[Senate Hearing 112-710]
[From the U.S. Government Publishing Office]
S. Hrg. 112-710
ADDRESSING THE COSTLY ADMINISTRATIVE
BURDENS AND NEGATIVE IMPACTS OF THE CARCIERI AND PATCHAK DECISIONS
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HEARING
before the
COMMITTEE ON INDIAN AFFAIRS
UNITED STATES SENATE
ONE HUNDRED TWELFTH CONGRESS
SECOND SESSION
__________
SEPTEMBER 13, 2012
__________
Printed for the use of the Committee on Indian Affairs
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78-573 WASHINGTON : 2013
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COMMITTEE ON INDIAN AFFAIRS
DANIEL K. AKAKA, Hawaii, Chairman
JOHN BARRASSO, Wyoming, Vice Chairman
DANIEL K. INOUYE, Hawaii JOHN McCAIN, Arizona
KENT CONRAD, North Dakota LISA MURKOWSKI, Alaska
TIM JOHNSON, South Dakota JOHN HOEVEN, North Dakota
MARIA CANTWELL, Washington MIKE CRAPO, Idaho
JON TESTER, Montana MIKE JOHANNS, Nebraska
TOM UDALL, New Mexico
AL FRANKEN, Minnesota
Loretta A. Tuell, Majority Staff Director and Chief Counsel
David A. Mullon Jr., Minority Staff Director and Chief Counsel
C O N T E N T S
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Page
Hearing held on September 13, 2012............................... 1
Statement of Senator Akaka....................................... 1
Statement of Senator Barrasso.................................... 2
Statement of Senator Udall....................................... 2
Witnesses
Echohawk, John, Executive Director, Native American Rights Fund.. 13
Prepared statement........................................... 15
Keel, Hon. Jefferson, President, National Congress of American
Indians........................................................ 10
Prepared statement........................................... 11
Laverdure, Donald ``Del'`, Acting Assistant Secretary, Indian
Affairs, U.S. Department of the Interior....................... 3
Prepared statement........................................... 5
Routel, Colette, Associate Professor, William Mitchell College of
Law............................................................ 22
Prepared statement........................................... 24
Appendix
McGowan, Mike, President, California State Association of
Counties (CSAC), prepared statement............................ 31
ADDRESSING THE COSTLY ADMINISTRATIVE BURDENS AND NEGATIVE IMPACTS OF
THE CARCIERI AND PATCHAK DECISIONS
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THURSDAY, SEPTEMBER 13, 2012
U.S. Senate,
Committee on Indian Affairs,
Washington, DC.
The Committee met, pursuant to notice, at 2:55 p.m. in room
628, Dirksen Senate Office Building, Hon. Daniel K. Akaka,
Chairman of the Committee, presiding.
OPENING STATEMENT OF HON. DANIEL K. AKAKA,
U.S. SENATOR FROM HAWAII
The Chairman. Thank you very much for being so patient. We
will move on here.
The Committee will come to order. Aloha again, and welcome
to this Committee and the Committee's oversight hearing on
Addressing the Costly Administrative Burdens and Negative
Impacts of the Carcieri and Patchak Decisions.
Throughout my term as Chairman of this Committee, I made it
clear that one of my top priorities is passing a clean, a clean
Carcieri fix this session. The Committee has held numerous
hearings on the impact the Carcieri decision has had on Tribes,
local communities and the Federal Government since the Supreme
Court issued its decision in February of 2009.
As you know, immediately after following the Carcieri
decision, Tribes across the Country expressed concerns that the
decision would have a ripple effect on Tribal governments.
Sadly, these predictions are coming true. The Carcieri decision
has not only impacted a Tribe's ability to take land into
trust, but it has also impacted many other areas of Tribal
life.
In almost every hearing, we have heard about the negative
impacts of the Carcieri decision and how I feel, it has been
staggering. The land into trust applications now take longer
and face additional scrutiny, diverting personnel and monetary
resources from the Federal Government. We have great concerns
regarding public safety, threats to law and order, loss of job
opportunities for Tribal members and members of the local
community as well, and long administrative delays in basic
services such as housing, education, and elder centers.
All of these impacts have now been compounded by the
Supreme Court's recent decision in the Patchak case. Although
we have every reason to believe the Tribe will ultimately
prevail on the merits at the lower court, the Supreme Court has
once again turned settled Indian law on its head. Now
individual citizens can bring suit on parcels of land that have
already been taken into trust by the Secretary of Interior.
I appreciate the witnesses today who have agreed to be with
us. I also encourage any interested parties to submit written
testimony for the record. The hearing record will remain open
for two weeks from today.
Now I would like to turn to my colleagues for any opening
remarks and ask our Vice Chairman, Senator Barrasso.
STATEMENT OF HON. JOHN BARRASSO,
U.S. SENATOR FROM WYOMING
Senator Barrasso. Thank you, Mr. Chairman. Thank you so
very much for holding this important hearing on the impacts of
the Supreme Court decisions in Carcieri and Patchak.
I want to thank you, Mr. Chairman, for your continued
leadership and hard work on this important as well as urgent
issue. We have two panels of witnesses today, so I will keep
this brief.
I realize the impacts of the Carcieri decision in Indian
Country, I know it very well, we have discussed it many times
in past Committee hearings. We have heard how the Carcieri case
has affected Indian Country. Since that time, the Supreme Court
issued the Patchak decision, which may complicate matters even
further.
So I look forward to hearing from our witnesses about what
these two decisions mean for Indian Country. I welcome them and
thank them for their testimony.
Thank you, Mr. Chairman.
The Chairman. Thank you very much, Senator Barrasso.
Senator Udall.
STATEMENT OF HON. TOM UDALL,
U.S. SENATOR FROM NEW MEXICO
Senator Udall. Thank you, Chairman Akaka. I will be very
brief also.
I want to first thank you for this oversight. This is a
continuing series, I think, of oversight hearings on this
subject, which are very important. As we all know, the Carcieri
and Patchak decisions have disrupted the plans and efforts of
Tribal governments across the Nation and have great potential
for limiting economic development and preservation of historic
lands throughout Indian Country.
Justifiably, these decisions have raised serious concerns
in both Native communities and Congress as questions of
litigation and limits to Federal recognition have reverberated
in almost every Native American community. Senator Akaka has
taken the lead to push forward a legislative fix to the
Carcieri decision.
I applaud Chairman Akaka on his quick action in this
Congress to introduce a bill to make a simple, yet vital, fix
to the Indian Reorganization Act that would reverse the
Carcieri v. Salazar decision. I am a strong supporter of this
bill, and I am committed to working with Senator Akaka to get a
legislative fix through the Senate. It is time to chart a
course for passage of this bill. It is time to engage and
educate our colleagues not on this Committee. And it is time to
dispel the continued uncertainty and litigation resulting from
the Carcieri decision.
Thank you, and I look forward to hearing from the
witnesses. I may not be able to hear all of them, but look
forward to hearing from them. Thank you.
The Chairman. Thank you very much, Senator Udall.
I would like to now invite our first panel to the witness
table. Serving on our first panel is Mr. Donald ``Del'`
Laverdure, Acting Assistant Secretary, Indian Affairs, U.S.
Department of the Interior in Washington, D.C. Mr. Laverdure,
please proceed with your testimony.
STATEMENT OF DONALD ``DEL'` LAVERDURE, ACTING
ASSISTANT SECRETARY, INDIAN AFFAIRS, U.S. DEPARTMENT OF THE
INTERIOR
Mr. Laverdure. Good afternoon, everyone, Mr. Chairman, Mr.
Vice Chair, Senator Udall, for the opportunity today to
testify. My name is Del Laverdure, and I am the Acting
Assistant Secretary for Indian Affairs at the Department of
Interior.
I am here to address and testify today about the heavy
burden and negative impact of two recent U.S. Supreme Court
decisions on Indian Country, the Carcieri and Patchak
decisions. First, a brief backdrop is necessary to place these
negative decisions in context. In 1887, Congress passed the
General Allotment Act, which resulted in massive losses of
Tribal homelands. As a result, Indian homelands were diminished
from 130 million acres in 1887 to 49 million acres in 1933.
In 1934, a substantial policy shift occurred. Congress
enacted the Indian Reorganization Act to accomplish three
objectives: stop the devastating policy of allotment and
assimilation; reverse the negative impact of allotment
policies; and finally, to secure for all Indian Tribes a land
base in which to engage in economic development and self-
determination.
Almost four decades later, in 1972, Congress enacted the
Quiet Title Act, in part, to ensure that Federal title to
Indian trust lands was protected from uncertainty. This
Administration has worked to implement the policy goals
Congress has advanced for eight decades by protecting and
restoring Tribal homelands and advancing the full spectrum of
Tribal self-determination.
Acquisition of Indian trust for the benefit of Indian
Tribes is absolutely essential to self-determination and has
been consistently reaffirmed by Congress for 80 years,
including, for example, the Indian Self-Determination and
Education Assistance Act, the Indian Economic Development Act,
the Claims Settlement Act and most recently the HEARTH Act.
Both the Carcieri and Patchak decisions undermine the primary
goals of Congress in enacting the IRA and the subsequent
Federal statutes. These court decisions cast a dark cloud of
uncertainty on the Secretary's authority to acquire land in
trust for Tribes, and ultimately discourage the productive use
and investment in Tribal trust land itself.
The Carcieri decision has led to a more burdensome and
uncertain fee to trust process. The Department must now examine
whether a Tribe seeking to have land acquired in trust under
the IRA was under Federal jurisdiction in 1934. Because of the
historical and fact-intensive nature of this inquiry, it is
time-consuming and costly for both Tribes and the Department.
The Carcieri analysis requires the Department to examine two
additional questions, beyond the fee to trust regulations and
beyond the fee to trust checklist, which is very onerous.
First, whether there was departmental action or a series of
actions before 1934 that established or reflected Federal
obligations, duties or authority with respect to the applicant
Tribe.
Second, whether the Tribe's jurisdictional status remained
intact in 1934. Overall, it has made the Department's
consideration of fee to trust applications more complex,
costly, time-consuming and uncertain. The Department is
currently engaged in litigation regarding how it interprets
Carcieri. Both the Department and Tribes must expend
considerable resources to show that a Tribe's history is
consistent with the IRA and the Carcieri decision. Then, they
must defend that analysis in costly litigation that takes years
to complete.
Now, the scope of the challenge has been increased by the
U.S. Supreme Court. The recent Patchak decision invites more
lawsuits to undermine trust acquisitions for up to six years
after the land has already been taken into trust by the Federal
Government on behalf of Tribal nations.
Before the Patchak decision, the Secretary's decision to
place land into trust only could be challenged prior to the
completion of the trust acquisition. The Department adopted
regulations governing the trust acquisition process, which
ensured that interested parties had an opportunity to seek
traditional review and created finality once the trust
acquisition was complete.
Following the Patchak decision, the Tribes, neighboring
communities and investors and the Department will be forced to
wait for six years or more to achieve that same finality.
Certainty of title is necessary to meet the goals of Congress
on promoting self-determination and economic development on
Tribal homelands. Without that certainty, Tribes will face
greater difficulty in providing housing and basic services for
their citizens, as well as economic development. It also
creates confusion regarding public safety over the land in
question, among many other jurisdictional issues.
Once a trust acquisition is finalized, Tribes in the United
States should be able to depend on the trust status of that
land. Tribes must have confidence that their lands will not,
like the allotment era, be taken out of trust. The Secretary's
authority to restore homelands for all Indian Tribes, and
certainty concerning the status of those lands, touch the core
of our trust responsibility. A system where some Tribes cannot
enjoy the same rights and privileges available to others is
simply unacceptable.
A sponsor of the IRA, Congressman Howard, once stated
``When the government of the United States set up a land policy
which in effect became a form of legalized misappropriations of
the Indian state. The government became morally responsible for
the damage that has resulted to the Indians from its faithless
guardianship.'`
Accordingly, this Administration strongly supports
legislation to clarify and reaffirm the Secretary's authority
to fulfill his obligations under the IRA for all federally-
recognized Tribes. This conclude my statement, and I would be
happy to answer any questions.
[The prepared statement of Mr. Laverdure follows:]
Prepared Statement of Donald ``Del'` Laverdure, Acting Assistant
Secretary, Indian Affairs, U.S. Department of the Interior
I. Introduction
Chairman Akaka, Vice-Chairman Barrasso, and Members of the
Committee, my name is Del Laverdure and I am the Acting Assistant
Secretary--Indian Affairs at the Department of the Interior
(Department). Thank you for the opportunity to testify about the heavy
burden and negative impact of two recent United States Supreme Court
decisions on the Department and on Indian country. These decisions are
Carcieri v. Salazar \1\ and Match-E-Be-Nash-She-Wish Band of
Pottawatomi Indians v. Patchak. \2\
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\1\ 555 U.S. 379 (2009).
\2\ 132 S. Ct. 2199 (2012).
