The U.S. Supreme Court's landmark decision last year that prohibits the Interior Department from taking land into trust as reservation land for tribes that were federally recognized after 1934 would be fixed if a bill co-sponsored by U.S. Senator Byron Dorgan is acted upon.
The Supreme Court case involved the Narragansett Tribe and the governor of Rhode Islan (Carcieri) but the court's decision affected many tribes, including the Mashpee Wampanoag Tribe in Massachusetts. The Mashpees were federally recognized in 2007 and applied to have 539 acres in Middleborough taken into trust for a proposed casino as well as 140 acres in Mashpee, Massachusetts. Since the Mashpee Tribe was federally recognized after 1934, the Supreme Court's decision made it impossible for the Interior Department to act on the Mashpee land application.
The bill proposed by Sen. Dorgan seeks to change a 1934 law so that the Secretary of the Interior Department can take land into trust for any federally recognized Indian tribe and not just those tribes recognized prior to 1934.
Senator Dorgan explains the proposed amendment in his own words:
"On February 24, 2009, the Supreme Court issued its decision in the Carcieri v. Salazar case. In that decision the Supreme Court held that the Secretary of the Interior exceeded his authority in taking land into trust for a tribe that was not under federal jurisdiction, or recognized, at the time the Indian Reorganization Act was enacted in 1934.
"The legislation I’m introducing today is necessary to reaffirm the Secretary’s authority to take lands into trust for Indian tribes, regardless of when they were recognized by the federal government. The amendment ratifies the prior trust acquisitions of the Secretary, who for the past 75 years has been exercising his authority to take lands into trust, as intended by the Indian Reorganization Act.
"On May 21, 2009, the Senate Committee on Indian Affairs held a hearing to examine the executive branch’s authority to take land into trust for Indian tribes. At that hearing, it became clear that Congress needs to act to resolve the uncertainty created by the Supreme Court’s decision. Therefore, this legislation was developed in consultation with interested parties to clarify the Secretary’s authority.
"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.
"Further, if the decision stands, it 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 status. Creating two classes of tribes is unacceptable and is contrary to prior Acts of this Congress. In 1994, Congress passed the Federally Recognized Indian Tribe List Act to ensure that all tribes are treated equally, regardless of their date of recognition.
I want to thank Senators Tester, Inouye, Akaka, Baucus, Udall, Bingaman and Franken for their support on this legislation. My co-sponsors are well aware of the resulting impact this decision could have on our Native American communities. Affected tribes deserve our timely consideration of this bill. I urge my colleagues to join me in supporting the passage of this legislation."
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