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48-414 PDF 2009

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 

(II) 

COMMITTEE ON NATURAL RESOURCES 

NICK J. RAHALL, II, West Virginia, Chairman 

DOC HASTINGS, Washington, Ranking Republican Member 

Dale E. Kildee, Michigan 

Eni F.H. Faleomavaega, American Samoa 

Neil Abercrombie, Hawaii 

Frank Pallone, Jr., New Jersey 

Grace F. Napolitano, California 

Rush D. Holt, New Jersey 

Rau ́l M. Grijalva, Arizona 

Madeleine Z. Bordallo, Guam 

Jim Costa, California 

Dan Boren, Oklahoma 

Gregorio Sablan, Northern Marianas 

Martin T. Heinrich, New Mexico 

George Miller, California 

Edward J. Markey, Massachusetts 

Peter A. DeFazio, Oregon 

Maurice D. Hinchey, New York 

Donna M. Christensen, Virgin Islands 

Diana DeGette, Colorado 

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 

Don Young, Alaska 

Elton Gallegly, California 

John J. Duncan, Jr., Tennessee 

Jeff Flake, Arizona 

Henry E. Brown, Jr., South Carolina 

Cathy McMorris Rodgers, Washington 

Louie Gohmert, Texas 

Rob Bishop, Utah 

Bill Shuster, Pennsylvania 

Doug Lamborn, Colorado 

Adrian Smith, Nebraska 

Robert J. Wittman, Virginia 

Paul C. Broun, Georgia 

John Fleming, Louisiana 

Mike Coffman, Colorado 

Jason Chaffetz, Utah 

Cynthia M. Lummis, Wyoming 

Tom McClintock, California 

Bill Cassidy, Louisiana 

James H. Zoia, Chief of Staff 

Rick Healy, Chief Counsel 

Todd Young, Republican Chief of Staff 

Lisa Pittman, Republican Chief Counsel 

(III) 

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 

(1) 

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 

2 

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 

3 

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. 

4 

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 feeto-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? 

5 

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 

6 

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. 

7 

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. § 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 

8 

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. 

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. 

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’’). LikeVerDate Nov 24 2008 16:15 May 11, 2009 Jkt 000000 PO 00000 Frm 00012 Fmt 6633 Sfmt 6621 L:\DOCS\48414.TXT Hresour1 PsN: KATHY
9 

2The Senate Committee on Indian Affairs held hearings on the draft bill on April 26, 28, 30 

and May 3, 4, and 17, 1934. 3Senator 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 quarterblood Indians you are going to have all kinds of people coming in and claiming they are quarterblood 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. 

wise, 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. 

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 

10 

4Senator 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. 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. 

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. 

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: 

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: 

11 

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. 

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

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 

12 

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. 

13 

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 landinto-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 

14 

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. 

15 

1—U.S.—, 129 S.Ct. 1058 (2009) (‘‘Carcieri’’). 2 24 Stat. 388 

3President 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. 4See Cohen’s Handbook of Federal Indian Law (2005 ed.), § 1.05. 

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. 6 48 Stat. 984, codified as amended at 25 U.S.C. 461 et seq. 

7 Carcieri at 1061. 8See, 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). 9 25 U.S.C. § 476(f). 

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. 

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. 

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. 

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: 

(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

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 undoubtVerDate Nov 24 2008 16:15 May 11, 2009 Jkt 000000 PO 00000 Frm 00019 Fmt 6633 Sfmt 6621 L:\DOCS\48414.TXT Hresour1 PsN: KATHY
16 

10See 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). 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’’). 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)). 13 Id. 14 U.S. Constitution, Art. I, Sec. 8, Cl. 3; U.S. v. Sandoval, 231 U.S. 28, 46 (1913). 15See Worcester v. Georgia, 31 U.S. 515 (1832); Cherokee Nation v. Georgia, 30 U.S. 1 (1831). 16See, 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). 

edly 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. 

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

• the continuing existence of a government-to-government relationship despite the 

federal government’s mistaken belief it was terminated; 12

• 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

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 governmentto-government relation has not been expressly established. 16

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. 

17 

17 25 U.S.C. §§ 2201 et seq. 18 25 U.S.C. §§ 1901 et seq. 19 25 U.S.C. §§ 450 et seq. 20See United States Department of the Interior, Acting Assistant Secretary—Indian Affairs 

to Hon. George Miller (Jan. 14, 1994). 21See 25 U.S.C. § 476(f)-(g). 22 25 U.S.C.A. § 479a 23 25 U.S.C.A. § 476(h), Section 103, Public Law 103-454 

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

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: 

‘‘(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

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. 

