In legislating in the arena of tribal powers. Congress can and 
sometimes has differentiated among the powers and authorities of tribes 
or Indian groups. \5\
---------------------------------------------------------------------------
    \5\ Title 25 of the United States Code is replete with special 
legislation limiting or otherwise affecting the powers of individual 
tribes, such as the Navajos and the Hopis, or groups of tribes,.such as 
the Five Civilized Tribes (Cherokees, Creeks, Chickasaws, Choctaws and 
Seminoles) or all those tribes in a particular state. For example, all 
matters involving tribal powers, immunities and jurisdiction of the 
Catawba Tribe are governed by a settlement agreement and the 
Congressionally sanctioned State Act (25 U.S.C. Sec. 941h); Oregon has 
been granted civil and criminal jurisdiction within the boundaries of 
the Coquille Reservation (25 U.S.C. Sec. 715d); New York has criminal 
jurisdiction on Indian reservations (25 U.S.C. Sec. 232) and New York 
courts have civil jurisdiction (25 U.S.C. Sec. 233); Kansas has 
criminal jurisdiction on Indian reservations (18 U.S.C. 5 3243), see., 
Negopsott v. Samuels. U.S., 113 S.Ct. 1119 (1993); Maine has civil and 
criminal jurisdiction over, reservations (25 U.S.C. Sec.  1725); Texas 
has civil and criminal jurisdiction over the Ysleta Del Sur Pueblo (25 
U.S.C. Sec. 1300g-4(f)).
---------------------------------------------------------------------------
    While my office was reexamining this Opinion, our research into its 
history unearthed some interesting background; specifically, memoranda 
from two Assistant Solicitors taking contrary positions on the question 
shortly before the Opinion was released. In one, Charlotte Westwood 
argued that no distinction should be drawn, while in the other Felix 
Cohen, a pioneering figure in Indian law, argued for the distinction. 
In the end, the Solicitor sided with Cohen. \6\ The two memoranda are 
attached for your information.
---------------------------------------------------------------------------
    \6\ But see the statements of Senators McCain and Inouye in 
introducing the recent amendment on the Senate floor. 140 Cong. Rec. 
S1646 (daily ed. May 19, 1994).
---------------------------------------------------------------------------
    Notwithstanding the Solicitor's interpretation, the Opinion has 
come into serious question in recent times. For one thing, the 
distinction it drew is not based on the express terms of Section 16 of 
the IRA. \7\ For another, it may also have been undercut by the 1988 
amendments to Section 16. See Pub. L. No. 100-581, 102 Stat. 2938; in 
the following paragraph, the 1988 additions are shown in boldface and 
the deletions struck-through.
---------------------------------------------------------------------------
    \7\ After nearly sixty yean of relative obscurity, this Opinion 
has, as you know, recently gained a surprising amount of attention. A 
front-page article in the April 4, 1994, Seattle Post-Intelligencer, 
for example, quoted tribal officials and attorneys who characterized 
the Opinion in strongly negative and sweeping terms; e.g., that it 
``came out of nowhere,'' was ``just wrong, historically,'' and could be 
applicable to more than 200 tribes.
---------------------------------------------------------------------------
        (a)  Any Indian tribe, or tribes, residing on the same 
        reservation, shall have the right to organize for its common 
        welfare, and may adopt an appropriate constitution and bylaws, 
        and any amendments thereto, which shall become effective when--
             (1)  ratified by a majority of the adult members of the 
            tribe, or tribes of the adult Indians residing on such 
            reservation, as the case may be, at a special election 
            authorized and called by the Secretary of the Interior 
            under such rules and regulations as he may prescribe;
    Section 19 of the IRA defines ``tribe'' to refer to ``any Indian 
tribe, organized band, pueblo, or the Indians residing on one 
reservation.'' The definition was not changed by the 1988 amendments. 
The legislative history of the 1988 amendments simply notes:
        The amendment deletes reference to residence on a reservation 
        and eliminates reservation status or ownership of a tribal land 
        base as a condition precedent to organization under this Act.
        The Committee's deletion of the references to the rights of 
        Indians residing oil the same reservation to organize under the 
        1934 Act does not alter the authorities with respect to the 
        organization of such Indians because of the definition of 
        ``tribe'' in section 19 of the 1934 Act (25 U.S.C. 479) which 
        includes ``the Indians residing on one reservation.'' In the 
        case of such a ``tribe'' the members of the tribe are the 
        residents of the reservation.

S. Rep. No. 100-577, 100th Cong., 2d Sess. 2 (1988).
    Moreover, the modern trend of Federal statutes affecting Indian 
tribal, governmental powers on a national basis is to define ``tribe'' 
in broad terms. See, e.g., the definition in the Indian Civil Rights 
Act of 1968: ``any tribe, band, or other group of Indians subject to 
the jurisdiction of the United States and recognized as possessing 
powers of self-government.'' 25 U.S.C. Sec. 1301(1). See also, the 
Indian Law Enforcement Reform Act, 25 U.S.C. Sec. 2801(5).
    Congress effectively limited or partially overruled the 1936 
Opinion in the Indian Land Consolidation Act by defining ``tribe'' to 
mean ``any Indian tribe, band, group, pueblo or community for which, or 
for the members of which, the United States holds lands in trust.'' 25 
U.S.C. Sec. 2201(1). The power to regulate inheritance of property of 
community members was one of the sovereign powers not vested in 
``created'' or ``non-historic'' tribes, according to the 1936 Opinion, 
but the Land Consolidation Act authorizes any Indian tribe so broadly 
defined, subject to approval of the Secretary, to ``adopt its own code 
of laws, to govern descent and distribution of trust or restricted 
lands within that tribe's reservation or otherwise subject to that 
tribe's jurisdiction.'' 25 U.S.C. Sec. 2205
or section 19 of the IRA whose enactment will effectuate the policy 
result that the Committee determines is appropriate?
    To the extent the Committee may find them of use, my views 
regarding the answers to those questions are as follows:
        The Majority Opinion in Carcieri Accurately Discerned the 
        Intent of the 73d Congress Embodied in the Phrase ``Recognized 
        Indian Tribe Now Under Federal Jurisdiction.''
    The majority opinion in Carcieri easily reasoned to its result by 
concluding that the intent of the 73d Congress embodied in the phrase 
``recognized Indian tribe now under Federal jurisdiction'' (emphasis 
added) is clear and unambiguous because the U.S. Supreme Court may 
presume that, like every Congress, the 73d Congress intended undefined 
words in its statutory texts to have their common dictionary meaning, 
and in 1934 the common dictionary meaning of the word ``now'' was ``at 
the present time; at this moment.'' See Majority Opinion, at 8.
    However, the Majority Opinion also relied on the extrinsic fact 
that in 1936 Commissioner of Indian Affairs John Collier believed that 
that was the result the 73d Congress intended. See id. 9-10. In his 
concurring opinion, Justice Breyer also found that same extrinsic fact 
determinative. See Concurring Opinion, at 2 (Justice Breyer noting that 
``the very Department [of the Interior] official who suggested the 
phrase to Congress during the relevant legislative hearings 
subsequently explained its meaning in terms that the Court now 
adopts'').
    The Court's reliance on Commissioner Collier's interpretation in 
1936 of the intent of the 73d Congress embodied in the word ``now,'' 
rather than on the contrary interpretation that the Bureau of Indian 
Affairs (BIA), through the Solicitor General, presented to the Court in 
2008, is an important development whose consequence for relations 
between Congress and the executive branch transcends the statutory 
construction dispute the Court decided in Carcieri.
    A quarter of a century ago in Chevron U.S.A. Inc. v. Natural 
Resources Defense Council, Inc., 467 U.S. 837 (1984), the U.S. Supreme 
Court invented the analytical construct that if the meaning of the text 
of a statute is ambiguous, Congress, by creating the ambiguity, 
intended to delegate the executive branch agency responsible for 
implementing the statute authority to resolve the ambiguity by making 
whatever policy choice that it--the executive branch agency--deems 
appropriate without any investigation of what the Congress that enacted 
the statute actually intended. As the Court recently explained in 
National Cable & Telecommunications Association v. Brand X Internet 
Services, 545 U.S. 967, 980 (2005):
        In Chevron, this Court held that ambiguities in statutes within 
        an agency's jurisdiction to administer are delegations of 
        authority to the agency to fill the statutory gap in reasonable 
        fashion. Filling these gaps, the Court explained, involves 
        difficult policy choices that agencies are better equipped to 
        make than courts.
    But, as the Court noted in Carcieri, the reason a federal court 
should give deference to an interpretation of the intent of Congress 
embodied in the text of statute made by the executive branch agency 
that is responsible for implementing the statute is not because 
Congress has delegated the agency authority to impose the agency's, 
rather than Congress's, policy choices. Rather, it is because the 
agency's involvement in Congress's enactment of the statute makes its 
understanding of what Congress intended more authoritative than a guess 
by a federal judge based on often nonexistent legislative history.
    That was the situation in Carcieri. See Majority Opinion, at 10 n. 
5 (Justice Thomas noting that ``[i]n addition to serving as 
Commissioner of Indian Affairs, John Collier was a principal author of 
the IRA. And...he appears to have been responsible for the insertion of 
the words ``now under Federal jurisdiction'' into what is now 25 U.S.C. 
479'')(citation and internal punctuation marks omitted).
    But for the U.S. Supreme Court, or any lower federal court, to rely 
on the interpretation of the intent of Congress embodied in the text of 
a statute made by the executive branch agency responsible for 
implementing the statute because the agency's involvement in Congress's 
enactment of the statute makes its understanding of what Congress 
intended authoritative presupposes that, in reasoning to its 
interpretation, the agency has vigorously--and intellectually 
honestly--analyzed what the Congress that enacted the statute intended. 
See United States v. Wise, 370 U.S. 405, 411 (1962)(noting that 
``statutes are construed by the courts with reference to the 
circumstances existing at the time of the passage'').
    But during the thirty-five years I have been involved in 
litigating, and in participating in Congress's enactment of, statutes 
dealing with Native American subject matters I have not encountered an 
executive branch bureaucracy more committed than the BIA (and the 
Division of Indian Affairs in the Office of the Solicitor that serves 
it) to discharging that obligation in the breach.
    Examples, while legion, are beyond the scope of this hearing. What 
can be said here is that, despite the efforts of the BIA and its 
Solicitors to prevent it from doing so, in Carcieri the U.S. Supreme 
Court did its job. And that job was to correctly interpret the intent 
of the 73d Congress embodied in the phrase ``recognized tribe now under 
Federal jurisdiction.''