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As you know, in Carcieri, the Supreme Court held that land could
not be taken into trust for the Narragansett Tribe of Rhode Island
under Section 5 of the Indian Reorganization Act of 1934 because the
Tribe was not under Federal jurisdiction in 1934. This decision
prevented the tribe from completing its low-income housing project. In
the wake of that decision, both the Department and many tribes have
been forced to spend an inordinate amount of time analyzing whether the
tribes were under Federal jurisdiction in 1934 and thus entitled to
have land taken into trust on their behalf in light of the Carcieri
holding. This is not only time-consuming but also costly. Once this
analysis is completed, if the Department decides to take land into
trust and provides notice of its intent, this decision makes it likely
that we will face costly and complex litigation over whether applicant
tribes were under federal jurisdiction in 1934.
This decision was wholly inconsistent with the longstanding
policies of the United States under the Indian Reorganization Act of
1934 of assisting federally recognized tribes in establishing and
protecting a land base sufficient to allow them to provide for the
health, welfare, and safety of tribal members, and of treating tribes
alike regardless of their date of federal acknowledgment.
In June of this year, the Court issued the Patchak decision, in
which it held that the decisions of the Secretary of the Interior to
acquire land in trust under the Indian Reorganization Act could be
challenged on the ground that the United States lacked authority to
take land into trust even if the land at issue was already held in
trust by the United States. This decision was also inconsistent with
the widely-held understanding that once land was held in trust by the
United States for the benefit of a tribe, the Quiet Title Act prevented
a litigant from seeking to divest the United States of such trust
title. \3\ In Patchak, the Court held that the Secretary's decisions
were subject to review under the Administrative Procedure Act even if
the land was held in trust and expanded the scope of prudential
standing under the Indian Reorganization Act to include private
citizens who oppose the trust acquisition. This testimony addresses the
joint implications of Patchak and Carcieri for acquisitions of land in
trust under only the Indian Reorganization Act and does not address
whether or how the Patchak decision might affect acquisitions of land
into trust under other authorities. Together, the Carcieri and Patchak
decisions seriously undermine the goals of the Indian Reorganization
Act. This Administration continues to support a legislative solution to
the negative impacts and increased burdens on the Department and on
Indian Country as a whole resulting from these decisions.
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\3\ See, e.g., Metro. Water Dist. of S. Cal. v. United States, 830
F.2d 139 (9th Cir. 1987) (Indian lands exception to Quiet Title Act's
waiver of sovereign immunity operated to bar municipality's claim
challenging increase of tribal reservation and related water rights);
Neighbors for Rational Dev., Inc. v. Norton, 379 F.3d 956 (10th Cir.
2004) (challenge to Secretary's land into trust decision barred by
Indian lands exception to Quiet Title Act's waiver of sovereign
immunity); Florida Dep't of Bus. Regulation v. Dep't of Interior, 768
F.2d 1248 (11th Cir. 1985) (same).
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II. Purposes of the Indian Reorganization Act
In 1887, Congress passed the General Allotment Act with the intent
of breaking up tribal reservations by dividing tribal land into 80- and
160-acre parcels for individual tribal members. The allotments to
individuals were to be held in trust for the Indian owners for no more
than 25 years, after which the owner would hold fee title to the land.
Surplus lands, lands taken out of tribal ownership but not given to
individual members, were conveyed to non-Indians. Moreover, many of the
allotments provided to Indian owners fell out of Indian ownership
through tax foreclosures.
The General Allotment Act resulted in huge losses of tribally owned
lands, and is responsible for the current ``checkerboard'' pattern of
ownership on many Indian reservations. Approximately two-thirds of
tribal lands were lost as a result of the allotment process. The impact
of the allotment process was compounded by the fact that many tribes
had already faced a steady erosion of their land base during the
removal period, prior to the passage of the General Allotment Act.
The Secretary of the Interior's Annual Report for the fiscal year
ending June 30, 1938, reported that Indian-owned lands decreased from
130 million acres in 1887, to only 49 million acres by 1933. According
to then-Commissioner of Indian Affairs John Collier in 1934, tribes
lost 80 percent of the value of their land during this period, and
individual Indians realized a loss of 85 percent of their land value.
Congress enacted the Indian Reorganization Act in 1934 to remedy
the devastating effects of prior policies. Congress's intent in
enacting the Indian Reorganization Act was three-fold: to halt the
federal policy of allotment and assimilation; to reverse the negative
impact of allotment policies; and to secure for all Indian tribes a
land base on which to engage in economic development and self-
determination.
The first section of the Indian Reorganization Act expressly
discontinued the allotment of Indian lands, while the next section
preserved the trust status of Indian lands. In section 3, Congress
authorized the Secretary to restore tribal ownership of the remaining
``surplus'' lands on Indian reservations. Most importantly, Congress
authorized the Secretary to secure homelands for Indian tribes by
acquiring land to be held in trust for Indian tribes under section 5.
That section has been called ``the capstone of the land-related
provisions of the [Indian Reorganization Act].'' Cohen's Handbook of
Federal Indian Law 15.07[1][a] (2005). The Act also authorized the
Secretary to designate new reservations. Thus, Congress recognized that
one of the key factors for tribes in developing and maintaining their
economic and political strength lay in the protection of each tribe's
land base. The United States Supreme Court has similarly recognized
that the Indian Reorganization Act's ``overriding purpose'' was ``to
establish machinery whereby Indian tribes would be able to assume a
greater degree of self-government, both politically and economically.''
Morton v. Mancari, 417 U.S. 535, 542 (1974).
This Administration has earnestly sought to advance the policy
goals Congress established eight decades ago of protecting and
restoring tribal homelands, and advancing tribal self-determination.
Acquisition of land in trust for the benefit of Indian tribes is
essential to tribal self-determination, and has been consistently
reaffirmed by Congress in legislation enacted since the Indian
Reorganization Act, including through the Indian Self-Determination and
Education Assistance Act, the Claims Settlement Act, and the recently
enacted Helping Expedite and Advance Responsible Tribal Homeownership
Act (HEARTH Act).
Even today, most tribes lack an adequate tax base to generate
government revenues, and others have few opportunities for economic
development. Trust acquisition of land provides a number of economic
development opportunities for tribes and helps generate revenues for
public purposes.
For example, trust acquisitions provide tribes the ability to
enhance housing opportunities for their citizens. This is particularly
necessary where many reservation economies require support from the
tribal government to bolster local housing markets and offset high
unemployment rates. Trust acquisitions are necessary for tribes to
realize the tremendous energy development capacity that exists on their
lands. Trust acquisitions allow tribes to grant certain rights of way
and enter into leases that are necessary for tribes to negotiate the
use and sale of their natural resources. Uncertainty regarding the
trust status of land may create confusion regarding law enforcement
services and interfere with the security of Indian communities.
Additionally, trust lands provide the greatest protections for many
communities who rely on subsistence hunting and agriculture that are
important elements of tribal culture and ways of life.
III. Consequences of the Carcieri and Patchak Decisions
Both the Carcieri and Patchak decisions undermine the primary goal
of Congress in enacting the Indian Reorganization Act: the acquisition
of land in trust for tribes to secure a land base on which to live and
engage in economic development. These decisions impose additional
administrative burdens on the Department's long-standing approach to
trust acquisitions and the Court's decisions may ultimately destabilize
tribal economies and their surrounding communities. The Carcieri and
Patchak decisions cast a cloud of uncertainty on the Secretary's
authority to acquire land in trust for tribes under the Indian
Reorganization Act, and ultimately inhibit and discourage the
productive use of tribal trust land itself.
Economic development, and the resulting job opportunities, that a
tribe could pursue may well be lost or indefinitely stalled out of
concern that an individual will challenge the trust acquisition up to
six years after that decision is made. \4\ In other words, both tribes
and the Department may be forced to wait for six years--or more, if a
lawsuit is filed--for affirmation that a trust acquisition will be
allowed to stand. This new reading of the Quiet Title Act and the
Administrative Procedure Act will frustrate the lives of homeowners and
small business owners on Indian reservations throughout the United
States, as well as the intent of the United States government in
promoting growing communities and economies in Indian country.
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\4\ 28 U.S.C. 2401(a) provides that ``every civil action
commenced against the United States shall be barred unless the
complaint is filed within six years after the right of action first
accrues.''
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A. The Carcieri Decision has led to a More Burdensome and Uncertain
Fee-to-Trust Process
Following the Carcieri decision, the Department must examine
whether a tribe seeking to have land acquired in trust under the Indian
Reorganization Act was ``under federal jurisdiction'' in 1934. This is
a fact-specific analysis that is conducted on a tribe-by-tribe basis.
The Department must conduct this analysis for every tribe, including
those tribes whose jurisdictional status is unquestioned. Because of
the historical and fact-intensive nature of this inquiry, it can be
time-consuming and costly for tribes and for the Department.
The Carcieri analysis ordinarily involves the Department's
examining two general issues: (1) whether there was departmental action
or series of actions before 1934 that established or reflected federal
obligations, duties, or authority over the tribe; and (2) whether the
tribe's jurisdictional status remained intact in 1934. This analysis
typically includes extensive legal and historical research. It also has
engendered new litigation about tribal status and Secretarial
authority. Overall, it has made the Department's consideration of fee-
to-trust applications more complex, contributed to significant
administrative costs and burdens during the application process, and
subjected the United States to costly litigation.
The Department is currently engaged in both federal court and
administrative litigation regarding how it interprets and applies
Carcieri in the context of trust acquisitions under the Indian
Reorganization Act. Since the Supreme Court's decision three years ago,
we have found that plaintiffs routinely claim Carcieri-based
impediments to trust acquisitions, often without offering any factual
or legal basis for such claim, in an attempt to prevent the Secretary
from exercising his statutory authority to acquire land in trust for
the tribe. As a result, the Department and the tribes must expend
considerable resources preparing a thorough analysis that shows a
tribe's history is consistent not only with the Indian Reorganization
Act, but also with Carcieri, and then defend that analysis in costly
litigation that generally extends over a number of years.
B. The Patchak Decision Encourages Litigation to Unsettle Settled
Expectations
In the Patchak decision, the Supreme Court held that a litigant may
file suit challenging the Secretary's authority to acquire land in
trust for a tribe under the Administrative Procedure Act, even after
the land is held in trust. The Court reached this decision,
notwithstanding the widely-held view that Congress had prohibited these
types of lawsuits through the Quiet Title Act, where it stated:
(a) The United States may be named as a party defendant in a
civil action under this section to adjudicate a disputed title
to real property in which the United States claims an interest,
other than a security interest or water rights. This section
does not apply to trust or restricted Indian lands . . .
28 U.S.C. 2409a (emphasis added).
As a result, these types of lawsuits could potentially reverse
trust acquisitions many years after the fact, and divest the United
States of its title to the property.
The majority in Patchak failed to even consider the extreme result
that its opinion made possible. Divesting the United States of trust
title not only frustrates tribal economic development efforts on the
land at issue, more critically, it creates the specter of uncertainty
as to the applicable criminal and civil jurisdiction on the land and
the operation of tribal and federal programs there.
Before the Patchak decision, the Secretary's decision to place a
parcel of land into trust only could be challenged prior to the
finalization of the trust acquisition. The Department had adopted
provisions in its regulations governing the trust acquisition process
which ensured that interested parties had an opportunity to seek
judicial review. It was the Department's general practice to wait to
complete a trust acquisition until the resolution of all legal
challenges brought in compliance with the process contemplated by the
Department's regulations. This allowed all interested parties,
including those who wished to challenge a particular acquisition, to
move forward with a sense of certainty and finality once a trust
acquisition was completed. Following the Patchak decision, tribes,
Indian homeowners, neighboring communities, and the Department will be
forced to wait for six years or more to achieve that finality.
Certainty of title provides tribes, the United States and state and
local governments with the clarity needed to carry out each sovereign's
respective obligations, such as law enforcement. Moreover, such
certainty is pivotal to a tribe's ability to provide essential
government services to its citizens, such as housing, education, health
care, to foster business relationships, to attract investors, and to
promote tribal economies.
Once a trust acquisition is finalized and title transferred in the
name of the United States, tribes and the United States should be able
to depend on the status of the land and the scope of the authority over
the land. Tribes must have confidence that their land can never be
forcibly taken out of trust.
IV. Conclusion
The Secretary's authority to acquire lands in trust for all Indian
tribes, and certainty concerning the status of and jurisdiction over
Indian lands, touch the core of the federal trust responsibility. The
power to acquire lands in trust is an essential tool for the United
States to effectuate its longstanding policy of fostering tribal-self
determination. A system where some federally recognized tribes cannot
enjoy the same rights and privileges available to other federally
recognized tribes is unacceptable. The President's Fiscal Year 2013
Budget includes Carcieri fix language in Sec. 116 of Interior's General
Provisions, signaling the Administration's strong support for a
legislative solution to resolve this issue. We would like to work with
the Committee on a solution to these issues.
As sponsor of the Indian Reorganization Act, then-Congressman
Howard, stated: ``[w]hether or not the original area of the Indian
lands was excessive, the land was theirs, under titles guaranteed by
treaties and law; and when the Government of the United States set up a
land policy which, in effect, became a forum of legalized
misappropriations of the Indian estate, the Government became morally
responsible for the damage that has resulted to the Indians from its
faithless guardianship.'' Accordingly, this Administration supports
legislative solutions that make clear the Secretary's authority to
fulfill his obligations under the Indian Reorganization Act for all
federally recognized tribes.
This concludes my statement. I would be happy to answer questions.
The Chairman. Thank you very much, Assistant Secretary.
