89–010 

Calendar No. 515 

111TH CONGRESS REPORT " ! SENATE 2d Session 111–247 

AMENDING THE ACT OF JUNE 18, 1934, TO REAFFIRM 

THE AUTHORITY OF THE SECRETARY OF THE INTERIOR TO TAKE LAND INTO TRUST FOR INDIAN TRIBES 

AUGUST 5, 2010.—Ordered to be printed 

Mr. DORGAN, from the Committee on Indian Affairs, 

submitted the following 

R E P O R T 

[To accompany S. 1703] 

The Committee on Indian Affairs, to which was referred the bill 

(S. 1703) to amend the Act of June 18, 1934, to reaffirm the authority of the Secretary of the Interior to take land into trust for 

Indian tribes, having considered the same, reports favorably thereon, and recommends that the bill do pass as amended. 

PURPOSE

S. 1703 clarifies the continuing authority of the Secretary of the 

Interior, under the Indian Reorganization Act of 1934, to take land 

into trust for all Indian tribes that are federally recognized on the 

date on which the land is placed into trust. 

BACKGROUND

Land holds great meaning to Indian tribes, just as it does for 

other governments. For tribes, land provides a means to advance 

tribal sovereignty and self-determination. Tribes need land in trust 

for a wide range of beneficial purposes. Trust land is essential to 

tribes’ ability to protect or promote their historic, cultural and religious ties to land where their ancestors lived. Trust land is also 

vital to tribal economic development and self-government as tribes 

provide a wide range of governmental services to their members including, running schools and health clinics, administering housing, 

and providing court, law enforcement and numerous other key social and governmental services. Land taken into trust for Indian 


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1See Board of County Comm’rs v. Seber, 318 U.S. 705, 715 (1943). 2To Grant Indians Living Under Federal Tutelage the Freedom to Organize for Purposes of 

Local Self-Government and Economic Enterprise: Hearing on S. 2755 Before the Senate Comm. 

on Indian Affairs, 73rd Cong., 2d Sess., 30–31 (1934) (testimony of Commissioner of Indian Affairs John Collier). 3These problems were identified in a 1928 report, known as the ‘‘Meriam Report,’’ which was 

prepared by the Institute for Government Research at the direction of the Secretary of the Interior, Hubert Work. The Institute undertook a survey of the social and economic status of Indians, and found, among other things, that the loss of Indian land was among the principal causes 

of the resulting poverty of Indian people. See Institute for Government Research, ‘‘The Problem 

of Indian Administration’’ (February 21, 1928.) 4 H.R. Rep. No. 1804, 73rd Cong., 2d Sess., at 6 (1934). 

5 78 Cong. Rec. 11,727–28 (1934). 

6 78 Cong. Rec. 11,726–727 (1934) at 11,727; see also 78 Cong. Rec. 11,123 (June 12, 1934) 

(statement of Senator Wheeler, sponsor of the bill in the Senate, echoing the remedial goals in 

relation to Indian lands). 

tribes directly furthers these and other self-determination functions. 

The long history of Indian land losses is well known. From the 

very first days of the Republic, Indian tribes have given up large 

areas of land to the United States, which in return has assumed 

the duty of protecting the tribes on those lands retained.1 But despite the government’s trust obligation to protect Indian landholdings, tribes continued to suffer devastating land losses at the 

hands of the federal government. The federal allotment policy alone 

resulted in a loss of more than 100 million acres of tribal homelands.2 The destruction of tribal economies, institutions, and communities followed directly from the decimation of the tribal land 

base. The history and circumstances of land loss and the economic, 

social, and cultural consequences of that loss, are at the core of 

government’s federal trust responsibility toward Indian tribes. 

Congress was aware of these problems 3 and intended to reverse 

these tribal land losses when it enacted the Indian Reorganization 

Act of 1934, 25 U.S.C. 461–479. The Indian Reorganization Act 

(IRA) (also known as the ‘‘Wheeler-Howard Act’’ for the bill’s congressional sponsors or informally as ‘‘the Indian New Deal’’) sought 

to strengthen tribal governments and restore the Indian land base. 

