House panel holds first hearing on land-into-trust ruling

Law | Politics

Thursday, April 2, 2009

The U.S. Supreme Court decision in Carcieri v. Salazar could impact criminal jurisdiction, tribal governance and other matters beyond land-into-trust, Indian law experts said on Wednesday.

The decision restricted the land-into-trust process to tribes that were "under federal jurisdiction" when the Indian Reorganization Act was passed in 1934. Congress should amend the law to ensure all tribes, regardless of the date of recognition, can participate, two witnesses told the House Natural Resources Committee.

But a "fix" will clear up other doubts that have been raised since the February 24 ruling, the two experts said. "If allowed to stand, this decision will have profound effects in Indian Country," said Colette Routel, a professor at the University of Michigan Law School.

Post-1934 tribes that adopted constitutions or created businesses under that IRA are no longer protected by the law, Routel said. Their members won't receive the same services and benefits from the Bureau of Indian Affairs, she added.

"Tribal members will not be able to receive preference in employment with the BIA," Routel told the committee. "These are rights found directly in that statute."

Mike Anderson, a former BIA official, said the decision will halt the "renaissance" that the IRA spurred on reservations. Tribes that followed the land-into-trust process have been able to build schools, hospitals and other infrastructure, he noted.

"Carcieri threatens to undermine these successes with the creation of a new class of tribes that will not be eligible for land-into-trust," Anderson testified.

The decision opens the door for people who are charged with crimes in Indian Country to fight their prosecution in federal court, Anderson said. The definitions of "Indian" and "tribe" in the IRA are tied to 1934 as a result of the ruling.

"I think that is a distinct possibility," Anderson told the committee. "Clever criminal defense attorneys across the country could look at this decision and mount potential challenges."

Donald Craig Mitchell, an attorney from Alaska, was not supportive of a Congressional fix, citing concerns about the executive branch's handling of Indian affairs for the last 75 years. But even he agreed with Anderson that the decision poses litigation problems.

"If I was an attorney that had a attorney-client responsibility to someone that became entangled with one of those [post-1934] tribes," Mitchell testified, "you bet I would challenge the tribal status of that group."

"That is why this, as I said in my opening testimony, is a mess," Mitchell added.

Democrats on the committee were very receptive to a fix that would protect completed land-into-trust acquisitions for post-1934 tribes and ensure the processing of future applications. "Placing land into trust for an Indian tribe is an essential component of combating the situations experienced by Indian tribes as a result of their treatment by the United States," said Rep. Nick Rahall (D-West Virginia), the chairman.

"Even beyond the legal responsibility, the federal government has a moral responsibility to rectify this situation," Rahall said.

But Rep. Doc Hastings (R-Washington), the committee's top Republican who doesn't have a particularly strong tribal record, warned against a rush to action. He wants the committee to take a deep study of Congressional and Interior Department records to find out how the decision will affect tribes.

With Democrats in control of Congress, tribes are hopeful for swift action. When the Supreme Court in 1990 restricted tribal criminal jurisdiction in Duro v. Reina, Democrats acted that year to ensure tribes could prosecute all American Indians and Alaska Natives, a fix that was upheld in US v. Lara.

Committee Hearing:
Full Committee Oversight Hearing On The Supreme Court Decision Carcieri V. Salazar Ramifications To Indian Tribes (April 1, 2009)

Supreme Court Decision:
Syllabus | Opinion [Thomas] | Concurrence [Breyer] | Dissent [Stevens] | Concurrence/Dissent [Souter]

Supreme Court Documents:
Oral Argument Transcript | Briefs