        The Carcieri Decision Presents an Opportunity for the 111th 
        Congress to Reassert Congress's Indian Commerce Clause 
        Authority Over the Nation's Native American Policies.
    The reason the Carcieri decision has roiled Indian country is that 
since June 18, 1934 Congress and, most importantly, the Secretary of 
the Interior have created at least 104 ``federally recognized tribes'' 
that were neither ``recognized'' nor ``under Federal jurisdiction'' on 
the date the 73d Congress enacted the IRA. As a consequence, the 
Secretary had no authority pursuant to section 5 of the IRA to acquire 
land for any of those tribes.
    Sixteen of those tribes were created by Congress. The other 88 were 
created by the Secretary of the Interior through ultra vires final 
agency action, and by the U.S. District Court acting, at the request of 
the Secretary of the Interior, beyond its jurisdiction and in a manner 
that violated the Doctrine of Separation of Powers. 1
---------------------------------------------------------------------------
    \1\ Appendixes 1 through 3 in the brief that a group of law 
professors, appearing as amici curiae, filed with the U.S. Supreme 
Court in Carcieri list forty-eight of the 104 tribes. The list does not 
include the Seminole Indians who in 1957 were residing in Florida and 
to whom in that year the Secretary of the Interior issued an IRA 
Constitution that designated the group as the Seminole Indian Tribe of 
Florida, even though no treaty or statute had granted that legal status 
to the individual Seminoles, and their descents, who had escaped the 
efforts of the army, which ended in 1858, to relocate the Seminoles to 
the Indian Territory. The list also does not include 55 ``federally 
recognized tribes'' in California that operate gambling casinos, most 
of which gained that ersatz legal status in settlement agreements in 
lawsuits brought by California Indian Legal Services and to which the 
Secretary of the Interior and the Assistant Secretary of the Interior 
for Indian Affairs were party. See e.g., Scotts Valley Band of Pomo 
Indians v. United States, U.S. District Court for the Northern District 
of California No. C-86-3660, Stipulation for Entry of Judgment, 
Paragraph No. 3(c)(federal defendants agree that the Scotts Valley and 
Guidiville Bands of Pomo Indians, the Lytton Indian Community, and the 
Me-Choop-Da Indians of the Chico Rancheria ``shall be eligible for all 
rights and benefits extended to other federally recognized Indian 
tribes'')(emphasis added).
---------------------------------------------------------------------------
    Between 1984 and 1996 when I researched the book that became Sold 
American, I read the John Collier papers that are generally available 
on microfilm, the Felix Cohen papers at the Beinecke Library at Yale 
University, and the Central Office Files (Record Group 75) of the BIA 
for the years 1933 to 1953 at the National Archives in Washington, D.C.
    While that was some years ago, I do not recall reading any letter, 
memorandum, or other document in which John Collier or any other BIA 
employee or Felix Cohen suggested that they thought that new 
``federally recognized tribes'' would be created subsequent to the 
enactment of the IRA. With respect to the accuracy of that assumption, 
it is significant that it would be thirty-eight years after the 
enactment of the IRA before Congress would create a new tribe. See Pub. 
L. No. 92-470, 86 Stat. 783 (1972)(Payson Community of Yavapai-Apache 
Indians ``recognized as a tribe of Indians within the purview of the 
Act of June 18, 1934'').
    I would proffer that the reason John Collier and Felix Cohen did 
not think that new tribes would be created was that, while they were 
privately committed to bolstering (and indeed inventing) tribal 
sovereignty, they knew that the members of the Senate and House 
Committees on Indian Affairs believed, as their predecessors had since 
the 1880s, that assimilation should be the objective of Congress's 
Native American policies. As Representative Edgar Howard, the chairman 
of the House Committee on Indian Affairs, explained to the House prior 
to the vote to pass the Committee's version of the IRA, the Committee's 
rewrite of the bill that John Collier and Felix Cohen had sent to the 
Hill ``contains many provisions which are fundamentals of a plan to 
enable the Indians generally to become self-supporting and self-
respecting American citizens.'' 78 Cong. Rec. 11,727 (1934). 
2
---------------------------------------------------------------------------
    \2\ I would encourage every member of the Committee who is 
interested in understanding the policy objectives that Congress--as 
opposed to John Collier and Felix Cohen--believed that its enactment of 
the IRA would advance to read the House and Senate debates on the bill. 
78 Cong. Rec. 11,122-139, 11,724-744 (1934).
---------------------------------------------------------------------------
    That remained Congress's policy objective until the beginning of 
the Kennedy administration in 1961 when the Native American tribal 
sovereignty movement that today is pervasive throughout Indian country 
began.
    During the nascent days of the movement, in 1975 the 94th Congress 
established a twelve-member American Indian Policy Review Commission. 
The Commission was chaired by Senator James Abourezk. The late 
Representative Lloyd Meeds, a respected attorney, a former 
distinguished member of this Committee, and between 1973 and 1976 the 
chairman of the Committee's Subcommittee on Indian Affairs, was vice 
chairman. The Commission assembled a paid and unpaid staff of 115 
people.
    On May 17, 1977 the Commission delivered its 563-page report to the 
95th Congress. See AMERICAN INDIAN POLICY REVIEW COMMISSION, FINAL 
REPORT (1977) [hereinafter ``Final Report'']. The report contained a 
wish-list of 206 recommendations.
    Recommendation Nos. 164 through 177 dealt with ``unrecognized'' 
tribes. See Final Report, at 37-41. Recommendation No. 166 urged 
Congress--not the Secretary of the Interior--to ``by legislation, 
create a special office...entrusted with the responsibility of 
affirming tribes' relationships with the Federal Government and 
empowered to direct Federal Indian Programs to these tribal 
communities.'' Id. 37-38. Recommendation No. 168 provided:
        Tribe or group or community claiming to be Indian or aboriginal 
        to the United States be recognized unless the United States 
        acting through the special office created by Congress, can 
        establish through hearings and investigations that the group 
        does not meet any one of the following definitional factors....
Id. 38-39.
    Representative Meeds, the vice chairman of the Commission, was so 
disturbed by the polemical tone of the report that he filed dissenting 
views. See Final Report, at 571-612. Representative Meeds stated his 
principal objection as follows:
        [T]he majority report of this Commission is the product of one-
        sided advocacy in favor of American Indian tribes. The 
        interests of the United States, the States, and non-Indian 
        citizens, if considered at all, are largely ignored....

                                 * * *

        [T]he Commission's staff interpreted the enabling legislation 
        as a charter to produce a document in favor of tribal 
        positions....

                                 * * *

        For Congress to realistically find this report of any utility, 
        the report should have been an objective consideration of 
        existing Indian law and policy, a consideration of the views of 
        the United States, the States, non-Indian citizens, the tribes, 
        and Indian citizens. This the Commission did not do. Instead, 
        the Commission saw its role as an opportunity to represent to 
        the Congress the position of some American Indian tribes and 
        their non-Indian advocates.
Id. 571.
    Of Representative Meeds's myriad objections to the report's 
recommendations, one of the most important related to the 
recommendations dealing with ``unrecognized tribes.'' Representative 
Meeds explained his concern as follows:
        Because the Constitution grants to the Congress the power to 
        regulate commerce with Indian tribes, article I, section 8, the 
        recognition of Indians as a tribe, i.e., a separate policy 
        (sic) [polity], is a political question for the Congress to 
        determine...Hence, in any given context, resort must be had to 
        the relevant treaties or statutes by which Congress has made 
        its declaration. The Commission fails to appreciate this 
        fundamental principle of constitutional law. (emphasis added).
Id. 609.
    In light of the fact that, as a consequence of the Carcieri 
decision, it now appears that the Secretary of the Interior has 
unlawfully acquired land pursuant to section 5 of the IRA for as many 
as 88 ersatz ``federally recognized tribes'' that gained that legal 
status through final agency action of the Secretary of the Interior 
that was ultra vires, Representative Meeds's concern that the 
Commission did not understand that the Indian Commerce Clause reserves 
the power to grant tribal recognition to Congress--not to the Secretary 
of the Interior, and certainly not to the U.S. District Court--today 
appears prescient.
    Seven months after the Commission delivered its report to the 95th 
Congress, Senator Abourezk introduced S. 2375, 95th Cong. (1977), a 
bill whose enactment would have delegated Congress's authority to 
create new ``federally recognized tribes'' to the Secretary of the 
Interior. See 123 Cong. Rec. 39,277 (1977). Two similar bills, H.R. 
11630 and 13773, 95th Cong. (1978), were introduced in the House and 
referred to this Committee.
    None of those bills were reported, much less enacted.
    Instead, two months after the Commission delivered its report to 
the 95th Congress (and in complete disregard of Representative Meeds's 
admonishment that, pursuant to the Indian Commerce Clause, tribal 
recognition is exclusively a congressional responsibility), the Deputy 
Commissioner of Indian Affairs published a proposed rule whose adoption 
as a final rule would promulgate regulations granting the Secretary of 
the Interior authority to create new ``federally recognized tribes'' in 
Congress's stead. The Deputy Commissioner explained his rationale for 
doing so as follows:
        Various Indian groups throughout the United States, thinking it 
        in their best interest, have requested the Secretary of the 
        Interior to ``recognize'' them as an Indian tribe. Heretofore, 
        the sparsity of such requests permitted an acknowledgment of a 
        group's status to be at the discretion of the Secretary or 
        representatives of the Department. The recent increase in the 
        number of such requests before the Department necessitates the 
        development of procedures to enable that a uniform and 
        objective approach be taken to their evaluation.
42 Fed. Reg. 30,647 (1977).
    In his proposed rule, the Deputy Commissioner asserted that 
Congress intended 5 U.S.C. 301 and 25 U.S.C. 2 and 9 to delegate the 
Secretary of the Interior authority to create new ``federally 
recognized tribes'' in Congress's stead. See id. However, those 
statutes contain no such delegation of authority. See William W. Quinn, 
Jr., Federal Acknowledgment of American Indian Tribes: Authority, 
Judicial Interposition, and 25 C.F.R. 83, 17 American Indian Law Review 
37, 47-48 (1992)(5 U.S.C. 301 and 25 U.S.C. 2 and 9 discussed). See 
also Federal Recognition of Indian Tribes: Hearing Before the Subcomm. 
on Indian Affairs and Public Lands of the House Comm. on Interior and 
Insular Affairs, 95th Cong. 14 (1978)(Letter from Rick V. Lavis, Acting 
Assistant Secretary, to The Honorable Morris Udall, dated August 8, 
1978, admitting that ``there is no specific legislative authorization'' 
for the Secretary's tribal recognition regulations).
