©2017 Montana Land and Water Alliance
The Indian Reorganization Act (IRA) of 1934 is the organizing document under which the CSKT are formed as a tribal government–actually, a corporation. In addition, Energy Keepers, Inc. is organized as a tribal corporation under the IRA for the purposes of purchasing and managing Kerr Dam. Kerr Dam was purchased under Section 17 of the IRA.
Recently the House Natural Resources Committee began oversight hearings on two specific provisions of the IRA, Sections 3 and 5. The Committee and its subcommittees have invited state, county, and local officials to testify on the impacts of the IRA on local communities. Suffice it to say that “it ain’t pretty”.
Section 3 of the IRA authorizes the Secretary of Interior to take lands into trust for tribes, however, applies some protective provisions that consider the surrounding non-Indian community:
The Secretary of the Interior, if he shall find it to be in the public interest, is hereby authorized to restore to tribal ownership the remaining surplus lands of any Indian reservation heretofore opened, or authorized to be opened, to sale, or any other form of disposal by Presidential proclamation, or by any of the public land laws of the United States: Provided, however, that valid rights or claims of any persons to any lands so withdrawn existing on the date of the withdrawal shall not be affected by this Act; Provided further, that this section shall not apply to lands within any reclamation project heretofore authorized in any Indian reservation (Emphasis added)
Notice that Section 3 prohibits the United States acquisition of land within the Flathead Irrigation Project, defined in the statute as “any reclamation project…in any Indian Reservation”. This would apply to any agency of the United States, even the quasi-federal agency Bonneville Power Administration, and would include the Fish and Wildlife Service, and perhaps even the Federal Energy Regulatory Commission (FERC). Under what circumstances can FERC, a federal agency, deny the right to the low cost block of power and the net power revenue belonging to the irrigators in a federal irrigation project?
We believe that this is a protective measure for the non-Indians invited by the United States to purchase surplus lands on the allotted reservation, because the removal of land from a federal irrigation project disrupts water delivery, negatively affects operation and maintenance revenue, and negatively affects agricultural production.
Here is the hearing on Section 3 of the IRA, held May 24, 2017:
Do the impacts of Section 3 as described by county officials in this hearing sound familiar?
We believe that any land associated with the federal Flathead Irrigation Project, including rights of way for storage, are included within the meaning of Section 3.
Section 5 of the IRA has to do with the ownership of any rights or properties purchased by a Tribe. The title to these rights or properties is taken in the name of the United States in trust for the tribe.
The Secretary of the Interior is hereby authorized, in his discretion, to acquire through purchase, relinquishment, gift, exchange, or assignment, any interest in lands, water rights or surface rights to lands, within or without existing reservations, including trust or otherwise restricted allotments whether the allottee be living or deceased, for the purpose of providing land for Indians… Title to any lands or rights acquired pursuant to this Act or the Act of July 28, 1955 (69 Stat. 392), as amended (Added by Public Law 100 581, title II, sec. 214, Nov. 1, 1988) shall be taken in the name of the United States in trust for the Indian tribe or individual Indian for which the land is acquired, and such lands or rights shall be exempt from State and local taxation (Emphasis added)
Notice that Section 5 states that the United States is the owner of all property and rights purchased by a Tribe. We believe this applies to Kerr Dam which is part and parcel of a federal irrigation project and cannot be separated from it. By virtue of the purchase of Kerr Dam by the CSKT, an IRA Tribe, Kerr is now a federal facility.
Here is the House Hearing on Section 5 of the IRA, July 13, 2017 (2 hours)
Did the purchase of Kerr Dam violate Sections 3 and 5 of the Indian Reorganization Act?
The “Off Ramp”–Will Tribes finally Become Self-Determined & Self-Reliant?
Secretary Zinke had this to say on the Indian Reorganization Act:
“We need a discussion on that. As I look at the 1934 Indian Reorganization Act, I think it’s time for a dialogue. What are we going to be 100 years from now? Is there an off-ramp? If I offered today that the tribe would have a choice of leaving the Indian Trust lands and becoming a 501c3 Corporation, another entity, some tribes would take it. I think quite frankly at BIA (the Bureau of Indian Affairs), I’m not sure in many ways we’re value- added. I’m not sure that we’re providing the services in education in a regulatory framework that promotes self-determination. My friend, I’m not sure we are; and we need this dialogue,” he said.
Is this a viable model?
The House hearings, and the other important Federal Register opportunity to provide further comment, signal a close look at Federal Indian policy during 2017 and beyond, beginning with a fundamental act, the IRA.
Importantly, a Federal Register Notice announced an open-ended review period of major natural resource laws which includes the IRA in the Title 25 of the Code of Federal Regulations
The IRA was supposed to lead to Tribal self-governance and self-determination, the cornerstone of Federal Indian policy. Instead of self-governance, it appears that the IRA has become an Individual Retirement Account for Tribal leaders!