ICT: John EchoHawk on Supreme Court cases

Law

Wednesday, May 6, 2009

Indian Country Today interviews John Echohawk, the executive director of the Native American Rights Fund, about three recent U.S. Supreme Court decisions that went against tribal interests.

"Indian Country Today: Let’s start with Carcieri.

Echohawk: The Supreme Court in that decision reversed 70 years of administrative interpretation of that language in the Indian Reorganization Act (1934) about who the government could take land into trust for. They interpreted the phrase “now under federal jurisdiction” to mean the time the act was passed in 1934; to be eligible you had to have been under federal jurisdiction in 1934. So that raised all kinds of questions about, well, who was and who wasn’t under federal jurisdiction in 1934?

In the Carcieri case they ruled the Narragansetts were not under federal jurisdiction in 1934. So who else might fit in that category too is kind of up in the air and some of the tribes that didn’t have their federal recognition in 1934 are worried that means them and that they won’t be able to take land into trust in the future, or if they’ve already had land into trust for them maybe that may be undone. It just creates all kinds of problems.

We’re continuing to work with all the tribes and their lawyers in trying to come up with legislative language for Congress to fix this problem, and that’s basically saying from now on, land could be taken into trust for any tribe that has federal recognition. For land that has already been taken into trust, those acquisitions are hereby ratified. So that would remove any potential for litigation over lands that we have taken into trust for tribes that were not under federal jurisdiction in 1934.

ICT: But are you also questioning what “under federal jurisdiction” means because in Connecticut there are five state-recognized tribes that were all on the 1934 list, but none were federally recognized at the time. All of them had land in trust under the state. Two have since become federally recognized and three aren’t recognized, but they still have reservation lands. So what happens to tribes like that? Were they “under federal jurisdiction” because they were on that 1934 list of tribes?

Echohawk: Yes, it opens up all those questions. I think we’d really rather not go there. We’d rather have a fix and have Congress say that this applies to all tribes and any transactions going back to 1934 where land was taken into trust is hereby ratified, so we just eliminate all those questions. If we’re not able to do that we’d have to rely on the interpretation of what that means.

But if we have to do that, we’d be arguing that since the federal government has exclusive authority over all Indians, all tribes under the Constitution, basically, that takes care of everything – if you’re a tribe then you’re under federal jurisdiction, any tribe, anywhere, is under federal jurisdiction. Period. And it’s not necessary to have that formal federal recognition. Of course, that’s part of the process you can go through that formalizes it, but still you’re under that jurisdiction and we’d argue for that broader interpretation. The states have no power or authority to deal with Indian tribes. It’s completely federal. So to us it means we’re under federal jurisdiction.

ICT: How does it relate to inherent sovereignty to have another sovereign come and say, “We now have this jurisdiction over you?” Is anyone challenging Congress’ claim to plenary power over the nations?

Echohawk: Yes, but of course under the law of this country, the way all that’s been interpreted and the way it’s been litigated is the tribes are domestic dependent nations and that’s just the way things are and you go to court and that’s what they’ll tell you. Tribes have been trying forever to get recognition internationally as international sovereigns, but that’s never happened."

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Interview with John Echohawk (Indian Country Today 5/6)