19–010 

1 United States v. Lara, 541 U.S. 193, 204–205 (2004) (affirming the Supreme Court’s ‘‘traditional understanding’’ of each tribe as ‘‘ ‘a distinct political society, separated from others, capaContinued 

Calendar No. 405 

112TH CONGRESS REPORT " ! SENATE 2d Session 112–166 

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 

MAY 17, 2012.—Ordered to be printed 

Mr. AKAKA, from the Committee on Indian Affairs, 

submitted the following 

R E P O R T 

together with 

ADDITIONAL VIEWS 

[To accompany S. 676] 

[Including cost estimate of the Congressional Budget Office] 

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

(S. 676) 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, as amended, do pass. 

PURPOSE

S. 676 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

Indian tribes (‘‘tribes’’) are distinct and independent political 

communities.1 Tribes retain the same inherent powers of a self-govVerDate Mar 15 2010 21:47 May 21, 2012 Jkt 019010 PO 00000 Frm 00001 Fmt 6659 Sfmt 6602 E:\HR\OC\SR166.XXX SR166

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2 

ble of managing its own affairs and governing itself’ ’’ (quoting Cherokee Nation v. Georgia, 30 

U.S. 1, 16–17 (1831))). See also Worcester v. Georgia, 31 U.S. (6 Pet.) 515, 559 (1832) (‘‘The Indian nations had always been considered as distinct, independent political communities, retaining their original natural rights, as the undisputed possessors of the soil, from time immemorial.’’). 2 United States v. Wheeler, 435 U.S. 313, 322—23 (1978) (noting that prior to the European 

settlement of the New World, Indian tribes were ‘‘self-governing sovereign political communities’’). ‘‘Neither the passage of time nor the apparent assimilation of native peoples can be interpreted as diminishing or abandoning a tribe’s status as a self-governing entity.’’ The ‘‘Marshall Trilogy’’ gave rise to the concept that Indian nations retain their ‘‘inherent sovereign powers’’ and their status as nations, although their rights to complete sovereignty were diminished 

after the European conquest. The three cases that form the ‘‘Marshall Trilogy’’ are Worcester 

v. Georgia, 31 U.S. (6 Pet.) 515 (1832), Cherokee Nation v. Georgia, 30 U.S. (5 Pet.) 1 (1831), 

and Johnson v. McIntosh, 21 U.S. (8 Wheat.) 543 (1823). 3Wheeler, 435 U.S. at 322 (quoting Felix Cohen, Handbook of Federal Indian Law 122 (1945)). 4 U.S. Const. art. II, § 2, cl. 2. Congress ended treaty-making with Indian tribes in 1871. 

5 U.S. Const. art. I, § 8, cl. 3. This clause delegates to Congress the power ‘‘[t]o regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.’’ The 

Constitution grants Congress plenary and exclusive power to legislate in respect to tribes and 

the U.S. Supreme Court has approved this grant of authority. See, e.g., United States v. Lara, 

541 U.S. 193, 193–94 (2004) (‘‘The plenary power of Congress to deal with the special problems 

of Indians is drawn both explicitly and implicitly from the Constitution itself.’’ (citing Washington v. Confederated Bands and Tribes of Yakima Nation, 439 U.S. 463, 470–71 (1979)); Morton v. Mancari, 417 U.S. 535, 551–52 (1974))). 

erning community as they exercised before European nations first 

discovered America.2 The inherent sovereignty of tribal governments is acknowledged in the United States Constitution, treaties, 

legislation, judicial decisions, and administrative practice. The 

United States Presidents, Congress, the Supreme Court, and hundreds of treaties have repeatedly reaffirmed that tribes are governing bodies and retain their inherent powers of self-government. 

Tribal governmental powers, with some exceptions, are not delegated powers granted by express acts of Congress, but are ‘‘inherent powers of a limited sovereignty which has never been extinguished.’’ 3 The foundation of the government-to-government relationship between the federal government and tribal governments is 

the Treaty Clause 4 and the Indian Commerce Clause 5 of the Constitution. Treaties and laws have created a fundamental contract 

between Indian tribes and the United States: Tribes ceded millions 

of acres of land that helped make the United States what it is 

today and in return retained, among other guarantees, the right of 

continued self-government on their own lands. 

As it is for all governments, land is important for tribal governments as it provides a means to advance tribal sovereignty and 

self-determination. Tribal trust lands are especially important to 

this advancement. Trust lands are most often found within the 

boundaries of a reservation, although not all reservation lands are 

trust lands. Trust status means that the land is under tribal governmental authority, but the federal government holds title to the 

land in trust for the benefit of current and future generations of 

tribal members. Although trust land is under the authority of the 

tribal government and is generally not subject to state laws, it is 

subject to usage limitations and requires federal approval for most 

transactions with third parties. 

Tribes need land in trust for a wide range of beneficial purposes. 

By acquiring land in trust, tribes are able to provide essential governmental services to their members, including health care, education, housing, jobs and other economic development opportunities, as well as court and law enforcement services. Trust land is 

also necessary for tribes to promote and protect their historic, cultural, and religious ties to the land. 


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3 

6 ‘‘Of necessity the United States assumed the duty of furnishing that protection and with it 

the authority to do all that was required to perform that obligation and to prepare the Indians 

to take their place as independent, qualified members of the modern body politic.’’ See Bd. of 

Cnty. Comm’rs v. Seber, 318 U.S. 705, 715 (1943) (quoting United States v. Kagama, 118 U.S. 

375, 384, 385 (1886) (‘‘ ‘From their (the Indians’) very weakness and helplessness, so largely due 

to the course of dealing of the federal government with them, and the treaties in which it has 

been promised, there arises the duty of protection, and with it the power. This has always been 

recognized by the executive, and by congress, and by this court, whenever the question has arisen.’ ’’)). 7 Noting that the Supreme Court ‘‘has recognized the distinctive obligation of trust incumbent 

upon the Government in its dealings with these dependent and sometimes exploited people’’ (citing Cherokee Nation v. Georgia, 30 U.S. (5 Pet.) 1 (1831); United States v. Kagama, 118 U.S. 

375, 384, 385 (1886); Choctaw Nation v. United States, 119 U.S. 1 (1886); United States v. Pelican, 232 U.S. 442 (1914); United States v. Creek Nation, 295 U.S. 103 (1935); Tulee v. State of 

Washington, 315 U.S. 681 (1942)). 8General Allotment Act, ch. 119, 24 Stat. 388 (1887), sections 1, 2, and 3 (25 U.S.C. § § 331, 

332, and 333), repealed by Indian Land Consolidation Act Amendments of 2000 (25 U.S.C. 

§ 2201). 9The mentality at the time was that ‘‘ ‘the easiest Indians in the country to civilize were those 

who had ‘no money, no funds, no land, no annuities.’ ’’ The Indian Reorganization Act—75 Years 

Later: Renewing Our Commitment to Restore Tribal Homelands and Promote Self-Determination: 

Hearing Before the S. Comm. on Indian Affairs, 112th Cong. 6 (June 23, 2011) [hereinafter IRA 

Hearing] (statement of Frederick E. Hoxie, Swanland Chair/History Professor, Univ. of Ill. 

(quoting Connecticut Sen. Orville Platt) (emphasis added)). 10 A head of family would receive 160 acres, a single person or an orphan over 18 years would 

receive 80 acres, and persons under the age of 18 would receive 40 acres. 

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

very first days of the Republic, Indian tribes have ceded large areas 

of land to the United States. In return, the federal government 

made promises to provide for the health, education, and general 

welfare of reservation residents.6 These promises are known as the 

United States’ trust responsibility to all Indians. The federal government acquired virtually all of its land through treaties or agreements with Indian tribes, and it is incumbent upon the federal government to protect tribal treaty rights, lands, assets, and resources, 

as well as carry out the mandates of federal law with respect to 

Indians. 

In carrying out its treaty obligations with the Indian 

tribes, the Government is something more than a mere 

contracting party. Under a humane and self-imposed policy, which has found expression in many acts of Congress 

and numerous decisions of this Court, it has charged itself 

with moral obligations of the highest responsibility and 

trust. 

Seminole Nation v. United States, 316 U.S. 286, 296 (1942).7 Despite the federal government’s trust responsibility to protect Indian 

landholdings, tribes have suffered devastating land losses at the 

hands of the federal government. With the enactment of the General Allotment Act of 1887 (‘‘Allotment Act’’) (sometimes referred to 

as ‘‘The Dawes Act’’),8 the federal government hoped to further dissolve tribal lands and hasten the assimilation of Indian people by 

authorizing the individualization of reservation lands to tribal 

members.9

Under the Allotment Act, Indian families and individuals were 

allotted small parcels of land to be used for either agricultural land 

or grazing.10 The United States held this land in trust for each individual allottee until the trust period expired—usually twenty-five 

years after the land was allotted. After twenty-five years, the allottee secured a patent in fee and could dispose of the land as he 

wished. Because most allotted lands were unsuitable for agriculture and were insufficient as sustainable economic units, most 


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11 IRA Hearing, supra note 9, at 6 (statement of Frederick E. Hoxie, Swanland Chair/History 

Professor, Univ. of Ill. (noting the loss of land from 151 million acres to 52 million acres between 

1880 and 1933)). 12 78 Cong. Rec. 11,726—11,732 (June 15, 1934) (statement of Rep. Edgar Howard (detailing 

how the government failed in preventing the enormous losses of Indian land and how those land 

losses led to the growing number of ‘‘landless Indians,’’ the dwindling Indian trust funds, the 

increasing number of Indians who were once self-supporting and are now ‘‘virtual paupers,’’ and 

the alarmingly high death rate among the Indian population)). 13 Now known as the Brookings Institution. 14 Institute for Government Research, The Problem of Indian Administration (L. Meriam ed., 

John Hopkins Press 1928); http://www.eric.ed.gov/PDFS/ED087573.pdf. This report examined 

Indian health, education, administration, economic conditions, and law. It was also critical of 

the allotment policy. 15 Charles Wilkinson & The American Indian Resources Institute, Indian Tribes As Sovereign 

Governments 11 (2d ed. 2004) (10th prtg. 2001). See also IRA Hearing, supra note 9, at 6 (statement of Frederick E. Hoxie, Swanland Chair/History Professor, Univ. of Ill. 16 ‘‘Although critical of the performance of the Indian Bureau, [the Meriam Report] placed 

most responsibility on Congress for refusing to appropriate adequate funds.’’ Kenneth R. Philp, 

John Collier’s Crusade for Indian Reform 1920–1954, 90–91 (1977). 17 25 U.S.C. § § 461–479. 18 25 U.S.C. § 465. 19 78 Cong. Rec. 11,727–728 (1934). 

allottees lost their land soon after the trust period expired. By 

1933, two-thirds of the Indian land base of 1887 was lost and more 

than 90,000 Indians were landless. 

The federal allotment policy resulted in the loss of over 100 million acres of tribal homelands.11 The destruction of tribal economies, institutions, and communities followed directly from the reduction of the tribal land base. Reversing the history and circumstances of land loss and the economic, social, and cultural consequences of that loss are at the core of the government’s federal 

trust responsibility toward Indian tribes.12

THE DESTRUCTIVE EFFECTS OF FEDERAL ALLOTMENT POLICIES

In 1926, Secretary of the Interior Hubert Work asked the Institute for Government Research 13 to study Indian social and economic conditions. The resulting report, known as the Meriam Report of 1928,14 ‘‘publicized the deplorable living conditions on reservations and recommended that health and education funding be 

increased, that the allotment policy be ended, and that tribal selfgovernment be encouraged.’’ 15 The report established that the 

cause of the declining social and economic conditions on reservations was the federal government’s allotment policy and the loss of 

Indian homelands that occurred as a result of those federal policies.16

With the publication of the Meriam Report, Congress became 

acutely aware of the problems caused by federal allotment policies 

and acted to reverse tribal land losses with passage of the Indian 

Reorganization Act of 1934.17 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’’) ended 

allotment and strengthened tribal governments by restoring their 

land bases. The IRA specifically authorized the Secretary of the Interior (‘‘Secretary’’) to take lands into trust for tribes so that tribes 

could reestablish their homelands.18

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

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

lands.19 He explained that the IRA would help remedy the problem 

by preventing ‘‘any further loss of Indian lands’’ and permitting the 


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20 Id. at 11,727; see also 78 Cong. Rec. 11,123 (June 12, 1934) (statement of Sen. Wheeler, 

sponsor of the bill in the Senate (echoing the remedial goals in relation to Indian lands)). 21 78 Cong. Rec. 11,732 (1934). 22 Examining Executive Branch Authority to Acquire Trust Lands for Indian Tribes, Hearing 

before the S. Comm. on Indian Affairs, 111th Cong. 2 (May 21, 2009) [hereinafter Examining 

Executive Authority Hearing] (statement of Sen. Byron L. Dorgan, Chairman, S. Comm. on Indian Affairs). This figure varies from five to eight million, depending on the source, but most 

sources cite figures of approximately five million acres. Regardless of whether the figures cited 

are five or eight million acres, both represent less than 10% of lands lost through allotment. 

See also Supreme Court Decision, Carcieri v. Salazar, Ramifications to Indian Tribes, Hearing 

Before the H. Comm. on Natural Res. 34 (Apr. 1, 2009) [hereinafter Carcieri’s Ramifications to 

Tribes Hearing] (statement of Michael J. Anderson, AndersonTuell, LLP (noting that ‘‘[a]bout 

four million acres have been taken into trust since the IRA was passed’’)). 23See S. Rep. No. 1080, 73d Cong., 2d Sess., 2 (1934) (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 (noting that section 5 would ‘‘provide land for Indians who have no 

land or insufficient land, and who can use land beneficially’’)). 24S. Rep. No. 1080, 73d Cong., 2d Sess., 1 (1934). See also 78 Cong. Rec. 11,125 (statement 

of Sen. Burton K. Wheeler (‘‘This bill . . . seeks to get away from the bureaucratic control of 

the Indian Department, and it seeks further to give the Indians the control of their own affairs 

and of their own property; to put it in the hands either of an Indian Council or in the hands 

of a corporation to be organized by the Indians.’’)). 25See 78 Cong. Rec. 11,123 (June 12, 1934) (statement of Sen. Burton K. Wheeler (outlining 

the purposes of the IRA) (‘‘There is nothing in the bill as presented to the Senate which in any 

wise [sic] gives the Department of the Interior the right to impose its will upon the Indians on 

any reservation.’’)). 26 Hodel v. Irving, 481 U.S. 704, 707 (1987) (‘‘The failure of the allotment program became 

even clearer as successive generations came to hold the allotted lands. Thus 40-, 80-, and 160- 

acre parcels became splintered into multiple undivided interests in land, with some parcels having hundreds, and many parcels having dozens, of owners. Because the land was held in trust 

and often could not be alienated or partitioned, the fractionation problem grew and grew over 

time. A 1928 report commissioned by the Congress [the Meriam Report] found the situation administratively unworkable and economically wasteful.’’). 

purchase of additional lands.20 Congressman Howard made clear 

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

also a moral obligation. ‘‘[T]he land was theirs under titles guaranteed by treaties and law; and when the government of the United 

States set up a land policy which, in effect, became a forum of legalized misappropriation of the Indian estate, the government became morally responsible for the damage that has resulted to the 

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

purpose of the IRA was ‘‘to build up Indian land holdings until 

there is sufficient land for all Indians who will beneficially use 

it.’’ 21 Less than ten percent of land has been restored to trust status for Indian tribes and their members since the enactment of the 

IRA.22

An adequate land base is 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 IRA 23 because land could be beneficially used to increase Indian self-support.24 The IRA was enacted 

as a means not simply of halting the prior federal policies that had 

destroyed Indian communities and Indian economies, but reversing 

the course that had led to those losses.25

THE INDIAN REORGANIZATION ACT: THE FOUNDATION FOR FEDERAL

INDIAN POLICY IN MODERN ERA OF TRIBAL SELF-DETERMINATION

By the 1930s, the federal allotment policies had proven disastrous for Indian tribes.26 As part of the repudiation of federal allotment policies, the IRA ended allotment and made possible the organization of tribal governments and tribal corporations. The passage 

of the IRA ended the federal support that had led to the erosion 


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27 IRA Hearing, supra note 9, at 3 (statement of Frederick E. Hoxie, Swanland Chair/History 

Professor, Univ. of Ill.). 28Morton v. Mancari, 417 U.S. 535, 542 (1974). 29See Iowa Mutual Ins. Co. v. LaPlante, 480 U.S. 9, 14 n.5 (1987); Fisher v. Dist. Court, 424 

U.S. 382, 387 (1976); Morton, 417 U.S. at 543. See also Wilkinson, supra note 15, at 12 (‘‘The 

most significant contribution of the IRA was to promote the exercise of self-governing powers.’’). 30Mescalero Apache Tribe v. Jones, 411 U.S. 145, 151–52 (1973) (citations omitted). 31 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). 32See Carcieri Crisis: The Ripple Effect on Jobs, Economic Development and Public Safety in 

Indian Country: Hearing on S. 676 Before the S. Comm. on Indian Affairs, 112th Cong. (Oct. 

13, 2011) [hereinafter Carcieri Hearing] (statement of Richard Guest, Staff Attorney, Native Am. 

Rights Fund) (‘‘Congress recognized that tribal self-determination and economic self-sufficiency 

could not be achieved without adequate lands.’’ (quoting Brief for National Congress of American 

Indians (‘‘NCAI’’) as Amici Curiae Supporting Defendants-Appellees, Carcieri v. Norton, 423 

R.3d 45 (1st Cir. 2005) (No. 03–2647), available at http://www.narf.org/sct/carcieri/1stcircuit/ 

ncai-tribes-amicus-brief.pdf)). 33 78 Cong. Rec. 11,729 (1934). 

of Indian land and resources and reaffirmed the inherent powers 

of tribal governments.27

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

of Indian legislation in American history. It advanced a sweeping 

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.’’ 28 Through the 

IRA, Congress sought to replace assimilationist policies characterized by the Allotment Act and revitalize and strengthen tribal government 29 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 

IRA might generate substantial revenues for the education and the 

social and economic welfare of its people.’’ 30 These principles are 

the foundation for federal Indian policy in the modern era of tribal 

self-determination.31

Restoration of land to tribal ownership is one of the central purposes of the IRA and has been recognized by Congress as essential 

to tribal self-determination.32 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.’’ 33

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

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

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

reestablishing tribal economic, governmental and cultural life: 

The Secretary of the Interior is hereby authorized, in his 

discretion, to acquire, through purchase, relinquishment, 

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

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

the purpose of providing land for Indians. 