In 1994, Congress passed two amendments to the IRA. These
amendments guaranteed that all federally-recognized Tribes
would receive equal treatment by the Federal Government and its
agencies. My question to you on that is, do the Carcieri and
Patchak decisions create two classes of Tribes?
Mr. Laverdure. Yes, Mr. Chairman. They do.
The Chairman. Well, President Obama and Secretary Salazar
and also your prior Assistant Secretary, Larry Echohawk, have
all made it clear to me that fixing Carcieri is a top priority
for the Administration. If Congress does not enact a Carcieri
fix this year, my question is, will the core of the Federal
trust responsibility be undermined by future cases that are a
direct result of Carcieri, as we have seen in Patchak?
Mr. Laverdure. Yes, Mr. Chairman. I think the decisions
increase the burden for a number of Tribal nations. They have
to go through this expensive and timely process that has a lot
of uncertainty on the back end as a result of these decisions.
And that does carve into the core trust responsibility of
acquiring land in trust to restore the Tribal homelands that
they lost historically.
The Chairman. Thank you for your responses.
Let me call on Senator Barrasso for any questions he may
have.
Senator Barrasso. Yes, Mr. Chairman. Just two questions as
a follow-up to some of the things you have already gotten into
a little bit in your testimony.
Last October, former Assistant Secretary Larry Echohawk
testified regarding the effects of the Carcieri decision. As
our Chairman has mentioned, he indicated that the purpose and
intent of the Tribal Law and Order Act would be frustrated if
there were no fix.
Could you talk about what types of public safety problems
are you seeing because of the Carcieri decision?
Mr. Laverdure. Thank you, Mr. Vice Chairman.
What we see across the Country, especially with the ongoing
litigation and dozens of cases that we have seen, and pending
applications that we have, is the status of the land is not
entirely clear. And now the subtle expectations around the
trust status are thrown into question.
As a result, there is an open question on who has authority
over that particular parcel, those parcels or those homelands
and who is going to provide the law enforcement necessary in
order to have a safe community. With this uncertainty and the
six-year additional window to provide finality, all of those
still remain open questions on exactly the status of that land
and who is going to provide that service, that important
service.
Senator Barrasso. And if I could just follow up on that
word you just used, uncertainty, I want to ask a little bit
about energy development, keying in on that word. Because you
visited with us in October last year regarding an increase in
uncertainty and risk in financing from energy development that
is created by the Carcieri decision. You noted that these risks
were essentially stopping the project from going forward.
Has anything changed since then? Is there less uncertainty
and risk to these projects, or is it still continuing to be a
major stumbling block?
Mr. Laverdure. Thank you, Mr. Vice Chair. I would submit
that as a result of the Patchak decision, the uncertainty has
increased substantially. Because the number of challenges has
increased, the time period for that finality, this additional
six-year window statute of limitations, all that makes it even
worse than it was before this decision.
Senator Barrasso. Thank you very much. Thank you, Mr.
Chairman.
The Chairman. Thank you very much, Senator Barrasso.
What impact do you think the Patchak decision will have on
the Department's ability to ensure that lands previously taken
into trust for Tribes are secure?
Mr. Laverdure. Well, ordinarily I don't think we fully
understand all the impacts, although we do know that is very
negative. Much more uncertainty is now provided, and the
Patchak decision itself, the remedy is unclear on the very
litigant who for aesthetic and environmental zone of interest
challenge that was successful, we don't know what the relief
is. We also don't know the scope of the number of people who
could challenge lands already in trust. And that of course
leads to a whole multitude of problems that I am not sure we
fully understand at this date. But we began looking into that,
and we have our legal team basically trying to figure out the
scope of the problem that we now have.
The Chairman. Well, thank you for your efforts. I think it
is clear, what do we need to do on this. I thank you for your
responses, and it will certainly helps us in our efforts here
as well.
So unless there are further questions, I want to thank you
very much for being here today with us.
Mr. Laverdure. Thank you, Mr. Chairman, Mr. Vice Chairman.
The Chairman. I would like to now invite the second panel
to the witness table. Serving on our second panel is the
Honorable Jefferson Keel, President of the National Congress of
American Indians in Washington, D.C.; Mr. John E. Echohawk,
Executive Director of the Native American Rights Fund, in
Boulder, Colorado; and Colette Routel, Associate Professor of
Law at the William Mitchell College of Law in St. Paul,
Minnesota.
President Keel, will you please proceed with your
testimony?
STATEMENT OF HON. JEFFERSON KEEL, PRESIDENT, NATIONAL CONGRESS
OF AMERICAN INDIANS
Mr. Keel. Good afternoon, or I should say aloha.
The Chairman. Aloha.
Mr. Keel. On behalf of the National Congress of American
Indians, I want to thank you for the opportunity to provide our
views regarding this critical topic.
Three years ago, the Supreme Court decision in Carcieri v.
Salazar overturned a longstanding interpretation of the Indian
Reorganization Act of 1934 and held that the phrase ``Indian
Tribe now under Federal jurisdiction'` limits the Department of
Interior's authority to acquire land in trust for Indian
Tribes. Three years later, at least 14 pending cases where
Tribes and the Secretary of Interior are under challenge for
placing land in trust for an Indian Tribe.
Much of this is harassment litigation against Indian Tribes
that were living on treaty reservations in 1934 and all of it
is in conflict with broad Federal constitutional jurisdiction
over Indian affairs. Recently, in the Match-E-Be-Nash-She-Wish
Band of Pottawatomi Indians v. Patchak, the Supreme Court
disregarded decades of interpretation of the Quiet Title Act to
permit retroactive challenges to the status of Federal Indian
trust land years after it has been placed in trust.
The Patchak decision demonstrates how destructive the
Carcieri decision could become and highlights the need for
Congressional action to correct the definition of Indian within
the IRA. NCAI strongly urges Congress to prevent further harm
to Tribal lands and the many Indian people, Tribal cultures and
Tribal jobs that depend on Tribal lands.
The Indian Reorganization Act of 1934 created a
comprehensive plan for the future of Indian nations. Turning
away from the destructive practices of the past, Congress found
that Indian lands should be protected and restored as places
where Tribal cultures and traditions are maintained. The plan
also includes democratic and accountable Tribal governments,
economic development and jobs, respect for relationships with
neighboring governments and Tribal institutions for education,
health care and public safety. With the IRA, Congress renewed
its trust responsibility to protect and restore Tribal
homelands and the Indian way of life.
Today, 78 years later, the IRA is just as necessary today
as it was in 1934. The purpose of the IRA were frustrated,
first by World War II, then by the termination era. Work did
not begin again until the 1970s, with the self-determination
policy. Since then, Indian Tribes are building economies from
the ground up. They must earn every penny to buy back their own
land.
Still, today, many Tribes have no land base, and many
Tribes have insufficient lands to support housing, self-
government and culture. NCAI urges Congress to support
legislation clarifying the benefits of the IRA available to all
federally-recognized Tribes. Every time an Indian Tribe
acquires land, the Tribe uses the land to build housing or a
health clinic, to protect natural or cultural resources or to
pursue economic development that creates jobs for Indian people
and their neighborhoods.
Most importantly, restoring Tribal lands helps to reverse
centuries of Federal policies that have prevented Indian
nations from reaching their potential. I want to thank you for
your support on the land restoration.
On another topic, Senator, if I may, NCAI urges the Senate
to move on the confirmation of Kevin Washburn as Assistant
Secretary for Indian Affairs. It is critical that Mr. Washburn
be confirmed as soon as possible, so that there is no
unnecessary delays occurring in the status and governing of
Indian Tribal governments. I want to thank you for that.
And thank you for holding this important hearing. Thank
you.
[The prepared statement of Mr. Keel follows:]
Prepared Statement of Hon. Jefferson Keel, President, National Congress
of American Indians
On behalf of the National Congress of American Indians (NCAI),
thank you for the opportunity to provide our views regarding this
critical topic. Three years ago the Supreme Court decision in Carcieri
v. Salazar overturned a longstanding interpretation of the Indian
Reorganization Act of 1934 and held that the phrase ``Indian tribe now
under Federal jurisdiction'' limits Interior's authority to acquire
land in trust for Indian tribes. Three years have passed since the
Carcieri decision, and there are at least fourteen pending cases where
tribes and the Secretary of Interior are under challenge for placing
land in trust for an Indian tribe. Much of this is harassment
litigation against Indian tribes that were living on treaty
reservations in 1934, and all of it is in conflict with broad federal
constitutional jurisdiction over Indian affairs.
Recently, in Match-E-Be-Nash-She-Wish Band of Potowatami v.
Patchak, the Supreme Court disregarded decades of interpretation of the
Quiet Title Act (QTA) to permit retroactive challenges to the status of
federal Indian trust land years after it has been place in trust. The
Patchak decision demonstrates how destructive this Carcieri decision
could become, and highlights the need for Congressional action to
correct the definition of ``Indian'' within the IRA. NCAI strongly
urges Congress to take action swiftly to prevent further harm to tribal
lands and the many Indian people, tribal cultures, and tribal jobs that
depend on tribal lands.
Background
The Indian Reorganization Act of 1934 created a comprehensive plan
for the future of Indian Nations. Turning away from the destructive
practices of the past, Congress found that Indian lands should be
protected and restored as places where tribal cultures and traditions
are maintained. This plan also includes modern life: democratic and
accountable tribal governments; economic development and jobs;
respectful relationships with neighboring governments; and tribal
institutions for education, healthcare and public safety. With the IRA,
Congress renewed its trust responsibility to protect and restore tribal
homelands and the Indian way of life.
Today, 78 years later--the IRA is just as necessary as it was in
1934. The purposes of the IRA were frustrated, first by WWII and then
by the Termination Era. The work did not begin again until the 1970's
with the Self-Determination Policy, and since then Indian tribes are
building economies from the ground up and must earn every penny to buy
back their own land. Still today, many tribes have no land base and
many tribes have insufficient lands to support housing, self-government
and culture.
Tribal Land Restoration Is Under Attack
In Carcieri v. Salazar (2009), the Supreme Court overturned
a longstanding interpretation of the Indian Reorganization Act
of 1934 (IRA) and held that the phrase ``now under Federal
jurisdiction'' limits the Department of Interior's (DOI)
authority to provide benefits under the IRA to only those
tribes ``under Federal jurisdiction'' on June 8, 1934.
Three years have passed since the Carcieri decision, and
there are at least thirteen pending cases where tribes and the
Secretary of Interior are under challenge. There is harassment
litigation against tribes who were on treaty reservations in
1934. These legal challenges are pushing a restrictive
interpretation in conflict with broad federal constitutional
jurisdiction over Indian affairs. Land acquisitions are
delayed. Tribal jurisdiction and law enforcement are
threatened. Jobs are lost or never created.
Recently, in Match-E-Be-Nash-She-Wish Band of Potowatami v.
Patchak (2012), the Supreme Court disregarded decades of
interpretation of the Quiet Title Act (QTA) to permit
retroactive challenges to the status of federal Indian trust
land many years after it has been place in trust. The Supreme
Court also broadened the scope of persons eligible to challenge
land into trust decisions under the IRA. This decision opens
the door to broad challenges to tribal trust land status by any
party asserting a general interest.
Tribal Priorities For Protecting The Future of Land Into Trust
The authority of DOI to take land into trust for Indian tribes is
one of the pillars of the United States' trust responsibility towards
Indian tribes. Without the ability to take land into trust, tribes are
denied the opportunity to protect and develop their cultures and
economies. Indian Nations urge Congress to support legislation that
will fully restore Interior's authority to take land into trust for
Indian tribes.
S. 676 amends the IRA, replacing the language ``any
recognized Indian tribe now under federal jurisdiction'' with
``any federally recognized Indian tribe.'' It also ratifies and
confirms prior land into trust decisions, while clarifying that
it will not affect existing federal laws or regulations
relating to Indian tribes. S. 676 has been unanimously approved
by the Senate Committee on Indian Affairs.
H.R. 1291 was introduced by Rep. Cole and amends the IRA,
similarly confirming that the IRA applies to ``any federally
recognized Indian tribe.'' This bill also includes an Alaska-
specific limitation, which is opposed by Indian Nations. This
bill does not include language protecting or confirming prior
land into trust decisions.
H.R. 1234 was introduced by Rep. Kildee and also amends the
IRA to apply to ``any federally recognized Indian tribe.'' This
bill does not include an Alaska-specific provision. It also
ratifies and confirms prior land into trust decisions, while
clarifying that it will not affect existing federal laws or
regulations relating to Indian tribes. H.R. 1234 has 30 co-
sponsors.
Conclusion
NCAI urges Congress to support legislation clarifying that the
benefits of the IRA are available to all federally recognized tribes.
Every time an Indian tribe acquires land, the tribe uses the land to
build housing or a health clinic, to protect natural or cultural
resources, or to pursue economic development that creates jobs for
Indian people and their neighbors. Mostly importantly, restoring tribal
lands helps to reverse centuries of federal policies that have
prevented Indian Nations from reaching their potential. Thank you for
your support on tribal land restoration.
The Chairman. Thank you very much, President Keel.
I just want to inform you that we will be having a hearing
tomorrow on Mr. Washburn.
Mr. Keel. Thank you again.
The Chairman. Now I would like to call on Mr. Echohawk for
your testimony, please.
