Law | Politics | Trust

Senate measure introduced to fix Carcieri land-into-trust ruling

Tuesday, April 1, 2014

A bipartisan group of lawmakers in the Senate introduced a bill to fix the U.S. Supreme Court decision in Carcieri v. Salazar.

S.2188 amends the Indian Reorganization Act to ensure that all tribes can follow the land-into-trust process. It replaces a troublesome phrase -- "now under federal jurisdiction" -- with "any federally recognized Indian tribe" to cover all tribes, regardless of the date of federal recognition.

“The Carcieri decision is crippling a key component of tribal sovereignty and economic viability while setting the stage for harmful court cases where only lawyers win,” Sen. Jon Tester (D-Montana), the chairman of the Senate Indian Affairs Committee, said in a press release. “We need to come together, work across party lines, and solve this problem. This is a difficult issue, but we cannot hold these sovereign nations hostage to a decision that creates two classes of tribes and stalls economic development across Indian Country.”

The bill applies to all tribes, including those in Alaska, an issue of contention in the past. Sen. Mark Begich (D-Alaska), the state's senior Senator, told the National Congress of American Indians last month that he would not try to exclude tribes in Alaska.

The bill also ensures that all prior land-into-trust acquisitions are legal. The issue has come up in Big Lagoon Rancheria v. California, a case involving the Big Lagoon Rancheria that's being closely watched across Indian Country.

“It is unjust for there to be two classes of Indians created by the Carcieri v. Salazar decision -- those tribes federally recognized in 1934 and those recognized after,” Sen. Jerry Moran (R-Kansas) said in the press release. “Tribes should no longer shoulder the burden of lawsuits and uncertainty that hinder their prosperity. The Secretary of Interior’s authority to take land into trust for all tribes is essential for economic development.”

The text of the bill follows:

S. 2188
Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,
SECTION 1. REAFFIRMATION OF AUTHORITY.
(a) Modification.--
(1) IN GENERAL.--The first sentence of section 19 of the Act of June 18, 1934 (commonly known as the ``Indian Reorganization Act'') (25 U.S.C. 479), is amended--
(A) by striking ``The term'' and inserting ``Effective beginning on June 18, 1934, the term''; and
(B) by striking ``any recognized Indian tribe now under Federal jurisdiction'' and inserting ``any federally recognized Indian tribe''.
(2) EFFECTIVE DATE.--The amendments made by paragraph (1) shall take effect as if included in the Act of June 18, 1934 (commonly known as the ``Indian Reorganization Act'') (25 U.S.C. 479), on the date of enactment of that Act.
(b) Ratification and Confirmation of Actions.--Any action taken by the Secretary of the Interior pursuant to the Act of June 18, 1934 (commonly known as the ``Indian Reorganization Act'') (25 U.S.C. 461 et seq.), for any Indian tribe that was federally recognized on the date of that action is ratified and confirmed, to the extent such action is subjected to challenge based on whether the Indian tribe was federally recognized or under Federal jurisdiction on June 18, 1934, as if the action had, by prior Act of Congress, been specifically authorized and directed.
(c) Effect on Other Laws.--
(1) IN GENERAL.--Nothing in this section or the amendments made by this section shall affect--
(A) the application or effect of any Federal law other than the Act of June 18, 1934 (25 U.S.C. 461 et seq.), as amended by subsection (a); or
(B) any limitation on the authority of the Secretary of the Interior under any Federal law or regulation other than the Act of June 18, 1934 (25 U.S.C. 461 et seq.), as so amended.
(2) REFERENCES IN OTHER LAWS.--An express reference to the Act of June 18, 1934 (25 U.S.C. 461 et seq.), contained in any other Federal law shall be considered to be a reference to that Act as amended by subsection (a).

DOI Solicitor Opinion:
M-37029: The Meaning of "Under Federal Jurisdiction" for Purposes of the Indian Reorganization Act (March 12, 2014)