#CLARITYActAdvances

What is the CLARITY Act?

The CLARITY Act which stands for Closing Loopholes for Indian Country and Limiting Inconsistent Tribal Yields Act is a piece of proposed federal legislation in the United States. Its primary purpose is to modify the process by which Native American tribes can have their federal recognition restored.

The Core Problem it Seeks to Address

To understand the CLARITY Act you need to understand the concept of acknowledgment often called federal recognition. This is a legal status where the U.S. federal government recognizes a Native American tribe as a sovereign government with a government to government relationship. This status makes a tribe eligible for funding and services from the Bureau of Indian Affairs or BIA and gives it certain sovereign powers.

Currently tribes can seek this recognition through two main avenues. The first is the BIA Process which is a long detailed and often expensive administrative process run by the Office of Federal Acknowledgment or OFA. The second is An Act of Congress where a tribe can lobby Congress to pass a specific law granting them recognition bypassing the BIA process entirely.

The CLARITY Act is a response to the second method specifically to a 2017 U.S. Supreme Court case called Match E Be Nash She Wish Band of Pottawatomi Indians v. Patchak.

The Patchak Case and Its Aftermath

In the Patchak case a Michigan tribe known as the Gun Lake Tribe had its land taken into trust by the federal government after Congress passed a law recognizing the tribe. A nearby landowner named David Patchak sued the government. He argued that the Secretary of the Interior did not have the authority to take the land into trust because the tribe was not recognized under the BIA process at the time of a key land into trust law known as the Indian Reorganization Act.

The Supreme Court ultimately ruled that because the tribe recognition came from an Act of Congress and not the BIA process the law that recognized them did not automatically resolve challenges to the land into trust status. This created what proponents of the CLARITY Act call a loophole. It suggested that tribes recognized by Congress could face different legal challenges regarding their land and sovereignty than tribes recognized through the BIA process.

Key Provisions of the CLARITY Act

The CLARITY Act aims to close this perceived loophole by stating that once Congress passes a law recognizing a tribe that law should be treated as if the tribe had been recognized through the BIA administrative process all along. In essence the bill seeks to do a few things.

First it Deems Acknowledgment by clarifying that when Congress acknowledges a tribe by statute that acknowledgment shall be deemed to have been granted under the BIA existing regulations. Second it has a Retroactive Effect meaning this deeming provision is intended to apply retroactively which would affect existing court cases and legal questions regarding tribes that were recognized by Congress in the past. Third it aims to Provide Certainty. By doing this the goal of the bill is to provide legal certainty for tribes that have been recognized by Congress particularly concerning their ability to have land taken into trust and to exercise their sovereign powers without the shadow of legal challenges based on the origin of their recognition.

Arguments For and Against

Supporters of the CLARITY Act which often include tribes who have already been through the BIA process or who are concerned about legal challenges to tribal lands argue that it restores the finality of Congressional recognition. They also argue it protects tribal sovereignty by removing an avenue for legal challenges and ensures that all federally recognized tribes regardless of how they were recognized are treated equally under the law regarding land into trust.

Opponents of the CLARITY Act which can include some conservative groups and local governments argue that it is a solution in search of a problem as the Patchak case was very specific. They also argue it could be seen as Congress overstepping and interfering with the judicial branch role in interpreting the law. Furthermore they believe it might make it harder for local communities to challenge future land into trust decisions by tribes recognized by Congress.

In summary the CLARITY Act is a technical but significant piece of legislation born from a specific Supreme Court case. It seeks to solidify the power of Congress to recognize tribes and ensure that such recognition carries the full weight and legal certainty of the standard administrative process.