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                                                       Calendar No. 515
111th Congress                                                   Report
                                 SENATE
 2d Session                                                     111-247

======================================================================



 
  AMENDING THE ACT OF JUNE 18, 1934, TO REAFFIRM THE AUTHORITY OF THE 
  SECRETARY OF THE INTERIOR TO TAKE LAND INTO TRUST FOR INDIAN TRIBES

                                _______
                                

                 August 5, 2010.--Ordered to be printed

                                _______
                                

    Mr. Dorgan, from the Committee on Indian Affairs, submitted the 
                               following

                              R E P O R T

                         [To accompany S. 1703]

    The Committee on Indian Affairs, to which was referred the 
bill (S. 1703) to amend the Act of June 18, 1934, to reaffirm 
the authority of the Secretary of the Interior to take land 
into trust for Indian tribes, having considered the same, 
reports favorably thereon, and recommends that the bill do pass 
as amended.

                                Purpose

    S. 1703 clarifies the continuing authority of the Secretary 
of the Interior, under the Indian Reorganization Act of 1934, 
to take land into trust for all Indian tribes that are 
federally recognized on the date on which the land is placed 
into trust.

                               Background

    Land holds great meaning to Indian tribes, just as it does 
for other governments. For tribes, land provides a means to 
advance tribal sovereignty and self-determination. Tribes need 
land in trust for a wide range of beneficial purposes. Trust 
land is essential to tribes' ability to protect or promote 
their historic, cultural and religious ties to land where their 
ancestors lived. Trust land is also vital to tribal economic 
development and self-government as tribes provide a wide range 
of governmental services to their members including, running 
schools and health clinics, administering housing, and 
providing court, law enforcement and numerous other key social 
and governmental services. Land taken into trust for Indian 
tribes directly furthers these and other self-determination 
functions.
    The long history of Indian land losses is well known. From 
the very first days of the Republic, Indian tribes have given 
up large areas of land to the United States, which in return 
has assumed the duty of protecting the tribes on those lands 
retained.\1\ But despite the government's trust obligation to 
protect Indian landholdings, tribes continued to suffer 
devastating land losses at the hands of the federal government. 
The federal allotment policy alone resulted in a loss of more 
than 100 million acres of tribal homelands.\2\ The destruction 
of tribal economies, institutions, and communities followed 
directly from the decimation of the tribal land base. The 
history and circumstances of land loss and the economic, 
social, and cultural consequences of that loss, are at the core 
of government's federal trust responsibility toward Indian 
tribes.
---------------------------------------------------------------------------
    \1\See Board of County Comm'rs v. Seber, 318 U.S. 705, 715 (1943).
    \2\To Grant Indians Living Under Federal Tutelage the Freedom to 
Organize for Purposes of Local Self-Government and Economic Enterprise: 
Hearing on S. 2755 Before the Senate Comm. on Indian Affairs, 73rd 
Cong., 2d Sess., 30-31 (1934) (testimony of Commissioner of Indian 
Affairs John Collier).
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    Congress was aware of these problems\3\ and intended to 
reverse these tribal land losses when it enacted the Indian 
Reorganization Act of 1934, 25 U.S.C. 461-479. The Indian 
Reorganization Act (IRA) (also known as the ``Wheeler-Howard 
Act'' for the bill's congressional sponsors or informally as 
``the Indian New Deal'') sought to strengthen tribal 
governments and restore the Indian land base. The sponsors of 
the IRA expressed their intent to ``rehabilitate the Indian's 
economic life and to give him a chance to develop the 
initiative destroyed by a century of oppression and 
paternalism.''\4\ The IRA authorized the Secretary of the 
Interior to take lands into trust for tribes to reverse the 
significant historic losses of tribal homelands. Since the 
enactment of the IRA, approximately five million acres of land 
have been acquired and placed into trust for Indian tribes and 
their members.
---------------------------------------------------------------------------
    \3\These problems were identified in a 1928 report, known as the 
``Meriam Report,'' which was prepared by the Institute for Government 
Research at the direction of the Secretary of the Interior, Hubert 
Work. The Institute undertook a survey of the social and economic 
status of Indians, and found, among other things, that the loss of 
Indian land was among the principal causes of the resulting poverty of 
