The flawed 2009 SCOTUS decision in Carcieri v. Salazar has created tremendous confusion and instability across Indian country. It has made the effort to rebuild our Tribal Nation homelands much more complicated, costly, and time consuming. Unfortunately, despite great effort by Indian country, Congress has failed to pass a fix for reasons that have nothing to do with the principle of restoring and rebuilding Tribal homelands. Fortunately, for the past 6 years, Indian country has been able to rely on M-Opinion 37029’s measured and consistent interpretation of the phrase “under federal jurisdiction” that supports fee-to-trust land acquisitions for Indian country. The M-Opinion has governed DOI's analysis of whether a Tribal Nation was under federal jurisdiction in 1934, and it has allowed fee-to-trust acquisitions to move forward in spite of the flawed 2009 SCOTUS decision in Carcieri v. Salazar. Its consistent framework has reduced uncertainty and thereby reduced costs associated with fee-to-trust acquisitions, benefiting Indian country and DOI alike. Courts reviewing decisions that rely on the analysis of M-Opinion 37029 have upheld the analysis as a reasonable and valid interpretation of the IRA as interpreted by Carcieri v. Salazar. In its withdrawal of M-Opinion 37029, DOI alleges that it is not consistent with the intent of the IRA. USET SPF disagrees in the strongest possible terms. In giving the Secretary broad authority to acquire land in trust through the IRA in 1934, Congress aimed to end the devastating loss of Tribal land that marked the federal policies of removal, assimilation, and allotment. Successfully fulfilling the IRA’s promise requires DOI to fully implement its IRA authority by favorably viewing land acquisition requests from Tribal Nations, thereby promoting Tribal self-determination and economic development. The restoration of Tribal homelands through trust land acquisitions should be considered part of DOI’s core responsibilities in its relationships with Tribal governments and individual Indians. DOI must work to fulfill this objective, as Congress mandated in enacting the IRA. Late in the evening on March 10th, the Department posted M-Opinion 37055 that withdraws M-Opinion 37029. On Wednesday, the Department posted (1) a March 5, 2020 memo titled “Determining Eligibility under the First Definition of ‘Indian’ in Section 19 of the Indian Reorganization Act of 1934”, and (2) a March 10, 2020 memo titled “Procedure for Determining Eligibility for Land-into-Trust under the First Definition of ‘Indian’ in Section 19 of the Indian Reorganization Act.” These two memos contain 40+ pages of detail that warrant close review and examination that our organization, as well as many others, will be conducting in the coming hours and days.
Well they did it. The Trump administration withdrew a legal opinion that was meant to help tribes restore their homelands in the wake of a disastrous Supreme Court decision. #Carcieri #TribalHomelands https://t.co/DAZvUFdrgl pic.twitter.com/4v6GatwZoN— indianz.com (@indianz) March 10, 2020
The restoration of our Tribal Nation homelands should not be held hostage by the politics of Washington D.C. or the interests of those working against Tribal sovereignty. Any efforts that support these intentions stand in direct contrast to the intent of Congress in passing the 1934 IRA. Through the IRA, as a matter of justice and principle, Congress intended to affirm the equal right of all federally recognized Tribal Nations to rebuild and restore our homelands. The Department is taking the position that these changes will be favorable to the interests of Indian country. We will reserve final judgement until the nuances of the actual effects of the changes on Tribal Nations’ trust acquisition applications are fully understood, but we are deeply alarmed with the manner that the Department chose to move forward with these changes. We will follow up with an additional communication once our review and analysis is complete.
Determining Eligibility for Land-into-Trust in Section 19 of the Indian Reorganization Act
Procedure for Determining Eligibility for Land-Into-Trust under the First Definition of "lndian" in Section l9 of the Indian Reorganization Act
Determining Eligibility for Land-Into-Trust under the First Definition of "Indian" in Section 19 of the Indian Reorganization Act of 1934 [PDF 14.6MB]
Established in 2014, the USET Sovereignty Protection Fund (USET SPF) is a non-profit, inter-Tribal organization representing 30 federally-recognized Tribal Nations from the Northeastern Woodlands to the Everglades and across the Gulf of Mexico. USET SPF is dedicated to promoting, protecting, and advancing the inherent sovereign rights and authorities of Tribal Nations while assisting its membership in dealing effectively with public policy issues and serving the broad needs of Indian people.