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S. HRG. 112–416

THE CARCIERI CRISIS: THE RIPPLE EFFECT ON

JOBS, ECONOMIC DEVELOPMENT, AND PUBLIC

SAFETY IN INDIAN COUNTRY

HEARING

BEFORE THE

COMMITTEE ON INDIAN AFFAIRS 

UNITED STATES SENATE

ONE HUNDRED TWELFTH CONGRESS

FIRST SESSION

OCTOBER 13, 2011

Printed for the use of the Committee on Indian Affairs

(

(II)

COMMITTEE ON INDIAN AFFAIRS 

DANIEL K. AKAKA, Hawaii, Chairman 

JOHN BARRASSO, Wyoming, Vice Chairman 

DANIEL K. INOUYE, Hawaii 

KENT CONRAD, North Dakota 

TIM JOHNSON, South Dakota 

MARIA CANTWELL, Washington 

JON TESTER, Montana 

TOM UDALL, New Mexico 

AL FRANKEN, Minnesota 

JOHN MCCAIN, Arizona 

LISA MURKOWSKI, Alaska 

JOHN HOEVEN, North Dakota 

MIKE CRAPO, Idaho 

MIKE JOHANNS, Nebraska 

LORETTA A. TUELL, Majority Staff Director and Chief Counsel 

DAVID A. MULLON JR., Minority Staff Director and Chief Counsel 

(III)

C O N T E N T S 

Page 

Hearing held on October 13, 2011 .......................................................................... 1

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

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

Prepared statement .......................................................................................... 2

Statement of Senator Johnson ................................................................................ 2

WITNESSES

Artman, Carl J., Professor of Practice, Director, Economic Development in 

Indian Country Program, Arizona State University Sandra Day O’Connor 

College of Law ...................................................................................................... 39

Prepared statement .......................................................................................... 41

Cole, Hon. Tom, U.S. Representative from Oklahoma ......................................... 3

Prepared statement .......................................................................................... 5

Echo Hawk, Hon. Larry, Assistant Secretary, Indian Affairs, U.S. Department 

of the Interior; accompanied by Donald Laverdure, Principal Deputy Assistant Secretary, Indian Affairs, and Jodi Gillette, Deputy Assistant Secretary, 

Policy and Economic Development ..................................................................... 6

Prepared statement .......................................................................................... 8

Guest, Richard, Staff Attorney, Native American Rights Fund .......................... 17

Prepared statement with attachments ........................................................... 18

Lomax, William, President, Native American Finance Officers Association ...... 36

Prepared statement .......................................................................................... 38

Routel, Colette, Assistant Professor, William Mitchell College of Law ............... 30

Prepared statement .......................................................................................... 31

APPENDIX

Inouye, Hon. Daniel K., U.S. Senator from Hawaii, prepared statement ........... 51

Iyall, Hon. William, Chairman, Cowlitz Indian Tribe, prepared statement ....... 62

McIntosh, Paul, Executive Director, California State Association of Counties, 

prepared statement with attachment ................................................................. 51

(1)

THE CARCIERI CRISIS: THE RIPPLE EFFECT 

ON JOBS, ECONOMIC DEVELOPMENT, AND 

PUBLIC SAFETY IN INDIAN COUNTRY 

THURSDAY, OCTOBER 13, 2011

U.S. SENATE, 

COMMITTEE ON INDIAN AFFAIRS, 

Washington, DC. 

The Committee met, pursuant to notice, at 2:40 p.m. in room 

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

Chairman of the Committee, presiding. 

OPENING STATEMENT OF HON. DANIEL K. AKAKA,

U.S. SENATOR FROM HAWAII 

The CHAIRMAN. The Committee will come to order. Aloha and 

welcome to the Committee’s oversight hearing on the Carcieri Crisis: The Ripple Effect on Jobs, Economic Development, and Public 

Safety in Indian Country. 

Today’s topic, the Carcieri decision, is not a new one to this Committee or to Indian Country, but since the Supreme Court’s decision in February, 2009, the Committee has held numerous hearings, roundtables and listening sessions to examine what the 

Carcieri decision means to Tribes. 

Following the Carcieri decision, Tribal leaders, scholars, and Administration officials predicted the ruling would lead to an increase 

in litigation in Indian Country, make it more difficult for Tribes to 

develop economic opportunities to benefit their members and surrounding communities, and create confusion regarding public jurisdiction. 

At today’s hearing, we will learn about the impacts that have occurred in the two-and-a-half years since the Supreme Court’s 

Carcieri decision. As I have said before in prior hearings, I believe 

it is the responsibility of Congress to set this right. 

This Committee has already favorably reported Carcieri fix language and we intend to keep examining the impact on Tribes in 

order to demonstrate the need for the entire Congress to act on this 

matter. 

I appreciate the witnesses who have agreed to be with us today. 

I would also encourage any interested parties to submit written 

testimony so we can continue to build a strong record for why legislation is necessary to address this issue. 

The hearing record will remain open for two weeks from today. 

2

The CHAIRMAN. Now, I would like to turn to my friend and colleague for any opening statements. 

Senator Barrasso? 

STATEMENT OF HON. JOHN BARRASSO,

U.S. SENATOR FROM WYOMING 

Senator BARRASSO. Thank you very much, Mr. Chairman. 

Good afternoon to all of you who are here. 

I want to thank you, Mr. Chairman, for holding this important 

hearing on the effects of the Carcieri decision. As is often the case, 

many of our witnesses today have traveled great distances to give 

their testimony, so I will keep this brief. And with your permission, 

will submit my entire statement for the record. 

The CHAIRMAN. It will be included in the record. 

Senator BARRASSO. Thank you, Mr. Chairman. 

We know the issues today are very important to Indian Country. 

For many Tribes, the Supreme Court’s Carcieri decision means 

doubt and uncertainty over both civil and criminal jurisdiction. 

Doubt and uncertainty affecting public safety and governmental 

authority cannot be good for Indian communities. 

Mr. Chairman, I don’t want to take any more time because we 

have our friend and colleague, Congressman Tom Cole from Oklahoma who is with us today to testify. And with that, Mr. Chairman, thank you very much, and welcome, Congressman Cole. 

[The prepared statement of Senator Barrasso follows:]

PREPARED STATEMENT OF HON. JOHN BARRASSO, U.S. SENATOR FROM WYOMING

Good Afternoon, Mr. Chairman, and thank you for holding this important hearing 

on the effects of the Carcieri decision. 

As is often the case, many of our witnesses today have traveled great distances 

to give their testimony, so I will keep this brief. 

I know the issues today are very important to Indian Country. For many tribes, 

the Supreme Court’s Carcieri decision means doubt and uncertainty over both civil 

and criminal jurisdiction. 

Doubt and uncertainty affecting public safety and governmental authority cannot 

be good for Indian communities. Does the BIA have jurisdiction to arrest a criminal 

or intervene in an ongoing crime? Can a crime be prosecuted under the Major 

Crimes Act? This uncertainty can also affect economic development, drawing into 

question the validity of transactions and investments. 

I think that is why this Committee has twice agreed to pass a Carcieri fix—once 

in the last Congress and again this Congress. However, congressional action could 

have significant consequences, so it’s essential that we understand all of the implications. 

Hopefully, our witnesses today will further enlighten the Committee of impacts 

of the Carcieri decision. 

Thank you Mr. Chairman.

The CHAIRMAN. Thank you very much, Senator Barrasso. 

Senator Johnson? 

STATEMENT OF HON. TIM JOHNSON,

U.S. SENATOR FROM SOUTH DAKOTA 

Senator JOHNSON. I will be short. 

Welcome, Representative Cole. 

Good afternoon and thank you, Chairman Akaka, for holding this 

important hearing. As we all know, the impact of this decision 

could have far-reaching consequences in Indian Country. The 

3

Tribes themselves have deep connection to the land and it is deeply 

rooted in their identity. The effect of this decision would have negative impacts not only on their culture, but on economic development, public safety, housing and education. The impacts do not 

stop there. 

I look forward to the testimony today. I supported a clean fix to 

this issue, both as a stand alone measure and as an amendment. 

It is my hope we can fix this problem and clarify some of the uncertainty surrounding this issue. 

Thank you, again, Mr. Chairman, and thank you to all the witnesses here today. 

The CHAIRMAN. Thank you very much, Senator Johnson. 

And now, I would like to welcome our first witness today, my 

good friend and colleague, Congressman Tom Cole from Oklahoma. 

Congressman Cole has been a strong advocate on this issue and 

has taken the lead in the House to make sure that his colleagues 

are aware of how important it is that Congress pass legislation to 

fix the Carcieri decision. 

The Committee is pleased that Congressman Cole could be here 

today and we are looking forward to hearing your comments on the 

Carcieri issue. So please proceed with your testimony, Congressman Cole. 

STATEMENT OF HON. TOM COLE,

U.S. REPRESENTATIVE FROM OKLAHOMA 

Mr. COLE. Thank you, Mr. Chairman. It is a great honor to be 

here. It is good to see my old friend, Senator Barrasso and I had 

the honor, Senator Johnson, to be with you not too long ago on the 

Cheyenne Sioux Reservation. We dedicated a new IHS facility. 

So I thank all of you for your interest and your hard work on 

behalf of Indian Country. 

Mr. Chairman, thank you particularly for holding this hearing, 

and thank you for allowing me to make a statement on this important issue. The Supreme Court in 2009 turned the entire notion of 

Tribal sovereignty on its head. By taking land into trust for the use 

of Tribes, the Federal Government preempts State regulation and 

jurisdiction, allowing Tribes as sovereign governments to deal directly with the United States on a government-to-government 

basis. 

In the Carcieri decision, the court ruled that the Indian Reorganization Act provides no authority for the Secretary of the Interior 

to take land into trust for the Narragansett Indian Tribe because 

the statute applies only to the Tribes under Federal jurisdiction 

when the law was enacted in 1934. 

This decision creates two classes of Indian Tribes: those that can 

have land into trust and those that cannot. Many Tribes in existence in that year were wary of the Federal Government and for 

good reason. Inclusion in that legislation bears no relationship on 

whether a Tribe existed at that time or not. This two-class system 

is unacceptable and it is unconscionable for Congress not to act to 

correct the law as the Supreme Court interpreted it in the Carcieri

decision. 

As the only current Member of Congress who is an enrolled Tribal member, I cannot overstate the importance of Tribal members’ 

4

relationship to their land, to their identity, and culture. In many 

cases, it is also the driving force for economic development for 

Tribes and Tribal members. 

Tribes across the Great Plains and the western United States 

rely on their trust lands to produce energy, both conventional and 

renewable. Tribes in these areas also use land in agricultural production. Tribes in the Northwest use the fish from the waters adjacent to their land not only to feed their people, but also as a catalyst for jobs catching, processing and marketing those fish. 

Much land has been taken from Tribes and Tribal members. It 

is unconscionable for us to make it harder for Tribes to gain back 

their traditional land. The land-in-trust system has problems, for 

sure, but it is a system that we have had in place for over 70 years. 

Current laws make it difficult to develop trust land. Projects that 

should take weeks to plan and secure regulatory approval often 

take years. The Federal Government already puts burdens on Tribal lands. The Carcieri decision just adds to those burdens by making it harder for Tribes to manage and grow their sovereign territory. 

In addition to economic development, trust land allows Tribes 

territory to provide essential governmental services. These services 

include Tribal police and courts. Last Congress, we passed the 

Tribal Law and Order Act of 2010, which provides Tribal police and 

courts with resources to develop an active and expert justice system. Tribal police forces are better equipped to address the unique 

needs and concerns of Tribal members. Without a sovereign land 

base, the Tribal justice systems will be undermined. 

This is just another way the Carcieri decision hurts the Tribes’ 

ability to provide essential government services to the most challenged Americans. 

Mr. Chairman, the Carcieri decision overturns over 70 years of 

precedent and puts billions of dollars worth of trust land in legal 

limbo. Without a legislative fix, more billions of dollars and decades 

will be spent on litigation and disputes between Tribes and State 

and local government. 

You may hear many things about what having land into trust 

leads to. You may hear this is all about gaming. The truth is that 

of the nearly current 2,000 requests for the Secretary to take land 

into trust, over 95 percent of those requests are for non-gaming 

purposes. 

You may also hear that trust land is undermining States’ tax 

base. Like any Federal land, trust land is not subject to State taxation. Neither is land housing military bases, national parks, and 

national forests, just to name a few. There is no reason to oppose 

this bill. Federal programs such as impact aid and payment in lieu 

of taxes address these shortfalls. 

You may also hear that Tribes not subject to the 1934 Act are 

not real Tribes, but are new groups of people seeking recognition 

in order to receive Federal benefits. The truth is, when a Tribe is 

federally recognized, it must prove that it has continually existed 

as a political entity for generations. Therefore, it makes no sense 

to draw an arbitrary date for Tribal recognition in order to enable 

the Secretary to put land into trust. 

5

Many Tribes recognized post-1934 have treaties that pre-date the 

existence of the United States. The Narragansett Tribe, for instance, has treaties with the colony of Rhode Island. To claim they 

did not exist prior to 1934 is simply preposterous. 

Mr. Chairman, if Congress fails to act, the standard set forth in 

the Carcieri v. Salazar will be devastating to Tribal sovereignty 

and economic development. Resolving any ambiguity in the Indian 

Reorganization Act is vital to protecting Tribal interests and avoiding costly and protracted litigation. 

Thank you, Mr. Chairman. I appreciate the opportunity to testify. 

[The prepared statement of Mr. Cole follows:]

PREPARED STATEMENT OF HON. TOM COLE, U.S. REPRESENTATIVE FROM OKLAHOMA

Mr. Chairman, thank you for holding this hearing and thank you for allowing me 

to make a statement on this important issue. 

The Supreme Court in 2009 turned the entire notion of Tribal sovereignty on its 

head. By taking land into trust for the use of Tribes, the Federal Government preempts state regulation and jurisdiction allowing Tribes as sovereign governments to 

deal directly with the United States on a government-to-government basis. 

In the Carcieri decision the Court ruled that the Indian Reorganization Act (IRA) 

provides no authority for the Secretary of the Interior to take land into trust for 

the Narragansett Indian Tribe because the statute applies only to Tribes under federal jurisdiction when that law was enacted in 1934. This decision creates two classes of Indian Tribes: those that can have land in trust and those that can not. Many 

Tribes in existence in that year were wary of the Federal Government, and for good 

reason. Inclusion in that legislation bears no relation on whether a Tribe existed 

at that time or not. This two class system is unacceptable and it is unconscionable 

for Congress not to act to correct the law as the Supreme Court interpreted it in 

the Carcieri decision. 

As the only current Member of Congress who is an enrolled Tribal member, I cannot overstate the importance of Tribal members’ relationship to the land to their 

identity and culture. In many cases it is also the driving force for economic development for Tribes and Tribal members. Tribes across the Great Plains and the Western United States rely on their trust lands to produce energy, both conventional and 

renewable. Tribes in these areas also use land in agricultural production. Tribes in 

the Northwest use the fish from the waters adjacent to their land not only to feed 

their people but also as a catalyst for jobs catching, processing and marketing those 

fish. Much land has been taken from Tribes and Tribal members. It is unconscionable for us to make it harder for Tribes to gain back their traditional lands. 

The land-in-trust system has problems for sure, but it is the system we have had 

in place for over 70 years. Current laws make it difficult to develop trust land. 

Projects that should take weeks to plan and secure regulatory approval for can take 

years. The Federal Government already puts burdens on Tribal land, the Carcieri

decision just adds to those burdens by making it harder for Tribes to manage and 

grow their sovereign territory. 

In addition to economic development, trust land allows Tribes territory to provide 

essential government services. These services include Tribal police and courts. Last 

Congress, we passed the Tribal Law and Order Act of 2010, which provides Tribal 

police and courts with resources to develop active and expert justice systems. Tribal 

police forces are better equipped to address the unique needs and concerns of Tribal 

members. Without a sovereign land base, Tribal justice systems will be undermined. 

This is just another way the Carcieri Decision hurts Tribes’ ability to provide essential government services to the most challenged Americans. 

Mr. Chairman, the Carcieri decision overturns over 70 years of precedent and 

puts billions of dollars worth of trust land in legal limbo. Without a legislative fix, 

more billions of dollars and decades will be spent on litigation and disputes between 

Tribes and State and local governments. 

You may hear many things about what having land into trust leads to. You may 

hear that this is all about gaming. The truth is that, of the nearly current 2,000 

requests for the Secretary to take land into trust over 95 percent of those requests 

are for non-gaming purposes. You also may hear that trust land is undercutting 

States’ tax base. Like any federal land, trust land is not subject to State taxation; 

neither is land housing military bases, national parks and national forests just to 

6

name a few. This is no reason to oppose this bill. Federal programs such as Impact 

Aid and Payment in Lieu of Taxes (PILT) address these shortfalls. 

You also may hear that Tribes not subject to the 1934 act are not real Tribes, 

but are new groups of people seeking recognition in order to receive federal benefits. 

The truth is when a Tribe is federally recognized, it must prove that it has continually existed as a political entity for generations. Therefore it makes no sense to 

draw an arbitrary date for Tribal recognition in order to enable the Secretary to put 

land into trust. Many Tribes recognized post-1934 have treaties that pre-date the 

existence of the United States. The Narragansett Tribe has treaties with the colony 

of Rhode Island. To claim they did not exist prior to 1934 is preposterous. 

Mr. Chairman, if Congress fails to act, the standard set forth in Carcieri v. 

Salazar will be devastating to Tribal sovereignty and economic development. Resolving any ambiguity in the Indian Reorganization Act is vital to protecting Tribal interests and avoiding costly and protracted litigation.

The CHAIRMAN. Thank you very much, Congressman Cole, for 

being here with the Committee today. 

I don’t how much time you have. 

Mr. COLE. I have all the time that you require, Senator. 

The CHAIRMAN. I would like to invite you to come up to the dais, 

so you can hear the remaining testimony today. 

Mr. COLE. Thank you very much. 

The CHAIRMAN. Please do that. 

I would like to continue here with this, and I am delighted to 

have the Congressman passionately tell us about his feelings on 

the Carcieri case. I would like now to invite the second panel to the 

witness table. 

Serving on our second panel is the Honorable Larry Echo Hawk, 

Assistant Secretary of Indian Affairs at the Department of Interior. 

Accompanying Assistant Secretary Echo Hawk are Del Laverdure, 

Principal Deputy Assistant Secretary of Indian Affairs, and Ms. 

Jodi Gillette, the Deputy Assistant Secretary for Policy and Economic Development. 

It is good to have you here, Mr. Echo Hawk. Please proceed with 

your testimony. 

STATEMENT OF HON. LARRY ECHO HAWK, ASSISTANT

SECRETARY, INDIAN AFFAIRS, U.S. DEPARTMENT OF THE

INTERIOR; ACCOMPANIED BY DONALD LAVERDURE,

PRINCIPAL DEPUTY ASSISTANT SECRETARY, INDIAN

AFFAIRS, AND JODI GILLETTE, DEPUTY ASSISTANT

SECRETARY, POLICY AND ECONOMIC DEVELOPMENT 

Mr. ECHO HAWK. Thank you, Chairman Akaka and Vice Chairman Barrasso, Congressman Cole. I am pleased to be with you 

today. 

I would like to thank you, Senator Akaka and Representative 

Cole for introducing legislation addressing the Carcieri decision, 

and for all the efforts you have made to underscore the importance 

of a Carcieri fix to Indian Country. 

Since 2009, this Administration has consistently expressed 

strong support for legislation to address the uncertainty created by 

the decision in Carcieri v. Salazar. Indeed, President Obama included language in his fiscal year 2012 budget request to address 

the Carcieri decision, signaling his strong support for a legislative 

solution. 

The Carcieri decision was inconsistent with the longstanding policy of the United States to assist federally recognized Tribes in reVerDate 0ct 09 2002 09:39 Jun 27, 2012 Jkt 074295 PO 00000 Frm 00010 Fmt 6633 Sfmt 6601 S:\DOCS\74295.TXT JACK
7

storing a Tribal land base that allows Tribal nations to provide for 

the health, welfare and safety of Tribal members. 

It was also inconsistent with Congressional policy, which requires the department to treat all Tribes alike, regardless of their 

date of Federal acknowledgment. 

The Carcieri decision has disrupted the fee-to-trust process by requiring the Secretary to engage in a burdensome legal and factual 

analysis for each Tribe seeking to have the Secretary acquire land 

in trust. The decision also calls into question the Secretary’s authority to approve pending applications, as well as the effect of 

such approval by imposing criteria that had not previously been 

construed or applied. 

The power to acquire lands in trust is an important tool for the 

United States to effectuate its longstanding policy of Tribal self-determination. Congress has worked to foster self-determination for 

all Tribes and did not intend to limit this essential tool to only one 

class of Tribes. 