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 

18 

24See 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). 25See General Allotment Act of 1887. 24 Stat. 388. 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. 27 20 U.S.C. § 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). 

of the Department’s Office of Federal Acknowledgment (‘‘OFA’’). 24 Transferring tribal history questions to OFA is a potential disaster in the making. 

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 selfgovernance and promote tribal self-determination and economic development. 

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

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. 

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. 

19 

EXHIBITS 

Exhibit A 25 U.S.C.A. § 476 

Privileges and immunities of Indian tribes, Tribal sovereignty 

Exhibit B 25 U.S.C.A. § 479 

Definitions 

Exhibit C 25 U.S.C.A. § 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. § 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. § 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. § 479A

For the purposes of this title: 

(1) The term ‘‘Secretary’’ means the Secretary of the Interior. 

20 

(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. § 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. § 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 colVerDate Nov 24 2008 16:15 May 11, 2009 Jkt 000000 PO 00000 Frm 00024 Fmt 6633 Sfmt 6621 L:\DOCS\48414.TXT Hresour1 PsN: KATHY
21 

1These 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. 2The 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. 3The 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. 

loquy between Senators Inouye and McCain. 1 In proposing the amendment. Senator 

McCain stated: 

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. 

§ 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. 

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. 

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. 

22 

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. 5Title 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. § 941h); Oregon has been granted civil and 

criminal jurisdiction within the boundaries of the Coquille Reservation (25 U.S.C. § 715d); New 

York has criminal jurisdiction on Indian reservations (25 U.S.C. § 232) and New York courts 

have civil jurisdiction (25 U.S.C. § 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. § 1725); Texas has civil and criminal jurisdiction over the Ysleta Del Sur Pueblo (25 U.S.C. § 1300g-4(f)). 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). 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. 

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. 

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

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. 

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. 

(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. 

23 

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. § 1301(1). See also, the Indian Law 

Enforcement Reform Act, 25 U.S.C. § 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. § 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. § 2205<a). 

The Indian Child Welfare Act defines ‘‘tribe’’ to mean: ‘‘any Indian tribe, band, 

nation, or other organized group or community of Indians recognized as eligible for 

the services provided to Indians by the Secretary because of their status as Indians, 

including any Alaska Native village as defined in Section l602(c) of Title 42.’’ 25 

U.S.C. § 1903(8). The Indian Self-Determination and Education Assistance Act, one 

of the more important pieces of Indian legislation in the last 20 years, defines 

Indian tribe to mean: 

[A]ny Indian tribe, band, nation, or other organized group or community, 

including any Alaska Native village or regional or village corporation as defined in or established pursuant to the Alaska Native Claims Settlement 

Act (85 Stat. 688) [43 U.S.C. § 1601 et seq.], which is recognized as eligible 

for the special programs and services provided by the United States to 

Indians because of their status as Indians; 

25 U.S.C. § 450b(b). See also, the Indian Child Protection and Family Violence Prevention Act; 25 U.S.C. § 3202(10). 

As these varied yet uniformly sweeping statutory definitions of ‘‘tribe’’ make clear, 

Congress has long been aware of the ethnological, cultural and historic differences 

’ among Indian governance organizations, yet Congress for the most part makes no 

distinctions among tribes in recognizing their existing authorities or vesting them 

with new ones. But see footnote 5, above. In any event, apart from these specific 

statutory modifications, Congress has now sealed the debate by rejecting the distinction drawn in the 1936 Opinion. 

There remains the question of how the recent amendment is to be implemented 

with respect to tribes heretofore regarded as ‘‘created,’’ whose constitutions contain 

limitations based upon the 1936 Opinion. The need for and the process to be employed in amending these constitutions may raise legal issues that will have to be 

addressed in my office. I believe the best course is to await a specific factual context 

before attempting to resolve any such issues. Please consult my office when such 

requests for amendments are made. 

Attachments 

cc: Associate Solicitors 

All Regional and Field Solicitors 

The CHAIRMAN. Thank you. Mr. Mitchell? 

STATEMENT OF DONALD CRAIG MITCHELL, 

ESQUIRE, ANCHORAGE, ALASKA 

Mr. MITCHELL. Thank you, Mr. Chairman. I appreciate the opportunity to be here this morning. I began testifying in front of this 

Committee on these issues in 1977, and this morning is the first 

time I have ever done so on my own, not representing a client. 

24 

I mention that for two reasons. The first is that, unlike Mr. Anderson, who, to the best of my knowledge, does have attorney-client 

relationships with tribes that have a very strong interest in this 

matter, and, unlike Professor Routel, who participated in the U.S. 

Supreme Court litigation, I do not come here with any of that baggage. In short, I do not have a dog, in the literal sense, in this 

fight. 

