U.S. Senator Daniel K. Akaka (D-Hawaii), Chairman of the Senate Committee on Indian Affairs, held an oversight hearing yesterday on Addressing the Costly Administrative Burdens and Negative Impacts of the Carcieri and Patchak Decisions.
"Land is important for tribal governments as it provides a means to advance tribal sovereignty and self-determination," said Chairman Akaka. "Through trust lands, tribes are able to provide essential governmental services to their members, including health care, education, housing, jobs and other economic development opportunities, as well as court and law enforcement services. Trust land is also necessary for tribes to promote and protect their historic, cultural, and religious ties to the land."
But trust land status, which was once left up to the Secretary of the Interior's authority, is now being challenged.
In February 2009, the U.S. Supreme Court ruled in Carcieri v. Salazar that the Secretary of the Interior did not have the authority to take land into trust for a tribe that was not under federal jurisdiction at the time that the Indian Reorganization Act (IRA) was enacted in 1934. The Court reversed 75 years of policy and practice and created two classes of tribes: those who could have land taken into trust and those who cannot.
"Immediately following the Carcieri decision, tribes expressed concerns that the decision would have a ripple effect on tribal governments. Sadly, those predictions are coming true," said Akaka. "
Witnesses echoed the Chairman's concerns.
Jefferson Keel, President of the National Congress of American Indians, said "The authority of DOI to take land into trust for Indian tribes is one of the pillars of the United States' trust responsibility. Without the ability to take land into trust, tribes are denied the opportunity to protect and develop their cultures and economies."
"Even Indian tribes that voted on acceptance of the IRA just months after its passage have faced frivolous litigation by states and local governments," said Colette Routel, federal Indian policy expert and Associate Professor at William Mitchell College of Law. "While these trust acquisitions are delayed for years, new jobs are not created, and tribal economic development is stymied."
Since the Carcieri decision, millions of dollars have been tied up in litigation and two dozen cases are still pending where tribes and the Secretary of Interior are under challenge for placing land in trust for Indian tribes.
On June 18, 2012, the Supreme Court issued a ruling in Match-E-Be-Nash-She-Wish Band of Potawatomi Indians v. Patchak stating that a private landowner could sue to challenge the Secretary of the Interior's decision to acquire land in trust. The court went further to say the trust lands can be challenged for up to six years after the land has been put into trust. A lower court is still deliberating on whether or not the Secretary of the Interior must return the trust land.
At yesterday's hearing, witnesses testified that these decisions will have profound financial impacts on Indian tribes as they risk building on trust property that could later be shut down if a lawsuit is filed.
"Fitch Ratings noted that the decision may "embolden additional parties to step forward to challenge land-into-trust decisions that took place within the last six years,' and that there was "a fair amount of uncertainty' regarding when the six-year statute of limitations would be held to start running in such cases," said Routel. "If the lower court's ruling is that the land could be taken out of trust -- it will be catastrophic."
"Without a clear fix to language in the IRA reaffirming Congress's intent for all Indian tribes to be on equal footing, federal courts and plaintiffs opposed in tribal interests will continue to litigate tribal land acquisitions, which in turn hurt economic development projects that benefit local, state, and tribal economies," said John Echohawk, the Executive Director of the Native American Rights Fund.
"Patchak trampled over sovereign immunity of United States and eviscerated the once broad protections for Indian lands. Make no mistake: the Patchak decision is direct evidence of the judicially created Carcieri crisis," continued Echohawk.
"Analyzing whether a tribe [is eligible] to have land taken into trust is not only time-consuming but also costly. These decisions seriously undermine the goals of the Indian Reorganization Act," said Del Laverdure, Acting Assistant Secretary of Indian Affairs in the Department of the Interior. "This Administration continues to support a legislative solution to the negative impacts and increased burdens on the Department and on Indian Country as a whole resulting from these decisions."
"This Committee has established an extensive record over the past eighteen months which demonstrates the negative impacts of Carcieri," said Akaka. "Now is the time for Indian country, the Administration, and the Congress to stand up for what is right and pass a Carcieri-fix."