Indian people. See Institute for Government Research, ``The Problem of 
Indian Administration'' (February 21, 1928.)
    \4\H.R. Rep. No. 1804, 73rd Cong., 2d Sess., at 6 (1934).
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    Congressman Howard of Nebraska, the sponsor of the bill in 
the House of Representatives and Chairman of the House Indian 
Affairs Committee, described the ``staggering'' losses of 
Indian lands.\5\ He explained that the Act would help remedy 
the problem by preventing ``any further loss of Indian lands'' 
and permitting the purchase of additional lands.\6\ Congressman 
Howard reasoned that the restoration of the tribal land base 
was not only a legal but also a moral obligation. ``[T]he land 
was theirs under titles guaranteed by treaties and law; and 
when the government of the United States set up a land policy 
which, in effect, became a forum of legalized misappropriation 
of the Indian estate, the government became morally responsible 
for the damage that has resulted to the Indians from its 
faithless guardianship.'' He further stated that the purpose of 
the IRA was ``to build up Indian land holdings until there is 
sufficient land for all Indians who will beneficially use 
it.''\7\
---------------------------------------------------------------------------
    \5\78 Cong. Rec. 11,727-28 (1934).
    \6\78 Cong. Rec. 11,726-727 (1934) at 11,727; see also 78 Cong. 
Rec. 11,123 (June 12, 1934) (statement of Senator Wheeler, sponsor of 
the bill in the Senate, echoing the remedial goals in relation to 
Indian lands).
    \7\78 Cong. Rec. 11,732 (1934).
---------------------------------------------------------------------------
    Congress understood that a land base was essential for the 
economic advancement and self-support of the Indian communities 
and the preservation of tribal culture. The need to provide 
land for Indians was recognized as an important part of the 
Act\8\ as it would be beneficially used to increase Indian 
self-support.\9\
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    \8\See S. Rep. No. 1080, at 2 (stating that section 5 would ``meet 
the needs of landless Indians and of Indian individuals and tribes 
whose land holdings are insufficient for self-support''); H.R. Rep. No. 
1804, at 6 (noting that the purchase of lands would help ``[t]o make 
many of the now pauperized, landless Indians self-supporting''); 78 
Cong. Rec. 11,730 (statement of Rep. Howard that section 5 would 
``provide land for Indians who have no land or insufficient land, and 
who can use land beneficially'')
    \9\See, e.g., S. Rep. No. 1080.
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    Congress saw the IRA as a means not simply of halting the 
prior federal policies that had so destroyed Indian communities 
and Indian economies but reversing the course that led to those 
losses. The IRA has been recognized as one of the most 
important pieces of Indian legislation in American history. It 
made a change in federal Indian policy intended ``to establish 
machinery whereby Indian tribes would be able to assume a 
greater degree of self-government, both politically and 
economically.''\10\ By the Act, Congress sought to revitalize 
and strengthen the institutions of tribal government,\11\ and 
``rehabilitate the Indian's economic life and to give him a 
chance to develop the initiative destroyed by a century of 
oppression and paternalism'' so that a ``tribe taking advantage 
of the Act might generate substantial revenues for the 
education and the social and economic welfare of its 
people.''\12\ These principles have served as the foundation 
for federal Indian policy in the modern era of tribal self-
determination.\13\
---------------------------------------------------------------------------
    \10\Morton v. Mancari, 417 U.S. 535, 542 (1974).
    \11\See Morton, 417 U.S. at 543, Iowa Mutual Ins. Co. v. LaPlante, 
480 U.S. 9, 14 n.5 (1987); Fisher v. District Court, 424 U.S. 382, 387 
(1976).
    \12\Mescalero Apache Tribe v. Jones, 411 U.S. 145, 151-52 (1973) 
(citations omitted).
    \13\See California v. Cabazon Band of Mission Indians, 480 U.S. 
202, 219 (1987); White Mountain Apache Tribe v. Bracker, 448 U.S. 136, 
143 & n. 10 (1980).
---------------------------------------------------------------------------
    Restoration of land to tribal ownership was central to the 
overall purposes of the IRA. Congress consistently recognized 
that the restoration of tribal land bases by taking land into 
trust was essential to tribal self-determination. As 
Congressman Howard succinctly stated during the House 
consideration of the measure, ``[l]and reform and in [sic] a 
measure home rule for the Indians are the essential and basic 
features of this bill.''\14\
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    \14\78 Cong. Rec. 11,729 (1934).
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    The IRA was signed into law on June 18, 1934. Section 5 of 
the IRA provides for the recovery of the tribal land base and 
is integral to the IRA's overall goals of recovering from the 
loss of land and reestablishing tribal economic, governmental 
and cultural life:

