Editing Indian Reorganization Act (section)

==History==

===Background===
[[File:John Collier and Chiefs.png|thumb|250px|Collier in a 1934 meeting with South Dakota Blackfoot Indian chiefs to discuss the Wheeler-Howard Act.]]

The process of allotment started with the [[Dawes Act|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 could not pay local taxes on the lands they were newly responsible for. The IRA provided a mechanism for the recovery of land that had been previously 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.<ref>T. H. Watkins, ''Righteous Pilgrim: The Life and Times of Harold L. Ickes, 1874-1952'' (1990), pp 530-48.</ref>

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 to "assure that the Indian forests will be permanently productive and will yield continuous revenues to the tribes."<ref>{{cite book|author1=Shaunnagh Dorsett|author2=Lee Godden|title=A Guide to Overseas Precedents of Relevance to Native Title|url=https://books.google.com/books?id=sngSc7rT5oAC&pg=PA228|year=1998|publisher=Aboriginal Studies Press|page=228|isbn=9780855753375}}</ref>

===Implementation and results===
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. However, much land at that time was still unallotted or 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 [[Checkerboarding (land)|checkerboard]] of tribal or individual trust and fee land, which remains the case today.<ref>{{Cite web |date=2015-07-01 |title=Indian Lands Decisions {{!}} U.S. Department of the Interior |url=https://www.doi.gov/ocl/hearings/112/IndianLandsDecisions_091312 |access-date=2024-05-26 |website=www.doi.gov |language=en}}</ref>

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 federal courts and government actions, more than two million acres (8,000&nbsp;km<sup>2</sup>) of land were returned to various tribes in the first 20 years after passage.<ref>{{Cite web |title="self determination without termination" |url=https://www.whitehousehistory.org/self-determination-without-termination |access-date=2024-05-27 |website=WHHA (en-US) |language=en}}</ref><ref>{{Cite web |title=Indian Reorganization Act of June 18 |url=https://www.webpages.uidaho.edu/~rfrey/329indian_reorganization.htm |access-date=2024-05-27 |website=www.webpages.uidaho.edu}}</ref>

In 1954, the [[United States Department of the Interior]] (DOI) began implementing the [[Indian termination policy|termination]] and relocation phases of the Act, which had been added by Congress. These provisions resulted from the continuing interest of some members of Congress in having American Indians assimilate into 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.<ref>Canby, William (2004). ''American Indian Law'', p. 24. {{ISBN|0-314-14640-7}}</ref> Of the "Dismantled Tribes" 46 regained their legal status as indigenous communities.{{citation needed|date=June 2016}}

===Constitutional challenges===
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 [[Supreme Court of the United States|U.S. Supreme Court]] has been repeatedly asked to address the IRA's constitutionality.  A controversial provision of the Act allows the U.S. government to acquire non-Indian land (by voluntary transfer) and convert it to Indian land ("take it into trust").  In doing so, the U.S. government partially removes the land from the state's jurisdiction, allowing activities like casino gambling on the land for the first time. It also exempts the land from state property and other state taxes.  Consequently, many state or local governments opposed the IRA and filed lawsuits challenging its constitutionality.{{Citation needed|date=March 2024}}

In 1995, South Dakota challenged the authority of the [[United States Secretary of the Interior|Interior Secretary]], under the IRA, to take {{convert|91|acre|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 [[nondelegation doctrine]] and that the Secretary of Interior did not have the authority to take the land into trust.<ref name=doj>[https://www.justice.gov/enrd/4522.htm ''South Dakota v. Dept. of Interior'' (1995)], Department of Justice</ref>

The U.S. Department of the Interior (DOI) sought a 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 for reconsideration with the decision based on the new regulations. The U.S. Supreme Court granted the DOI's petition, vacated the lower court's ruling, and remanded the case back to the lower court.<ref name=doj/>

Justices Antonin Scalia, Sandra Day O'Connor, and Clarence 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."<ref>''Dep't of the Interior v South Dakota'', 519 U.S. 919, 919-20, 136 L. Ed. 2d 205, 117 S. Ct. 286 (1996)</ref> Seven months after the Supreme Court's decision to grant, vacate, and remand, the DOI removed the land in question from trust.<ref name=doj/>

