On October 13, 2011, Assistant Secretary Echo Hawk testified before the Senate Committee on Indian Affairs in support of the proposed legislation “fixing” the Carcieri decision (Carcieri v. Salazar, 129 S.Ct. 1058 (2009)) by allowing the Bureau of Indian Affairs (BIA) to place land into trust for all federally recognized tribes.
The Assistant Secretary testified in part as follows:
In April of this year, the United States Government Accountability Office (GAO) stated that the uncertainty in accruing land in trust for tribes, as a result of the Carcieri decision, is a barrier to economic development in Indian Country. When asked to identify the “key” issue that must be “resolved first” to ease impediments to job growth in Indian Country, GAO stated that the uncertainty in taking land-in-trust has to be resolved. Moreover, GAO predicted that until the uncertainty created by the Carcieri decision is resolved, Indian tribes would be asking Congress for tribe-specific legislation to take land in trust, rather than submitting fee-to-trust applications to the Department. The Department understands that this prediction is coming true, and Indian tribes are asking their Members of Congress for legislation to take land in trust. Thus, instead of a uniform fee-to-trust process under the Indian Reorganization Act, a variety of tribe specific fee-to-trust laws could lead to a patchwork of laws that could be difficult for the Department to administer.
The webcast of his testimony is available at Echo Hawk Senate Testimony and Webcast
What does this mean for Oklahoma? A number of Tribes were not recognized in 1934. (In fact, in Oklahoma most tribes fall under the Oklahoma Indian Welfare Act of 1936 which was similar to the Indian Reorganization Act of 1934). However, as noted by Justice Breyer in his concurrence, the BIA can still place land into trust for Tribes which should have had federal recognition in 1934 – just that the BIA didn’t know it. (And naturally Oklahoma Indian Welfare Act tribes should meet this test, if applied). As a result of the Carcieri decision, tribes not recognized by 1934 must prove that they should have been recognized in 1934 (which has been done) but that leads to greater legal expense and confusion. Not exactly an ideal environment. Nor is it fair, as Indian tribes, according to the Supreme Court, may be treated unequally under the law. A fix is clearly needed – and Republicans, Democrats, and the President seem to be in favor of it. Yet, it has been almost two years since the Supreme Court created this uncertainty and nothing has been done.
