During the late nineteenth century, the United States sought to dismantle Native American sovereign nations through a property grab-and-sale known as land allocation.[1] The General Allotment Act, or Dawes Act,[2] divided reservations into individual allotments for tribal members and sold off surplus lands to the highest non-Native American bidder.[3]  By 1934, the United States had sold approximately two-thirds of Native American lands.[4]

Congress sought to nominally mitigate the damage inflicted by allotment by passing the Indian Reorganization Act (“IRA”) in 1934.[5]  Congress designed the IRA to assist federally recognized tribes in establishing and protecting a land base that would allow them to develop an economy to support the health, welfare, and safety of tribal members.[6] One mechanism to establish such a land base was allowing tribes to place land into federal trust.[7]  Between 1934 and 2009, the federal government placed approximately 9 million acres of land into trust for tribes so long as the tribe was federally recognized at the time of the trust application.[8]  In 2009, the Supreme Court decided Carcieri v. Salazar, and in doing so, turned that policy on its head.[9]

Carcieri involved a dispute on a fee-to-trust application from the Narragansett Tribe in Rhode Island.[10]  The tribe applied to the Bureau of Indian Affairs to place a 31-acre parcel into federal trust.[11]  When the Bureau notified the State of Rhode Island of its intent to approve the application, the State appealed, seeking to keep the land under state jurisdiction.[12]  The Supreme Court granted certiorari after the State appealed from unfavorable rulings in the U.S. District Court and First Circuit.[13]  Justice Clarence Thomas delivered the opinion of the Court, holding that federally recognized tribes at the passage of the IRA in 1934 could transfer land into federal trust.[14]

This decision generated outrage and frustration from tribal governments.[15] In one decision, the Supreme Court stripped away the main source of economic development for dozens of tribes.[16]  Even the Bureau of Indian Affairs recognizes that “[a]cquisition of land in trust is essential to tribal self-determination.”[17]  Some members of Congress, have sought to work around Carcieri by passing a clean Carcieri fix.[18] A clean Carcieri fix would amend the language of the IRA to reestablish the Department of Interior’s authority to take land into trust for all tribes.[19]  The most recent attempt to draft and pass such a Carcieri fix was done by Representative Tom Cole, a Republican from Oklahoma.[20]  Rep. Cole is a citizen of the Chickasaw Nation and has co-sponsored several bills focused on Native American issues.[21] His Carcieri fix, outlined in H.R. 375, seeks to not only allow any federally recognized tribe to move land into federal trust, but also to retroactively apply to any lands between 1934 and 2009.[22] This bill passed with bi-partisan support in the House on May 15, 2019.[23] The Senate has not taken any action since the bill was referred to the Senate Committee on Indian Affairs.[24]

For ten years, tribes have struggled to find alternative ways to legitimize their applications and sovereignty.  With legislation pending, now is the time for Senate to act, pass the bill, and send it  to the President.  However, pushback from states seeking to retain parcels of land within their jurisdictions (thus within reach of state taxation), makes such action unlikely to occur during a Presidential election cycle. While the bill languishes, tribes will have to continue to fight and innovate to see recognition and sovereignty.


[1] Ch. 119, 24 Stat. 388 (1887) (codified as amended at 25 U.S.C. §§ 331-34, 339, 341-42, 348-49, 354, 381 (2000)).

[2] Id.

[3] Kerry C. Kelly, Maps of Indian Territory, the Dawes Act, and Will Rogers’ Enrollment Case File, Nat’l Archives, https://www.archives.gov/education/lessons/fed-indian-policy (last visited Oct. 17, 2019).


[5] Ch. 576, 48 Stat. 984 (1934) (codified as amended at 25 U.S.C. §§ 461-79 (2000)).

[6] U.S. National Library of Medicine, Native Voices, 1934: President Franklin Roosevelt signs the Indian Reorganization Act, https://www.nlm.nih.gov/nativevoices/timeline/452.html (last visited Oct. 17, 2019).

[7] Memo from U.S. Secretary to the Department of Interior Ken Salazar, Processing Land-into-Trust Applications for Applications Not Related to Gaming (June 18, 2010), https://www.bia.gov/sites/bia.gov/files/assets/bia/ots/pdf/DOI_Memo_Processing_Land-into-Trust_Applications-Jun18-2010.pdf.

[8] Id.

[9] 555 U.S. 379 (2009).

[10] Id. at 383.

[11] Id. at 385.

[12] Id.

[13] Id.

[14] Id. at 395.

[15] Bryan Newland, Initial Reaction to Carcieri Opinion, Turtle Talk (Feb. 24, 2009), https://turtletalk.blog/2009/02/24/initial-reaction-to-carcieri-opinion/.

[16] Id.

[17] Bureau of Indian Affairs, Fee To Trust, https://www.bia.gov/bia/ots/fee-to-trust (last visited Oct. 17, 2019).

[18] Press Release, U.S. Senate Indian Affairs Committee, Senate Indian Affairs Committee Approves Carcieri “Fix” Bill (Dec. 18, 2009), https://www.indian.senate.gov/news/press-release/senate-indian-affairs-committee-approves-carcieri-fix-bill.

[19] House Committee on Natural Resources, Carcieri Fix, https://naturalresources.house.gov/imo/media/doc/Carcieri%20Fix%20Fact%20Sheet.pdf (last visited Oct. 17, 2019).

[20] Acee Agoyo, Peoples of the United States takes up Carcieri fix, Turtle Talk (Mar. 29, 2019), https://www.indianz.com/News/2019/03/29/house-subcommittee-for-indigenous-people-1.asp.

[21] See generally Nursing Home Care for Native American Veterans Act, H.R. 4532, 116th Cong. § 118 (2019), Bridging Agency Data Gaps and Ensuring Safety for Native American Communities Act, H.R. 4289, 116th Cong. § 118 (2019), and Justice for Native Survivors of Sexual Violence Act, H.R. 3977, 116th Cong. § 118 (2019).

[22] To amend the Act of June 18, 1934, to reaffirm the authority of the Secretary of the Interior to take land into trust for Indian Tribes, and for other purposes, H.R. 375, 116th Cong. § 118 (2019).

[23] Clerk’s Office of the U.S. House of Representatives, Final Vote Results for Roll Call 208 (May 15, 2019), http://clerk.house.gov/evs/2019/roll208.xml.

[24] U.S. Congress, Actions taken on H.R. 375, https://www.congress.gov/bill/116th-congress/house-bill/375/all-actions?overview=closed&q=%7B%22roll-call-vote%22%3A%22all%22%7D (last visited Oct. 17, 2019).