Trust acquisition of land provides a number of economic development opportunities for Tribes and helps generate revenue for public 

purposes. For example, trust acquisitions provide Tribes the ability 

to enhance housing opportunities for their citizens. This is particularly necessary where many reservation economies require support 

from the Tribal government to bolster local housing markets and 

offset high unemployment rates. 

Trust acquisitions are necessary for Tribes to realize the tremendous energy development capacity that exists on their lands. Trust 

acquisitions allow Tribes to grant certain rights-of-way and enter 

into leases that are necessary for Tribes to negotiate the use and 

sale of their natural resources. 

Uncertainty regarding the trust status of land may create confusion regarding law enforcement services and interfere with the security of Indian communities. Additionally, trust lands provide the 

greatest protection for many communities who rely on subsistence 

hunting and agriculture that are important elements of Tribal culture and ways of life. 

Importantly, in April of this year, the United States GAO stated 

that the uncertainty in accruing land in trust for Tribes as a result 

of the Carcieri decision is a barrier to economic development in Indian Country. When asked to identify the key issue that must be 

first resolved to ease impediments to job growth in Indian Country, 

GAO stated that the uncertainty in taking land into trust has to 

be resolved. 

Moreover, GAO predicted that until the uncertainty created by 

the Carcieri decision is resolved, Indian Tribes would be asking 

Congress for Tribe-specific legislation to take land into trust, rather than submitting fee-to-trust applications to the department. The 

department understands that this prediction is coming true and Indian Tribes are asking their Members of Congress for legislation to 

take land into trust. 

Thus, instead of a uniform fee-to-trust process under the Indian 

Reorganization Act, a variety of Tribe-specific fee-to-trust laws 

could lead to a patchwork of laws that could be difficult for the department to administer. 

8

1See Letter to Senator Byron Dorgan from Secretary Ken Salazar (Oct. 3, 2009); Letter to 

Senator Byron Dorgan and Representative Dale Kildee from Secretary Ken Salazar in strong 

support of S. 1703 and H.R. 3742 (July 30, 2010); Letter to Senator Daniel Akaka from Secretary Ken Salazar in strong support of S. 676, as introduced (May 20, 2011); see also Testimony 

of Donald ‘‘Del’’ Laverdure, Natural Resources Committee, United States House of Representatives (Nov. 4, 2009); Testimony of Donald ‘‘Del’’ Laverdure, Subcommittee on Indian and Alaska 

Native Affairs, Natural Resources Committee, United States House of Representatives (July 12, 

2011). 

In 2009, before the House Natural Resources Committee, the department predicted that the uncertainty spawned by the Carcieri

decision would lead to complex and costly litigation. Unfortunately, 

this prediction has come to pass and the department is engaged in 

litigation regarding how it has interpreted and applied section five 

of the Indian Reorganization Act to particular Tribes for whom it 

has acquired land in trust. 

As a result of this ongoing litigation, I will not be able to answer 

questions from Members of this Committee today regarding how 

the department has and will apply section five to the fee-to-trust 

applications. I can say that the department will continue to work 

with Members of this Committee to enact legislation to address 

this uncertainty. 

We will also continue our work to give effect to the Congressional 

policy of protecting and restoring Tribal homelands on a case-bycase basis. 

This concludes my statement, and I would be happy to answer 

questions. 

[The prepared statement of Mr. Echo Hawk follows:]

PREPARED STATEMENT OF HON. LARRY ECHO HAWK, ASSISTANT SECRETARY, INDIAN

AFFAIRS, U.S. DEPARTMENT OF THE INTERIOR

I. Introduction 

Chairman Akaka, Vice-Chairman Barrasso, and Members of the Committee, my 

name is Larry Echo Hawk and I am the Assistant Secretary—Indian Affairs at the 

Department of the Interior. Accompanying me today are Del Laverdure, the Principal Deputy Assistant Secretary—Indian Affairs, and Jodi Gillette, the Deputy Assistant Secretary—Indian Affairs. The Administration is consistently on record as 

strongly supporting Congress’s effort to address the United States Supreme Court 

(Court) decision in Carcieri v. Salazar, 129 S. Ct. 1058 (2009). 1 Indeed, President 

Obama’s FY 2012 budget proposal included Carcieri fix language signaling his 

strong support for a legislative solution to resolve this issue. 

The Carcieri decision was inconsistent with the longstanding policy and practice 

of the United States under the Indian Reorganization Act of 1934 to assist federally 

recognized Tribes in establishing and protecting a land base sufficient to allow them 

to provide for the health, welfare, and safety of Tribal members, and to treat Tribes 

alike regardless of their date of federal acknowledgment. The Carcieri decision has 

disrupted the fee-to-trust process, by requiring the Secretary to engage in a burdensome legal and factual analysis for each Tribe seeking to have the Secretary acquire 

land in trust. The decision also calls into question the Secretary’s authority to approve pending applications, as well as the effect of such approval, by imposing criteria that had not previously been construed or applied. 

As I stated before, the Department has consistently supported legislation to resolve the uncertainty created by the Carcieri decision. The Department continues 

to believe that legislation is the best means to address the issues arising from the 

Carcieri decision, and to reaffirm the Secretary’s authority to secure Tribal homelands for federally recognized Tribes under the Indian Reorganization Act. A clear 

congressional reaffirmation will prevent costly litigation and lengthy delays for both 

the Department and the Tribes to which the United States owes a trust responsibility. 

In the two years since the Carcieri decision, the Department’s leadership has 

worked with members of the United States House of Representatives, members of 

the United States Senate, their respective staffs, and Tribal leaders from across the 

9

United States to achieve passage of this legislation. During that time, and absent 

congressional action reaffirming the Secretary’s authority under the Indian Reorganization Act, the Department has had to explore administrative options to carry out 

its authority. 

II. Purposes of the Indian Reorganization Act 

In 1887, Congress passed the General Allotment Act with the intent of breaking 

up Tribal reservations by dividing Tribal land into 80- and 160-acre parcels for individual Tribal members. The allotments to individuals were to be held in trust for 

the Indian owners for no more than 25 years, after which the owner would hold fee 

title to the land. Surplus lands, lands taken out of Tribal ownership but not given 

to individual members, were conveyed to non-Indians. Moreover, many of the allotments provided to Indian owners fell out of Indian ownership through tax foreclosures. 

The General Allotment Act resulted in huge losses of Tribally owned lands, and 

is responsible for the current ‘‘checkerboard’’ pattern of ownership on many Indian 

reservations. Approximately 2/3 of Tribal lands were lost as a result of the allotment 

process. The impact of the allotment process was compounded by the fact that many 

Tribes had already faced a steady erosion of their land base during the removal period, prior to the passage of the General Allotment Act. 

The Secretary of the Interior’s Annual Report for fiscal year ending June 30, 1938, 

reported that Indian-owned lands had been diminished from 130 million acres in 

1887, to only 49 million acres by 1933. Much of the remaining Indian-owned land 

was ‘‘waste and desert.’’ According to then-Commissioner of Indian Affairs John Collier in 1934, Tribes lost 80 percent of the value of their land during this period, and 

individual Indians realized a loss of 85 percent of their land value. 

Congress enacted the Indian Reorganization Act in 1934 in light of the devastating effects of prior policies. Congress’s intent in enacting the Indian Reorganization Act was three-fold: to halt the federal policy of Allotment and Assimilation; 

to reverse the negative impact of Allotment policies; and to secure for all Indian 

Tribes a land base on which to engage in economic development and self-determination. 

The first section of the Indian Reorganization Act expressly discontinued the allotment of Indian lands, while the next section preserved the trust status of Indian 

lands. In section 3, Congress authorized the Secretary to restore Tribal ownership 

of the remaining ‘‘surplus’’ lands on Indian reservations. Most importantly, Congress 

authorized the Secretary to secure homelands for Indian Tribes by re-establishing 

Indian reservations under section 5. That section has been called ‘‘the capstone of 

the land-related provisions of the IRA.’’ Cohen’s Handbook of Federal Indian Law 

§ 15.07[1][a] (2005). Thus, Congress recognized that one of the key factors for Tribes 

in developing and maintaining their economic and political strength lay in the protection of each Tribe’s land base. The United States Supreme Court has similarly 

recognized that the Indian Reorganization Act’s ‘‘overriding purpose’’ was ‘‘to establish machinery whereby Indian Tribes would be able to assume a greater degree of 

self-government, both politically and economically.’’ Morton v. Mancari, 417 U.S. 

535, 542 (1974). 

This Administration has sought to advance the goals Congress established eight 

decades ago, through protection and restoration of Tribal homelands. Acquisition of 

land in trust is essential to Tribal self-determination. The current federal policy of 

Tribal self-determination built upon the principles Congress set forth in the Indian 

Reorganization Act and reaffirmed in the Indian Self-Determination and Education 

Assistance Act. 

Even today, most Tribes lack an adequate tax base to generate government revenues, and others have few opportunities for economic development. Trust acquisition 

of land provides a number of economic development opportunities for Tribes and 

helps generate revenues for public purposes. 

For example, trust acquisitions provide Tribes the ability to enhance housing opportunities for their citizens. This is particularly necessary where many reservation 

economies require support from the Tribal government to bolster local housing markets and offset high unemployment rates. Trust acquisitions are necessary for 

Tribes to realize the tremendous energy development capacity that exists on their 

lands. Trust acquisitions allow Tribes to grant certain rights of way and enter into 

leases that are necessary for Tribes to negotiate the use and sale of their natural 

resources. Uncertainty regarding the trust status of land may create confusion regarding law enforcement services and interfere with the security of Indian communities. Additionally, trust lands provide the greatest protections for many communities who rely on subsistence hunting and agriculture that are important elements 

of Tribal culture and ways of life. 

10

2 ‘‘[A] Tribe may have been ‘under Federal jurisdiction’ in 1934 even though the Federal Government did not believe so at the time .. The Department later recognized some of those Tribes 

on grounds that showed that it should have recognized them in 1934 even though it did not. 

And the Department has sometimes considered that circumstance sufficient to show that a Tribe 

was ‘under Federal jurisdiction’ in 1934—even though the Department did not know it at the 

time.’’ Carcieri v. Salazar, 129 S. Ct. 1058, 1069–1070 (2009) (Breyer, J., concurring) (citations 

omitted). 

III. Consequences of the Carcieri Decision 

A. The Carcieri Decision was Contrary to Longstanding Congressional Policy 

In Carcieri, the Supreme Court was faced with the question of whether the Department could acquire land in trust on behalf of the Narragansett Tribe of Rhode 

Island for a housing project under section 5 of the Indian Reorganization Act. The 

Court’s majority held that section 5 permits the Secretary to acquire land in trust 

for federally recognized Tribes that were ‘‘under federal jurisdiction’’ in 1934. It then 

determined that the Secretary was precluded from taking land into trust for the 

Narragansett Tribe, which had stipulated that it was not ‘‘under federal jurisdiction’’ in 1934. 

The decision upset the settled expectations of both the Department and Indian 

country, and led to confusion about the scope of the Secretary’s authority to acquire 

land in trust for federally recognized Tribes—including those Tribes that were federally recognized or restored after the enactment of the Indian Reorganization Act. As 

many Tribal leaders have noted, the Carcieri decision is contrary to existing congressional policy, and has the potential to subject federally recognized Tribes to unequal treatment under federal law. 

In 1994, Congress was concerned about disparate treatment of Indian Tribes and 

passed an amendment of the Indian Reorganization Act to emphasize its existing 

policy, and to ensure that federally recognized Tribes receive equal treatment by the 

federal government. The amendment provided:

(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.

25 U.S.C. § 476(f), (g).

B. The Carcieri Decision has led to a More Burdensome and Uncertain Fee-to-Trust 

Process 

Since the Carcieri decision, the Department must examine whether each Tribe 

seeking to have land acquired in trust under the Indian Reorganization Act was 

‘‘under federal jurisdiction’’ in 1934. This analysis is done on a Tribe-by-Tribe basis; 

it is time-consuming and costly for Tribes, even for those Tribes whose jurisdictional 

status is unquestioned. It requires extensive legal and historical research and analysis and has engendered new litigation about Tribal status and Secretarial authority. Overall, it has made the Department’s consideration of fee-to-trust applications 

more complex and subject to costly litigation. Without enactment of legislation, the 

Department, Indian Tribes, and the courts will continue to face this burdensome 

process. 

In the past year, the Department has been able to complete a positive analysis 

for a handful of Tribes and acquire land in trust on their behalf. That group includes those Tribes Justice Breyer described in his concurring opinion in Carcieri

as examples of Tribes under federal jurisdiction in 1934 that were not federally recognized until later. 2

In the Department’s 2009 testimony before the House Natural Resources Committee, we predicted that the uncertainty spawned by the Carcieri decision would 

lead to complex and costly litigation. Unfortunately, this prediction has come to 

11

3See, Testimony of Anu K. Mittal, Director, Natural Resources and Environment, Observations on Some Unique Factors that May Affect Economic Activity on Tribal Lands, Subcommittee 

on Technology, Information Policy, Intergovernmental Relations and Procurement Reform, Committee on Oversight and Government Reform, U.S. House of Representatives (April 7, 2011) at 

http://frwebgate.access.gpo.gov/cgi-bin/

getdoc.cgi?dbname=112lhouselhearings&docid=f:68049.pdf, 70–71. 

pass, and the Department is engaged in litigation regarding how it has interpreted 

and applied section 5 of the Indian Reorganization Act to particular Tribes for whom 

it has acquired land in trust. As a result of this on-going litigation, I will not be 

able to answer any questions from members of this Committee today regarding how 

the Department has and will apply section 5 to Tribal applications for the acquisition of land into trust. 

I can say that the Department will continue to work with members of this Committee to enact legislation to address this uncertainty, and that we will also continue our work to give effect to the congressional policy of protecting and restoring 

Tribal homelands on a case-by-case basis. 

As we continue that work, Tribes will spend even more time and money to restore 

portions of their homelands. We expect to see even more litigation as a result. 

C. The Carcieri Decision Detrimentally Impacts Economic Development in Indian 

Country 

In April of this year, the United States Government Accountability Office (GAO) 

stated that the uncertainty in accruing land in trust for Tribes, as a result of the 

Carcieri decision, is a barrier to economic development in Indian Country. 3 When 

asked to identify the ‘‘key’’ issue that must be ‘‘resolved first’’ to ease impediments 

to job growth in Indian Country, GAO stated that the uncertainty in taking landin-trust has to be resolved. Moreover, GAO predicted that until the uncertainty created by the Carcieri decision is resolved, Indian Tribes would be asking Congress 

for Tribe-specific legislation to take land in trust, rather than submitting fee-totrust applications to the Department. The Department understands that this prediction is coming true, and Indian Tribes are asking their Members of Congress for 

legislation to take land in trust. Thus, instead of a uniform fee-to-trust process 

under the Indian Reorganization Act, a variety of Tribe-specific fee-to-trust laws 

could lead to a patchwork of laws that could be difficult for the Department to administer. 

IV. Conclusion 

The Carcieri decision, and the Secretary’s authority to acquire lands in trust for 

all Indian Tribes, touches the heart of the federal trust responsibility. Without a 

clear reaffirmation of the secretary’s trust acquisition authority, a number of Tribes 

will be delayed in their efforts to restore their homelands: Lands that will be used 

for cultural purposes, housing, education, health care and economic development. 

As sponsor of the Indian Reorganization Act, then-Congressman Howard, stated: 

‘‘[w]hether or not the original area of the Indian lands was excessive, the land was 

theirs, under titles guaranteed by treaties and law; and when the Government of 

the United States set up a land policy which, in effect, became a forum of legalized 

misappropriations of the Indian estate, the Government became morally responsible 

for the damage that has resulted to the Indians from its faithless guardianship.’’

The power to acquire lands in trust is an important tool for the United States 

to effectuate its longstanding policy of fostering Tribal-self determination. Congress 

has worked to foster self-determination for all Tribes, and did not intend to limit 

this essential tool to only one class of Tribes. A legislative fix would clarify 

Congress’s policy and the Administration’s intended goal of Tribal self-determination and allow all Tribes to avail themselves of the Secretary’s trust acquisition authority. A legislative fix will help the United States meet its obligation as described 

by United States Supreme Court Justice Black’s dissent in Federal Power Commission v. Tuscarora Indian Nation. ‘‘Great nations, like great men, should keep their 

word.’’

This concludes my statement. I would be happy to answer questions.

The CHAIRMAN. Thank you. Thank you very much, Mr. Echo 

Hawk. 

I know some of my colleagues don’t know how long they will be 

able to stay for today’s hearing, so I am going to ask one question 

and then defer to my colleagues to ask theirs, and there will be a 

second round. I know this topic is very important. 

12

Mr. ECHO HAWK. first, I would like to commend you, commend 

you and the department for your efforts in continuing to take land 

into trust for Tribes, even following the Carcieri decision. 

Can you describe, however, the impact the Carcieri decision has 

had on the department’s review process for taking land into trust? 

Mr. ECHO HAWK. Senator Akaka, there has been very significant 

impact on our decision-making. And I would classify this and describe it as burdensome to the department, but also to Tribal governments. 

This requires now for every single application that we receive extensive legal and historical research and analysis, which is, of 

course, time-consuming, expensive and we have learned, unfortunately, that it leads to litigation because of the uncertainties involved. 

And all of this depletes the resources that we have available 

within the Interior Department to serve Indian Country. And so it 

has a very significant affect on our work responsibility. Thus, we 

feel very strongly that we need a clean Carcieri fix. 

The CHAIRMAN. Thank you very much. 

Senator Barrasso, your questions? 

Senator BARRASSO. Thank you, Mr. Chairman. If I could just follow up on the line of questions which you started. 

Because we know, Mr. Echo Hawk, that with the need for jobs, 

infrastructure for communications, housing and so on in Indian 

Country that Tribes do not need more barriers in dealing with all 

of the challenges ahead. You used the word uncertainty. You used 

the words burdensome, expensive, time-consuming. 

I wanted to ask a little bit about something—there was some 

prior testimony we received that this case may actually create difficulties for Tribes in even securing financing for business ventures. 

And I see people in the back waving, nodding up and down. Can 

you tell us a little bit about whether the Tribes have had some 

more difficulty securing Indian loan guarantees which the BIA administers as a result of what has happened with the Carcieri case? 

Mr. ECHO HAWK. Well, Senator Barrasso, when it comes to securing this kind of support for developing economies, this decision has 

created a lot of problems because we are talking about Indian 

Country that in many parts are suffering the effects of serious economic recession. In fact, I heard a Tribal leader not long ago describe that in Indian communities across the Country, we have 

been experiencing deep recession for generations. 

And so as we try to build our way out of that kind of economic 

challenge, to see this kind of decision come along creates great concern across Indian Country because the uncertainties that apply 

make it difficult for investors, developers that would like to come 

into Indian Country; those that finance our economic projects realizing that we have these uncertainties with almost imminent litigation that will ensue, discourages this kind of partnership between 

private industry and Tribal governments. 

So it will affect economic development within Indian Country, 

which affects employment problems when we already have very 

high unemployment. It is a very vexing problem. 

Senator BARRASSO. And along the lines of the uncertainty, if we 

could just switch focus a little bit to something we discussed about 

13

a month ago. Congress, as you know, passed the Tribal Law and 

Order Act to bring more accountability, to improve the justice systems in Indian Country. This was done, in part, by clarifying law 

enforcement and prosecution responsibilities in Indian Country. 

You testified at our Tribal Law and Order Act hearing last 

month that the Carcieri case adds more uncertainty to what is already a complex state of criminal jurisdiction in Indian Country. 

And I wonder if, for the Committee and for the record, you could 

please elaborate on that level of uncertainty and where we need to 

go from here? 

Mr. ECHO HAWK. Senator Barrasso, I do recall that statement at 

my last testimony before this Committee. And I believe I mentioned that criminal jurisdiction, criminal law enforcement is very 

complicated in Indian Country and that this decision adds a layer 

of complexity to what already existed, and has the potential to divest Federal and Tribal authority when it comes to public safety, 

which would mean if that occurs that the States have to step in 

and fill the gap. 

And having served as a Tribal attorney for nine years for the 

largest Tribe in Idaho, I know from first-hand experience that 

States often are, I would put it, maybe disinterested in providing, 

stepping up and providing that kind of service to keep communities 

safe, or just lacking resources to be able to do it. 

So, States will be reticent to fill the gap if Federal and Tribal law 

enforcement authority disappears. And there would be uncertainty 

that applies not only to future prosecutions, the exercise of future 

jurisdiction, but we would also have to look backwards to what has 

already occurred. 

And I am going to sound like a law professor now because these 

are questions of jurisdiction. If a prosecution ensued years ago and 

a conviction was obtained now hears an opportunity afresh for that 

criminal defendant to challenge the conviction, it is what we would 

call post-conviction relief. And with regard to Tribal authority that 

has already taken place in a criminal prosecution, there is a very 

clear pathway under habeas corpus provisions of the Indian Civil 

Rights Act to lead for review in the Federal court. 