    Nevertheless, on September 5, 1978 the Deputy Assistant Secretary 
of the Interior for Indian Affairs published a final rule that 
promulgated the regulations. See 43 Fed. Reg. 39,361 (1978). 
3
---------------------------------------------------------------------------
    \3\ The regulations were codified at 25 C.F.R. 54.1 et seq. (1978), 
today 25 C.F.R. 83.1 et seq. (2009).
---------------------------------------------------------------------------
    That was more than thirty years ago.
    Today, as a consequence of the Carcieri decision, neither Congress 
nor the Secretary of the Interior can any longer ignore the mess that 
the Secretary's refusal to heed Representative Meeds's admonition, and 
Congress's failure to defend its constitutional prerogative from 
usurpation by the BIA, has wrought. And the mess is that there are 88 
Native American organizations, and probably more, whose members believe 
that they are members of a ``federally recognized tribe'' but who have 
no such legal status. And for many of those ersatz ``federally 
recognized tribes,'' the Secretary of the Interior has acquired land 
pursuant to section 5 of the IRA that, for the reasons the U.S. Supreme 
Court explained in Carcieri, he had no legal authority to acquire.
    By focusing the attention of this Committee on the situation the 
Carcieri decision has done a large service. Because it is more than 
three decades past time for Congress to retrieve from the BIA (and the 
Solicitors who serve it) the plenary authority that the Indian Commerce 
Clause of the U.S. Constitution confers on Congress--and only on 
Congress--to decide the nation's Native American policies.
    With respect to those policies, to fashion a response to the 
Carcieri decision the 111th Congress must decide its position regarding 
two questions:
    Is it appropriate during the first decade of the twenty-first 
century for Congress to designate--or for Congress to authorize the 
Secretary of the Interior to designate--new groups of United States 
citizens whose members (as 25 C.F.R. 83.7(e) describes the criterion) 
``descend [with any scintilla of blood quantum] from a historical 
tribe'' as ``federally recognized tribes'' whose governing bodies 
possesses sovereign immunity and governmental authority?
    Is it appropriate during the first decade of the twenty-first 
century for Congress to authorize the Secretary of the Interior to 
transform additional parcels of fee title land into trust land over the 
objection of the governments of the states, counties, and 
municipalities in which the parcels are located?
    Mr. Chairman, if the Committee finally is ready to focus its 
attention on those extremely important policy questions, and if it 
would be useful to the Committee for me to do so, I am available to 
share my views regarding those questions with the Committee at any time 
and in any forum of its convenience.
    Thank you.
                                 ______
                                 
    The Chairman. Thank you, Mr. Mitchell.
    Let me ask both, Mr. Anderson and Professor Routel. You 
both have testified that a legislative fix is needed here. 
Could you elaborate on that just a little bit more, please?
    Mr. Anderson. Certainly. I think there are basically two 
elements of a legislative fix, one that would ratify and make 
clear that all prior decisions, under the Secretary's presumed 
authority for 70 years, is valid--that would be one element--
and, second, that, for future acquisitions, the Secretary would 
clearly have the authority for all tribes, that there is not a 
second class of tribes for those that were not under 
jurisdiction in 1934, but for all tribes, just as Congress did 
in 1994, when it said that there was no difference between 
created and historic tribes.
    So I think those two elements of basically an affirmation 
or ratification of prior conveyances and then a clear authority 
for future conveyances would be the two major elements of 
legislation.
    I think it would not have to be terribly complicated or 
long. The other IRA fixes were fairly brief, legislative, 
statutory language fixes, and I think the same thing could be 
achieved here.
    Ms. Routel. I would agree, I think, fully with that 
response that it is two pronged. You need to make sure that 
Congress is ratifying the actions that have taken place in the 
past and then also assure that, going forward, all tribes, not 
matter when they were recognized or allowed to receive the 
benefits of the IRA. I think, today, you could just do that by 
eliminating the phrase, ``now under Federal jurisdiction,'' 
from the statute.
    Today, the word ``recognized'' is a term of art, and it 
means a tribe that is believed by the Federal government to be 
an Indian tribe with a government-government relationship, and 
it is a tribe under Federal jurisdiction.
    Back in 1934, the term ``recognized'' was used in the 
cognitive sense; that is, the Federal government knew of this 
tribe.
    So, today, clarifying and using that word as a term of art, 
I think, would clarify the matter.
    The Chairman. Mr. Anderson, as we all know, major crimes 
committed on Indian lands are Federal offenses. Is it possible 
that individuals who are convicted of a Federal crime may 
challenge their conviction by arguing that their tribe was not 
under Federal jurisdiction in 1934?
    Mr. Anderson. Yes. I think that is a distinct possibility, 
Mr. Chairman. When a defense attorney, particularly on appeals, 
is looking for new, creative ways to challenge a conviction, 
jurisdiction sometimes, in Indian cases, whether it is a crime 
committed on fee land or allotted land or within a checkerboard 
reservation, frequently jurisdiction is seen as a potential 
challenge to that conviction.
    Here, the fundamental acquisition itself could potentially 
be challenged, and so I think clever criminal defense attorneys 
across the country could look at this decision and mount 
potential challenges.
    The Chairman. Mr. Mitchell, let me ask you, could certain 
government activities, such as operating medical facilities, 
social services, and providing low-income housing, operating on 
post-1934 land in trust, have their Indian land status be 
challenged?
    Mr. Mitchell. I am not sure, Mr. Chairman, that the land 
status necessarily would be completely relevant to that, in the 
sense that, in the Indian Self-determination and Education 
Assistance Act and other various statutes, Congress has defined 
certain Native American groups as tribes for purposes of those 
statutes, and most of the kinds of programs that you are 
talking about come through those statutes, and the eligibility 
of a group, as an Indian tribe, for purposes of those statutes, 
I think, is not affected by this.
    I think, in response to what Mr. Anderson just said, as I 
indicated in my testimony, what is lurking out here as the 
elephant in the room is that Congress certainly has the 
constitutional authority to create new tribes. However, this 
Committee was told, in 1978, or, actually, a Subcommittee, the 
Indian Affairs and Public Lands Subcommittee, that there really 
was no statutory authority for the Secretary to get in the 
business of recognizing tribes, but, nevertheless, that has 
been going on for 30 years.
    You bet, if I was an attorney that had an attorney-client 
responsibility to someone that became entangled with one of 
those tribes, if it was advantageous to me and my client, you 
bet I would challenge the tribal status of that group. That is 
why this, as I said in my opening testimony, is a mess.
    Mr. Anderson. Mr. Chairman, may I just make a comment to 
that?
    The Chairman. Sure.
    Mr. Anderson. One, Congress does not create tribes. 
Congress recognizes or acknowledges the inherent authority of 
tribes that have been in the U.S. from time immemorial, so it 
is not a creation of a tribe but an acknowledgement of an 
inherent authority.
    Second, while criminal defendants and their lawyers could 
challenge trusts and land acquisitions, I do not think they 
would be successful. I think the Quiet Title Act and other 
policies of the Federal government would prevent that so that 
they would lose in court. It would be a litigation, I think, 
headache for the Federal government. I think they would 
prevail.
    In response to Mr. Mitchell's comment about status, even 
the Supreme Court did not go to the issue of the status of the 
Narragansett Tribe. No courts have upheld or reversed the 
Secretary's authority, under the Federal acknowledgement 
procedure, or congressional recognitions of tribes, and so I 
think any theory that would suggest that there could be a court 
that would undo tribal status is really at the fringe.
    The Chairman. Professor Routel?
    Ms. Routel. Yes. I would like to quickly respond to a point 
that I think Mr. Mitchell has made on more than one occasion, 
and that is that the Executive Branch does not have the 
authority to recognize tribes but Congress does exclusively. I 
think it is wrong, as a matter of law.
    If you look at the Organic Act, 25 U.S.C. Section 2 or 
Section 9, Congress has delegated the Department of the 
Interior very broad authority to make regulations in Indian 
affairs, and the Executive Branch has been recognizing, and 
ceasing to recognize, Indian tribes since this country was 
formed, and it was solely the branch that made these 
recognition decisions throughout the 1800s and throughout most 
of the 1900s.
    While Congress certainly has plenary authority and can 
recognize Indian tribes, this Committee and other committees 
have routinely told tribes, ``Please go through the OFA 
process.'' It is a formal process set up by the Department of 
the Interior, and they are the ones best equipped to analyze 
the historical information and to figure out if you truly have 
existed as a tribe continuously, and I think it would be quite 
unfair if Congress has been telling these tribes to go through 
this process, and they have spent 20 or 30 years going through 
that process, and they are now recognized, and the end result 
is that they do not have Federal recognition, and that 
recognition could only be extended by Congress.
    Mr. Mitchell. Mr. Chairman?
    The Chairman. Yes, Mr. Mitchell.
    Mr. Mitchell. At the risk of allowing this to descend into 
a very, what I would consider, entertaining debate between the 
panelists, I would say that, with all due respect, everything 
you have just heard is legal nonsense, and that is not me 
saying it is legal nonsense; it is the former Member of this 
Committee, Representative Lloyd Meeds, who says that it is 
legal nonsense.
    As the Chairman knows, how served with Mr. Meeds, Mr. Meeds 
was not only a wonderful human being who was a great personal 
friend to me, but he was a very smart lawyer, a very smart 
lawyer, and when this entire tribal recognition, inherent-
sovereignty nonsense started with the American Indian Policy 
Review Commission, of which Representative Meeds was the Co-
Chair, this stuff was too much for him, and he spent a great 
deal of time writing over 100 pages of minority dissenting 
views about this very issue.
    I would encourage any Member of the Committee who truly 
believes that what you have just heard from the other panelist 
is legally true to do not pay a single word of attention to 
what I tell you but go back, get a copy of the American Indian 
Policy Review Commission, pour a cup of coffee or a glass of 
wine or whatever, sit down at night, and start at the beginning 
of Representative Meeds's dissenting views and read it through 
to the end, and, at that point, you decide which of us here is 
right this morning.
    The Chairman. To be continued but not on my time. The 
gentleman from Washington, Mr. Hastings.
    Mr. Hastings. Thank you very much, Mr. Chairman.
    In your opening remarks, Mr. Mitchell, you kind of might 
have anticipated a question I was going to ask, but I did want 
to ask all of you if you or your firm have any clients that are 
affected by that Supreme Court decision, and, for the record, 
Mr. Mitchell, we will start with you.