The sponsors of the IRA expressed their intent to ‘‘rehabilitate the 

Indian’s economic life and to give him a chance to develop the initiative destroyed by a century of oppression and paternalism.’’ 4

The IRA authorized the Secretary of the Interior to take lands into 

trust for tribes to reverse the significant historic losses of tribal 

homelands. Since the enactment of the IRA, approximately five 

million acres of land have been acquired and placed into trust for 

Indian tribes and their members. 

Congressman Howard of Nebraska, the sponsor of the bill in the 

House of Representatives and Chairman of the House Indian Affairs Committee, described the ‘‘staggering’’ losses of Indian lands.5

He explained that the Act would help remedy the problem by preventing ‘‘any further loss of Indian lands’’ and permitting the purchase of additional lands.6 Congressman Howard reasoned that the 

restoration of the tribal land base was not only a legal but also a 

moral obligation. ‘‘[T]he land was theirs under titles guaranteed by 

treaties and law; and when the government of the United States 

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

misappropriation of the Indian estate, the government became morally responsible for the damage that has resulted to the Indians 

from its faithless guardianship.’’ He further stated that the purpose 


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7 78 Cong. Rec. 11,732 (1934). 

8See S. Rep. No. 1080, at 2 (stating that section 5 would ‘‘meet the needs of landless Indians 

and of Indian individuals and tribes whose land holdings are insufficient for self-support’’); H.R. 

Rep. No. 1804, at 6 (noting that the purchase of lands would help ‘‘[t]o make many of the now 

pauperized, landless Indians self-supporting’’); 78 Cong. Rec. 11,730 (statement of Rep. Howard 

that section 5 would ‘‘provide land for Indians who have no land or insufficient land, and who 

can use land beneficially’’) 9See, e.g., S. Rep. No. 1080. 10Morton v. Mancari, 417 U.S. 535, 542 (1974). 11See Morton, 417 U.S. at 543, Iowa Mutual Ins. Co. v. LaPlante, 480 U.S. 9, 14 n.5 (1987); 

Fisher v. District Court, 424 U.S. 382, 387 (1976). 12Mescalero Apache Tribe v. Jones, 411 U.S. 145, 151–52 (1973) (citations omitted). 13See California v. Cabazon Band of Mission Indians, 480 U.S. 202, 219 (1987); White Mountain Apache Tribe v. Bracker, 448 U.S. 136, 143 & n. 10 (1980). 14 78 Cong. Rec. 11,729 (1934). 

of the IRA was ‘‘to build up Indian land holdings until there is sufficient land for all Indians who will beneficially use it.’’ 7

Congress understood that a land base was essential for the economic advancement and self-support of the Indian communities 

and the preservation of tribal culture. The need to provide land for 

Indians was recognized as an important part of the Act 8 as it 

would be beneficially used to increase Indian self-support.9

Congress saw the IRA as a means not simply of halting the prior 

federal policies that had so destroyed Indian communities and Indian economies but reversing the course that led to those losses. 

The IRA has been recognized as one of the most important pieces 

of Indian legislation in American history. It made a change in federal Indian policy intended ‘‘to establish machinery whereby Indian 

tribes would be able to assume a greater degree of self-government, 

both politically and economically.’’ 10 By the Act, Congress sought 

to revitalize and strengthen the institutions of tribal government,11

and ‘‘rehabilitate the Indian’s economic life and to give him a 

chance to develop the initiative destroyed by a century of oppression and paternalism’’ so that a ‘‘tribe taking advantage of the Act 

might generate substantial revenues for the education and the social and economic welfare of its people.’’ 12 These principles have 

served as the foundation for federal Indian policy in the modern 

era of tribal self-determination.13

Restoration of land to tribal ownership was central to the overall 

purposes of the IRA. Congress consistently recognized that the restoration of tribal land bases by taking land into trust was essential 

to tribal self-determination. As Congressman Howard succinctly 

stated during the House consideration of the measure, ‘‘[l]and reform and in [sic] a measure home rule for the Indians are the essential and basic features of this bill.’’ 14

The IRA was signed into law on June 18, 1934. Section 5 of the 

IRA provides for the recovery of the tribal land base and is integral 

to the IRA’s overall goals of recovering from the loss of land and 

reestablishing tribal economic, governmental and cultural life: 

The Secretary of the Interior is hereby authorized, in his 

discretion, to acquire, through purchase, relinquishment, 

gift, exchange, or assignment, any interest in lands, water 

rights, or surface rights to lands, within or without existing reservations, including trust or otherwise restricted allotments, whether the allottee be living or deceased, for 

the purpose of providing land for Indians. 