And of course, for Federal prosecution, the post-conviction relief 

system is already there as well. And particularly when the Tribal 

Law and Order Act has called for enhanced sentencing provisions, 

there is a greater likelihood that criminal defendants are going to 

be interested in pursuing these kinds of legal arguments. 

And I want to point out that this is not only affecting Indian defendants, but the Federal Government has a very significant role 

in prosecuting non-Indians under 18 U.S.C. 1152, the Indian Country Crimes Act. So there are Indian and non-Indian defendants 

that will be in a position to raise these kinds of arguments. 

And I would have to concede that under 18 U.S.C. 1151 that describes Indian Country, that within reservation boundaries, there 

is language that says notwithstanding the issuance of any fee patent, that there is an argument that this will not create a problem 

within clear reservation boundaries if it is non-trust land. But particularly outside of boundaries of reservations for any Tribe that received, like was initially landless and has been able to get land into 

14

trust, and then that is proclaimed to be a reservation, that all is 

going to be on the table for challenge. 

So, there are very significant issues out there that I am confident 

lawyers are going to zero-in on and we are going to see litigation 

in this area. 

Senator BARRASSO. If I could, just one last question, Mr. Chairman. 

So do you then think that the intent and the purposes of the 

Tribal Law and Order Act are going to be frustrated if there really 

is no Carcieri fix? 

Mr. ECHO HAWK. Absolutely, Senator Barrasso. 

Senator BARRASSO. Thank you, Mr. Chairman. 

The CHAIRMAN. Thank you, Senator Barrasso. 

Mr. Echo Hawk, many view the Carcieri decision as only impacting Indian Country and wonder why they should be concerned with 

laterally correcting the decision since it impacts a small segment 

of the population. My question to you is your view on whether the 

Carcieri decision has impacts that go beyond Indian Country? 

Mr. ECHO HAWK. Senator Akaka, as I have already described in 

my opening statement and in response to questions, there are dire 

consequences for Native people within their reservation communities, but there will be an impact absolutely off-reservation as 

well. Off-reservation communities benefit by Tribal economic development. 

As I travel across Indian Country, I hear that all over where 

when Tribes progress and prosper, then that prosperity flows over 

to outside communities. And so jobs will be affected. The revenuesharing agreements that Tribes craft, their cooperative agreements 

for delivering services will be in jeopardy, and just the better relationships that have been built up. 

When Tribes become economic forces, they form partnerships in 

their local communities. And I think that will be a missed opportunity to see continued growth in those kinds of relationships. Not 

to mention that if we don’t fix Carcieri, public safety will be an 

issue and that, of course, spills over to outside communities. 

The CHAIRMAN. Thank you very much. 

I would like to, as Chairman, ask Congressman Cole whether you 

have any questions you would like to ask Mr. Echo Hawk. 

Mr. COLE. I actually do have one. 

Mr. Secretary, good to see you again. You have an enormous 

range of problems and issues to deal with across an exceedingly 

vast swath of land, lots of different conditions. I am just curious 

in the range of things, challenges that you face, where would you 

place this? How serious is this in terms of complicating what is already a difficult job for you? And rank it, if you will, in terms of 

the major problems that Indian Country faces. 

Mr. ECHO HAWK. Congressman Cole, this is the top priority right 

here that we are talking about. It goes right to the very heart of 

the trust responsibility of the United States. And if you look back 

historically to why we even have an Indian Reorganization Act is 

that prior to 1887, Tribes lost over 200 million acres of land. And 

then in 1887, with the passage of the General Allotment Act, between 1887 and 1934, we lost another 90 million acres of land. 

15

And at that point, Congress stepped back and looked at that situation and it was a dishonorable chapter in American history when 

we allowed that to occur. And so Congress wanted to reverse the 

process of diminishing the authority and the land base of Tribes. 

They did that through the Indian Reorganization Act. It was about 

restoring the integrity of Tribal government and restoring land. 

And Republican and Democratic Administrations since 1977 have 

been on the course to rectify those wrongs in the past, and we have 

made significant progress. To see now a decision of the U.S. Supreme Court come to threaten the integrity of that trust relationship has got to be the number one priority of this Administration, 

to see that we correct this mistake and that we make sure that all 

Tribes in Indian Country are treated alike. 

The CHAIRMAN. Thank you very much, Congressman Cole. 

In closing, I would like to ask the deputies if they have anything 

to add to the record regarding impact of Carcieri. 

Mr. Laverdure? 

Mr. LAVERDURE. Thank you, Chairman Akaka and Vice Chairman Barrasso, Congressman Cole. I appreciate the opportunity. 

I think the Assistant Secretary has largely stated the case. The 

only minor information that I would add to all this, not only would 

it be in the top priority, but really two issues related to it. 

Number one is the ripple effect, just like the title said, of what 

Carcieri has done. I just returned from a financial conference. I 

was down talking to Tribes about energy development down in the 

Southwest, across the plains, and consistently they said they are 

impacted and so are their partners because of the uncertainty and 

now the increase in risk in order to put the capital forward, the 

loans forward, the types of things that people have asked about on 

here. And because of the increased uncertainty and the increased 

risk, there are numerous projects that are not going to be going forward. And that is the type, at least under one sub-issue, the 

Carcieri effect has. 

Internally to the department, what we have is many, many people’s time and attention focused on this investigation of history and 

the analysis around each of the Tribes regardless of whether they 

were in the IRA or not. And so we get regional solicitors who are 

spending vast amounts of their time on this research and focus on 

Tribes putting in all the time and resources to go back and dig up 

all these historical documents in the archives to go and prove that 

they were under Federal jurisdiction in 1934. And that has had, on 

the regional level, eaten up much human resources, but also, then, 

it comes to the national level to see whether the Central Office concurs in that, and so you have another review on top of that. 

So you see that the timeline and the spectrum of these decisions 

going out further and further and further and then even when 

those are decided after going through the vast histories and details 

of each Tribal nation, and they all are unique, on top of that, and 

then you end up in litigation on top of it. 

So you then double the time that it took to begin with, whereas 

if we had the questions answered to decrease uncertainty, decrease 

risk, we could make those decisions much sooner than later. 

The CHAIRMAN. Thank you. 

Ms. Gillette? 

16

Ms. GILLETTE. Thank you, Mr. Chairman. 

And I just want to reiterate what Assistant Secretary Echo 

Hawk expressed and Mr. Laverdure, that the Tribal nations are 

very, very impacted by the Carcieri decision and the ability for the 

Department of the Interior to serve in its role, serve as an entity 

that can advance the desire for Tribes to grow and to be a nation 

that is prosperous, healthy, safe, all of those things, those are all 

based upon a couple of things. And one of those critical components 

is having the land base to do so. 

And we support Tribal sovereignty. We support the restoration of 

whatever it takes to make those visions a reality. And I think that 

the Tribes that I have spoken to and heard from, the impacts are 

not just about today and it is not all about legal costs. It is not all 

about what is happening. It is about the future, and it is about 

what their vision is for their children and their grandchildren. 

And these current administrative burdens that we have are impacting not just those grandchildren and that future, but they are 

also eating up resources that we need to do just regular daily business. The effects are hard to measure, but we feel them every day. 

And I think that we feel them at the Department of the Interior, 

but by all means, we just have a very small glimpse of what Tribes 

themselves are feeling and the state of uncertainty. 

The CHAIRMAN. Thank you very much, Mr. Echo Hawk. In case 

you have any last minute comments to make, you may do it. 

Mr. ECHO HAWK. Thank you, Senator Akaka. I just wanted to 

stress that there is a very broad array of impacts. Considering I 

did take notice of the last 541 applications that we approved, that 

it broke down into 89 that affected housing; 151 for agriculture; 47 

for economic development projects; 211 for Tribal infrastructure. In 

that category, this would be things like Tribal offices, cemeteries, 

land consolidation, recreation, habitat preservation, events center, 

health care facilities, child care facilities, education facilities, and 

of course, law enforcement facilities. 

And how many gaming out of 541? Three. It is enormous impact 

on the things that really make a difference in the quality of life for 

Native people. And not to minimize the importance of gaming, but 

this is not about gaming. 

Thank you very much, Senator. 

The CHAIRMAN. Thank you very much, Mr. Echo Hawk. Before 

you go, Mr. Echo Hawk, I wanted to thank you for attending the 

Cry for the Gods performance last week. It meant a lot to me that 

you and your wife would take the time to learn about Hawaii’s 

proud history. And so I would like to tell you thank you again, and 

wish you well. Thank you. 

Now, I would like to invite the third panel to the witness table. 

Serving on our third panel is Mr. Richard Guest, Staff Attorney 

for the Native American Rights Fund; Ms. Colette Routel, Assistant 

Professor of Law at the William Mitchell College in St. Paul, Minnesota; Mr. William Lomax, President of the Native American Finance Officers Association; and Mr. Carl Artman, Profess or Practice and Director of the Economic Development in Indian Country 

Program at the Arizona State University School of Law. 

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

17

STATEMENT OF RICHARD GUEST, STAFF ATTORNEY, NATIVE 

AMERICAN RIGHTS FUND 

Mr. GUEST. Thank you, Chairman Akaka, Members of the Committee, Congressman Cole. On behalf of the Native American 

Rights Fund, or NARF, as we call ourselves, I am honored to be 

here today to provide testimony to this Committee regarding the 

Carcieri crisis, a judicially created crisis precipitated by the U.S. 

Supreme Court’s 2009 decision in Carcieri v. Salazar. 

For the record, I have submitted written testimony which includes a detailed summary of the litigation pending in the courts 

and at the administrative level in the wake of the Carcieri decision. 

In my oral testimony here today, I want to simply make one 

point. The Supreme Court’s decision in Carcieri requires a prompt 

and clear response from Congress to stop the harm being done to 

Indian Tribes who are simply pursuing their rights to self-preservation, their right to be self-governing, their right to be economically self-sufficient. 

To be clear, a clean Carcieri fix does not advance any issue or 

cause for Indian Country. A clean Carcieri fix such as S. 676 simply restores Indian Tribes to the status quo, to the status quo of 

75 years of practice by the Secretary of the Interior to acquire 

lands in trust for all Federally recognized Indian Tribes regardless 

of the date of their Federal recognition. 

Mr. Chairman, you have heard here today and will continue to 

hear about the ripple effect of the Carcieri decision on jobs, economic development and public safety in Indian Country. Without 

a clean Carcieri fix by Congress, litigation, much of it frivolous litigation, will continue over the meaning of the phrase now under 

Federal jurisdiction.’’

In early 2004, NARF flagged Carcieri as a potential threat to 

Tribal sovereignty. Early on, we understood the potential ripple effects of an adverse decision in Carcieri. The acquisition of trust 

lands has been the lifeblood for many Indian Tribes who have 

made tremendous progress after decades of assimilation and termination policies that threatened their very existence. 

In Carcieri, tremendous resources were committed to defending 

the authority of the Secretary to act for the benefit of all Tribes. 

Now, those limited resources of Indian Country are having to be 

spent to undo the harm and prevent further harm from being done 

as a result of Carcieri. 

At present, all hands are on deck in response to Patchak v. 

Salazar, a case decided by the U.S. Court of Appeals for the D.C. 

Circuit, which is now pending before the U.S. Supreme Court on 

two petitions for writ of certiorari. 

In short, the D.C. Circuit reversed the Federal District Court and 

held that Mr. Patchak, an individual non-Indian landowner, is 

within the zone of interest protected by the IRA and has standing 

to bring his Carcieri challenge. Then the D.C. Circuit went further 

and held that since Mr. Patchak’s Carcieri challenge is a claim 

brought pursuant to the APA, or Administrative Procedures Act, 

and is not a case asserting a claim of title under the Quite Title 

Act, it is not barred by the Indian land exception to the wavier of 

immunity under the Quiet Title Act. 

18

The D.C. Circuit did this in spite of the fact that its holding is 

in direct conflict with decisions of four other Circuits. All have held 

that the Quite Title Act bars suits seeking to divest the United 

States of its title to land held for the benefit of an Indian Tribe 

whether or not a plaintiff, a plaintiff like Mr. Patchak, asserts a 

claim to title in land. 

Now, NCAI has filed an amicus brief in support of the petitions, 

informing the court ‘‘the vital role that trust land acquisition have 

played and continue to play in the building of stable Tribal governments and the development of strong Tribal economies.’’

But as important as the NCAI brief is, a second amicus brief 

filed by Wayland Township, Allegan County, Wayland Union 

Schools and a number of other local governments and business associations located near the Tribe’s trust land, urges the court to 

‘‘grant the petitions for certiorari to resolve the debilitating uncertainty and economic instability created by the Court of Appeals’ decision, which threatens to stifle economic development in the State 

and region that has endured a disproportionate amount of economic 

suffering in recent years.’’

In closing, I would like to quote from their brief a short section 

which succinctly captures the potential ripple effects of Carcieri: 

‘‘Michigan’s economic troubles in recent years have been the subject 

of national headlines, described as ground zero in the national economic downturn. Although local governments in the region have 

worked to stimulate job growth and attract revenue, recovery has 

been stagnant. In recent month, however, southwest Michigan’s 

economy has received a much-needed boost. On February 10th, 

2011, the band opened a $165 million gaming facility known as the 

Gun Lake Casino. The band’s economic development efforts on the 

trust lands have directly created 900 new jobs, infused area hotels, 

restaurants and other service providers with new business. Additionally, the band has entered into a revenue sharing agreement 

with regional governments that will provide essential resources for 

schools, roads, sewer and water systems, public safety programs 

and other critical needs.’’

Clearly, Mr. Chairman, Carcieri is creating a crisis in southwest 

Michigan and many other places throughout Indian Country. Congress should act, should act quickly and decisively to ensure that 

the Secretary has authority to take land in trust for all federallyrecognized Indian Tribes with no exceptions. 

Thank you. 

[The prepared statement of Mr. Guest follows:]

PREPARED STATEMENT OF RICHARD GUEST, STAFF ATTORNEY, NATIVE AMERICAN

RIGHTS FUND

I. Introduction 

Chairman Akaka and Distinguished Members of the Committee: 

My name is Richard Guest. I am a Senior Staff Attorney with the Native American Rights Fund (NARF), a national, non-profit legal organization dedicated to securing justice on behalf of Native American tribes, organizations and individuals. 

Since 1970, NARF has undertaken the most important and pressing issues facing 

Native Americans in courtrooms across the country, as well as here within the halls 

of Congress. 

I am honored to have been invited here to provide testimony to the Senate Committee on Indian Affairs regarding the Carcieri crisis—a judicially-created crisis 

which requires a prompt and clear legislative response to begin repairing the damVerDate 0ct 09 2002 09:39 Jun 27, 2012 Jkt 074295 PO 00000 Frm 00022 Fmt 6633 Sfmt 6621 S:\DOCS\74295.TXT JACK
19

age throughout Indian country wrought by the 2008 ruling of the United States Supreme Court in Carcieri v. Salazar.

II. As Carcieri Made its Way Through the Federal Courts, All of Indian 

Country Understood the Potential ‘‘Ripple Effects’’ of an Adverse

Decision for Tribal Self-Determination and Economic Self-Sufficiency 

As part of my docket here in NARF’s Washington, D.C. office, I oversee the work 

of the Tribal Supreme Court Project (‘‘Project’’), a joint project with the National 

Congress of American Indians (NCAI), which was formed in 2001 in response to a 

series of devastating decisions by the U.S. Supreme Court negatively affecting the 

rights of all Indian tribes. The Project quickly recognized the Supreme Court as a 

highly specialized institution, with a unique set of procedures that include complete 

discretion on whether it will hear a case or not, and with a much keener focus on 

policy considerations than other federal courts. Thus, the Project established a large 

network of attorneys who specialize in practice before the Supreme Court, as well 

as attorneys who specialize in federal Indian law. The Project is based on the principle that a coordinated and structured approach to Supreme Court advocacy is necessary to protect Tribal Sovereignty. As evidenced by the Supreme Court’s decision 

in Carcieri, the results have been mixed. 

The Tribal Supreme Court Project routinely monitors Indian law cases in the 

lower federal and state courts to flag certain cases impacting tribal sovereignty that 

have the potential to reach the Supreme Court. On occasion, the Project prepares 

amicus curiae briefs—or friend of the Court briefs—to assist the judges reviewing 

these cases to: (1) appreciate the legal underpinnings defining the relationships between Indian tribes, the United States and the individual States; (2) better understand the history of conflicting federal Indian policies and their impacts upon Indian 

tribes, Indian people and Indian lands; and (3) thoroughly consider the foundational 

principles and development of federal Indian law over the past two-hundred years. 

In early 2004, the Project flagged Carcieri as a potential threat to tribal sovereignty. A group of ten state attorney generals had submitted an amicus brief in 

support of the State of Rhode Island before a three-judge panel of the U.S. Court 

of Appeals for the First Circuit. Citing ‘‘profound and permanent impacts on States, 

local communities and the public,’’ the states argued for a narrow interpretation of 

the Indian Reorganization Act (IRA) to limit the authority of the Secretary of the 

Interior to take land in trust for Indian tribes. See Brief for the Amici Curiae States 

Alabama, Alaska, Connecticut, Idaho, Kansas, Missouri, North Dakota, South Dakota, Utah and Vermont available at http://www.narf.org/sct/carcieri/1stcircuit/

statelamicuslbrief.pdf.

All of Indian country understood the potential ‘‘ripple-effect’’ of an adverse decision by the federal courts. For over 70 years, the Secretary had exercised authority 

under the IRA to acquire lands in trust for all federallyrecognized Indian tribes. The 

acquisition of trust lands has been the lifeblood for many Indian tribes to foster 

their political self-governance and economic self-sufficiency. Clearly, a decision by 

the federal courts in favor of the states would undo the tremendous progress made 

by all Indian tribes after decades of assimilation and termination policies threatened 

their very existence. Shortly thereafter, NCAI and over forty Indian tribes and tribal organizations pooled their resources and submitted an amicus brief in support of 

the United States, responding:

The State of Rhode Island challenges the Secretary’s interpretation and application of the Indian Reorganization Act of 1934 (IRA), 25 U.S.C. § § 461–479, and, 

in particular, the Secretary’s exercise of her authority to acquire lands in trust 

for Indian Tribes under Section 5 of the IRA, id. § 465. The decades preceding 

passage of the IRA were marked by a policy of assimilation designed to break 

individual Indians loose from their tribal bonds. In 1871, Congress officially suspended treaty-making with Indian Tribes. See 25 U.S.C. § 71. By that time, the 

United States had entered into approximately 400 ratified treaties with Indian 

Tribes, setting aside reservations for Indians’ exclusive use and promising protection in exchange for the cession of vast tracts of Indian lands. See Charles 

J. Kappler, Indian Affairs: Laws and Treaties (1904); Vine Deloria, Jr. and Raymond J. Demallie, Documents of American Indian Diplomacy; Treaties, Agreements and Conventions, 1775–1979 (1999).

But despite assurances that Tribes would receive ‘‘permanent, self-governing 

reservations, along with federal goods and services,’’ government administrators 

‘‘tried to substitute federal power for the Indians’ own institutions by imposing 

changes in every aspect of native life.’’ S. Rep. No. 101–216 at 3 (1989). Policymakers sought to eradicate native religions, indigenous languages, and comVerDate 0ct 09 2002 09:39 Jun 27, 2012 Jkt 074295 PO 00000 Frm 00023 Fmt 6633 Sfmt 6621 S:\DOCS\74295.TXT JACK
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munal ownership of property to shift power from tribal leaders to government 

agents. See generally Francis Paul Prucha, The Great Father 609–916 (1984).

Critical to this broad assimilationist campaign was the General Allotment Act 

of 1887, 24 Stat. 388, known as the ‘‘Dawes Act,’’ and the many specific tribal 

allotment acts of this era, which authorized the division of reservation lands 

into individual Indian allotments and required the sale of any remaining ‘‘surplus’’ lands. Although the purported intent of those acts was to improve the economic conditions of Indians, the primary beneficiaries were non-Indian settlers 

and land speculators, who quickly acquired large portions of Indian lands at 

prices well below market value. In less than half a century, the amount of land 

in Indian hands shrunk from 138 million acres to 48 million. See Brendale v. 

Confederated Tribes and Bands of the Yakima Indian Nation, 492 U.S. 408, 436 

n.1 (1989) (opinion of Stevens, J.). The loss of these lands was catastrophic, resulting in the precipitous decline of the economic, cultural, social and physical 

health of the Tribes and their members. See Charles F. Wilkinson, American 

Indians, Time and the Law, 19–21 (1987); L. Meriam, Institute for Government 

Research, The Problem of Indian Administration 40–41 (1928). see also Felix S. 