          The Secretary of the Interior is hereby authorized, 
        in his discretion, to acquire, through purchase, 
        relinquishment, gift, exchange, or assignment, any 
        interest in lands, water rights, or surface rights to 
        lands, within or without existing reservations, 
        including trust or otherwise restricted allotments, 
        whether the allottee be living or deceased, for the 
        purpose of providing land for Indians.

        

           *         *         *         *         *
          Title to any lands or rights acquired pursuant to 
        this Act . . . shall be taken in the name of the United 
        States in trust for the Indian tribe or individual 
        Indian for which the land is acquired, and such lands 
        or rights shall be exempt from State and local 
        taxation.\15\
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    \15\25 U.S.C. Sec. 465.

    Of the more than 100 million acres of tribal homelands lost 
through the allotment process alone, only approximately 8 
percent have been restored to trust status since the IRA was 
passed 75 years ago. Still today, a number of federally 
recognized Indian tribes have no land base or insufficient 
lands to support a governing base, or basic community needs 
such as housing, education, or economic development. In 
addition, many tribal land parcels are deeply fractionated, a 
result of allotment policies, which means that far more Indian 
land passes out of trust than gets taken into trust each 
year.\16\
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    \16\G. William Rice, The Indian Reorganization Act, The Declaration 
on the Rights of Indigenous Peoples, and a Proposed Carcieri'Fix': 
Updating the Trust Land Acquisition Process, 45 Idaho L. Rev. 575, 587-
89 (2009).
---------------------------------------------------------------------------

        THE DEPARTMENT OF THE INTERIOR'S LAND INTO TRUST PROCESS

    For the more than 75 years since enactment of the IRA, the 
Department of the Interior understood and construed the Act to 
authorize the Secretary to acquire land in trust for the 
benefit of any tribe that was federally recognized at the time 
of the trust land acquisition. The Interior Department's 
statutory construction of the Act was confirmed when the 
Department, in 1980, promulgated formal regulations to guide 
the Secretary's decision-making process when exercising 
authority to place tribal land into trust pursuant to the 
IRA.\17\ The regulations at 25 C.F.R. Part 151 define the term 
``tribe'' to mean ``any Indian tribe, band, nation, pueblo, 
community, Rancheria, colony, or other group of Indians . . . 
which is recognized by the Secretary as eligible for the 
special programs and services from the Bureau of Indian 
Affairs.''\18\ The term ``individual Indian'' means ``any 
person who is an enrolled member of a tribe,'' any person who 
is a descendant of a tribal member who, in 1934, resided ``on a 
federally recognized Indian reservation,'' and persons ``of 
one-half or more degree Indian blood of a tribe.''\19\
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    \17\Prior to 1980 and after passage of the IRA in 1934, Interior 
used an internal process to decide when and how a tribe could put land 
in trust. Although the 1980 regulations were subject to comment before 
they were finalized, the process as it currently stands closely 
resembles Interior's pre-1980 unpublished guidelines. Padraic I. McCoy, 
The Land Must Hold the People: Native Modes of Territoriality and 
Contemporary Tribal Justifications for Placing Land into Trust Through 
25 C.F.R. Part 151, 27 Am. Indian L. Rev. 421, 453-54 (2003).
    \18\25 C.F.R. Sec. 151.2(b).
    \19\25 C.F.R. Sec. Sec. 151.2(c)(1)-(3).
---------------------------------------------------------------------------
    These regulations govern both on and off-reservation land 
into trust acquisitions. The 151 process is initiated when an 
Indian tribe or an individual Indian submits a written request 
to take land into trust to their local Bureau of Indian Affairs 
(BIA) agency or regional office. The BIA makes several 
determinations following the initial request, including whether 
the acquisition is mandatory or discretionary and whether the 
acquisition is on or off reservation.
    For on-reservation land into trust acquisitions, the 
applicant must submit (1) a map and a legal description of the 
land; (2) a justification of why the land should be placed in 
trust; and (3) information on the present use of the property, 
the intended use of the property, and whether there are any 
improvements on the land. The Regional Office or Agency 
Superintendent makes the final determination of whether to 
approve the on-reservation application. In making its decision, 
the BIA takes into account such factors as the need of the 
individual Indian or tribe, the impact on the state and its 
political subdivisions resulting from removing the land from 
the tax rolls, any jurisdictional issues that may arise, and 
whether the BIA is equipped to carry out its trust 
responsibilities if the land is acquired. For off-reservation 
land acquisitions additional information is required, including 
a business plan if the acquisition is to be used for economic 
development purposes. Off-reservation acquisition decisions are 
made at the BIA's Central Office in Washington, D.C.\20\
---------------------------------------------------------------------------
    \20\In making his determination on off-reservation parcels, the 
Secretary must take into account the criteria for on-reservation 
parcels as well as the location of the land relative to state 
boundaries and the distance of the parcel from the reservation, the 
anticipated economic benefits associated with the proposed use, and the 
comments received from the state and local governments. 25 C.F.R. 
Sec. 151.11.
---------------------------------------------------------------------------
    Once all the relevant information has been provided, the 
BIA sends out notification letters to the state, county, and 
municipal governments with regulatory jurisdiction over the 
land, notifying them of the application and requesting comments 
on the impact if the lands are acquired as trust lands.\21\ 
Specifically, the BIA requests information on the change to the 
local government's regulatory jurisdiction, affect on real 
property taxes, and special assessments.\22\ If, following this 
process, the Secretary decides to take the land into trust, the 
Secretary publishes a notice of the decision in the Federal 
Register with a statement that the Secretary shall ``acquire 
title in the name of the United States no sooner than 30 days 
after notice is published.''\23\
---------------------------------------------------------------------------
    \21\25 C.F.R. Sec. Sec. 151.10, 151.11.
    \22\Id.
    \23\25 CFR Sec. 151.12(b).
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                        Need for the Legislation

