Indian Reorganization Act

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The Indian Reorganization Act (IRA) of 1934 represented a shift in U.S. Indian policy away from forced acculturation and assimilation. In 1928 the government-sponsored Meriam Report had documented problems of poverty, ill health, and despair on many reservations and recommended reforms in Bureau of Indian Affairs administration, including ending allotment and the phasing out of boarding schools. In 1933 the new administration of Franklin D. Roosevelt named John Collier, a former New York City social worker, to be commissioner of Indian affairs. Disillusioned with the materialistic and individualistic nature of industrial society, Collier proposed an Indian New Deal that would help preserve Native cultures and provide tribes with greater powers of self-government.

The IRA was the center of Collier's reform agenda. The act repudiated the Dawes General Allotment Act, barred further allotment, and set aside funds to consolidate and restore tribal landholdings. The IRA also provided for job training and vocational education and stipulated that Indians could gain employment in the BIA without recourse to civil service regulations. Finally, the act also allowed tribes to establish business councils with limited powers of home rule to enable them to develop reservation resources. A provision in Collier's original proposal to establish a special court of Indian affairs was rejected by Congress. Tribes were given the option of accepting or rejecting the IRA by referendum.

Despite Collier's rhetoric of self-determination, tribes felt pressured to accept the IRA just as they had felt pressed to accept previous government policies. Boiler-plate BIA home rule charters showed little sensitivity to the diversity of Native life, and attempted to impose a one-size-fits-all solution to Indian problems. IRA referendums and majority rule tribal councils also ignored the consensus-driven traditions that persisted in many communities. The IRA attracted opposition from advocates of both assimilation and traditionalism, both inside and outside Indian communities. Ultimately, 174 tribes voted to accept the IRA and 78 tribes, including the Crow, Navajo, and Seneca, rejected it.

Despite its flaws and limitations, the IRA did represent a new recognition of Indian rights and culture. Although many of Collier's policies were altered in subsequent decades, both as a result of government-sponsored programs to terminate federal services to Indians and as a result of indigenous demands for greater sovereignty, the IRA and IRA-created governments remain influential in shaping U.S. Indian policy.

Bibliography

Biolsi, Thomas. Organizing the Lakota: The Political Economy of the New Deal on the Pine Ridge and Rosebud Reservations. Tucson: University of Arizona Press, 1992.

Deloria, Vine, Jr., and Clifford M. Lytle. The Nations Within: The Past and Future of American Indian Sovereignty. New York: Pantheon, 1984.

Kelly, Lawrence C. The Assault on Assimilation: John Collier and the Origins of Indian Policy Reform. Albuquerque: University of New Mexico Press, 1983.

Taylor, Graham D. The New Deal and American Indian Tribalism: The Administration of the Indian Reorganization Act, 1934–1945. Lincoln: University of Nebraska Press, 1980.

When Congress adopted the Indian Reorganization Act of 1934 (P.L. 73-383), in many respects it intended to allow Native Americans to resurrect their culture and traditions lost to government expansion and encroachment years earlier. The act replaced the Indian General Allotment Act of 1887, known as the "Dawes Act," which broke up tribal lands and allotted them to individual members of tribes; traditionally the tribes held the land on reservations in a communal capacity. The Dawes Act also opened up surplus lands to non–American Indians. As a result of the Dawes Act, Native American lands totaling 138 million acres in 1887 had fallen to 48 million acres by 1934.

These losses virtually destroyed traditional tribal government on the reservations. In essence, the federal government replaced tribal councils and courts that had once given the tribes autonomy with its own legal structures.

In the early 1920s the secretary of the interior authorized the Institute of Government Research to conduct a survey of the social and economic status of Native Americans. One study conducted by the Institute, the Meriam Report, uncovered the destructive impact of the earlier federal policy of allotting to individual tribe members plots of tribal land. This policy, it found, resulted in extreme poverty and a substantial loss of tribal land due to sale to white settlers. As a result, the United States Senate, some members of which were skeptical about these conclusions, launched a thorough investigation, including field hearings on reservations. The Senate ultimately reached the same conclusion as the Meriam Report.

With the election of Franklin D. Roosevelt in 1932, John Collier, a staunch supporter of the Meriam Report, became Indian commissioner. He immediately began to work on legislation that incorporated the Meriam Report and several other ideas for the advancement of the Native American population proposed by members of tribal delegations. Although it was defeated, this bill led the way for the Indian Reorganization Act of 1934.

A New Era

Also known as the Wheeler-Howard Act, the Indian Reorganization Act of 1934 terminated the Dawes Act's allotment system, extended limits on the sale of American Indian lands, and authorized the secretary of the interior to purchase additional lands or proclaim new reservations for Native American people. In addition, it provided definitions for "Indians" and "tribes" (through subsequent amendments, these terms now include Alaskans and Hawaiians), extended to tribes the right to form corporations, established a credit system for Native Americans, granted limited tribal sovereignty, and provided Native Americans with educational opportunities and funds for trade, vocational, elementary, and secondary schools.