* * * * * 

Title to any lands or rights acquired pursuant to this Act 

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

trust for the Indian tribe or individual Indian for which 

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


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34 Examining Executive Authority Hearing, supra note 22, at 16 (statement of Ron Allen, Secretary, Nat’l Cong. of Am. Indians). 35 ‘‘Today, an individual plot of allotted land might have up to one thousand owners, and can 

therefore be put to no beneficial use.’’ Press Release, Senator Akaka, Committee Holds Hearing 

on the American Indian Probate Reform Act (Aug. 5, 2011), http://akaka.senate.gov/pressreleases.cfm?method=releases.view&id=63b58e04–857f–465a–9bcc-c09f75ec6970. 36 IRA Hearing, supra note 9, at 21–22 (testimony of Carole Goldberg, Jonathan D. Varat Distinguished Professor of Law, UCLA). ‘‘[T]o read that as the exclusive purpose of the Act . . . 

is not consistent with what is there in the legislative history.’’ See id. at 32–33 (noting that the 

exchange between Chairman Wheeler and Commissioner Collier reflects Collier’s view that there 

would be more flexibility in the application of the IRA). 37Self-support, or self-determination, can only be achieved through the establishment of a territorial basis. See IRA Hearing, supra note 9, at 6 (testimony of Carole Goldberg, Jonathan D. 

Varat Distinguished Professor of Law, UCLA) (IRA policy was to ‘‘abandon the goal of assimilation in favor of the belief that Native American societies had a right to exist on the basis of 

culture different from the dominate one in the United States, and this could only be achieved 

through establishment and reestablishment of the territorial basis for tribal self-determination. 

That was a key component of the purpose of the Indian Reorganization Act.’’). 38Pub. L. 106–462, § 102(5), 114 Stat. 1992 (codified at 25 U.S.C. § 2201). 39 U.S. Const. art. I, § 8, cl. 3. See also United States v. Kagama, 118 U.S. 375 (1886) (confirming the plenary power of Congress over Indian affairs, the domestic, dependent status of 

the tribes, and the guardian-ward relationship). 

25 U.S.C. § 465. Of the more than 90 million acres of tribal 

homelands lost through the allotment process, less than 10 percent 

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

75 years ago.34 Still today, a number of federally recognized Indian 

tribes do not have a land base, or have insufficient lands, and cannot support a governing base or basic community needs such as 

housing, education, and economic development. In addition, many 

tribal land parcels are overly fractionated,35 a disastrous effect of 

earlier federal allotment policies which has resulted in far more Indian land passing out of trust than gets taken into trust each year. 

The IRA focuses on repairing the harm that was done through 

prior allotment policies, but the restoration of tribal land is not the 

only purpose of the IRA.36 The broader intent of the IRA was about 

revitalizing tribal government and enabling all tribes the basis for 

self-determination. This broader purpose can only be fulfilled by affording all tribes the opportunity for land as a territorial base. In 

passing the IRA, Congress recognized that the enormous losses of 

land due to allotment had deprived the tribes not only of land, but 

of the base necessary for self-support.37

The IRA policy of reversing the effects of the Allotment Act was 

reaffirmed some 65 years later when Congress adopted the Indian 

Land Consolidation Act Amendments of 2000, which states that it 

is ‘‘the policy of the United States . . . to reverse the effects of the 

allotment policy on Indian tribes.’’ 38

EXECUTIVE AND LEGISLATIVE POLICIES HAVE LONG REFLECTED CONGRESSIONAL INTENT TO FOSTER TRIBAL SOVEREIGNTY AS EXPRESSED IN THE INDIAN REORGANIZATION ACT

Congressional support for tribal self-government and self-determination is clearly expressed in federal statutes, policies, and practices. Enactment of the IRA was only one in a series of numerous 

congressional acts that were passed to promote and support the 

sovereignty of all tribal governments. Congress alone has plenary 

power over the federal government’s relations with the tribes.39

Congressional response to allotment and assimilation policies was 

to enact an unprecedented volume of Indian legislation over the 

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40 25 U.S.C. § 13. 41Prior to 1921, appropriations were distributed on an ad hoc basis by BIA superintendents 

to the Indians under their purview. This system tended to be unsystematic and inadequate. For 

the definition of ‘‘Indian country,’’ see 18 U.S.C. § 1151 (defining Indian country as ‘‘(a) all land 

within the limits of any Indian reservation under the jurisdiction of the United States Government, notwithstanding the issuance of any patent, and, including rights-of-way running through 

the reservation, (b) all dependent Indian communities within the borders of the United States 

whether within the original or subsequently acquired territory thereof, and whether within or 

without the limits of a state, and (c) all Indian allotments, the Indian titles to which have not 

been extinguished, including rights-of-way running through the same.’’ 42 43 Stat. 253, 8 U.S.C. § 1401(a)(2). 43 8 U.S.C. § 1401 (1924). The Act gave Indians the right to vote in national elections, but it 

did not provide full protection under the Bill of Rights to Indians living under tribal governments. Later amendments clarified that the Act applied to Alaska Natives as well. 44 Approximately 1928–1947. Although driven by the Meriam Report in 1928, the ‘‘Indian New 

Deal Era’’ began generating positive legal changes after the election of President Franklin D. 

Roosevelt in 1932. 45The National Congress of American Indians (‘‘NCAI’’) was formed in 1944, during the ‘‘Indian New Deal Era,’’ in response to termination and assimilation policies that the United States 

forced upon the tribal governments in contradiction of their treaty rights and status as 

sovereigns. Comprised of mostly BIA employees, NCAI stressed the need for unity and cooperation among tribal governments for the protection of their treaty and sovereign rights. NCAI is 

the oldest, largest, and most representative group of American Indians and Alaska Natives and 

is often viewed as the most politically influential Indian organization in the United States. National Congress of american Indians (Apr. 24, 2012, 1:30:00 PM), http://www.ncai.org/aboutncai/mission-history. 46 60 Stat. 1049, 1050 (codified at 25 U.S.C. § 70a). 47 It is important to note that from 1953 to the mid-1960s, the period known as the ‘‘Termination Era,’’ there was a substantial loss of Indian land as the federal government attempted 

to sever its trust relationship with as many tribes as possible in order to expedite assimilation. 

Over 100 tribes were terminated and lost their status as federally recognized and sovereign Indian communities. The termination policies were discredited in the mid-1960s by President 

Nixon (and later, by President Reagan in the 1980s). President Nixon’s condemnation of the Termination Era and his call for Indian self-determination returned the nation to a policy based 

on the principles that were manifested in the IRA and reinforced the importance of restoring 

tribal land. 48Pub. L. 90–284, 82 Stat. 77 (1968) (codified as amended at 25 U.S.C. § 1301–1303). Although 

controversial, the Indian Civil Rights Act is an important measure designed to guarantee Indians living under tribal governments the same rights as those of other U.S. citizens. 

tion that tribes possess the inherent authority to govern themselves. 

With the enactment of the Snyder Act in 1921,40 Congress began, 

for the first time, to authorize appropriations and expenditures 

under a broad authority delegated to the Secretary for the administration of Indian Affairs; including the support of education, health 

programs, and economic assistance in Indian country.41 In 1924, 

Congress naturalized all ‘‘Indians born within the territorial limits 

of the United States’’ 42 by enacting the Indian Citizenship Act.43

American Indians now had access to education, health, welfare, 

and other social service programs. 

The election of President Franklin D. Roosevelt in 1932 led to the 

‘‘Indian New Deal Era’’ 44 and it represented something truly new 

in federal Indian policy.45 Congress repudiated the forced assimilation of Indians through allotment and other related federal policies 

and began to pass laws that encouraged the development of tribal 

governments, economies, and cultures. Their efforts resulted in the 

IRA—the centerpiece of this new era. 

The Indian Claims Commission Act was passed in 1946 46 and 

provided for the monetary recovery for all takings of land, no matter what was the source of Indian title. This Act also includes a 

right of recovery for executive order reservations, allowing for the 

recovery of unconscionable consideration, and other improper land 

acquisitions with claims that occurred before the date of enactment. 

In 1968,47 President Lyndon Johnson signed into law the Indian 

Civil Rights Act,48 further emphasizing the federal government’s 


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49This protection is modeled after the protections the U.S. Constitution provides to individuals against state and local governments. 50Message from the President of the United States Transmitting Recommendations for Indian 

Policy, H.R. Doc. No. 91–363, 91st Cong., 2d Sess. (July 8, 1970). 51 20 U.S.C. § § 241aa, 887c, 1211a. 52 25 U.S.C. § § 1451–1453. 53See, e.g., The American Indian Agricultural Resource Management Act, 25 U.S.C. § § 3701– 

3713 (1993), which was enacted to carry out the federal government’s trust duty to protect, conserve, utilize, and manage Indian agricultural lands and related renewable resources with the 

active participation of the tribal landowner; the Indian Employment, Training, and Related 

Services Demonstration Act, Pub. L. 102–477 (amended by Pub. L. 106–568 (1992)), which authorized the integration of employment, training, and related services provided by Indian tribal 

governments; the Indian Mineral Development Act, 25 U.S.C. § 2102–2108 (1982), which authorizes Indian tribes, with approval of the Secretary, to enter into joint ventures in the operating, 

production sharing, service, managerial, leasing, or other agreements for the extraction, processing or other development of oil, gas, uranium, coal, geothermal or other energy or non-energy 

mineral resources; the Indian Child Welfare Act, 25 U.S.C. § § 1901–1963 (1978), which provides 

a comprehensive scheme for the adjudication of child custody cases involving Indian children 

by deferring to tribal governments; the American Indian Religious Freedom Act, 42 U.S.C. 

§ 1996 (1978), which provided an important acknowledgment of Indian religious tenets. 54 25 U.S.C. § 450. 55See Indian Commerce Clause, U.S. Const. art. I, § 8, cl. 3; Treaty Clause, U.S. Const. art. 

II, § 2, cl. 2. 56Pub. L. 93–638, 88 Stat. 2203 (codified at 25 U.S.C.A. § § 450–458e) (amended by Pub. L. 

100–202, Pub. L. 101–301, Pub. L. 100–446, Pub. L. 100–472, Pub. L. 100–581, and Pub. L. 101– 

644). The Indian Self-Determination and Education Assistance Act, Pub. L. 93–638, originally 

included two acts: Title I is known as the Indian Self-Determination Act and appears generally 

at 25 U.S.C. § § 450f–450n, and Title II is known as the Indian Education Assistance Act and 

appears generally at 25 U.S.C. § § 455–458e. 

support of self-governance and self-determination by providing individual Indians with some statutory protections against their tribal 

governments.49

Recognizing that previous federal interpretations of Indian policies had been inconsistent, President Richard M. Nixon issued a 

landmark statement in 1970 calling for a new federal policy of 

‘‘self-determination’’ for Indian nations.50 President Nixon signed 

into law the Indian Education Act in 1972 51 and ushered in a new 

era of reconciliation between the federal government and Indians. 

The Indian Education Act promised to provide adequate and appropriate educational services for Indians in order to guarantee future 

generations the tools necessary to compete in modern society without necessitating the abandonment of their traditional culture and 

practices. The Indian Financing Act of 1974 52 was enacted to further enhance tribal economic development by increasing the 

amount of federal money available for tribal business enterprises. 

The government-to-government relationship between the federal 

government and Indian tribes has existed since the formation of 

the United States and has been reaffirmed by every President since 

the 1970s. For over four decades, the United States’ federal policy 

on Indian Affairs has been one of tribal self-governance and selfdetermination. This policy strengthens tribal governments and provides the means for tribal economic self-sufficiency.53 Congress 

placed the primary responsibility for Indian matters with the Department of Health and Human Services (‘‘HHS’’) and the Department of the Interior (‘‘DOI’’).54 The United States government and 

its executive agencies historically dealt and continue to deal with 

Indian tribes as set forth in the United States Constitution.55

The Indian Self-Determination and Education Assistance Act of 

1975 (‘‘Self-Determination Act’’),56 reaffirms the government-to-government relationship between the federal government and the 

tribes by providing for the tribes’ full participation in government 

and education programs and services to Indian people and tribal 

communities. This partnership establishes a program of assistance 


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57President Reagan was also supportive of tribal self-governance and self-determination and 

issued an affirmative statement on January 24, 1983 concerning federal Indian policy. See President Ronald Reagan’s American Indian Policy (Jan. 24, 1983), available at http:// 

www.schlosserlawfiles.com/consult/reagan83.pdf. 58 Indian Self-Rule: First-Hand Accounts of Indian-White Relations from Roosevelt to Reagan 

24 (Kenneth R. Philp ed., 1995). 59 25 U.S.C. § § 2201–2221. 60Known as Indian Self-Determination Act Amendments of 1988, Pub. L. 100–472 (1988) 

(codified at 25 U.S.C. § § 450a–450n) (§ 450f repealed by Pub. L. 106–260). 61 25 U.S.C. § 476(f) & (g). It should be noted that in the years between 1988 and 1994 discussed above, there were several additional statutes enacted that also supported tribal self-governance. These acts include the Indian Law Enforcement Act (25 U.S.C. § 2801 (1990)); the Native American Graves Protection and Repatriation Act (25 U.S.C. § 3001 (1990)); and the Clean 

Air Act Amendments (42 U.S.C. § 7601(d)(2) (1990)). 62 140 Cong. Rec. S6146 (daily ed. May 19, 1994) (statement of Sen. John McCain). ‘‘[A] serious mistake has been made by the Department in construing the intent of Congress in enacting 

16 * * * [S]ection 16 does not authorize or require the Secretary of the Interior to draw distinctions between tribes or to categorize them based on their powers of governance. As Mr. [Felix] 

Cohen noted in his 1942 Handbook on Federal Indian Law, the IRA ‘had little or no effect upon 

the substantive powers of tribal self-government vested in the various Indian tribes.’ The courts 

to upgrade Indian education, and encourages Indians to manage 

their own schools. 

In the 1980s, President Reagan’s policies expanded and developed the federal Indian self-determination policies of the 1970s.57

The President repudiated termination and pledged to uphold the 

Indian Self-Determination Act. ‘‘He admitted that without healthy 

reservation economies the concept of self-government had little 

meaning.’’ 58 As a result, the Indian Land Consolidation Act of 

1983 59 and its amendments are important pieces of legislation that 

reverse the effects of previous federal allotment policies and prevent the further fractionation of Indian land title. During this time, 

the Indian Self-Determination Act was amended to make contracting easier between federal and tribal governments, thereby 

providing for the exercise of greater tribal self-governance.60 The 

resulting contracts, or compacts, allow tribes the administration 

and management of programs, activities, functions and services 

previously managed by the Bureau of Indian Affairs (‘‘BIA’’). 

Contrary to dozens of federal statutes and decades of presidential 

policies instructing that all tribes be treated equally, some federal 

agencies began to discriminate amongst tribes based on their date 

of federal recognition or the manner in which the tribe received 

recognition. When Congress learned of the agencies’ disparate 

treatment of tribes, it passed two amendments to the IRA on May 

31, 1994.61 The 1994 Amendments underscored existing congressional policy and guaranteed that all federally recognized tribes 

would receive equal treatment by the federal government and its 

agencies. ‘‘The purpose of the amendment[s] [S. 2017] is to clarify 

that section 16 of the Indian Reorganization Act was not intended 

to authorize the Secretary of the Department of the Interior to create categories of federally recognized Indian tribes. In the past 

year, the Pascua Yaqui Tribe of Arizona has brought to our attention the fact that the Department of the Interior has interpreted 

section 16 to authorize the Secretary to categorize or classify Indian tribes as being either created or historic * * * All of this ignores a few fundamental principles of Federal Indian law and policy * * * Congress itself cannot create Indian tribes, so there is no 

authority for the Congress to delegate to the Secretary in this regard. * * * [T]he interpretation of section 16 which has been developed by the Department is inconsistent with the principle policies 

underlying the IRA.’’ 62


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have consistently construed the IRA to have had no substantive effect on tribal sovereign authority.’’ 140 Cong. Rec. S4338 (daily ed. Apr. 14, 1994) (statement of Sen. John McCain). 63Pub. L. 103–413 (1994) (codified at 25 U.S.C. § 450–450n and 458aa–458hh). 64Pub. L. 103–454 (1994) (codified at 25 U.S.C. § 479a–1). This is a list of federally recognized 

tribes that are eligible for funding and services from the Bureau of Indian Affairs by virtue of 

their status as Indian tribes. The Act also formally established three ways in which an Indian 

group may become federally recognized, (1) By Act of Congress; (2) by the administrative procedures under 25 C.F.R. Part 83: or (3) by decision of a United States court. 65 H.R. Rep. No. 103–781 at 3 (1994), as reprinted in 1994 U.S.C.C.A.N. 3768. 66Pub. L. No. 103–263, 108 Stat. 707 (codified as 25 U.S.C. § 476(f) & (g)). 67Memorandum from John D. Leshy, Solicitor, Office of the Solicitor, U.S. Dep’t of the Interior, to Ada E. Deer, Assistant Secretary, Office of Indian Affairs, U.S. Dep’t of the Interior 3– 

7 (July 13, 1994) (citing the broad definition of ‘‘tribe’’ in the Indian Civil Rights Act of 1968, 

25 U.S.C. § 1301(1): ‘‘any tribe, band, or other group of Indians subject to the jurisdiction of the 

United States and recognized as possessing powers of self-government’’). In his memorandum, 

Leshy also notes the broad definition of ‘‘tribe’’ in many other federal statutes, including, Indian 

Land Consolidation Act, 25 U.S.C. § 2201(1); the Indian Child Welfare Act, 25 U.S.C. § 1903(8); 

the Indian Self-Determination and Education Assistance Act, 25 U.S.C. § 450b(e); the Indian 

Child Protection and Family Violence Prevention Act, 25 U.S.C. § 3202(10). 68 25 U.S.C. § 476(f) & (g). 69 25 U.S.C. § 476(f). 

Also in 1994, Congress passed the Indian Self-Determination Act 

Amendments (also known as the ‘‘Tribal Self-Governance Act’’).63

These amendments provided legislative guidance for tribes who 

chose to contract for the transfer of federal programmatic authorities and resources under the Indian Self-Determination Act. 

Solidifying its support of tribal sovereignty, Congress enacted the 

Federally Recognized Indian Tribe List Act of 1994 (‘‘List Act’’).64

The List Act requires the BIA to annually publish the list of federally recognized tribes in the Federal Register. The List Act documents the federally recognized status for all tribes on the published 

list and serves as a record of federally recognized tribes that are 

eligible for funding and services from the BIA by virtue of their 

status as Indian tribes.65 Unlike in 1934 when the IRA was enacted and no such list existed, the List Act eliminates the possibility of administrative termination of tribes. 

