September 28, 2009

Dorgan Bill Responds to Carcieri Ruling, Affirms Secretary’s Authority to Take Indian Land into Trust

U.S. Senate Indian Affairs Committee Chair Byron Dorgan (D-ND) has introduced legislation that seeks to clear up the uncertainty created by the U.S. Supreme Court’s decision in February on the Carcieri v Salazar case. That decision called into question the Secretary of Interior’s ability to take lands into trust for Indian tribes.
Dorgan described his legislation (S. 1703) as a “technical amendment” to the Indian Reorganization Act (IRA) of 1934 to restore Congress’ true intent. That law authorized the Secretary of the Interior to accept lands into trust for Indian tribes “now under Federal jurisdiction.” The Supreme Court ruled that language limited the Secretary’s authority to accept land into trust only for tribes federally recognized at the time the 1934 law was enacted.
The ruling, if allowed to stand “would have the effect of creating two classes of Indian tribes – those who were recognized as of 1934, for whom land may be taken into trust, and those recognized after 1934 that would be unable to have land taken into trust.” Creating two classes of tribes is “unacceptable,” and contrary to prior Acts of Congress Dorgan said
Urgent congressional action is needed in response the ruling, Dorgan said. “Affected tribes deserve our timely consideration of this bill.”
His bill ratifies the prior trust acquisitions of the Secretary, who for the past 75 years has exercised his authority to place lands into trust, as intended by the Indian Reorganization Act. It also reaffirms the Secretary of Interior’s continuing authority to accept lands into trust for Indian tribes, regardless of when the tribe was federally recognized.
If Congress does not act, Dorgan said, the ruling will create havoc in Indian Country. Inaction by Congress could significantly impact planned development projects on Indian trust lands, including the building of homes and community centers; result in a loss of jobs in an already challenging economic environment; and create costly and unnecessary litigation.
Prior to drafting the legislation, Dorgan convened a hearing of the Senate Committee on Indian Affairs to look into its potential impact and consulted widely with tribes, tribal organizations, and interested parties throughout the United States.