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Court decision leaves tribes dangling

Critics say the Supreme Court continues to give justification to gut treaties and rob tribes of their land.


Larry Echohawk, the Interior Department’s new assistant secretary of Indian affairs, was overcome with emotion this September when he talked about the long, ugly history between Native tribes and the U.S. government. Speaking at a Native American summit in Utah, Echohawk, a member of the Pawnee Nation, decried these “dark chapters” of the country’s story. He was especially hard on the U.S. Supreme Court, because it gave Congress the legal justification to gut treaties and rob tribes of 140,000 square miles of land between 1887 to 1934.

According to many in Indian Country, the Supreme Court is still at it. Just weeks after he assumed his new job in May, Echohawk held a series of meetings about the court’s February 2009 ruling in Carcieri v. Salazar. The ruling has utterly shaken the relationship between tribes, the federal government and states, and flies in the face of 75 years of Interior Department practice.

Specifically, the ruling states that the Bureau of Indian Affairs cannot take 31 acres into trust on behalf of the Narragansett Tribe of Rhode Island, which wanted to build tribal housing on the land. But in a broader interpretation, the Supreme Court ruled that the federal government cannot take land into trust for any tribe recognized after 1934, when Congress passed the Indian Reorganization Act. Ultimately, it raises questions over whether tribes recognized since1934 can receive any of the benefits of the reorganization act. And those benefits are key: They include federal health care and education programs and the ability to enter into legal contracts.

As Scott Quinn, director of planning with the Karuk Tribe in California, puts it, the decision could have “dire consequences.”

Among the 50 to 100 tribes likely to be affected are Washington's Stillaguamish Tribe, the Burns Paiute Tribe of Oregon, Arizona's Southern San Juan Paiute Tribe and the Death Valley Timbi-Sha Tribe in California. The question is complicated because there is no complete list of Indian tribes under federal jurisdiction in 1934, and no one, including the Interior Department, is eager to tackle the complicated task of trying to create one. A total of 174 tribes accepted the reorganization act in 1934; 78 tribes rejected it. That leaves 310 tribes unaccounted for.

However, everyone agrees that if the ruling is allowed to stand, litigation is sure to follow. States could challenge all kinds of tribal activities, and the affected tribes be forced to defend not only economic development projects, such as casinos, but also their sovereignty.

Particularly in the West, lands within the boundaries of a reservation may be “checkerboarded,” with many entities holding title to different parcels, including tribes, individual Indians, non-Indian individuals and groups, the state, the county and the federal government. Tribes can consolidate their reservations by buying these parcels of land and asking the federal government to take them into trust. In the process, they can solve some of the jurisdictional issues that plague states and tribes alike.

But some state and local interests see Carcieri as an opportunity to re-examine the land-into-trust principle. Colorado’s John Suthers and Utah’s Mark L. Shurtleff, both Republicans, were among 17 state attorneys general who sent a letter to the Senate Committee on Indian Affairs requesting that it delay any action to “fix” the decision. They wrote, “Taking land into trust deprives the local units of government and the state of the ability to tax the land and calls into question the power of state and local government to enforce civil and criminal laws on the land.”

Gambling opponents have welcomed the ruling as the death knell for the expansion of Indian gaming, which requires the Interior Department to take land into trust. There are currently 301 gaming tribes in the U.S., almost half of them in the West. Earnings nationwide were $26.5 billion in 2007.  The National Association Against Legalized Gambling says that the social costs of gambling exceed the benefits at a ratio of three to one, and that gambling increases crime and invites corruption. Executive director Les Burnell says that over the last 20 years –– since Congress passed the Indian Gaming Regulatory Act, which permitted gaming on Indian lands –– there has been a huge push for off-reservation casinos for newly recognized tribes bankrolled by gambling interests.”

But gambling is not the real issue, according to tribal leaders. Quinn says the ruling will have “huge implication for tribes if they are not able to put land into trust for economic development. Our tribe in particular has a number of fee-to-trust applications outstanding because we are trying to consolidate our land holdings.”

Currently, a “fix” –– sponsored in the Senate by North Dakota Sen. Byron Dorgan, D, and in the House by Oklahoma Rep. Tom Cole, R. –– has been introduced in Congress. The legislation would amend the reorganization act to reflect Interior’s longtime practice of taking land into trust for any federally recognized tribe, no matter when that tribe came under federal jurisdiction. If passed, the bill would thus negate the high court’s decision.

W. Ron Allen, chairman of the Jamestown S’Klallam Tribe in Washington and a board member of the National Congress of American Indians, told the Senate committee back in May, “We need to fix this thing and fix it quickly.” But with health care and climate-change legislation taking precedence over everything else in Congress this fall, Indian tribes and states alike could be in for a long, rough ride.

Tanya Lee is a freelance journalist specializing in matters of interest to the Native American community.