THE 1994 AMENDMENTS REAFFIRM THE INDIAN REORGANIZATION ACT

Congress amended the IRA in 1994 in order to prohibit the federal government and its agencies from taking any 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.’’ 66 The amendments 

made it clear that ‘‘tribe’’ shall be defined to include all federally 

recognized tribes in all federal statutes affecting Indian tribal governments.67

The 1994 amendments revised Section 16 of the IRA by adding 

language in subsection (f) and (g) to ensure that federal agencies 

treat all federally recognized tribes equally, no matter when, or 

how, they received recognition from the federal government.68 In 

particular, subsection (f) prohibits the Secretary and other Administrative agencies from promulgating any regulation 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.’’ 69 Subsection (g) of the 

1994 amendments ensured that any Administrative actions that 

treated tribes in differing ways would be invalid. Specifically, subsection (g) states that ‘‘[a]ny regulation, administrative decision, or 

determination of a Department or agency of the United States that 

classifies, enhances, or diminishes the privileges and immunities’’ 


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70 25 U.S.C. § 476(g). 71 IRA Hearing, supra note 9, at 35–41 (testimony of Steven Heeley, Policy Consultant, Akin, 

Gump, Strauss, Hauer & Feld, LLP (citing 25 U.S.C. § 476(f)) (noting that DOI’s practice came 

to light when the Pascua Yaqui Nation of Arizona made efforts to amend their tribal constitution)). ‘‘Strangely, although the Department was apparently making this distinction amongst 

tribes, it appears that the Department never notified the affected tribes or the Congress of their 

new status. Had they done so, we would have acted to correct this unauthorized arbitrary and 

unreasonable differentiation of tribal status long ago * * * [O]ur amendment would void any 

past determination by the Department that an Indian tribe is created and would prohibit any 

such determinations in the future * * * [O]ur amendment will correct any instance where any 

federally recognized Indian tribe has been classified as ‘created’ and that it will prohibit such 

classifications from being imposed or used in the future. Our amendment makes it clear that 

it 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.’’ 140 Cong. 

Rec. S6147 (daily ed. May 19, 1994) (statement of Sen. Daniel K. Inouye (D–Hawaii) (emphasis 

added). 72 ‘‘Such an artificial distinction represent[ed] a significant departure from the Congressional 

intent and purpose of the IRA and [was] reminiscent of the very policies of assimilation that 

the IRA was intended to address * * * In enacting Public Law 103–263 [the 1994 amendments], 

Congress rejected the artificial distinction of historic and created tribes and made clear that any 

regulation, rule or administrative decision that classifies, enhances or diminishes the privileges 

and immunities available to a federally recognized tribe relative to other tribes shall have no 

force and effect.’’ IRA Hearing, supra note 9, at 36 (testimony of Steven Heeley, Policy Consultant, Akin, Gump, Strauss, Hauer & Feld, LLP (citing 25 U.S.C. § 476(f))). 73Leshy, supra note 67, at 7. Leshy also noted that the 1994 amendments to the IRA were 

not ‘‘confined to the IRA,’’ but were ‘‘ ‘intended to address all instances where such categories 

or classifications of Indian tribes have been applied and any statutory basis which may have 

been used to establish, ratify, or implement the categories or classifications.’ ’’ Id. at 3, n.3 

(quoting 140 Cong. Rec. S6147 (daily ed. May 19, 1994) (statement of Sen. John McCain)). 74Senator Daniel K. Inouye (D–Hawaii), 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 (daily ed. May 19, 1994). 75 IRA Hearing, supra note 9, at 38 (testimony of Steven Heeley, Policy Consultant, Akin, 

Gump, Strauss, Hauer & Feld, LLP) (citing Letter from Carol A. Bacon, Acting Director, Office 

of Tribal Services, Bureau of Indian Affairs, to the Honorable Arcadio Gastelum, Chairman, 

Pascua Yaqui Tribal Council (Dec. 3, 1991)). ‘‘The views of the Department in advancing this 

artificial distinction between federally recognized Indian tribes represents a significant departure from the congressional intent and purpose of the Indian Reorganization Act and is reminiscent of the very policies of assimilation that the Indian Reorganization Act was intended to address.’’ Id. 

of an Indian tribe relative to the privileges and immunities of other 

federally recognized Indian tribes shall have no force or effect.70

The 1994 amendments put an end to the discriminatory practices 

that had been developing within DOI.71 DOI had begun to classify 

tribes as either ‘‘historic’’ and entitled to the full panoply of inherent sovereign powers not otherwise divested by treaty or congressional action or ‘‘created’’ and therefore possessing limited sovereign powers.72 By enacting the 1994 amendments and broadening the definition of ‘‘tribe’’ in other federal statutes, Congress 

explicitly rejected DOI’s classifications.73 The amendments ensured 

that DOI upheld the original intent of the IRA to promote tribal 

sovereignty by allowing all federally recognized tribes to organize 

and self-govern.74

DOI’s discriminatory practices were based on two discredited Solicitors’ Opinions: the first was written in 1934 and generally discussed the powers of tribal sovereignty; and the second was written 

in 1936.75 The 1936 Opinion formed the basis of DOI’s classifications by relying on Section 16 of the IRA—a section that had been 


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76 IRA Hearing, supra note 9, at 38 (testimony of Steven Heeley, Policy Consultant, Akin, 

Gump, Strauss, Hauer & Feld, LLP) (‘‘The views of the Department in advancing this artificial 

distinction between federally recognized Indian tribes represents a significant departure from 

the congressional intent and purpose of the Indian Reorganization Act and is reminiscent of the 

very policies of assimilation that the Indian Reorganization Act was intended to address.’’). 

Memoranda and opinions written in 1936 by other commissioners and solicitors advocating these 

artificial distinctions were specifically cited by DOI as examples of policies that were overruled 

by the 1994 amendments. See, e.g., Leshy, supra note 67, at 3, 7 (‘‘The amendment [1994 

amendments] * * * overrules the 1936 Opinion. You should therefore instruct the Bureau of Indian Affairs to place no reliance on it in future dealing with the Tribes * * * Congress has now 

settled the debate by rejecting the distinction drawn in the 1936 Opinion.’’ (citing Solicitor’s 

Opinion, Apr. 15, 1936, 1 Op. Sol. on Indian Affairs, 618 (U.S.D.C. 1979))). Leshy notes that 

the 1936 Opinion was undercut by the 1988 amendments to the IRA. Id. at 5 (citing Pub. L. 

No. 100–581, 102 Stat. 2938). 77 140 Cong. Rec. S6147 (daily ed. May 19, 1994) (statement of Senator Daniel K. Inouye (D– 

Hawaii). 78Leshy, supra note 67, at 3. 79 IRA Hearing, supra note 9, at 45 (statement of Steven J.W. Heeley, Policy Consultant, Akin, 

Gump, Strauss, Hauer & Feld, LLP (noting also that this ‘‘artificial distinction represents a significant departure from the Congressional intent and purpose of the IRA and is reminiscent of 

the very policies of assimilation that the IRA was intended to address’’)). ‘‘Subsequent amendments to the IRA also addressed the category of tribes that chose not to * * * organize under 

IRA constitutions, and to make clear that federally recognized Indian tribes had the right to 

not adopt an IRA constitution if they so chose.’’ Id., at 46. See also .R. Rep. No. 103–781 at 

3 (1994) as reprinted in 1994 USCCAN 3768. 80See, e.g., Leshy, supra note 67, at 6–7 (citing the Indian Land Consolidation Act, 25 U.S.C. 

§ 2201(1); the Indian Child Welfare Act, 25 U.S.C. § 1903(8); the Indian Self-Determination and 

Education Assistance Act, 25 U.S.C. § 450b(b); the Indian Child Protection and Family Violence 

Prevention Act, 25 U.S.C. § 3202(10)). See also Federally Recognized Indian Tribe List Act of 

1994, Pub. L. 103–454 (1994) (codified at 25 U.S.C. § 479a–1). This is a list of federally recognized tribes that are eligible for funding and services from the BIA by virtue of their status 

as Indian tribes. The List Act also formally established three ways in which an Indian group 

may become federally recognized, (1) By Act of Congress; (2) by the administrative procedures 

under 25 C.F.R. Part 83: or (3) by decision of a United States court. 81See Brief for Respondents at 37, Carcieri v. Salazar, 555 U.S. 379 (2009) (No. 07–526) (citing Goodyear Atomic Corp. v. Miller, 486 U.S. 174, 184–185 (1988)). 82 City of Sherrill v. Oneida Indian Nation of New York, 544 U.S. 197, 200 (2005). See also 

Cass County v. Leech Lake Band of Chippewa Indians, 524 U.S. 103, 114 (1998); County of Yakima v. Confederated Tribes & Bands of Yakima Indian Nation, 502 U.S. 251, 255 (1992); Mescalero Apache Tribe v. Jones, 411 U.S. 145, 155–59 (1973). 

amended by Congress to eliminate the ‘‘historic’’ versus ‘‘created’’ 

distinction in 1988 and in 1994.76

Congress enacted the 1994 legislation to ensure that DOI upheld 

the original intent of the IRA to allow tribes to organize and selfgovern, and to ensure that tribal sovereignty was not eroded by 

creating differing levels of sovereignty.77 Signed into law by President Clinton on May 31, 1994, the amendments overruled prior 

practices of classifying tribes based on date of their date of recognition or manner of recognition.78 These amendments are direct declarations from Congress that the federal agencies do not have the 

authority to discriminate between tribes based on the history of 

how a federally recognized tribe reached that status. Congress has 

made it clear that ‘‘if a tribe is federally recognized, they possess 

the full panoply of powers of sovereign Indian tribes unless specifically divested by treaty or Congressional action.’’ 79

Since passage of the IRA in 1934, Congress has enacted many 

other statutes addressing Indian tribes and their status under federal law.80 Never has Congress amended the IRA provisions at 

issue or expressed any concern that the Secretary has misinterpreted his authority.81 The Supreme Court has also considered section 5 of the IRA on numerous occasions and has remarked that 

section 5 ‘‘provides the proper avenue’’ for tribes ‘‘to reestablish 

sovereign authority over [lost] territory.’’ 82


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83Prior to 1980 and after the 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). 84 25 C.F.R. § 151.2(b). The definition found in these regulations further illustrates Congress’ 

intent to treat all tribes equally and shows how this inclusive practice was on par with many 

other Federal statutes. See e.g., the definition of ‘‘tribe’’ in the Indian Self-Determination and 

Education Assistance Act, 25 U.S.C. § 450b(b), the Indian Child Welfare Act, 25 U.S.C. § 1903(8), 

the Indian Land Consolidation Act, 25 U.S.C. § 2201(1), and the Indian Child Protection and 

Family Violence Prevention Act, 25 U.S.C. § 3202(10). 85 25 C.F.R. § § 151.2(c)(1)–(3). 

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 has understood and has construed the IRA 

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 IRA 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.83

The regulations are codified at 25 C.F.R. Part 151 and 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.’’ 84

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.’’ 85

These regulations govern both on and off-reservation land into 

trust acquisitions. The fee to trust process is initiated when an Indian tribe or an individual Indian submits a written request to 

take land into trust to their local BIA agency or regional office. The 

BIA makes several determinations following the initial request, including whether the acquisition is mandatory or discretionary and 

whether the acquisition is on or off reservation. 

For on-reservation land into trust acquisitions, the applicant 

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

justification of why the land should be placed in trust; and (3) information on the present use of the property, the intended use of 

the property, and whether there are any improvements on the 

land. The BIA 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. 


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86 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. 87 25 C.F.R. § § 151.10, 151.11. 88 Id. 89 25 C.F.R. § 151.12(b). 90 555 U.S. 379 (2009). 91 25 C.F.R. § 83. 92 25 C.F.R. § 83.7(a), (b), (c). 93Known as the Rhode Island Indian Claims Settlement Act, 25 U.S.C. § § 1701–1716. 

Off-reservation acquisition decisions are made at the BIA’s Central Office in Washington, D.C.86 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.87

Specifically, the BIA requests information on the change to the 

local government’s regulatory jurisdiction, effect on real property 

taxes, and special assessments.88 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.’’ 89

THE CARCIERI V. SALAZAR CASE

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

Carcieri v. Salazar,90 holding that the Secretary did not have the 

authority to take land into trust under the IRA for the Narragansett Indian Tribe (‘‘Tribe’’) because the Tribe was not ‘‘under federal jurisdiction’’ in 1934 when the IRA was enacted. 

The Carcieri case involved a challenge by Governor Carcieri of 

Rhode Island to the Secretary’s authority to take land into trust 

status for the 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 1978.91 These mandatory criteria require, among other things, that a tribe must be identified as a distinct governing American Indian entity having existed ‘‘on a substantially continuous basis since 1900.’’ 92 In acknowledging the 

Narragansett Tribe’s relationship with the federal government, the 

Assistant Secretary-Indian Affairs concluded 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 Department of the Interior, the Tribe also brought 

a land claim against the State of Rhode Island in the 1975 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 1978.93 In exchange for 1,800 acres of land, the Tribe surrendered any past or future claims to title and agreed that state law 

would apply to the 1,800 acres. 

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

adjacent to the Tribe’s initial reservation to be used for a low-income and elderly housing complex. These 31 acres were part of the 


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94 25 U.S.C. § 479. 95 25 U.S.C. § 465. 96 IRA Hearing, supra note 9, at 12 (testimony of Carole Goldberg, Jonathan D. Varat Distinguished Professor of Law, UCLA). 97 Brief for Petitioner at i, Carcieri v. Salazar, 555 U.S. 379 (2009) (No. 07–526). 98 Carcieri v. Salazar, 555 U.S. 379, 388 (2009). 99 ‘‘The Carcieri decision says that we should focus on ‘now’ as being 1934. What I want to 

emphasize here is that that misconstrues how the understanding was at that time in 1934 of 

what it actually meant to be recognized or not recognized under Federal jurisdiction.’’ IRA Hearoriginal disputed territory in 1975, but were not a part of the Settlement Lands established by the 1978 agreement, and therefore 

not subject to state jurisdiction. 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 place the land in trust. By having the 

land taken into trust, an exercise of tribal sovereignty, the Tribe 

is afforded the opportunity to exercise self-government and economic independence. On March 6, 1998, the Department of the Interior informed the Tribe of its decision 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 94 limited the Secretary’s authority to acquire land in trust under section 5 of the 

IRA 95 to only those Indian tribes that were ‘‘under federal jurisdiction’’ as of the IRA enactment date in 1934. The Secretary contended that the IRA applies to all tribes that are federally recognized at the time that land is taken into trust.96 The Federal district court held that since the Narragansett Tribe is currently recognized and existed at the time of the enactment of the IRA, it 

qualified as an Indian tribe within the meaning of the IRA. The 

First Circuit Court of Appeals held that the term ‘‘now’’ was ambiguous as to whether it meant at the moment Congress enacted the 

law or at the moment the Secretary invokes the law. Accordingly, 

the Circuit Court deferred to the Secretary’s interpretation of the 

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

States Supreme Court, asking the Court to determine whether the 

IRA empowers the Secretary to take land into trust for Indian 

tribes that were not recognized and under federal jurisdiction in 

1934.97

THE UNITED STATES SUPREME COURT HELD THAT ‘‘NOW’’ MEANS ‘‘IN

1934’’ 

The United States Supreme Court held in Carcieri that the Secretary did not have the authority to take land into trust for the 

Tribe under section 5 of the IRA because the Tribe was not ‘‘under 

federal jurisdiction,’’ as that term is used in the definition of ‘‘Indian’’ in section 19. The Court pointed to the parties’ agreement 

that the definition of ‘‘Indian’’ in section 19 determines which tribes 

may rely on section 5, and stated that the case turned on ‘‘whether 

the Narragansetts are members of a ‘recognized Indian Tribe now 

under federal jurisdiction.’ ’’ 98

The Court determined that ‘‘now’’ means ‘‘in 1934,’’ when the IRA 

was enacted, rather than the date that the Secretary acted to take 

land into trust.99 It did so notwithstanding the absence of the word 


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17 

ing, supra note 9, at 22 (testimony of Carole Goldberg, Jonathan D. Varat Distinguished Professor of Law, UCLA). 100 Carcieri, 555 U.S. at 392–93. ‘‘[L]ater recognition reflects earlier ‘Federal jurisdiction.’ ’’ Id. 

at 399 (Breyer, J. concurring (noting that neither the Tribe nor the Secretary argued that the 

Tribe was under federal jurisdiction at the time of the IRA)). While the established practice of 

the Department of the Interior does support the idea that ‘‘now’’ was intended as a kind of limitation, the limitation was a constraint on the individual Indian, not a temporal limit on a tribe 

or the date of its recognition. Id. at 398–399 (Breyer, J., concurring (explaining that in section 

19 of the IRA, the word ‘‘now’’ modifies only the phrase ‘‘under federal jurisdiction,’’ and it does 

not modify the phrase ‘‘recognized Indian tribe, so the result is that the ‘‘[t]he IRA imposes no 

time limit upon recognition’’)). ‘‘The Court should have focused on the word ‘include’ instead of 

‘now.’ The word ‘include’ is used pervasively in federal litigation to provide partial definitions 

of things that are specifically included, but without explicit limitation.’’ See Scott A. Taylor, Taxation in Indian Country After Carcieri v. Salazar, Wm. Mitchell L. Rev. 590, 596 (2010). ‘‘The 

Court justified its reading of ‘shall include’ to mean ‘shall mean’ because the list of three categories [in the definition of ‘‘Indian’’ in 25 U.S.C. § 479] of Indians was comprehensive. The 

Court’s logic, however, is flawed because members of tribes to be recognized in the future would 

be ‘Indians’ under the generally accepted definition. Accordingly, the definition easily could be 

read as insuring inclusion of members of tribes recognized before enactment of the Indian Reorganization Act without excluding members of tribes that may be recognized in the future. This 

is entirely consistent with the statutory use of an inclusive, not delimiting, definition of the term 

‘Indian.’ ’’ Id. at 598 (citing Carcieri, 555 U.S. at 391–92). 101 Carcieri, 555 U.S. at 392–93, 398–399. (Breyer, J., concurring). See also Circular No. 3123 

from John Collier, Commissioner, U.S. Dep’t of the Interior, Office of Indian Affairs, to Superintendents, Field Agents, and Others Engaged in Indian Reorganization Work (Nov. 18, 1935) 

(explaining the application of section 19 of the IRA). 102The basic Indian law canons of construction require that any ambiguities within the statute are to be resolved in favor of the Indian parties. McClanahan v. Ariz. State Tax Comm’n, 

411 U.S. 164, 174 (1973); Choctaw Nation v. Oklahoma, 397 U.S. 620, 631 (1970); Winters v. 

United States, 207 U.S. 564, 567–77 (1908). Felix Cohen, an advocate of, and heavily involved 

in the drafting of the IRA, expressed his concerns with the ambiguous nature of the phrase ‘‘now 

under federal recognition.’’ See IRA Hearing, supra note 9, at 34 (statement of Frederick E. 