STATEMENT OF JOHN ECHOHAWK, EXECUTIVE DIRECTOR, NATIVE AMERICAN
RIGHTS FUND
Mr. Echohawk. Aloha, Mr. Chairman.
The Chairman. Aloha.
Mr. Echohawk. Once again, the Native American Rights Fund
is honored to respond to your invitation to testify before this
Committee. Everyone here is well aware of the negative impacts
that the decisions of the U.S. Supreme Court are having
throughout Indian Country, decisions which continue to
undermine the inherent sovereignty of Indian Tribes and impede
the ability of the United States to fulfill the sacred trust
obligations to Indian people.
Last year, the Native American Rights Fund came before this
Committee on two separate occasions to discuss the Carcieri
crisis, a judicially-create crisis, precipitated by the Court's
2009 decision in Carcieri v. Salazar.
Today, we are here because of the Court's more recent
decision in Match-e-be-nash-she-wish Band of Pottawatomi
Indians, the Gun Lake Tribe, against Patchak. But make no
mistake, the Patchak decision is direct evidence of the
judicially-created Carcieri crisis. In other words, Patchak is
but a symptom of the larger Carcieri problem, a problem which
can only be solved by the Congress.
The single claim brought by Mr. Patchak in his litigation
against the United States and the Gun Lake Tribe is a Carcieri
claim, a claim that the Secretary of Interior cannot take land
into trust for the Tribe unless the United States can prove to
the satisfaction of the Federal courts, all the way to the
Supreme Court, that the Tribe was ``under Federal jurisdiction
in 1934.'`
Through our prior testimony, we warned this Committee and
this Congress that Patchak and a significant number of other
cases were moving through the Federal courts and the
Administrative process where Carcieri is being used to harass
Indian Tribes and delay trust land acquisitions. In several
cases, the claims are being expanded beyond the question of
whether a Tribe was under Federal jurisdiction in 1934. For
example, there are now challenges as to whether a Tribe also
has to be ``federally-recognized'` in 1934, whether a Tribe
even existed as an Indian Tribe in 1934, or whether a Tribe
today is even Indian and should have ever been federally-
recognized.
For the record, I have attached to my testimony a detailed
summary of the Carcieri-related litigation. It must be noted
that all of this litigation is having major negative impacts
undermining what were once well-settled positive principles of
Federal Indian law.
With the delay in enacting a Carcieri fix, Mr. Patchak has
led the charge with his Carcieri claim which has now resulted
in two distinct adverse holdings which will have long-term
negative impacts for all Tribes. First, Patchak trampled over
the sovereign immunity of the United States and eviscerated the
once wide protections for Indian lands under the Quiet Title
Act. Thus the Court has created even more uncertainty for
Indian Tribes in relation to possible challenges against lands
already taken into trust for existing Tribal businesses, Tribal
homes and Tribal governmental offices.
Second, through its finding of prudential standing, Patchak
has barreled open the courtroom doors to almost any
Administrative Procedure Act challenge by anyone who may feel
``harmed'` by a decision of the Secretary which may benefit
Indian Tribes. And remember, the acquisition of trust lands is
but one of a myriad benefits that should flow to the Tribes
under the IRA.
Unfortunately, Mr. Chairman, more damage is waiting to be
done. Carcieri demonstrates that the Court does not appear to
respect Congress' primary role in Indian affairs, and the Court
is unwilling to take into account Congress' directive that the
United States Government must treat all federally-recognized
Indian Tribes the same. Congress has determined there are no
classes of Tribes, no historical versus created Tribes, no
treaty versus non-treaty or executive order Tribes, no
legislative recognized versus administratively recognized
Tribes. In 1994, Congress made clear that all federally-
recognized Tribes are equal.
To quote one of your esteemed colleagues, ``The
recognition of an Indian Tribe by the Federal Government is
just that, the recognition that there is a sovereign entity
with governmental authority which predates the U.S.
Constitution, and with which the Federal Government has
established formal relations. Over the years, the Federal
Government has extended recognition to Indian Tribes through
treaties, executive orders, a course of dealing, decisions at
the Federal courts, acts of Congress and Administrative action.
Regardless of the methods by which recognition was extended,
all Indian Tribe enjoy the same relationship with the United
States and exercise the same inherent authority.'`
These words were spoken by Senator John McCain in support
of the 1994 legislation adding the privileges and immunities
provision to the Indian Reorganization Act. Thus, even though
Congress has spoken, the Supreme Court has now said otherwise.
In closing, Mr. Chairman, I would just like to say to the
Committee that the true scope of the negative impacts to all
Indian Tribes as a result of the Court's decisions in Carcieri
and Patchak cannot yet be determined. If Congress allows more
Carcieri-related litigation to wind its way through the Federal
courts, at some point in the not so distant future, the Court
will be substantially redefining the legal and political
standing of Indian Tribes in this Country.
To avert this catastrophic crisis in Indian affairs,
Congress must act now. Indian Country needs Congress to step up
and tell the Court in no uncertain terms that it got Carcieri
wrong. If Congress remains silent, the Court will continue to
fill the void with its current prevailing view that there is
nothing exceptional about Indian law and that there is nothing
special to protect in the relationship between the U.S. and its
Indian people.
Thank you, Mr. Chairman.
[The prepared statement of Mr. Echohawk follows:]
Prepared Statement of John Echohawk, Executive Director, Native
American Rights Fund
I. Introduction
Chairman Akaka and Distinguished Members of the Committee:
My name is John Echohawk. I am the Executive Director of the Native
American Rights Fund (NARF) in Boulder, CO. NARF is a national, non-
profit legal organization dedicated to securing justice on behalf of
Native American tribes, organizations, and individuals. Since 1970,
NARF has undertaken the most important and pressing issues facing
Native Americans in courtrooms across the country, as well as here
within the hall Congress.
I am honored to be invited here to provide testimony again to the
Senate Committee on Indian Affairs. Last year, NARF came before this
Committee on two separate occasions to discuss the Carcieri crisis--a
judicially-created crisis precipitated by the U.S. Supreme Court's 2009
decision in Carcieri v. Salazar. Today, we are here because of the
Supreme Court's more recent decision in Match-E-Be-Nash-She-Wish Band
of Pottawatomi Indians (Gun Lake Tribe) v. Patchak. But make no
mistake: the Patchak decision is direct evidence of the judicially-
created Carcieri crisis. In other words, Patchak is but a symptom of
the larger Carcieri problem-a problem which can only be solved by
Congress.
We warned this Committee, and this Congress, that a significant
number of cases are moving through the federal courts and the
administrative process using Carcieri to harass Indian tribes and delay
trust land acquisitions--many times in situations where there should be
no question whether an Indian tribe was under Federal jurisdiction in
1934. In several cases, claims are not limited to this question alone,
but are becoming even more insidious. For example, in addition to the
question of whether a tribe was ``under Federal jurisdiction'' in 1934,
there are now challenges as to whether a tribe also had to be
``federally recognized'' in 1934; whether the tribe even existed as an
Indian tribe in 1934; or whether the tribe today is even ``Indian'' and
should have ever been federally recognized.
For the record, I have attached to my testimony a detailed summary
of litigation in the courts and at the administrative level in the wake
of the Carcieri decision.
II. The Carcieri Crisis Amplified
In our testimony before the Committee in October 2011, we outlined
the concerns in Indian Country and the possible ramifications of
Carcieri on tribal self-determination and economic self-sufficiency.
Leading the charge, the single claim brought by Mr. Patchak in his
litigation against the United States and the Gun Lake Tribe is a
Carcieri claim--a claim that the Secretary of the Interior cannot take
land in trust for the Tribe unless the United States can prove, to the
satisfaction of the lower federal courts (and ultimately to the Supreme
Court), that the Tribe was ``under Federal jurisdiction'' in 1934.
As a result of the delay by Congress in enacting legislation in
response to Carcieri, Mr. Patchak's Carcieri claim--a claim not yet
decided on the merits but before the district court on remand--has
already resulted in two adverse holdings which will have long term
negative impacts for all Indian tribes and the United States until
separately addressed by Congress. First, Patchak has trampled over the
sovereign immunity of the United States and eviscerated the once-broad
protections for Indian lands under the Quiet Title Act. This holding
creates even more uncertainty for Indian tribes in relation to
potential challenges by non-Indians against lands already taken into
trust with existing tribal businesses, tribal homes, and tribal
governmental offices. Second, by finding prudential standing for a non-
Indian landowner located miles away from the trust parcel, Patchak has
barreled-open the court room doors to most any APA challenge by a non-
Indian who may feel ``harmed'' by a decision of the Secretary which may
benefit Indian tribes under the Indian Reorganization Act (IRA).
Remember, the acquisition of trust lands is but one of a myriad of
benefits that should flow to Indians and Indian tribes under the IRA.
The Supreme Court's decision in 2009 has now been ``on the books''
for over three years and has called into question whether certain
federally-recognized Indian tribes were ``under Federal jurisdiction''
in 1934 and entitled to all the benefits of the IRA. This has put many
Indian tribes squarely in danger of losing opportunities for economic
development projects, increasing on-reservation housing for tribal
members, including the elderly, and many other tribal governmental
initiatives.
III. The Carcieri Crisis Averted?
Unfortunately Mr. Chairman, as confirmed by the Court's decision in
Patchak, more damage is waiting to be done. Carcieri demonstrates that
the Court is unwilling to take into account Congress's directive that
the United States government must treat all federally recognized Indian
tribes the same. There are no classes of tribes: no historical-versus-
created tribes; no treaty-versus-nontreaty-versus-executive order
tribes; no Congressionally-recognized-versus-administratively-
recognized tribes. All tribes are equal in the eyes of the law.
In 1994, Congress passed Public Law 103-236 which contained a
``Privileges and Immunities'' amendment to the IRA:
Departments or agencies of the United States shall not
promulgate any regulation or make any decision or determination
pursuant to the Act of June 18, 1934 (25 U.S.C. 461 et seq., 48
Stat. 984) as amended, or any other Act of Congress, with
respect to a federally recognized Indian tribe that classifies,
enhances, or diminishes the privileges and immunities available
to the Indian tribe relative to other federally recognized
tribes by virtue of their status as Indian tribes.
25 U.S.C. 476(f).
As you are well aware, this amendment was in response to concerns
that certain officials within the Department of the Interior were
categorizing Indian tribes in to separate classes, such as ``historic''
versus ``created'' tribes. Based on these artificial classifications,
the Department would determine whether a particular tribe was entitled
to various governmental privileges and immunities, including whether a
tribe could exercise its inherent sovereign authority. Congress was
appalled at the caste system for Indians created by the Department and
acted decisively to address the unequal treatment of the tribes.
On the House side, the issue was addressed by the House
Subcommittee on Native American Affairs in a hearing regarding the
Department's determination that the Pascua Yaqui Indian Tribe was a
``created'' rather than ``historic'' Tribe and ``did not have the
inherent authority to regulate law and order on their reservation.''
The issue quickly became identified as a concern for all Indian tribes.
Representative Bill Richardson, in support of the legislation, stated
the clear purpose of the 1994 IRA Amendment:
The amendment is intended to prohibit the Secretary or any
other Federal official from distinguishing between Indian
tribes or classifying them not only on the basis of the IRA but
also on the basis of any other Federal law. Other agencies of
the Federal Government may have developed distinctions or
classifications between federally recognized Indian tribes
based on information provided to those agencies by the
Department of the Interior. The amendment to section 16 of the
IRA is intended to address all instances where such categories
or classifications of Indian tribes have been applied and any
statutory basis which may have been used to establish, ratify
or implement the categories or classifications.
The amendment will correct any instance where any federally
recognized Indian tribe has been classified as created and that
it will prohibit such classifications from being imposed or
used in the future. The amendment makes it clear that it is and
has always been Federal law and policy that Indian tribes
recognized by the Federal Government stand on an equal footing
to each others and to the Federal Government, and that each
federally recognized Indian tribe is entitled to the same
privileges and immunities as other federally recognized tribes.
The amendment will also remove what appears to be a
substantial barrier to the full implementation of the policies
of self-determination and self-governance. The committee fully
expects that the Department will act as promptly as possible
after enactment of this amendment to seek out and notify every
Indian tribe which has been classified or categorized as
created that the classification no longer applies and to take
any other steps which are necessary to implement the amendment.
Statement of Rep. Bill Richardson regarding consideration of S.
1654, 140 Cong. Rec. 11,376 (May 23, 1994).
On the Senate side, Senator John McCain addressed the necessity of
clarifying this confusion regarding ``created'' versus ``historic''
tribes:
After careful review, I can find no basis in law or policy for
the manner in which section 16 has been interpreted by the
Department of the Interior. One of the reasons stated by the
Department for distinguishing between created and historic
tribes is that the created tribes are new in the sense that
they did not exist before they organized under the IRA. At the
same time, the Department insists that it cannot tell us which
tribes are created and which are historic because this is
determined through a case-by-case review.
All of this ignores a few fundamental principles of Federal
Indian law and policy. Indian tribes exercise powers of self-
governance by reason of their inherent sovereignty and not by
virtue of a delegation of authority from the Federal
Government. In addition, neither the Congress nor the Secretary
can create an Indian tribe where none previously existed.