Cohen, Handbook of Federal Indian Law 26–27 (1942 ed.).

The Narragansett Indian Tribe (‘‘Narragansett Tribe’’) itself was the victim of 

such assimilationist policies. Throughout the 1800s, Rhode Island sought to ‘‘extinguish [the Narragansetts’] tribal identity.’’ Narragansett Indian Tribe v. 

NIGC, 158 F.3d 1335, 1336 (D.C. Cir. 1998). The State’s campaign culminated 

in 1880 with the Tribe’s agreement ‘‘to sell (for $5,000) all but two acres of its 

reservation.’’ Id. (citing William G. McLoughlin, Rhode Island 221 (1978)).

The IRA reflected a shift away from these devastating policies. Congress sought 

to ‘‘establish machinery whereby Indian Tribes would be able to assume a greater degree of selfgovernment, both politically and economically,’’ Morton v. 

Mancari, 417 U.S. 535, 542 (1974), thereby restoring stability to Indian communities and promoting Indian economic development, see Iowa Mutual Ins. Co. v. 

LaPlante, 480 U.S. 9, 14 n.5 (1987); Mescalero Apache Tribe v. Jones, 411 U.S. 

145, 151–52 (1973). Tribes were encouraged to ‘‘re-organize’’ and incorporate 

themselves as chartered membership corporations with tribal constitutions and 

by-laws, which would in turn render them eligible for economic-development 

loans from a revolving credit fund, as well as other federal assistance. See 25 

U.S.C. § § 469–470, 476–478. More than 180 Tribes adopted and ratified constitutions pursuant to the IRA, returning control over some Indian resources to 

the Tribes.

Critically for present purposes, Congress recognized that tribal self-determination and economic self-sufficiency could not be achieved without adequate lands. 

The IRA immediately stemmed the loss of Indian lands by prohibiting further 

allotment, id. § 461, and by extending indefinitely all restrictions on alienation 

of Indian lands, id. § 462. ‘‘Surplus’’ lands that the Government had opened for 

sale, but had not yet sold, were restored to tribal ownership. Id. § 463. And, 

in the provision at issue in this case, the Secretary was given authority to acquire land in trust for Tribes. Id. § 465. Once acquired, the land could be added 

to an existing reservation or proclaimed as a new reservation. Id. § 467. In less 

than a decade, Indian land holdings increased by nearly three million acres. See

Felix S. Cohen, supra, at 86. Over the last 70 years virtually all federally recognized Indian Tribes have had land taken into trust, much of it—thousands of 

parcels covering millions of acres—pursuant to § 465.

Brief for Amici Curiae National Congress of American Indians, Individual Indian 

Tribes and Tribal Organizations available at http://www.narf.org/sct/carcieri/

1stcircuit/ncai-tribes-amicusbrief.pdf.

Historically, Indian country has continuously fought off efforts from various quarters who attempted to make distinctions among federally recognized Indian tribes. 

Some sought to classify tribes as treaty-versus nontreaty (e.g. executive order 

tribes), or historical versus non-historical (e.g. post-1934 administratively recognized 

tribes) for the purpose of limiting their rights and benefits. But Congress expressed 

hostility towards such efforts. For example, in 1983 Congress enacted the Indian 

Land Consolidation Act (ILCA), 25 U.S.C. § 2201 et seq., which clarified that the 

Secretary has authority to take lands in trust under § 465 for ‘‘all tribes’’ without 

mention of any temporal limitation. As noted within the legislative history, Congress used broad language in ILCA to ensure § 465 ‘‘would automatically be applicable to any tribe, reservation or area excluded from such Act.’’ See H.R. Rep. No. 

97–908, at 7 (1982). 

21

Under the states’ view as argued in Carcieri, the IRA and ILCA made arbitrary 

distinctions among Indian tribes, effectively creating ‘‘classes’’ of tribes, those who 

benefit from the IRA and ILCA versus those who do not. However, in 1994, Congress amended the IRA with provisions which were precisely intended to eliminate 

any such distinctions. 25 U.S.C. § 476(f) provides that federal departments and 

agencies ‘‘shall not promulgate any regulation or make any decision or determination pursuant to the [IRA], 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.’’

Ultimately, the United States and the Tribes were successful before the First Circuit in defending the Secretary’s authority to take land in trust for all Indian tribes:

We hold that the language of 25 U.S.C. § 479 does not plainly refer to the 1934 

enactment date of the IRA. We find that the text is sufficiently ambiguous in 

its use of the term ‘‘now’’ that the Secretary has, under the Chevron doctrine, 

authority to construe the Act. We reject the State’s claim that we do not owe 

deference to the Secretary’s interpretation because he has inconsistently interpreted or applied section 479. The State’s evidence of inconsistency is mixed and 

is not persuasive. The Secretary’s position has not been inconsistent, much less 

arbitrary. The Secretary’s interpretation is rational and not inconsistent with 

the statutory language or legislative history, and must be honored.

Carcier v. Kempthorne, 497 F.3d 15 (1st Cir. 2007—copy available at http://

www.narf.org/sct/carcieri/1stcircuit/en%20lbanclopinion.pdf).

On review, the U.S. Supreme Court reversed. Writing for the majority, Justice 

Thomas applied the ‘‘plain language’’ doctrine to determine the meaning of the word 

‘‘now.’’ Beginning with the ordinary meaning or the word as defined by Webster’s 

New International Dictionary 1671 (2d ed. 1934), followed by the natural reading 

of the word ‘‘now’’ within the context of the IRA, the Court held that the phrase 

‘‘now under Federal jurisdiction’’ is unambiguous and ‘‘refers to those tribes that 

were under the federal jurisdiction of the United States when the IRA was enacted 

in 1934.’’ Unfortunately, although the Court determined the meaning of the word 

‘‘now’’ to mean the date of enactment (or June 18, 1934), the Court failed to provide 

any meaningful guidance when interpreting the remainder of the phrase ‘‘under 

Federal jurisdiction.’’

III. The United States’ Ability to Take Land into Trust is Central to

Restoring and Protecting Tribal Homelands and Critical to Tribal

Economic Development that Benefits Both Tribes and the

Surrounding Non-Indian Community 

The Supreme Court’s decision in Carcieri and its lack of guidance has opened the 

floodgates to frivolous litigation challenging the authority of the Secretary to take 

land in trust for a significant number of Indian tribes. For over 70 years the Department of the Interior applied an interpretation that ‘‘now’’ means at the time of application and has formed entire Indian reservations and authorized numerous tribal 

constitutions and business organizations under the IRA. Now, there are serious 

questions being raised about the effect on long settled actions, as well as on future 

decisions. 

Attached to this written testimony is a detailed memorandum summarizing cases 

which raise a Carcieri claim, including challenges to trust lands already acquired 

by the Secretary, as well as pending applications for acquisitions in trust where (1) 

the Secretary has determined the tribe to have been ‘‘under Federal jurisdiction’’ in 

1934, or (2) the tribe was on the 1947 Haas List as having a recognized IRA constitution. In some cases, opponents are challenging the very nature of tribal existence, characterizing certain Indian tribes as a ‘‘created tribe’’ versus ‘‘historical 

tribe,’’ or a ‘‘post-1934 IRA non-tribal community governments.’’

If the decision is not reversed by Congress, Carcieri will have significant longterm consequences for the United States, tribal governments, state and local governments, local communities and businesses. The United States’ ability to take land in 

trust for the benefit of Indian tribes is critical to tribal self-governance and economic 

self-sufficiency. Trust acquisition is not only the central means of restoring and protecting tribal homelands, but is critical to tribal economic development that benefits 

tribes and their neighboring communities. 

A prime example is Patchak v. Salazar, a case decided by the U.S. Court of Appeals for the D.C. Circuit which is now pending before the Supreme Court on two 

petitions for writ of certiorari. In short, the D.C. Circuit held that: (1) Mr. Patchak, 

an individual non-Indian landowner, is within the ‘‘zone of interests’’ protected by 

the Indian Reorganization Act and thus has standing to bring a Carcieri challenge 

22

to a land-in-trust acquisition; and (2) Mr. Patchak’s Carcieri challenge is a claim 

brought pursuant to the Administrative Procedures Act (APA), not a case asserting 

a claim to title under the Quiet Title Act (QTA), and is therefore not barred by the 

Indian lands exception to the waiver of immunity under the QTA. The D.C. Circuit 

acknowledged that its holding on the QTA issue is in conflict with the Ninth, Tenth 

and Eleventh Circuits which have all held that the QTA bars all ‘‘suits ‘seeking to 

divest the United States of its title to land held for the benefit of an Indian tribe,’ 

whether or not the plaintiff asserts any claim to title in the land.’’ In its petition, 

the United States framed two questions presented:

1. Whether 5 U.S.C. 702 [of the APA] waives the sovereign immunity of the 

United States from a suit challenging its title to lands that it holds in trust for 

an Indian tribe.

2. Whether a private individual who alleges injuries resulting from the operation of a gaming facility on Indian trust land has prudential standing to challenge the decision of the Secretary of the Interior to take title to that land in 

trust, on the ground that the decision was not authorized by the Indian Reorganization Act, ch. 576, 48 Stat. 984.

In its petition, the Tribe framed two questions presented:

1. Whether the Quiet Title Act and its reservation of the United States’ sovereign immunity in suits involving ‘‘trust or restricted Indian lands’’ apply to 

all suits concerning land in which the United States ‘‘claims an interest,’’ 28 

U.S.C. § 2409a(a), as the Seventh, Ninth, Tenth, and Eleventh Circuits have 

held, or whether they apply only when the plaintiff claims title to the land, as 

the D.C. Circuit held.

2. Whether prudential standing to sue under federal law can be based on either 

(i) the plaintiff’s ability to ‘‘police’’ an agency’s compliance with the law, as held 

by the D.C. Circuit but rejected by the Fifth, Sixth, Seventh, and Eighth Circuits, or (ii) interests protected by a different federal statute than the one on 

which suit is based, as held by the D.C. Circuit but rejected by the Federal Circuit.

Copies of the petitions are available at http://www.narf.org/sct/

salazarvpatchak/petitionlforlcert.pdf and http://www.narf.org/sct/match-e-benash-she-wishvpatchak/match-ebe- nashlpetitionlforlcert.pdf.

The National Congress of American Indians (NCAI) has filed an amicus brief in 

support of the petitions, informing the Court that it ‘‘is in the unique position to 

more fully explain... the vital role that trust land acquisitions have played, and 

continue to play, in the building of stable tribal governments and the development 

of strong tribal economies.’’ (Copy available at http://www.narf.org/sct/

salazarvpatchak/ncailamicus.pdf). The NCAI amicus brief goes on to explain:

The Federal Government’s trust-acquisition authority continues to serve as ‘‘the 

primary means to help restore and protect homelands of the nation’s federally 

recognized tribes,’’ with ‘‘[t]he vast majority of land-into-trust applications’’ intended for ‘‘purposes such as providing housing, health care and education for 

tribal members and for supporting agricultural, energy and non-gaming economic development.’’ News Release, U.S. Dep’t of the Interior, Salazar Policy on 

Land-into-Trust Sees Restoration of Tribal Lands as Key to Interior Strategy 

for Empowering Indian Tribes: Majority of Non-Gaming Trust Applications are 

Vital to Building Tribal Self-Determination Through Self- Sufficiency (Jul. 1, 

2010), available at http://www.bia.gov/idc/groups/public/documents/text/

idc009902.pdf. Trust acquisitions thus serve to promote investment in tribal 

lands and infrastructure. Trust land accordingly plays a critical role in tribal 

economic development, which, as recognized by the U.S. Government Accountability Office (GAO) in recent Congressional testimony, is correspondingly vital 

to improving the socioeconomic conditions of Indian tribes and their members. 

U.S. Gov’t Accountability Office, GAO–11–543T, Indian Issues: Observations on 

Some Unique Factors that May Affect Economic Activity on Tribal Lands: Testimony Before the Subcomm. on Technology, Information Policy, Intergovernmental Relations and Procurement Reform, Committee on Oversight and Government Reform, House of Representatives 1, 5–7 (Apr. 7, 2011) (statement of Anu 

K. Mittal, Director, Natural Resources and Environment).

This correlation between investment on tribal land and improved socioeconomic 

conditions is well documented. Indeed, as tribes in the 1990’s began to ‘‘invest[ ] 

heavily’’ in such things as police departments, state-of-the-art health clinics, water 

treatment plants, and other areas supporting tribal selfgovernance, gaming and 

23

non-gaming tribes alike made ‘‘striking’’ socioeconomic gains. Jonathan B. Taylor & 

Joseph P. Kalt, American Indians on Reservations: A Databook of Socioeconomic 

Change Between the 1990 and 2000 Censuses vii, ix–xi (The Harvard Project on Economic Development, Jan. 2005). These gains notwithstanding, however, tribes remain among the most economically distressed groups in the United States, with the 

U.S. Census Bureau reporting in 2008 a poverty rate of 27 percent among American 

Indians and Alaska Natives, compared with 15 percent among the population as a 

whole. U.S. GAO, GAO–11–543T, supra, at 1. 

Further socioeconomic improvement in Indian country thus depends upon continued tribal economic development, in which the trust-acquisition process plays a vital 

role. See generally Julian Schriebman, Developments in Policy: Federal Indian Law,

14 Yale L. & Pol’y Rev. 353, 384 (1996) (‘‘Trust land can provide exactly the sort 

of development-friendly environment needed for a tribe to pursue economic development efforts.’’). The Department of the Interior has accordingly asserted a strong 

commitment to ‘‘fulfill[ing] [its] trust responsibilities,’’ which it recognizes are critical in ‘‘empower[ing] tribal governments to help build safer, stronger and more 

prosperous tribal communities.’’ 3 Press Release, U.S. Dep’t of the Interior, 3 In 

total, more than nine million acres of tribal land have been reacquired and taken 

into trust following the Federal Government’s removal of more than 90 million acres 

of tribal land during the allotment period from 1887 to 1934 and the Termination 

Era of the 1950’s and 60’s. News Release, Salazar Policy, supra. Secretary Salazar 

Welcomes American Indian Leaders to Second White House Tribal Nations Conference (Dec. 16, 2010), available at http://www.doi.gov/news/pressreleases/Secretary-Salazar-Welcomes-American-Indian-Leaders-to-Second-White-House-TribalNations-Conference.cfm. These trust land acquisitions go hand-in-hand with economic development, since ‘‘[h]aving a land base is essential for many tribal economic 

activities.’’ U.S. GAO, GAO–11–543T, supra, at 3. 

A second amicus brief was also filed by a number of local governments and business associations located near the Tribe’s trust lands who have been positively affected by the Tribe’s economic development activities. The Wayland Township, et al., brief urges the ‘‘Court to grant the petitions for certiorari to resolve the debilitating 

uncertainty and economic instability created by the court of appeals decision, which 

threatens to stifle economic development in a State and region that has endured a 

disproportionate amount of economic suffering in recent years.’’ (Copy available at 

http://www.narf.org/sct/salazarvpatchak/waylandltownshipletlallam icus.pdf. The Wayland Township, et al., amicus brief goes on to explain:

Michigan’s economic troubles in recent years have been the subject of national 

headlines. Faced with skyrocketing unemployment and a decimated automotive 

industry, Michigan has been described as ‘‘ground zero in the national economic 

downturn.’’ Southwest Michigan has not escaped these economic hardships. Although local governments in the region have worked to stimulate job growth 

and attract revenue, recovery has been stagnant.

In recent months, however, southwest Michigan’s economy has received a muchneeded boost. On February 10, 2011, the Band opened a $165 million gaming 

facility known as Gun Lake Casino. The facility occupies part of a 147-acre parcel held by the United States in trust for the Band pursuant to the Indian Reorganization Act, 25 U.S.C. § 465. The Band’s economic development efforts on 

the trust lands have directly created 900 new jobs and infused area hotels, restaurants, and other service providers with new business. Additionally, the Band 

has entered into a revenue sharing agreement with regional governments that 

will provide essential resources for schools, roads, sewer and water systems, 

public safety programs, and other critical needs. The Band’s economic development efforts have also improved morale and promoted intergovernmental service-sharing agreements, which are critical to the region’s recovery.

Now, a decision of the Court of Appeals for the District of Columbia Circuit 

threatens to unravel the tremendous economic benefits generated by the Band’s 

development of the trust lands. In a decision that openly conflicts with decisions 

of other federal courts of appeals, the D.C. Circuit held that an individual, Respondent David Patchak, has prudential standing to challenge the Secretary of 

the Interior’s authority to place the land into trust, and that the United States 

is not immune from Patchak’s suit under the Quiet Title Act, 28 U.S.C. §

2409a. Patchak’s suit seeking to divest the United States of title to the trust 

lands has created uncertainty and economic instability for local governments 

and businesses in Southwest Michigan, making it difficult to plan and execute 

strategies for economic development and business growth.

The amici curiae have relied on the Band’s economic development efforts, and 

the trust status of the lands on which the Band has developed its gaming facilVerDate 0ct 09 2002 09:39 Jun 27, 2012 Jkt 074295 PO 00000 Frm 00027 Fmt 6633 Sfmt 6621 S:\DOCS\74295.TXT JACK
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ity, to plan infrastructure improvements negotiate intergovernmental agreements, and begin rebuilding their local economies. The amici regional governments have entered into a revenue sharing agreement with the Band, and have 

relied on revenue projections for the trust lands in planning for the development and delivery of government services to individuals and businesses, including critical infrastructure improvements. In addition, local businesses have 

based their planning and investment on economic development of the trust 

lands. The court of appeals’ decision eliminates the stability that is essential for 

local governments and businesses. In light of the wide-reaching and disruptive 

impact of the court of appeals’ decision, immediate review by this Court is urgently needed.

Clearly, Carcieri is creating a crisis in Indian country. The ripple effects will not 

only impact tribal economic development opportunities, but will eliminate revenue 

for state and local governments, and will destroy much-needed jobs for both Indians 

and non-Indians. Congress should act- should act quickly and decisively-to ensure 

that the Secretary’s authority to take land in trust extends to all federally recognized Indian tribes. 

IV. An Update of Litigation in the Wake of the Supreme Court’s Decision 

in Carcieri v. Salazar 

Attached is a detailed case summary of litigation filed in the federal courts, in 

state courts and at the administrative level in the wake of the Carcieri decision. 

Attachments


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The CHAIRMAN. Thank you very much, Mr. Guest. 

Ms. Routel, will you please proceed with your testimony? 


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STATEMENT OF COLETTE ROUTEL, ASSISTANT PROFESSOR, 

WILLIAM MITCHELL COLLEGE OF LAW 

Ms. ROUTEL. Good afternoon, Chairman Akaka and Congressman 

Cole. During my testimony today, I would like to highlight two unlikely impacts that Carcieri has had on Indian Country. 

First, it has spawned a large number of frivolous challenges to 

trust acquisitions for Tribes that no one thought would be impacted. And second, it has created uncertainty, and more specifically the type of uncertainty that will prevent access to capital for 

many Indian economic development projects. 

The BIA has a longstanding policy of not taking land into trust 

until any and all litigation has run its course. Opponents of trust 

acquisitions know this and they are attempting to use Carcieri to 

delay even under circumstances when they must know that their 

arguments are completely frivolous. 

Ted Haas, who was Chief Counsel for the BIA in the 1940s, compiled a pamphlet entitled Ten Years of Tribal Governments Under 

the IRA. This report establishes that the initial Tribal elections to 

accept or reject the Act. They were conducted in 1934 and 1935. 

This is temporally the closest list we are ever going to get to determine what Tribes were under Federal jurisdiction when the IRA 

was passed. 

Of course, the Haas report does not contain an exhaustive list of 

Tribes under Federal jurisdiction on that date. For example, as initially passed, the Act only applied to Indian Tribes that had a reservation land base, and therefore there are few Tribes that were 

landless at the time that are included on the Haas list. While the 

list is incomplete, it is still extremely strong proof that the Indian 

Tribes contained thereon were under Federal jurisdiction in 1934. 

Despite this, Carcieri challenges abound for these Tribes. In my 

written testimony I highlighted challenges that the Fond du Lac 

Band and the Rosebud Sioux Tribe has faced in their recent trust 

applications. These Tribes voted to accept the application of the 

IRA in October and November of 1934, just three or four months 

after passage of the Act. The Santa Ynez, the Wilton Rancheria 

and the Stockbridge-Munsee Community and the Oneida Tribe of 

Wisconsin are all on the Haas list and they all are embroiled in 

litigation right now. 

One of the Rosebud trust acquisitions that has been tied up for 

the past two years is located in the Black Hills, and it contains sacred sites for Lakota people. While that land remains in fee status, 

it is not protected and the surrounding area is quickly being developed. 

If a company sought to construct power lines or a pipeline, let’s 

say the Keystone pipeline, across the property, State or Federal 

eminent domain power could be used to take a right-of-way, destroying the sacred sites. If this land was in trust, Tribal consent 

would be needed to authorize a right-of-way. 