Hoxie, Swanland Chair/History Professor, Univ. of Ill. (‘‘[W]hen a statute is presented to the 

court that is ambiguous, the terms are not clear, that all of the uncertainties or ambiguities 

are supposed to be resolved in favor of supporting outcomes that favor tribal self-determination 

and land rights . . . I have found in some of the major historical studies of the Indian Reorganization Act some rather frank acknowledgment that there was some lack of clarity in the statute itself about these broader purposes.’’)); Examining Executive Authority Hearing, supra note 

22, at 2 (testimony of Edward P. Lazarus, Partner, Akin Gump Strauss Hauer & Feld, LLP (‘‘In 

a memorandum written just prior to the IRA’s enactment, Cohen expressed bafflement at the 

phrase’s significance-backhanding it with the observation, ‘whatever that may mean’ and argued 

that the phrase should be deleted because it would ‘likely [ ] provoke interminable questions 

of interpretation.’ ’’ (quoting Analysis of Differences Between House Bill and Senate Bill. Box 

11, Records Concerning the Wheeler-Howard Act, 1933–37, folder 4894–1934–066, Part II-C, 

Section 4 (4 of 4); Differences Between House Bill and Senate Bill, Box 10, Wheeler-Howard Act 

1933–37, Folder 4894–1934–066, Part II-C, Section 2, Memo of Felix Cohen))). ‘‘The Court basically ignored the legislative history dealing with the insertion of the word ‘now’ in section 19 

of the Indian Reorganization Act. The legislative history clearly shows that the word ‘now’ was 

added to section 19 as something of a political compromise over issues totally unrelated to the 

land-to-trust provisions.’’ Taylor, supra note 100, at 596 (citing Carcieri v. Kempthorne, 497 F. 

3d 15, 26–30 (1st Cir. 2007)). 103See also Carcieri’s Ramifications to Tribes Hearing, supra note 22, at 17 (statement of Michael J. Anderson, AndersonTuell, LLP (‘‘Regrettably, the Department of the Interior Solicitor’s 

Office last year lodged the 1994 Babby Letter with the United States Supreme Court after the 

briefing was closed in the Carcieiri case (but before the decision was issued). This misleading 

filing was made without also lodging the 1994 privileges and immunities statute that reversed 

the historic non-historic tribal distinctions made in the letter. The Solicitor’s Office also failed 

to file a July 13, 1994 memorandum from Solicitor John Leshy to Assistant Secretary Ada Deer 

that also recognized that Congress for the most part ‘makes no distinctions among Tribes.’ The 

Continued 

‘‘now,’’ or any other temporal qualifier in the separate definition of 

the term ‘‘tribe,’’ 100 which also appears in section 19, and despite 

its recognition that section 5 authorizes the Secretary to take land 

into trust for a tribe.101 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.102

The Carcieri decision sent shockwaves through Indian country in 

great part because the record on which the Supreme Court based 

its interpretation of section 19 of the IRA was noticeably incomplete.103 Upon this Committee’s review of the parties’ briefs subVerDate Mar 15 2010 21:47 May 21, 2012 Jkt 019010 PO 00000 Frm 00017 Fmt 6659 Sfmt 6602 E:\HR\OC\SR166.XXX SR166

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Division of Indian Affairs’ incomplete lodging with the Supreme Court raises the specter that 

the discredited practice of classifying some tribes as ‘non-historic’ could be revived by the Division of Indian Affairs in a new post-Carcieri analysis.’’ (citing Leshy, supra note 67)). 104See Carcieri v. Salazar, 555 U.S. 379, 395–96 (2009) (‘‘Moreover, the petition for writ of 

certiorari filed in this case specifically represented that ‘[i]n 1934, the Narragansett Indian 

Tribe . . . was neither federally recognized nor under the jurisdiction of the federal government.’ The respondents’ brief in opposition declined to contest this assertion. Under our rules, 

that alone is reason to accept this as fact for purposes of our decision in this case. We therefore 

reverse the judgment of the Court of Appeals.’’); Carcieri’s Ramifications to Tribes Hearing, 

supra note 22, at 15 (statement of Michael J. Anderson, AndersonTuell, LLP). However, counsel 

for the Secretary did tell the Court that the Secretary’s position had always been that recognition and under Federal jurisdiction were ‘‘one and the same’’ for IRA purposes. See Transcript 

of Oral Argument at 42, Carcieri v. Salazar, 555 U.S. 379 (2009) (No. 07–526). 105 Adopted Jan. 12, 2010 and effective Feb. 16, 2010, available at http:// 

www.supremecourt.gov/ctrules/2010RulesoftheCourt.pdf. 106The Court did not have the legal and factual information it needed to consider the question 

of whether the Narragansett Tribe was or was not under federal jurisdiction in 1934. IRA Hearing, supra note 9, at 45 (statement of Richard Monette, Associate Professor of Law, Univ. of 

Wis. Law Sch. (explaining why, in his opinion, the Administration did not include much discussion of the intent of the 1994 amendments to the IRA in its brief to the Supreme Court in 

Carcieri, ‘‘They really just missed the boat on it. I hate to attribute any bad intent to them, 

but, again, the Solicitor from that department who could have been helping with those argumitted to the Court, it is clear that the United States Department 

of Justice (‘‘DOJ’’) and DOI, the Departments that represented the 

Tribe, inexplicably failed to argue or contest Rhode Island’s assertion that the Tribe was not under federal jurisdiction in 1934 and 

that is why the Secretary could not take land into trust.104

Whether the Departments’ failure was the result of negligence or 

an intentional withholding of information, their failure to include 

key pieces of factual information was nevertheless a breach of the 

federal government’s trust responsibility to the Tribe. First, because the United States’ brief did not address Rhode Island’s claim 

that the Tribe was not under federal jurisdiction in 1934, and 

therefore not entitled to the benefits of the IRA, the Tribe lost the 

opportunity to confirm their status and prove that the IRA did in 

fact apply: 

In addition to presenting other arguments for denying 

the petition, the brief in opposition should address any 

perceived misstatement of fact or law in the petition that 

bears on what issues properly would be before the Court 

if certiorari were granted. Counsel are admonished that 

they have an obligation to the Court to point out in the 

brief in opposition, and not later, any perceived 

misstatement made in the petition. Any objection to consideration of a question presented based on what occurred 

in the proceedings below, if the objection does not go to jurisdiction, may be deemed waived unless called to the 

Court’s attention in the brief in opposition. 

Rules of the Supreme Court of the United States, Rule 15.105

Failure to comply with this rule proved to be fatal to the Tribe’s 

chances of success before the Supreme Court. 

Second, DOJ’s Solicitor General failed to proffer all relevant documents with the Court. This omission resulted in only a partial 

record of the law. The United States had in its possession documents that clearly articulated the DOI’s understanding that a 

tribe’s date of federal recognition is irrelevant to the application of 

the IRA because of the subsequent legislative history of the 1994 

amendments to the IRA and the many other federal statutes that 

reflected Congress’s exercise of plenary power to provide equality 

for all tribes.106 These other statutes include legislative acts such 


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19 

ments, who should have raised the issue with the Department of Justice.’’)). See also Leshy, 

supra note 67. 107Pub. L. 90–284, 82 Stat. 77 (codified in part at 25 U.S.C. § 1301–1303). ‘‘Any tribe, band, 

or other group of Indians subject to the jurisdiction of the United States and recognized as possessing powers of self-government.’’ Id. at § 1301(1). 108 25 U.S.C. § 450b(e) (‘‘any Indian tribe, band, nation, or other organized group or community, including any Alaska Native village or regional or village corporation as defined in or established pursuant to the Alaska Native Claims Settlement Act (85 Stat. 688) [43 U.S.C.A. 

§ 1601 et seq.], which is recognized as eligible for the special programs and services provided 

by the United States to Indians because of their status as Indians’’). 109Pub. L. 95–608, 92 Stat. 3069 (1978) (codified at 25 U.S.C. § § 1901–1963). 110 25 U.S.C. § 2201(1) (‘‘any Indian tribe, band, group, pueblo, or community for which, or for 

the members of which, the United States holds lands in trust’’). 111 25 U.S.C. § § 3201–3211 (1990). 112 25 U.S.C. § 3202(10) (using the definition in 25 U.S.C. § 450b(e) (‘‘any Indian tribe, band, 

nation, or other organized group or community, including any Alaska Native village or regional 

or village corporation as defined in or established pursuant to the Alaska Native Claims Settlement Act (85 Stat. 688) [43 U.S.C.A. § 1601 et seq.], which is recognized as eligible for the special programs and services provided by the United States to Indians because of their status as 

Indians’’)). 113Leshy, supra note 67, at 3–7. 114 ‘‘[W]e have been advised that the Secretary of the Interior may have carried these erroneous classifications into decisions authorized by other Federal statutes such as sections 2 and 

9 of title 25 of the United States Code.’’ 140 Cong. Rec. S6147 (daily ed. May 19, 1994) (statement of Sen. John McCain). Circular No. 3134 from John Collier, Comm’r, U.S. Dep’t of the Interior, Office of Indian Affairs, to Superintendents (Mar. 7, 1936). But see Brief for NCAI as Amici 

Curiae, supra note 32, at 29 (‘‘The circular itself is focused principally on a different issue— 

the determination of ‘half-blood’ status under Section 479—and contains no analysis of the term 

‘now,’ which is set forth only in passing in the introduction setting out the basic definition of 

an ‘Indian.’ That circular sheds no light on the issues before the Court.’’), and Brief of Historians 

Frederick E. Hoxie, Paul C. Rosier, & Christian W. McMillen as Amici Curiae Supporting Respondents at 19–20, Carcieri v. Salazar, 555 U.S. 379 (2009) (No. 07–526), available at http:// 

www.narf.org/sct/carcieri/merits/historians.pdf (‘‘[T]he Department’s practice; the views of Collier and other principal supporters; and the fundamental purposes of the Act, all support the 

view that the Act was not, in fact, intended (and was not interpreted) to foreclose from IRA 

benefits tribes that came under federal jurisdiction after June 1934.’’ (noting, for example, that 

the Alaska Reorganization Act of 1936, 49 Stat. 1250, enacted only two years after the IRA, 

expressly provided that ‘‘Indians in Alaska not heretofore recognized as bands or tribes’’ could 

organize under the IRA)). 115See Carcieri, 555 U.S. at 390. The Solicitor General’s incomplete lodging of documents with 

the Supreme Court formed the basis of Justice Thomas’s majority opinion. ‘‘[T]he Secretary’s 

current interpretation is at odds with the Executive Branch’s construction of this provision at 

the time of enactment. In correspondence with those who would assist him in implementing the 

IRA, the Commissioner of Indian Affairs, John Collier, explained that: ‘Section 19 of the Indian 

Reorganization Act of June 18, 1934 (48 Stat. L., 988), provides, in effect, that the term ‘Indian’ 

as used shall include—(1) all persons of Indian descent who are members of any recognized tribe 

that was under Federal jurisdiction at the date of the Act . . .’ ’’ Id. (quoting Letter from John 

Collier, Comm’r, to Superintendents (Mar. 7, 1936), Lodging of Respondents (emphasis in original)). 

as the Indian Civil Rights Act of 1968,107 the Indian Self-Determination and Education Assistance Act,108 the Indian Child Welfare Act,109 the Indian Land Consolidation Act,110 and the Indian 

Child Protection and Family Violence Prevention Act.111 In all of 

these acts,112 Congress broadly defined ‘‘tribe’’ to include all federally recognized tribes.113 The United States included a 1936 memorandum that detailed administrative views and practices that had 

since been reversed,114 and failed to include a 1994 memorandum, 

which acknowledged this reversal. As a result of this omission, the 

Carcieri record was an incomplete view of the legislative history 

that applied outdated administrative practices. Without a complete 

record, the Supreme Court was left to focus on the word ‘‘now’’ in 

the IRA.115 The Committee finds it misleading to proffer an outdated interpretation of the law to support a current action while 

omitting the interpretation that expressly reverses the outdated 

and reflects current law. 


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116These documents were received and approved by the Clerk of Court on Aug. 26, 2008, 

available at http:www.supremecourt.gov/Search.aspx?FileName=/docketfiles/07-526.htm. 117 Circular No. 3134 from John Collier, Comm’r, U.S. Dep’t of the Interior, Office of Indian 

Affairs, to Superintendents (Mar. 7, 1936) (discussing enrollment under the IRA). 118Letter from Kent Frizzell, Acting Secretary, Dep’t of the Interior, to David H. Getches, Esquire, Native American Rights Fund (Oct. 27, 1976) (discussing the Stillaguamish Tribe v. 

Kleppe, Civil No. 75–1718 (D.D.C. 1976) (noting that ‘‘[t]his decision of the Secretary is limited 

to the Stillaguamish Tribe and to the particular facts of this case’’)). 119Memorandum from Hans Walker, Jr., Associate Solicitor, Dep’t of the Interior, Indian Affairs, to Assistant Secretary, Dep’t of the Interior, Indian Affairs (Oct. 1, 1980) (Request for Reconsideration of the Decision Not to Take Land in Trust for the Stillaguamish Tribe (noting 

‘‘Our research leads us to the conclusion that neither landownership nor formal acknowledgment 

in 1934 is a prerequisite to IRA land benefits so long as the group meets the other definitional 

requirements of a ‘tribe’ within the meaning of Section 19 of the IRA. More specifically, it is 

our opinion that the Stillaguamish are indeed an Indian tribe within the meaning of Section 

19.’’)). 120Letter from Wyman D. Babby, Acting Assistant Secretary, Dep’t of the Interior, Indian Affairs, to George Miller, Chairman, H. Comm. on Natural Res. (Jan. 14, 1994) (noting Sections 

5 and 7 of the IRA, 25 U.S.C. § § 465, 467, ‘‘authorized the Secretary to acquire land through 

purchase for Indians, landless or otherwise, and to proclaim new Indian reservations on lands 

acquired pursuant to any authority conferred by the IRA’’). 121Leshy, supra note 68. 122The Leshy memorandum states that the 1994 amendments overruled any previous policies 

to distinguish between tribes based on their date of federal recognition. The Leshy memorandum 

further noted that any attempts to discriminately apply the IRA based on the date a tribe received federal recognition were overruled by numerous subsequent statutes. Id. (emphasis 

added). 123The Court found its interpretation to be consistent with the 1936 letter lodged by DOI. 

Carcieri v. Salazar, 555 U.S. 379 (2009) (Thomas, J., announcing the opinion, Feb. 24, 2009), 

available at http://www.oyez.org/cases/2000-2009/2008/2008-07-526. 124 Carcieri v. Salazar, 555 U.S. 379, 388–391 (2009). 125 Also missing from the documents lodged by the United States were additional 1936 memoranda written by two Assistant Solicitors who took differing positions on this issue. See Leshy, 

supra note 67, at 5 (noting that discriminating practices in another 1936 opinion ‘‘has come into 

serious question in recent times’’). If the Supreme Court had known the complete legislative and 

administrative history, it might have better understood the scope of the Secretary’s authority. 

‘‘The scope of the word ‘now’ raises an interpretative question of considerable importance; the 

provision’s legislative history makes clear that Congress focused directly upon that language, 

believing it definitely resolved a specific underlying difficulty; and nothing in that history indicates that Congress believed departmental expertise should subsequently play a role in fixing 

the temporal reference of the word ‘now.’ These circumstances indicate that Congress did not 

intend to delegate interpretative authority to the Department. Consequently, its interpretation 

is not entitled to Chevron deference, despite linguistic ambiguity.’’ Carcieri v. Salazar, 555 U.S. 

379, 396–397 (2009) (Breyer, J., concurring (citing United States v. Mead Corp., 533 U.S. 218, 

227, 229–230 (2001))). 

The Solicitor General lodged four documents with the Supreme 

Court on August 26, 2008.116 These four documents, dated March 

7, 1936,117 October 27, 1976,118 October 1, 1980,119 and January 

14, 1994,120 explained some of the legislative history, but failed to 

inform the Court of the complete history. 