* * * * * 


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15 25 U.S.C. § 465. 16G. William Rice, The Indian Reorganization Act, The Declaration on the Rights of Indigenous Peoples, and a Proposed Carcieri’Fix’: Updating the Trust Land Acquisition Process, 45 

Idaho L. Rev. 575, 587–89 (2009). 17Prior to 1980 and after passage of the IRA in 1934, Interior used an internal process to 

decide when and how a tribe could put land in trust. Although the 1980 regulations were subject 

to comment before they were finalized, the process as it currently stands closely resembles Interior’s pre-1980 unpublished guidelines. Padraic I. McCoy, The Land Must Hold the People: Native Modes of Territoriality and Contemporary Tribal Justifications for Placing Land into Trust 

Through 25 C.F.R. Part 151, 27 Am. Indian L. Rev. 421, 453–54 (2003). 18 25 C.F.R. § 151.2(b). 19 25 C.F.R. §§ 151.2(c)(1)–(3). 

Title to any lands or rights acquired pursuant to this Act 

. . . shall be taken in the name of the United States in 

trust for the Indian tribe or individual Indian for which 

the land is acquired, and such lands or rights shall be exempt from State and local taxation.15

Of the more than 100 million acres of tribal homelands lost 

through the allotment process alone, only approximately 8 percent 

have been restored to trust status since the IRA was passed 75 

years ago. Still today, a number of federally recognized Indian 

tribes have no land base or insufficient lands to support a governing base, or basic community needs such as housing, education, 

or economic development. In addition, many tribal land parcels are 

deeply fractionated, a result of allotment policies, which means 

that far more Indian land passes out of trust than gets taken into 

trust each year.16

THE DEPARTMENT OF THE INTERIOR’S LAND INTO TRUST PROCESS

For the more than 75 years since enactment of the IRA, the Department of the Interior understood and construed the Act to authorize the Secretary to acquire land in trust for the benefit of any 

tribe that was federally recognized at the time of the trust land acquisition. The Interior Department’s statutory construction of the 

Act was confirmed when the Department, in 1980, promulgated formal regulations to guide the Secretary’s decision-making process 

when exercising authority to place tribal land into trust pursuant 

to the IRA.17 The regulations at 25 C.F.R. Part 151 define the term 

‘‘tribe’’ to mean ‘‘any Indian tribe, band, nation, pueblo, community, 

Rancheria, colony, or other group of Indians . . . which is recognized by the Secretary as eligible for the special programs and 

services from the Bureau of Indian Affairs.’’ 18 The term ‘‘individual 

Indian’’ means ‘‘any person who is an enrolled member of a tribe,’’ 

any person who is a descendant of a tribal member who, in 1934, 

resided ‘‘on a federally recognized Indian reservation,’’ and persons 

‘‘of one-half or more degree Indian blood of a tribe.’’ 19

These regulations govern both on and off-reservation land into 

trust acquisitions. The 151 process is initiated when an Indian 

tribe or an individual Indian submits a written request to take 

land into trust to their local Bureau of Indian Affairs (BIA) agency 

or regional office. The BIA makes several determinations following 

the initial request, including whether the acquisition is mandatory 

or discretionary and whether the acquisition is on or off reservation. 