These frivolous Carcieri challenges are putting properties at risk 

as we speak. In recent months, the department has moved through 

many trust applications, but there are still some additional things 

I believe the department could do immediately to lessen these 

risks. It could promulgate a regulation that creates a rebuttable 

presumption that Indian Tribes on the Haas list were under FedVerDate 0ct 09 2002 09:39 Jun 27, 2012 Jkt 074295 PO 00000 Frm 00034 Fmt 6633 Sfmt 6601 S:\DOCS\74295.TXT JACK
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eral recognition in 1934. Under this approach, the burden of production should, in the first instance, be placed on the party challenging the trust acquisition, and if that party cannot offer contrary evidence, the challenge would be denied. 

Additionally, the department could change its policy and agree to 

take land into trust upon completion of the administrative appeals 

process unless a preliminary stay was issued by a Federal court. 

Even with these adjustments, however, Tribes will still face 

years of delay on their trust acquisitions. Only Congress can solve 

this problem through a clean Carcieri fix. 

One of the other challenges of the Carcieri decision is that the 

court did not decide what under Federal jurisdiction means. The 

dictionary definition of jurisdiction is the authority of a sovereign 

power to govern or legislate. So jurisdiction means authority or 

power and if this is correct, then the question is whether the Federal Government had power over a particular Indian Tribe in 1934, 

not whether it was actually exercising that power. 

Unfortunately, without a decision on this point, Tribes are forced 

to cover all of their bases. This includes historical research on 

whether the Federal Government exercised power over the Tribe 

and its members in the 1920s, 1930s, and 1940s. The problem is 

no matter how much time the Tribe spends researching these 

issues, they cannot with certainty establish that they are Federal 

jurisdiction unless the Supreme Court decides their particular case 

or Congress passes a Carcieri fix. 

Uncertainty prompts litigation and it scares investors. Before I 

became a law professor, my practice focused on Tribal finance and 

economic development projects. In my experience, the finance industry really struggles with how to deal with situations where 

there is a small risk of catastrophic results. For example, what if 

there is a 5 percent chance that the business you are funding is 

or could become illegal if the land is taken out of trust and jurisdictional authority changes from the Tribe to the State? 

These are the types of risks that investors either refuse to finance under or that prompt prohibitively high interest rates. 

Carcieri, combined with the current economic crisis that is shaking the entire Country, is making financing simply unattainable. 

Without money, Tribes cannot create jobs. They cannot offer services to their members and they cannot exercise Tribal sovereignty. 

I hope you will enact a clean Carcieri fix and I thank you for the 

opportunity to testify here. 

[The prepared statement of Ms. Routel follows:]

PREPARED STATEMENT OF COLETTE ROUTEL, ASSISTANT PROFESSOR, WILLIAM

MITCHELL COLLEGE OF LAW

Good afternoon Chairman Akaka and distinguished members of the Committee. 

Thank you for the invitation to appear before the Committee today. 

Back in 2009, I testified in front of the House Committee on Natural Resources 

regarding the flaws in the Supreme Court’s holding in Carcieri v. Salazar, 129 S. 

Ct. 1058 (2000). As you know, that decision concluded that the benefits of the Indian 

Reorganization Act (IRA), 48 Stat. 984 (codified as amended at 25 U.S.C. § 461 et 

seq.), only extended to Indian tribes that were ‘‘under federal jurisdiction’’ on June 

18, 1934, the date of the statute’s enactment. I will not repeat my criticisms of the 

Supreme Court’s decision here. Rather, I will begin by explaining why the Carcieri

is contrary to express policies emanating from this Committee and adopted by Congress over the past 20 years. Then, I will attempt to provide the Committee with 

32

1See, e.g., Tonto Apache Tribe of Arizona, P.L. 92–470 (Oct. 6, 1972) (‘‘The Payson Community 

of Yavapai-Apache Indians shall be recognized as a tribe of Indians within the purview of the 

Act of June 18, 1934 . . . and shall be subject to all of the provisions thereof’’); Pasqua Yaqui 

of Arizona, P.L. 95–375 (Sept. 18,1978) (‘‘The provisions of the Act of June 18, 1934... are extended to such members described in subsection (a) of this section’’); Cedar City Band of Paiutes in Utah, P.L. 96–227 (Apr. 3, 1980) (‘‘The provisions of the Act of June 18, 

1934 . . . except as inconsistent with the specific provisions of this Act, are made applicable 

to the tribe and the members of the tribe. The tribe and the members of the tribe shall be eligible for all Federal services and benefits furnished to federally recognized tribes’’); Mashantucket 

Pequot Indian Tribe of Connecticut, P.L. 98–134 (Oct. 18, 1983) (‘‘all laws and regulations of 

the United States of general application to Indians or Indian nations, tribes or bands of Indians 

which are not inconsistent with any specific provision of this Act shall be applicable to the 

Tribe’’); Ysleta Del Sur Pueblo of Texas, P.L. 100–89 (Aug. 18, 1987) (‘‘The Act of June 18, 1934 

(28 Stat. 984) as amended, and all laws and rules of law of the United States of general application to Indians, to nations, tribes, or bands of Indians, or to Indian reservations which are not 

inconsistent with any specific provision contained in this title shall apply to members of the 

tribe, the tribe, and the reservation’’); Lac Vieux Desert Band of Lake Superior Chippewa, P.L. 

100–420 (Sept. 8, 1988) (‘‘The Act of June 18, 1934 (48 Stat. 984), as amended, and all laws 

and rules of law of the United States of general application to Indians, Indian tribes, or Indian 

reservations which are not inconsistent with this Act shall apply to the members of the Band, 

and the reservation’’); Yurok Tribe of California, P.L. 100–580 (Oct. 31, 1988) (‘‘The Indian Reorganization Act of June 18, 1934 (48 Stat. 984; 25 U.S.C. 461 et seq.), as amended, is hereby 

made applicable to the Yurok Tribe’’); Pokagon Band of Potawatomi Indians of Michigan, P.L. 

103–323 (Sept. 21, 1994) (‘‘Except as otherwise provided in this Act, all Federal laws of general 

application to Indians and Indian tribes, including the Act of June 18, 1934... shall apply 

with respect to the Band and its members’’); Little River Band of Ottawa Indians and Little 

Traverse Bay Bands of Odawa Indians, P.L. 103–324 (Sept. 21, 1994) (‘‘All laws and regulations 

of the United States of general application to Indians or nations, tribes, or bands of Indians, 

including the Act of June 18, 1934... which are not inconsistent with any specific provision 

of this Act shall be applicable to the Bands and their members’’). 2This was an odd distinction for the BIA to make, because Congress does not have the power 

to create an Indian tribe. United States v. Sandoval, 231 U.S. 28 (1913) (noting that Congress 

may not ‘‘bring a community or body of people within the range of [its] power by arbitrarily 

calling them an Indian tribe’’).

examples of how this decision has affected Indian tribes across the country, including tribes who no one ever believed would be impacted by the decision. 

I. Background: The Carcieri Decision and Its Clash With Congressional

Policy 

A. Congressional Policies Establish That Equal Footing for Indian Tribes is

Necessary 

The Carcieri decision is diametrically opposed to two longstanding Congressional 

policies. First, Congress has always intended for all Indian tribes to be entitled to 

the same federal rights and benefits. For example, in nearly every individual recognition statute passed since the 1970s, Congress provided that the newly recognized or re-recognized tribe was permitted to access all of the rights and benefits 

provided by the IRA. 1 Additionally, in 1994, Congress enacted amendments to the 

IRA that explicitly prohibited any federal agency from promulgating a regulation or 

making a decision ‘‘that classifies, enhances, or diminishes the privileges and immunities available to the Indian tribe relative to other federally recognized tribes.’’ 25 

U.S.C. § 476(f) & (g). These amendments were passed in direct reaction to informal 

policies of the Bureau of Indian Affairs, which had begun classifying tribes into ‘‘created’’ and ‘‘historic’’ tribes, and limiting the benefits available to former. 2 Senator 

Inouye, who co-sponsored the legislation, told Congress that: 

The amendment which we are offering... will make it clear that the Indian 

Reorganization Act does not authorize or require the Secretary to establish classifications between Indian tribes. . . . [I]t is and has always been Federal law 

and policy that Indian tribes recognized by the Federal Government stand on 

an equal footing to each other and to the Federal Government. . . . Each federally recognized Indian tribe is entitled to the same privileges and immunities 

as other federally recognized tribes and has the right to exercise the same inherent and delegated authorities. This is true without regard to the manner in 

which the Indian tribe became recognized by the United States or whether it 

has chosen to organize under the IRA. By enacting this amendment . . ., we 

will provide the stability for Indian tribal governments that the Congress 

thought it was providing 60 years ago when the IRA was enacted.

140 Cong. Rec. S6147, 1994 WL 196882 (May 19, 1994).

Unfortunately, the Carcieri decision has shattered the stability Congress provided 

through the 1994 Amendments. It now requires the BIA to determine which tribes 

33

were ‘‘under federal jurisdiction’’ in 1934, and to extend the benefits of the IRA only 

to those tribes. Furthermore, the manner in which an Indian tribe became recognized is once again crucial. As noted above, tribes that were recognized by Congress 

are generally insulated from the impacts of Carcieri through express provisions in 

their recognition bills that make the IRA applicable to both the tribe and its members. Indian tribes recognized through the Office of Federal Acknowledgment (OFA), 

however, have no such insulation. Drawing a distinction between Congressionallyrecognized and OFA-recognized tribes to the detriment of the latter group, is also 

contrary to the past policies of this Committee. 

Over the past decade, Congress has encouraged Indian tribes to seek recognition 

through the process administered by the OFA. For example, in 2006, this Committee held a hearing on two recognition bills. See S. 437, The Grand River Ottawa 

Indians of Michigan Referral Act & S. 480, the Thomasina E. Jordan Indian Tribes 

of Virginia Federal Recognition Act of 2005, Hearing before the U.S. Senate Committee on Indian Affairs, 109th Cong. (2006). Senator McCain opened that hearing 

by stating that Congress should confer recognition upon Indian tribes only if there 

are ‘‘extenuating circumstances’’ present. Id. at 2. He noted that ‘‘Congress is ill 

equipped to conduct the rigorous review needed to provide the basis for such [recognition] decisions.’’ Id. at 1–2. While he admitted that groups have had to wait 

enormous lengths of time to successfully navigate the OFA process and obtain recognition, Senator McCain believed that it would be ‘‘substantially unfair to provide 

a legislative path short-circuiting the process for some tribes while others labor for 

years to get through the regulations.’’ Id. Similar statements abound in Congressional recognition hearings. Congress appears to have adopted this approach, because over the course of the past decade, it has not granted federal recognition to 

any Indian tribes. The last tribe recognized through Congressional legislation was 

the Loyal Shawnee Tribe of Oklahoma, P.L. 106–568 (Dec. 27, 2000). 

The Carcieri decision makes it significantly more difficult for tribes recognized 

through the OFA process to obtain trust lands. Why should tribes stand in line and 

wade through the OFA’s lengthy and costly process when at the end, they may be 

unable to obtain the most basic right—the ability to acquire a land base? Without 

a territory to govern, tribal sovereignty is severely restricted and economic development opportunities are non-existent. The Cowlitz Indian Tribe provides an excellent 

illustration of the problems created by the Carcieri decision for OFA recognized 

tribes. 

B. The Cowlitz Example 

The Cowlitz Indian Tribe is one of the few tribes that managed to obtain federal 

recognition through the onerous OFA process. The Tribe has a long relationship 

with the Federal Government. The Cowlitz Indian Tribe entered into treaty negotiations with the United States in 1855. But the United States sought to remove the 

Tribe to a distant portion of Washington State, and settle them on land already reserved for another Indian tribe. When the Tribe refused, the President simply extinguished aboriginal title to all of their lands via Executive Order. 

The original language of Section 16 of the IRA only allowed Indian tribes with 

reservations to organize Constitutional governments. Because the Cowlitz no longer 

owned any land, they were not able to organize under the Act. Over time, the BIA 

came to regard the Cowlitz as an unrecognized tribe, even though the Tribe had a 

long history of interaction with all branches of the United States government. 

The Tribe formally asked the BIA to restore its recognition in 1977. Twenty five 

years later, in 2002, the OFA issued a final determination granting the Cowlitz Indian Tribe federal recognition. Immediately after obtaining recognition, the Tribe 

petitioned the Secretary of the Interior to take land-in-to-trust under Section 5 of 

the IRA, for the Tribe’s reservation in Clark County, Washington. Years later, the 

BIA was finally ready to complete the fee-to-trust and reservation proclamation 

process when Carcieri was decided. The near-completed trust acquisition was now 

called into question. 

The Tribe’s attorneys quickly completed an 80-page manuscript documenting that 

the Tribe was under federal jurisdiction in 1934. Ultimately, the BIA agreed with 

the Tribe, and once again, was prepared to take the land into trust for the Tribe. 

But in January 2011, Clark County, certain gaming facilities, and individual landowners filed suit in the U.S. District Court for the District of Columbia against the 

Department of the Interior, challenging the trust acquisition. The complaint states 

that ‘‘the Cowlitz Tribe was neither federally recognized nor under federal jurisdiction in June 1934.’’ See Clark County v. Salazar, No. 11–00278 (D.C. Cir. filed Jan. 

31, 2011). If Congress fails to pass a Carcieri fix, litigation could delay the Tribe’s 

trust acquisition for years. 

34

These events have had a devastating impact on the Cowlitz Indian Tribe. The 

Tribe had to borrow a substantial sum of money to purchase fee title to the land 

that it seeks to be taken into trust as its initial reservation. Interest has been accruing on that loan for 10 years already, and there is no end in sight. The Tribe cannot 

borrow any additional funds, because lenders will simply not accept the risk that 

Carcieri has created. Without a land base, the Tribe has few options for economic 

development to generate funds for governmental operations, and the Federal Government has denied the Tribe’s requests for grant funding, because it has no reservation. Just last week, for example, the Tribe received notice that it was not 

awarded a grant to assist in the development of a Tribal Court system, because 

funding preferences were given to tribes with a reservation land base. 

II. The Supreme Court’s Decision Has Resulted in Costly Delays for all

Indian Tribes 

The Carcieri decision, however, does not simply affect tribes that were recognized 

through the OFA process. In 2009, Sandra Klineburger, Chairwoman of the 

Stillaguamish Tribe of Indians, told the House Committee on Natural Resources 

that ‘‘[n]o decision to take land into trust on behalf of a tribe [would be] safe from 

challenge,’’ and that tribes would be forced to ‘‘expend limited governmental resources’’ to defend against frivolous challenges. Those statements have proven to be 

quite prophetic. Indian tribes across the country—including tribes that must have 

been under federal jurisdiction in 1934—have faced challenges to trust acquisitions 

that would have been routine prior to the Supreme Court’s decision. I will briefly 

highlight two unlikely examples. 

Long before the Carcieri case was decided, the Fond du Lac Band of the Minnesota Chippewa tribe filed an application asking the Federal Government to take 

an 80-acre parcel of land known as the ‘‘Block Property’’ into trust. This land was 

within the exterior boundaries of the Fond du Lac Reservation, but had been lost 

due to the Federal Government’s allotment policies. The Band indicated that it 

planned to use the land in a manner that was consistent with its Land Use Plan, 

which gave priority to the protection of cultural and historical sites, hunting and 

sugar bush land and riparian areas, as well as to the creation of new affordable 

housing. The BIA-Minnesota Agency issued a final determination to take the parcel 

into trust on February 4, 2009. 

Carcieri was decided not long thereafter. After reviewing the decision, Saint Louis 

County appealed the BIA’s determination. In its statement of reasons, the County 

claimed that the BIA lacked the authority to take land into trust for the Fond du 

Lac Band. The County acknowledged that the Minnesota Chippewa Tribe, of which 

the Fond du Lac Band is a part, adopted an IRA-approved Constitution in 1936. But 

it claimed that this did not prove that the Band was under federal jurisdiction two 

years earlier, when the IRA was first enacted. 

This argument was meritless. After all, the constituent bands of the Minnesota 

Chippewa Tribe voted to accept the IRA on October 27 and November 17, 1934. 

These were the first two dates that the government called elections under the Act. 

While the County eventually admitted that this was a frivolous claim and withdrew 

it, Fond du Lac’s land was not taken into trust until August 2010. 

Surprisingly, this is not an isolated instance. All over the country objections are 

being filed to trust acquisitions by Indian tribes who would seem to fit any possible 

definition of ‘‘under federal jurisdiction’’ in 1934. For example, the Rosebud Sioux 

Tribe is a ‘‘treaty tribe’’ and has seemingly maintained continuous federal recognition as an Indian tribe. The Tribe voted in favor of the IRA on October 27, 1934, 

just four months after the statute was enacted. Its IRA Constitution was approved 

by the Secretary of the Interior in November 1935, and a Section 17 Charter was 

issued to the Tribe on March 16, 1937. 

Despite these seemingly incontrovertible facts, the State of South Dakota is currently challenging three of the Tribe’s pending trust applications, claiming that the 

Rosebud Sioux Tribe was not ‘‘under federal jurisdiction’’ when the IRA was passed. 

These trust applications are for: (1) Bear Butte Lodge, a sacred site located in the 

Black Hills; (2) a nursing home that has already been operating for nearly 20 years 

and is located within the exterior boundaries of the Rosebud Reservation on land 

that was lost due to allotment; and (3) the Chamberlain Ranch, which is land currently owned by the Tribe and leased to a tribal member for agricultural use. Trust 

applications for these three locations have been pending with the Bureau of Indian 

Affairs for more than two years now. 

Delaying these trust applications has cost the Tribe a substantial amount of 

money in attorneys’ fees as well as state real estate and other taxes. Even more importantly, however, delaying the Tribe’s trust application for Bear Butte Lodge risks 

the destruction of that sacred site. The surrounding area is being developed, and 

35

3 A federal statute enacted in 1948 provides the Secretary of the Interior with the authority 

to grant rights-of-way across Indian lands. See Act of Feb. 5, 1948, 62 Stat. 18. The Act exempts 

any Indian trust lands belonging to a tribe organized under the IRA, absent tribal consent. See 

id., codified at 25 U.S.C. § 324 (‘‘No grant of a right-of-way over and across any lands belonging 

to a tribe organized under the Act of June 18, 1934 (48 Stat. 984)... shall be made without 

the consent of the proper tribal officials’’). Importantly, Indian fee lands or lands acquired by 

a non-IRA tribe are not exempt from the provisions of this statute. 4For clarification, I do not mean to imply that the Mashpee Wampanoag Tribe—or any other 

Indian tribe referred to in my testimony—was not ‘‘under federal jurisdiction’’ in 1934. Determining the answer to this question will require (1) multiple court decisions and/or federal regulations defining that phrase; and (2) extensive factual investigation by each Indian tribe. 

the property is not protected from state or federal eminent domain power (which 

might, for example, be exercised to create rights-of-way for oil or natural gas pipelines) while it remains in fee status. 3

III. The Impact on Jobs and Economic Development 

Carcieri has also had a significant impact on jobs and economic development. 

First, tribes that remain landless after successfully navigating the OFA recognition 

process are prevented from taking advantage of numerous federal programs that are 

tied to a federally recognized Indian reservation. 

The Mashpee Wampanoag Tribe obtained recognition through the OFA in 2007, 

nearly 30 years after filing its request for federal acknowledgment. See 44 Fed. Reg. 

116 (Dec. 22, 1978) (Notice of Intent); 72 Fed. Reg. 8,007 (Feb. 22, 2007) (Final Determination). Today, due in large part to the Supreme Court’s decision in Carcieri, the Mashpee Wampanoag Tribe still does not have a single acre of trust land. 4

Without a land base, Tribal members continue to struggle. Half of all Tribal members live below the poverty line, and the median household income of Tribal members is less than half the Massachusetts average. Only 48 percent of Tribal adults 

have a high school diploma, making job prospects in this economy bleak. 

Mashpee members could really benefit from the many grant programs that the 

BIA and other federal agencies offer to enrolled members of federally recognized 

tribes. But nearly all of these programs are either explicitly or as matter of practice 

restricted to members who live ‘‘on or near reservations.’’ See, e.g., 25 U.S.C. § 1521 

(Indian Business Development Program, whose purpose is to increase entrepreneurship and employment only provides grants to Indians and Indian-owned economic 

enterprises ‘‘on or near reservations’’); 25 C.F.R. Part 20 (Financial Assistance and 

Social Services Programs including the Tribal Work Experience Program, Disaster 

Assistance, and Burial Assistance, are available only to Indians living ‘‘on or near 

reservations’’ or in service areas designated by the Secretary); 25 CFR Part 26 (Employment Assistance for Adult Indians provides support for adult Indians residing 

‘‘on or near Indian reservations’’); 25 CFR Part 27 (Vocational Training for Adult 

Indians provides services to Indians ‘‘on or near Indian reservations’’); 7 C.F.R. § §

253, 254 (Department of Agriculture’s Food Distribution Program provides services 

to low-income Indians that reside ‘‘on or near all or any part of any Indian reservation’’). 

