Indian Reorganization Act

The Indian Reorganization Act of June 18, 1934 (signed by President Franklin Delano Roosevelt (FDR)) the Indian New Deal, was U.S. federal legislation that secured certain rights to Native Americans, 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 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 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). Approval was dependent on a majority vote. Not only was there confusion about who should be allowed to vote on creating new governments, as many non-Natives lived on reservations, as well as American Indians who owned no land there, but under the voting rules, abstentions would not be counted. In Oglala Lakota culture, for example, abstention had traditionally equaled a no vote, so there was great confusion about the meaning and process of the voting, and disputes on many reservations about the results.

The act did not require tribes to adopt a constitution. But, when a tribe chose to do so, the constitution had to:

1. allow the tribal council to employ legal counsel;
2. prohibit the tribal council from engaging in any land transactions without majority approval of the tribe; and,
3. authorize the tribal council to negotiate with the Federal, State, and local governments.

Background

John Collier, who was appointed Commissioner of what is now called the Bureau of Indian Affairs in 1933 under President Franklin D. 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.

Implementation and results

The act slowed the practice of allotting communal tribal lands to individual tribal members. It reduced the loss of native holdings that had taken place by land sales to non-members within tribal areas, which had resulted in checkerboarding of Indian-owned lands and made it difficult to manage them holistically. 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 US Department of 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.

Constitutional challenges

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. In 1995, South Dakota challenged the authority of the Secretary of Interior, under the IRA, to take 91 acres (370,000 m²) of land into trust on behalf of the Lower Brulé 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 (370,000 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 (130,000 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 (each possible within American Indian sovereignty rights) 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. The US Supreme Court ruled that the federal government could not place the Narragansett-owned 31 acres (130,000 m²) into trust because the tribe was not recognized federally until after Congress passed the IRA in 1934.

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.

Outcome

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.