- Indian Reorganization Act
The Indian Reorganization Act,
1934, also known as the Wheeler-Howard Act or informally, the Indian New Deal, was a U.S. federal legislation which secured certain rights to Native Americans, including Alaska Natives. [http://www.infca.org/tribes/IRA.htm Wheeler-Howard Act (Indian Reorganization Act), 1934] These include a reversal of the Dawes Act's privatizationof common holdings of American Indians 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 conditions application of the IRA on a majority vote of the affected Indian nation or tribe within one year of the effective date of the act (25 U.S.C. 478). The IRA was perhaps the most significant initiative of John Collier Sr., Commissioner of the Bureau of Indian Affairs from 1933 to 1945.
The act did not require tribes to adopt a
constitution. However, if the tribe chose to do so, the constitution had to:
#allow the tribal council to employ legal counsel;
#prohibit the tribal council from engaging any land transitions without majority approval of the tribe; and,
#authorize the tribal council to negotiate with the Federal, State, and local governments.
Evidently, some of these restrictions were eliminated by the Native American Technical Corrections Act of 2003. [http://www.theorator.com/bills108/s523.html Native American Technical Corrections Act, 2003]
The act slowed the practice of assigning tribal lands to individual tribal members and reduced the loss, through the practice of
checkerboardland sales to non-members within tribal areas, of native holdings. 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.
1954, the United States Department of Interiorbegan implementing the termination and relocation phases of the Act. Among other effects, termination resulted in the legal dismantling of 61 tribal nations within the United States.
The Supreme Court has been asked repeatedly to address the constitutionality of the IRA by a number of states and will hear a land-into-trust case this fall.when In 1995, the Eighth Circuit declared the IRA unconstitutional. ["South Dakota v United States Dep't of the Interior", 69 F.3d 878, 881-85 (8th Cir. 1995)] The U.S. Department of the Interior sought U.S. Supreme Court review. The DOI then implemented new regulations and asked the U.S. Supreme Court to remand it to the lower courts to reconsider their decision based on the new regulations. The U.S. Supreme Court Granted the petition, vacated the lower court's ruling and remanded the case back to the lower court. Justices Scalia, O'Connor and Thomas dissented and stated in their opinion that " [t] he decision today--to grant, vacate, and remand in light of the Government's changed position--is both unprecedented and inexplicable." and " [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." ["Dep't of the Interior v South Dakota", 519 U.S. 919, 919-20, 136 L. Ed. 2d 205, 117 S. Ct. 286 (1996)] The dissent has no precedential value bearing on the actual legal issues. Seven months after the Supreme Court's decision to grant, vacate, and remand, the DOI removed the land from trust. In 1997 the Tribe submitted an amended application to the Secretary, requesting that the United States take the land into trust on the Tribe's behalf. The Eighth Circuit reexamined the constitutionality issue and affirmed the IRA's constitutionality.
Currently, "Carcieri v Kempthorne" is before the U.S. Supreme Court. Rhode Island officials sued on grounds that the IRA is unconstitutional, but the Supreme Court declined to review this particular question. The Respondents' briefs are currently due by August 11, 2008, and oral arguments have not been scheduled [ [http://www.supremecourtus.gov/docket/07-526.htm "Carcieri v Kempthorne" Docket Calendar] ] . Recently, in "MichGO v Kempthorne", Judge
Janice Rogers Brownof the D.C. Circuit Court of Appeals authored a dissent that struck down key provisions of the Indian Reorganization Act of 1934. Of the three circuit courts to address the IRA's constitutionality, Judge Brown is the only judge to opine that the land-into-trust process violates the U.S. Constitution. [ [http://pacer.cadc.uscourts.gov/common/opinions/200804/07-5092-1113553.pdf "MichGO v Kempthorne"] ] The First, Eighth and Tenth Circuits of the U.S. Court of Appeals have upheld its constitutionality. ["Carcieri v Kempthorne", 497 F.3d 15, 43 (1st Cir. 2007); "South Dakota v United States Dep't of Interior", 423 F.3d 790, 798-99 (8th Cir. 2007); "Shivwits Band of Paiute Indians v. Utah", 428 F.3d 966, 974 (10th Cir. 2005).]
Most recently, in a challenge to the U.S. Department of Interior's decision to take land into trust for the
Oneida Indian Nation, Upstate Citizens for Equality, New York State, Oneida County, Madison County, the town of Verona, the town of Vernon, and others argue that the IRA is unconstitutional. [ [http://www.upstate-citizens.org/USDC-UCE-v-US.htm Actual Complaint filed in court] ]
* [http://www.infca.org/tribes/IRA.htm Text of the Indian Reorganization Act and Amendments]
Notes and references
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