Congress itself cannot create Indian tribes, so there is no
authority for the Congress to delegate to the Secretary in this
regard. Not only is this simple common sense, it is also the
law as enunciated by the Federal courts.
The recognition of an Indian tribe by the Federal Government
is just that-the recognition that there is a sovereign entity
with governmental authority which predates the U.S.
Constitution and with which the Federal Government has
established formal relations. Over the years, the Federal
Government has extended recognition to Indian tribes through
treaties, executive orders, a course of dealing, decisions of
the Federal courts, acts of Congress and administrative action.
Regardless of the method by which recognition was extended, all
Indian tribes enjoy the same relationship with the United
States and exercise the same inherent authority. All that
section 16 was intended to do was to provide a mechanism for
the tribes to interact with other governments in our Federal
system in a form familiar to those governments through tribal
adoption and Secretarial approval of tribal constitutions for
those Indian tribes that choose to employ its provisions.
Statement of Senator John McCain regarding the consideration
of S. 1654, 140 Cong. Rec. S6146, May 19, 1994 (Emphasis
added).
The statements of Senator McCain and Representative Richardson
clearly articulate the intent of Congress. All federally-recognized
Indian tribes are to be treated the same by the Federal Government
under the IRA. No distinctions are to be drawn based on the date of
federal recognition or the manner of federal recognition. Nor are any
benefits to be denied to tribes on this basis.
The true negative impacts to all of Indian country as a result of
Carcieri, and now Patchak, are still pending in the courts and in
administrative proceedings. At some point in the not too distant
future, the Court--not Congress--may be making decisions based on
Carcieri as to: who is really an Indian entitled to special benefits
under federal law?; or whether a certain federally-recognized Indian
tribe really existed in 1934, or should exist today?
To avert such a catastrophic crisis, Congress must act now! Indian
country needs Congress to tell the Court in no uncertain terms that it
got it wrong in Carcieri. If Congress remains silent, the Court will
fill the void with its prevailing view that there is nothing
exceptional about Indian law, and nothing special to protect in the
relationship between the United States and its Indian people.
IV. Conclusion
In summary, Patchak, and the cases like it, are Carcieri problems.
Without a clear fix to language in the IRA reaffirming Congress's
intent for all Indian tribes to be on equal footing, federal courts and
plaintiffs opposed in tribal interests will continue to litigate tribal
land acquisitions, which in turn hurt economic development projects
that benefit local, state, and tribal economies. Further, it will
invite federal courts to re-reevaluate federal recognition
determinations that, in many cases, took decades to decide and are
clearly political questions which should remain with the political
branches. The Congress needs to act in the remaining days to pass a
Carcieri fix to ensure the stability and survival of tribal sovereign
interests.
Attachment
September 2012 Update of Litigation in the Wake of the U.S. Supreme
Court's Decision in Carcieri v. Salazar
U.S. Supreme Court
Match-E-Be-Nash-She-Wish Band of Potawatomi Indians v. Patchak
(Nos. 11-246 and 11-247)--On June 18, 2012, the Court announced its
decision and held: (1) Mr. Patchak's Carcieri challenge is a claim
brought pursuant to the Administrative Procedures Act (APA), not a case
asserting a claim to title under the Quiet Title Act (QTA), and is
therefore not barred by the Indian lands exception to the waiver of
immunity under the QTA; and (2) Mr. Patchak, an individual non-Indian
landowner, is within the ``zone of interests'' protected by the Indian
Reorganization Act and thus has prudential standing to bring a Carcieri
challenge to a land-in-trust acquisition. In an opinion authored by
Justice Kagan, the Court (8-1) found that the APA generally waives the
immunity of the United States from any suit ``seeking relief other than
money damages and stating a claim that an agency or an officer or
employee thereof acted or failed to act in an official capacity or
under the color of legal authority.'' 5 U.S.C. 702. According to the
Court, Patchak's Carcieri claim fits within this waiver of immunity.
The Court rejected the arguments of the United States and the Tribe
that Patchak seeks to divest the United States of title to land held in
trust for the Tribe and should be barred under the Indian lands
exception to the waiver of immunity within the Quiet Title Act (QTA).
The Court relied heavily on a letter written by former Assistant
Attorney General (now Justice) Scalia to Congress about the APA's
waiver of immunity for the principle that ``when a statute `is not
addressed to the type of grievance which the plaintiff seeks to
assert,' then the statute cannot prevent an APA suit.'' According to
the Court, the QTA only applies to actions seeking quiet title by a
party with a competing ownership interest in the land and therefore
``addresses a kind of grievance different from the one Patchak
advances.'' Although the Court concedes that Patchak is contesting the
United States' title to the land, since he is not claiming any
competing ownership interest in the land, the QTA and the Indian lands
exception to the QTA are not applicable to this litigation.
The Court also rejected the arguments of the United States and the
Tribe that Patchak cannot bring a Carcieri challenge because he lacks
prudential standing (e.g. within the ``zone of interests'') under the
Indian Reorganization Act (IRA). The Court found that although Section
5 of the IRA only specifically addresses land acquisition, decisions
made by the Secretary under Section 5 ``are closely enough and often
enough entwined with considerations of land use'' to allow neighboring
landowners to bring ``economic, environmental or aesthetic'' challenges
to the those decisions.
In her dissent, Justice Sotomayor states: ``After today, any person
may sue under the APA to divest the Federal Government of title to and
possession of land held in trust for Indian tribes--relief expressly
forbidden by the QTA--so long as the complaint does not assert a
personal interest in the land.'' Justice Sotomayor points out that the
Court's decision works against the one of the primary goals of the
IRA--new economic development and financial investment in Indian
country. Now, trust land acquisitions for the benefit of Indian tribes
will be subject to judicial challenge under the APA's six-year statute
of limitations--not the 30-day period provided for under the
regulations--substantially constraining the ability of all Indian
tribes to acquire and develop lands.
U.S. Courts of Appeals
Big Lagoon Rancheria v. State of California (9th Cir. No. 10-
17803): On February 10, 2012, the State of California filed its opening
brief seeking reversal of the ruling by the district court that granted
summary judgment to the Tribe and held that the State acted in bad
faith during negotiations for a tribal-state gaming compact pursuant to
the Indian Gaming Regulatory Act (IGRA). On appeal, the State of
California raises two issues:
Whether, when presented with credible, undisputed evidence
that a tribe may lack standing to obtain any relief under IGRA,
either because the United States unlawfully considers the tribe
to be federally recognized, or the United States unlawfully
acquired in trust the land where the tribe proposes to build a
casino, a district court must first determine whether the tribe
has been lawfully recognized and whether the land on which it
proposes to build its class III gaming facility is lawfully
eligible for that purpose.
At the district court, the State attempted to demonstrate good
faith by arguing Carcieri--its need to preserve the public interest by
keeping a gaming facility from being located on lands unlawfully
acquired by the Secretary for the Tribe under the Supreme Court's
decision in Carcieri. The district court characterized the argument as
a post hoc rationalization by the State of its actions which were
concluded four months prior to the Court's decision in Carcieri.
Principal briefing before the Ninth Circuit was completed on May 10,
2012.
Butte County v. Hogen, (DC Cir. No. 09-5179): On July 13, 2010, the
U.S. Court of Appeals for the D.C. Circuit issued its opinion setting
aside the Secretary's decision to take land in trust for the benefit of
the Mechoopda Tribe of Chico Rancheria. The D.C. Circuit remanded the
case which is still pending before the Department of the Interior to
address the ``new'' information provided by Butte County in relation to
the Department's restored tribe/restored lands determination. The D.C.
Circuit did not address the Carcieri issue raised within the appeal.
(Note: On appeal, Butte County raised the issue of whether the
Secretary has authority to take land in trust for the benefit of the
Mechoopda Tribe under the IRA. The United States argued that ``Carcieri
is clearly distinguishable.'' The United States characterized the
holding in Carcieri as follows: ``None of the parties contended that
the Narragansett tribe was under federal jurisdiction in 1934, and the
Federal Government had repeatedly declined to help the tribe between
1927 and 1937 because the tribe `was and always had been, under the
jurisdiction of the New England States, rather than the Federal
Government.' There is no suggestion that the relationship between the
United States and the Mechoopda Tribe is at all analogous to that. If
Butte County believed Carcieri to be controlling despite several
distinctions, Butte County should have provided some argument for that
position.'')
U.S. District Courts
Cherokee Nation v. Salazar (N.D. Okla No. 12-493): On August 29,
2012, the Cherokee Nation filed suit challenging the Department of the
Interior's July 30, 2012 decision to acquire 2.03 acres of land in
trust for the United Keetoowah Band of Cherokee Indians of Oklahoma
(UKB). The Cherokee Nation asserts that because ``UKB was not federally
recognized until 1946, the Secretary cannot . . . accept the [land]
into trust under Carcieri.''
County of Amador v. Salazar (EDCA No. 2:12-at-00900) and No Casino
in Plymouth and Citizens Equal Rights Alliance v. Salazar (ED-CA No.
2:12-at-00919): On June 27, 2012, the County of Amador filed a suit for
declaratory and injunctive relief in the U.S. District Court for the
Eastern District of California against the Department of the Interior
challenging the May 24, 2012 Record of Decision (ROD) taking 228 acres
of land in to trust for the benefit of the Ione Band of Miwok Indians.
On June 29, 2012, No Casino in Plymouth and Citizens Equal Rights
Alliance filed a suit against the Department challenging the May 24,
2012 ROD. Based on Carcieri, the plaintiffs contend that the Secretary
is without authority to take land in trust for the Ione Band of Miwok
Indians since the tribe did not exist as a ``recognized Indian tribe''
in 1934 and were not ``under federal jurisdiction'' in 1934.
Clark County v. Salazar (DCDC No. 1:11-cv-00278) and Grande Ronde
v. Salazar (DC No. 1:11-cv-00284): On January 31, 2011, Clark County,
City of Vancouver, Citizens Against Reservation Shopping, various non-
Indian gaming enterprises and a number of individual landowners filed
suit in the U.S. District Court for the District of Colombia against
the Department of the Interior and the National Indian Gaming
Commission challenging the Record of Decision (``ROD'') issued by the
Department of the Interior to acquire land in trust for the benefit of
the Cowlitz Indian Tribe. On February 1, 2011, the Confederated Tribes
of the Grande Ronde Community of Oregon filed suit against the
Department of the Interior also challenging the ROD. The Clark County
complaint states that ``the Cowlitz Tribe was neither federally
recognized nor under federal jurisdiction in June 1934.'' Therefore,
under the Supreme Court's holding in Carcieri, the Secretary does not
have authority to take lands in trust for the Tribe and does not have
the authority to proclaim such land as the Tribe's reservation. Grande
Ronde challenges the trust land acquisition alleging that the Cowlitz
Tribe was neither ``recognized'' nor ``under federal jurisdiction'' in
1934 as required by the IRA. The Cowlitz Tribe successfully intervened
in both cases. On June 20, 2012, Clark County, et al, and Grande Ronde
each filed their motion for summary judgment. On July 19, 2012, the
United States filed a motion to stay and a motion to remand the case
back to the Department for reconsideration of the ROD in light of
information provided by the plaintiffs in connection with their summary
judgment motions. On August 29, 2012, the court denied the motions of
the United States finding that ``[n]either a remand nor a stay . . . is
necessary to enable the federal defendants to review and reconsider the
[ROD].'' Instead, the court simply extended the deadline for the
Department and the Tribe to file their responses to the summary
judgment motions which are now due on October 5, 2012. The court
directed, ``Should the federal defendants decide in the interim to
rescind or otherwise alter their determination, they shall file
promptly a notice of such action.''
Central New York Fair Business Assoc., et al. v. Salazar (NDNY No.
6:08-cv-660): On March 1, 2010, the U.S. District Court for the
Northern District of New York issued an order granting the United
States' motion for partial dismissal of the complaint/amended complaint
in a case which involves the May 2008 decision of the Department of the
Interior to take approximately 13,000 acres of land in trust for the
Oneida Indian Nation of New York. The motion to dismiss certain claims
did not include the claim within the plaintiffs' amended complaint
regarding the holding in Carcieri:
``Plaintiffs assert that according to the administrative record
the Oneida Indian Nation of New York was not a recognized
Indian tribe in June 1934 `now under federal jurisdiction' as
required by 25 U.S.C. 479 of the [IRA]. The OIN is therefore
not eligible for the benefits of the IRA that includes allowing
the Secretary to take lands into trust under 25 U.S.C. 465.
On March 15, 2010, the plaintiffs filed a motion for
reconsideration which the court denied on December 6, 2010. Plaintiffs
requested discovery on their Carcieri related claims which were denied.
Additional plaintiffs challenging the May 2008 trust acquisition
decision in State of New York et al v. Salazar, No.08-644, and Town of
Verona et al v. Salazar, No. 06-647, have also argued that the Oneidas
were not under federal jurisdiction. On November 15, 2011, parties,
including the United States, filed their motions for summary judgment.
Briefs in opposition to summary judgment were filed on January 30,
2012. Reply briefs were filed on March 15, 2012. A motions hearing with
no oral argument was scheduled for April 4, 2012. No action has been
docketed since March 23, 2012.
