Indian Reorganization Act
The Indian Reorganization Act of June 18, 1934, sometimes known as the Indian New Deal, was U.S. federal legislation that secured certain rights to Native Americans (known in law as American Indians or Indians), including Alaska Natives. These include actions that contributed to the reversal of the Dawes Act's privatization of communal holdings of American Indian tribes and a return to local self-government on a tribal basis. The Act also restored to Indians the management of their assets (being mainly land) and included provisions intended to create a sound economic foundation for the inhabitants of Indian reservations.
The IRA was perhaps the most significant initiative of John Collier Sr., Commissioner of the Bureau of Indian Affairs (BIA) from 1933 to 1945. He had worked on Indian issues for ten years prior to his appointment, particularly with the American Indian Defense Association. He had intended to reverse some of the worst government policies and provide ways for American Indians to re-establish sovereignty and self-government, to reduce the losses of reservation lands, and establish ways for Indians to build economic self-sufficiency. Various other interests effected changes to the legislation that reduced protections for Indians and preserved oversight by the BIA .
The act did not require tribes to adopt a constitution. But, when a tribe chose to do so, the constitution had to:
- allow the tribal council to employ legal counsel;
- prohibit the tribal council from engaging in any land transactions without majority approval of the tribe; and,
- authorize the tribal council to negotiate with the Federal, State, and local governments.
At the time the Act passed, it was U.S. policy to eliminate Indian reservations, dividing their territory and distributing it to individual Indians to own like any other person, in a process called "allotment." Before allotment, reservation territory was not owned in the usual western sense, but was reserved for the benefit of entire Indian tribes, with its benefits apportioned to tribe members according to tribal law and custom. Generally, Indians held the land in a communal fashion. It was not possible for any non-Indian to own land on reservations, a fact which limited the value of the land to the Indians (It reduced the market for it).
The process of allotment started with the General Allotment Act of 1887, and by 1934, two thirds of Indian land had converted to traditional private ownership (i.e. it was owned in fee simple) and most of that had been sold by its Indian allottee.
The Indians who sold their land (most received 80 acres) often did not get much value for it, either getting a poor price or squandering the cash windfall they received. This left Indians as a class poor.
John Collier, who was appointed Commissioner of what is now called the Bureau of Indian Affairs in 1933 under President Franklin Delano Roosevelt, had become convinced that federal Indian policies needed to be changed to correct injustices. He had already worked ten years at the Indian Defense Fund and become familiar with many issues.
The Act was signed into law by President Roosevelt in 1934.
Implementation and results
The act slowed the practice of allotting communal tribal lands to individual tribal members. It did not restore to Indians land that had already been patented to individuals, but much land at the time was still unallotted or was allotted to an individual but still held in trust for that individual by the U.S. government. Because the Act did not disturb existing private ownership of Indian reservation lands, it left reservations a checkerboard of tribal and free land, which remains the case today .
However, the Act also provided for the U.S. to purchase some of the free land and restore it to tribal status. Due to the Act and 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.
In 1954, the United States Department of the Interior (DOI) began implementing the termination and relocation phases of the Act, which had been added by Congress and represented the continuing interest by some of having American Indians assimilate to the majority society. Among other effects, termination resulted in the legal dismantling of 61 tribal nations within the United States and ending their recognized relationships with the federal government. This also ended the eligibility of the tribal nations and their members for various government programs to assist American Indians.
Since the late 20th century and the rise of Indian activism over sovereignty issues, as well as many tribes' establishment of casino gambling on reservations as a revenue source, the US Supreme Court has been asked repeatedly to address the IRA's constitutionality. The provision of the Act that is controversial is the one that allows the US government to acquire non-Indian land (by voluntary transfer) and convert it to Indian land ("take it into trust"). In so doing, the US government partially removes the land from the jurisdiction of the state, which makes certain activities, such as casino gambling, possible on the land that wouldn't otherwise be. It also makes the land exempt from state property taxes and some other state taxes. Consequently, many people oppose implementation of this part of the Act and, typically represented by state or local governments, they sue to prevent it.
In 1995, South Dakota challenged the authority of the Secretary of Interior, under the IRA, to take 91 acres (368,000 m2) of land into trust on behalf of the Lower Brule Sioux Tribe (based on the Rosebud Indian Reservation), in South Dakota v. United States Dep't of the Interior, 69 F.3d 878, 881-85 (8th Cir. 1995). The Eighth Circuit found Section 5 of the IRA to be unconstitutional, ruling that it violated the non-delegation doctrine and that the Secretary of Interior did not have the authority to take the land into trust.
The US Department of the Interior (DOI) sought U.S. Supreme Court review. But, as DOI was implementing new regulations related to land trusts, the agency asked the Court to remand the case to the lower court, to be reconsidered with the decision to be based on the new regulations. The US Supreme Court granted Interior's petition, vacated the lower court's ruling, and remanded the case back to the lower court.