    Mr. Mitchell. Mr. Chairman, no, I do not. What I would say 
is I, obviously, am from Alaska. There was an incident back in 
the late 1970s where an ANCSA Village Corporation--I do not 
want to bore you with the Alaska situation--but the Venetie 
Village Corporation, which later led to the U.S. Supreme Court 
decision from Venetie, they took their ANCSA fee title land, 
the village corporation, conveyed it in fee to the IRA counsel 
that was still up in that community. The IRA counsel then went 
to the Secretary, in the late 1970s, and said, ``Take all of 
this land back into trust under Section 5 of the IRA.''
    The associate solicitor for Indian affairs, at that point, 
took a look at this entire affair and said, ``It would be an 
abuse of discretion for me to do so because Congress had made 
the decision that there was not going to be trust land in 
Alaska,'' and that is where it was left until Solicitor Leshy, 
on his way out the door, rescinded that opinion. But there is 
none of that in Alaska at the time----
    Mr. Hastings. But you do not represent any tribes right 
now?
    Mr. Mitchell. No, I do not.
    Mr. Hastings. That is my question.
    Mr. Mitchell. No, I do not.
    Mr. Hastings. OK.
    Mr. Anderson. Yes, Mr. Hastings. Our firm represents 
American Indian tribal governments. All would be concerned 
about the Carcieri decision and be looking to look at its 
impacts. At least one is in litigation, where private 
plaintiffs have raised Carcieri concerns, and so I certainly do 
represent tribes that have a valid interest, I think, in the 
outcome of this hearing and also interested in litigation 
positions that will be developed.
    Mr. Hastings. OK. Dr. Routel?
    Ms. Routel. I am not currently representing any tribes that 
would be affected by the Carcieri decision. About two years 
ago, I embarked on this academic career, and, since then, I 
have restricted my practice primarily to just pro bono projects 
and submitting amicus briefs, like in this case, where I 
believe that there is a history or an academic perspective that 
may be useful to the Court.
    I am still related as of counsel to an Indian law boutique 
firm in St. Paul, Minnesota, called Jacobson, Buffalo, 
Magnuson, Anderson & Hogen, and, to be honest with you, I have 
no idea whether they are representing tribes right now that may 
be affected by Carcieri. Primarily, our relationship is they 
continue to maintain my malpractice insurance so I can work on 
these pro bono cases, and I am not really involved in their 
day-to-day legal work.
    Mr. Hastings. OK. I want to ask a question of all of you, 
if you would. Under that decision, how many tribes today were 
neither recognized nor under Federal jurisdiction in 1934, and 
how many acres of lands had been placed in trust for these 
tribes, pursuant to the Indian Reorganization Land, any of you?
    Mr. Anderson. Since the IRA was passed, about four million 
acres have been taken into trust. I do not have the calculation 
of the tribes that may have been affected.
    The question you asked, Mr. Hastings, about----
    Mr. Hastings. Turn on your microphone. I do not think your 
microphone is on.
    Mr. Anderson. I am sorry. About four million acres have 
been taken into trust since the IRA was passed for all tribes. 
There is not a calculation as to which tribes have been 
potentially affected by this decision and what that allocation 
is, but, really, depending on how you interpret the phrase, 
``under Federal jurisdiction,'' many tribes could be affected 
or even virtually none.
    So, at this time, it is hard to say if anyone is going to 
be affected by this. Certainly, though, plaintiffs will raise 
challenges if it says tribes are affected by this decision. 
But, as I mentioned in my opening statement, if you take a very 
broad view of jurisdiction, you know, equating to Congress's 
powers, then basically every tribe now is under jurisdiction.
    Mr. Hastings. Mr. Mitchell?
    Mr. Mitchell. Mr. Chairman, I do not know the answer to 
that, but it is an excellent question, and one of my thoughts 
about this is, I do not believe that this Committee or Congress 
can legislate until it has a clear answer to that question.
    I know that the Committee has refrained from getting the 
Department up here until its new political staff is in the 
game, but once that happens, I think it would be appropriate 
for them to send up a list of every single tribe that has been 
created since 1934 to identify with specificity how that tribe 
was created. Was it an act of Congress? There are many tribes 
that were created by act of Congress since 1934.
    Was it the Secretary of the Interior, through this 
administrative process, that Representative Meeds and I both 
believe is legally bogus, or was it a court, such as what has 
happened with all of the California rancherias, some of which 
have one person in the tribe?
    Let us find out, with specificity, how these people became 
a tribe, and then let us find out, if they have trust land, how 
they got that trust land. That could be put on paper. That is a 
task that the Department could provide for the Committee, and, 
after the Committee gets that information, it is the 
Committee's prerogative, not any of us, to figure out what the 
implications of that are.
    Mr. Hastings. Ms. Routel?
    Ms. Routel. I think this is a very difficult question 
because, as I mentioned, there was no list of recognized tribes 
under Federal jurisdiction when the IRA was passed in 1934.
    After it was passed, John Collier essentially sat in his 
office for the next year and came up with a list of 258 tribes 
that he believed should vote on the IRA, but that list cannot 
be viewed as an exclusive list of tribes recognized and under 
Federal jurisdiction because, to vote on the IRA, you had to 
have had a land base. You already have land or a reservation. 
That was a requirement in Section 16 of the Act that has since 
been deleted by Congress.
    So there may be additional tribes that should have been on 
the list but were not simply because they did not have land.
    Also, it is not clear whether Collier's decision should be 
given conclusive weight, if he forgot about a tribe that was 
recognized and under Federal jurisdiction, what that should 
mean.
    I did attempt to signal the issue to the Supreme Court in 
terms of how large a number we were talking about by including 
an appendix in the law professor's amicus brief that lists each 
tribe that has been recognized in some way from 1960 to the 
present, whether by the Executive Branch, by Congress, in the 
Executive Branch, either by informal or formal procedures 
through that 25 C.F.R., Part 83.
    I would be happy to provide the Committee with that list.
    I started in 1960 because it is very difficult to determine 
what the Department of the Interior was doing between 1934 and 
1960. It continued to recognize tribes without really 
indicating whether it was st getting around to acknowledge that 
they were under jurisdiction in 1934 or whether this was a 
tribe that they did not believe to be under Federal 
jurisdiction. The reason for that is the Department of the 
Interior interpreted this provision differently than the court 
did. So it is a difficult question.
    I would like to say one other thing about California 
rancherias, since I did notice this in Mr. Mitchell's 
testimony. I do not think most of them are at play in this case 
because those are tribes that existed at the time of the IRA. 
They were terminated by Congress, or attempted to be terminated 
by Congress, in the fifties and sixties, and a court decision 
restored them to Federal recognition, deciding that their 
termination had been invalid, but, for most of these tribes, 
there is no claim that they were not tribes----
    Mr. Hastings. As interesting as maybe the differences that 
you have, Mr. Mitchell has expressed that he, at least, thinks 
we should have that information.
    Let me ask you two, before the Committee moves on whatever 
our solution may be on this, do you think we should have 
information based on the question that I asked you, how many 
tribes, and how many acres? Do you think we should have that 
information before we move forward?
    Mr. Anderson. I would respectfully suggest that you do not 
need a list. I mean, the impact is broad. Whether you calculate 
exact numbers, the potential is very large. Having Interior do 
the analysis on all of these tribes to determine whether they 
are, in fact, impacted, I think, would take you several months, 
or maybe years, to do, and, rather than have that list really 
be misinterpreted, I think it would be a better course of 
action just to understand that there are many cases where this 
may affect a tribe.
    Mr. Hastings. Dr. Routel, would you think that we should 
have that information?
    Ms. Routel. Well, I think it would be helpful. I agree that 
it is really impossible to determine that in a short period of 
time, just because, for each tribe, you are going to need to go 
through all of the correspondence with their Indian agent, 
figure exactly what kind of services they had in the 1930s.
    Historically, this takes an immense amount of time for 
tribes to assemble, and I believe it would actually be years to 
create that kind of a list.
    Mr. Hastings. Well, thank you very much, and thank you for 
indulging me, Mr. Chairman. I notice that, on that question, we 
had three different answers from three different panelists.
    The Chairman. The gentleman from Michigan, Mr. Kildee.
    Mr. Kildee. Thank you very much, Mr. Chairman.
    Mike, or Mr. Anderson, you said that the Federal 
government, whether it be Congress or the Executive Branch, 
does not create Indian Nations, and that is certainly true; we 
recognize them. Article 1, Section 8, says: ``The Congress will 
have power to regulate commerce with foreign nations and among 
the several states and with the Indian tribes.''
    So we do not create. We cannot create. They have a retained 
sovereignty. We do not create Indian tribes any more than when 
we recognize Bosnia, they celebrate and say, ``The United 
States created this.'' No, the United States recognized Bosnia, 
the recognized France, and they recognized England. It is a 
recognition. It is not a creation, and I think that is one of 
the things that many people in Congress do not quite 
understand.
    I carry this Constitution with me all of the time, and in 
talking about commerce, at least, it puts them at the same 
level: foreign nations, the several states, and the Indian 
tribes. It is sovereignty.
    So I think, again, your point is very, very important in 
promulgating all of our thoughts on this, that this is a 
question of recognition and not creation.
    Mr. Anderson, one of the things I worry about is that we 
are going to be creating perhaps another category of Indian 
sovereign tribes, those at 1934, those after 1934, who may have 
done it through the Congress, and before I suggest a third 
category, did the Supreme Court decision here nullify what we 
used to call the ``bar decision,'' now the ``FAP decision''? 
Did it nullify that?
    Mr. Anderson. No. It did not nullify the status of the 
tribes, and no court has nullified a recognition of a tribe 
through the FAP process, and so that is very good authority, 
and then Congress, even in 1994, said expressly that tribes 
could be recognized through the FAP process.
    Mr. Kildee. So what Congress did in 1934--that was a 
congressional act--Congress can have subsequent legislation, 
too. That becomes law, does it not?
    Mr. Anderson. Absolutely.
    Mr. Kildee. Thank you very much, Mr. Anderson.
    The Chairman. The gentleman from Louisiana, Mr. Cassidy.
    Mr. Cassidy. I am new to this body of knowledge, and so I 
am new to this body. So if what I say seems already common 
knowledge, I apologize.
    But following up what Congressman Hastings asked, it almost 
seems like some of your reservation about reviewing all of this 
material is that it would take so long and would be so 
involved, and yet kind of a constant theme of this testimony is 
the ambiguity created by previous legislation, which has then 
been seen as an avenue by the Bureau of Indian Affairs or 
otherwise commented on.
    Is it possible just to take the material that we could get, 
in a relatively short period of time, and create a metric by 
which future decisions could be guided? So in that metric, we 
would have, OK, was it recognized before 1934, and did it go 
out of existence, or how many tribe members are there, whatever 
things that you know far more than me.
