Indian Reorganization Act

Collier in a 1934 meeting with South Dakota Blackfoot Indian chiefs to discuss the Wheeler-Howard Act.

At the time the Act passed, it was United States policy to eliminate Indian reservations, dividing the communal territory and allotting 160-acre plots to individual heads of households, to be owned in severalty. Before allotment, reservation territory was not owned in the usual European-American sense, but was reserved for the benefit of entire Indian tribes. The communal benefits were apportioned to tribe members according to tribal law and custom. Generally, Indians held the land in a communal fashion. Non-Indians were not allowed to own land on reservations, a fact which limited the dollar value of the land, since there was a smaller market capable of buying it.

The process of allotment started with the General Allotment Act of 1887. By 1934, two thirds of Indian land had converted to traditional private ownership (i.e. it was owned in fee simple). Most of that had been sold by Indian allottees, often because they had no means to pay local taxes on the lands, for which they were newly responsible. The IRA provided a mechanism for the recovery of land that had been sold—including land that had been sold to tribal Indians. They would lose individual property under the law.

John Collier was appointed Commissioner of the Indian Bureau (it is now called the Bureau of Indian Affairs, BIA) in April 1933 by President Franklin Delano Roosevelt. He had the full support of his boss, Secretary of the Interior Harold L. Ickes, who was also an expert on Indian issues.[4]

The federal government held land in trust for many tribes. Numerous claims cases had been presented to Congress because of failures in the government's management of such lands. There were particular grievances and claims due to the government's failure to provide for sustainable forestry. The Indian Claims Act of 1946 included a requirement that the Interior Department manage Indian forest resources "on the principle of sustained-yield management." Representative Edgar Howard of Nebraska, co-sponsor of the Act and Chairman of the House Committee on Indian Affairs, explained that the purpose of the provision was "to assure a proper and permanent management of the Indian Forest" under modern sustained-yield methods so as to "assure that the Indian forests will be permanently productive and will yield continuous revenues to the tribes."[5]

Relocation group of Hopi families into former Japanese American barrack homes (1945), Poston, Arizona.

The act slowed the practice of allotting communal tribal lands to individual tribal members. It did not restore to Indians land that had already been patented to individuals, but much land at the time was still unallotted or was allotted to an individual but still held in trust for that individual by the U.S. government. Because the Act did not disturb existing private ownership of Indian reservation lands, it left reservations as a checkerboard of tribal or individual trust and fee land, which remains the case today.

However, the Act also allowed the U.S. to purchase some of the fee land and restore it to tribal trust status. Due to the Act and other actions of federal courts and the government, more than two million acres (8,000 km²) of land were returned to various tribes in the first 20 years after passage.

In 1954, the United States Department of the Interior (DOI) began implementing the termination and relocation phases of the Act, which had been added by Congress. These provisions were the result of the continuing interest by some members of Congress in having American Indians assimilate to the majority society. Among other effects, termination resulted in the legal dismantling of 61 tribal nations within the United States and ending their recognized relationships with the federal government. This also ended the eligibility of the tribal nations and their members for various government programs to assist American Indians.[6] Of the "Dismantled Tribes" 46 regained their legal status as indigenous communities.

Since the late 20th century and the rise of Indian activism over sovereignty issues, as well as many tribes' establishment of casino gambling on reservations as a revenue source, the US Supreme Court has been repeatedly asked to address the IRA's constitutionality. The provision of the Act that is controversial is the one that allows the US government to acquire non-Indian land (by voluntary transfer) and convert it to Indian land ("take it into trust"). In so doing, the US government partially removes the land from the jurisdiction of the state, which makes certain activities, such as casino gambling, possible on the land for the first time. It also makes the land exempt from state property taxes and some other state taxes. Consequently, many state or local governments opposed the IRA and sued on the grounds of constitutionality.