Justices Scalia, O'Connor and Thomas dissented, stating that "[t]he decision today--to grant, vacate, and remand in light of the Government's changed position--is both unprecedented and inexplicable." They went on, "[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." Seven months after the Supreme Court's decision to grant, vacate, and remand, the DOI removed the land in question from trust.
In 1997, the Lower Brulé Sioux submitted an amended trust application to DOI, requesting that the United States take the 91 acres (368,000 m2) of land into trust on the Tribe's behalf. South Dakota challenged this in 2004 in district court, which upheld DOI's authority to take the land in trust. The state appealed to the Eighth Circuit, but when the court reexamined the constitutionality issue, it upheld the constitutionality of Section 5 in agreement with the lower court. The US Supreme Court denied the State's petition for certiorari. Since then, district and circuit courts have rejected non-delegation claims by states. The Supreme Court refused to hear the issue in 2008.
In 2008 (before the US Supreme Court heard the Carcieri case below), in MichGO v Kempthorne, Judge Janice Rogers Brown of the D.C. Circuit Court of Appeals wrote 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 is the only judge to dissent on the IRA's constitutionality. The U.S. Supreme Court did not accept the MichGO case for review, thus keeping the previous precedent in place. The First, Eighth and Tenth Circuits of the U.S. Court of Appeals have upheld the constitutionality of the IRA.
In 2008, Carcieri v Kempthorne was argued before the U.S. Supreme Court; the Court ruled on it in 2009, with the decision called Carcieri v. Salazar. In 1991, the Narragansett Indian tribe bought 31 acres (125,000 m2) of land. They requested that the DOI take it into trust, which the agency did in 1998, thus exempting it from many state laws. The State was concerned that the tribe would open a casino or tax-free business on the land and sued to block the transfer. The state argued that the IRA did not apply because the Narragansett did not receive federal recognition as a tribal nation until 1980, after the 1934 passage of the IRA. The US Supreme Court agreed with the State.
In a challenge to the U.S. DOI's decision to take land into trust for the Oneida Indian Nation in present-day New York state, Upstate Citizens for Equality (UCE), New York State, Oneida County, Madison County, the town of Verona, the town of Vernon, and others argue that the IRA is unconstitutional. Most recently, Judge Kahn dismissed several portions of UCE's complaint, including the failed theory that the IRA is unconstitutional, on the basis of longstanding and settled law on this issue.
Approval by tribes
Section 18 of the IRA required that members of the affected Indian nation or tribe vote on whether to accept it within one year of the effective date of the act (25 U.S.C. 478), and had to approve it by a majority. There was confusion about who should be allowed to vote on creating new governments, as many non-Indians lived on reservations many Indians owned no land there, and also over the effect of abstentions. Under the voting rules, abstentions were counted as yes votes,  but in Oglala Lakota culture, for example, abstention had traditionally equaled a no vote. The resulting confusion caused disputes on many reservations about the results.
The act has helped conserve the communal tribal land bases. But, because Congress altered the legislation proposed by Collier, reducing elements of tribal self-government and preserving BIA oversight, leasing authority and other interventions, the act has not been considered as successful in terms of tribal self-governing. On many reservations, its provisions have exacerbated longstanding differences between traditionals and those who had adopted more European-American ways. Many Native Americans believe their traditional systems of government were better for their culture.
- Indian Reorganization Act, Encyclopaedia Britannica
- Canby, William (2004). American Indian Law, p. 24. ISBN 0-314-14640-7
- South Dakota v. Dept. of Interior (1995), Department of Justice
- Dep't of the Interior v South Dakota, 519 U.S. 919, 919-20, 136 L. Ed. 2d 205, 117 S. Ct. 286 (1996)
- 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).
- 555 U.S. ___ (Feb. 24, 2009)
- Carcieri at page 4 of opinion
- Actual Complaint filed in court
- "Judge dismisses citizen-group's claims", Utica OD
- Terry Anderson, Sovereign Nations or Reservations: An Economic History of American Indians. Pacific Research Institute for Public Policy 1995, p. 143
- Canby, William (2004). American Indian Law, p 25. ISBN 0-314-14640-7
- Blackman, Jon S. Oklahoma's Indian New Deal (University of Oklahoma Press; 2013) 192 pages
- Kelly, L. C. (1963) The Assault on Assimilation: John Collier and the Origins of Indian Policy Reform (Albuquerque: University of New Mexico Press).
- Philp, K. R.(1968) John Collier and the American Indian, 1920–1945 (Lansing: Michigan State University Press)
- Philp, K. R. (1977). John Collier's crusade for Indian reform, 1920-1954 (Tucson: University of Arizona Press)