Indian Reorganization Act - Constitutional Challenges

Constitutional Challenges

Since the late 20th century and the rise of Indian activism over sovereignty issues, as well as many tribes' establishment of casino gambling on reservations as a revenue source, the US Supreme Court has been asked repeatedly to address the IRA's constitutionality. The provision of the Act that is controversial is the one that allows the US government to acquire non-Indian land (by voluntary transfer) and convert it to Indian land ("take it into trust"). In so doing, the US government partially removes the land from the jurisdiction of the state, which makes certain activities, such as casino gambling, possible on the land that wouldn't otherwise be. It also makes the land exempt from state property taxes and some other state taxes. Consequently, many people oppose implementation of this part of the Act and, typically represented by state or local governments, they sue to prevent it.

In 1995, South Dakota challenged the authority of the Secretary of Interior, under the IRA, to take 91 acres (370,000 m2) of land into trust on behalf of the Lower Brule Sioux Tribe (based on the Rosebud Indian Reservation), in South Dakota v. United States Dep't of the Interior, 69 F.3d 878, 881-85 (8th Cir. 1995). The Eighth Circuit found Section 5 of the IRA to be unconstitutional, ruling that it violated the non-delegation doctrine and that the Secretary of Interior did not have the authority to take the land into trust.

The US Department of the Interior (DOI) sought U.S. Supreme Court review. But, as DOI was implementing new regulations related to land trusts, the agency asked the Court to remand the case to the lower court, to be reconsidered with the decision to be based on the new regulations. The US Supreme Court granted Interior's petition, vacated the lower court's ruling, and remanded the case back to the lower court.

Justices Scalia, O'Connor and Thomas dissented, stating that "he decision today--to grant, vacate, and remand in light of the Government's changed position--is both unprecedented and inexplicable." They went on, "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." Seven months after the Supreme Court's decision to grant, vacate, and remand, the DOI removed the land in question from trust.

In 1997, the Lower Brulé Sioux submitted an amended trust application to DOI, requesting that the United States take the 91 acres (370,000 m2) of land into trust on the Tribe's behalf. South Dakota challenged this in 2004 in district court, which upheld DOI's authority to take the land in trust. The state appealed to the Eighth Circuit, but when the court reexamined the constitutionality issue, it upheld the constitutionality of Section 5 in agreement with the lower court. The US Supreme Court denied the State's petition for certiorari. Since then, district and circuit courts have rejected non-delegation claims by states. The Supreme Court refused to hear the issue in 2008.

In 2008 (before the US Supreme Court heard the Carcieri case below), in MichGO v Kempthorne, Judge Janice Rogers Brown of the D.C. Circuit Court of Appeals wrote a dissent stating that she would have struck down key provisions of the IRA. Of the three circuit courts to address the IRA's constitutionality, Judge Brown is the only judge to dissent on the IRA's constitutionality. The U.S. Supreme Court did not accept the MichGO case for review, thus keeping the previous precedent in place. The First, Eighth and Tenth Circuits of the U.S. Court of Appeals have upheld the constitutionality of the IRA.

In 2008, Carcieri v Kempthorne was argued before the U.S. Supreme Court; the Court ruled on it in 2009, with the decision called Carcieri v. Salazar. In 1991, the Narragansett Indian tribe bought 31 acres (130,000 m2) of land. They requested that the DOI take it into trust, which the agency did in 1998, thus exempting it from many state laws. The State was concerned that the tribe would open a casino or tax-free business on the land and sued to block the transfer. The state argued that the IRA did not apply because the Narragansett did not receive federal recognition as a tribal nation until 1980, after the 1934 passage of the IRA. The US Supreme Court agreed with the State.

In a challenge to the U.S. DOI's decision to take land into trust for the Oneida Indian Nation in present-day New York state, Upstate Citizens for Equality (UCE), New York State, Oneida County, Madison County, the town of Verona, the town of Vernon, and others argue that the IRA is unconstitutional. Most recently, Judge Kahn dismissed several portions of UCE's complaint, including the failed theory that the IRA is unconstitutional, on the basis of longstanding and settled law on this issue.