In 1997, the Lower Brulé Sioux submitted an amended trust application to the DOI, requesting that the United States take the {{convert|91|acre|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 U.S. Supreme Court denied the State's petition for ''certiorari''. Since then, district and circuit courts have rejected claims of non-delegation by states. The Supreme Court refused to hear the issue in 2008.<ref name=doj/>

In 2008 (before the U.S. 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.<ref>''MichGO v Kempthorne'', 525 F.3d 23 (D.C. Cir. 2008)</ref> 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.<ref>''Carcieri v Kempthorne'', 497 F.3d 15, 43 (1st Cir. 2007), overruled as ''Carcieri v. Salazar'' (U.S. Supreme Court);  ''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).</ref>

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]]''.<ref>555 U.S. 379 (Feb. 24, 2009)</ref> In 1991, the [[Narragansett Indian]] tribe bought {{convert|31|acre|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."<ref>''Carcieri'' ("[i]n 1934, the Narragansett Indian Tribe ... was neither federally recognized nor under the jurisdiction of the federal government.")</ref>  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. Some historians disagree that the action was illegal because, although not sanctioned by Congress, it was "desired" by the tribe members. The tribe did not receive federal recognition until 1983, after the 1934 passage of the IRA.<ref>{{Cite journal |last=Nowlin |first=Bryan J. |date=2005–2006 |title=Conflicts in Sovereignty: The Narragansett Tribe in Rhode Island |url=https://cooperative-individualism.org/nowlin-bryan_conflicts-in-sovereignty-the-narragansett-tribe-2005-2006.pdf |journal=American Indian Law Review |volume=30 |issue=1 |pages=151–152, 159 |doi=10.2307/20070749 |jstor=20070749 |via=School of Cooperative Individualism}}</ref> The U.S. Supreme Court agreed with the State.<ref>{{Cite journal |date=Summer–Fall 2012 |title=Judicial Termination: The Carcieri Crisis |url=https://narf.org/nill/documents/nlr/nlr37-2.pdf |journal=Native American Rights Fund Legal Review |volume=37 |issue=2 |pages=1 |via=Narf.org}}</ref>

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 (state)|New York]], [[Upstate Citizens for Equality]] (UCE), New York, [[Oneida County, New York|Oneida County]], [[Madison County, New York|Madison County]], the town of [[Verona, New York|Verona]], the town of [[Vernon, New York|Vernon]], and others argued that the IRA is unconstitutional.<ref>{{Cite web |url=http://www.upstate-citizens.org/USDC-UCE-v-US.htm |title=Actual Complaint filed in court |access-date=2008-06-23 |archive-url=https://web.archive.org/web/20130606124345/http://www.upstate-citizens.org/USDC-UCE-v-US.htm |archive-date=2013-06-06 |url-status=dead }}</ref>  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.<ref>[https://archive.today/20130205075716/http://www.uticaod.com/news/x1224398048/Another-ruling-supports-Oneidas-trust-land-push "Judge dismisses citizen-group's claims"], ''Utica OD''</ref>  The U.S. Court of Appeals for the Second Circuit affirmed the dismissal.<ref>''Upstate Citizens for Equality v United States'',  841 F.3d 556  (2d Cir. 2016, No. 15-1688).</ref>

=== Approval by tribes ===

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,<ref>Terry Anderson, Sovereign Nations or Reservations: An Economic History of American Indians. Pacific Research Institute for Public Policy 1995, p. 143</ref> 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.<ref>T. H. Watkins, ''Righteous Pilgrim: The Life and Times of Harold L. Ickes, 1874-1952'' (1990) p 541</ref><ref>[https://indiancountrymedianetwork.com/history/events/franklin-delano-roosevelt-a-new-deal-for-indians/ Indian Country Today August 9. 2016 reports 174 approved and 78 disapproved]</ref>  The largest tribe, the [[Navajo Nation|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, the chief promoter John Collier, and the entire Indian New Deal.<ref>Donald A. Grinde Jr, "Navajo Opposition to the Indian New Deal." ''Integrated Education'' (1981) 19#3-6  pp: 79-87.</ref> 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, "[h]e became an object of 'burning hatred' among the very people whose problems so preoccupied him."<ref>Brian W. Dippie, ''The Vanishing American: White Attitudes and U.S. Indian Policy'' (1991) pp 333-36, quote p 335</ref>