    So, as opposed to attempting to get an exhaustive list and 
coming up with an answer for each, rather, getting as much of a 
list as we can and establishing what appears to be a fair 
metric with which to approach the rest, does that make sense?
    Mr. Mitchell. Mr. Chairman, I, of course, think it makes 
perfect sense, and this whole exercise is not that difficult.
    In 1994, Congress directed the Secretary to annually 
publish a list of the Native American entities that he or she, 
depending upon who the Secretary was, believed to be Federally 
recognized tribes. Now, that list exists. It is quite simple to 
go through that list and mark the ones that were created after 
June of 1934.
    Then, with respect to each of those, you do not have to do 
what the professor suggested, in terms of go to the National 
Archives. The solicitor says, ``Well, how did these people get 
to be a tribe?'' and he tells you, under the heading of the 
tribe, and then he can look and say, ``Well, it was after 1934, 
did they have a land base? How did they get the land base?'' 
This is not rocket science.
    The other thing I would say, because I think it is 
important to put on the record, as long as we are actually 
getting to the bottom of this, is that I know that 
Representative Kildee has very strong views about inherent 
tribal sovereignty. I understand that, and I mean those no 
disrespect.
    However, again, Lloyd Meeds said that that entire invention 
was a ``political notion'' that was being transformed into a 
``legal doctrine,'' and, in addition to citing Representative 
Meeds, there is no more authoritative and influential Native 
American historian and attorney in this country than Vine 
Deloria, who was the Executive Director of NCAI, for goodness 
sakes, and, in 1984, Professor Deloria wrote this book, The 
Nations Within, which is his spin on the Indian Reorganization 
Act, and he goes on at great length about how Felix Cohen 
bamboozled Congress.
    After the IRA was enacted, he came back to his office, and 
he invented a solicitor's opinion that, out of the sky, 
invented inherent tribal sovereignty, and even Vine Deloria 
says that ``modern tribal sovereignty begins with this 
solicitor's opinion, although it would be another generation 
before Indian tribes would understand the difference and begin 
to talk in the proper terms about their status.''
    This is not Don Mitchell; this is history. This is law, and 
this has drifted for 30 years, and it is great. The Carcieri 
decision has motivated the Committee and the Congress to 
finally pay attention to what has gone on here.
    Ms. Routel. If I may respond to that question also, I think 
it might be helpful to use an example here, and I am going to 
pick an example from Representative Kildee's state, the Grand 
Traverse Band of Ottawa and Chippewa Indians.
    This is a tribe that had an ongoing treaty relationship 
with the United States in the 1800s, and, to me, treaties 
symbolize that you are a sovereign. If you are not a sovereign, 
if the United States is not recognizing your sovereignty, it 
would be entering into contracts, and it would have to enter 
into contracts with every single tribal member to take tribal 
land. But the United States thought the Grand Traverse Band was 
a sovereign, and that is why it entered into a treaty that was 
ratified, multiple treaties ratified, by the Senate.
    In the late 1800s, and this interpretation continued 
through the 1930s, the Executive Branch misinterpreted one 
provision from this 1855 treaty and thought that the tribe had 
agreed to dissolve itself. Since then, historians have gone 
back over the treaty journals, and they have looked at 
correspondence, and they all agree that the treaty provision 
was not meant to dissolve the tribe.
    Mr. Cassidy. But let me ask you, just because I think the 
light is about to flip off, is there a metric with which you 
could take that through and say, ``What is the validity of that 
misinterpretation, et cetera?''
    Ms. Routel. What I am saying to you is that they might not 
have been considered to be under Federal jurisdiction because 
of a mistake in 1934.
    Mr. Cassidy. But couldn't you put in the metric where, if 
they did, they would lose their recognition from a mistake? If 
so, then, therefore, you are prejudiced to believing that they 
have recognition. Do you follow what I am saying?
    Ms. Routel. Sure, and I think you could, but I think the 
important point is that all of these tribes have proved that 
they were an historic tribe and that they were continuously 
existing as a tribe since historic times to the present. That 
is what it takes to get recognized through the FAP process 
today.
    So any decision, really, in 1934 that these groups were not 
tribes was a mistake, or it was an omission, and that is why 
looking back at that historical period is not really very 
helpful to Congress in considering how to move forward.
    Mr. Cassidy. So what I gather from you, it is going to be 
critical how you draft the metric. A metric could potentially 
work, but the question is, how do you draft the metric? A fair 
statement?
    Ms. Routel. Sure.
    Mr. Anderson. If I could have 30 seconds to respond to Mr. 
Cassidy.
    A metric that says that the standard is whether you were 
under Federal jurisdiction would probably eliminate most of the 
tribes from the Carcieri decision. Even Justice Breyer said, 
``This may be less restrictive than it first appears.''
    The only case it applies to right now is the Narragansett 
because the Court found facts that suggested that they were not 
under their jurisdiction, but those facts have not been 
adjudicated or laid out for other tribes.
    So to try to create a list of just tribes that were even 
recognized in the 1990s or 2000, I think, would be very 
misleading to put them on a list, when, as Ms. Routel said, 
some tribes, the Supreme Court even acknowledged, by Justice 
Breyer, that tribes being acknowledged in the 1980s or 1990s 
were not affected by the case.
    So I just think how you design the metric will be very 
important, and I think, if it is designed properly, it is 
probably not going to have many tribes on the list.
    The Chairman. The gentleman from America Samoa, Mr. 
Faleomavaega.
    Mr. Faleomavaega. Thank you, Mr. Chairman. I just wanted to 
ask, first, a question. I believe there are currently 569 
Federally recognized tribes in the books, and I wanted to ask 
the panel, based on the Supreme Court's decision, what does 
this mean? Do we have to go through every one of these tribes 
to look at if it is in compliance with the most recent decision 
now that the Supreme Court has made, get rid of their lands and 
whatever it is that was made since the IRA Act in 1934, 
Professor Mitchell?
    Mr. Mitchell. Yes. Mr. Chairman, the short answer to that, 
in my view, is yes, which is why this is a mess. I would say 
that half of those purported tribes come out of my home State 
of Alaska, where Assistant Secretary of Indian Affairs Ada Deer 
waved a magic wand in 1993 and blessed them all as tribes.
    So that is presently at issue up there and always has been 
ever since, so let us just take them out of the play. So that 
leaves you about 250. Of those, you have got----
    Mr. Faleomavaega. My time is limited, and I do not want to 
get into that.
    In essence, what is your best recommendation of how we can 
cure this problem that the Supreme Court has now presented to 
the Congress to fix? I assume this is really what the Supreme 
Court wants us to do, to fix the problem.
    Mr. Mitchell. Well, no. You may recall when Chief Justice 
Roberts was----
    Mr. Faleomavaega. By the way, this is not a very persuasive 
decision because it was a split decision. Justice Stevens, I 
thought, gave a very good dissenting opinion. The other three 
justices were half and half. In fact, they even recommended 
that the case be remanded back to the lower courts for 
reconsideration.
    So I just wanted to check with you, but this case is not 
persuasive.
    Mr. Mitchell. With all due respect, I call it eight-to-one.
    Mr. Faleomavaega. Eight-to-one when it is----
    Mr. Mitchell. Be that as it may, I was going to say about 
the Supreme Court that when Justice Roberts was being 
confirmed----
    Mr. Faleomavaega. Please, I do not want to get into the 
history. I just want to say to the point I wanted to suggest, 
even adding another question, Professor Mitchell. How did we 
end up with Native Alaskans being defined as the same equal 
status as American Indians when there were no Indians, and, as 
far as Alaska, there was not even the State of Alaska at the 
time?
    Mr. Mitchell. Representative, I spent 18 years writing two 
books about that, and I would be happy to send both of them to 
you.
    Mr. Faleomavaega. Well, I am curious because the natives of 
Alaska are indigenous peoples to the state, the same way that 
American Indians are indigenous to the state, and the same 
problem we are faced with the Native Hawaiians that are 
indigenous to their state, and yet they are being denied the 
same status as Native Alaskans.
    Mr. Mitchell. At the beginning of the assimilation era, in 
1884, Congress laid down the marker in the Alaska Organic Act 
that it was going to have a Native American policy in Alaska 
that was completely different from everything we have been 
talking about this morning.
    I am not defending it. I am not not defending it. I am just 
telling you, that is the historical reality----
    Mr. Faleomavaega. Would you say that that was a mess also?
    Mr. Mitchell. No. I am telling you that Congress did that, 
and I would say, in terms of the Supreme Court, I was going to 
say about Justice Roberts, when he was being confirmed, and he 
was asked about this, he says, ``You know, my job, as the Chief 
Justice of the Supreme Court, will be to just call the balls 
and strikes.''
    Mr. Faleomavaega. Yes, I know.
    Mr. Mitchell. And they called the balls and strikes on this 
one. Whether or not Congress wants to deal with it, I do not 
think--the Court does not have an institutional interest.
    Mr. Faleomavaega. Professor Mitchell, taking back my time, 
I believe you. There is no question; there seems to be 
consensus that the majority of the Court, as it now stands, are 
strict constructionists of the Constitution; at least, that is 
how they interpret themselves.
    So one little word, three-letter word, ``now,'' has upset 
the whole basis of 75 years and all that has been done. You are 
saying that it was just a bunch of baloney.
    Mr. Mitchell. I am saying, as a lawyer, that words have 
consequences, and that is why there is a legislative counsel 
today sitting in the basement of the Cannon Building, the last 
time that I looked, that would not allow this situation to 
happen.
    I have thought that it would be fun if you took Congress's 
policy choices in the IRA from 1934 and allowed technicians, 
like all of us today, to redraft that, it would look completely 
different.
    Mr. Faleomavaega. Reclaiming my time, Professor Mitchell, 
we could talk about history until we are blue in the face, but 
the fact of the matter is, this is where we are at, and I am 
trying to get some best-offered suggestions on how we can cure 
the situation.
    I would like to ask Mr. Anderson and Ms. Routel for their 
quick opinions before the red light comes on.
    Mr. Anderson. If we ratify all prior conveyances made by 
the Secretary, and then we make it clear that the Secretary has 
authority now to take land into trust for all tribes, just one 
comment. Even the Alaska Supreme Court has upheld the 
sovereignty of Alaska Native sovereignty. The Congress has also 
recognized them through the list and, in addition, even Alaska 
tribes were formed under the IRA. So there is a long history of 
native sovereignty that shows the positions as espoused by Mr. 
Mitchell are totally not credible.
    Mr. Faleomavaega. Ms. Routel?