    The recent Supreme Court decision, Carcieri v. Salazar,\24\ 
will erode congressional intent of the IRA, and will serve as a 
barrier to meeting the Act's goals of tribal land restoration. 
The Carcieri decision runs contrary to longstanding and settled 
practice of the Department of the Interior regarding trust land 
acquisitions; invites disparate treatment of federally 
recognized tribes contrary to previous Acts of Congress; 
creates uncertainty about the scope of the Secretary's 
authority; and threatens unnecessary and burdensome 
administrative proceedings and litigation for both the United 
States and the tribes on matters that Congress long ago 
intended to resolve. As a result, Senator Dorgan introduced, 
and the Committee approved, S. 1703 to confirm the Secretary of 
the Interior's authority to place land into trust for all 
tribes that are federally recognized on the date the Secretary 
takes the land into trust, and to ratify trust land 
acquisitions already made by the Secretary under the IRA.
---------------------------------------------------------------------------
    \24\129 S. Ct. 1058 (2009).
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                      THE CARCIERI V. SALAZAR CASE

    On February 24, 2009, the Supreme Court issued its decision 
in Carcieri v. Salazar, holding that the Secretary of the 
Interior did not have the authority to take land into trust 
status under the IRA for the Naragansett Indian Tribe (Tribe) 
because the Tribe was not ``under federal jurisdiction'' in 
1934 when the IRA was enacted. The majority opinion was written 
by Justice Thomas. Justice Breyer filed a concurring opinion. 
Justice Souter filed an opinion concurring in part and 
dissenting in part, which was joined by Justice Ginsburg. 
Justice Stevens was the sole dissenter.
    The Carcieri case involved a challenge by the Governor of 
Rhode Island to the Secretary of the Interior's authority to 
take land into trust status for the Narragansett Indian Tribe 
pursuant to the IRA. The Tribe obtained federal recognition in 
1983 through the administrative process within the Department 
of the Interior. This process is set forth through federal 
regulations adopted in 1978.\25\ In acknowledging the Tribe's 
relationship with the federal government, the Assistant 
Secretary--Indian Affairs had to be satisfied that the Tribe 
had existed continuously since first European contact and had a 
documented history since 1614.
---------------------------------------------------------------------------
    \25\25 C.F.R. Sec. 83.
---------------------------------------------------------------------------
    While the Tribe's petition for federal acknowledgement was 
pending before the Interior Department, the Tribe also brought 
a land claim against the State of Rhode Island in the 1970's to 
recover its ancestral land, claiming that the State had 
misappropriated tribal land in violation of federal law. Those 
claims were resolved by a settlement agreement that was 
codified by Congress in 1978. Under the settlement agreement, 
the Tribe received title to 1,800 acres of land in Rhode 
Island, in exchange for relinquishing its past and future 
claims to other lands. Those lands became the Tribe's initial 
reservation, and remained under state jurisdiction.
    In 1991, the Tribe's housing authority purchased 31 acres 