The DOJ omitted a memorandum written by one of its former solicitors, John Leshy, which explained how the 1994 amendments 

overruled previous practices.121 The Leshy memorandum eliminated any confusion regarding the Secretary’s authority to acquire 

land into trust for all tribes.122 The Committee finds the actions of 

the Departments to be egregious errors or omissions. Because of 

these errors or omissions, the Supreme Court did not have all relevant information in the record to review. The Court announced 

that its opinion was consistent with the documents that had been 

lodged, however incomplete and misleading those documents 

were.123 Without the full legislative history and administrative 

record, the Court’s opinion became one of statutory interpretation 

where the word ‘‘now’’ meant ‘‘in 1934’’ based entirely on the plain 

and ordinary meaning of the word ‘‘now.’’ 124 Because the 1994 

memorandum had not been lodged with the Court,125 the Court did 

not find any evidence contradicting its position and reversed the 


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126 Carcieri v. Salazar, 555 U.S. 379 (2009) (Thomas, J., announcing the opinion, Feb. 24, 

2009), available at http://www.oyez.org/cases/2000–2009/2008/2008-07-526. 127 Id. 128 Id. 129 Carcieri Hearing, supra note 32 (statement of Colette Routel, Assistant Professor, William 

Mitchell Coll. of Law). See also 140 Cong. Rec. S6147 (daily ed. May 19, 1994) (statement of 

Sen. Daniel K. Inouye (D–Hawaii) (‘‘By enacting this amendment to section 16 of the IRA, we 

will provide the stability for Indian tribal governments that the Congress thought it was providing 60 years ago when the IRA was enacted.’’)). 130See discussion infra Executive and Legislative Policies Have Long Reflected Congressional 

Intent To Foster Tribal Sovereignty as Expressed in the Indian Reorganization Act. 131 140 Cong. Rec. E663 (Apr. 14, 1994) (statement of Rep. Bill Richardson (‘‘Tribal sovereignty 

must be preserved and protected by the executive branch and not limited or divided into levels 

which are measured by the Bureau of Indian Affairs and the Department of the Interior.’’)); 

Carcieri’s Ramifications to Tribes Hearing, supra note 22, at 15, 17 (statement of Michael J. Anderson, AndersonTuell, LLP). See also Examining Executive Authority Hearing, supra note 22, 

at 7 (testimony of Edward P. Lazarus, Partner, Akin Gump Strauss Hauer & Feld, LLP (‘‘In 

so ruling, the Supreme Court defied 70 years of practice and undermined a generally settled 

understanding that a main purpose of the IRA was to provide authority and flexibility for rebuilding a tribal land base that had been reduced by more than 100 million acres during the 

period when the United States pursued an aggressive policy of breaking up and ‘allotting’ Indian 

lands, as well as trying to assimilate individual Indians into American society. Congress, however, has the unquestioned power to reject the Court’s belated assessment of congressional intent and restore the status quo ante.’’)). 132See discussion infra Executive and Legislative Policies Have Long Reflected Congressional 

Intent To Foster Tribal Sovereignty as Expressed in the Indian Reorganization Act. 133 Brief for Respondents at 37, Carcieri v. Salazar, 555 U.S. 379 (2009) (No. 07–526) (citing 

25 U.S.C. 476(f) & (g)) (emphasis added). 134 ‘‘No matter how the term ‘‘now under federal jurisdiction’’ is construed and applied by the 

Department of Interior and the courts after Carcieri, the Court’s emphasis on the date of enactment of the IRA seriously misconstrues the broader purposes of the Act and the way federaltribal relations operated during that time.’’ IRA Hearing, supra note 9, at 24 (statement of Carole Goldberg, Jonathan D. Varat Distinguished Professor of Law, UCLA). 135See discussion infra Executive and Legislative Policies Have Long Reflected Congressional 

Intent To Foster Tribal Sovereignty as Expressed in the Indian Reorganization Act. 136 Carcieri Hearing, supra note 32 (statement of Larry Echo Hawk, Assistant Secretary, Indian Affairs, Dep’t of the Interior). See also, e.g. Memorandum from Nathan R. Margold, Solicitor, to the Commissioner of Indian Affairs (Jan. 29, 1941), in 1 OPINIONS OF THE SOLICITOR, 1971–1974, at 1026 (1982) (explaining that the St. Croix Indians of Wisconsin, an unrecognized tribe in 1934, could still organize and be recognized under the IRA). 

judgment of the Court of Appeals.126 ‘‘In this case, neither the Secretary nor the Tribe defended the acquisition by arguing that the 

Tribe was under federal jurisdiction in 1934. And the evidence in 

the record on this question is to the contrary.’’ 127 The United 

States failed to uphold its trust responsibility to the Tribe. As a result of this breach, the Supreme Court based its decision 128 on incomplete and erroneous information, consequently ‘‘shatter[ing] the 

stability Congress provided through the 1994 amendments.’’ 129

By finding that the IRA did not apply to the Narragansett Indian 

Tribe because it was not under federal jurisdiction in 1934, and by 

not remanding the case back to the First Circuit to allow the Tribe 

the opportunity to demonstrate that it was under federal jurisdiction in 1934, the Supreme Court ignored Congress’s 1994 amendments to the IRA and numerous other congressional statutes and 

presidential policies 130 that were enacted to ensure that all tribes 

would be afforded the same ‘‘privileges and immunities of an Indian tribe relative to any other federally recognized tribe.’’ 131 The 

1994 amendments, combined with numerous other federal statutes,132 expressly articulate a principle of equality among recognized tribes—that the IRA applies to all tribes regardless of their 

date or manner of federal recognition.133

In ruling contrary to the Secretary’s interpretation of the IRA,134

and disregarding many other statues that reinforced the IRA,135

the Supreme Court in Carcieri overturned more than 75 years of 

legal and administrative practice.136 ‘‘The Carcieri decision [is] inVerDate Mar 15 2010 21:47 May 21, 2012 Jkt 019010 PO 00000 Frm 00021 Fmt 6659 Sfmt 6602 E:\HR\OC\SR166.XXX SR166

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137 Carcieri Hearing, supra note 32 (statement of Larry Echo Hawk, Assistant Secretary, Indian Affairs, Dep’t of the Interior). 138Letter from Oscar L. Chapman, Assistant Secretary, to Nathan Margold, Solicitor (Oct. 25, 

1934), in 1 Opinions of the Solicitor, 1971–1974, at 477 (1982) (referring to Section 16 of the 

IRA) (detailing the powers of self-government, emphasizing that these powers have never been 

terminated by law or waived by treaty). Id. at 446. 139 Carcieri Hearing, supra note 32 (statement of Larry Echo Hawk, Assistant Secretary, Indian Affairs, Dep’t of the Interior). The 1994 amendments ‘‘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.’ ’’ Id. (citing 25 U.S.C. § 476(f) & (g)). ‘‘ ‘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.’ ’’ Id. (quoting Sen. Daniel K. Inouye (D-Hawaii), a co-sponsor of the 

1994 amendments, 140 Cong. Rec. S6147 (daily ed. May 19, 1994)). 140 IRA Hearing, supra note 9, at 43 (statement of Richard Monette, Associate Professor of 

Law, Univ. of Wis. Law Sch.). 141 Carcieri Hearing, supra note 32 (statement of Daniel K. Akaka, Chairman, S. Comm. on 

Indian Affairs). 142 Id. (statement of Colette Routel, Assistant Professor, William Mitchell Coll. of Law). ‘‘[I]n 

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.’’ Id. (‘‘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’’ (citing Tonto Apache Tribe of Arizona, P.L. 92–470 (Oct. 

6, 1972))); Pascua 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 reservaconsistent 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.’’ 137 Congress intended the IRA to apply to 

‘‘all Indian tribes recognized now or hereafter by the legislative or 

the executive branch of the Federal Government’’ 138 and it reaffirmed this in the 1994 amendments, thus solidifying congressional policy to treat all tribes alike regardless of their date of Federal acknowledgment.139 ‘‘[T]he 1994 amendment[s] [were] intended to prevent Carcieri.’’ 140 The Constitution invests Congress 

alone with plenary power over Indian affairs and Congress must 

exercise its power to enact legislation to right this wrong. ‘‘Congress was clear when it enacted the Indian Reorganization Act in 

1934, and again with amendments to the Act in 1994. It is the responsibility of Congress to act when its intentions are misconstrued 

by the courts and so it must act now.’’ 141

THE IMPACTS OF CARCIERI V. SALAZAR CONTRAVENE THE INTENT OF

THE INDIAN REORGANIZATION ACT

Since the enactment of the IRA, federal policy has sought to treat 

all tribes equitably and ensure they are entitled to the same federal rights and benefits.142 For more than 70 years, the DepartVerDate Mar 15 2010 21:47 May 21, 2012 Jkt 019010 PO 00000 Frm 00022 Fmt 6659 Sfmt 6602 E:\HR\OC\SR166.XXX SR166

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tions 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’’)). 143 IRA Hearing, supra note 9, at 48 (testimony of John E. Echohawk, Executive Director, Native Am. Rights Fund). See also Memorandum from Hans Walker, Jr., Associate Solicitor, Indian 

Affairs to Assistant Secretary, Indian Affairs (Oct. 1, 1980); 144 IRA Hearing, supra note 9, at 48 (testimony of John E. Echohawk, Executive Director, Native Am. Rights Fund). 145 Id. (‘‘Given the fundamental purpose of the IRA, which was to organize tribal governments 

and restore land bases for tribes that had been torn apart by prior Federal policies, the court’s 

ruling is an affront to the most basic policies underlying the IRA.’’). 146 25 U.S.C. § § 479a, 479a–1. 147 25 U.S.C. § 476(f) & (g). 148 140 Cong. Rec. S6146 (daily ed. May 19, 1994) (statement of Sen. John McCain) (‘‘Regardless of the method by which recognition was extended, all Indian tribes enjoy the same relationship with the United States and exercise the same inherent authority.’’). 149 25 U.S.C. § 465. 150 25 U.S.C. § 479. 151 Id. 

ment of Interior interpreted and applied the phrase ‘‘now under 

Federal jurisdiction’’ to mean at the time of application to the Secretary to take land into trust. Under this established interpretation, the Department of Interior has restored entire Indian reservations and authorized numerous tribal constitutions and business 

organizations.143 ‘‘By calling into question which federally recognized tribes are or are not eligible for the IRA’s provisions, the 

Court’s ruling in Carcieri threatens the validity of tribal business 

organizations, subsequent contracts and loans, tribal reservations 

and lands, and could affect jurisdiction, public safety and provision 

of services on reservations across the country.’’ 144

Carcieri creates the unequal treatment of Federally recognized Indian Tribes and runs contrary to the 1994 amendments 

The Carcieri decision has had the detrimental effect 145 of creating two classes of Indian tribes—those which were ‘‘under federal 

jurisdiction’’ as of the date of enactment of the IRA in 1934 for 

whom land may be taken into trust, and those which were not. 

This disparity directly conflicts with prior acts of Congress,146 the 

1994 amendments to the IRA,147 and federal policy supporting selfdetermination for all federally recognized Indian tribes.148

Under the IRA, the Secretary is authorized to take land into 

trust ‘‘for the purpose of providing land for Indians.’’ 149 ‘‘Indians’’ 

is defined to ‘‘include all persons of Indian descent who are members of any recognized Indian tribe now under Federal jurisdiction, 

and all persons who are descendants of such members who were, 

on June 1, 1934, residing within the present boundaries of any Indian reservation, and . . . all other persons of one-half or more Indian blood.’’ 150 The same provision states that ‘‘tribe’’ is to ‘‘be construed to refer to any Indian tribe, organized band, pueblo, or the 

Indians residing on one reservation.’’ 151


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152 Arguably, all tribes within the boundaries of the United States were once considered 

‘‘under federal jurisdiction.’’ United States v. Sandoval, 231 U.S. 28, 46–47 (1913) (quoting 

United States v. Holliday, 70 U.S. 407, 419 (1865) (‘‘In reference to all matters of this kind, it 

is the rule of this court to follow the action of the executive and other political departments 

of the government, whose more special duty it is to determine such affairs. If by them those 

Indians are recognized as a tribe, this court must do the same. If they are a tribe of Indians, 

then, by the Constitution of the United States, they are placed, for certain purposes, within the 

control of the laws of Congress.’’)) (emphasis added). See also Memorandum from Felix S. Cohen, 

Assistant Solicitor (Apr. 9, 1936) (responding to a prior memorandum from Charlotte T. 

Westwood, Assistant Solicitor) (discussing Ms. Westwood’s interpretations of Section 17 of the 

IRA: ‘‘Neither the allotting of land in severalty nor the granting of citizenship has destroyed 

the tribal relationship upon which local autonomy rests. Only through the laws or treaties of 

the United States, or administrative acts authorized thereunder, can tribal existence be terminated . . . [T]he internal sovereignty of the indian [sic] tribes continues, unimpaired by the 

changes that have occurred in the manners and customs of indian [sic] life.’’). Often, if the Secretary of the Interior was exercising power over tribes, a power conferred upon him by Congress, 

Federal jurisdiction was implicit. See Margold, supra note 138, at 412 (letter from July 14, 1934) 

(‘‘Federal jurisdiction necessarily continues with the right in the Secretary of the Interior to exercise all the powers which Congress has conferred upon him expressly or by necessary implication.’’). 153 In 1934, ‘‘federal jurisdiction’’ either meant that the federal government was providing financial support to the tribe or that there was a political relationship, or recognition, between 

the two governments. See Memorandum from Hans Walker, Jr., Associate Solicitor, Indian Affairs, to Assistant Secretary, Indian Affairs, on the Request for Reconsideration of Decision Not 

to Take Land in Trust for the Stillaguamish Tribe (Oct. 1, 1980). ‘‘The considerations prompting 

such recognition do not always reflect tribal understandings. Thus, for example, a tribe that has 

been terminated by the federal government may continue to exist for the native community that 

was the object of the legal action, but not for the purpose of interpreting a federal statute granting statutory benefits only to federally recognized tribes. Indeed, the successful efforts of some 

terminated tribes to be restored to federally recognized status illustrate tribal persistence apart 

from federal law.’’ See Felix S. Cohen, Handbook of Federal Indian Law 137 (Nell Jessup Newton et al. eds., 2005 ed.) (1941). 

‘‘For the first 70 years of U.S. history, there actually was no such clear-cut concept. What happened is that Congress would pass laws that applied to Indian Country or Indian tribes or Indians, and then it was up to the Executive Branch or to the Federal courts to determine on an 

ad hoc basis to whom these statutes should be applied.’’). Id. at 143. 154 Cohen, supra note 153, at 143. 155 ‘‘In reference to all matters of this kind, it is the rule of this court to follow the action 

of the executive and other political departments of the government, whose more special duty 

it is to determine such affairs. If by them those Indians are recognized as a tribe, this court 

must do the same.’’ Cohen, supra note 153, at 141 (quoting United States v. Holliday, 70 U.S. 

407, 419 (1865). See also Sandoval, 231 U.S. at 45–46 (‘‘Not only does the Constitution expressly 

authorize Congress to regulate commerce with the Indian tribes, but long continued legislative 

and executive usage and an unbroken current of judicial decisions have attributed to the United 

States as a superior and civilized nation the power and the duty of exercising a fostering care 

and protection over all dependent Indian communities within its borders, whether within its 

original territory or territory subsequently acquired, and whether within or without the limits 

of a state.’’); IRA Hearing, supra note 9, at 24–25 (statement of Carole Goldberg, Jonathan D. 

Varat Distinguished Professor of Law, UCLA) (‘‘If Congress or the executive branch had previously concluded that a tribe existed, federal courts generally refused to disturb this finding. 

Situations necessarily arose, however, where neither Congress nor the executive branch had previously acknowledged the existence of a particular tribe. In these cases, federal courts were required to decide whether that group constituted an Indian tribe as defined in particular statutes.’’); Cohen, supra note 153, at 143 (noting that today, ‘‘the existence of an official list of federally recognized tribes dispenses with uncertainty as to those groups included on the list’’). 156 IRA Hearing, supra note 9, at 24–25 (testimony of Carole Goldberg, Jonathan D. Varat Distinguished Professor of Law, UCLA) (‘‘[T]he terms ‘‘recognize’’ and ‘‘acknowledge’’ were almost 

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

law, regulation, or in the legislative history leading up to the enactment of the IRA. Prior to the IRA, the United States had no specific term or designation indicating that an Indian tribe was ‘‘recognized.’’ 152 The Federal government used terms such as ‘‘in amity 

with the government’’ and ‘‘having existing treaties with the government’’ up until the late 1800’s.153 The existence of treaties or 

statutes recognizing a tribe once obviated the need for any more refined designations, definitions, or criteria indicating tribal status.154 If a tribe’s status was questioned, courts would defer to acts 

of recognition by the political branches to determine whether a 

tribe was federally recognized.155

When the IRA was enacted in 1934, the concept of equating recognition with jurisdiction was only beginning to take shape.156


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exclusively used in the cognitive sense, indicating that a particular tribes was known to the 

United States. Congress enacted legislation that applied to ‘‘Indian country,’’ ‘‘Indian tribes,’’ 

‘‘Indian nations,’’ ‘‘Indians,’’ ‘‘Indians not citizens of the United States,’’ ‘‘Indians not members 

of any of the states,’’ and the like. It was then up to the executive branch and the federal courts 

to determine, on an ad hoc basis, to whom these statutes should be applied.’’ (citing William 

W. Quinn, Jr., Federal Acknowledgement of American Indian Tribes? The Historical Development of a Legal Concept, J. Legal Hist. (1990))). 157 Id. at 25 (statement of Carole Goldberg, Jonathan D. Varat Distinguished Professor of 

Law, UCLA). ‘‘[T]his bright line, nearly permanent differentiation between recognized and unrecognized tribes, is actually of recent origin. For the first 70 years of U.S. history, there actually was no clear-cut concept.’’ Id. at 22. See also id. at 32 (statement of William Rice, Associate 

Professor of Law, Univ. of Tulsa Coll. of Law (‘‘The policy and the practice of the previous Administrations within the Indian Office had been that when an individual or tribe lost their land, 

they were no longer considered as subjects for the Indian Offices to deal with. And so they had 

whole tribes of people which Collier understood to be wandering tribes with no land base; with 

no doubt they were Indians, no doubt they were a tribe in constitutional terms. Certainly, Congress would have the right to control commerce with that Indian tribe, but they simply didn’t 

know they were there. I have seen in my research, in fact, questionnaires that the Indian Office 

central office sent out to all the superintendents asking specifically not only about the tribes 

that they were operating with and that they knew about, but what other groups of Indians are 

in your territory and in your area that are not landholders, that are not part of your situation 

as we understand it, but that need help. They were searching for those. They got sociologists 

and anthropologists from the big universities to try to make a list of tribes, and I have seen 

those records in the National Archives. They simply didn’t know who all the tribes were. Some 

had just lost their land and nobody knew where they were. Some had never had a treaty. Some 

had had treaties with States, but not with the United States . . . There were no time limits 

set on the IRA. The only time limit, in fact, was a one-year period which was later, I believe, 

extended to another year, for tribes to have an election to decide whether or not the IRA would 

apply to them, and that is the only real time limit that existed.’’)). 158 ‘‘There was no comprehensive list of federally recognized Indian tribes in June 1934. It was 

only after the Act was passed that Commissioner Collier was given the daunting task of determining which Indian groups were or should be recognized tribes by the federal government and 

permitted to organize under the Act. Collier hastily compiled a list of 258 groups. This list is 

universally recognized to include serious omissions, and these mistakes should not be frozen into 

the IRA.’’ Id. at 26 (statement of Carole Goldberg, Jonathan D. Varat Distinguished Professor 

of Law, UCLA) (emphasis in original). 159The United States did not maintain an official list of federally recognized Indian tribes 

until after 1994, when Congress enacted the Federally Recognized Tribal List Act. See Pub. L. 

103–454 (1994) (codified at 25 U.S.C. § 479a–1). 160 ‘‘Both the executive branch and Congress have repeatedly acknowledged that inaccurate 

recognition decisions were made in the 1930s.’’ Brief for Amici Curiae Law Professors Specializing in Federal Indian Law in Support of Respondents at 22 n.17, Carcieri v. Salazar, 555 U.S. 