I believe I was invited by the Committee, however, because I 

have a long history of following Congress’s entanglements with 

Federal Indian policy and what has happened at the Department. 

In 1978, as the Chairman knows, the very first Assistant Secretary of Indian Affairs was a wonderful fellow named Forest Girard, and Forest invited me to be one of his first special assistants, 

and, for a variety of reasons, I turned the invitation down, but I 

mention it only to say that I have been around these issues for a 

long time. 

Now, having said that, and at the risk of sounding like the pedantic high school civics teacher that I am not, let me make just 

one principal point, and that is, independent of Indian subject matter, the system that the Constitution sets up is really pretty darned 

simple, and here is how it works, and, again, I do not mean to be 

pedantic about this, but this is an important point that goes to the 

heart of thinking about the Carcieri decision, and that is, under 

our Constitution, it is Congress that makes policy choices. Congress 

codifies those policy choices in its statutes. It is the responsibility 

of the Federal Executive to implement Congress’s policy choices, 

not the policy choices that the Federal Executive thinks might be 

appropriate. 

Congress has a constitutional right occasionally not even to know 

what it is doing, but it is Congress’s policy choices. 

Now, that is how it works. Now, what the courts do is they correct errors. If Congress makes a policy choice in a statute that the 

U.S. Supreme Court believes is not authorized by the Constitution, 

Congress corrects the error. If the Federal Executive Branch is not 

implementing Congress’s policy choices, the U.S. Supreme Court 

corrects the error. 

It is as simple as that, and what happened in this case was that, 

for, certainly since the late 1970s that I have been involved in this, 

the Department of the Interior and, specifically, the Indian Affairs 

Division of the Office of the Solicitor has decided, on its own, what 

the best Indian policy should be for this nation, and reasonable 

people can differ about that, in terms of what these policies should 

be. These are very difficult choices, and I agree with the public intellectual, Gary Wills, who once said that ‘‘our nation’s Indian policy is America’s original sin, with slavery being second,’’ and we are 

still attempting to recovery from that. 

As I said, having a policy debate about what to do in the 21st 

century about all of this stuff is a very interesting subject that this 

Congress has not had in a number of years. 

Now, all that the United States Supreme Court did was to apply 

basic canons of statutory construction, and no other witness has 

mentioned the fact that what this case went off on was not all of 

the stuff about John Collier; what it went off on was the basic rule 

of law that there is a presumption that when Congress uses undeVerDate Nov 24 2008 16:15 May 11, 2009 Jkt 000000 PO 00000 Frm 00028 Fmt 6633 Sfmt 6602 L:\DOCS\48414.TXT Hresour1 PsN: KATHY
25 

fined terms in a Federal statute that Congress intends those terms 

to have the common dictionary meaning. It is as simple as that, 

and the Court looks at the text of the statute, and they applied 

that rule, and they came up with the result that they did. 

Now, after they did that, they then spent some time analyzing 

that had gone on with respect to the Federal Executive’s implementation back at the time the statute was enacted, and they said that 

the original implementation was consistent with the common dictionary meaning. 

Now, that is how we have gotten to this situation, and there is 

no overreaching by the Court. There is nothing untoward here, and 

what is untoward, and my time is up, or I could spend the rest of 

the morning talking about how the situation has evolved inside the 

Bureau of Indian Affairs and the Indian Affairs Division of the Office of the Solicitor. It is a scandal, frankly, and it is time for Congress to reassert its commerce clause authority to once again be in 

charge of the nation’s Indian policies. Thank you, Mr. Chairman. 

[The prepared statement of Mr. Mitchell follows:] 

Statement of Donald Craig Mitchell, Esquire, Anchorage, Alaska 

Mr. Chairman, members of the Committee, my name is Donald Craig Mitchell. 

I am an attorney in Anchorage, Alaska, who has been involved in Native American 

legal and policy issues from 1974 to the present day in Alaska, on Capitol Hill, and 

in the federal courts. 

From 1977 to 1993 I served as Washington, D.C., counsel, then as vice president, 

and then as general counsel for the Alaska Federation of Natives, the statewide organization Alaska Natives organized in 1967 to urge Congress to settle Alaska 

Native land claims by enacting the Alaska Native Claims Settlement Act (ANCSA). 

From 1984 to 1986 I was counsel to the Governor of Alaska’s Task Force on FederalState-Tribal Relations and authored the Task Force’s report on the history of Alaska 

Native tribal status that the Alaska Supreme Court later described as an analysis 

of ‘‘impressive scholarship.’’ And from 2000 to 2009 I was a legal advisor to the leadership of the Alaska State Legislature regarding Alaska Native and Native American issues, including the application of the Indian Gaming Regulatory Act in 

Alaska. 