of land adjacent to the Tribe's initial reservation. Soon after 
the purchase, a dispute arose about whether the Tribe's planned 
construction of housing on the 31-acre parcel had to comply 
with local regulations. The Tribe requested that the Secretary 
of the Interior place the land in trust. On March 6, 1998, the 
Interior Department expressed its intent to acquire the land in 
trust. Before the land was placed in trust, Rhode Island 
challenged the Department's decision in a number of 
administrative appeals and then by suit in Federal district 
court. One of the State's arguments was that the phrase ``now 
under federal jurisdiction'' in section 19 of the IRA, 25 
U.S.C. Sec. 479, limited the Secretary's authority to acquire 
land in trust under section 5 of the IRA, 25 U.S.C. Sec. 465, 
to only those Indian tribes that were ``under federal 
jurisdiction'' as of 1934. The Secretary of the Interior 
contended that the IRA applies to all tribes that were 
federally recognized at the time that land was taken into 
trust. The Federal district court held that since the 
Narragansett Tribe is currently recognized and existed at the 
time of the enactment of the IRA, it qualified as an Indian 
tribe' within the meaning of the IRA. The First Circuit Court 
of Appeals held that the term ``now'' was ambiguous as to 
whether it meant at the moment Congress enacted the law or at 
the moment the Secretary invokes the law. Thus, the Circuit 
Court deferred to the Secretary's interpretation of the 
provision of the IRA. The State then sought review by the 
United States Supreme Court.
    On February 24, 2009, the Supreme Court issued its decision 
in Carcieri v. Salazar, reversing the lower courts' rulings and 
holding that the Secretary of the Interior did not have the 
authority to take land into trust under 25 U.S.C. Sec. 465 for 
the Narragansett Tribe, because the Tribe was not ``under 
federal jurisdiction,'' as that term is used in the definition 
of ``Indian'' in 25 U.S.C. Sec.  479. The Court pointed to the 
parties' agreement that the definition of ``Indian'' in 
Sec. 479 determines which tribes may rely on Sec. 465, and 
stated that the case turned on ``whether the Narragansetts are 
members of a `recognized Indian Tribe now under federal 
jurisdiction.'''\26\ The Court then held that ``now'' means 
1934, when the Indian Reorganization Act was enacted, rather 
than the date that the Secretary intended to act to take land 
into trust. It did so notwithstanding the absence of the word 
``now,'' or any other temporal qualifier, in the separate 
definition of ``tribe,'' which also appears in Sec. 479, and 
despite its recognition that Sec. 465 authorizes the Secretary 
to take land into trust for a tribe.\27\ No effort was made by 
the parties to the case to demonstrate that the Narragansett 
were ``under federal jurisdiction'' at the time of the IRA. 
Nevertheless, the Court found that because ``the record 
establishes that the Narragansett Tribe was not under federal 
jurisdiction when the IRA was enacted,'' the Secretary lacked 
authority to take land into trust for the Narragansett Indian 
Tribe.
---------------------------------------------------------------------------
    \26\Carcieri, 129 S.Ct. at 1064.
    \27\See Id. at 1067.
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        UNEQUAL TREATMENT OF FEDERALLY RECOGNIZED INDIAN TRIBES

