A witness from wine country backed up Labrador's alternative view of history. Diane Dillon, a supervisor from Napa County in California, argued that the IRA, which became law in 1934, doesn't work in America's "modern economy" because tribes are no longer poor and destitute, in need of federal assistance. "Today, we have tribes that have developed robust economies and investors pay many millions to help other tribal groups get acknowledged and obtain trust land," Dillon testified. "The result has been a steadily increasing amount of conflict and litigation." The sweeping statements, which were repreated in a press release, saw little push-back at the hearing. That's because the lone Indian witness -- Kendra Pinto, a citizen of the Navajo Nation -- was invited to testify about the impacts of oil and gas development on her community in New Mexico, not about the IRA or the land-into-trust process. So with no adequate tribal representation on the panel, Labrador and Dillon got away with remarks about Indian law and policy that would not have survived in other places on Capitol Hill. Just a few hours later, for example, a bipartisan group of lawmakers was promising to work together to respect the federal government's responsibilities, at least when it comes to health care. "This is a treaty obligation," Rep. Tom Cole (R-Oklahoma), who is a citizen of the Chickasaw Nation, said at a budget hearing one building away.
Cole, who is one of just two tribal citizens in Congress, likely would have brought a different perspective to Labrador's committee. Two years ago, he had no trouble rebuking his fellow Republicans for describing the allotment of tribal lands -- which the IRA was written to correct -- as a "humane" policy. "The Dawes Commission was an egregious violation of every treaty that the United States had signed," Cole said at the time, referring to the federal body that stripped tribes of their land after forcing them out of their original territories on the Trail of Tears. "The Indian Reorganization Act was an effort to reverse that awful and tragic mistake." Yet it was clear that Labrador's real target was not the IRA but the Obama administration's interpretation of the law. He accused "unelected" officials at the Department of the Interior of circumventing the U.S. Supreme Court decision in Carcieri v. Salazar. The 2009 ruling stated that the Bureau of Indian Affairs can place land into trust only for those tribes that were "under federal jurisdiction" in 1934. As a result, according to Labrador and adversaries like Dillon, newly recognized tribes can't restore their homelands. What both critics left out was that the court did not define the meaning of the phrase "under federal jurisdiction." And neither has Congress -- lawmakers have failed to address the Carcieri decision despite repeated lobbying efforts by tribes over the last eight years. That's why Interior's top legal official issued an opinion in 2014 -- five long years after Carcieri -- that explained how the department was going to address the "federal jurisdiction" issue raised by the Supreme Court. The analysis was first used to approve a land-into-trust application for the Cowlitz Tribe, whose federal recognition was formalized in 2000.
Opponents claimed the tribe didn't meet the "federal jurisdiction" test but two levels in the federal court system -- representing a total of 4 judges -- disagreed and upheld the BIA's approach. The Supreme Court took a pass on the dispute last month -- a development ignored by Labrador, who also didn't explain the role of the judiciary when he brought up the separation of powers principle. The tribe has since opened a casino that is seen as a benefit to the economy in Cowlitz County, Washington. Labrador is considered one of the more conservative members of Congress. He is the founder of the so-called Freedom Caucus, whose views on issues like federal funding and health care often clash with the Republican party leadership. The group hasn't stated a position on a Congressional fix to Carcieri, one that would address uncertainty and litigation. But critics -- including some Democrats -- have opposed a fix because they want to address other issues like gaming and local community involvement in the land-into-trust process. Tribes have pushed back on those ideas. At the start of the 115th Congress in January, Cole introduced yet two versions of a fix. Both bills have been referred to the House Committee on Natural Resources but face little chance of action there, given the views of prominent members like Labrador. With no clear solution on the horizon, tribes have been approaching Congress on a case-by-case basis. The Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians secured passage of law in 2014 that protects its gaming facility in Michigan from litigation. Unlike the situation involving the Cowlitz Tribe, the Supreme Court has taken notice and has agreed to hear a challenge to the Gun Lake Trust Land Reaffirmation Act. However, the case has been limited to a separation of powers issue -- it's not about the land-into-trust process although questions about the process will likely arise during consideration of Patchak v. Zinke. Oral arguments are expected this fall. House Subcommittee on Oversight and Investigations Notice:
Oversight Hearing Examining Impacts of Federal Natural Resources Laws Gone Astray (May 24, 2017) Department of the Interior Solicitor Opinion:
M-37029: The Meaning of "Under Federal Jurisdiction" for Purposes of the Indian Reorganization Act (March 12, 2014)