    Ms. Routel. I would just second what Mr. Anderson has said. 
I really do not think there is any need to go back and redig 
through historical materials from the 1930s. I do not think 
that is relevant to Congress deciding how to proceed in this 
case.
    Congress has authorized, through historical statutes and 
through shuttling tribes to the Executive Branch, Congress has 
authorized these tribes to be recognized and has continued to 
recognize these tribes, and the Supreme Court's decision really 
does not change anything going forward, I think, in terms of 
Congress's policy, which is self-determination and economic 
self-sufficiency.
    Giving these tribes less rights, when they are often the 
tribes that have been hardest hit; the mistakes that the United 
States has made them lose all of their land, and they are only 
now regaining a footing, and there is no reason to further that 
injustice by now deciding that they are going to be permanently 
second-class citizens.
    Mr. Faleomavaega. Thank you, Mr. Chairman.
    The Chairman. The gentlelady from Wyoming, Mrs. Lummis?
    Mrs. Lummis. Thank you, Mr. Chairman. My apologies for 
joining this hearing late, but thank you, panelists, for 
joining us today.
    My first question is for Ms. Routel. You state that the 
U.S. Supreme Court's recent decision threatens to eliminate 
important IRA benefits for many Indian tribes. Are you 
suggesting, then, that the decision affects not only the 
Interior Department's ability to take land into trust but other 
sovereignty benefits granted to tribes Federally recognized 
after 1934?
    Ms. Routel. I am. The definition that the Supreme Court was 
interpreting is the term ``Indian'' and actually the term 
``tribe'' as well in the Indian Reorganization Act.
    So, as an initial matter, any tribe that does not fit the 
Supreme Court's interpretation of that definition does not 
receive any of the benefits of the IRA. So individual members 
would not receive preference in hiring in the BIA. The tribe 
would not be permitted to continue as a constitutional 
government organized under the IRA. They would not be allowed 
to have those business corporations organized under Section 17.
    So this is an issue that affects not only the ability of 
the Department of the Interior to acquire trusts for these 
tribes under Section 5 but essentially all of the IRA.
    In my testimony this morning, I tried to highlight that 
Congress, in the years since 1934, has sometimes tied new 
benefits to the definition of ``tribe'' or ``Indian'' in the 
IRA, and we really need to look through all of those statutes, 
but the scope is going to be even broader than just those 
specific rights that are included in the IRA.
    Mrs. Lummis. OK. Mr. Chairman, is it safe to say that your 
opinion is that the IRA should be interpreted to apply to 
tribes once under Federal jurisdiction rather than now under 
Federal jurisdiction?
    Mr. Anderson. I would say the IRA should apply to all 
recognized tribes. Once a tribe is on the Federally recognized 
tribes list, then they should receive all of the benefits of 
the IRA.
    Mrs. Lummis. OK. I have a memo here that Committee staff 
prepared, and they make a statement here that I want to run by 
you and see if you agree, and I would like to know if each of 
the three of you agrees.
    The sentence is this: ``The decision implies--'' meaning 
the Carcieri decision--is that how you pronounce it?----
    Mr. Anderson. Carcieri.
    Mrs. Lummis.--Carcieri, thank you--``the Carcieri decision 
implies that Congress, and not the Department, was meant, by 
the authors of the IRA, to decide whether or not to acquire 
lands in trust for tribes not under Federal jurisdiction in 
1934.'' Do you agree with that statement or disagree with that 
statement?
    Ms. Routel. Could you repeat that one more time?
    Mrs. Lummis. OK. Here is the sentence: ``The Court decision 
implies that Congress--''
    The Chairman. Would the gentlelady yield for a 
clarification?
    Mrs. Lummis. Yes, sir.
    The Chairman. That it is a minority staff-prepared----
    Mrs. Lummis. Yes, yes. OK.
    The Chairman. The majority staff would always be more 
clear.
    Mrs. Lummis. [Laughter.] It is a minority staff briefing 
paper, OK, and here is the sentence: ``The Court decision 
implies that Congress, and not the Department, was meant, by 
the authors of the IRA, to decide whether or not to acquire 
lands in trust for tribes not under Federal jurisdiction in 
1934.''
    So I am curious here about, does the decision put 
obligations to act on Congress?
    Mr. Mitchell. Mr. Chairman, my answer to that would be, 
yes, that is a correct statement, that my reading of it, and I 
have described this in my written testimony, is that Congress 
and Commissioner Collier, in 1934, thought they were dealing, 
in my view, with the known universe, which was that there was 
not going to be any new tribes after 1934. You might have to go 
through some drill to figure out what tribes were there in 
1934, but we are doing something in the IRA for the tribes that 
existed.
    I see nothing, in my research over the years, having read 
all of the central office files of the BIA from 1933 all the 
way up to 1953, that indicates to me that they ever thought 
that Congress was going to start off creating additional 
tribes.
    Now, if Congress wishes to do that, and it has in a number 
of statutes, then Congress then needs, in my view, to make a 
decision about what authority to delegate to the Secretary for 
that particular newly created tribe with respect to land. Maybe 
it wants to give it land; maybe it does not. That is Congress's 
business. But, yes, that is a factual statement as to what 
happened in 1934, you bet.
    Mrs. Lummis. OK. Thank you. Mr. Anderson, do you agree?
    Mr. Anderson. I think the IRA had very express, delegated 
authorities to the Secretary of the Interior. The Secretary of 
the Interior would not have authorities outside of the IRA, 
unless there was another statute. So I would agree that the 
language of the IRA is really the foundation of the Secretary's 
authority, and if the Secretary wanted to engage in additional 
acquisitions outside that authority, he would need Congress's 
approval.
    Mrs. Lummis. Mr. Chairman, may I ask Ms. Routel to respond 
as well? Thank you.
    Ms. Routel. I think I agree with the statement, in that the 
way that the Supreme Court has interpreted the IRA, it means 
that the Secretary of the Interior can only acquire lands for 
these tribes that were recognized under Federal jurisdiction in 
1934, and, therefore, you could imply that, for other tribes, 
either Congress needs to take land into trust, or Congress 
needs to go back and delegate that authority to the Secretary 
of the Interior.
    I think what I am asking this Committee to do is to put 
forth a bill that would delegate the authority to the Secretary 
of the Interior that, in my mind, would correct the Supreme 
Court's decision.
    Mrs. Lummis. OK. Thank you. Mr. Chairman, thank you very 
much.
    The Chairman. Thank you. The gentlelady from the Virgin 
Islands, Dr. Christensen?
    Mrs. Christensen. Thank you, Mr. Chairman, and thank you 
for holding this hearing so quickly upon the Supreme Court's 
decision, which threatens to set this country back and the 
first Americans back to some earlier times, and our 
determination is that that is never going to happen.
    I have a few questions. Michael Anderson, the 1994 
solicitor letter that you submitted concerns Section 16 of the 
IRA. Why or how does that affect the other provisions of the 
IRA?
    Mr. Anderson. Well, it should have no effect, at this 
stage, but, at the time, what the Interior Solicitor's Office 
did, the Division of Indian Affairs branch of government in 
Alaska, was to devise a difference, really, two classes of 
tribes: one they called ``created'' when they were formed as an 
adult community of Indians on the reservation and then what 
they called ``historic,'' tribes that are traditionally 
recognized through treaty rights or have reservations.
    So Congress repaired that in 1994. The concern is that old 
lists could be revived in the context of whether the tribe was 
under Federal jurisdiction in 1934, and so this whole created 
historic distinction, which has been roundly rejected by 
Congress, could be revived in some way.
    I should also note, Congresswoman, that that letter was 
filed with the Supreme Court in a lodging without the corrected 
memos that also interpreted and showed that Congress reversed 
that decision, and I think it was a misleading filing.
    Mrs. Christensen. I guess I would ask you and Attorney 
Mitchell, when the Dictionary Act was passed in 1947 that 
provided that when interpreting acts of Congress, unless the 
context indicates otherwise, words used in the present tense, 
like ``now,'' include the future as well as the present, did 
not that clarify this issue?
    Mr. Mitchell. Well, I can only respond, based upon how the 
U.S. Supreme Court looked at that, and they indicated quite 
clearly in the opinion they looked at Black's Law Dictionary, 
and they looked at other dictionaries, and it was their view 
that the common dictionary meaning of ``now'' was ``now,'' as 
in now, 1934. That was their call on it.
    That would be how I would come out. If this was a statute 
that dealt with, you know, agriculture policy or something, and 
you were just doing statutory construction, I would come out in 
the same way.
    Mr. Anderson. Yes. I think the First Circuit found that 
``now'' is ambiguous and actually ruled in favor of the 
Narragansett.
    The Dictionary Act, I think, was probably not applied here 
because there was more specific legislative history that the 
Court looked at rather than simply the phrase itself.
    Mrs. Christensen. OK. Both to Mr. Anderson and Ms. Routel, 
by calling into question which Federally recognized tribes are 
or are not eligible for the IRA's provisions, could the 
decision threaten the adoption of tribal constitutions, the 
creation of tribal corporations, or debt obligations, or the 
validity of tribal business enterprises, and, in turn, 
undermine certain kinds of contracts and loans entered into by 
certain IRA-organized tribal governments?
    Ms. Routel. Yes and no. I mean, I think, after the Native 
American Technical Corrections Act, Congress has made it clear 
that tribes can organize constitutional governments outside of 
the Indian Reorganization Act, and, of course, tribes can 
organize tribally chartered business corporations or state-
chartered corporations.
    I think it still would be a tremendous loss for recently 
recognized tribes to not receive the benefits of the IRA 
because, as a non-Indian business, if you want to do business 
with a tribe, one thing that you are looking for is certainty, 
and that is, in a way, what the IRA provides.
    If you have a Federally chartered corporation, you know it 
is not something that can just, poof, not be there the next 
day. If you have a Federally approved constitution, there is a 
process that you have to go through that is quite lengthy to 
amend the constitution.
    So businesses, when they look at tribal governments that 
are formed under the IRA, or corporations formed under the IRA, 
they feel, ``I have a lot of certainty about the deal that I am 
doing and that this corporation and this constitution will stay 
the same throughout the time period of the deal,'' and I think 
that is a very important provision for tribes that are looking 
to get capital in today's market.
    Mr. Anderson. Just with respect to loans, if a lender is 
making a loan, and the collateral is trust land or businesses 
on trust land, not on the trust land itself, I think, and this 
decision has now been widely circulated, I think that lender is 
going to have some real concerns and may either decline the 
loan or raise the interest rate to carry that risk and have to 
get insurance to cover that risk. So it is going to have a 
profound impact, I think, on pending transactions.