I also have written a two-volume history of the federal government’s involvement 

with Alaska’s indigenous Indian, Eskimo, and Aleut peoples from the Alaska purchase in 1867 to the enactment of ANCSA in 1971, Sold American: The Story of 

Alaska Natives and Their Land, 1867-1959, and Take My Land Take My Life: The 

Story of Congress’s Historic Settlement of Alaska Native Land Claims, 1960-1971. 

Former Secretary of the Interior Stewart Udall, a distinguished former member of 

this Committee, has described Sold American as ‘‘the most important and comprehensive book about Alaska yet written.’’ And in 2006 the Alaska Historical Society named Sold American and Take My Land Take My Life two of the most important books that have been written about Alaska. 

I first testified before this Committee in 1977 and I very much appreciate the opportunity to testify again today on the ramifications of the decision of the U.S. Supreme Court in Carcieri v. Salazar, Slip Opinion No. 07-526 (February 24, 2009). 

Section 5 of the Indian Reorganization Act (IRA), Pub. L. No. 73-383, 48 Stat. 984, 

delegates the Secretary of the Interior authority to acquire land, and to take title 

to the acquired land into trust, ‘‘for the purpose of providing land for Indians.’’ (emphasis added). 

In Carcieri, five-members of the Court—Chief Justice Roberts and Justices Thomas, Scalia, Kennedy, and Alito—held that the 73d Congress, which in 1934 enacted 

the IRA, intended the phrase ‘‘recognized tribe now under Federal jurisdiction’’ (emphasis added) in the section 19 of the IRA definition of the term ‘‘Indian’’ to prohibit 

the Secretary of the Interior from acquiring land for an ‘‘Indian tribe’’ pursuant to 

section 5 of the IRA unless that ‘‘Indian tribe’’ was both ‘‘recognized’’ and ‘‘under 

Federal jurisdiction’’ on the date of enactment of the IRA, i.e., on June 18, 1934. 

Three other members of the Court—Justices Breyer, Souter, and Ginsburg—disagreed in part with that determination of congressional intent and opined that the 

73d Congress intended the phrase ‘‘recognized tribe now under Federal jurisdiction’’ 

to require an Indian tribe to have been ‘‘under Federal jurisdiction’’ on June 18, 

26 

1934, but to allow the tribe to have been ‘‘recognized’’ years or decades after that 

date. 

Subsequent to the 73d Congress’s enactment of the IRA in 1934, and particularly 

subsequent to the 100th Congress’s enactment of the Indian Gaming Regulatory Act 

in 1988, the Secretary of the Interior has acquired numerous parcels of land pursuant to section 5 of the IRA for numerous groups of Native Americans that were not 

‘‘recognized’’ as ‘‘Indian tribes’’ and were not ‘‘under Federal jurisdiction’’ on 

June 18, 1934. Today, on a number of those parcels a number of those groups operate gambling casinos that collectively annually generate billions of dollars of revenue. For those reasons, the majority opinion in Carcieri has quite understandably 

roiled Indian country. 

To decide on its position regarding the legal and policy consequences that flow 

from the Carcieri decision requires the Committee on Natural Resources to consider 

three questions: 

1. Does the majority opinion in Carcieri accurately discern the intent of the 73d 

Congress embodied in the phrase ‘‘recognized Indian tribe now under Federal 

jurisdiction’’? 

2. If the answer to that question is yes, is the policy result that the 73d Congress 

intended to effectuate in 1934 appropriate in 2009? 

3. If the answer to that question is no, what should the Committee recommend 

to the 111th Congress regarding amendments to section 5 and/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 

27 

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). 

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

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’’). 

28 

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). 

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

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 

29 

3The regulations were codified at 25 C.F.R. 54.1 et seq. (1978), today 25 C.F.R. 83.1 et seq. 

(2009). 

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

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. 

30 

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. 

31 

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. 

32 

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 

33 

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. 

34 

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 

35 

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. 

36 

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. 

37 

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 

38 

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. 

39 

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 

40 

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 

41 

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 

42 

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. 

43 

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 

44 

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 

45 

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 wellrecognized, 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 tribVerDate Nov 24 2008 16:15 May 11, 2009 Jkt 000000 PO 00000 Frm 00049 Fmt 6633 Sfmt 6602 L:\DOCS\48414.TXT Hresour1 PsN: KATHY
46 

al 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 

47 

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. 

48 

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. 

49 

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 

50 

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 forVerDate Nov 24 2008 16:15 May 11, 2009 Jkt 000000 PO 00000 Frm 00054 Fmt 6633 Sfmt 6602 L:\DOCS\48414.TXT Hresour1 PsN: KATHY
51 

ward, not looking back to 1934? And if you look at how the halfblood 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. 

52 

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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