Editing Indian Reorganization Act (section)

===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>