For on-reservation land into trust acquisitions, the applicant 

must submit (1) a map and a legal description of the land; (2) a 

justification of why the land should be placed in trust; and (3) inVerDate Mar 15 2010 03:42 Aug 07, 2010 Jkt 089010 PO 00000 Frm 00004 Fmt 6659 Sfmt 6602 E:\HR\OC\SR247.XXX SR247

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20 In making his determination on off-reservation parcels, the Secretary must take into account the criteria for on-reservation parcels as well as the location of the land relative to state 

boundaries and the distance of the parcel from the reservation, the anticipated economic benefits associated with the proposed use, and the comments received from the state and local governments. 25 C.F.R. § 151.11. 21 25 C.F.R. §§ 151.10, 151.11. 22 Id. 23 25 CFR § 151.12(b). 24 129 S. Ct. 1058 (2009). 

formation on the present use of the property, the intended use of 

the property, and whether there are any improvements on the 

land. The Regional Office or Agency Superintendent makes the 

final determination of whether to approve the on-reservation application. In making its decision, the BIA takes into account such factors as the need of the individual Indian or tribe, the impact on the 

state and its political subdivisions resulting from removing the 

land from the tax rolls, any jurisdictional issues that may arise, 

and whether the BIA is equipped to carry out its trust responsibilities if the land is acquired. For off-reservation land acquisitions 

additional information is required, including a business plan if the 

acquisition is to be used for economic development purposes. Offreservation acquisition decisions are made at the BIA’s Central Office in Washington, D.C.20

Once all the relevant information has been provided, the BIA 

sends out notification letters to the state, county, and municipal 

governments with regulatory jurisdiction over the land, notifying 

them of the application and requesting comments on the impact if 

the lands are acquired as trust lands.21 Specifically, the BIA requests information on the change to the local government’s regulatory jurisdiction, affect on real property taxes, and special assessments.22 If, following this process, the Secretary decides to take the 

land into trust, the Secretary publishes a notice of the decision in 

the Federal Register with a statement that the Secretary shall ‘‘acquire title in the name of the United States no sooner than 30 days 

after notice is published.’’ 23

NEED FOR THE LEGISLATION

The recent Supreme Court decision, Carcieri v. Salazar,24 will 

erode congressional intent of the IRA, and will serve as a barrier 

to meeting the Act’s goals of tribal land restoration. The Carcieri 

decision runs contrary to longstanding and settled practice of the 

Department of the Interior regarding trust land acquisitions; invites disparate treatment of federally recognized tribes contrary to 

previous Acts of Congress; creates uncertainty about the scope of 

the Secretary’s authority; and threatens unnecessary and burdensome administrative proceedings and litigation for both the United 

States and the tribes on matters that Congress long ago intended 

to resolve. As a result, Senator Dorgan introduced, and the Committee approved, S. 1703 to confirm the Secretary of the Interior’s 

authority to place land into trust for all tribes that are federally 

recognized on the date the Secretary takes the land into trust, and 

to ratify trust land acquisitions already made by the Secretary 

under the IRA. 


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25 25 C.F.R. § 83. 

THE CARCIERI V. SALAZAR CASE

On February 24, 2009, the Supreme Court issued its decision in 

Carcieri v. Salazar, holding that the Secretary of the Interior did 

not have the authority to take land into trust status under the IRA 

for the Naragansett Indian Tribe (Tribe) because the Tribe was not 

‘‘under federal jurisdiction’’ in 1934 when the IRA was enacted. The 

majority opinion was written by Justice Thomas. Justice Breyer 

filed a concurring opinion. Justice Souter filed an opinion concurring in part and dissenting in part, which was joined by Justice 

Ginsburg. Justice Stevens was the sole dissenter. 

The Carcieri case involved a challenge by the Governor of Rhode 

Island to the Secretary of the Interior’s authority to take land into 

trust status for the Narragansett Indian Tribe pursuant to the 

IRA. The Tribe obtained federal recognition in 1983 through the 

administrative process within the Department of the Interior. This 

process is set forth through federal regulations adopted in 1978.25

In acknowledging the Tribe’s relationship with the federal government, the Assistant Secretary—Indian Affairs had to be satisfied 

that the Tribe had existed continuously since first European contact and had a documented history since 1614. 

While the Tribe’s petition for federal acknowledgement was pending before the Interior Department, the Tribe also brought a land 

claim against the State of Rhode Island in the 1970’s to recover its 

ancestral land, claiming that the State had misappropriated tribal 

land in violation of federal law. Those claims were resolved by a 

settlement agreement that was codified by Congress in 1978. 