Certain features of the act, however, tempered its benefits. The requirement that various actions of the tribal government needed the approval of the secretary of the interior limited the tribe's autonomy. Moreover, American Indian autonomy and success were also limited by the effects of previous laws. For example, earlier laws had consolidated several independent tribes on reservations, and thus former enemies were living and working together in a situation that led to much social and cultural unrest.

Courts have interpreted the term "Indians" to include all people of Native American descent who are members or descendants of any recognized American Indian tribe under federal jurisdiction and are residing within the boundaries of any Native American reservation. The word "tribe" refers to any organized band, pueblo, or Native American people residing on one reservation, including any group that meets the definition of "Indians" under the act. Finally, the federal government need not recognize American Indian people in order for them to be considered a tribe.

Despite contrary policies enacted before 1934, this act has been construed in light of present federal policy, which is to strengthen tribal self-government. Part of Congress's intent was to help Native Americans achieve economic parity with white people, while not becoming dependent on state governments. The goal of the act, however, is to give greater independence to local tribes, not individual members.

The law did not retroactively change the individual allotments given out under the earlier Dawes Act. This is important because there are crucial differences between allotted and tribal lands. Allotted lands are grazing and agricultural lands, while tribal lands are the boundaries of the reservation. Moreover, allotted lands are not under tribal jurisdiction as are tribal lands. For example, if a crime is committed on tribal land, tribal courts would have the power to adjudicate the criminal case, but if the crime was on allotted land, it is under state court jurisdiction. With regard to ordinary civil cases, like contract or taxation disputes, tribes have jurisdiction over not only Native Americans but non–American Indians found on their reservations. They may tax the activities of non-tribal members who have agreements with the tribe through commercial dealing or other similar arrangements.

The act has been expanded since 1934 by amendments adding new territories and greater flexibility in the act's application.

Bibliography

Casey, James A. Sovereignty by Sufferance: The Illusion of Indian Tribal Sovereignty, 79 Cornell Law Review 404, 413 (1994).

Cohen, Felix S. Handbook of Federal Indian Law. Charlottesville, VA: Michie, Bobbs-Merrill, 1982.

Deloria, Vine, Jr., and Clifford M. Lytle. American Indians, American Justice. Austin: University of Texas Press, 1983.

Taylor, Graham D. The New Deal and American Indian Tribalism: The Administration of the Indian Reorganization Act, 1934–45. Lincoln: University of Nebraska Press, 1980.

The Indian Reorganization Act of April 22, 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.^[1] These include a reversal of the Dawes Act's privatization of 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:

1. allow the tribal council to employ legal counsel;
2. prohibit the tribal council from engaging any land transitions without majority approval of the tribe; and,
3. 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.^[2]

The act slowed the practice of assigning tribal lands to individual tribal members and reduced the loss, through the practice of checkerboarding land 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.

In 1954, the United States Department of Interior began 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.

Constitutional challenges

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 in November 2008.^[3] In 1995, the Eighth Circuit declared the IRA unconstitutional.^[4] 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."^[5] 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.

In 2008, Carcieri v Kempthorne went 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. In a victory for Gov. Donald L. Carcieri, the Supreme Court ruled that the federal government cannot place in trust 31 acres owned by the Narragansett Indian tribe. The tribe bought the land in 1991 and the Department of Interior agreed to take it into trust, exempting it from many state laws, in 1998. The state went to court believing that the tribe would open a casino or tax-free business on the land. The Court found that the tribe could not remove its land from state control because it was not federally recognized until after the Indian Reorganization Act of 1934. Recently, in MichGO v Kempthorne, Judge Janice Rogers Brown of the D.C. Circuit Court of Appeals authored a dissent that — if it was the majority opinion — would have 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.^[6] The First, Eighth and Tenth Circuits of the U.S. Court of Appeals have upheld its constitutionality.^[7]

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.^[8]

Notes and references

1. ^ Indian Reorganization Act, Encyclopaedia Britannica
2. ^ Native American Technical Corrections Act, 2003, The Orator
3. ^ Associated Press Supreme Court hears case over tribal land, msnbc.com
4. ^ South Dakota v United States Dep't of the Interior, 69 F.3d 878, 881-85 (8th Cir. 1995)
5. ^ Dep't of the Interior v South Dakota, 519 U.S. 919, 919-20, 136 L. Ed. 2d 205, 117 S. Ct. 286 (1996)
6. ^ United States Court of Appeals for the District of Columbia Circuit MichGO v Kempthorne
7. ^ 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).
8. ^ Actual Complaint filed in court

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