The Tribe has hopes of establishing a destination resort casino. A project like this 

would create thousands of permanent jobs as well as numerous temporary construction jobs for both Indians and non-Indians alike. Money obtained through gaming 

operations could then be used to fund the Tribal government and to provide services 

for needy members. The Tribe would like to acquire trust lands in Mashpee to protect its burial grounds and the site of the oldest meetinghouse in the country, as 

well as to create a Tribal community/government center and housing for Tribal 

members unable to afford the high housing costs on Cape Cod. But all of these plans 

are currently on hold because of Carcieri. 

A lack of trust lands also prevents tribes from establishing smaller businesses. 

The Jamestown S’Klallam Tribe was recognized by OFA in 1981. The Tribe has 30 

acres of trust land, only seven acres of which are designated as a reservation. Just 

following the issuance of the Carcieri decision, the Tribe filed an application requesting that the Secretary take a five-acre parcel of land into trust. The Tribe 

planned to create a store that would sell fireworks on the property. While this seasonal business was unlikely to generate significant revenues, it would provide jobs 

for younger tribal members over the summer months. 

The Tribe submitted detailed documentation establishing that the Jamestown 

S’Klallam Tribe was under federal jurisdiction in 1934, which included reference to 

the on-going treaty relationship that the Tribe has with the Federal Government. 

See Carcieri, 129 S.Ct. at 1069–70 (Breyer concurring) (noting that a tribe could be 

under federal jurisdiction even if the Federal Government did not believe so at the 

time if it had an on-going treaty relationship). Neither the County in which the land 

36

was situated, nor any other person or governmental entity objected to the trust acquisition. Prior to Carcieri, the Tribe’s application would have been processed by the 

BIA Regional Office in approximately 8 months. But instead, the Regional Solicitor 

had to wait for direction from the BIA, which was not immediately forthcoming. 

Only in August 2011 was this small parcel of land finally taken into trust. Over 

the past 2 years and 8 months, the Tribe missed three summers where it could have 

employed Tribal members and raised revenues through the fireworks business. Instead, the Tribe was forced to pay real estate taxes throughout this time period and 

incur attorney’s fees while the land remained fallow. 

Jamestown is a fortunate tribe. They were able to establish that they were under 

federal jurisdiction in 1934, and their trust acquisition was not tied up in agency 

appeals or federal court litigation. As the litigation update prepared for this Committee by the Native American Rights Fund demonstrates, many other Indian tribes 

will be addressing Carcieri issues for years to come unless Congress passes a ‘‘fix.’’ 

I encourage you to do so. 

Disclaimer: The comments expressed herein are solely those of the author as an 

individual member of the academic community; the author does not represent William Mitchell College of Law for purposes of this testimony.

The CHAIRMAN. Thank you very much, Ms. Routel. 

Mr. Lomax, please proceed with your testimony. 

STATEMENT OF WILLIAM LOMAX, PRESIDENT, NATIVE 

AMERICAN FINANCE OFFICERS ASSOCIATION 

Mr. LOMAX. Good afternoon, Chairman Akaka and Congressman 

Cole, and thank you for this opportunity to testify. 

The Native American Finance Officers Association, also known 

as NAFOA, is a national not-for-profit organization that focuses 

solely on the financial success of Tribal entities. Our membership 

includes Tribal leaders, Tribal finance officers, accountants, financial advisors and more. 

The destructive impact that the Supreme Court’s decision in 

Carcieri has had on economic development within Indian Country 

during the two-and-a-half years since the case was handed down is 

real, and for some Tribes has been particularly harmful. Because 

we work with Tribes, as well as financial institutions in the investment community, we have a pretty good sense of the impact that 

the Carcieri decision has had on many Tribes. 

I want to address four major issues today: uncertainty, Tribal diversification, access to capital, and jobs. 

Under uncertainty, one of the most damaging aspects of the 

Carcieri decision is that no one can know with certainty which 

Tribes are precluded from acquiring trust land under the IRA because no one single common definition of under Federal jurisdiction 

has been agreed upon and accepted by the courts or by the department. 

Some anti-Indian litigants are arguing in court today that any 

Tribe that was not federally recognized in 1934 is a Tribe that was 

not under Federal jurisdiction and therefore is precluded from the 

benefits of the IRA. 

Tribal diversification. One of NAFOA’s greatest concerns as an 

organization is the ability for Tribes to diversify their economies. 

Currently, Tribal economies are dominated by gaming and we believe Tribes must find economic alterNatives in order to grow their 

economies in a sustainable way. The Carcieri decision makes economic diversification for Tribes extraordinarily difficult. 

One of the most common opportunities for Tribal economic diversification is to develop energy resources, whether carbon-based or 

37

renewable. If a Tribe has existing trust land that is potentially 

threatened by Carcieri, investors will not provide the capital necessary to develop the resource because of the uncertain regulatory 

regime. If a land stays in trust, investors will know what to expect. 

But if there is a chance the land might be pulled out of trust, this 

could impose new and potentially unfavorable regulations on the 

project. 

Access to capital. Banks are now using a Carcieri screen or legal 

test to determine whether a Tribal project is viable for financing 

or refinancing. NAFOA hosted a Tribal bond investors summit in 

July of this year and it was clear to me from discussions I had with 

bankers and investors that Carcieri is very much on the minds of 

the investment community. Investors are willing to calculate business risks, but they are very leery of trying to calculate litigation 

risks. 

The insertion of the Carcieri uncertainty into the mix has all but 

killed off the investment community’s willingness to invest in 

projects involving Tribes that even might have a Carcieri problem. 

Fewer and fewer reputable lending institutions and private investors are willing to take the risk of lending money to a Tribal economic development project because even the most savvy investor 

has no real way to determine whether one Tribe will fall under or 

outside Carcieri’s new under Federal jurisdiction test. 

In terms of interest rates charged, investors can and will use 

Carcieri as an excuse to ask for higher interest rates even if there 

is little or no risk of Carcieri as an issue. If there is a Carcieri risk, 

the typical bank and investor will walk away from the Tribal opportunity and the only people who might be willing to lend, if they 

are willing to lend at all, will be hedge funds and the like who will 

require usurious interest rates. The Tribes will have to go to the 

financial market’s equivalent of a payday loan lender. 

Jobs. As for job creation in Indian Country, we have not done a 

detailed study of the impact of Carcieri on future jobs, and we are 

not aware of anyone else doing a detailed study. But we have done 

a very rough estimate that indicates that were Congress to remedy 

the Carcieri issue, that very quickly we could see at least 80,000 

new construction jobs and 60,000 new permanent jobs created 

across the Country. 

We believe a fuller study would indicate far more jobs would be 

created. Although we cannot say with certainty how many jobs 

would be created, we can say that if the Carcieri issue is resolved, 

a large number of jobs will be created and many of these jobs 

would be created in economically depressed rural areas, with a majority of the jobs going to non-Indians in the local area. Letting 

Carcieri stand means that these jobs will not be created. 

In conclusion, the hurdles to economic development and job creation in Indian Country are already significantly higher in Indian 

Country than they are for mainstream America. If we fail to address the Carcieri problem, we condemn and unknown number of 

Tribes to second-class status and to perpetual economic hardship 

and unemployment. 

Of all the hurdles to economic development and job creation in 

Indian Country, the uncertainty caused by Carcieri should be the 

easiest and most straightforward hurdle that can be removed. 

38

NAFOA and its members urge the Congress to act as swiftly as 

possible to make clear that the benefits of the Indian Reorganization Act apply equally to all federally recognized Tribes. 

I thank you for your time today and the opportunity to testify. 

[The prepared statement of Mr. Lomax follows:]

PREPARED STATEMENT OF WILLIAM LOMAX, PRESIDENT, NATIVE AMERICAN FINANCE

OFFICERS ASSOCIATION

Introduction 

Chairman Akaka, Vice Chairman Barrasso, and honorable members of the Committee on Indian Affairs, good afternoon and thank you for this opportunity to testify. My name is William Lomax and I currently serve as President of the Native 

American Finance Officers Association, ‘‘NAFOA’’. I am a member of the Gitxsan 

Nation. I hold a graduate degree from Columbia Business School and a law degree 

from the University of British Columbia Law School. I testify today in my official 

capacity, as well as a concerned business person and tribal member. The destructive 

impact that the Supreme Court’s decision in Carcieri v. Salazar has had on economic development within Indian Country during the two-and-a-half years since the 

case was handed down is real, and for some tribes has been particularly harmful. 

NAFOA is a national not-for-profit organization that focuses solely on the financial success of tribal entities. Our membership includes tribal finance officers, controllers, accountants, auditors, financial advisors, tribal leaders and more. NAFOA 

provides a central conduit for our membership to raise their concerns and to share 

economic insights and best practices. 

Because of the role we play in the tribal commercial and financial community, we 

have a pretty good sense of the impact that the Carcieri decision has had on many 

tribes. The great uncertainty caused by that decision is preventing tribes from every 

part of the country from growing and diversifying their economies, engaging in economic development, and creating new jobs. I want to underscore that last point—

Carcieri is killing jobs in Indian Country, and it is killing jobs in the local non-Indian communities which neighbor Indian Country.

The Genesis of the Carcieri Uncertainty 

As you know, the Supreme Court held that the Indian Reorganization Act (IRA) 

applies only to tribes that were under federal jurisdiction when that Act was passed 

in 1934. When in Carcieri the Court made a distinction between tribes which were 

‘‘under federal jurisdiction’’ in 1934 and those which were not, the Court created a 

distinction among tribes that had never before existed. Prior to that time, it was 

well established and well accepted that the IRA applied equally to all federally recognized tribes. 

Not only did the Supreme Court effectively create two unequal classes of tribes, 

but it also failed to address the question of what ‘‘under federal jurisdiction’’ means. 

There is no federal statute that defines what it means. Nor does the Department 

of the Interior have an administrative regulation to define what it means. No one 

had ever thought much about this question because, between 1934 when the Act 

was passed and 2009 when the Court handed down its decision, no one ever interpreted the IRA the way the Carcieri Court did. 

So which tribes are precluded from acquiring trust land under the IRA? No one 

knows exactly, because no one single common definition of ‘‘under federal jurisdiction’’ has been agreed upon and accepted by the courts or by the Department. Some 

anti-Indian litigants are arguing in court today that any tribe that was not federally 

recognized in 1934 is a tribe that was not under federal jurisdiction, and therefore 

is precluded from the benefits of the IRA. You might ask me how many tribes recognized today were unrecognized in 1934? We can’t even give you that number, because there was no official list of federally recognized tribes in 1934. 

As you can see, exactly which tribes are ‘‘Carcieri tribes’’ and which are not is 

about as clear as mud. 

The Practical Effect of the Carcieri Uncertainty 

You do not need a business degree to understand that banks and other investors 

are hesitant to lend money where they perceive risk. The more risk, the higher the 

cost (i.e., the higher the interest rate) of the loan. And of course if the risk gets too 

high, reputable banks and investors simply stop lending. 

There already are multiple inherent hurdles to private investment in Indian 

Country. Tribes lack access to the tax-exempt market non-tribal state and local governments enjoy. Lack of investor familiarity with waivers of sovereign immunity 

39

and tribal jurisdictional issues often add to borrowing costs. As others have testified 

before Congress on this same issue, historically, bank and securities markets have 

been quick to narrow borrowing options in response to general uncertainties and 

perceived credit risk when dealing with tribal governments. 

The insertion of the Carcieri uncertainty into the mix, however, has all but killed 

off the investment community’s willingness to invest in projects involving tribes that 

even might have a Carcieri problem. Fewer and fewer reputable lending institutions 

and fewer and few reputable private investors are willing to take the risk of lending 

money to a tribal economic development project because even the most savvy investor has no real way to determine whether some tribes will fall within, or outside 

of, Carcieri’s new ‘‘under federal jurisdiction’’ test. 

I want to underscore that while this problem was originally thought to be borne 

only by newly recognized or restored tribes trying to acquire new trust lands, even 

tribes with established economic development enterprises on existing tribal lands 

are finding that the status of their land may become subject to increasing scrutiny 

and challenges because of recent court decisions which seem to call into question 

whether the Quiet Title Act shields land that is already held in trust. If the end 

result of this line of cases is that somehow land can removed from trust status because of Carcieri issues, tribal economies will be devastated, debt service will stop, 

and employees will be let go. 

Conclusion 

The hurdles to economic development and job creation in Indian Country already 

are significantly higher than they are for main-stream America. If we fail to address 

the Carcieri problem, we condemn an unknown number of tribes to second-class status and to perpetual economic hardship and unemployment. Of all of the hurdles 

to economic development and job creation in Indian Country, the uncertainty caused 

by Carcieri should be the easiest and most straightforward hurdle that can be removed. NAFOA and its members urge the Congress to act as swiftly as possible to 

make clear that the benefits of the Indian Reorganization Act apply equally to all 

federally recognized tribes. 

I thank you for your time today and the opportunity to testify before this prestigious Committee. I am happy to answer any questions that you may have.

The CHAIRMAN. Thank you very much, Mr. Lomax. 

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

STATEMENT OF CARL J. ARTMAN, PROFESSOR OF PRACTICE, 

DIRECTOR, ECONOMIC DEVELOPMENT IN INDIAN COUNTRY 

PROGRAM, ARIZONA STATE UNIVERSITY SANDRA DAY 

O’CONNOR COLLEGE OF LAW 

Mr. ARTMAN. Thank you, Chairman Akaka and Congressman 

Cole, and good afternoon. Thank you for inviting me to participate 

in this hearing. 

Also with me today are 16 students and another professor from 

Arizona State University College of Law. This week, former Assistant Secretary Kevin Gover and myself are co-teaching a class 

called Federal Advocacy for the Tribal Client, and I would certainly 

like to welcome them. They are here behind me. 

You have heard much about the Carcieri decision and its implications today and in other hearings. One aspect that I would like to 

highlight today is how the decision may create procedural delays 

and add to the organized confusion that is criminal jurisdiction in 

Indian Country. 

These delays will create additional roadblocks in the execution of 

justice for the victims and the offenders in Indian Country. And 

justice delayed is justice denied. Justice delayed is a burden on society. Justice delayed is a burden on the Tribe. And justice delayed 

is a burden on the victim. 

When the United States acquires land in trust for the benefit of 

an Indian Tribe under 25 U.S.C. 465, the land becomes Indian 

40

Country, subject to Indian Country criminal legal jurisdiction of 

the United States; subject to certain statutory exceptions; and to 

the civil jurisdiction of the governing Tribe. 

If the land is located in a State delineated under Public Law 280, 

the State will retain certain criminal jurisdiction on Tribal lands. 

Evolving and confusing laws regarding criminal jurisdiction in Indian Country present law enforcement officers from all levels of 

government with challenges and obstacles to enforcing law. 

BIA police, FBI, a Tribal police department, multiple Tribal police departments, local police, county sheriff or a combination of the 

above may control or share the authority for law enforcement and 

public safety on any given reservation. 

Simply put, State law enforcement officers cannot investigate or 

arrest an Indian for a crime in Indian Country, but State officers 

do have some authority to investigate and arrest non-Indians for 

crime against non-Indians that occurred in Indian Country and 

there are exceptions to that general rule. 

The Carcieri holding may force the question within some Tribal 

jurisdictions: Was that Indian Country in the first place? This 2009 

holding may only be the cornerstone of future litigation that will 

not only further confuse jurisdictional boundaries in Indian Country, but perhaps cause a debilitating blurring of the lines that will 

hamper the execution of public safety and law enforcement in Indian Country. 

The recent case of Patchak v. Salazar represents a worrisome 

trend trust land jurisprudence that may have a profound effect on, 

among other things, the definition of particular jurisdictional 

boundaries. This case questions the expanse of sovereign immunity 

reserved for the United States in the Quiet Title Act in cases involving trust or restricted Indian lands. 

The Match-E-Be-Nash-She-Wish Tribe Band of Pottawatomi Indians became a federally recognized Tribe in 1999. 

The 147 acres was taken into trust on January 30th, 2009 by the 

Department of the Interior. Three weeks later, the Supreme Court 

issued its decision in the Carcieri case. In August, 2009, the District Court in Michigan dismissed a Patchak lawsuit that challenged the taking of the land into trust. It concluded that Patchak 

lacked standing and it expressed doubt about its own subject matter jurisdiction in light of the Quiet Title Act. The Court of Appeals 

in January of this year overturned that District Court, holding that 

despite the Quite Title Act, that Patchak could sue the U.S. Government even after the land was taken into trust. 

This does not reverse the decision of the Department of the Interior. The Court of Appeals decision has been appealed to the Supreme Court, which has not yet decided if it will review the case. 

This raises, though, the specter that the Quiet Title Act does not 

quiet title or protect the sovereign immunity of the United States. 

This case is important in this particular context because when 

read broadly, it forces the question: How much of a threat is 

Carcieri to not only Tribes that want to take land into trust, but 

also Tribes that have already taken land in to trust? 

An already confusing patchwork of public safety and jurisdiction 

issues will become more complicated for law enforcement officers, 

41

the victims and the legal bar if this challenge to the Quiet Title 

Act, and based on the Carcieri decision, stands. 

Instead of Mr. Patchak challenging the basis of a Federal action 

to take land into trust by the department, defense lawyers may in 

the future challenge whether the Tribal or Federal law enforcement 

entity had the authority to arrest a perpetrator in what may or 

may not have been a crime in Indian Country. 

This may soon allow defense attorneys, prosecutors and judges in 

criminal cases to determine the parameters of Indian Country and 

reservations, a right that is reserved to Congress and delegated to 

the Secretary of the Interior. 

Let’s look quickly at the issues with which our prosecutors must 

contend. Prosecutors must first ask: Did the crime occur in Indian 

Country? Was it an Indian defendant? Does the action fall under 

the Major Crimes Act? Only after these four questions are answered can they begin to ask whether or not a crime had actually 

occurred. 

The Carcieri holding, along with cases like Patchak, will only 

create a longer process and this only delays justice and this promotes uncertainty. It is ironic that just as Congress was passing 

the Tribal Law and Order Act to simplify jurisdictional issues and 

allow for an easier prosecution of criminals in Indian Country, that 

the Supreme Court promulgated the Carcieri decision, a decision 

that may, from the practical perspective, contradict the goals of the 

TLOA. 

The duties of Federal, Tribal and State law enforcement officers 

is sufficiently difficult with reduced funding and manpower, especially in Indian Country. Their jobs should not be made more difficult by a defense bar that seeks to exploit a holding that contravenes the original intent of Congress, departmental actions that 

spanned 70 years, and the expectations of all parties when the land 

was taken into trust by the Federal Government. 

Criminal jurisdiction in Indian Country is confusing, but it will 

become debilitating if the Carcieri holding is not addressed. 

Thank you for your time. 

[The prepared statement of Mr. Artman follows:]

PREPARED STATEMENT OF CARL J. ARTMAN, PROFESSOR OF PRACTICE, DIRECTOR, 

ECONOMIC DEVELOPMENT IN INDIAN COUNTRY PROGRAM, ARIZONA STATE

UNIVERSITY SANDRA DAY O’CONNOR COLLEGE OF LAW

Thank you for inviting me to participate in this oversight hearing entitled ‘‘The 

Carcieri Crisis: The Ripple Effect on Jobs, Economic Development, and Public Safety 

in Indian Country.’’ I will focus my comments on the issue of the impact the Carcieri 

holding may have on the delivery of public safety in Indian country. 

By way of introduction, I am a member of the Oneida Tribe of Indians of Wisconsin, a professor at Arizona State University College of Law, a former Assistant 

Secretary—Indian Affairs, and former Associate Solicitor of Indian Affairs for the 

Department of the Interior’s Office of the Solicitor. 

In Carcieri v. Salazar, 129 S. Ct. 1058 (2009), the United States Supreme Court 

held that the Indian Reorganization Act (IRA) provided no authority for the Secretary of the Interior to take the land into trust for the Narrangasset Indian Tribe 

since the IRA applied only to tribes ‘‘under federal jurisdiction’’ on June 18, 1934, 

when that law was enacted. The Carcieri case was the latest in a line of cases in 

which the Narragansett Tribe and Rhode Island have contested jurisdiction over 

tribal lands. 

The Narragansett Tribe received federal recognition in 1983. It applied to the 

United States, in accordance with 25 U.S.C. 465, to acquire in trust fee land that 

42

was held by a tribally controlled corporation, and it sought to have that land proclaimed an Indian reservation under 25 U.S.C. § 467. 

