Proposed Legislation Would Protect Tribes Recognized After 1934

By Isaac White

Amidst a legislative push to fortify tribal land rights, H.R. 1208 emerges as a foundational piece in the evolving narrative of tribal sovereignty in the United States. Introduced by U.S. Rep. Tom Cole (R-Okla.), this bill seeks to amend the Indian Reorganization Act of 1934, extending its protections to include all federally recognized tribes, regardless of their recognition date. This move aims to rectify historical oversights and provide a uniform framework for tribal land trusts.

In this broader legislative context, H.R. 6180, known as the "Poarch Band of Creek Indians Lands Act," is a complementary effort. Introduced by U.S. Rep. Jerry Carl (R-Ala.), this bill directly addresses the anomalies arising from the Poarch Band’s recognition after the original enactment of the Indian Reorganization Act. By reaffirming the federal trust status of their lands, H.R. 6180 aims to prevent future legal disputes and solidify the tribe's sovereignty over their ancestral lands, echoing the protective intent of H.R. 1208.

The Poarch Band of Creek Indians, the sole federally recognized tribe in Alabama since 1984, holds a unique position. Their recognition date, well after the enactment of the 1934 Indian Reorganization Act, has placed them in a precarious position regarding land rights. This timing has led to significant challenges for the tribe, particularly in securing federal protections that tribes recognized earlier automatically received under the original provisions of the IRA.

The introduction of H.R. 6180 is not just about the Poarch Band of Creek Indians. It's about setting a precedent that could assist other tribes recognized post-1934. By reaffirming the IRA's applicability to the Poarch Band, this legislation solidifies their claim to lands held in trust. More importantly, it ensures their lands are permanently protected under federal law, preventing future legal disputes arising from their late recognition. This bill supports the Poarch Band and paves the way for a more inclusive approach to tribal land rights nationwide.

The implications of H.R. 1208 are far-reaching. Extending the protective measures of the IRA to all recognized tribes would level the playing field, offering every tribe the same opportunities for securing their lands against unauthorized use or claims. This uniformity in legal status is not merely correcting historical records; it's about ensuring equitable treatment and justice for tribes marginalized by the existing legal framework.

Furthermore, the enactment of H.R. 1208 would bolster the sovereignty of these tribes, empowering them to manage and develop their lands without the threat of external encroachment or litigation. This could lead to enhanced economic development within tribal lands, providing tribes the autonomy to pursue projects that respect their cultural values and financial goals.

For tribes like the Poarch Band of Creek Indians, who face specific legal challenges due to their late recognition, the passage of both bills would provide great security. While H.R. 6180 addresses the immediate needs of the Poarch Band, ensuring their land is held in trust as federal law intended, H.R. 1208 would safeguard these provisions into the future, ensuring that the tribe and others in similar situations will not need to revisit these battles in courts.

The 2009 Supreme Court ruling in Carcieri v. Salazar created significant hurdles for tribes recognized after 1934, impacting their ability to have lands taken into trust. The Court held that "now under Federal jurisdiction" in the Indian Reorganization Act refers only to tribes recognized under federal jurisdiction in 1934. This decision has left tribes recognized later, like the Poarch Band of Creek Indians, facing legal uncertainties and challenges regarding their land rights.

For tribes like the Poarch Band, Carcieri means that their ability to have lands taken into trust is constantly being questioned. This has led to legal battles and a lack of security in their territorial claims, hampered their efforts to develop their lands and exercise complete sovereignty.

These complementary bills would nullify the effects of the Carcieri decision. Upon passage of the bills, all tribes can benefit from the IRA’s provisions for land trusts.

These bills represent a concerted legislative effort to restore the Indian Reorganization Act's intended protections for all tribes, removing the legal ambiguities introduced by Carcieri. By reaffirming and expanding the IRA's scope, H.R. 1208 and H.R. 6180 offer a path forward for tribes like the Poarch Band, ensuring that their land rights are upheld and that they can manage and develop their lands without fear of legal challenges.

This legislative push marks a significant step towards rectifying the historical inequities faced by tribes recognized after 1934, reinforcing the federal commitment to tribal sovereignty and self-determination.

Rep. Cole released the following statement following his words to The House Subcommittee on Indian and Insular Affairs:

“As a result of the Indian Removal Act, many Tribes were forcibly removed from their land and relocated to unknown areas that provided them no opportunity to prosper. However, trust land, which is often used by Tribal communities to produce energy, provide essential government services, grow crops, and build schools, housing, and health centers, does offer Tribes the ability to expand economic development and provide for their communities,” said Congressman Cole.

“Unfortunately, the Supreme Court’s Carcieri v. Salazar decision uprooted seventy years of precedent and turned the entire notion of Tribal sovereignty on its head when it ruled that the Indian Reorganization Act questioned the authority for the Secretary of the Interior to take land into trust because the Court interpreted the statute only applying to the Tribes under Federal recognition when the law was enacted in 1934. This decision created two different classes of Indian tribes: those that can have land in trust and those that cannot,” said Congressman Cole.

“This two-class system is truly detrimental to so many Native communities, as it makes it harder for them to manage and expand their territory, as well as puts millions of dollars’ worth of trust land in legal limbo,” said Congressman Cole. “My legislation, H.R. 1208, will correct this egregious wrongdoing, and restore the sovereign rights of all federally recognized tribes to put land into trust. We must continue to move this bill through the legislative process in order to protect Tribal interests, as well as avoid costly and protracted litigation, and I thank the Committee on Natural Resources for holding this important hearing today.”