Under the settlement agreement, the Tribe received title to 1,800 

acres of land in Rhode Island, in exchange for relinquishing its 

past and future claims to other lands. Those lands became the 

Tribe’s initial reservation, and remained under state jurisdiction. 

In 1991, the Tribe’s housing authority purchased 31 acres of land 

adjacent to the Tribe’s initial reservation. Soon after the purchase, 

a dispute arose about whether the Tribe’s planned construction of 

housing on the 31-acre parcel had to comply with local regulations. 

The Tribe requested that the Secretary of the Interior place the 

land in trust. On March 6, 1998, the Interior Department expressed its intent to acquire the land in trust. Before the land was 

placed in trust, Rhode Island challenged the Department’s decision 

in a number of administrative appeals and then by suit in Federal 

district court. One of the State’s arguments was that the phrase 

‘‘now under federal jurisdiction’’ in section 19 of the IRA, 25 U.S.C. 

§ 479, limited the Secretary’s authority to acquire land in trust 

under section 5 of the IRA, 25 U.S.C. § 465, to only those Indian 

tribes that were ‘‘under federal jurisdiction’’ as of 1934. The Secretary of the Interior contended that the IRA applies to all tribes 

that were federally recognized at the time that land was taken into 

trust. The Federal district court held that since the Narragansett 

Tribe is currently recognized and existed at the time of the enactment of the IRA, it qualified as an Indian tribe’ within the meaning 

of the IRA. The First Circuit Court of Appeals held that the term 

‘‘now’’ was ambiguous as to whether it meant at the moment Congress enacted the law or at the moment the Secretary invokes the 

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26 Carcieri, 129 S.Ct. at 1064. 27See Id. at 1067. 28 25 U.S.C. §§ 479a, 479a–1. 29 25 U.S.C. § 450b(e). 30Pub. L. 103–454 (1994), codified at 25 U.S.C. 479a–1. 31 H.R. Rep. No. 103–781 at 3 (1994) as reprinted in 1994 USCCAN 3768. 

tion of the provision of the IRA. The State then sought review by 

the United States Supreme Court. 

On February 24, 2009, the Supreme Court issued its decision in 

Carcieri v. Salazar, reversing the lower courts’ rulings and holding 

that the Secretary of the Interior did not have the authority to take 

land into trust under 25 U.S.C. § 465 for the Narragansett Tribe, 

because the Tribe was not ‘‘under federal jurisdiction,’’ as that term 

is used in the definition of ‘‘Indian’’ in 25 U.S.C. § 479. The Court 

pointed to the parties’ agreement that the definition of ‘‘Indian’’ in 

§ 479 determines which tribes may rely on § 465, and stated that 

the case turned on ‘‘whether the Narragansetts are members of a 

‘recognized Indian Tribe now under federal jurisdiction.’ ’’ 26 The 

Court then held that ‘‘now’’ means 1934, when the Indian Reorganization Act was enacted, rather than the date that the Secretary 

intended to act to take land into trust. It did so notwithstanding 

the absence of the word ‘‘now,’’ or any other temporal qualifier, in 

the separate definition of ‘‘tribe,’’ which also appears in § 479, and 

despite its recognition that § 465 authorizes the Secretary to take 

land into trust for a tribe.27 No effort was made by the parties to 

the case to demonstrate that the Narragansett were ‘‘under federal 

jurisdiction’’ at the time of the IRA. Nevertheless, the Court found 

that because ‘‘the record establishes that the Narragansett Tribe 

was not under federal jurisdiction when the IRA was enacted,’’ the 

Secretary lacked authority to take land into trust for the Narragansett Indian Tribe. 