379 (2009) (No. 07–526), available at http://www.americanbar.org/content/dam/aba/publishing/ 

preview/publicedlpreviewlbriefslpdfsl07l08l07l526l RespondentAmCuLawProfsofFedInLaw.authcheckdam.pdf. ‘‘After the IRA was passed, the Department of the Interior attempted to decide which tribes would be eligible to vote on and organize under the Act. In its haste, several errors and omissions were made. The 1977 Report of 

the American Indian Policy Review Commission revealed that dozens of tribes had not been recognized by the federal government due to inadvertence or mistake.’’ Id. at 5. See also Elmer 

R. Rusco, A Fateful Time: The Background and Legislative History of the Indian Reorganization 

Act 157 (2000) (‘‘In the 1850s the U.S. Senate had not only refused to ratify eighteen treaties 

drawn up with various Native American societies in California but also had relegated these 

treaties to a secret archive, where they remained until the early twentieth century. As a result, 

few reservations were established for California Indians, and they had one of the smallest land 

bases of Native peoples west of the Mississippi; almost all California Indians were essentially 

landless.’’). 161 25 C.F.R. § 83. Tribes that have been acknowledged or have had their recognition restored 

through the Federal Acknowledgment Process are Indian tribes that have maintained tribal 

identities ‘‘throughout history until the present.’’ See 25 C.F.R. § 83.3. ‘‘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.’’ Carcieri Hearing, supra note 32 (statement of Rep. Tom Cole). AlterContinued 

Prior to 1934, there was no comprehensive list of federally recognized tribes and no standard criteria for determining tribal recognition.157 Although the work of compiling a list of federally recognized tribes began in the late 1930s, after the IRA was enacted,158

there was no complete list that could be reliably referred to until 

1994.159 Tribes that were not included on any official list from 1934 

to 1994, usually due to governmental oversight,160 could still establish recognition status through other means.161


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native routes to establish federal recognition include the BIA’s OFA process and federal legislation that corrects oversights of earlier legislation, resolutions of outstanding land claims; or 

equal treatment of tribes similarly situated. Cohen, supra note 153, at 143–144. ‘‘A final determination that a group is an Indian tribe means, among other things, that it has continuously 

existed as a tribe, has inherent sovereignty, and is entitled to a government-to-government relationship with the United States.’’ The Federal Recognition and Acknowledgment Process by the 

Bureau of Indian Affairs, Hearing Before the H. Comm. on Natural Res., 108th Cong. 78 (Mar. 

31, 2004) (testimony of R. Lee Fleming, Director, Office of Federal Acknowledgment, Office of 

the Assistant Sec’y, Indian Affairs, Dep’t of the Interior). 162 IRA Hearing, supra note 9, at 22 (testimony of Carole Goldberg, Jonathan D. Varat Distinguished Professor of Law, UCLA). See id. at 4 (statement of Frederick E. Hoxie, Swanland 

Chair/History Professor, Univ. of Ill. (‘‘[W]hen Congress approved this law in June, 1934, it articulated and advanced three broad goals. The clarity of those goals (and their persistence over 

the past eight decades) enables us to define quite clearly the core intent of this landmark legislation.’’)). 163Margold, supra note 138, at 477 (letter from Oct. 25, 1934) (‘‘[T]he conclusions advanced 

are intended to apply to all Indian tribes recognized now or hereafter by the legislative or the 

executive branch of the Federal Government.’’). ‘‘This broad language meant that if and when 

the federal government recognized an Indian group as a distinct entity having the necessary 

political characteristics, that Indian group acquired, or the federal government recognized that 

it had always possessed, all the attributes of a sovereign political power whether the group had 

previously exercised those powers or not.’’ Vine Deloria, Jr. & Clifford M. Lytle, The Nations 

Within 160 (1984) (writing in response to Margold’s opinion above) (emphasis in original). 164 IRA Hearing, supra note 9, at 9 (statement of Frederick E. Hoxie, Swanland Chair/History 

Professor, Univ. of Ill.). 165 Brief for Amici Curiae Law Professors Specializing in Federal Indian Law, supra note 160. 166 Carcieri v. Salazar, 555 U.S. 379, 400 (2009). 167 Indian Country is defined as ‘‘(a) all land within the limits of any Indian reservation under 

the jurisdiction of the United States Government, notwithstanding the issuance of any patent, 

and, including rights-of-way running through the reservation, (b) all dependent Indian communities within the borders of the United States whether within the original or subsequently acquired territory thereof, and whether within or without the limits of a state, and (c) all Indian 

allotments, the Indian titles to which have not been extinguished, including rights-of-way running through the same.’’ 18 U.S.C. § 1151. 

Given the goals and long-standing federal acknowledgment practices of the IRA, ‘‘it is extremely unlikely that Congress in 1934 

would have intended that recognition as of that time be the prerequisite for the Act to apply.’’ 162 Since its enactment, the IRA has 

applied to all tribes, those recognized in 1934 and those recognized 

after 1934.163 ‘‘[T]he IRA defined for the first time a new, national 

approach to policymaking that would include Indian people and organizations regardless of their location or history.’’ 164

The concurring opinions of Justices Breyer and Souter in Carcieri 

also 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 being considered to have 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.165 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.’’ 166

Carcieri threatens public safety and tribal law enforcement 

Carcieri creates a significant threat to public safety on tribal 

lands. By upending decades-old interpretations regarding the status of Indian lands, the Supreme Court has thrown into doubt the 

question of who has jurisdictional authority over the lands. The geographic scope of federal criminal jurisdiction depends upon the existence of Indian country 167—a term that includes trust land. The 


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168The President’s Fiscal Year 2012 Budget for Tribal Programs, Hearing Before the S. Comm. 

on Indian Affairs, 112th Cong. 81–82 (Mar. 15, 2011) (statement of Early Barby, Chairman, 

Tunica-Biloxi Tribe of Louisiana & Chair, USET Carcieri Task Force). 169 Hearing on S. 1763, S. 872 and S. 1192 Before the S. Comm. on Indian Affairs, 112th 

Cong. (Nov. 10, 2011) (statement of Thomas B. Heffelfinger, Attorney, Best & Flanagan LLP). 

See also Native Women: Protecting, Shielding, and Safeguarding Our Sisters, Mothers, and 

Daughters: Hearing Before S. Comm. on Indian Affairs, 112th Cong. (July 14, 2011) (statement 

of Sarah Deer, Assistant Professor, William Mitchell Coll. of Law) (‘‘The federal government has 

created a complex interrelation between federal, state and tribal jurisdictions that undermines 

tribal authority and often allows perpetrators to evade justice.’’). 170 Native Women: Protecting, Shielding, and Safeguarding Our Sisters, Mothers, and Daughters: Hearing Before S. Comm. on Indian Affairs, 112th Cong. (July 14, 2011) (statement of 

Sarah Deer, Assistant Professor, William Mitchell Coll. of Law). 171Pub. L. No. 111–211 (2010). 172 ‘‘Federal prosecutors decline to file charges in 60–70 percent of cases involving the most 

serious crimes committed on Indian reservations.’’ Tribal Law and Order Act One Year Later: 

Have We Improved Public Safety and Justice Throughout Indian Country?, Hearing Before the 

S. Comm. on Indian Affairs, 112th Cong. (Sept. 22, 2011) (statement of Sen. Tester (D–Montana)). 173 ‘‘Native American families have a right to live in a safe and secure environment. The federal government has treaty and trust obligations to see that they do. For much of our history, 

however, the federal government has done a poor job of meeting those obligations. This legislation will help turn that failure around and is a big step forward in fighting violent crime in 

Indian Country.’’ Press Release, United States Senate Committee on Indian Affairs (June 24, 

2010) (quoting Sen. Byron Dorgan (D–North Dakota), TLOA’s main sponsor), available at http:// 

www.indian.senate.gov/news/pressreleases/2010–06–24.cfm. 

Carcieri decision casts doubt on federal prosecution of crimes committed in Indian country as well as civil jurisdiction over much of 

Indian country. The proposed IRA amendment, S. 676, would alleviate these concerns, clarifying that the Secretary can lawfully 

take land into trust for all federally recognized tribes, thereby ratifying the Secretary’s past trust acquisitions.168

Jurisdictional issues have created challenges for many Indian 

communities. Criminal jurisdiction in Indian country has been 

called a ‘‘jurisdictional maze’’; the result of a complex matrix of federal laws, policies, and court decisions. ‘‘Police, prosecutors, defense 

attorneys and judges must deal with this jurisdictional maze in all 

cases.’’ 169 All questions relating to Indian country criminal jurisdiction must begin with determining whether the alleged crime occurred in Indian country. ’’ 170 Creating even more jurisdictional 

uncertainty by calling into question the status of the land in Indian 

country, Carcieri threatens the public safety of all those who live 

in and near Indian communities and has become a significant barrier to promoting safe tribal communities. Even worse, the Carcieri 

decision undercuts prior congressional actions addressing jurisdiction. 

Statutes such as the Tribal Law and Order Act (‘‘TLOA’’) 171 help 

to ensure that every person in Indian country lives in a safe community. The various public safety problems that plague tribal communities are the result of the complex jurisdictional scheme, decades of underfunding for tribal criminal justice systems, and the 

centuries-old failure by the federal government to fulfill its public 

safety obligations on Indian lands.172 Both of these laws had bipartisan support, reflecting Congress’s intent to protect all people in 

Indian country and support tribal self-determination and self-governance.173

By permitting tribal governments to have more authority over 

the sentencing of crimes that occur on tribal lands, TLOA helps 

tribes better exercise their sovereignty. TLOA was enacted into law 

in July 2010 to improve public safety in Indian country and reduce 

violent crimes that are reaching epidemic levels on tribal land. 


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174 ‘‘According to a 2010 GAO Study, U.S. Attorneys decline to prosecute 67% of sexual abuse 

and related matters that occur in Indian Country.’’ Tribal Law and Order Act One Year Later: 

Have We Improved Public Safety and Justice Throughout Indian Country?: Hearing Before S. 

Comm. on Indian Affairs, 112th Cong. (Sept. 22, 2011) (statement of Jacqueline Johnson Pata, 

Executive Director, Nat’l Cong. of Am. Indians) (citing U.S. Government Accountability Office, 

GAO–11–167R, U.S. Department of Justice Declinations of Indian Country Criminal Matters 3 

(2010)). 175 Carcieri Hearing, supra note 32 (statement of Rep. Tom Cole). 176Tribal Law and Order Act One Year Later: Have We Improved Public Safety and Justice 

Throughout Indian Country?: Hearing Before the S. Comm. on Indian Affairs, 112th Cong. (Sept. 

22, 2011) (statement of Larry Echo Hawk, Assistant Secretary, Indian Affairs, Dep’t of the Interior). 177 Carcieri’s Ramifications to Tribes Hearing, supra note 22, at 31 (statement of Michael J. 

Anderson, AndersonTuell, LLP (‘‘When a defense attorney, particularly on appeals, is looking 

for new, creative ways to challenge a conviction, jurisdiction sometimes, in Indian cases, whether a crime committed on fee land or allotted land or within a checkerboard reservation, frequently jurisdiction is seen as a potential challenge to that conviction. Here, the fundamental 

acquisition itself could potentially be challenged, and so I think clever criminal defense attorneys across the country could look at [the Carcieri] decision and mount potential challenges.’’)). 178 Carcieri Hearing, supra note 32 (statement of Carl J. Artman, Professor of Practice & Director, Econ. Dev. in Indian Country Program, Ariz. State Univ. Sandra Day O’Connor Coll. of 

Law). 179 18 U.S.C. § 1153. The Major Crimes Act gives the United States jurisdiction to prosecute 

offenses such as: assault, murder, manslaughter, kidnapping, arson, burglary, robbery and child 

sexual abuse. Federal jurisdiction under this statute is limited to the prosecution of Indians 

only. 180 Also known as the General Crimes Act, 18 U.S.C. § 1152. This Act gives the United States 

jurisdiction to prosecute all federal offenses in Indian Country except when the suspect and the 

victim are both Indian, where the suspect has already been convicted in tribal court or in the 

case of offenses where exclusive jurisdiction over an offense has been retained by the tribe by 

way of treaty. 

TLOA holds federal agencies more accountable in serving Indian 

country.174

One of the main goals of the TLOA is to lower the high rates of 

domestic violence and sexual assault on reservations. Achieving the 

goals of TLOA has become more difficult because of the Carcieri decision. ‘‘In addition to economic development, trust land allows 

tribes territory to provide essential government services. These 

services include tribal police and courts. 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.’’ 175

The jurisdictional maze that already exists among tribes, states 

and the federal government over criminal jurisdiction on Indian 

lands is further complicated by the Carcieri decision.176 These jurisdictional issues could give rise to individual suits presenting 

challenges to their sentencing on the basis of the status of the 

lands in question.177 In testimony before the Committee, witnesses 

expressed serious concerns about new jurisdictional uncertainty 

that has resulted from Carcieri. ‘‘[Carcieri] 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.’’ 178

According to testimony before the Committee, there is now the 

potential for legal challenges of criminal prosecutions brought in 

Federal court under Federal statutes such as the Major Crimes 

Act 179 or the Indian Country Crimes Act 180 due to the uncertain 

jurisdictional status of lands taken into trust under the long-prevailing policy before the Carcieri decision. This uncertainty threatens everyone. ‘‘[T]he questioning of Indian Country status can in 

turn lead to questioning of prosecutions and even convictions that 

have already occurred in Federal court . . . [T]here is a public 


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181 IRA Hearing, supra note 9, at 8–9 (statement of Carole E. Goldberg, Jonathan D. Varat 

Distinguished Professor of Law, UCLA). 182 Carcieri Hearing, supra note 32 (statement of Carl J. Artman, Professor of Practice & Director, Econ. Dev. in Indian Country Program, Ariz. State Univ. Sandra Day O’Connor Coll. of 

Law); Strengthening Self-Sufficiency: Overcoming Barriers to Economic Development in Native 

Communities, Field Hearing Before the S. Comm. on Indian Affairs, 112th Cong. (Aug. 17, 2011) 

(statement of Brian Patterson, President, United Southern and Eastern Tribes (‘‘Congressional 

action is needed to ensure permanent resolution of this issue.’’)). 183 ‘‘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.’’ Carcieri Hearing, supra note 32 (statement of Richard Guest, Staff Attorney, Native Am. Rights Fund). In his testimony, Mr. Guest noted that the Match-e-be-nash-she-wish 

Band of Pottawatomi (also known as the Gun Lake Tribe) in Michigan created 900 new jobs 

and generated new business for nearby hotels, restaurants, and other service providers as a result of opening a gamily facility in February 2011—giving the local economy ‘‘a much needed 

boost’’ at a time when Michigan’s economic troubles have been described as ‘‘ground zero.’’ Id. 

For example, the United Tribes Technical College in Bismark, North Dakota generated $31.8 

million that directly impacted the local economy in 2010. United Tribes Technical College with 

the Assistance of TK Associates International, The Economic Impact of United Tribes Technical 

College on The Economy of the Bismark/Mandan, ND Area (Jan. 2011), http://www.uttc.edu/ 

news/story/021811<01a.pdf. 184Deficit Reduction and Job Creation: Regulatory Reform in Indian Country: Hearing Before 

the S. Comm. on Indian Affairs, 112th Cong. (Dec. 1, 2011) (testimony of Pearl E. Casias, Chairman, S. Ute Indian Tribe) (noting that the Southern Ute Indian Tribe is the County’s largest 

employer, employing over 1,500 people from the County and New Mexico). ‘‘Clearly, bold action 

is needed to unlock the economic potential of Indian tribes which will provide jobs, income and 

hope to tribes and their members, as well as to surrounding communities who will also benefit 

enormously from stronger tribal economies.’’ Id. Some tribes are among the top employers in 

the state. See State Shouldn’t Mess With State’s 6th Largest Employer, Latest MIGA News (Oct. 

13, 2011), http://latestmiganews.blogspot.com/2011/10/state-shouldnt-mess-with-states–6th.html 

(noting that in Minnesota, for example, tribes employ over 20,550 people—16,000 of those jobs 

are in rural areas—collectively making the tribes the state’s sixth largest employer). 185 Carcieri Hearing, supra note 32 (statement of William Lomax, President, Native Am. Fin. 

Officers Ass’n (noting that a further study would find that ‘‘far more’’ jobs would be created than 

these estimates and that ‘‘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’’)). 186One example is the Gun Lake Tribe, only 1 of 12 federally recognized tribes in Michigan. 

For the period from Apr. 1, 2011 to September 30, 2011, the Tribe had given the State of Michigan over $10 million. Levi Rickert, Gun Lake Tribe’s State and Local Revenue Sharing Over $10 

Million YTD, Native News Network (Nov. 29, 2011, 7:00 AM), http://www.native 

newsnetwork.com/gun-lake-tribe-state-local-revenue-sharing-over–10–million-ytd.html. It should 

be noted that the Gun Lake Tribe is the subject of the Patchak case in which the United States 

Supreme Court granted certiorari on December 12, 2011). 187See Promises Fulfilled: The Role of the SBA 8(a) Program in Enhancing Economic Development in Indian Country: Hearing Before the S. Comm. on Indian Affairs, 112th Cong. (Apr. 7, 

2011) (statement of Sen. Mike Johanns) (noting that the unemployment rate for the Winnebago 

Tribe in Nebraska fell from 70% to less than 10% in the 1990s as a result of the Tribe’s creation 

of the economic development corporation called Ho-Chunk Inc.). 

safety dimension to the Carcieri decision that warrants [] consideration.’’ 181 Because criminal jurisdiction in Indian Country is already confusing, witnesses have testified before the Committee that 

jurisdictional issues ‘‘will become debilitating if the Carcieri holding is not addressed.’’ 182

Carcieri is a barrier to economic development 

Tribal land bases are the foundation of tribal economies. The 

Committee’s record shows that tribal economic development benefits Indians and non-Indians alike.183 Tribes are often the largest 

employers and purchasers of goods and services in the counties and 

cities surrounding their reservations.184 The Committee has received testimony that the majority of employees hired by many 

tribal businesses, especially those located in rural areas, are nonIndian.185 Tribal-state revenue sharing agreements provide millions of dollars in additional revenue to state and local governments.186 As tribes succeed, local governmental costs decrease, revenue bases expand, and job opportunities increase for everyone.187

‘‘The ripple effects [of the Carcieri decision] will not only impact 

tribal economic development opportunities, but will eliminate revVerDate Mar 15 2010 21:47 May 21, 2012 Jkt 019010 PO 00000 Frm 00029 Fmt 6659 Sfmt 6602 E:\HR\OC\SR166.XXX SR166

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188 Carcieri Hearing, supra note 32 (statement of Richard Guest, Staff Attorney, Native Am. 