    The Carcieri decision may have the detrimental effect of 
creating two classes of Indian tribes--those who were ``under 
federal jurisdiction'' as of the date of enactment of the 
Indian Reorganization Act in 1934 for whom land may be taken 
into trust, and those who were not. This disparity would 
directly conflict with prior Acts of Congress, including the 
Act of November 2, 1994,\28\ the 1994 Amendments to the IRA, 
and federal policy supporting self-determination for all 
federally recognized Indian tribes.\29\
---------------------------------------------------------------------------
    \28\25 U.S.C. Sec. Sec. 479a, 479a-1.
    \29\25 U.S.C. Sec. 450b(e).
---------------------------------------------------------------------------
    Congress affirmed its intent that all federally recognized 
tribes be equally treated under the law in 1994 when Congress 
passed the ``Federally Recognized Indian Tribe List Act of 
1994'' (Tribal List Act)\30\ which requires the Secretary to 
publish an annual list of all federally recognized tribes 
which, Congress explained, ``establishes tribal status for all 
federal purposes.''\31\ Also in 1994, Congress amended the IRA 
to prohibit federal agencies from taking action that 
``classifies, enhances, or diminishes the privileges and 
immunities available to the Indian tribe relative to other 
federally recognized tribes by virtue of their status as Indian 
tribes.'' 25 U.S.C. Sec. 476(f). By these statutes, Congress 
instructed that there be no second class tribes. These Acts are 
direct statements from Congress that federal agencies do not 
have the right to discriminate based on the history of how a 
federally recognized tribe reached that status.\32\
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    \30\Pub. L. 103-454 (1994), codified at 25 U.S.C. 479a-1.
    \31\H.R. Rep. No. 103-781 at 3 (1994) as reprinted in 1994 USCCAN 
3768.
    \32\Id.
---------------------------------------------------------------------------
    The Carcieri case, however, threatens to create two classes 
of tribes contrary to settled law and express Congressional 
intent. The Committee believes there is no logical policy 
reason for treating tribes differently based on date of federal 
recognition.

    HIGH COSTS OF LITIGATION TO THE UNITED STATES AND INDIAN TRIBES

    The Carcieri decision may provoke a large number of 
lawsuits regarding pending and already acquired lands and the 
issue of whether tribes were ``under federal jurisdiction'' in 
1934. Such litigation would be burdensome and cause delay in 
the government's exercise of its general trust responsibility 
to Indian tribes, and its specific obligations under the IRA. 
These delays will in turn undermine the broad remedial policies 
of the IRA and the current federal policy of tribal self-
determination. S. 1703 seeks to prevent litigation over trust 
land acquisitions that might otherwise arise from the Carcieri 
decision.
    The term ``under federal jurisdiction'' is not defined in 
federal law, regulation, or in the legislative history leading 
up to the enactment of the Indian Reorganization Act. Even 
prior to enactment of the IRA, the United States had no formal 
term for acknowledging the existence of an Indian tribe. The 
federal government used the terms ``in amity with the 
government'' and ``having existing treaties with the 
government'' up until the late 1800's. It was not until then 
that the terms ``recognized'' and ``recognition'' were used in 
the jurisdictional sense. As a result, Indian Tribes, the 
Department of the Interior, and Federal courts reviewing future 
land into trust acquisitions have little insight as to whether 
a tribe that was not formally recognized in 1934 would be 
considered ``under federal jurisdiction.'' In addition, the 
United States did not have an accurate list of federally 
recognized Indian tribes until after 1994, when Congress 
enacted the Federally Recognized Tribal List Act.\33\ Thus, 
even the initial determination of whether a tribe was formally 
recognized in 1934 will be a difficult question to determine. 
This significant uncertainty will flood federal court rooms 
with lawsuits for decades and cost both tribes and the United 
States significant resources.
---------------------------------------------------------------------------
    \33\25 U.S.C. sec. 479a-479a-1.
---------------------------------------------------------------------------
    The concurring opinions of Justices Breyer and Souter 
acknowledged this fact. They noted that even though a tribe was 
not formally recognized by the federal government in 1934, that 
tribe may not be precluded from having been ``under federal 
jurisdiction'' at that time. In his concurring opinion Justice 
Breyer draws attention to the fact that many tribes were left 
off of the list of tribes covered by the IRA reportedly 
compiled by the Department of the Interior. Other tribes were 
later acknowledged to have been under federal jurisdiction at 
an earlier time, even though circumstances prevented the 
government from knowing that at the time. Justice Souter also 
made this point stating that ``nothing in the majority opinion 
forecloses the possibility that the two concepts, recognition 
and jurisdiction, may be given separate content.''
    Another concern generated by the Carcieri decision relates 
to parcels already held in trust by the federal government. 
Although challenges to the validity of title to Indian trust 
are barred by existing law and the Quiet Title Act, 28 U.S.C. 
2409a, and should ultimately be dismissed, illegitimate, 
unsuccessful legal challenges can be brought. Such cases would 
impose significant costs on the United States and tribal 
governments. S. 1703 is intended to prevent such challenges to 
land already held in trust by ratifying the Secretary's action 
in taking such lands into trust.

