WASHINGTON – Indian fighters are apparently alive and well; and tribal leaders want members of Congress to know it – especially when it comes to determining a possible remedy to a recent Supreme Court ruling in the Carcieri v. Salazar case.
W. Ron Allen, chairman of the Jamestown S’Klallam Tribe and a board member of the National Congress of American Indians, was the main tribal testifier at a May 21 hearing of the Senate Committee on Indian Affairs. The hearing was intended to examine the federal executive branch authority to acquire trust lands for Indian tribes.
The scope of the federal government’s trustee status has become one of keen interest across Indian country since the Supreme Court ruled in February that a tribe not under federal jurisdiction as of 1934 cannot follow a longstanding land into trust process administered by the U.S. Department of the Interior.
Since the ruling, it has become legally unclear as to whether Interior can continue to take lands into trust for tribes that were federally recognized after 1934. The department, by many accounts, is operating in legal limbo on the matter.
Allen made his points succinctly, stating in prepared testimony that the Carcieri decision “is squarely at odds with the federal policy of tribal self-determination and tribal economic self-sufficiency,” and that the ruling requires a Congressional remedy. One possibility for doing so would be for Congress to amend the Indian Reorganization Act of 1934 to clearly include tribes under federal recognition after that year.
But Allen went beyond that prepared text, too, bringing up a term – “Indian fighters” – that is all too familiar to some in Indian country.
Historically, some U.S. military leaders and politicians proudly proclaimed to be anti-American Indian by calling themselves “Indian fighters” and working to rid Native Americans of power, land, and, in some cases, their lives.
“We’re a little annoyed by any re-emergence of the old system of fighting Indians,” Allen testified. “The notion that we’re still fighting Indians and that Indians need to be assimilated or terminated is an old mentality.”
That kind of mentality does not belong in the 21st century, he said.
Allen said some state and local officials are becoming ever more vocal in their opposition to tribal interests – although such interests have typically helped to bolster many state and local economies.
In the Carcieri case, it was Rhode Island and local officials who led the charge against the Narragansett Tribe’s desire to secure lands through the federal trust process to be used for a housing development. Some non-tribal officials expressed concern that the tribe would instead pursue gaming.
Allen also made a point – sometimes forgotten in the context of the American political and legal system – that Indians have a special status in the Constitution, which is not afforded to other racial groups. The words of the Constitution, he noted, indicate a “special relationship” between Congress and Native Americans.
Allen’s words were filled with emotion and summarized decades of broken promises from the federal government leading up to the Supreme Court’s Carcieri decision.
Allen’s sentiments seemed to be directed, at least partially, at the man seated next to him during the hearing: Lawrence Long, chairman of the Conference of Western Attorneys General and attorney general of South Dakota. States not located in the West, including Rhode Island, are a part of the group.
Long testified that the taking of traditional tribal lands into trust by Interior has actually helped to expand his group of concerned state officials. He said that each acquisition obtained on behalf of tribes has two immediate consequences – reducing local tax revenues, and stopping local governments from enforcing zoning rules.
Long also said that gaming on these lands brought into trust – especially on lands located off reservations – has become a major concern since the Indian Gaming Regulatory Act of 1988. Through the course of the hearing, only a few such instances were said to exist.
Long’s group believes Congress should use the Carcieri decision to reflect on the entire process of taking land into trust for tribes, since states and localities, he believes, have suffered.
Allen responded to Long’s testimony, noting that all lands in the country belonged to Native Americans before the U.S. government and private citizens took it – in many cases illegally and without consequence. He also reiterated that tribes have brought countless dollars to states and localities over the years.
Edward Lazarus, a noted Indian policy legal expert, also testified that the Supreme Court’s ruling “undermined a generally settled understanding that a main purpose of the IRA was to provide authority and flexibility for rebuilding a tribal land base that had been reduced by more than 100 million acres during the period when the United States pursued an aggressive policy of breaking up and ‘allotting’ Indian lands, as well as trying to assimilate individual Indians into American society.”
Allen later said that if Congress were to do nothing on the issue, it would open up a “Pandora’s box for lawyers” on a variety of issues relating to treaties, other laws and tribal bonding authority.
During the question and answer portion of the hearing, Sens. Byron Dorgan, D-N.D. and chair of SCIA, as well as Jon Tester, D-Mont., said Congress should pursue a fix to remedy the Supreme Court’s decision.
Dorgan feels the Supreme Court’s decision was wrong. He said he would direct his committee to explore the matter further.
No new hearings have been scheduled as of press time, nor has any Congress member issued legislation relating to Carcieri.