Rights Fund). 189 Id. (statement of William Lomax, President, Native Am. Fin. Officers Ass’n); id. (statement 

of Colette Routel, Assistant Professor, William Mitchell Coll. of Law). See also IRA Hearing, 

supra note 9, at 73 (testimony of Michael O. Finley, Chairman, Confederated Tribes of the 

Colville Reservation) (noting that if repurchased land has timber, for example, it would create 

the kind of jobs that get tribal members back to work). 190 Carcieri Hearing, supra note 32 (statement of Richard Guest, Staff Attorney, Native Am. 

Rights Fund). 191 IRA Hearing, supra note 9, at 73 (testimony of John E. Echohawk, Executive Director, Native Am. Rights Fund). See id. at 74 (testimony of Michael O. Finley, Chairman, Confederated 

Tribes of the Colville Reservation) (‘‘Our land base is what feeds our families. Without a land, 

we are not a people.’’). 192 Carcieri Hearing, supra note 32 (statement of William Lomax, President, Native Am. Fin. 

Officers Ass’n) (emphasis in original). 193 Examining Executive Authority Hearing, supra note 22, at 16 (statement of Ron Allen, Secretary, Nat’l Cong. of Am. Indians). 194 Unemployment in some tribal communities has reached as high as 75 percent, when the 

average national unemployment rate is at 8.3 percent. See Deficit Reduction and Job Creation: 

Regulatory Reform in Indian Country, Hearing Before the S. Comm. on Indian Affairs, 112th 

Cong. (Dec. 1, 2011) (statement of Sen. Daniel K. Akaka (D–Hawaii), Chairman, S. Comm. on 

Indian Affairs). ‘‘For tribes, double digit unemployment have [sic] been the norm for generations, 

not the exception.’’ State and Federal Tax Policy: Building New Markets in Indian Country, 

Hearing Before the S. Comm. on Indian Affairs, 112th Cong. (Dec. 8, 2011) (statement of Sen. 

Al Franken, Member, S. Comm. on Indian Affairs). 

enue for state and local governments, and will destroy much-needed jobs for both Indians and non-Indians.’’ 188

Witnesses have testified before the Committee that if S. 676 were 

adopted, at least 80,000 new construction jobs and 60,000 new permanent jobs would be created for both Indians and non-Indians 

alike.189 Without the adoption of S. 676, frivolous litigation is likely 

to continue.190 Litigation halts this success and affects tribes’ ability to govern, create jobs, and provide for both Indians and non-Indians as resources are diverted.191 ‘‘The great uncertainty caused 

by [the Carcieri] decision is preventing tribes from every part of the 

country from growing and diversifying their economies, engaging in 

economic development, and creating new jobs. . . . Carcieri is killing jobs in Indian Country, and it is killing jobs in the local nonIndian communities which neighbor Indian Country.’’ 192

The United States is suffering one of the worst economic declines 

and stagnant job markets in generations. The effects of this disaster hit especially hard in rural communities, where many reservations are located. Many reservations are located in remote, 

rural areas that lack adequate facilities, infrastructure, and housing. The rural locations of many reservations mean that jobs are 

scarce and many Indians living on reservations suffer from great 

poverty. Because of these limitations, existing reservation lands do 

not readily support tribal economic development.193 As a result, 

tribes aspire to add land that is on or adjacent to their existing reservations. 

Carcieri has exacerbated the double-digit unemployment rates 

many tribal communities were already experiencing before the economic downturn.194 The Carcieri decision has resulted in even 

greater delays to trust land acquisitions, further hindering opportunities for economic development and job creation. At a time when 

acquiring trust land could make a difference by providing jobs that 

would allow Indian and non-Indian residents of these rural communities the opportunity to support their families and the chance to 

contribute to the local and national economies, tribes are instead 


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195 Carcieri’s Ramifications to Tribes Hearing, supra note 22, at 16 (statement of Michael J. 

Anderson, AndersonTuell, LLP). See also Deficit Reduction and Job Creation: Regulatory Reform 

in Indian Country, Hearing Before the S. Comm. on Indian Affairs, 112th Cong. 3 (Dec. 1, 2011) 

(statement of Sen. Al Franken, Member, S. Comm. on Indian Affairs (‘‘If there is economic development, there are jobs. Where there are jobs, there is hope, there is dignity and a sense of purpose. There is housing for families and kids have a better chance for a good education. But if 

economic development is hindered, all those are at risk.’’)). 196 ‘‘The purposes of the IRA were frustrated first by World War II and then by the termination era. Work did not begin again until the 1970s with the self-determination policy, and 

since then Indian tribes are building economies from the ground up and they must earn every 

penny to buy back their own land.’’ IRA Hearing, supra note 9, at 67 (testimony of Jefferson 

Keel, President, Nat’l Cong. of Am. Indians). Economic development is not only about gaming. 

See Jeff R. Keohane, Protecting the Sacred, 33 Human Rights 9–12 (Spring 2006) (‘‘Tribal gaming falls far short of explaining tribal economic development in the 1990s. Between 1990 and 

2000, the median household income on gaming reservations rose 35 percent, from $17,500 to 

$23,700, but on nongaming reservations the median household income rose at a slightly faster 

36 percent, from $15,300 to $20,700. At the same time, the median household income for all 

Americans rose 4 percent, from $40,400 to $42,000. Census Bureau statistics suggest that most 

of this economic growth in tribal areas comes from small business growth. From 1982 to 1997, 

the number of privately and tribally owned Native American businesses grew more than tenfold. 

In 1997, 197,300 Native American businesses had 298,700 employees and gross revenues of 

$40.3 billion—more than four times the tribal casino receipts of $8.8 billion that year (in 2004 

dollars). The Census Bureau excluded tribally owned businesses from its 2002 survey, yet a preliminary figure for privately owned Native American business receipts was $27.8 billion. If they 

continued their 1992 to1997 trajectory through 2002, privately and tribally owned Native American business revenues would have reached $100 billion (in 2004 dollars). Even assuming the 

more modest growth rate of non-Native American businesses, gross revenues would have 

reached $50 billion in 2002, dwarfing the $15.5 billion brought in by tribal government casinos.’’). 197 ‘‘[T]rust lands provide the greatest protection for many communities who rely on subsistence hunting and agriculture.’’ Carcieri Hearing, supra note 32 (statement of Larry Echo Hawk, 

Assistant Secretary, Indian Affairs, U.S. Dep’t of the Interior). 198 Although tribal lands make up only 5 percent of the land within the United States, they 

house an estimated 10 percent of available energy resources. Energy Development in Indian 

Country, Hearing Before the S. Comm. on Indian Affairs, 112th Cong. (Feb. 16, 2012). ‘‘Last 

year, the U.S. 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. . . . The ability 

to take land into trust is critical to creating an environment that is conducive to economic development and attracting investment in Indian communities. This includes energy planning and 

improving energy development capacity. 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.’’ Id. (statement of Jodi Gillette, Deputy Assistant Secretary Indian Affairs, 

U.S. Dep’t of the Interior). 

faced with the obstacles caused by Carcieri. ‘‘[T]he economic consequences of Carcieri could prove irreversible.’’ 195

Land is critical for the exercise of tribal self-governance and selfdetermination and tribes have been working for decades to overcome the devastating effects of federal allotment and assimilation 

policies and build brand new economies from the ground up.196

Under the IRA, tribes have been able to rebuild their lost land 

bases that are the foundation of tribal governance. Many Indian 

communities are still reliant upon the land for subsistence through 

hunting, fishing, gathering, or agriculture.197 Acquiring trust land 

is necessary for the success of tribal governmental operations, cultural activities, agricultural or forestry activities, energy development,198 increased housing, social and community services, health 

care and educational facilities. Tribal trust acquisitions have 

helped protect traditional practices and have helped promote tribal 

economic development. In turn, tribal trust acquisitions have created much-needed financial resources and jobs for tribal communities and the surrounding non-Indian communities. The purpose of 

the Secretary’s land-into-trust authority is to restore Indian land 

bases, to rehabilitate Indian economic life and to foster recovery 

from centuries of oppression. Economic development has long been 

an expressed purpose of Federal Indian policy and it is the obligation of the federal government to ensure the restoration of tribal 


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199 Examining Executive Authority Hearing, supra note 22, at 16–19 (statement of Ron Allen, 

Secretary, Nat’l Congress of Am. Indians). 200During several roundtables hosted in 2011 by Loretta Tuell, Majority Staff Director & 

Chief Counsel, U.S. S. Comm. on Indian Affairs, tribal leaders articulated new challenges and 

obstacles they face in the wake of the Carcieri decision when they attempt to secure capital for 

their tribes’ economic futures. See Hearings and Meetings for Session 1 of the 112th Congress, 

U.S. S. Comm. on Indian Affairs (Mar. 1, 2012), http://www.indian.senate.gov/hearings/ 

index.cfm?t=session&c=112&s=1&p=all. 201 Carcieri Hearing, supra note 32 (statement of William Lomax, President, Native Am. Fin. 

Officers Ass’n). 202 Id. 203Opportunities and Challenges for Economic Development in Indian Country, Hearing Before 

the S. Comm. on Banking, Housing, & Urban Affairs, 112th Cong. (Apr. 7, 2011) (testimony of 

Dante Desiderio, Executive Director, Native Am. Fin. Officers Ass’n ). 204 ‘‘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 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.’’ Carcieri Hearing, 

supra note 32 (statement of William Lomax, President, Native Am. Fin. Officers Ass’n). 205 ‘‘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.’’ Id. 206 Id. (statement of Colette Routel, Assistant Professor, William Mitchell Coll. of Law). 207 Id. (statement of William Lomax, President, Native Am. Fin. Officers Ass’n) (emphasis in 

original). ‘‘Fewer and fewer reputable lending institutions and fewer and few [sic] 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.’’ Id. 

lands to build economic development and promote tribal government and culture.199

CARCIERI FREEZES ACCESS TO CAPITAL

Inadequate access to capital is one of the primary impediments 

to economic development in Indian Country.200 Even prior to the 

Carcieri decision, ‘‘[t]he hurdles to economic development and job 

creation in Indian Country already are significantly higher than 

they are for main-stream America.’’ 201 Due to unfamiliarity with 

tribal jurisdictional issues, ‘‘investors are quick to narrow borrowing options in response to general uncertainties and perceived 

credit risk when dealing with tribal governments.’’ 202 After 

Carcieri, tribes hoping to access capital for economic development 

have an additional layer of uncertainty to overcome and more costs 

to pay because financial firms think they need to apply some sort 

of ‘‘Carcieri test’’ before doing business in Indian Country.203

Post-hoc challenges to trust land acquisitions by the Federal government create even more uncertainty and greater instability in 

tribal governments’ ability to use this land.204 The Committee has 

received testimony describing how the uncertainty of the status of 

trust land drives up the risk to investors and contractors and 

drives away potential investors. Investors are adverse to this kind 

of risk 205 and will either refuse to finance or charge prohibitively 

high interest rates.206 ‘‘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.’’ 207 Without access to capital, tribes 

acquiring trust lands after 1934 and the surrounding communities—especially those tribes and communities in rural areas—will 

continue to face the economic hardship and unemployment that the 

IRA intended to change. 


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208Litigation in the wake of Carcieri has already begun. See Id. (written testimony of Richard 

Guest, Staff Attorney, Native Am. Rights Fund) (Mr. Guest submitted a detailed summary of 

the 14 cases pending in the courts and at the administrative level in the wake of the Carcieri 

decision, available at http://www.indian.senate.gov/hearings/upload/Richard-Guest-testimonyand-Attachment.pdf). See also id. (statement of Larry Echo Hawk, Assistant Secretary, Indian 

Affairs, Dep’t of the Interior (‘‘In the Department’s [DOI] 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 pass, and 

the Department [of Interior] 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.’’)) and (statement of Colette Routel, Assistant Professor, William Mitchell Coll. 

Of Law) (highlighting the problems the Fond du Lac Band and the Rosebud Sioux Tribe are 

now facing in their recent trust applications). 209 Id. (statement of Richard Guest, Staff Attorney, Native Am. Rights Fund). See also Taylor, 

supra note 100, at 620 (noting the litigation is sure to involve the regulation and taxation of 

tribes and their land). 210See Carcieri Hearing, supra note 32 (submitted testimony of Richard Guest, supra note 

208). See also IRA Hearing, supra note 9, at 68 (testimony of Jefferson Keel, President, Nat’l 

Cong. of Am. Indians) (noting there are ‘‘at least 14 pending cases’’ and ‘‘many more tribes 

whose land-to-trust applications have simply been frozen while the Department of Interior 

works through painstaking legal and historical analysis’’). 211 Each tribe qualifying for federal acknowledgement since 1978 under the DOI regulations 

has established that it ‘‘has been identified as an American Indian entity on a substantially continuous basis since 1900,’’ and has therefore established that it has been under Federal jurisdiction as of 1934. 25 C.F.R. § 83.7(a). See also Examining Executive Authority Hearing, supra note 

22, at 5–6, 9 (testimony of Edward P. Lazarus, Partner, Akin Gump Strauss Hauer & Feld, 

LLP), available at http://www.indian.senate.gov/public/—files/May212009.pdf (cautioning that 

anything short of legislation would likely result in protracted and costly litigation). Mr. Lazarus 

suggested two possible legislative approaches: (1) Amending the IRA to remove ‘‘now’’ from ‘‘now 

under Federal jurisdiction’’ and (2) ratifying any pre-Carcieri land-into-trust administrative determinations under the IRA for tribes not formally recognized in 1934. At the same hearing, 

Ron Allen also provided draft language for an amendment to the IRA to remove the word ‘‘now’’ 

from ‘‘now under federal jurisdiction’’ and to protect pre-Carcieri decisions by the Secretary to 

take land into trust from judicial invalidation based on a tribe’s not having been recognized in 

1934. See id. (testimony of Ron Allen, Secretary, Nat’l Cong. of Am. Indians), available at http:// 

www.indian.senate.gov/public/—files/May212009.pdf. Like Mr. Lazarus, Mr. Allen also indicated 

that although an administrative solution to the potential effects of Carcieri is possible, anything 

other than legislation is likely to result in wasteful and protracted litigation. Id. 212 IRA Hearing, supra note 9, at 73 (testimony of Jefferson Keel, President, Nat’l Cong. of 

Am. Indians) (noting that, instead of spending time and money fighting frivolous lawsuits, 

‘‘tribes would be better served if those funds and those resources were directed back into housing, health care, other social service needs’’). 213 Carcieri Hearing, supra note 32 (statement of Colette Routel, Assistant Professor, William 

Mitchell Coll. of Law (‘‘[T]he 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 

Continued 

Carcieri increases Federal litigation over settled Federal policy and 

practice 

There is significant potential for increased litigation over the feeto-trust process and the use or status of existing trust land.208

‘‘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.’ ’’ 209

Questions regarding the Secretary’s authority or a tribe’s status 

based on the Carcieri decision have been raised in at least fourteen 

legal challenges involving tribes since February 2009.210 This current litigation involves tribes who were unmistakably ‘‘under federal jurisdiction’’ in 1934 when the IRA was enacted.211 Even if 

tribes prevail in these cases, frivolous lawsuits siphon time and resources away from important tribal business, health care and other 

programs, and economic development.212 Such cases require tribes 

to divert funds away from providing jobs and essential governmental services to their members. These cases present challenges 

to long settled legal principals and legislative history and could further erode tribal sovereignty if they are not decided in favor of the 

tribes.213 ‘‘[I]f Congress fails to act, the standard set forth in 


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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.’’)). 214 Id. (statement of Rep. Tom Cole). 215 Id. 216 ‘‘The Carcieri decision has disrupted the fee-to-trust process by requiring the Secretary to 

engage in a burdensome legal and factual analysis [sic] 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.’’ Id. (statement of Larry Echo Hawk, Assistant 

Secretary, Indian Affairs, U.S. Dep’t of the Interior). 217Prior to the Carcieri decision, applications for the acquisition of trust land would be reviewed in six to nine months. Id. (testimony of Donald Laverdure, Principal Deputy Assistant 

Secretary, Indian Affairs, Dep’t of the Interior) (‘‘[T]he 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 questioned [sic] answered to decrease uncertainty, 

decrease risk, we could make those decisions much sooner than later.’’). These delays mean that 

the business and job opportunities are postponed even longer, some indefinitely. See id. (‘‘[B]ecause of the increased uncertainty and the increased risk, there are numerous projects 

that are not going to be going forward.’’). Additional administrative burdens can delay resources 

for much-needed federal programs and create potentially dangerous public safety concerns resulting from these delays. See discussion infra Carcieri Threatens Public Safety and Tribal Law 

Enforcement. 