    Mrs. Christensen. Thank you. Thank you, Mr. Chairman.
    The Chairman. The gentleman from Arizona, Mr. Grijalva?
    Mr. Grijalva. Thank you, Mr. Chairman.
    Professor Routel, I think you mentioned in your testimony 
that Congress should fix the definition of ``Indian'' to 
correct the Court's decision. What would you recommend that 
definition be changed to?
    Ms. Routel. Today, the term ``recognized tribe'' is a term 
of art, and it does mean tribes that have a government-to-
government relationship with the Federal government, and that 
is different from its usage in the IRA in 1934, when it was 
referring to known tribes in the cognitive sense.
    So, really, today, all that you would need to say is that 
recognized tribes have all of the same benefits, under the IRA 
and under all other congressional statutes; that is, there is 
no two-tiered system.
    And then, I think, as Mr. Anderson pointed out earlier, you 
would also need to clarify and make sure we have ratified all 
of the past Executive Branch actions that occurred before 
Congress made that fix.
    Mr. Grijalva. Let me just, if I may, Professor, a fellow 
panelist, Mr. Mitchell, in his testimony, said he believes the 
purpose of the IRA was to further the assimilation of Indians. 
You testified that the IRA was designed to promote tribal self-
government. Tell me about that consistency.
    Ms. Routel. I think you can come to two different 
conclusions if you do not read the legislative history as a 
whole; that is, if you just go into the testimony, and you 
cherry pick what particular senators or particular 
representatives were saying because the IRA was a sea change. 
It was the beginning of an Indian ``New Deal,'' and it was a 
change in Federal policy toward self-determination in tribal 
management.
    Now, not everybody was on board with that sea change when 
it happened, and so, for example, I have talked about Chairman 
Wheeler's discussion with John Collier in the Senate Committee 
on Indian Affairs hearings, but John Collier was the primary 
proponent of the bill, and he was the primary drafter of the 
bill, and he spent a lot of time with Indian tribes in the 
Southwest and was convinced that assimilation had been a 
terrible policy for them and that what the government should be 
doing is allowing tribes to manage their own business and to 
preserve and protect tribal culture and tribal traditional 
governments. That, I think, is the well-recognized, scholarly 
view of the IRA.
    Mr. Grijalva. And that is the policy position that 
prevailed.
    Ms. Routel. Yes. That is the policy that still prevails 
today.
    Mr. Grijalva. Thank you. Mr. Anderson, it is estimated 
that, in Indian Country, Native Indian tribes have a 
significant amount of renewable energy--oil, gas, coal, et 
cetera--on their lands, including wind, solar, et cetera. How 
will the Court's decision affect the ability of tribal 
governments to develop these resources that they have?
    Mr. Anderson. They could have a very negative impact on 
these tribes.
    Just a couple of weeks ago, the Bureau of Indian Affairs 
announced a very large grant program for just the very types of 
programs you mentioned--alternative fuels, windmills--but you 
have to be on trust land. So if you are a landless tribe, and 
you cannot acquire this trust land, you are not eligible for a 
great program under the new Recovery Act.
    Also, as I mentioned, loans, trying to get loans on current 
land could be a risk.
    Mr. Grijalva. In your testimony, you talked about that 
virtually all tribes are under Federal jurisdiction under the 
proper interpretation of what that term means. Since Congress 
already prohibits the Department from treating tribes 
differently, should the proper interpretation be that once a 
tribe is recognized, it will be eligible for benefits and 
services, regardless of when or how it was recognized?
    Mr. Anderson. That is a great formulation, yes, sir.
    Mr. Grijalva. Thank you. Mr. Mitchell, going back to a 
point that the professor made, is it possible that this 
decision could cause two tiers of Federal recognition; in other 
words, two classes of tribal government: those that were 
recognized and under Federal jurisdiction since 1934, when the 
IRA was enacted, and those that were not, as a result of this 
decision?
    Mr. Mitchell. The short answer is, yes, that Congress said 
that it was delegating, in Section 5 of the IRA, a very narrow 
authority, and that authority goes to a certain class of 
tribes. There have been tribes that have been created, either 
lawfully or unlawfully, depending on who you want to talk to, 
subsequent to that date, and they are in another 
classification, and the Congress needs----
    Mr. Grijalva. If I may, Mr. Mitchell, before my time runs 
out, it is your opinion that Congress should be the only body 
that can recognize Indian tribes and place land into trust for 
tribes.
    Mr. Mitchell. No. It is my opinion that, under the Indian 
commerce clause of the U.S. Constitution, that the 
Constitutional Convention of 1787, not Don Mitchell, has 
decided that that is how it should work. Congress certainly has 
the authority, constitutionally, if it chooses to do so, to 
delegate that, and we have not talked about the fact that 
Section 5 contains no standards whatsoever, and that was not at 
issue in the Carcieri decision, but that is the next thing that 
is heading like a freight train right at the Congress.
    Mr. Grijalva. Thank you, Mr. Chairman.
    The Chairman. The gentleman from New Mexico, Mr. Heinrich?
    Mr. Heinrich. Thank you, Mr. Chairman.
    Mr. Anderson, while Congress considers the best way to 
reverse this decision and make it clear that the 1934 Indian 
Recognition Reorganization Act applies to all Federally 
recognized tribes, and I guess I am communicating my bias on 
this issue, but is there a threat to lands currently held in 
trust for tribes whose status is in doubt as a result of that 
decision?
    Mr. Anderson. Yes. I think there is a threat of lawsuits 
and challenges from some who may be opportunistic about this 
decision.
    Mr. Heinrich. In your opinion, what steps do you think that 
the Department can take to defend existing Indian lands from 
challenge under this decision?
    Mr. Anderson. I think they should aggressively protect 
settled conveyances and use the Quiet Title Act to do that, to 
invoke the sovereign immunity of the United States to protect 
against those lawsuits.
    Mr. Heinrich. Ms. Routel, many tribes were recognized by 
the BIA and seemed to be under the phrase, ``under Federal 
jurisdiction,'' in 1934, but, later, as you alluded to, the 
Federal relationship with many of those tribes, for instance, 
in California, was terminated and then later restored.
    Does the Supreme Court's decision support a finding that 
once a tribe is terminated, the Department may still place land 
into trust for that kind of tribe?
    Ms. Routel. It does. I mean, that is one of the ironic 
parts of the holding, and I think it was something that was 
argued by both the United States and by a National Congress of 
American Indians in their briefing, which was that if you 
freeze recognition of tribes and of individual Indians in 1934, 
well, that means they are permanently recognized for purposes 
of taking land into trust, and, supposedly, the Secretary of 
the Interior could continue to acquire land for these tribes 
that have been terminated, and that is particularly true, in 
light of the fact that the Court does view repeal by 
implications very narrowly.
    So you would have to look at the Termination Act and say, 
``Well, hey, did it explicitly take away this authority from 
the Secretary of the Interior, or does that still survive?''
    So I think it is one of the ironic parts about the 
decision.
    Mr. Heinrich. As you know, a number of tribes, many tribes, 
chose not to organize under the IRA. Did the BIA stop Federal 
relationships with those tribes, and are those tribes eligible 
to have land placed into trust for them under Section 5 of the 
IRA? Ms. Routel?
    Ms. Routel. I do not know of examples where the BIA chose 
to stop a government-to-government relationship with tribes 
that voted against the Act, and I certainly believe that the 
Department still thinks that it can acquire land in trust for 
them. You know, the New York Indians, for example, most of them 
voted against application of the IRA, and the Navajo Nation, of 
course.
    So I do not believe this decision affects them, but we have 
yet to see how those arguments will play out.
    Mr. Heinrich. Mr. Chair, I will get ready here to yield 
back the balance of my time, but I do think it bears mentioning 
that the gentleman from Arizona, who just left, I think he 
really hit this issue on the head, that creating multiple 
classes of tribes is bad policy and, frankly, I do not think, a 
very moral approach to an issue that has been with us, as Mr. 
Kildee said, since we wrote the Constitution.
    The Chairman. Thank you. The gentleman from Washington, Mr. 
Inslee?
    Mr. Inslee. Thank you. Maybe just a technical question. If 
this decision stands and is not remedied by Congress, who 
actually will become the owner of the property that the tribes 
have acquired?
    Mr. Anderson. Well, I think it is very unlikely that the 
tribes will actually lose the Quiet Title Act defenses, but if 
they did lose the trust status, it would probably resort back 
to the tribe in fee, so they would still own it but without any 
preemption from the Federal preemption statutes.
    Mr. Inslee. So they would hold it just as any other fee-
title holder, then----
    Mr. Anderson. Exactly.
    Mr. Inslee.--without any trust application.
    Mr. Anderson. The only consequence is maybe some abilities 
of the tribes are based solely on their trust land authorities. 
So, for example, some of these energy grant opportunities could 
be nullified by such a return back to fee-simple status.
    Mr. Inslee. I am sorry that I missed your earlier 
testimony. You have probably talked about this, but, as far as 
remedying this problem, just a simple do-over by Congress, 
saying, ``These previous transaction are hereby deemed valid,'' 
and the blue ribbon seal of approval; that is doable. Is there 
any reason that that is constitutionally not doable?
    Mr. Anderson. It is constitutionally doable, but also 
making clear that, for all tribes in the future, that they 
would also have those same authorities.
    Mr. Inslee. And who is voicing an argument that we should 
not do that?
    Mr. Anderson. Today, no one has, as I understand it, 
weighed into Congress with an opposing view. There have been 
court cases, though, with people citing the current Carcieri 
case, to argue that certain transactions were not authorized, 
but I have not heard of any opposition to a bill to date.
    Mr. Inslee. So, Mr. Chair, I recommend unanimous consent to 
pass a bill that has not been written yet and solve this 
problem. I will look forward to that. Thank you.
    The Chairman. The gentleman's suggestions will be taken 
into consideration.
    The Chair is going to recognize Mr. Kildee for a second 
round of questions.
    Mr. Kildee. Thank you very much, Mr. Chairman.
    Mr. Mitchell, you mentioned Lloyd Meeds, a mutual friend. I 
served with him here and had a glass of wine with him, as a 
matter of fact, at his home over here.
    But I also read John Marshall. Now, I did not have a chance 
to have a glass of wine with him. I have been here a long time 
but not quite that long. John Marshall, in that very famous 
decision of Worcester v. Georgia, said, ``The Indian Nations 
had always been considered as distinct, independent, political 
communities retaining their original natural rights as the 
undisputed possessors of the soil.''
