Another tribal homelands bill is taking a big step forward in the 115th Congress this week.
is set to pass H.R.1532
the Poarch Band of Creek Indians Land Reaffirmation Act, on Tuesday. Action on the bill represents significant progress for the Poarch Band of Creek Indians
, whose leaders have had to fend off a slew of lawsuits that challenged the status of land already held in trust for the tribe.
H.R.1532, if it becomes law, confirms that the tribe's land in Alabama is indeed in trust. More importantly, it would "prohibit any lawsuits related to the trust land," the Congressional Budget Office said in a January 10 report
Congress took a similar approach with the Gun Lake Trust Land Reaffirmation Act
The 2014 law helped the Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians
, also known as the Gun Lake Tribe, defeat a lawsuit that challenged the status of its trust land in Michigan.
But the debate is far from settled. The U.S. Supreme Court
, through a case known as Patchak v. Zinke
, will determine whether the "reaffirmation" approach is legally sound.
Oral arguments took place on November 7, 2017,
and it looked like a majority of the justices were willing to side with Congress.
"So where is the real beef here?" asked Justice
, who is the newest member of the Supreme Court.
Despite the tongue-in-cheek nature of the question, the ramifications for Indian Country are serious. Though the Poarch Band was able to defeat
prior trust land lawsuits, opponents could always go back to court and threaten the tribe's economic livelihood
"If a court were to decide these lands are not lawfully
held in trust on the grounds the Poarch Band was recognized
after 1934, the lands could lose their trust status, exposing
the tribe to state taxation and civil regulation, which in turn
could lead to the closure of tribal businesses and the
dismantling of facilities," a January 11 report on H.R.1532
The report points out that Congress could address the problem once and for all, without resorting to land reaffirmation bills. How? By passing a fix to a Supreme Court decision already on the books.
In Carcieri v. Salazar
, the justices held that the land-into-trust process
is reserved to tribes that were "under federal jurisdiction" in 1934. The Poarch Band didn't gain formal acknowledgment of its federal status until 1983 so opponents have attempted to exploit the uncertainty with litigation.
A fix, would ensure that all tribes can follow the land-into-trust process but Congress has failed to take action as the 2009 Carcieri
decision approaches its ninth birthday.
Until a fix becomes a political reality, "certain tribes
may seek to have the trust status of their existing lands
legislatively ratified, especially those lands acquired prior
to 2009," the report, which was written by the House Committee on Natural Resources
H.R.1532 is due to pass the House under a suspension of the rules, according to the House majority leader's schedule
The process is typically used for bills that are considered non-controversial.
The chamber passed H.R.1491
the Santa Ynez Band of Chumash Indians Land Affirmation Act, also under a suspension of the rules, last November. The bill, which ratifies a decision to place about 1,400 acres in California in trust for the Santa Ynez Band of Chumash
, has yet to be considered in the Senate
The House also passed three other tribal land bills -- H.R.1306
the Western Oregon Tribal Fairness Act; H.R.597
the Lytton Rancheria Homelands Act; and H.R.1404
the Pascua Yaqui Tribe Land Conveyance Act -- without objections.
H.R.1306, which helps the Cow Creek Band of Umpqua Tribe of
, the Confederated Tribes of
Coos, Lower Umpqua, and Siuslaw Indians
and the Coquille Tribe
affecting their homelands in Oregon, was signed into law
just last week.
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