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In trust we trust; others pay taxes

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Enemies of tribal sovereignty have targeted land-into-trust as the next Indian policy to throw into the meat grinder of the U.S. Supreme Court. They have attacked it from one end of the country to another. So far, theyíve failed. U.S. circuit courts from Salt Lake City to Boston have rejected the contention that the land-into-trust statute is unconstitutional. The Supreme Court itself, in a somewhat bizarre twist, has twice already endorsed the law before hearing it challenged. We certainly wouldnít side with those opposed to this tool for restoring some justice to the tribes. At the same time, however, itís important to resist the notion that the ìtrust relationshipî is the only way to preserve the integrity of Indian country.

A cabal of state attorneys general apparently has coordinated a series of suits against a series of Interior Department land-into-trust actions. The territory isnít large ñ two parcels in Utah along Interstate 15, a building site for Narragansett tribal old-age housing in Rhode Island ñ but state and local governments see any expansion of ìIndian countryî as a threat to their regulatory power. They are challenging the source of land into trust, Section 465 of the Indian Reorganization Act, as an unconstitutional delegation of congressional power to the Secretary of the Interior.

Thereís a certain symbolism to this choice of target. The IRA was enacted in 1934 as a formal end to the previous federal policy of allotment and reservation breakup, one of the most dismal failures in the history of American ìsocial engineering.î Section 465 was specifically designed to reverse some of the damage by restoring land to tribal control. It gave the Interior secretary authority ìin his discretionî to acquire land ìfor the purpose of providing land for Indians.î One court decision recently identified the legislative goals as ìërehabilitating the Indianís economic lifeí and ëdeveloping the initiative destroyed by ñ oppression and paternalismí of the prior allotment policy.î

Three circuit courts have now held that this language did not give too much of a blank check to the Interior secretary. We wonít gainsay them. By way of a disclosure statement, we should add that the Oneida Indian Nation, whose tribal enterprise Four Directions Media publishes Indian Country Today, has a major land-into-trust application pending with Interior, to undo the damage of the Supreme Courtís 2005 City of Sherrill v. Oneida Indian Nation of New York decision. In her majority opinion, Justice Ruth Bader Ginsburg specifically cited Section 465 as ìthe proper avenueî for re-establishing sovereign authority.

Leaving aside self-interest, we should note a few problems with her suggestion. In the first place, the Supreme Court seems to be deciding a case which it hasnít even heard argued, namely the constitutional challenge. And this is the second time around. Ginsburg picked up this paragraph from Justice Clarence Thomasí 1998 ruling in Cass County, Minnesota v. Leech Lake Band of Chippewa Indians. The circumstances are somewhat parallel. The Leech Lake Band was asserting tax immunity for allotment land it had reacquired. Thomas said that allowing such a claim would make Section 465 superfluous and, in fact, the band had already used that process to take back most of the parcels in question.

This paradox raises some basic questions about the whole notion of federal trust land. The Cass County decision set up a destructive either/or situation. Land, even within reservation boundaries, was either held in trust by the federal government or allotted to individuals ìin fee simple.î The private holdings could be sold (in legal language, ìalienatedî) but at the cost of making them subject to state and local property taxes. In other words, according to Justice Thomas, a Native family could take on the benefits and responsibilities of homeownership only by eroding the integrity of its tribal territory. This very negative result, of course, was the desired outcome of the supposedly repudiated Dawes Allotment Act of 1887, which still lives on like a vampire in the Supreme Court.

We continue to be grateful to the Keweenaw Bay Indian Community for challenging this situation. Its recent Circuit Court victory might apply only to its own reservation, but it shows that federal trust ownership is not the only way to preserve tribal rights. As we reported, the Keweenaw Bay case turned on the question of congressional intent to let Indian land be taxed by state and local governments. Hence the continued reliance on the disastrous Dawes Act. But if Congress values both Indian homeownership and tribal self-determination, it could easily support both. Why not, for instance, a resolution stipulating that private Native ownership within reservation boundaries would be subject to tribal taxation, not that of neighboring governments?

The logic seems compelling and well worth further discussion. If land into trust is currently the widest avenue to preserve tribal sovereignty, weíll stick with it ñ but it is high time to start thinking beyond.