                          Legislative History

    On May 21, 2009, the Committee held a hearing to examine 
Executive Branch authority to acquire trust lands for Indian 
tribes. On September 24, 2009, Senator Dorgan introduced S. 
1703, along with Senators Akaka, Baucus, Bingaman, Franken, 
Inouye, Tester and Udall. Senators Landrieu, Stabenow and 
LeMieux were later added as co-sponsors.
    Two companion bills were introduced in the House of 
Representatives. On October 1, 2009, Congressman Cole 
introduced H.R. 3697 and on October 7, 2009, Congressman Kildee 
introduced H.R. 3742. The House Committee on Natural Resources 
held a legislative hearing on these two bills on November 4, 
2009.

                       Summary of the Amendments

    Senator Dorgan offered an amendment in the nature of a 
substitute. The amendment in the nature of a substitute amends 
the original bill by removing the revisions to the definition 
of the term ``Indian tribe'' and by adding language to ensure 
that nothing in the Act or the amendments to the Act would 
affect the application of any other federal law, other than the 
Indian Reorganization Act.
    Senator Murkowski offered a second degree amendment to 
ensure that the language of S. 1703 will not affect the 
validity of any existing Department of Interior regulations 
concerning the taking of land into trust in Alaska.
    Senator Coburn offered an amendment to require a study be 
prepared by the Department of the Interior and submitted to 
Congress identifying the impact of the Carcieri decision on 
Indian tribes and tribal lands. The offered amendment would 
have required the study to be completed prior to S. 1703 
becoming effective. A second degree amendment was agreed upon 
which would require the study to be submitted within one year 
of enactment of S. 1703. The Committee intends that the study 
shall not limit the Secretary's authority to take land into 
trust for any tribe that is federally recognized on the date 
the Secretary takes the land into trust, or cause any delay 
with regard to any trust land acquisition authorized by law.

                      Section-by-Section Analysis


Section 1. Modification of definition

    Subsection 1(a) This section modifies a portion of the 
definition of ``Indian'' in 25 U.S.C. 479 from, ``any 
recognized Indian tribe now under Federal jurisdiction'' to 
``any federally recognized Indian tribe.'' It further 
retroactively applies this amended definition from June 18, 
1934.
    Subsection 1(b) makes the amendments in subsection (a) 
retroactive as if included in the Indian Reorganization Act as 
of date of enactment of that Act on June 18, 1934.
    Subsection 1(c) clarifies that the legislation does not 
affect any law other than the Indian Reorganization Act or 
limit the authority of the Secretary of the Interior under any 
federal law or regulation other than the Indian Reorganization 
Act.
    Subsection 1(d) requires the Secretary of the Interior to 
conduct, and submit to Congress, a study describing the effects 
of the Carcieri decision on Indian tribes and tribal land; and 
including a list of each affected Indian tribe and parcel of 
tribal land. The study would be required to be submitted within 
one year of enactment of S. 1703.

                        Committee Recommendation

    On December 17, 2009, the Senate Committee on Indian 
Affairs convened a business meeting to consider S. 1703 and 
other measures. The amendment in the nature of a substitute, 
along with the second degree amendments by Senators Murkowski 
and Senator Coburn, were approved by the Committee by voice 
vote. The Committee ordered the bill, as amended, be reported 
to the full Senate with the recommendation that the bill, as 
amended, do pass.