In 1995, South Dakota challenged the authority of the Interior Secretary, under the IRA, to take 91 acres (370,000 m²) of land into trust on behalf of the Lower Brule Sioux Tribe (based on the Lower Brule Indian Reservation), in South Dakota v. United States Dep't of the Interior, 69 F.3d 878, 881-85 (8th Cir. 1995). The Eighth Circuit Court of Appeals found Section 5 of the IRA to be unconstitutional, ruling that it violated the non-delegation doctrine and that the Secretary of Interior did not have the authority to take the land into trust.[7]

The US Department of the Interior (DOI) sought U.S. Supreme Court review. But, as DOI was implementing new regulations related to land trusts, the agency asked the Court to remand the case to the lower court, to be reconsidered with the decision to be based on the new regulations. The US Supreme Court granted Interior's petition, vacated the lower court's ruling, and remanded the case back to the lower court.[7]

Justices Scalia, O'Connor and Thomas dissented, stating that "[t]he decision today—to grant, vacate, and remand in light of the Government's changed position—is both unprecedented and inexplicable." They went on, "[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."[8] Seven months after the Supreme Court's decision to grant, vacate, and remand, the DOI removed the land in question from trust.[7]

In 1997, the Lower Brulé Sioux submitted an amended trust application to DOI, requesting that the United States take the 91 acres (370,000 m²) of land into trust on the Tribe's behalf. South Dakota challenged this in 2004 in district court, which upheld DOI's authority to take the land in trust. The state appealed to the Eighth Circuit, but when the court reexamined the constitutionality issue, it upheld the constitutionality of Section 5 in agreement with the lower court. The US Supreme Court denied the State's petition for certiorari. Since then, district and circuit courts have rejected non-delegation claims by states. The Supreme Court refused to hear the issue in 2008.[7]

In 2008 (before the US Supreme Court heard the Carcieri case below), in MichGO v Kempthorne, Judge Janice Rogers Brown of the D.C. Circuit Court of Appeals wrote a dissent stating that she would have struck down key provisions of the IRA. Of the three circuit courts to address the IRA's constitutionality, Judge Brown is the only judge to dissent on the IRA's constitutionality. The majority opinion upheld its constitutionality.[9] The U.S. Supreme Court did not accept the MichGO case for review, thus keeping the previous precedent in place. Additionally, the First, Eighth, and Tenth Circuits of the U.S. Court of Appeals have upheld the constitutionality of the IRA.[10]

In 2008, Carcieri v Kempthorne was argued before the U.S. Supreme Court; the Court ruled on it in 2009, with the decision called Carcieri v. Salazar.[11] In 1991, the Narragansett Indian tribe bought 31 acres (130,000 m²) of land. They requested that the DOI take it into trust, which the agency did in 1998, thus exempting it from many state laws. The State was concerned that the tribe would open a casino or tax-free business on the land and sued to block the transfer. The state argued that the IRA did not apply because the Narragansett was not "now under federal jurisdiction" as of 1934, as distinguished from "federally recognized."[12] In fact, the Narragansett had been placed under Rhode Island guardianship since 1709. In 1880, the tribe was illegally pressured into relinquishing its tribal authority to Rhode Island. The tribe did not receive federal recognition until 1983, after the 1934 passage of the IRA. The US Supreme Court agreed with the State.

In a challenge to the U.S. DOI's decision to take land into trust for the Oneida Indian Nation in present-day New York, Upstate Citizens for Equality (UCE), New York, Oneida County, Madison County, the town of Verona, the town of Vernon, and others argued that the IRA is unconstitutional.[13] Judge Kahn dismissed UCE's complaint, including the failed theory that the IRA is unconstitutional, on the basis of longstanding and settled law on this issue.[14] The US Court of Appeals for the Second Circuit affirmed the dismissal.[15]

Section 18 of the IRA required that members of the affected Indian nation or tribe vote on whether to accept it within one year of the effective date of the act (25 U.S.C. 478), and had to approve it by a majority. There was confusion about who should be allowed to vote on creating new governments, as many non-Indians lived on reservations and many Indians owned no land there, and also over the effect of abstentions. Under the voting rules, abstentions were counted as yes votes,[16] but in Oglala Lakota culture, for example, abstention had traditionally equaled a no vote. The resulting confusion caused disputes on many reservations about the results. When the final results were in, 172 tribes had accepted the act, and 75 had rejected it.[17][18] The largest tribe, the Navajo, had been badly hurt by the federal Navajo Livestock Reduction Program, which took away half their livestock and jailed dissenters. They strongly opposed the act, John Collier the chief promoter, and the entire Indian New Deal.[19] Historian Brian Dippie notes that the Indian Rights Association denounced Collier as a 'dictator' and accused him of a "near reign of terror" on the Navajo reservation. Dippie adds that, "He became an object of 'burning hatred' among the very people whose problems so preoccupied him."[20]

• Deloria, Vine, ed. The Indian Reorganization Act: Congresses and Bills (University of Oklahoma Press, 2002)