    Then he goes on to say, ``We have applied the words 
'treaty' and 'nation' to Indians as we have applied them to the 
other nations of the Earth. They are applied to all in the same 
sense.''
    That is very strong language from a very famous decision of 
John Marshall. Now, Andrew Jackson did not obey that decision, 
but that was the decision of the Chief Justice of the U.S. 
Supreme Court, who gave us the principle of judicial review.
    So while I respect Mr. Meeds' 90-page article, I am guided 
both by the Constitution and John Marshall's statement that it 
is a retained sovereignty, and the word ``nation'' is applied 
to Indian tribes, just as any other nation.
    Mr. Mitchell. As I indicated in my earlier remarks, I 
understand that you have very strong views about this, and I 
certainly mean those views no disrespect, but I would say that 
the Marshall opinions--someday, if I ever have nothing else to 
do, I would love to write a law review article about it.
    John Marshall was not the Chairman of the Indian 
Subcommittee; he was a Federalist, and all of the Marshall 
decisions were Marshall enforcing Congress's will against the 
states. He was dealing with Federal treaties that state 
governments were not recognizing, and he shoved those treaties 
onto the states. He was enforcing the policy decisions that 
this Congress made, not just making stuff up.
    To the extent he made stuff up, he was entitled to his 
opinion. I have not looked at those decisions in a long time, 
but my recollection is that those were multiple decisions in 
those cases by the U.S. Supreme Court, of which John Marshall 
opined with what he thought that day.
    Mr. Kildee. But he was not just someone sitting at the bar 
down maybe where the Willard sits right now. He was making 
those statements not as he was sipping his wine at some local 
pub. He was making those statements as Chief Justice of the 
U.S. Supreme Court.
    You might want to demean him a bit by saying, ``Well, he 
was a Federalist.'' Well, George Washington was a Federalist, 
too, not a bad guy. John Adams was a Federalist also.
    Mr. Mitchell. I am a Federalist.
    Mr. Kildee. God bless you.
    Mr. Mitchell. I was not using the term ``Federalist'' 
pejoratively by telling you that his decisions really did not 
have so much to do with Indians as they had to do with 
establishing some basic relationships between this Congress and 
the states at a very new time in our nation's history, and, as 
I said, John Marshall certainly had his views, but that does 
not mean that his views were the law.
    Mr. Kildee. I think, though, to determine the political 
affiliation of the Supreme Court is probably as useful as us 
trying to determine the political affiliation of Roberts. I 
mean, what the Supreme Court says does become the supreme law 
of the land, unless it is reversed by another Supreme Court.
    So this language is certainly much stronger and of greater 
validity and force to us, as members of this Congress who take 
an oath to uphold the Constitution, than the great writings by 
a very good friend, Lloyd Meeds.
    Mr. Mitchell. And all I am saying is that the Constitution 
means what the U.S. Supreme Court says it means when there are 
five votes on the Court, and I am just saying that there were 
not five votes for many of John Marshall's pronouncements, and 
that is just a historical legal fact.
    Mr. Kildee. Well, I will tell you, five votes have made a 
great difference in this country in many, many instances, and 
when I agree with them, I am very happy; when I disagree, I am 
very unhappy, but the fact of the matter is, it is the law of 
the land, whether Dale Kildee is happy or not. Thank you, Mr. 
Chairman.
    The Chairman. Mr. Faleomavaega, do you have anything?
    Mr. Faleomavaega. Thank you, Mr. Chairman. Yes, I do.
    The Chairman. OK.
    Mr. Faleomavaega. I just have a couple of comments. I have 
so many questions, I do not know where to begin, but I just 
wanted to say that there was an earlier discussion about the 
tribes of California.
    To my understanding, there are at least 100 tribes in 
California that are still yet to be recognized, and I want to 
say for the record, Mr. Chairman, these tribes were not 
terminated; they were decimated, a very dark page of our 
country's history on how we dealt with the tribes of California 
that, to this day, still has not been properly addressed.
    What I do want to say, Professor Mitchell, like my 
colleague, Mr. Kildee, I, too, have a very, very affectionate 
memory of the late congressman, Lloyd Meeds, but I gather that 
you seem to say that because Senator Abourezk was the Chairman 
of that commission, as you know, you seem to suggest that 
everything was bent toward giving the Indians more rights and 
their sovereignty and all of that and I gather that what Lloyd 
Meeds was simply trying to say, to make sure that there is an 
active participation on the part of the Congress, as expressly 
stated in the Constitution, but not to say that he was anti-
Indian, to that extent, because you seem to suggest that, and 
he certainly was not that. He did all that he could to be of 
help to the needs of our Native American communities.
    Mr. Mitchell. And I think that is my point, Mr. Chairman. 
The track record of Representative Meeds as an advocate for 
Native Americans in this Committee is unparalleled. I was not 
around at the time, but I have written several books about the 
Native Claims Settlement Act, and I will tell you that it would 
not have happened the way it did, as fairly as it did, if a 
very junior Member of this Committee named Lloyd Meeds had not 
gone straight at Chairman Aspinall. He was a very tenacious 
advocate for Native Americans. However, there is a----
    Mr. Faleomavaega. Mr. Mitchell, my time is up. I hate to 
cut you off like this, but are you suggesting that what we did 
to the Native Alaskans was not right, as a matter of policy and 
the law that we passed to give the Native Alaskans all of the 
benefits that they currently have under the way the Congress 
has structured that law?
    Mr. Mitchell. No. I am saying the opposite. I am saying 
that it would not have been as generous to the Native American 
community in Alaska as it was but for Representative Meeds' 
advocacy for them.
    I have spent a quarter of a century making that statute 
work, and it would not have worked as well as it did, which has 
been an up or down track record, if it had not been for 
Representative Meeds.
    Mr. Faleomavaega. I would like to ask one more follow-up 
question to the members of the panel.
    Any other additional recommendations that you would like to 
offer to whatever bill that the Chairman and our senior Ranking 
Member may have intended in correcting this problem? There is 
nothing in the Supreme Court decision that says that Congress 
cannot take action. Right? It does not say that this is it and 
that we cannot do anything further. Am I correct on that?
    Mr. Anderson. That is correct. It is a statutory 
interpretation that has been applied for 70 years. The First 
Circuit thought it was a fair one, and so, yes, Congress could 
certainly act, as they have done, as I mentioned in my 
testimony, three times over the last 10 years.
    Mr. Faleomavaega. And Professor Routel, I noticed with 
interest, in your statement, that Senator Wheeler really went 
out of his way to say, We do not want too many Indians. Whether 
you are one-eighth or a quarter blood, make them one-half so 
that to prevent the Federal government from giving further 
assistance, economic assistance, to the Indians.
    Wasn't this the basis of how the 50-percent blood quantum 
that is now, to me, in my opinion, is very racist? But it was a 
way to prevent more assistance to the Indians, and that is how 
it ended up with a 50-percent quantum. Am I correct on that?
    Ms. Routel. Absolutely, and that is why I think the real 
question for Congress is, you know, what should be a law going 
forward, not looking back to 1934? And if you look at how the 
half-blood provision that you are referring to, how that was 
implemented back in the 1930s, when you had commissions out 
there that were going around measuring people's skulls, I mean, 
they did not know who was one-half or who was not.
    They were making these decisions based on really racist 
assumptions. If you were part African-American, you could not 
be Indian. If you had a certain skull size, you were one-half. 
Then, of course, could you speak English, and were you 
assimilated?
    Mr. Faleomavaega. Well, we did the same thing to the Native 
Hawaiians: a 50-percent blood quantum to be a Native Hawaiian.
    They tried to do it on my people, too. To be considered a 
Samoan, you had to be 50 percent. What does that mean, a blue-
eyed Indian, a Cherokee? Practically everybody in America is 
part-Cherokee, from what I hear.
    Mr. Chairman, I know my time is up, but I gladly yield to 
my colleague from Michigan.
    Mr. Kildee. I want to clarify one thing to Mr. Mitchell. I 
hold Mr. Meeds in the same high regard as you do. He certainly 
was a great friend and passionate friend of the Indians. He was 
a very, very dear friend of mine. I want to make sure people 
understand that.
    Mr. Mitchell. And I recognize that. That is one thing. 
Reasonable people can disagree about these other issues, but we 
both agree, 100 percent, on that.
    Mr. Kildee. Thank you.
    Mr. Faleomavaega. Thank you, Mr. Chairman.
    The Chairman. The gentleman from New Mexico, do you have 
any further questions?
    Mr. Heinrich. No questions.
    The Chairman. The gentleman from Washington?
    Mr. Hastings. No, thank you.
    The Chairman. If not, I will use my second round of 
questions to make a closing comment.
    First, I do thank each of the witnesses for being here 
today. It has been a very interesting and informative morning, 
and we appreciate your time and your patience.
    It is clear to me that the important issue here is not 
whether the Supreme Court's decision was correct or not. 
Instead, the issue is the need to clarify Federal policy 
regarding land-into-trust.
    The Court has interpreted the IRA to require Indian tribes 
to have been under Federal jurisdiction in 1934 in order for 
the Secretary to place land into trust on the tribes' behalf. 
Although the decision appears to overturn Congress's clear 
statement, in 1994, that the Bureau of Indian Affairs is not to 
treat tribes differently, the decision has been made, and now 
we all must decide what, if anything, needs to be done.
    If the decision stands unchallenged, the consequences could 
be severe. The Department of the Interior will surely be 
bombarded with litigation challenging the status of Indian 
lands. The Federal court system will be flooded with 
litigation. Federal prisoners will claim they were unfairly 
convicted as being on Indian land, and they would demand their 
release.
    The mere existence of Indian housing, hospitals, schools, 
nursing homes, and businesses will be challenged, and Congress 
will have to enact legislation every time a tribe wants land 
placed into trust.
    Indian tribes will have to spend valuable time and 
resources proving they were under Federal jurisdiction in 1934, 
despite the Federal government's atrocious treatment of them, 
and Indian communities, already experiencing conditions much 
worse than the rest of the U.S. population, will deteriorate.
    In order to prevent these consequences, we must decide 
whether to continue the policy of encouraging strong tribal 
economies and tribal self-governance. We must also decide the 
best way to fulfill the United States' legal and moral 
responsibility to Indian tribes and Indian trust land, and the 
Committee will continue to work to address this matter and, 
again, I thank the witnesses, and I thank the Members of the 
Committee, those that have been here today for this entire 
hearing, and those who have come and gone, I appreciate very 
much, on both sides of the aisle, their participation. Thank 
you. The Committee stands adjourned.
    [Whereupon, at 11:37 a.m., the Committee was adjourned.]

                                 
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