State Courts
Jamulians Against the Casino et al v. Randell Iwasaki, Director of
California Department of Transportation, et al. (Superior Court for the
State of California in and for the County of Sacramento No. 34-2010-
80000428) In July 2010, a state court dismissed a lawsuit against
various officials with the California Department of Transportation in
which the Jamul Indian Village was identified as a real party in
interest. Plaintiffs, a watchdog group formed for the sole purpose of
opposing the Jamul Village's efforts to build a casino on its
Reservation, sought to void a settlement agreement entered into between
the Tribe and CalTrans relating to a dispute involving an encroachment
permit issue. While the Complaint is largely focused on Plaintiffs'
attempts to void the settlement agreement, Plaintiffs also make
Carcieri-related allegations. Specifically, they alleged that the Tribe
was not recognized in 1934 and that the Tribe's contention that its
Reservation is held in trust by the United States for the benefit of
the Tribe ``conflicts with the Supreme Court's ruling in Carcieri v.
Salazar, 555 U.S. 379 (2009), that the Secretary of the Interior's
authority under IRA to take land into trust for Indians was limited to
Indian tribes that were under federal jurisdiction when IRA was enacted
in 1934.''
Interior Board of Indian Appeals
State of New York, Franklin County, New York, and Town of Fort
Covington, New York v. Acting Eastern Regional Director (IBIA Nos. 12-
006, 12-010): The State of New York and County and Town of Fort
Covington filed an administrative appeal of the Notice of Decision
issued by the Acting Eastern Regional Director for the Bureau of Indian
Affairs to take 39 acres of land into trust for the benefit of the St.
Regis Mohawk Tribe of New York. The 39-acre parcel is currently being
used for a solid waste transfer station, and the application states
that the property would continue to be used for this purpose. Although
the St. Regis Mohawk Tribe is on the 1947 Haas list as a Tribe that
voted to ``opt out'' of the provisions of the IRA, the Appellants argue
that the Tribe was under State rather than Federal jurisdiction in 1934
and that the Supreme Court's decision in Carcieri therefore deprives
the Secretary of authority to take land into trust for the Tribe under
the authority of the IRA. The Appellant Town and County filed their
revised opening brief on April 13, 2012. The BIA and Tribe filed their
response briefs on June 15, 2012. The Appellant Town and County filed
their response brief on July 13, 2012. No further briefing is expected
on this matter before the IBIA.
Village of Hobart v. Bureau of Indian Affairs (IBIA Nos. 10-091,
10-092, 10-107, 10-131, 11-002, 11058, 11-083): On April 16, 2010, the
Village of Hobart, Wisconsin, filed an administrative appeal of the
Notice of Decision issued by the Regional Office of the Bureau of
Indian Affairs of its intent to take several parcels of land into trust
for the benefit of the Oneida Tribe of Indians of Wisconsin. In spite
of the fact that the Oneida Tribe is on the 1947 Haas list, the Village
of Hobart argues that the Tribe was not ``under federal jurisdiction''
because their reservation was disestablished.
Thurston County v. Great Plains Regional Director (IBIA Nos. 11-
031, 11-084, 11-085, 11-086, 11-087, 11-095, 11-096): Thurston County,
Nebraska, has filed an administrative appeal of the Notice of Decision
filed by the Regional Director of the Bureau of Indian Affairs of its
intent to take several parcels of land in trust for the benefit of the
Winnebago Tribe of Nebraska. In spite of the fact that the Winnebago
Tribe is on the 1947 Haas List and the fact that the Tribe has been
located at all times since 1865 on reservation lands purchased by the
United States, Thurston County argues that the Tribe was not ``under
federal jurisdiction'' in 1934.
Preservation of Los Olivos v. Department of the Interior, (IBIA No.
05-050-1) (CA-CD No. 06-1502): On July 9, 2008, the U.S. District Court
for the Central District of California remanded this case to the
Interior Board of Indian Appeals. This case involves a challenge
brought by two citizen groups from the Santa Ynez Valley to the IBIA's
decision that the groups lacked standing to challenge the Department's
decision to take land in trust for the benefit of the Santa Ynez Band
of Chumash Mission Indians. In short, the district court vacated the
IBIA order and remanded the case to the IBIA, requiring the IBIA to
specifically ``articulate its reasons (functional, statutory, or
otherwise) for its determination of standing, taking into account the
distinction between administrative and judicial standing and the
regulations governing administrative appeals.''
On February 8, 2010, the citizen groups filed their opening brief
before the IBIA, not only addressing the issue of standing, but arguing
on the merits that the Secretary does not have authority to take land
in trust for the Tribe. The groups argue that the Supreme Court's
decision in Carcieri ``dramatically changed the legal landscape with
respect to the power and the authority of the Secretary of the Interior
and the BIA to take land into federal trust for Indian tribes.'' The
groups provided exhibits--including a 1937 list which references
``Santa Ynez'' as having a reservation/Rancheria, but does not
reference a particular ``tribe''--all of which they allege lead ``to
the conclusion that the Santa Ynez Band was not a tribe under federal
jurisdiction in 1934.'' On May 17, 2010, the IBIA partially remanded
back to the BIA for the purpose of answering the Carcieri question.
On May 23, 2012, the Associate Solicitor for the Division of Indian
Affairs signed an opinion confirming that neither Carcieri nor Office
of Hawaiian Affairs limits the Secretary's authority to acquire land in
trust for Santa Ynez. Under Federal jurisdiction was demonstrated by
establishment of the Reservation in 1906, IRA vote in 1934, and BIA
Census in 1934. On June 13, 2012, the Regional Director affirmed the
original 2005 trust acquisition decision on the basis that Carcieri did
not limit the Secretary's authority to acquire land in trust.
Several parties have filed Notices of Appeal with the IBIA
challenging the Regional Director's June 13, 2012 Notice of Decision.
On July 30, 2012, the IBIA received copies of Notices of Appeal from
``No More Slots'' and ``Santa Ynez Valley Concerned Citizens.'' On
August 8, 2012, the IBIA issued an order directing these parties to
show cause, on or before September 10, 2012, why their appeals should
not be dismissed as untimely. On August 16, 2012, the IBIA received a
Notice of Appeal from ``Preservation of Los Olivos'' and ``Preservation
of Santa Ynez'' (``POLO/POSY''). On August 21, 2012, the IBIA also
ordered POLO/POSY to show cause, on or before September 20, 2012, why
their appeal should not be dismissed as untimely.
California Coastal Commission and Governor Arnold Schwarzenegger v.
Pacific Regional Director, Bureau of Indian Affairs (IBIA Nos. 10-023,
10-024): The Coastal Commission and Governor (``Appellants'') filed an
appeal to the October 2, 2009 decision of the Pacific Regional Director
to take a 5-acre parcel in Humboldt County in trust for the Big Lagoon
Rancheria. In their appeal, the Appellants refer to the U.S. Supreme
Court's decision in Carcieri and allege that the Big Lagoon Rancheria
was not under federal jurisdiction in 1934 and, therefore, the
Secretary lacks authority to take lands in trust for the Tribe.
On January 28, 2010, the Assistant Regional Solicitor filed a
Motion For Remand of Decision to BIA Regional Director, based on the
January 27, 2010 memorandum of the Assistant Secretary of Indian
Affairs. The Assistant Secretary directed the Regional Director to
request a remand ``from the IBIA for the purpose of applying the
holding of Carcieri v. Salazar to your decision and to determine
whether Big Lagoon was under Federal Jurisdiction in 1934.'' On
February 19, 2010, the IBIA reversed the Regional Director's decision
and remanded the whole decision back to the BIA.
Objections to Pending Applications Before the Department of the
Interior
Lytton Rancheria 92 Acre Fee to Trust Application: Letter dated
October 8, 2009 (with attachments) from Andra Lynn Hoch, Legal Affairs
Secretary, Office of the Governor, to Dale Morris, Regional Director,
Bureau of Indian Affairs, opposing application based on Supreme Court's
holding in Carcieri. Specifically, the letter states that based on the
facts available to the Governor's office, ``it appears that the
Secretary lacks authority to take any land in trust under the
provisions of 25 U.S.C. 465. First, no claim has or could be made
that Lytton existed as a tribe prior to European contact, or that
Lytton is a successor-in-interest to a previously extant tribe . . .
Second, under the definition of a tribe set forth in 25 U.S.C. 479
(``Indians residing on one reservation''), the United States could not
have recognized the Indians living on the fifty acres near Lytton Road
as a tribe, or asserted jurisdiction over them in 1934 because no
Indians resided on the land in 1934.''
United Keetoowah Band of Cherokee Indians v. Bureau of Indian
Affairs: On September 10, 2010, Assistant-Secretary for Indian Affairs
Larry Echohawk issued a decision in a case involving a free-to-trust
application for 76-acres of land filed by the United Keetoowah Band of
Cherokee Indians. In June 2009, the Assistant Secretary issued a
decision taking jurisdiction from the IBIA over the Tribe's appeal from
the Regional Director's denial of the application and stated:
The UKB application raises an issue that was not presented to
or addressed by the Carcieri Court. The Carcieri Court had to
decide whether the Secretary could take land into trust today
for members of a tribe that was in existence in 1934, and still
is, but that was not under federal jurisdiction in 1934. The
UKB application raises the question whether the Secretary can
take land into trust today for members of a tribe that was not
in existence in 1934 if that tribe is a successor in interest
to a tribe that was in existence and under federal jurisdiction
in 1934. This question requires further consideration.
In the September 10, 2010, decision, the Assistant Secretary
directs the Regional Director to allow the Tribe ``to amend its
application in one of the following ways: (1) continue to invoke my
authority under Section 5 of the Indian Reorganization Act but seek to
have the land taken in trust for one or more half-blood members who
could later transfer their interest of the UKB; (2) invoke my authority
under Section 3 of the Oklahoma Indian Welfare Act (OIWA) and seek to
have the land held in trust for the UKB Corporation; (3) invoke my
authority under Section 1 of the OIWA and supplement the record with
evidence to show that the parcel satisfies the conditions of Section 1
[e.g. agricultural lands].''
The Chairman. Thank you very much, Mr. Echohawk.
And now Ms. Routel, will you proceed with your statement?
STATEMENT OF COLETTE ROUTEL, ASSOCIATE PROFESSOR, WILLIAM
MITCHELL COLLEGE OF LAW
Ms. Routel. Good afternoon, Chairman Akaka. Thank you for
inviting me here today.
This is my third time testifying about the impacts of the
U.S. Supreme Court's decision Carcieri v. Salazar. Each time I
had advocated for a quick and clean legislative fix,
acknowledging that all Tribes should receive the benefit of the
Indian Reorganization Act. Each time, speakers have detailed
the potential impacts of that decision. And some of those
impacts may have been dismissed as doomsday prophecies. But
nearly all of them have come to pass.
The one-two punch delivered by the U.S. Supreme Court in
Carcieri and Patchak threatens the very foundation of the
Indian Reorganization Act, which was meant to be a new deal for
Indian Tribes. As this Committee's report already makes clear,
from 1880 to 1933, over 100 million acres of land left Indian
hands. Two of the main purposes behind the IRA were to help
Tribes reacquire this land and to halt further land loss. The
Carcieri decision has impeded the purpose of the IRA by making
land acquisition much more difficult.
Over the past three years, it seems as though nearly every
trust acquisition has been challenged by a party claiming that
the particular Tribe was not under Federal jurisdiction when
the IRA was adopted.
BIA policy grants a voluntary stay if a lawsuit is brought
within 30 days of the decision to take land into trust. This
policy was meant to provide States and local governments with
an opportunity to have their legitimate concerns heard by a
Federal court. But it is now being misused to fuel frivolous
litigation. Litigants realize that for the duration of their
lawsuit, the land will remain in fee status, which means that
State property taxes or local property taxes must continue to
be paid.
If the land is outside of Indian Country, that means that
all of their State laws will continue to be complied with,
including land use requirements. This gives them the incentive
they need to pursue litigation, even though there might be no
possibility of success. As a result, Tribes will face Carcieri
challenges, even if they voted to accept the IRA in 1934, which
should be conclusive proof that they were under Federal
jurisdiction on that date.
More serious challenges occur when an Indian Tribe did not
vote to accept the IRA during the first few years of its
implementation. Indian Tribes that did not have a land base in
1934 were typically precluded from voting on the Act. Other
Tribes were forgotten or prevented from voting due to the
Department's mistakes. So just making that State jurisdiction
over a Tribe precluded Federal jurisdiction. This is exactly
why Justice Breyer wrote in his concurring opinion in Carcieri
that a Tribe could be under Federal jurisdiction in 1934 even
if the Department didn't know it at the time.
For these Tribes, Carcieri is more difficult. Before I came
out here to testify, I spoke with Bruce White, who is a good
friend of mine, and he is also an ethnohistorian who is an
expert in Ojibwe and Dakota history. He walked me through the
research process that Tribes are going to have to go through to
establish that they were under Federal jurisdiction in 1934. I
tried to detail that in my written testimony, but suffice it to
say, it requires you going to multiple locations, National
Archives here in Washington, D.C., potentially sites in Chicago
and Kansas City, and sifting through documents that are in
chronological order, not in the order of particular Tribes.
That is expensive, it is time-consuming and to have to engage
in that process and then the years of litigation that will
follow serves no current policy purposes.