UNEQUAL TREATMENT OF FEDERALLY RECOGNIZED INDIAN TRIBES

The Carcieri decision may have the detrimental effect of creating 

two classes of Indian tribes—those who were ‘‘under federal jurisdiction’’ as of the date of enactment of the Indian Reorganization 

Act in 1934 for whom land may be taken into trust, and those who 

were not. This disparity would directly conflict with prior Acts of 

Congress, including the Act of November 2, 1994,28 the 1994 

Amendments to the IRA, and federal policy supporting self-determination for all federally recognized Indian tribes.29

Congress affirmed its intent that all federally recognized tribes 

be equally treated under the law in 1994 when Congress passed 

the ‘‘Federally Recognized Indian Tribe List Act of 1994’’ (Tribal 

List Act) 30 which requires the Secretary to publish an annual list 

of all federally recognized tribes which, Congress explained, ‘‘establishes tribal status for all federal purposes.’’ 31 Also in 1994, Congress amended the IRA to prohibit federal agencies from taking action that ‘‘classifies, enhances, or diminishes the privileges and immunities available to the Indian tribe relative to other federally 

recognized tribes by virtue of their status as Indian tribes.’’ 25 

U.S.C. § 476(f). By these statutes, Congress instructed that there be 

no second class tribes. These Acts are direct statements from Congress that federal agencies do not have the right to discriminate 


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32 Id. 33 25 U.S.C. sec. 479a–479a–1. 

based on the history of how a federally recognized tribe reached 

that status.32

The Carcieri case, however, threatens to create two classes of 

tribes contrary to settled law and express Congressional intent. 

The Committee believes there is no logical policy reason for treating tribes differently based on date of federal recognition. 

HIGH COSTS OF LITIGATION TO THE UNITED STATES AND INDIAN

TRIBES

The Carcieri decision may provoke a large number of lawsuits regarding pending and already acquired lands and the issue of 

whether tribes were ‘‘under federal jurisdiction’’ in 1934. Such litigation would be burdensome and cause delay in the government’s 

exercise of its general trust responsibility to Indian tribes, and its 

specific obligations under the IRA. These delays will in turn undermine the broad remedial policies of the IRA and the current federal 

policy of tribal self-determination. S. 1703 seeks to prevent litigation over trust land acquisitions that might otherwise arise from 

the Carcieri decision. 

The term ‘‘under federal jurisdiction’’ is not defined in federal 

law, regulation, or in the legislative history leading up to the enactment of the Indian Reorganization Act. Even prior to enactment of 

the IRA, the United States had no formal term for acknowledging 

the existence of an Indian tribe. The federal government used the 

terms ‘‘in amity with the government’’ and ‘‘having existing treaties 

with the government’’ up until the late 1800’s. It was not until then 

that the terms ‘‘recognized’’ and ‘‘recognition’’ were used in the jurisdictional sense. As a result, Indian Tribes, the Department of 

the Interior, and Federal courts reviewing future land into trust acquisitions have little insight as to whether a tribe that was not formally recognized in 1934 would be considered ‘‘under federal jurisdiction.’’ In addition, the United States did not have an accurate 

list of federally recognized Indian tribes until after 1994, when 

Congress enacted the Federally Recognized Tribal List Act.33 Thus, 

even the initial determination of whether a tribe was formally recognized in 1934 will be a difficult question to determine. This significant uncertainty will flood federal court rooms with lawsuits for 

decades and cost both tribes and the United States significant resources. 

The concurring opinions of Justices Breyer and Souter acknowledged this fact. They noted that even though a tribe was not formally recognized by the federal government in 1934, that tribe may 

not be precluded from having been ‘‘under federal jurisdiction’’ at 

that time. In his concurring opinion Justice Breyer draws attention 

to the fact that many tribes were left off of the list of tribes covered 

by the IRA reportedly compiled by the Department of the Interior. 

Other tribes were later acknowledged to have been under federal 

jurisdiction at an earlier time, even though circumstances prevented the government from knowing that at the time. Justice 

Souter also made this point stating that ‘‘nothing in the majority 

opinion forecloses the possibility that the two concepts, recognition 

and jurisdiction, may be given separate content.’’ 


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Another concern generated by the Carcieri decision relates to 

parcels already held in trust by the federal government. Although 

challenges to the validity of title to Indian trust are barred by existing law and the Quiet Title Act, 28 U.S.C. 2409a, and should ultimately be dismissed, illegitimate, unsuccessful legal challenges 

can be brought. Such cases would impose significant costs on the 

United States and tribal governments. S. 1703 is intended to prevent such challenges to land already held in trust by ratifying the 

Secretary’s action in taking such lands into trust. 