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.’’ 214

As a result of Carcieri, Indian tribes, DOI, and federal courts reviewing future land into trust acquisitions are left without formal 

guidance or fixed regulations regarding what would be considered 

‘‘under federal jurisdiction.’’ Because the United States did not 

have an accurate list of federally recognized Indian tribes until 

after 1994, the initial determination of whether a tribe was formally recognized in 1934, and therefore considered ‘‘under federal 

jurisdiction,’’ is a difficult question to answer. The Committee has 

received testimony of how this kind of uncertainty will flood federal 

courtrooms with lawsuits for decades and cost both tribes and the 

United States significant resources. ‘‘[T]he 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.’’ 215

Such litigation is burdensome, expensive, and causes delays in 

the government’s exercise of its general trust responsibility to Indian tribes and its specific obligations under the IRA.216 As a result of Carcieri, the BIA must now determine which tribes were 

‘‘under federal jurisdiction’’ in 1934, before it can extend the benefit 

of taking fee lands into trust for an Indian tribe.217 ‘‘[T]he manner 

in which an Indian tribe became recognized is once again crucial 

* * * 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 insulaVerDate Mar 15 2010 21:47 May 21, 2012 Jkt 019010 PO 00000 Frm 00034 Fmt 6659 Sfmt 6602 E:\HR\OC\SR166.XXX SR166

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218 Carcieri Hearing, supra note 32 (statement of Colette Routel, Assistant Professor, William 

Mitchell Coll. of Law). ). 219 Id. (further noting that over the last decade, Congress 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))). 220 ‘‘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 seeking 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.’’ Id. (statement of Larry Echo Hawk, 

Assistant Secretary, Indian Affairs, U.S. Dep’t of the Interior). 221 632 F.3d 702 (2011), petition for cert. filed, 80 U.S.L.W. 3125 (U.S. Aug. 25, 2011) (No. 11– 

247). An ‘‘unprecedented result,’’ Patchak ‘‘is a prime example of how Carcieri may have a longlasting adverse impact on all 565 [now 566] federally recognized tribes and demonstrates the 

manner in which the lower Federal courts are following the lead of the Supreme Court and effectively terminating tribal sovereignty, contrary to the stated policies of the Congress. It illustrates the very real potential for a constant spillover of the Carcieri decision, polluting other 

areas of law which traditionally protected the rights and interests of Indian tribes.’’ IRA Hearing, supra note 9, at 49 (testimony of John E. Echohawk, Executive Director, Native Am. Rights 

Fund). 222 28 U.S.C. § 2409a. 223 ‘‘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 * * * 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.’’ Carcieri Hearing, supra note 32 (statement of Carl J. Artman, Professor of Practice & Director, Econ. Dev. in Indian Country Program, Ariz. State Univ. Sandra Day O’Connor Coll. of 

Law). 224Fed. Cir. No. 2010–5028. 225 Carcieri Hearing, supra note 32 (statement of Colette Routel, Assistant Professor, William 

Mitchell Coll. of Law (noting that to make the distinction between ‘‘created’’ and ‘‘historic’’ tribes 

is ‘‘odd’’ because Congress does not have the power to create an Indian tribe and may not ‘‘bring 

a community or body of people within the range of [its] power by arbitrarily calling them an 

Indian tribe’’ (citing United States v. Sandoval, 231 U.S. 28 (1913))). 226 Id. (statement of Colette Routel, Assistant Professor, William Mitchell Coll. of Law). 

tion.’’ 218 The Carcieri decision makes it significantly more difficult 

for tribes recognized through the OFA process to acquire trust 

lands.219 These delays in turn undermine the broad remedial policies of the IRA, the 1994 amendments reaffirming those policies, 

and the current federal policy of tribal self-determination.220

One such example, Salazar v. Patchak,221 involves a challenge by 

an individual landowner to the Quiet Title Act. The Quiet Title Act 

bars all suits against lands that the United States holds in trust 

for tribes and tribal members.222 As such, the Quiet Title Act 

would protect any lands that have already been taken into trust 

from a Carcieri challenge. If this case were to be decided in favor 

of the landowner, it would not only place all prior trust lands in 

jeopardy, but it would also allow any citizen to file suit against any 

tribal trust acquisition.223

A separate case, Rosales v. United States,224 once again raises 

the distinction between ‘‘created’’ tribes and ‘‘historical’’ tribes. In 

this challenge, the plaintiffs claim that lands are held in trust for 

individual families and not a tribe and argue that the tribe in this 

case was a ‘‘created’’ tribe.225 The issue of ‘‘created’’ versus ‘‘historical’’ was already decided by Congress when it enacted the 1994 

amendments to the IRA in order to put to rest any distinction between the rights granted to tribes. 

These two cases illustrate the uncertainty created by the Carcieri 

decision. Cases such as these have made it increasingly more difficult for tribes to bring economic development to their reservations. ‘‘Uncertainty prompts litigation and it scares investors.’’ 226 It 

is difficult for tribes to attract investors when litigation occurs and 


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36 

227 Id. (statement of Rep. Tom Cole). 228 Id. (noting also that a Carcieri fix would not undercut 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.’’). See id. (testimony of Larry Echo Hawk, Assistant Secretary, Indian Affairs, Dep’t of the Interior) (‘‘And how many [recently approved applications were for] gaming out of 541? Three.’’). See also IRA Hearing, supra note 9, at 74– 

75 (testimony of Jefferson Keel, President, Nat’l Cong. of Am. Indians) (‘‘Gaming is a separate 

issue. In fact, land acquisition is covered under the Indian Gaming Regulatory Act and it is a 

completely separate issue. There are separate guidelines and separate tasks that are involved 

in the acquisition of land for gaming purposes * * * [Gaming] is a separate bill and it should 

be considered separately.’’). 229Frivolous challenges may be brought solely for the purposes of delay, adding to unpredictable outcomes and tremendous costs. IRA Hearing, supra note 9, at 73 (testimony of Jefferson 

Keel, President, Nat’l Cong. of Am. Indians). 230 Carcieri Hearing, supra note 32 (statement of Rep. Tom Cole). 231 Id. (statement of Richard Guest, Staff Attorney, Native Am. Rights Fund). 232 ‘‘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.’’ Id. (statement of Larry Echo Hawk, Assistant Secretary, Indian Affairs, Dep’t of the Interior). 233See discussion infra EXECUTIVE AND LEGISLATIVE POLICIES HAVE LONG REFLECTED CONGRESSIONAL INTENT TO FOSTER TRIBAL SOVEREIGNTY AS EXPRESSED IN THE INDIAN REORGANIZATION ACT. See also Cole, supra note 175. 

calls into question the status of lands where development could 

otherwise occur. 

There are nearly 2,000 requests for the Secretary to take land 

into trust for tribes,227 and ‘‘[o]ver 95% of those requests are for 

non-gaming purposes.’’ 228 Since the Carcieri decision, tribal housing projects have been stalled, basic infrastructure projects have 

been halted, and many business investors have found investment 

in Indian Country too time consuming,229 too risky, and far too expensive. ‘‘Resolving any ambiguity in the Indian Reorganization 

Act is vital to protecting tribal interests and avoiding costly and 

protracted litigation.’’ 230 S. 676 seeks to prevent litigation over 

trust land acquisitions that might otherwise arise from the Carcieri 

decision. ‘‘[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 tribes regardless of the date of their 

Federal recognition.’’ 231

THE REAL COSTS OF CARCIERI

Although the Carcieri decision involved only one tribe, the devastating effects resulting from the decision impact all tribes. Failing to enact S. 676 will deprive tribal governments of important 

rights and benefits that the IRA intended to provide; including the 

ability to restore and protect their homelands through the acquisition of tribal trust lands 232 and the potential to develop and sustain tribal economic development 233 through the creation of businesses that provide jobs and other economic opportunities for tribal 

members and residents of the surrounding communities. 

Passage of S. 676 will cost taxpayers nothing. The costs to taxpayers if S. 676 is not passed will, however, continue to grow. Congressional inaction has also generated significant costs of time and 

money for the federal government and tribes—merely to defend the 

challenges brought as a result of Carcieri. Expending time and resources examining issues that have already been settled is a 

misallocation of federal and tribal resources that could be used to 

promote and develop tribal self-determination and self-government. 


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234The 1994 amendments explicitly demonstrate Congress’ intent to include, rather than exclude, tribes by clearly stating that discrimination against tribes, based on the date of their recognition, ‘‘is inconsistent with the principle policies underlying the IRA, which were to stabilize 

Indian trib[al] governments and to encourage self-government.’’ 140 Cong. Rec. S6146 (daily ed. 

May 19, 1994) (statement of Sen. John McCain). 235See discussion infra EXECUTIVE AND LEGISLATIVE POLICIES HAVE LONG REFLECTED CONGRESSIONAL INTENT TO FOSTER TRIBAL SOVEREIGNTY AS EXPRESSED IN THE INDIAN REORGANIZATION ACT. 236 25 U.S.C. § § 1, 2 & 9. 237 ‘‘Congress may fulfill its treaty obligations and its responsibilities to the Indian tribes by 

enacting legislation dedicated to their circumstances and needs.’’ Rice v. Cayetano, 528 U.S. 495, 

519 (2000) (citing Washington v. Washington State Commercial Passenger Fishing Vessel Ass’n., 

443 U.S. 658, 673, n. 20 (1979); United States v. Antelope, 430 U.S. 641, 645–647 (1977); Delaware Tribal Business Comm. v. Weeks, 430 U.S. 73, 84–85 (1977); Moe v. Confederated Salish 

and Kootenai Tribes of Flathead Reservation, 425 U.S. 463, 479–480 (1976); Fisher v. Dist. 

Court of Sixteenth Judicial Dist. of Montana, 424 U.S. 382, 390–391 (1976)). See also Examining 

Executive Authority Hearing, supra note 22, at 16 (statement of Ron Allen, Secretary, Nat’l 

Cong. of Am. Indians) (‘‘The Carcieri decision is squarely at odds with the federal policy of tribal 

self-determination and tribal economic self-sufficiency. In particular, the decision runs counter 

to Congress’ intent in the 1994 amendments to the IRA. These amendments directed the Department of the Interior and all other federal agencies, to provide equal treatment to all Indian 

tribes regardless of how or when they received federal recognition, and ratified the Department 

[of the] Interior procedures under 25 C.F.R. Pt. 83 for determining and publishing the list of 

federally recognized tribes.’’). 238 IRA Hearing, supra note 9, at 48 (testimony of John E. Echohawk, Executive Director Native Am. Rights Fund) (noting that for over 70 years, the Department of Interior applied an interpretation of the IRA that the phrase ‘‘now under Federal jurisdiction’’ meant at the time of 

application). 

NEED FOR LEGISLATION

When Congress enacted the IRA in 1934, it ended the federal 

policies that had devastated tribal communities and governments 

and moved toward an era of empowering Indian tribes by restoring 

their tribal homelands and promoting self-determination and selfgovernance. Congress has continuously reaffirmed that all federally 

recognized tribes are to be treated equally, and has confirmed its 

support of equality for all tribes when it amended the IRA in 

1994.234 The record proffered by the Solicitor General in Carcieri 

omitted much of the legislative history. Decades of congressional 

action and administrative policies have been undermined by the 

Carcieri decision. 

The Supreme Court’s decision in Carcieri ignores dozens of federal statutes passed by Congress 235 and over 75 years of administrative practice that Congress has delegated to the executive agencies.236 Carcieri has become a barrier to restoring tribal lands and 

interferes with the federal government’s obligation to fulfill its 

trust responsibility.237

The Carcieri decision only allows tribes that were ‘‘under federal 

jurisdiction’’ in 1934 to acquire trust land, thereby inviting disparate treatment among federally recognized tribes contrary to the 

very act of Congress the Court was called upon to interpret in 

Carcieri. The Court’s selective and insufficient analysis of the IRA 

runs afoul of Congressional intent; it also overrules dozens of legislative actions in which Congress had exercised its plenary power to 

enact and overturns more than 75 years of well-settled administrative practice regarding tribal trust land acquisitions.238 This legislative history is clarified in the 1994 memorandum that was not 

lodged with the Supreme Court. ‘‘Given the fundamental purpose 

of the IRA, which was to organize tribal governments and restore 

land bases for tribes that had been torn apart by prior Federal policies [the Allotment Act], the Court’s ruling is an affront to the most 


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239 Id. 240 Carcieri Hearing, supra note 32 (statement of Larry Echo Hawk, Assistant Secretary, Indian Affairs, Dep’t of the Interior (‘‘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.’’)). 241The White House, Working with Tribal Nations to Build a Brighter Future: Synopsis of 

the 2010 White House Tribal Nations Conference 5, 14 (Dec. 2010), available at http:// 

www.whitehouse.gov/sites/default/files/TriballNationslConferencelFinall0.pdf. 242Two companion bills have been introduced in the House of Representatives: H.R. 1234 (introduced by Rep. Dale E. Kildee (D–Michigan–5) on Mar. 29, 2011) and H.R. 1291 (introduced 

by Rep. Tom Cole (R–Oklahoma–4) on Mar. 31, 2011). See Rep. Tom Cole (R–Oklahoma–4), OpEd., Resolving Carcieri Crisis Would Create Jobs, Cost Taxpayers Nothing, THE HILL, Nov. 15, 

2011, available at http://thehill.com/opinion/op-ed/193837-resolving-Carcieri-crisis-would-createjobs-cost-taxpayers-nothing. 243See The National Congress of American Indians Resolutions NGF–09–022 (2009), NGF– 

09–028 (2009), RAP–10–024 (2010), and RAP–10–058c (2010), available at http://www.ncai.org/ 

Resolutions.5.0.html. 

basic policies underlying the IRA.’’ 239 The uncertainty regarding 

the scope of the Secretary’s authority to acquire land in trust cannot be reconciled with the longstanding practice of the Department, 

a practice that was authorized by Congress decades ago.240

President Barack Obama fully supports the ‘‘Carcieri fix’’ legislation that would ‘‘make clear—in the wake of [Carcieri v. Salazar]— 

that the Secretary of the Interior can take land into trust for all 

federally recognized tribes.’’ 241 This is important for the safety and 

security of all those who live in or near Indian country. Unlike 

other areas of governmental spending, the federal government has 

a unique legal, treaty, and trust obligation to provide for the public 

safety of Indian country. Failing to enact the proposed amendment 

deprives tribal governments of important benefits of the IRA. 

As a result, Senator Akaka (D–Hawaii) introduced, and the Committee approved, S. 676 to confirm the Secretary’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. S. 

676 is a bicameral and bipartisan bill 242 and is supported by Indian country.243

LEGISLATIVE HISTORY

On March 30, 2011, Senator Akaka (D–Hawaii) introduced S. 

676, along with Senators Conrad (D–North Dakota), Franken (D– 

Minnesota), Inouye (D–Hawaii), Johnson (D–South Dakota), Kerry 

(D–Massachusetts.), Tester (D–Montana) and Udall (D–New Mexico). Senators Baucus and Stabenow were later added as co-sponsors. On April 7, 2011, the Committee on Indian Affairs favorably 

reported S. 676 out with an amendment. 

Two companion bills were introduced in the House of Representatives. On March 29, 2011, Congressman Kildee (D–Michigan–05) 

introduced H.R. 1234 and on March 31, 2011, Congressman Cole 

(R–Oklahoma–04) introduced H.R. 1291. The House Committee on 

Natural Resources held a legislative hearing on these two bills on 

July 12, 2011. 

Similar Carcieri fix measures were introduced in the 111th Congress. The House passed H.R. 3082, which included the Carcieri fix 

language, and the Committee reported S. 1703. Neither bill was enacted prior to the end of the 111th Congress. 


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SUMMARY OF THE AMENDMENT

Senator Akaka (D–Hawaii) offered S. 676 to amend the Act commonly known as the Indian Reorganization Act to apply the Act to 

all federally recognized Indian tribes, regardless of when any tribe 

became recognized. S. 676 modifies the original Act by adding language 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. 

The Committee accepted an amendment to S. 676 offered by Senator Barrasso (R–Wyoming) that would require a study by the Department of the Interior that would identify the impact of the 

Carcieri decision on Indian tribes and tribal lands and publish a 

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

SECTION-BY-SECTION ANALYSIS

Sec. 1. Modification of definition 

Subsection (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 applies this amended definition effective as of 

June 18, 1934. 

Subsection (b) ratifies and confirms any action taken by the Secretary pursuant to the IRA for any Indian tribe that was federally 

recognized on the date of the Secretary’s action. 

Subsection (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 (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. 676 and the Secretary will publish the list in the Federal Register and on the Department of the Interior’s public Web 

site. 

COMMITTEE RECOMMENDATION

On April 7, 2011, the Senate Committee on Indian Affairs convened a business meeting to consider S. 676 and other measures. 

The amendment offered by Senator Barrasso, and accepted by the 

Committee, will require the Department of the Interior to submit 

a study identifying the impact of the Carcieri decision on Indian 

tribes and tribal lands to Congress within a year. 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 May 26, 2011, was prepared for S. 676: 


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MAY 26, 2011. 

Hon. DANIEL K. AKAKA, 

Chairman, Committee on Indian Affairs, 

U. S. Senate, Washington, DC. 

DEAR MR. CHAIRMAN: The Congressional Budget Office has prepared the enclosed cost estimate for S. 676, 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. 

If you wish further details on this estimate, we will be pleased 

to provide them. The CBO staff contact is Martin von Gnechten. 

Sincerely, 

DOUGLAS W. ELMENDORF. 

Enclosure. 

S. 676—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. 676 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. 676 would not affect direct spending or revenues; therefore, pay-as-you-go procedures do not apply. 

Under current law, as established by the Supreme Court’s 2009 

decision in Carcieri v. Salazar, 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 any federally 

recognized Indian tribe, regardless of when a tribe 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. 676 could reduce the 

workload of DOI staff. CBO expects that any savings resulting 

from that reduced workload would be small and probably 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. 676 would impose both intergovernmental and private-sector 

mandates as defined in the Unfunded Mandates Reform Act 

(UMRA). 

S. 676 would limit the ability of public and private entities or individuals to file some types of claims in court related to lands 

taken into trust for Indian tribes. That limitation would be both an 

intergovernmental and private-sector mandate. The cost of the 

mandate would be the forgone value of awards and settlements of 

such claims if they would have been successful under current law. 

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. 

S. 676 also would impose an intergovernmental mandate by expanding the authority of DOI to take land into trust for tribes that 

were not under federal jurisdiction in 1934. Land taken into trust 


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would be exempt from state and local taxes. Given the types and 

amounts of land typically taken into trust, CBO estimates that the 

forgone tax revenue to state and local governments from that expansion would be small. 

CBO estimates that the cost of all mandates in the bill to intergovernmental and private-sector entities would fall below the annual thresholds established in UMRA ($71 million and $142 million 

in 2011, respectively, adjusted annually for inflation). 

The CBO staff contacts for this estimate are Martin von 

Gnechten (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. 676 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. 676: 


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ADDITIONAL VIEWS OF VICE CHAIRMAN JOHN BARRASSO 

I concur with most of the Chairman’s views regarding the effects 

of the decision of the Supreme Court in the case of Carcieri v. Salazar and the purposes of the Indian Reorganization Act of 1934— 

although, at the same time, I acknowledge that there are other, differing views, held in good faith, about the Supreme Court’s decision 

in that case. 

For my part, I do not claim to know enough about the Government’s internal deliberations and legal strategies in the Carcieri 

case to say that there were deliberate or even careless omissions 

from the record presented to the Supreme Court. But whether that 

happened or not is ‘‘water under the bridge’’ and therefore much 

less important than the consequences of the decision itself. As the 

Chairman’s report points out, the Committee has received significant information from a number of sources asserting that the 

Carcieri decision is having serious impacts on economic development and capital investment in many parts of Indian country and 

creating further confusion over law enforcement authority or criminal jurisdiction on some Indian lands taken into trust prior to the 

decision in the Carcieri case. Those consequences are very unfortunate. Indian people neither need nor deserve these problems, and 

they played no part in bringing them about. 

Like many, if not most, of the challenges facing Indian country, 

the issues created by the Carcieri decision do not follow partisan 

lines, and neither do the reactions to that decision. While this bill 

was introduced by Chairman Akaka in the Senate, there are two 

House versions of this measure, one introduced by Congressman 

Cole, a Republican, and the other by Congressman Kildee, a Democrat. I suspect there are mixed views on all of these bills held by 

Members from both political parties on either side of the Capitol. 

The amended bill adopted by the Committee reflects the Committee’s best efforts to address the fallout from the Supreme Court’s 

decision. It may not be a perfect solution, but in this instance there 

is likely no such thing. 

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. 

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

25 U.S.C. § 479. Definitions. 

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

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

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

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

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

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


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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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