When United States acquires the title to land in trust for the benefit of an Indian 

tribe under 25 U.S.C. § 465 the land becomes ‘‘Indian country,’’ subject to the Indian 

country criminal law jurisdiction of the United States, subject to certain statutory 

exceptions, and to the civil jurisdiction of the governing tribe. If the land is located 

in a state delineated under Public Law 83–280 (P.L. 280), the state will retain 

criminal jurisdiction on the tribal lands. In P.L. 280 and non-P.L. 280 states, the 

jurisdiction may be further defined by an intergovernmental agreement between the 

tribe and the local law enforcement authority. 

Evolving and confusing laws regarding criminal jurisdiction in Indian country 

present law enforcement officers from all levels of government with challenges and 

obstacles to enforcing the law. Bureau of Indian Affairs (BIA) Police, FBI, a tribal 

police department, multiple tribal police departments, local police, county sheriff, or 

a combination of the above may control or share the authority for law enforcement 

and public safety on a reservation. 

Federal Indian country criminal jurisdictional statutes apply federal enclave 

criminal law within Indian country except with respect to ‘‘offenses committed by 

one Indian against the person or property of another Indian [or] to any Indian committing any offense in Indian country who has been punished by the local law of 

the tribe’’ and various federal statutes specific to Indian country. 18 U.S.C. § 1152. 

The latter include statutes punishing major crimes (18 U.S.C. § 1153) and liquor offenses (18 U.S.C. § 1161). Tribes exercise civil jurisdiction over their members on 

their lands. State and local laws and regulations governing the use and development 

of the land are not applicable to property held in trust for the benefit of an Indian 

tribe except in a very limited set of circumstances. 

P.L. 280 transferred criminal jurisdiction from the Federal Government to specific 

state governments. The initial states included California, Minnesota, Nebraska, Oregon, Wisconsin, and Alaska. P.L.-280 permitted other states to acquire jurisdiction 

at their option. From a practical perspective, the introduction of another authority 

into the jurisdictional mix further complicated an already complicated area—the 

criminal and civil jurisdiction on tribal lands. 

In addition to the above statutes, Supreme Court cases have created an even 

greater checkerboard of jurisdiction on Indian lands. Multiple sovereigns may possess jurisdiction over a person’s criminal conduct on tribal lands. The Supreme 

Court, in United States v. Wheeler, held that the double jeopardy clause of the Fifth 

Amendment does not prohibit federal prosecution subsequent to a tribal court prosecution for the same act. The Court reasoned that tribal powers derive from preexisting and retained sovereignty. The sovereignty was neither derived nor delegated from the United States. The double jeopardy clause prohibits subsequent and 

similar proceedings only by ‘‘arms of the same sovereign.’’ Therefore, a federal prosecution cannot be precluded by a prior tribal jeopardy. 

The Court’s dicta in Wheeler introduced a distinction between tribal members and 

non-tribal members. The Supreme Court went further in Duro v. Reina, in which 

the Court held that the inherent sovereignty of a tribe did not allow it to prosecute 

nonmember Indians. Congress reversed the Duro decision by amending the Indian 

Civil Rights Act to recognize tribal authority to prosecute nonmember Indians. 

Successive prosecutions may occur in state court. This will likely occur if the defendant’s actions were considered a crime in both the tribal and state jurisdictions 

and the defendant crossed the border in the execution of these actions. It may occur 

if the state, through a statutory grant of authority, exercises criminal jurisdiction 

on the tribal lands. Jurisdiction of the law enforcement authority limits its investigative and arresting authority; and even the exception of pursuit must comply 

with intergovernmental agreements and extradition laws. 

Tribal officers are often the first responders in Indian country. Tribal officers and 

subsequent prosecutors may face challenges regarding their authority to investigate 

crimes and make arrests involving non-Indians. The federal bench has consistently 

affirmed the authority of tribal law enforcement officials to arrest, detain, and even 

investigate a perpetrator in Indian country until the proper authorities can take 

possession of the alleged offender. 

Larger challenges emerge when non-tribal police officers investigate and arrest 

Indians in Indian country. A federal statutory grant of authority to state officers 

charges them with the same authority in Indian country that they have in the rest 

of their state. Issues arise when local or state law enforcement officials enter Indian 

country without that federal grant of authority or agreement with the tribe. The Supreme Court, in Nevada v. Hicks, held tribal courts do not have authority to hear 

a civil rights action against an officer who searched a tribal member’s home on the 

reservation for evidence of an off-reservation crime under the color of state authorVerDate 0ct 09 2002 09:39 Jun 27, 2012 Jkt 074295 PO 00000 Frm 00046 Fmt 6633 Sfmt 6621 S:\DOCS\74295.TXT JACK
43

ity. The searches were conducted pursuant to state and tribal search warrants. The 

Court held that the non-tribal officer’s entry onto tribal land did not interfere with 

tribal sovereignty since the investigation involved an off-reservation crime. This 

holding did not address the need of the state officer’s to obtain a warrant from the 

tribal court, or the ability of the tribal court to hear claims against those officers. 

Subsequent state cases rejected the interpretation of this holding as a carte blanche 

for officers to enter Indian country without some sort of delegation of authority from 

or agreement with the federal or tribal government. 

Simply put, state law enforcement officers cannot investigate or arrest an Indian 

for a crime in Indian country; the state officers do have authority to investigate and 

arrest non-Indians for crimes against non-Indians that occurred in Indian country. 

The Carcieri holding may force the question within some tribal jurisdictions: was 

that Indian country in the first place? This 2009 holding may only be the cornerstone of future litigation that will not only further confuse jurisdictional boundaries 

in Indian country, but perhaps cause a debilitating blurring of the lines that will 

hamper the execution of public safety and law enforcement in Indian country. 

The recent case of Salazar and Match-E-Be-Nash-She-Wish Band of Pottawatomi 

Indians v. David Patchak represents a worrisome trend in trust land jurisprudence 

that may have a profound effect on, among other things, the definition of particular 

jurisdictional boundaries. This case questions the expanse of sovereign immunity reserved for the United States in the Quiet Title Act in cases involving trust or restricted Indian lands. 

The Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians became a federally 

recognized tribe in 1999. The Federal government proposed to take land into trust 

for the Tribe in 2006. The transfer of the land from the United States to the tribe 

was delayed by two and a half years because of a slew of lawsuits. The 147 acres 

was taken into trust on January 30, 2009. 

Three weeks later, the Supreme Court issued its decision in the Carcieri case. In 

the preceding three weeks, both the federal district court and the Supreme Court 

denied motions by the opponents to prevent the Department of the Interior from 

taking the Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians land into 

trust. In August 2009, the District Court in Michigan dismissed a Patchak lawsuit 

that challenged the taking of the land into trust. It concluded that Patchak lacked 

standing and it expressed doubt about its own subject matter jurisdiction in light 

of the Quiet Title Act. The Court of Appeals, in January of this year, overturned 

the District Court, holding, despite the Quiet Title Act, that Patchak could sue the 

U.S. Government, even after the land was taken into trust. 

This does not reverse the decision of the Department of the Interior to take the 

land into trust. The Court of Appeals decision has been appealed to the Supreme 

Court, which has not yet decided if it will review the issues in the case. This raises 

the specter that the Quiet Title Act does not quiet title or protect the sovereign immunity of the United States. 

This case is important in this context because, when read broadly, it forces the 

question: how much of a threat is Carcieri to not only tribes that want to take land 

into trust, but also to tribes that already have land in trust? An already confusing 

patchwork of public safety and jurisdiction issues will become more complicated for 

law enforcement officers, the victims, and the legal bar if this challenge to the Quiet 

Title Act, and based on the Carcieri decision, stands. Instead of Mr. Patchak challenging the basis of a federal action to take land into trust by the Department of 

the Interior, defense lawyers may in the future challenge whether the tribal or federal law enforcement entity had the authority to arrest a perpetrator in what may 

or may not have been Indian country. This may soon allow the defense attorneys, 

prosecutors, and judges in criminal cases to determine the parameters of Indian 

country and reservations, a right reserved to Congress and the delegated to the Secretary of the Interior. 

The duties of federal, tribal, and state law enforcement officers is sufficiently difficult with reduced funding and manpower, especially in Indian country. Their jobs 

should not be made more difficult by a defense bar that seeks to exploit a holding 

that contravenes the original intent of Congress, departmental actions that spanned 

70 years, and the expectations of all parties when the land was taken into trust by 

the federal government. Criminal jurisdiction in Indian country is confusing, but it 

will become debilitating if the Carcieri holding is not addressed. 

Thank you.

The CHAIRMAN. Thank you very much, Mr. Artman. 

I will ask a question here to Mr. Richard Guest and Professor 

Routel. Do you have any concerns that if the Carcieri decision is 

44

not fixed by Congress that other authorities granted to Tribes 

under the Indian Reorganization Act could be vulnerable to attack? 

Ms. ROUTEL. Yes, we certainly are. The IRA is obviously not just 

about taking land into trust. There are other provisions in the IRA, 

including BIA preference in hiring. We haven’t heard much about 

what the impact might be if a Tribe is considered to be not under 

Federal jurisdiction and there is currently an employee in the BIA 

from that Tribe. 

There are also issues with section 17 corporations. So these were 

supposed to be the economic engines for Indian Tribes under the 

IRA. And if the Tribe is not under Federal jurisdiction in 1934, 

well, they can’t have a section 17 corporation. What happens to all 

the activities that that corporation has been engaging in over the 

years and is currently engaging in? 

There are also a number of statutes that are tied directly to the 

IRA that would be troubling. I mention one of them in my testimony, that is that Tribes that are under Federal jurisdiction are 

Tribes that are IRA Tribes. Their trust lands, the Secretary of the 

Interior can’t grants rights-of-way across them without Tribal consent. That right, that safety net for Tribes is not present if they 

are not organized under the IRA. 

So there are a great number of concerns other than simply taking land into trust that arise because of Carcieri. 

The CHAIRMAN. Thank you. 

Mr. Guest? 

Mr. GUEST. Thank you, Mr. Chairman, and always let a law professor answer first. 

[Laughter.] 

Mr. GUEST. I think that beyond the Indian Reorganization Act 

which she answered your question fully, that there is real concern 

with the spillover effect of Carcieri into other areas. We have already seen it and we have talked about it here as Professor 

Artman touched on with Patchak v. Salazar. And the courts coming 

to conclusions with respect to the Indian lands exception under the 

Quiet Title Act not applying in a context where a non-Indian plaintiff is bringing suit under the APA and relying on that waiver of 

immunity against the United States to challenge title. 

We see it also with respect to the rules for creating prudential 

standing, that non-Indians can now fall within the zone of interest 

of the Indian Reorganization Act to challenge anything that Indians and Indian Tribes are doing. 

Then there is further concern with respect to this creation of 

classes of Indian Tribes, the haves and the have-nots. We are seeing a resurgence of discussion with respect to created Tribes versus 

historic Tribes. It is a troubling development since we believe Congress addressed all that back in 1994 and put all of that argument 

to rest, that all federally recognized Indian Tribes are entitled to 

the same privileges and immunities, all the same rights extend out 

to the Indian Tribes. 

The CHAIRMAN. Thank you. 

I have other questions, but let me ask Congressman Cole whether you have any questions. 

45

Mr. COLE. You have been very generous, Mr. Chairman. I do 

have a couple, if I may. I am going to direct this to Mr. Guest, although others if they care to respond, please do so. 

Do you have any concerns that State and local governments will 

use this decision to either renegotiate compacts, overturn them, or 

in some ways exploit Tribal governments? 

Mr. GUEST. I believe it is not only a very real possibility, I think 

that we are witnessing it happening. In particular, the State of 

California has filed a number of objection letters based on Carcieri

claims with the Department of Interior on fee-to-trust applications. 

And in some occasions, as Professor Routel indicated, is these are 

situations where it is clear that the Tribe was under Federal jurisdiction in 1934. They were on the 1947 Haas list. They have Tribal 

constitutions approved under the IRA. 

And yet for purposes of delay, for an attempt to get a leg up in 

compact negotiations or terms within the compacts, I believe States 

will use whatever advantage. And I am not saying that is wrong, 

it is just them using an advantage that was created by the court 

to the detriment of Indian Country. 

Mr. COLE. One additional question, if I may, Mr. Chairman, and 

I will direct this to Mr. Artman. You have obviously considerable 

experience as a former Assistant Secretary yourself. I worry somewhat, and I want you to comment on whether you think this is a 

legitimate concern, about potential tension between Tribes themselves. Because you will have some that are under the IRA, some 

that are affected by the Carcieri. Tribes are sometimes in economic 

competition with one another in relatively close proximity. 

Do you see this as something that could actually become a tension source within Indian Country between the Tribes taking one 

another to court or challenging one another’s jurisdiction? 

Mr. ARTMAN. Certainly, at any point in time in history, including 

today, we have seen Tribes compete with one another for commercial interests, for economic development, even for jurisdiction. And 

we have seen, certainly with the rise of gaming, there have been 

times when one Tribe has said to another, this is our area; we 

should talk about it; or we don’t want you here. 

But the one thing that has been interesting about the Carcieri

matter is the unity that has emerged throughout Indian Country 

on this. No matter what the historical presence of any given Tribe, 

they have all rallied with each other to support a fix of the Carcieri

decision and to bring it back to the way that everybody thought it 

was, which certainly is an inspirational aspect of this case. If there 

is a silver lining, it is that. 

Mr. COLE. Thank you very much. 

Thank you, Mr. Chairman. 

The CHAIRMAN. Thank you very much, Congressman Cole. 

Mr. Lomax, in your testimony you describe how uncertainty in 

financial markets makes it more difficult for borrowers to attract 

the capital necessary to have successful economic development 

projects. Can you elaborate on how you think the Carcieri decision 

will impact the ability of Tribes to be successful in bringing jobs 

and economic development opportunities to their reservations? 

Mr. LOMAX. Thank you for the question, Mr. Chairman. I think 

that there are any number of ways that this could cause serious 

46

problems for Tribes to be able to get financing. As was described 

by Professor Routel earlier, when there is a small chance, even if 

it is a very small chance that a business opportunity could go up 

in smoke because of a legal challenge, the people that will lend the 

money, the investors, are very likely to walk away from that situation because there are a lot of other places to deploy capital. It is 

much easier to just go someplace else. 

Indian Country is already complex enough for most of the investors that we have coming into the area, and I have talked with a 

number of them. And when they look at Indian Country, they think 

that it is, as we say in the business world, it just has too much 

hair on it. It is just too much trouble. Why would I put my capital 

over here when I can put it over here and get the same kind of return with far less technical risk. So, and those do come in and they 

want a premium for that. So the Tribes have to pay more in order 

to be able to get financing than they might otherwise have to 

thanks to Carcieri. And in the situation where there is a significant risk of a 

Carcieri decision, there just will be no lenders other than what I 

started to suggest, the payday loan-type lenders talking 20 percent, 

30 percent interest rates, which would just make it impossible for 

the Tribe to do business. 

So you will see when Carcieri challenges pop up, they can pop 

up for the most mundane and smallest of business opportunities 

that can be shut down because of Carcieri risk. 

I hope that answers your question, sir. 

The CHAIRMAN. Thank you. Thank you very much, Mr. Lomax. 

Mr. Artman, in prior testimony, the Committee has heard legal 

scholars express concern that the Carcieri decision could create jurisdictional uncertainty in the area of public safety. And this has 

been mentioned by others here as well. 

What do you see as the short-term and long-term impacts on 

public safety is legislation is not passed? 

Mr. ARTMAN. Mr. Chairman, I think on the negative side, the 

short- and long-term impacts are going to be similar. And we are 

probably going to begin to start seeing them shortly in the wake 

of the Patchak case. So if the Patchak case is successful, I think 

the defense bar may begin to take a look at this as a way to help 

their clients. And I think the Assistant Secretary outlined the potential ramifications of that very well. 

This will just become another issue that they are going to look 

at in order to reduce the sentence or to eliminate the charges altogether. 

From a long-term perspective, certainly it would be nice if Congress could address this issue or if it were addressed through departmental procedures of some sort. Short of that, the Tribes and 

the local governments are going to begin to have to work together 

if this isn’t somehow addressed. 

And unfortunately, while this has worked in some places, you do 

not see a widespread acceptance of intergovernmental agreements 

and cross-deputation agreements across Indian Country. When it 

succeeds, it succeeds with aplomb and everybody enjoys the benefits of it and it is well spoken of and well known. But so many jurisdictions have been trying for decades to put these same agreeVerDate 0ct 09 2002 09:39 Jun 27, 2012 Jkt 074295 PO 00000 Frm 00050 Fmt 6633 Sfmt 6601 S:\DOCS\74295.TXT JACK
47

ments into place, the same kind of agreements that could negate 

the effects of the Carcieri decision in the public safety arena. 

That is on the governmental policy side. The real impact will be 

to the Tribes and the people, the members and non-members of the 

Tribes, but the people who live within the Tribal boundaries and 

the people that live in the cities and counties in that region. 

When the Tribes and the cities and counties can work together 

to provide first responder services, that is great. But if this is going 

to create some bar to who can go where or do we have the ability 

to go on there to effect this arrest, to investigate this crime or to 

prosecute this criminal, you are going to see hesitation. And that 

hesitation is going to allow people to escape justice, to return to the 

Tribes and to victimize the people that they have victimized before. 

And as we have seen in previous studies, the people who are usually the victims in these cases with the repeat offenders are most 

often the women and children who live on the reservations. 

The CHAIRMAN. Thank you very much. 

I have a final question, but before I ask that, I will ask Congressman Cole whether you have any further questions. 

Thank you. 

Well, for the record, and this is for the entire panel, can you describe some of the ripple effects that the Carcieri decision has had 

on the ability of Tribes to create jobs through economic development and provide public safety on their lands? 

Ms. Routel? 

Ms. ROUTEL. Thank you, Chairman. 

In my written testimony, I talked a little bit about the Mashpee 

Wampanoag Tribe. And I know the Chairman is here in the audience today and I thought I should highlight that as well for you. 

This is a Tribe that did everything that Congress asked of them in 

terms of waiting in line through the Office of Federal Acknowledgment’s lengthy process. And they petitioned for recognition in 1977 

or 1978, and they didn’t obtain recognition until 2007. That is an 

enormous time to wait to achieve Federal recognition. 

And yet they still remain completely landless. And as a result of 

that landless nature of the Tribe, they haven’t been able to take 

advantage of even the basic grant programs that the BIA offered 

because so many of those are based or tied to individual Indians 

that live on or near a reservation. 

I think Mashpee is a compelling case because their Tribal membership, 50 percent of them are at or below the poverty level, which 

shows that they could really use that money, that grant support 

from the Federal Government. 

I know gaming is the elephant in the room, but I think you 

would be hard-pressed to say that a Tribe shouldn’t have any place 

or shouldn’t have any opportunity to game because gaming is the 

greatest economic engine that Indian Country has ever seen. 

The Mashpee just want to have access to that. The gaming facility that they would like to build wherever they could build it would 

create thousands of jobs, construction jobs, permanent jobs for the 

economy that would employ many non-Indians. And these are jobs 

that would provide health care benefits and they are good-paying 

jobs. 

48

So I don’t think we should shy away from those examples, from 

the Mashpee example and from the Cowlitz example just because 

they are gaming, because gaming does produce jobs and ripple effects. And that is something that Mr. Guest was talking about with 

the Gun Lake Tribe in southwest Michigan. 

The CHAIRMAN. Thank you very much. 

Mr. Lomax? 

Mr. LOMAX. If I may, I will just follow up on what Professor 

Routel is talking about. The vast majority of Tribal casinos around 

the Country employ more than 50 percent of their employees are 

non-Indian. So the ripple effect extends outside of Indian Country 

to the non-Tribal communities surrounding wherever the Tribe is 

located. You will find that in many, many rural areas. The Tribe 

will be the largest employer in the area. 

And so when you think of economically depressed areas that are 

currently awaiting this sort of opportunity, you will find, I think, 

that those local people would really look forward to getting the opportunity to have those jobs. 

So I do believe the ripple effect extends well beyond Indian Country. 

The CHAIRMAN. Thank you. Thank you, Mr. Lomax. 

Mr. Guest? 

Mr. GUEST. Thank you, Mr. Chairman. 

When I think about the ripple effects, again, from more of the 

30,000-foot view, I think about the ripple effects within the courts 

and what this means for Indian Country in the courts. 

Are we moving forward in Indian Country or are we moving 

backward? Are we going to make gains or are we going to have 

losses? I think in my testimony I just talked to just all Carcieri and 

all a Carcieri fix would do is maintain a status quo that existed before the Supreme Court’s decision. 

I think that Congress needs to send the Supreme Court a very, 

very clear message, a message that says we, the Congress, are committed to Indian Country. We are committed to Tribal self-determination. We are committed to Tribal economic self-sufficiency. 