Enemies of tribal sovereignty have targeted land-into-trust as the next Indian policy to throw into the meat grinder of the U.S. Supreme Court. They have attacked it from one end of the country to another. So far, theyíve failed. U.S. circuit courts from Salt Lake City to Boston have rejected the contention that the land-into-trust statute is unconstitutional. The Supreme Court itself, in a somewhat bizarre twist, has twice already endorsed the law before hearing it challenged. We certainly wouldnít side with those opposed to this tool for restoring some justice to the tribes. At the same time, however, itís important to resist the notion that the ìtrust relationshipî is the only way to preserve the integrity of Indian country.A cabal of state attorneys general apparently has coordinated a series of suits against a series of Interior Department land-into-trust actions. The territory isnít large ñ two parcels in Utah along Interstate 15, a building site for Narragansett tribal old-age housing in Rhode Island ñ but state and local governments see any expansion of ìIndian countryî as a threat to their regulatory power. They are challenging the source of land into trust, Section 465 of the Indian Reorganization Act, as an unconstitutional delegation of congressional power to the Secretary of the Interior.Thereís a certain symbolism to this choice of target. The IRA was enacted in 1934 as a formal end to the previous federal policy of allotment and reservation breakup, one of the most dismal failures in the history of American ìsocial engineering.î Section 465 was specifically designed to reverse some of the damage by restoring land to tribal control. It gave the Interior secretary authority ìin his discretionî to acquire land ìfor the purpose of providing land for Indians.î One court decision recently identified the legislative goals as ìërehabilitating the Indianís economic lifeí and ëdeveloping the initiative destroyed by ñ oppression and paternalismí of the prior allotment policy.îThree circuit courts have now held that this language did not give too much of a blank check to the Interior secretary. We wonít gainsay them. By way of a disclosure statement, we should add that the Oneida Indian Nation, whose tribal enterprise Four Directions Media publishes Indian Country Today, has a major land-into-trust application pending with Interior, to undo the damage of the Supreme Courtís 2005 City of Sherrill v. Oneida Indian Nation of New York decision. In her majority opinion, Justice Ruth Bader Ginsburg specifically cited Section 465 as ìthe proper avenueî for re-establishing sovereign authority.Leaving aside self-interest, we should note a few problems with her suggestion. In the first place, the Supreme Court seems to be deciding a case which it hasnít even heard argued, namely the constitutional challenge. And this is the second time around. Ginsburg picked up this paragraph from Justice Clarence Thomasí 1998 ruling in Cass County, Minnesota v. Leech Lake Band of Chippewa Indians. The circumstances are somewhat parallel. The Leech Lake Band was asserting tax immunity for allotment land it had reacquired. Thomas said that allowing such a claim would make Section 465 superfluous and, in fact, the band had already used that process to take back most of the parcels in question.This paradox raises some basic questions about the whole notion of federal trust land. The Cass County decision set up a destructive either/or situation. Land, even within reservation boundaries, was either held in trust by the federal government or allotted to individuals ìin fee simple.î The private holdings could be sold (in legal language, ìalienatedî) but at the cost of making them subject to state and local property taxes. In other words, according to Justice Thomas, a Native family could take on the benefits and responsibilities of homeownership only by eroding the integrity of its tribal territory. This very negative result, of course, was the desired outcome of the supposedly repudiated Dawes Allotment Act of 1887, which still lives on like a vampire in the Supreme Court.We continue to be grateful to the Keweenaw Bay Indian Community for challenging this situation. Its recent Circuit Court victory might apply only to its own reservation, but it shows that federal trust ownership is not the only way to preserve tribal rights. As we reported, the Keweenaw Bay case turned on the question of congressional intent to let Indian land be taxed by state and local governments. Hence the continued reliance on the disastrous Dawes Act. But if Congress values both Indian homeownership and tribal self-determination, it could easily support both. Why not, for instance, a resolution stipulating that private Native ownership within reservation boundaries would be subject to tribal taxation, not that of neighboring governments?The logic seems compelling and well worth further discussion. If land into trust is currently the widest avenue to preserve tribal sovereignty, weíll stick with it ñ but it is high time to start thinking beyond.