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The 'Carcieri' Fix Bills Need to Do More

Paul Moorehead
7/30/14

Eighty years ago last month, President Franklin D. Roosevelt signed into law the Wheeler-Howard Act aka the Indian Reorganization Act (IRA), devised and championed by then-Commissioner of Indian Affairs John Collier.

In a February 1934 memorandum prepared for the House and Senate Committees on Indian Affairs, Collier stressed the necessity of enacting broad remedial legislation to combat the disastrous effects of the allotment policy. His memorandum identified two major problems: (1) the creation of “an ever-increasing class of landless Indians” through the alienation of their chief capital asset - their land; and (2) the “break-up of restricted lands into units unfit for economic use.”

Collier’s proposal would have as its over-arching goal the promotion of Indian self-government and it included the following titles: Title I – Indian Self-Government; Title II – Special Education for Indians; Title III – Indian Lands; and Title IV – Court of Indian Offenses. Congress saw fit to approve titles I and III, only.

Looking back at the previous 51 years of allotment, Collier wrote that

It is difficult to imagine any other system which with equal effectiveness

would pauperize the Indian while impoverishing him, and sicken and kill

his soul while pauperizing him, and case him in so ruined a condition into the

final status of a non-ward dependent upon the States and counties.

Collier describes how through allotment and sale of “surplus” lands, the Indian estate was diminished from 138 million acres in 1887 to 48 million acres in 1934, with the remaining acreage “unuseable” in large measure due to multiple owners of “heirship lands” and Indian-owned land checker-boarded with white-owned land.

Eighty years later, Indian tribes continue to grapple with the same problems, only made worse by decades of further land fractionation and a legal regime of Indian land management that has failed to adapt to changing circumstances on the ground in tribal communities.

The legislation Collier wrote about was not limited to addressing the allotment system; self-government, or what he called “home rule,” was also largely unknown in tribal communities. Saying that “[t]hirty-four years ago, in 1900, the number of Indians holding regular positions in the Indian Service, in proportion to the total of positions, was greater than it is today.” Collier proposed that Indians found to be qualified by the Interior Secretary for any positions on their reservations should be entitled to hold those positions.

Foreshadowing the “638” contracting and self-governance compacting law that were enacted by Congress in the mid-1970s and late 1980s, respectively, Collier’s draft provided that

[W]hen an Indian community has become organized and chartered, the

complete responsibility for the maintenance, by the community, of those services

which it is found competent to maintain, may be transferred to the community.

The appurtenant funds would be transferred, with due safeguards.

Collier believed that Indian people could only thrive by consolidating Indian lands, re-structuring tribal governments, and encouraging tribes to provide services in their own communities. Despite fits and starts in federal Indian policy since then, self-government has been the stated objective since the late 1960s.

Despite this, in the wake of the Supreme Court’s Carcieri v. Salazar decision in 2009, congressional action is sorely needed to clarify the Secretary’s authority to take land into trust for all Indian tribes. It is worth remembering that in the Carcieri litigation, (1) the State of Rhode Island successfully challenged the Secretary's authority under the IRA, and (2) the land in question was to be used by the Narragansett Tribe for housing.

With this in mind, and despite the hysteria generated by some tribes and members of Congress, the fact is the Carcieri "fix" bills proposed by Indian Affairs Committee Chairman Tester and Rep. Tom Cole have nothing to do with taking land into trust for gaming.

While Congress has its work cut out for it, the Administration has an historic opportunity to put a major dent in land fractionation and the Indian land management problems that stem from it. With the roll-out of the $1.9 billion Land Buy-Back Program for Tribal Nations, the Interior Department has eight years remaining in the life of the Land Consolidation Fund to collaborate with tribes in identifying and purchasing fractionated lands on reservations across the country.

Collier’s memorandum is a timely and still-relevant read. It reminds readers of Collier’s keen understanding of the problems created by allotment but also his passion for the plight and suffering of the Indian people. The land problems Collier identified in 1934 --- a dwindling land base and fractionated parcels --- are still plaguing tribal governments and individual Indians and hobbling the economies in Indian Country.

Congress and the Obama Administration should act in concert to clarify the Interior Secretary's authority under the IRA, end the artificial division of "pre-1934" and "post-1934" tribes, and vigorously implement the Land Buy-Back Program--- and, most importantly, listen to what the tribes themselves are saying about how to make that program work.

It is time, once again, to get on with the business of promoting Indian self-government.

Paul Moorehead is a partner in the Powers Pyles Sutter & Verville, PC’s Indian Tribal Governments Group representing Indian tribes and tribal organizations.

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