Without that kind of clear message coming from this Congress, 

the courts are going to think that it is open season; that we are 

going to be able to continue to undermine Tribal sovereignty, much 

in the case of which we have seen in Carcieri, what we are witnessing in the Patchak case, and what we are seeing in the lower 

Federal courts, which are following the lead of th Supreme Court. 

So I think that the ripple effects go beyond just the economic and 

public safety concerns, but actually we will see those ripple effects 

in the courts as well. 

The CHAIRMAN. Thank you very much, Mr. Guest. 

Mr. Artman? 

Mr. ARTMAN. Focusing on the narrow area of public safety and 

law enforcement, I am not sure that we have been able to yet 

manifest the ripple effect from the Carcieri decision much like we 

have in the economic area or in the courts. We know when we are 

not getting a loan. 

We know when we are not able to start up a business. But again, 

with public safety, it is a long-term issue. And if it is not something 

that is dealt with now, you will see entities, the defense bar, begin 

49

to take advantage of this opening that they may have. And with 

that opening, we will start to see the ripple effects, again affecting 

the individuals and that will affect the community. It will have a 

very long-term impact not necessarily on the larger entity, but on 

the individuals themselves. 

Thank you. 

The CHAIRMAN. Thank you. Thank you so much for your testimonies and also your responses and your views. It without question 

will help us in our efforts here to work on Congress. 

So I want to again express my mahalo to the witnesses at today’s 

hearing. As we have heard today, the Carcieri decision continues 

to impact Tribes. The decision will continue to significantly hamper 

the ability of Tribes to provide for the needs and safety of their 

members and attract economic opportunities necessary for Tribes to 

be truly, truly self-sufficient. 

The Committee will continue its efforts to make sure a clean 

Carcieri fix is passed this Congress, to restore the original intent 

of the Indian Reorganization Act. 

And so I look forward to your continued contact and advice, and 

without question, we have to work together on this to bring this 

about, and I look forward to that as well. 

So mahalo, thank you very, very much. 

This hearing is adjourned. 

[Whereupon, at 4:10 p.m., the Committee was adjourned.] 

(51)

APPENDIX

PREPARED STATEMENT OF HON. DANIEL K. INOUYE, U.S. SENATOR FROM HAWAII

Mr. Chairman, thank you for holding this important hearing today on the effects 

Carcieri v. Salazar ( Carcieri) has had since the United States Supreme Court ruled 

on the case on February 24, 2009. The case questioned the authority of the Secretary of the Interior to accept land into trust for a tribe recognized after the enactment of the Indian Reorganization Act. Since the court ruling I have supported 

tribes efforts in trying to fix this inherent wrong. I am looking forward to hearing 

the testimonies of today’s witnesses. 

I have heard that the ripple effect this case is having in tribal communities and 

the court system is undeniably just a preview of what is to come. In murder cases 

defense lawyers are using the Carcieri case to raise the questions like: ‘‘Who really 

has jurisdiction over these lands?’’ and ‘‘Are these lands really considered federal 

lands?’’ Because Carcieri calls into question the validity of lands being taken into 

trust these questions might stand up in court. Murderers could walk free. 

To those who might think this is about gaming, this issue is much larger than 

gaming. I have met with tribes who are trying to take lands into trust to build 

homes and schools, to continue their cultural practices, traditional rituals, and provide for their future generations. I have always been personally opposed to gaming 

in Hawaii, more specifically. However, I recognize that for Indian country it has 

been an important economic development tool. Gaming is an inherent right of tribal 

sovereignty. I believe that it has provided many opportunities to tribes they would 

not have otherwise had. 

In my over 30 years of experience working as a member of the Indian Affairs 

Committee, I have traveled throughout Indian Country and witnessed the many 

struggles different tribes are faced with everyday. Taking lands into trust is another 

inherent right of tribal sovereignty and rest assured I support your efforts. I look 

forward to working with my colleagues to try to fix another wrong that has plagued 

our Native communities. 

PREPARED STATEMENT OF PAUL MCINTOSH, EXECUTIVE DIRECTOR, CALIFORNIA

STATE ASSOCIATION OF COUNTIES

Dear Chairman Akaka and Members of the Committee: 

This statement is submitted on behalf of the California State Association of Counties (CSAC), which is the unified voice on behalf of all 58 California counties. Our 

intent is to provide the local government perspective regarding the significance of 

the U.S Supreme Court’s decision in Carcieri v. Salazar, and to recommend measures for the Committee to consider as it seeks to address the implications of this 

decision. 

On February 24, 2009, the Supreme Court held that the Secretary of the Interior 

lacked the authority to take land into trust on behalf of Indian tribes that were not 

under federal jurisdiction upon enactment of the Indian Reorganization Act (IRA) 

in 1934. In the wake of this decision, various proposals have been introduced seeking to restore the Secretary’s authority to take land into trust for all tribes. 

CSAC supports the rights of Indian tribes to self-governance and recognizes the 

need for tribes to preserve their heritage and to pursue economic self-reliance. We 

do not believe, however, that the Secretary of Interior should have unbridled authority to take land into trust for tribes under a broken fee-to-trust system. Unfortunately, the so-called ‘‘quick fix’’ approach as embodied in various pending legislative 

proposals fails to consider the larger problems associated with the fee-to-trust process and would only perpetuate the problems that have resulted in years of expensive 

and unproductive conflict between tribes and local governments. 

Congress should instead address the impacts of the Carcieri decision as part of 

broader trust reform legislation. Rather than a ‘‘quick fix,’’ Congress should work 

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toward a real and lasting solution that is consistent with the original intent of the 

IRA and provides clear and enforceable standards. 

In addition to clear and enforceable standards, the current process also lacks sufficient notification requirements. In many instances, local governments are afforded 

limited, and often late, notice of pending trust land applications. Accordingly, 

changes need to be made to ensure that affected governments receive timely notice 

of fee-to-trust applications for tribal development projects and have adequate opportunity to provide meaningful input. 

CSAC also believes that intergovernmental agreements should be encouraged between tribes and local governments to provide mitigation for adverse impacts of development projects, including environmental and economic impacts from the transfer of the land into trust. When land is placed into trust, the property no longer 

falls under the auspices of local land use jurisdiction and the land is no longer subject to local taxing authority; however, local governments are still required to provide essential services, such as road construction, law enforcement, and welfare 

services. In these difficult economic times, local governments are struggling financially to continue to provide these critical services. Intergovernmental agreements 

to mitigate these costs would be beneficial for both tribal and local governments. 

In our view, a balanced trust reform proposal would extend tribal trust land acquisition authority to the Secretary and would also include clear direction to: (1) 

provide adequate notice to local governments, (2) consult with local governments, (3) 

provide incentives for tribes and local governments to work together, and (4) provide 

for cooperating agreements that are enforceable. 

Thank you for the opportunity to provide comments regarding this very important 

matter. CSAC remains committed to continuing to work with Congress to develop 

a fee-to-trust process that balances the needs of both tribal and local governments. 

For more information on our position, please see the attached document, which includes joint testimony from CSAC and the National Association of Counties (NACo) 

that was delivered earlier this year at a House Natural Resources Committee hearing on Carcieri. 

Attachment

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PREPARED STATEMENT OF HON. WILLIAM IYALL, CHAIRMAN, COWLITZ INDIAN TRIBE

Introduction 

I am William Iyall, Chairman of the Cowlitz Indian Tribe of Washington State. 

I ask that the Senate Committee on Indian Affairs include this written testimony 

in its record for the Oversight Hearing on the Carcieri Crisis. Although the Cowlitz 

Tribe was restored to federal recognition when it was acknowledged through the Department of the Interior’s federal acknowledgement process in 2002, and even 

though we applied to have land taken into trust for us on the very same day on 

which our acknowledgement became final, today, nearly a decade later, my Tribe 

still has no reservation.

There is a long list of reasons why my Tribe remains landless today—the legal 

and political hoops through which tribes must jump to acquire land in trust have 

been constantly changing and constantly narrowing during the entire time period 

in which my Tribe has been involved in the administrative fee-to-trust process. The 

financial cost of navigating these hurdles has been staggering. As a landless tribe 

we have no significant source of tribal income. Accordingly, we have had to borrow 

every penny needed to cover the costs associated with purchasing land, with complying with the administrative fee-to-trust process, reservation proclamation, and 

National Environmental Policy act processes, and with responding to the constant 

political pressure brought to bear by gaming tribes and non-Indian gaming interests 

which wish to monopolize their markets. Like any borrower, we pay interest on that 

debt. Every day that we have no reservation is another day on which we defer economic development, and is another day on which the interest on our debt is further 

compounded. 

It is against that backdrop that we hope the United States Congress will be able 

to understand the crippling effect that the Supreme Court’s decision in Carcieri v. 

Salazar, 129 S. Ct. 1058 (2009) has had on tribes like mine and tribes throughout 

Indian Country. Just when we had finally completed the onerous, expensive, and 

time-consuming fee-to-trust process in January 2009, a month later the Court issued 

its decision, and the Department of the Interior—hoping that Congress would address Carcieri—held off taking action on the Cowlitz application for almost another 

two years. 

The last Congress failed to enact a Carcieri fix which simply, cleanly, makes clear 

that all tribes will be treated equally under the Indian Reorganization Act. If this 

Congress again fails in that task, that failure no doubt will forever be counted 

among the many black marks in the United States’ history of dealings with Indian 

tribes. 

Carcieri and the Cowlitz Fee-to-Trust Application 

The Tribe’s fee-to-trust application was completed and was awaiting final action 

by the Secretary when the Obama Administration took office in January 2009. Unfortunately, a month later, the Court issued its Carcieri opinion, and as a result, 

the Cowlitz application was put on hold while the Department of the Interior considered the implications of the decision. Because we could obtain no guidance from the 

Department as to how the Department would interpret and apply the Carcieri decision, the Tribe on its own was forced to embark on an intensive—and I have to underscore extremely expensive—effort to provide the Department with a legal analysis, and to collect an enormous amount of evidence. In June of 2009, the Tribe supplemented the already voluminous record supporting its fee-to-trust application by 

providing the Department with a comprehensive, lengthy legal analysis demonstrating that as a matter of law, my Tribe was under federal jurisdiction when 

the Indian Reorganization Act (IRA) was enacted in 1934, as required by the holding in the Carcieri case. We also submitted over 260 documents from federal records 

demonstrating that not only did the Federal Government have jurisdiction as a legal 

matter, but also that the Department of the Interior was in fact exercising jurisdiction during that time period. After another year passed while the Department continued to evaluate its approach to the Carcieri decision, the Department requested 

further legal analysis, which the Tribe provided in August 2010. 

Later that year, after the Congress adjourned without enacting ‘‘Carcieri fix’’ legislation, on December 23, 2010 the Department of the Interior finally issued its decision to acquire trust title to approximately 151 acres of land in Clark County, Washington and to issue an initial reservation proclamation for that land. In its record 

of decision (ROD) the Department included nearly thirty pages of discussion wherein it concluded that the Cowlitz Tribe was indeed ‘‘under federal jurisdiction’’ in 

1934 and therefore no Carcieri issue was present. Opponents of my Tribe, driven 

by the market-protection interests of local non-Indian card rooms and a tribe with 

a gaming facility in a neighboring state, now have challenged the Department’s feeVerDate 0ct 09 2002 09:39 Jun 27, 2012 Jkt 074295 PO 00000 Frm 00066 Fmt 6601 Sfmt 6621 S:\DOCS\74295.TXT JACK
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to-trust decision on the basis of the Carcieri decision. Not only do these litigants 

assert that because of Carcieri the Secretary does not have authority to acquire land 

in trust for the Cowlitz Tribe, but they go so far as to assert that the Secretary 

lacks authority to acquire land in trust for any tribe that was not formally recognized in 1934. If these litigants are able to set this precedent, there will be two, unequal classes of tribes in the United States.

The Costs of the Carcieri Uncertainty 

The uncertainly caused by the Carcieri decision has had real, varied, deep and 

disturbing costs for my Tribe. I have outlined just a few of these costs below for 

the Committee’s consideration. 

I. The Tribe Continues to be Deprived Access to Numerous Reservation-Based Federal 

Programs 

Many of the federal grant programs and economic development opportunities 

available to tribes and tribal members are reservation based—they require that the 

tribe have a reservation or trust lands to be eligible for the funding. For example, 

we recently applied for an implementation grant for a tribal court program under 

the Tribal Court Assistance grant program administered by the Department of Justice. We sought the grant to assist in creating a tribal court system for the Tribe. 

But the Department of Justice rejected our grant application because we have no 

reservation or trust land over which to exercise jurisdiction. Other examples of reservation-based funding—for which we are not eligible—include:

• The Indian Business Development Program (25 U.S.C. § 1521) which provides 

business development grants to Indian-owned economic enterprises ‘‘on or near 

reservations;’’

• The Financial Assistance and Social Services Programs (25 C.F.R. Part 20) 

which provides federal social services to Indians who reside ‘‘on or near reservations;′′

• Employment Assistance for Adult Indians (25 C.F.R. Part 26) which requires applicants to reside ‘‘on or near Indian reservations;’’

• Vocational Training for Adult Indians (25 C.F.R. Part 27) which requires applicants to reside ‘‘on or near Indian reservations;’’

• Education contracts under the Johnson-O’Malley Act (25 C.F.R. Part 273) which 

gives priority to contracts that would serve Indian students ‘‘on or near reservations;’’ and

• The Food Distribution Program on Indian Reservations (7 C.F.R. Part 253 & 

254) which requires eligible participants to live in low-income households that 

reside ‘‘on or near all or any part of any Indian reservation.’’

Because the Tribe has no trust or reservation lands, the Tribe and its members 

are unable to access these and other basic federal programs available to other tribes 

in the United States; programs that provide much needed fundamental assistance 

and resources. The denial of these kinds of opportunities inhibits the economic and 

social growth and development of the Cowlitz Tribe and its members. These programs would help Cowlitz to maintain a basic level of living for our members, to 

advance their educational opportunities, and to foster a better Tribal community 

overall. 

In addition, these programs would have created jobs in our community that do not 

currently exist. Not only would the Cowlitz have benefited from the influx of new 

positions created as a result of these programs but our neighboring communities 

would have benefited as well. In this sense, the Cowlitz take a double hit from the 

Carcieri decision which has prolonged our landless status—not only are we unable 

to access the desperately needed services that these programs offer, but we also are 

deprived of the secondary economic benefits from the jobs they would have created. 

II. Carcieri Has Impacted Tribal-State Gaming Compact Negotiations With the State 

of Washington 

The Cowlitz Tribe has been trying to negotiate a Tribal-State gaming compact 

with the State of Washington (‘‘State’’ or ‘‘Washington’’) for several years. Under the 

provisions of the standard Tribal/State gaming compact in Washington, each tribe 

is granted a certain allotment of gaming machines. Tribes with compacts that do 

not have gaming facilities may lease their allotted machines to tribes with gaming 

facilities. This compact provision allows tribes that do not operate casinos to reap 

some of the benefits available to gaming tribes under the Indian Gaming Regulatory 

Act (IGRA). 

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1Section 2710(d)(8)(A) of IGRA ‘‘. . . does not authorize the Secretary to approve a compact 

for the conduct of Class IIII gaming activities on lands that are not now, and may never be, 

Indians lands of such Indian tribe... Therefore, approval of the Compact before the Cascade 

Locks land is taken into trust would violate Section 2710(d)(8)(A) of IGRA, and thus, the Compact must be disapproved.’’ Letter from James E. Cason, Associate Deputy Secretary to Governor Theodore R. Kulongoski (May 20, 2005). 

Since the Cowlitz Tribe is landless, Cowlitz is unable to operate a gaming facility, 

but we have tried to negotiate a gaming compact with the State of Washington so 

that we could obtain the significant and sorely-needed economic benefits available 

under the compact’s machine leasing provisions. The funds that would be available 

to us from leasing our allotted gaming machines to other tribes are desperately 

needed to finance our tribal government and to finance our efforts to fight the litigation brought to challenge our trust acquisition based on the Carcieri decision. Unfortunately, until recently, a Bush-era policy known as the ‘‘Warm Springs Doctrine’’ 

prevented the Cowlitz Tribe from entering into a compact with the State of Washington. 1 Under the Warm Springs Doctrine, the Department reversed twenty years 

of policy and practice, and decided that it would not approve any site-specific tribalstate gaming compacts for land that was not yet held in trust. As a landless tribe, 

therefore, Cowlitz was unable to enter into a gaming compact with the State of 

Washington that would gain Interior’s approval. 

The Obama Administration overturned the Warm Springs Doctrine on March 1, 

2011, when it deemed approved the gaming compact between the Confederated 

Tribes of the Warm Springs Reservation and the State of Oregon. See 76 Fed. Reg. 

11258 (Mar. 1, 2011). This reversal in policy means that states again are free to 

enter into site-specific gaming compacts with tribes for land that is not yet held in 

trust. However, the State of Washington continues to delay compact negotiations 

over concerns about entering into a gaming compact with Cowlitz prior to any land 

being taken in trust. As a result, we still have no compact with the State. In short, 

the Carcieri decision is blocking my Tribe’s ability to access much-needed economic 

benefits to which we would otherwise be entitled under our tribal-state gaming compact; the same benefits that our sister tribes in Washington enjoy. 

III. Carcieri Prevents the Tribe From Creating Jobs for Its Members and the

Surrounding Community 

Finally, while we are forced to litigate the Carcieri issue, my Tribe and our neighboring communities are missing out on the economic benefits that our gaming and 

hotel project will generate. The Cowlitz Casino Resort will create over 4,000 construction jobs with an average wage of $46,200. After construction is complete the 

Cowlitz Casino Resort will employ over 3,150 full-time employees with an average 

wage of $28,000 and a total annual payroll of $88,135,000. In addition, the project 

will create thousands of other jobs that will result from new local spending generated by both the resort and the people who live there. The Cowlitz project would 

provide much-needed jobs and an economic boost to Clark County, Washington, 

which currently has an unemployment rate of 10.4 percent. The Tribe also has committed to make payments to the local community to address problem gaming, and 

will make other payments to benefit the local community and the State of Washington under its Tribal-State gaming compact, once the State agrees to negotiate a 

gaming compact. 

In the meantime, interest on the money we had to borrow to buy land and complete the fee-to-trust process continues to accrue at an alarming rate. (No federal 

funds have been appropriated to acquire land for Indians since the 1950s, so landless tribes like ours have no other option but to borrow.) New money to borrow is 

almost impossible to find, as banks and lenders have become wary of loaning money 

to tribes unrecognized in 1934 because of the uncertainty Carcieri has created. The 

Cowlitz Tribe wants to be economically self-sufficient, it wants to support its government, and it wants to invest in the local community, and finally having our land 

in trust and proclaimed a reservation would allow us to achieve those goals. But 

the Carcieri Crisis delays all the good that my people could accomplish with the revenues from the Cowlitz project. Instead of taking care of our members and working 

with our neighbors to achieve economic benefits for everyone, we are forced to take 

on more and more debt to finance this fight. Every day that Congress delays implementing a ‘‘Carcieri fix’’ my Tribe’s debt grows, thousands of jobs are not created, 

and economic growth and self-sufficiency remain out of reach. 

Conclusion 

Congress must step in and resolve the Carcieri Crisis by implementing a legislative fix that acknowledges the Secretary of the Interior’s authority to take land in 

trust for all federally recognized tribes. My Tribe steadfastly worked through the adVerDate 0ct 09 2002 09:39 Jun 27, 2012 Jkt 074295 PO 00000 Frm 00068 Fmt 6601 Sfmt 6621 S:\DOCS\74295.TXT JACK
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ministrative recognition process, and then through the administrative process to 

take land in trust, and we conclusively demonstrated that the Cowlitz were ‘‘under 

federal jurisdiction’’ in 1934. The Secretary agreed to accept land in trust for my 

Tribe but instead of finally obtaining a land base we are forced to spend untold 

sums of money litigating the Carcieri issue. After almost thirty-five years of working 

within the system created by Congress and the Department of the Interior, the Cowlitz Tribe has little to show. We still have no homeland to call our own and are denied access to many of the federal programs and opportunities that require a reservation. Meanwhile, the debt we must incur to litigate the challenges to our trust 

acquisition are mounting. Our children will bear the costs of Carcieri for decades 

to come. 

Accordingly, I implore this Congress to enact Carcieri-fix legislation as soon as 

possible, to make crystal clear that the IRA applies equally to all federally recognized tribes. Congress must reaffirm the fundamental legal principles as well as the 

basic policies underlying the IRA, and must confirm that the Department’s implementation of the IRA over the past three-quarters of a century has been proper and 

entirely in keeping with those well-established legal principles and policies. Failure 

to act will result in unconscionable uncertainty, delay, and hardship for Indian 

country, and in particular, continuing obstruction to self-determination and economic self-sufficiency for landless tribes like Cowlitz.

Æ