Congress Considers Effects of Supreme Court Decision on Tribal Land Annexation
TRIBES
The Day
Katie Koch
Boston University Washington News Service
4/1/09
WASHINGTON—A recent U.S. Supreme Court decision that could have major implications for Southeastern Connecticut’s Indian tribes has prompted Congress to launch an investigation into the annexation of tribal lands—and could result in a law overturning the decision.
In a Feb. 24 ruling, the court determined that the U.S. Department of Interior cannot annex land for Indian tribes that were federally recognized after 1934. While the original decision applied only to Rhode Island’s Narragansett Tribe, it also would prevent tribes such as the Mashantucket Pequots, recognized in 1983, and the Mohegans, recognized in 1994, from annexing more land in the future.
The House Natural Resources Committee held a hearing Wednesday to consider whether Congress should modify the existing law and effectively overturn the high court’s decision.
The effects of the court’s decision are still unclear, according to committee chairman. Nick Rahall, D-W.Va.
Despite the confusion still surrounding the decision, Rahall said, “there is one thing that we are certain of: This decision may result in many frivolous lawsuits being filed to challenge the status of virtually every tribe.”
At the oversight hearing on the ruling, a panel of experts warned the committee—and a packed house of tribal representatives from around the country—that a change in the status of tribal land could affect money for schools, hospitals and businesses on tribal lands.
Challenges to the status of a tribe’s land could also make it hard for tribes to secure their current or future loans, according to the testimony of Michael J. Anderson, former deputy assistant Interior secretary for Indian affairs and now a lawyer representing several tribes.
That predicament has already arisen for the Mohegans, who are in talks to build a gambling casino near La Center, Wash., with Washington’s Cowlitz Tribe, whose application to create a 152-acre land trust has not yet been approved by the Bureau of Indian Affairs.
But many congressmen and speakers at the hearing emphasized that the annexation issue was about more than gaming.
Allowing the Supreme Court decision to stand would effectively create two classes of tribes, said Colette Routel, a visiting professor at the University of Michigan Law School and former tribal-issues attorney. She told the committee that newly recognized and still-unrecognized tribes would be even further disadvantaged.
“Often these tribes are the hardest hit,” Routel said. “There’s no reason to further that injustice by now deciding that they’re going to be permanent second-class citizens.”
Since the decision was announced, tribes in Connecticut have stressed that although they will not be affected by the ruling, they were discouraged by the potential setbacks it could create for other tribes seeking federal recognition or annexation.
“We support congressional action to reverse this decision and recommend an amendment to the Indian Reorganization Act to clarify that the benefits of the [act] are available to all federally recognized tribes,” Lori Potter, a spokeswoman for the Mashantucket Pequot Tribal Nation, said in an interview.
One potential complication of the decision, Anderson said, is that prisoners who had committed crimes on tribal land could appeal their convictions if the status of the land changed.
“Clever criminal attorneys around the country would look at this and mount challenges,” Anderson said.
Underscoring the confusing and sometimes arbitrary nature of tribal recognition, much of the debate Wednesday focused on the Supreme Court’s interpretation of the meaning of a single word in the Indian Reorganization Act of 1934. The court decided that in the law’s language—“any recognized Indian tribe now under federal jurisdiction”—the word “now” indicated that only tribes recognized by 1934 would be eligible to have land placed in trust by the federal government.
“When Congress uses undefined terms in a statute, Congress intends to mean the common dictionary meaning,” said Donald Mitchell, a Native American legal affairs expert, who testified.
“One little word, a three-letter word—now—has upset the whole basis of 75 years of all that has been done. You’re saying that isn’t just a bunch of baloney?” asked Del. Eni Faleomavaega, D-American Samoa.
“I’m saying, as a lawyer, that words have consequences,” Mitchell responded.
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