Indian Reorganization Act
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The Indian Reorganization Act of June 18, 1934, also known as the Wheeler-Howard Act or informally, the Indian New Deal, was a U.S. federal legislation which secured certain rights to Native Americans, including Alaska Natives.[1] These include a reversal of the Dawes Act's privatization of common holdings of American Indians and a return to local self-government on a tribal basis. The Act also restored to Native Americans the management of their assets (being mainly land) and included provisions intended to create a sound economic foundation for the inhabitants of Indian reservations. Section 18 of the IRA conditions application of the IRA on a majority vote of the affected Indian nation or tribe within one year of the effective date of the act (25 U.S.C. 478). The IRA was perhaps the most significant initiative of John Collier Sr., Commissioner of the Bureau of Indian Affairs from 1933 to 1945.
The act did not require tribes to adopt a constitution. However, if the tribe chose to do so, the constitution had to:
- allow the tribal council to employ legal counsel;
- prohibit the tribal council from engaging any land transitions without majority approval of the tribe; and,
- authorize the tribal council to negotiate with the Federal, State, and local governments.
Evidently, some of these restrictions were eliminated by the Native American Technical Corrections Act of 2003.[2]
The act slowed the practice of assigning tribal lands to individual tribal members and reduced the loss, through the practice of checkerboarding land sales to non-members within tribal areas, of native holdings. Owing to this Act and to other actions of federal courts and the government, over two million acres (8,000 km²) of land were returned to various tribes in the first 20 years after passage of the act.
In 1954, the United States Department of Interior began implementing the termination and relocation phases of the Act. Among other effects, termination resulted in the legal dismantling of 61 tribal nations within the United States.
This act was based upon the thought that tribes should be in existence for an indefinite period of time.[3]
[edit] Constitutional challenges
The Supreme Court has been asked repeatedly to address the constitutionality of the IRA. In 1995, the Eighth Circuit declared the IRA unconstitutional.[4] The U.S. Department of the Interior sought U.S. Supreme Court review. The DOI then implemented new regulations and asked the U.S. Supreme Court to remand the case to the lower courts to reconsider their decision based on the new regulations. The U.S. Supreme Court Granted the petition, vacated the lower court's ruling and remanded the case back to the lower court. Justices Scalia, O'Connor and Thomas dissented and stated that "[t]he decision today--to grant, vacate, and remand in light of the Government's changed position--is both unprecedented and inexplicable." and "[w]hat makes today's action inexplicable as well as unprecedented is the fact that the Government's change of legal position does not even purport to be applicable to the present case."[5] Seven months after the Supreme Court's decision to grant, vacate, and remand, the DOI removed the land from trust. In 1997 the Tribe submitted an amended application to the Secretary, requesting that the United States take the land into trust on the Tribe's behalf. The Eighth Circuit reexamined the constitutionality issue and affirmed the IRA's constitutionality.
In 2008 Carcieri v Kempthorne was argued before the U.S. Supreme Court and was decided in 2009 as Carcieri v. Salazar[6]. Rhode Island officials sued on grounds that the IRA is unconstitutional, but the Supreme Court declined to review this particular question. The Supreme Court ruled that the federal government cannot place in trust 31 acres owned by the Narragansett Indian tribe. In 1991 the tribe bought the land and in 1998 the Department of Interior agreed to take it into trust, exempting it from many state laws. The state went to believed that the tribe would open a casino or tax-free business on the land. The Court found that the tribe could not remove its land from state control because it was not federally recognized until after Congress passed the IRA in 1934.
In 2008, before the Carcieri opinion, in MichGO v Kempthorne, Judge Janice Rogers Brown of the D.C. Circuit Court of Appeals authored a dissent stating that she would have struck down key provisions of the IRA. Of the three circuit courts to address the IRA's constitutionality, Judge Brown's opinion is the only one to opine that the land-into-trust process violates the Constitution.[7] The U.S. Supreme Court did not accept the MichGO case for review. The First, Eighth and Tenth Circuits of the U.S. Court of Appeals have upheld the IRA's constitutionality.[8]
Most recently, in a challenge to the U.S. Department of Interior's decision to take land into trust for the Oneida Indian Nation, Upstate Citizens for Equality, New York State, Oneida County, Madison County, the town of Verona, the town of Vernon, and others argue that the IRA is unconstitutional.[9]
[edit] Outcome
The act proved to be successful in conserving the tribal land base. However, it did not prove to be successful to the same extent when it came to self governing of the tribes.[10]
[edit] Notes and references
- ^ Indian Reorganization Act, Encyclopaedia Britannica
- ^ Native American Technical Corrections Act, 2003, The Orator
- ^ Canby, William (2004). "American Indian Law", p 24. ISBN 0314146407
- ^ South Dakota v United States Dep't of the Interior, 69 F.3d 878, 881-85 (8th Cir. 1995)
- ^ Dep't of the Interior v South Dakota, 519 U.S. 919, 919-20, 136 L. Ed. 2d 205, 117 S. Ct. 286 (1996)
- ^ 555 U.S. ___ (Feb. 24, 2009)
- ^ United States Court of Appeals for the District of Columbia Circuit MichGO v Kempthorne
- ^ Carcieri v Kempthorne, 497 F.3d 15, 43 (1st Cir. 2007), overruled as Carcieri v. Salazar (U.S. Supreme Court); South Dakota v United States Dep't of Interior, 423 F.3d 790, 798-99 (8th Cir. 2007); Shivwits Band of Paiute Indians v. Utah, 428 F.3d 966, 974 (10th Cir. 2005).
- ^ Actual Complaint filed in court
- ^ Canby, William (2004). "American Indian Law", p 25. ISBN 0314146407