LEGISLATIVE HISTORY

On May 21, 2009, the Committee held a hearing to examine Executive Branch authority to acquire trust lands for Indian tribes. 

On September 24, 2009, Senator Dorgan introduced S. 1703, along 

with Senators Akaka, Baucus, Bingaman, Franken, Inouye, Tester 

and Udall. Senators Landrieu, Stabenow and LeMieux were later 

added as co-sponsors. 

Two companion bills were introduced in the House of Representatives. On October 1, 2009, Congressman Cole introduced H.R. 

3697 and on October 7, 2009, Congressman Kildee introduced H.R. 

3742. The House Committee on Natural Resources held a legislative hearing on these two bills on November 4, 2009. 

SUMMARY OF THE AMENDMENTS

Senator Dorgan offered an amendment in the nature of a substitute. The amendment in the nature of a substitute amends the 

original bill by removing the revisions to the definition of the term 

‘‘Indian tribe’’ and by adding language to ensure that nothing in 

the Act or the amendments to the Act would affect the application 

of any other federal law, other than the Indian Reorganization Act. 

Senator Murkowski offered a second degree amendment to ensure that the language of S. 1703 will not affect the validity of any 

existing Department of Interior regulations concerning the taking 

of land into trust in Alaska. 

Senator Coburn offered an amendment to require a study be prepared by the Department of the Interior and submitted to Congress 

identifying the impact of the Carcieri decision on Indian tribes and 

tribal lands. The offered amendment would have required the 

study to be completed prior to S. 1703 becoming effective. A second 

degree amendment was agreed upon which would require the study 

to be submitted within one year of enactment of S. 1703. The Committee intends that the study shall not limit the Secretary’s authority to take land into trust for any tribe that is federally recognized 

on the date the Secretary takes the land into trust, or cause any 

delay with regard to any trust land acquisition authorized by law. 

SECTION-BY-SECTION ANALYSIS

Section 1. Modification of definition 

Subsection 1(a) This section modifies a portion of the definition 

of ‘‘Indian’’ in 25 U.S.C. 479 from, ‘‘any recognized Indian tribe now 

under Federal jurisdiction’’ to ‘‘any federally recognized Indian 

tribe.’’ It further retroactively applies this amended definition from 

June 18, 1934. 


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Subsection 1(b) makes the amendments in subsection (a) retroactive as if included in the Indian Reorganization Act as of date of 

enactment of that Act on June 18, 1934. 

Subsection 1(c) clarifies that the legislation does not affect any 

law other than the Indian Reorganization Act or limit the authority 

of the Secretary of the Interior under any federal law or regulation 

other than the Indian Reorganization Act. 

Subsection 1(d) requires the Secretary of the Interior to conduct, 

and submit to Congress, a study describing the effects of the 

Carcieri decision on Indian tribes and tribal land; and including a 

list of each affected Indian tribe and parcel of tribal land. The 

study would be required to be submitted within one year of enactment of S. 1703. 

COMMITTEE RECOMMENDATION

On December 17, 2009, the Senate Committee on Indian Affairs 

convened a business meeting to consider S. 1703 and other measures. The amendment in the nature of a substitute, along with the 

second degree amendments by Senators Murkowski and Senator 

Coburn, were approved by the Committee by voice vote. The Committee ordered the bill, as amended, be reported to the full Senate 

with the recommendation that the bill, as amended, do pass. 

COST AND BUDGETARY CONSIDERATIONS

The following cost estimate, as provided by the Congressional 

Budget Office, dated March 26, 2010, was prepared for S. 1703: 

S. 1703—A bill to amend the act of June 18, 1934, to reaffirm the 

authority of the Secretary of the Interior to take land into trust 

for Indian tribes 

S. 1703 would amend the Indian Reorganization Act to allow the 

Secretary of the Interior to take land into trust for all federally recognized Indian tribes. Based on information from the Department 

of the Interior (DOI), CBO estimates that implementing the legislation would have no significant cost. Enacting S. 1703 would not affect direct spending or revenues; therefore, pay-as-you-go procedures would apply. 