The U.S. Supreme Court's decision in Patchak has
exasperated these problems. Now litigants can bring challenges
against land already held in trust, even if that land was
acquired before the Carcieri decision. That is contrary to the
purposes of the IRA. The IRA was designed to ensure that Tribes
would never again face the divestment of Tribal lands. That is
what Patchak seems to allow to happen.
Patchak's reach is unclear at this point, but it will
likely have a profound impact on all Tribes. Shortly after the
Patchak decision was released, Fitz Ratings issued a press
release stating that raise in capital for Indian economic
development projects would become more difficult and expensive.
In closing, when you think about this fix, I want to leave
you with one example, and that is the Mashpee Wampanoag Tribe.
This is the Tribe that our children celebrate every fall for
their help of the pilgrims who arrived completely unprepared
for the harsh winters here in the new world. This is the Tribe
that endured misguided assimilation attempts and lost virtually
their entire land base due to an allotment program. This is a
program that was administered by the State of Massachusetts
when Henry Dawes was a State legislator, before he went on to
this Congress and helped draft the General Allotment Act. This
is the Tribe that asked to be recognized in 1975, and when no
action was taken on that petition, was forded to bring a
Federal court lawsuit in 2000. This is the Tribe that was
finally recognized in 2007, after proving that despite
everything, it continued to exist from the 1600s to the
present.
Today this Tribe still has no trust lands and nearly half
of its members are living below the poverty line. This is a
Tribe that should not have to wait any longer. It should not
have to wait for the BIA to determine that they were under
Federal jurisdiction in 1934, or for the frivolous lawsuit that
will challenge that determination. This is a Tribe that has
elders that are passing away year after year, that struggled
for decades to win recognition and just want to see their
reservation, their homeland.
Do not make the Mashpee or any other Tribe wait any longer.
You can make a profound difference by passing a Carcieri fix
now. Thank you.
[The prepared statement of Ms. Routel follows:]
Prepared Statement of Colette Routel, Associate Professor, William
Mitchell College of Law
Good afternoon Chairman Akaka and distinguished members of the
Committee. Thank you for inviting me here today.
This is my third time testifying before Congress about the U.S.
Supreme Court's decision in Carcieri v. Salazar. \1\ In 2009, when I
testified before the U.S. House Committee on Natural Resources, I
focused my attention on the decision itself, explaining why Carcieri
was contrary to the legislative history of the Indian Reorganization
Act (IRA), the circumstances surrounding the Act's passage, and 75
years of Executive Branch practice. Last year, I testified before this
Committee on the impacts of the Carcieri decision, and I advocated for
a clean fix. I began by explaining how the decision was contrary to
Congressional policy that requires all federally recognized Indian
tribes to be treated equally. \2\ I also discussed how Congress has
encouraged unrecognized tribes to pursue recognition through the Office
of Federal Acknowledgement's administrative process, yet Carcieri
disadvantages tribes that have followed this direction. \3\ Finally, I
emphasized that the impact of Carcieri was being felt by all tribes.
Even Indian tribes that voted on acceptance of the IRA just months
after its passage have faced frivolous litigation by states and local
governments. While these trust acquisitions are delayed for years, new
jobs are not created, and tribal economic development is stymied.
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\1\ 555 U.S. 379 (2009).
\2\ Instead, the Carcieri decision creates two classes of tribes:
those that were ``under federal jurisdiction'' in 1934, and those that
were not. The benefits of the IRA, which are not limited to land
acquisition, are now unavailable to the latter group.
\3\ Nearly all of the tribes recognized directly Congress have
express provisions in their recognition bills that make the IRA
applicable to both the tribe and its members. Tribes who waded through
the decades-long OFA process have no such insulation.
---------------------------------------------------------------------------
In this hearing, while I am willing to answer any questions you
might have about my prior testimony, I will focus my attention on new
developments that have occurred over the past year and matters that
have not otherwise been covered by this Committee's very thorough May
17, 2012 report.
I. Current Interpretations of the IRA's Definition of Indian
The Indian Reorganization Act defines the term ``Indian'' to
include ``all persons of Indian descent who are members of any
recognized Indian tribe now under Federal jurisdiction.'' \4\ In
Carcieri, the Court decided that the word ``now'' referred to the time
of the statute's enactment. \5\ Therefore, to take advantage of the
benefits of the IRA, an Indian tribe must prove it was ``under federal
jurisdiction'' in June 1934. But Carcieri did not offer any guidance
regarding how the phrases ``recognized Indian tribe'' or ``under
federal jurisdiction'' should be interpreted. Instead, the majority
opinion used a technical procedural rule to conclude that the
Narragansett Tribe did not satisfy these restrictions. \6\
---------------------------------------------------------------------------
\4\ 25 U.S.C. 479.
\5\ Carcieri, 555 U.S. at 382.
\6\ The Bureau of Indian Affairs had not considered whether the
Narragansett Tribe was under federal jurisdiction in 1934, because it
believed that the IRA applied equally to all federally recognized
tribes. Although this was not part of the agency's decision, and even
though the merits of the issue had not been briefed or argued in the
Supreme Court, the majority opinion resolved this issue against the
Tribe. The State of Rhode Island made a bare assertion in its petition
for certiorari that the Tribe ``was neither federally recognized nor
under the jurisdiction of the Federal Government'' in 1934. The
respondent's opposition brief did not contradict this assertion, so it
was considered waived. Id. at 395-96 (citing U.S. Supreme Court Rule
15.2). Justices Souter and Ginsburg dissented on this point, indicating
that they would have remanded the issue to the agency to determine
whether the Narragansett were under federal jurisdiction in 1934. Id.
at 400-01.
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Now that more than three years have passed since the Court's
decision, we are only just beginning to see how these phrases might be
interpreted. The Department of the Interior's interpretation and
reasoning can be found in the Record of Decision (ROD) it issued in
conjunction with its decision to acquire land in trust for the benefit
of the Cowlitz Indian Tribe. \7\ In that ROD, the Department concluded
that the term ``recognized Indian tribe'' referred to recognition in
the cognitive sense (e.g., federal officials or anthropologists knew
that an Indian tribe existed) rather than in the more formal,
jurisdictional sense that it is commonly used today (e.g., the U.S.
acknowledges a government-to-government relationship with the tribe),
although proof of the latter would necessarily include proof of the
former. \8\ The Department also concluded that because the phrase
``recognized Indian tribe'' was not modified by the word ``now,'' a
tribe could satisfy this criterion by showing that the tribe was
recognized as of the time the Department acquired the land for its
benefit. \9\
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\7\ U.S. Dep't of the Interior, Record of Decision, Trust
Acquisition of, and Reservation Proclamation for the 151.87-acre
Cowlitz Parcel in Clark County, Washington, for the Cowlitz Indian
Tribe (Dec. 2010) (hereinafter, Cowlitz ROD). The Department has
applied the framework it articulated in the Cowlitz ROD to other Indian
tribes. See, e.g., Letter from Acting Director of the Department of the
Interior's Eastern Region to Tunica-Biloxi Tribal Chairman Earl Barbry
(Aug. 11, 2011).
\8\ Cowlitz ROD at 87-89. See also William Quinn, Federal
Acknowledgment of American Indian Tribes: The Historical Development of
a Legal Concept, 34 AM. J. LEGAL HIST. 331, 333 (1990).
\9\ Cowlitz ROD at 89.
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Interpreting the phrase ``under federal jurisdiction,'' proved to
be more complicated. The Department now requires a two-part inquiry.
First, at or prior to 1934, it must be shown that the Federal
Government has taken action ``for or on behalf of the tribe or in some
instance tribal members . . . that generally reflect federal
obligations, duties, responsibility for or authority over the tribe by
the Federal Government.'' \10\ Second, once the tribe has established
that it was once under federal jurisdiction, it must demonstrate that
this was still true in 1934. Still, the failure of the Federal
Government to take any actions on behalf of a tribe during a particular
time period does not reflect a loss of the tribe's jurisdictional
status. Rather, there must be affirmative evidence that a tribe's
jurisdictional status was terminated.
---------------------------------------------------------------------------
\10\ Id. at 94.
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Finding and assembling the information necessary to satisfy this
two-part inquiry is enormously time consuming and may require the tribe
to review documentation over a 140-year period (from 1790, when the
Trade & Intercourse Acts were enacted, until June 1934). It includes
assembling documents demonstrating any federal actions taken to (1)
enforce the Trade & Intercourse Acts within the tribe's territory, (2)
approve contracts between a tribe (or tribal members) and non-Indians,
\11\ (3) prosecute a crime committed by an Indian under the Major
Crimes Act, (4) educate tribal children at BIA schools, and (5) provide
health care or other social services to tribal members. \12\
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\11\ The Indian Contracting Act provided that all contracts between
Indian tribes (or tribal members) and non-Indians were void unless
approved by the Secretary of the Interior. 16 Stat. 544, 570-71 (1871).
\12\ See Snyder Act of 1913, codified at 25 U.S.C. 13.
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Federal records and correspondence needed to demonstrate these
actions are scattered throughout the country in public archives and
private collections. If, for example, you were looking for information
on Michigan Indian tribes, at a minimum you would need to search the
National Archives in Chicago, Illinois and Washington, D.C., as well as
local historical societies within the State of Michigan. Historical
correspondence from or to Indian agents' or superintendents' are
usually filed in these locations in chronological order, without
divisions for differing subject matter. Thus, a researcher would be
compelled to search through decades of federal correspondence regarding
all of the tribes in the region in the hopes of finding references to
the tribe they are in fact researching. Particular record types may be
even more challenging. BIA school records for Indian children are
typically organized by the child's last name, not his or her tribal
affiliation. Therefore, genealogies or periodic historic lists of
tribal members may be needed to identify potentially relevant records.
And since Indian children were sent to boarding schools throughout the
country, this may require a researcher to visit document collections in
additional locations. These brief examples demonstrate why it is
neither easy nor straightforward to determine whether an Indian tribe
was truly ``under federal jurisdiction'' in 1934.
Worse still, it is far too early to tell whether the Department's
interpretation will be upheld by federal courts. While dozens of cases
are pending, it will take at least another decade before the various
federal circuits have developed a body of jurisprudence analyzing what
``under federal jurisdiction'' means in the IRA. Without a
Congressional fix, Indian tribes and the Federal Government will waste
needed resources assembling this information and fighting litigation
that serves no current federal Indian policy.
II. The U.S. Supreme Court's Recent Decision in Salazar v. Patchak
This summer, the United States Supreme Court magnified the problem
created by Carcieri with its decision in Match-E-Be-Nash-She-Wish Band
of Pottawatomi Indians v. Patchak. \13\ Patchak, a private landowner,
brought suit in 2008, arguing that the Secretary of the Interior had
improperly decided to acquire land in trust for the Match-E-Be-Nash-
She-Wish Band (also known as the Gun Lake Tribe). According to Patchak,
the Tribe was not under federal jurisdiction in 1934, and therefore,
the Secretary did not have the authority to take land into trust under
the IRA. He sought a stay in the District Court to prevent the United
States from acquiring the property in trust. But his motion was denied,
and he did not appeal this decision. Instead, when his case was later
dismissed on standing grounds, Patchak appealed to the U.S. Court of
Appeals for the District of Columbia, and ultimately, the U.S. Supreme
Court.
---------------------------------------------------------------------------
\13\ 132 S.Ct. 2199 (2012).
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The U.S. Supreme Court held that Patchak satisfied the requirements
of prudential standing by alleging that he was a nearby landowner and
the Tribe's economic development plans for the parcel would cause him
environmental, economic, and aesthetic harm. The respondents had argued
that he was not within the statute's zone of interests because Section
5 of the IRA provides for land acquisition, and Patchak's injuries
would be caused, if at all, by land use. The Court rejected this
distinction, however, finding that the prudential standing test ``is
not meant to be especially demanding,'' and Patchak had demonstrated
that he was arguably within the statute's zone of interests.
Additionally, the Court concluded that Patchak's case was not moot
even though the land had already been taken into trust. Overturning 30
years of lower court decisions to the contrary, the Supreme Court held
that if successful, Patchak's lawsuit could divest the Federal
Government of title to the land. Because he was not claiming an
ownership interest in the land himself, the Quiet Title Act's
prohibition on such lawsuits did not apply.
Prior to Patchak, States and local governments seeking to challenge
trust land acquisitions were required to file their lawsuits within 30
days. \14\ If they did so, as a matter of policy, the Department
routinely agreed to a voluntary stay, and the land would not be taken
into trust until after the lawsuit had been fully resolved. If
litigants missed this 30-day deadline, however, the land was taken into
trust and all challenges to the acquisition were barred.
---------------------------------------------------------------------------
\14\ 25 CFR 151.12(b).
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Following Patchak, the Department faces lawsuits from a broader
array of interested persons--not simply States and local governments.
Additionally, now a 6-year statute of limitations most likely applies
to trust acquisitions. \15\ Even if a parcel of land has been held by
the United States in trust for the tribe for years, litigants can bring
suit to challenge that decision and seek relief that includes taking
the land out of trust. Before Patchak, the Carcieri decision brought
new trust acquisitions to a halt. After Patchak, tribes will be faced
with a new wave of lawsuits seeking to take their land out of trust.
---------------------------------------------------------------------------
\15\ Patchak, 132 S.Ct. at 2217 (Sotomayor dissenting).