                   Cost and Budgetary Considerations

    The following cost estimate, as provided by the 
Congressional Budget Office, dated March 26, 2010, was prepared 
for S. 1703:

S. 1703--A bill to amend the act of June 18, 1934, to reaffirm the 
        authority of the Secretary of the Interior to take land into 
        trust for Indian tribes

    S. 1703 would amend the Indian Reorganization Act to allow 
the Secretary of the Interior to take land into trust for all 
federally recognized Indian tribes. Based on information from 
the Department of the Interior (DOI), CBO estimates that 
implementing the legislation would have no significant cost. 
Enacting S. 1703 would not affect direct spending or revenues; 
therefore, pay-as-you-go procedures would apply.
    Under current law, as established by the Supreme Court 
decision in Carcieri v. Salazar (2009), the Secretary of the 
Interior's authority to take land into trust for Indian tribes 
is limited to those tribes that were federally recognized prior 
to the enactment of the Indian Reorganization Act of 1934. 
Under the bill, the Secretary would have the authority to take 
land into trust for all federally recognized Indian tribes, 
regardless of when those tribes became federally recognized. 
Because current law requires DOI personnel to determine which 
tribes would be eligible to have lands taken into trust, CBO 
expects that implementing S. 1703 could reduce the workload of 
DOI staff. CBO expects that any savings due to the reduced 
workload would be used by the agency to carry out other 
activities related to holding land in trust. Thus, we expect 
that implementing the legislation would have a negligible 
effect on the federal budget.
    S. 1703 would expand an existing intergovernmental mandate, 
as defined in the Unfunded Mandates Reform Act (UMRA), that 
exempts from state and local taxes land taken into trust for 
tribal individuals or tribal governments. While state and local 
governments may have the ability to collect taxes on some lands 
as a result of the Carcieri v. Salazar decision, CBO has no 
data indicating that those governments currently levy or have 
plans to levy taxes on that land. Therefore, CBO estimates that 
enacting S. 1703 would not result in a loss of revenue for 
state or local governments.
    S. 1703 also would impose intergovernmental and private-
sector mandates as defined in UMRA by limiting the ability of 
public and private entities or individuals to file claims in 
court related to lands taken into trust for Indian tribes 
federally recognized after 1934. The cost of the mandate would 
be the forgone value of awards and settlements of such claims. 
CBO expects that the annual number of claims involving such 
land and the value of the awards and settlements in those 
claims would be small. Consequently, the cost of the mandate to 
public and private entities would fall below the annual 
thresholds established in UMRA for intergovernmental and 
private-sector mandates ($70 million and $141 million in 2010 
respectively, adjusted annually for inflation).
    The CBO staff contacts for this estimate are Jeff LaFave 
(for federal costs), Melissa Merrell (for state, local, and 
tribal costs), and Marin Randall (for the private-sector 
impact). The estimate was approved by Theresa Gullo, Deputy 
Assistant Director for Budget Analysis.

               Regulatory and Paperwork Impact Statement

    Paragraph 11(b) of rule XXVI of the Standing Rules of the 
Senate requires each report accompanying a bill to evaluate the 
regulatory and paperwork impact that would be incurred in 
carrying out the bill. The Committee believes that S. 1703 will 
have a minimal impact on regulatory or paperwork requirements.

                        Executive Communications

    The Committee received the following letters from Secretary 
Salazar, Department of the Interior in support of S. 1703:


                        Changes in Existing Law

    In accordance with subsection 12 of rule XXVI of the 
Standing Rules of the Senate, changes in existing law made by 
the bill S. 1703, as ordered reported, are shown as follows 
(existing law proposed to be omitted is enclosed in black 
brackets, new matter printed in italic):

                       25 U.S.C. 479. Definitions

    Effective beginning on June 18, 1934, the term [The term] 
``Indian'' as used in this Act shall include all persons of 
Indian descent who are members of any federally recognized 
Indian tribe [any recognized Indian tribe now under Federal 
jurisdiction], and all persons who are descendants of such 
members who were, on June 1, 1934, residing within the present 
boundaries of any Indian reservation, and shall further include 
all other persons of one-half or more Indian blood. For the 
purposes of this Act, Eskimos and other aboriginal peoples of 
Alaska shall be considered Indians. The term ``tribe'' wherever 
used in this Act shall be construed to refer to any Indian 
tribe, organized band, pueblo, or the Indians residing on one 
reservation. The words ``adult Indians'' wherever used in this 
Act shall be construed to refer to Indians who have attained 
the age of twenty-one years.