Under current law, as established by the Supreme Court decision 

in Carcieri v. Salazar (2009), the Secretary of the Interior’s authority to take land into trust for Indian tribes is limited to those tribes 

that were federally recognized prior to the enactment of the Indian 

Reorganization Act of 1934. Under the bill, the Secretary would 

have the authority to take land into trust for all federally recognized Indian tribes, regardless of when those tribes became federally recognized. Because current law requires DOI personnel to determine which tribes would be eligible to have lands taken into 

trust, CBO expects that implementing S. 1703 could reduce the 

workload of DOI staff. CBO expects that any savings due to the reduced workload would be used by the agency to carry out other activities related to holding land in trust. Thus, we expect that implementing the legislation would have a negligible effect on the federal budget. 

S. 1703 would expand an existing intergovernmental mandate, as 

defined in the Unfunded Mandates Reform Act (UMRA), that exVerDate Mar 15 2010 03:42 Aug 07, 2010 Jkt 089010 PO 00000 Frm 00010 Fmt 6659 Sfmt 6602 E:\HR\OC\SR247.XXX SR247

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empts from state and local taxes land taken into trust for tribal individuals or tribal governments. While state and local governments 

may have the ability to collect taxes on some lands as a result of 

the Carcieri v. Salazar decision, CBO has no data indicating that 

those governments currently levy or have plans to levy taxes on 

that land. Therefore, CBO estimates that enacting S. 1703 would 

not result in a loss of revenue for state or local governments. 

S. 1703 also would impose intergovernmental and private-sector 

mandates as defined in UMRA by limiting the ability of public and 

private entities or individuals to file claims in court related to 

lands taken into trust for Indian tribes federally recognized after 

1934. The cost of the mandate would be the forgone value of 

awards and settlements of such claims. CBO expects that the annual number of claims involving such land and the value of the 

awards and settlements in those claims would be small. Consequently, the cost of the mandate to public and private entities 

would fall below the annual thresholds established in UMRA for 

intergovernmental and private-sector mandates ($70 million and 

$141 million in 2010 respectively, adjusted annually for inflation). 

The CBO staff contacts for this estimate are Jeff LaFave (for federal costs), Melissa Merrell (for state, local, and tribal costs), and 

Marin Randall (for the private-sector impact). The estimate was approved by Theresa Gullo, Deputy Assistant Director for Budget 

Analysis. 

REGULATORY AND PAPERWORK IMPACT STATEMENT

Paragraph 11(b) of rule XXVI of the Standing Rules of the Senate requires each report accompanying a bill to evaluate the regulatory and paperwork impact that would be incurred in carrying 

out the bill. The Committee believes that S. 1703 will have a minimal impact on regulatory or paperwork requirements. 

EXECUTIVE COMMUNICATIONS

The Committee received the following letters from Secretary 

Salazar, Department of the Interior in support of S. 1703: 


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CHANGES IN EXISTING LAW

In accordance with subsection 12 of rule XXVI of the Standing 

Rules of the Senate, changes in existing law made by the bill S. 

1703, as ordered reported, are shown as follows (existing law proposed to be omitted is enclosed in black brackets, new matter printed in italic): 

25 U.S.C. 479. Definitions 

Effective beginning on June 18, 1934, the term øThe term¿ ‘‘Indian’’ as used in this Act shall include all persons of Indian descent 

who are members of any federally recognized Indian tribe øany recognized Indian tribe now under Federal jurisdiction¿, and all persons who are descendants of such members who were, on June 1, 

1934, residing within the present boundaries of any Indian reservation, and shall further include all other persons of one-half or more 

Indian blood. For the purposes of this Act, Eskimos and other aboriginal peoples of Alaska shall be considered Indians. The term 

‘‘tribe’’ wherever used in this Act shall be construed to refer to any 

Indian tribe, organized band, pueblo, or the Indians residing on one 

reservation. The words ‘‘adult Indians’’ wherever used in this Act 

shall be construed to refer to Indians who have attained the age 

of twenty-one years. 

Æ 


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