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This decision will have profound impacts on Indian tribes. Projects
financed and developed before the Carcieri decision was even issued are
now at risk. If litigation is filed challenging the Secretary's
decision to take land into trust, and that litigation proves
successful, a tribe's business or housing project may now be outside of
Indian country and subject to state law that could prohibit its
continued operation or require the payment of property, sales, and
other state and local taxes. The Patchak decision will also have a
significant impact on new economic development. Will land lie fallow
for six years after its acquisition? Or will tribes risk building a
business on trust property that they could later be compelled to shut
down if a lawsuit is filed years later? Will financial institutions
finance through this risk?
Shortly after the Patchak decision was released, Fitch Ratings (one
of the big three credit ratings agencies) noted that raising capital
for Indian economic development projects ``could become more difficult/
expensive, as investors are likely to have heightened concern about
potential challenges regarding land-into-trust decisions.'' \16\ The
ratings agency went on to state that the decision may ``embolden
additional parties to step forward to challenge land-into-trust
decisions that took place within the last six years,'' and that there
was ``a fair amount of uncertainty'' regarding when the six-year
statute of limitations would be held to start running in such cases.
\17\
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\16\ Patchak Supreme Court Decision Has Mixed Credit Implications
for Gaming Sector, Fitch Ratings (June 19, 2012).
\17\ Id.
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In the past, Indian tribes were forced to access non-traditional
sources of financing (e.g., private investor, developer) and pay
extraordinarily high interest rates to acquire land, develop their
business plans, and work through the administrative process of having
that land taken into trust by the United States. Once the land was
taken into trust, however, tribes were able to access the bond market
to obtain the capital needed to construct and open their business.
Then, after the business had been operating for a period of time,
tribes could seek to refinance their debt through conventional bank
loans. At each stage of this process, the interest rates offered to
Indian tribes are lowered, because the legal and business risks
continue to diminish. Patchak threatens to disrupt this process,
because it allows the largest risk (land status and jurisdiction) to
linger for years following the Secretary's decision.
For these reasons, it remains my hope that Congress will pass a
clean fix that overturns Carcieri v. Salazar and reiterates its long-
standing policy that all federally recognized Indian tribes should be
treated equally, regardless of when or how they gained recognition.
The Chairman. Thank you very much, Ms. Routel.
President Keel, the Carcieri and Patchak decisions run
contrary to Congress' declaration in 1994 that all federally-
recognized Tribes will be treated the same, regardless of date
they receive Federal recognition.
My question to you is, how are these decisions, which once
again create two classes of Tribes, how is it impacting Indian
Country?
Mr. Keel. Thank you, Mr. Chairman, for the question. Tribes
are now forced, many Tribes, to expend precious resources in
combating and overcome these types of actions. There are, in
the Patchak decision case, there are communities who challenge
the very structure by which the Tribes placed land into trust,
or the Interior placed land into trust for the benefit of
Tribes. So Tribes are now having to go back and defend their
right to have those lands in trust.
And again, it takes both resources, it is expensive, as you
have heard. It is time-consuming and totally unnecessary.
The fact of the matter is, when Tribes place, or when land
is placed into trust for Tribes, the benefit is not only for
Tribal citizens, primarily, but in the economic development
sense, all the communities, all those people who are
neighboring communities benefit from that in the way of jobs,
the types of development that allows families to support
themselves.
So these types of actions are unnecessary and it causes the
Tribes great cost in resources, time and efforts.
The Chairman. Thank you.
Mr. Echohawk, NARF testified at the Committee's October
hearing and wondered if Congress does not fix Carcieri, legal
challenges to lands in trust would expand. Now that the Supreme
Court has decided the Patchak case, what do you think, and what
do you predict the impact will be, if legislation is not
enacted?
Mr. Echohawk. Mr. Chairman, we think the litigation,
because of the Patchak decision, will expand as more and more
people are allowed to challenge the acquisition of lands
already taken into trust for Tribes under the Court's
interpretation of the Administrative Procedures Act and the
Quiet Title Act. Anyone who is unhappy with the acquisition of
land by a Tribe in trust has up to six years after the land has
been acquired to bring a lawsuit for any reason whatsoever, a
Carcieri reason or any other reason . We anticipate that as
word gets around, there will be more and more of that
litigation filed.
The Chairman. Thank you very much.
Professor Routel, the Committee has heard testimony of the
negative impacts the Carcieri decision has had on economic
development in Indian Country. Can you give, or can you
describe the additional impacts the Patchak decision will have?
Ms. Routel. Sure, thank you, Mr. Chairman. I think what has
been mentioned before is that certainty is very important when
we are talking about financing development in Indian Country.
It is already, before these decisions it was hard to get
financing. If you look at the way it works as a practical
matter, Tribes had to go to high risk individuals, developers,
to get the initial capital that was need to acquire the land
and to create business plans. It was only after the land was
taken into trust that they could access things like the bond
market, which is still a very high interest rate. Then once
they have the business up and running, then they can go to a
bank and get more conventional financing.
So the idea is that your interest rate lowers at each step
of the process, because the risk is being lowered each step.
And the real key is when the land goes into trust. That was the
key, because no one ever thought that land that was in trust
could go out of trust. That is the potential harm that Patchak
could create.
It is hard for me to imagine how a bank is going to finance
through or how underwriters are going to finance through a
threat like that, a threat that you have lent money to build
and operate a business, and now all of a sudden you can't
continue to operate that business because the land isn't held
in trust any more. Attorneys evaluate the risks of litigation
all the time, so you can say maybe attorneys can look at this
and evaluate it for their clients. But the problem is, Patchak,
now they are so long, there is a six-year period within which
you can file a lawsuits, and if the financing happens any time
before then, you will need to have litigation documents to try
to figure out what the lawsuit is about, to what the claims are
from the other side.
So I think the important thing here is that this creates a
lot of uncertainty for financial institutions and financial
institutions don't want uncertainty. At a minimum it will raise
interest rates for Tribes. But it could actually prevent them
from getting financing.
The Chairman. Thank you, Professor.
President Keel, NCAI is holding a Tribal unity impact week
next week in the hopes of raising awareness of the need for a
Carcieri fix. What do your member Tribes hope to accomplish at
that event related to Carcieri and Patchak?
Mr. Keel. Thank you, Mr. Chairman. I think the fact is,
Tribal leaders across the Country understand that Congress has
it within their power to enforce these laws and that the
Supreme Court has simply turned this legislation on its head.
And Congress, we hope that Congress will move quickly to enact
a clean fix to the Carcieri decision and remove the gray area
from the law.
The Chairman. Thank you very much.
Mr. Echohawk, NARF's Supreme Court project identifies legal
cases that are in the lower courts, and at the Supreme Court,
that could have significant impacts on Federal Indian law. Have
the Carcieri and Patchak decisions led to increased legal
challenges that could have significant impacts on the Tribes?
Mr. Echohawk. Yes, Mr. Chairman, those issues have
increased the litigation surrounding the acquisitions of land
into trust. With my testimony, I submitted the comprehensive
list of those cases. They continue to move forward, and we
expect that those challenges, that number of cases, will
proliferate as more and more people, who are for whatever
reason dissatisfied with the acquisition of lands into trust by
Tribes, whether for a Carcieri-related reason or other reason,
will bring litigation and we will have more cases that we need
to monitor.
We worked very close on the Supreme Court project with the
National Congress of American Indians and the Tribal leaders
and other Tribal attorneys. Across the board, there is great
concern about this increase in the number of cases. It is more
and more work for the project to follow these cases and get the
information out and keep an eye out for more cases that we
think will be filed.
The Chairman. Thank you.
Professor Routel, if Patchak wins on the merits in the
lower courts, what do you think the ripple effect will be on
Tribe throughout the Country?
Ms. Routel. It is tough to say what the impact would be,
but it would be catastrophic if the ruling is that the land
could be taken out of trust. I guess maybe I would liken it to
what happened with the housing market. A number of people,
including myself, actually, had interest-only mortgages. And
when the interest-only term is up, you have to make a balloon
payment, which no one can make, so they expect to be able to
refinance.
Well, that same thing that happens with Indian Tribes, they
have bond deals, the Gun Lake Tribe had a bond financing to get
its casino up and running. At some point, the bonds become due
and at that point you need to refinance and do a conventional
bank loan. And if you can't refinance because the land is no
longer in trust and the likelihood of you being able to
continue your casino operation is in doubt, I am not sure what
the answer is for Indian Tribes.
So it would be catastrophic if they actually win on the
merits of it. And I don't think they will. The Gun Lake Tribe
had a long treaty relationship with the United States, and the
United States had obligations to them under those treaties,
even in 1934. But surely, the Tribe has expended an enormous
amount of time and money defending these lawsuits that have
been going on for years. So a quick fix, hopefully from
Congress, could alleviate these concerns.
The Chairman. Well, I want to express my mahalo and thank
you to the panels and witnesses at today's hearing. As we have
heard today, the negative impacts of the Carcieri and Patchak
decisions continues to multiply. Administrative burdens imposed
on the Federal Government grow, and more and more Tribal and
governmental resources are siphoned away from basic human
services and also trust responsibilities.
As I have said before, I believe that it is the
responsibility of Congress to set this right. We must act this
Congress.
This Committee has established an extensive record over the
past 18 months which demonstrates the negative impacts. Now is
the time for Indian Country, the Administration, and Congress
to stand up for what is right and pass a Carcieri fix.
We are uncertain about our schedule for the rest of the
year. So we wanted to hear from you on this and we need, of
course, to look for options of time to try to get these
considered by the U.S. Senate.
But we are not going to give up. We are going to keep
trying here. Hopefully things will work out. But it is great to
hear from you and to know what has been happening out there now
and how the problem is growing here and the need to fix it. So
there is no question, our support is great. But we have to do
it right and try to pass a clean, clean bill.
So again, I want to thank you so much for helping out and
responding to our questions. We just want to look forward to
still trying to get it passed this year. So I just wanted to
mention that to you and again to say mahalo, thank you to all
of you for your efforts as well.
This hearing is adjourned.
[Whereupon, at 3:50 p.m., the Committee was adjourned.]
A P P E N D I X
Prepared Statement of Mike McGowan, President, California State
Association of Counties (CSAC)
Dear Chairman Akaka and Members of the Committee:
On behalf of the California State Association of Counties (CSAC),
which is the unified voice on behalf of all 58 counties in California,
I am writing to provide you with our perspective on the significance of
the U.S. Supreme Court's decision in Carcieri v. Salazar. As the
Committee continues to weigh the implications of this decision, I urge
you to take into consideration the views of local governments.
On February 24, 2009, the Supreme Court held that the Secretary of
the Interior lacked the authority to take land into trust on behalf of
Indian tribes that were not under federal jurisdiction upon enactment
of the Indian Reorganization Act (IRA) in 1934. In the wake of this
decision, various legislative proposals have been introduced seeking to
restore the Secretary's authority to take land into trust for all
tribes.
CSAC supports the rights of Indian tribes to self-governance and
recognizes the need for tribes to preserve their heritage and to pursue
economic self-reliance. We do not believe, however, that the Secretary
should have unbridled authority to take land into trust for tribes
under a broken fee-to-trust system. Unfortunately, the so-called
``quick fix'' approach as embodied in various pending legislative
proposals fails to consider the larger problems associated with the
fee-to-trust process and would only perpetuate the problems that have
resulted in years of expensive and unproductive conflict between tribes
and local governments.
Congress should instead address the impacts of the Carcieri
decision as part of broader trust reform legislation. Rather than a
``quick fix,'' Congress should work toward a real and lasting solution
that is consistent with the original intent of the IRA and provides
clear and enforceable standards.
In addition to standards, the current process lacks sufficient
notification requirements. In many instances, local governments are
afforded limited, and often late, notice of pending trust land
applications. Accordingly, changes need to be made to ensure that
affected governments receive timely notice of fee-to-trust applications
for tribal development projects and have adequate opportunity to
provide meaningful input.
CSAC also believes that intergovernmental agreements should be
required between tribes and local governments to provide mitigation for
adverse impacts of development projects, including environmental and
economic impacts from the transfer of the land into trust. When land is
placed into trust, the property no longer falls under the auspices of
local land use jurisdiction and the land is no longer subject to local
taxing authority; however, local governments are still required to
provide essential services, such as road construction, law enforcement,
and welfare services. In these difficult economic times, local
governments are struggling financially to continue to provide these
critical services. Intergovernmental agreements to mitigate these costs
would be beneficial for both tribal and local governments.
In our view, a balanced trust reform proposal would extend tribal
trust land acquisition authority to the Secretary and would also
include clear direction to: (1) provide adequate notice to local
governments, (2) consult with local governments, (3) provide incentives
for tribes and local governments to work together, and (4) provide for
cooperating agreements that are enforceable.
Thank you for considering our views regarding this very important
matter. CSAC remains committed to continuing to work with Congress to
develop a fee-to-trust process that balances the needs of both tribal
and local governments. For more information on our position, please see
the attached document, which includes joint testimony from CSAC and the
National Association of Counties (NACo) that was delivered last year at
a House Natural Resources Committee hearing on Carcieri v. Salazar.
Attachment
Prepared Statement of Hon. Susan Adams, Supervisor, Marin County,
California Before the United States House of Representatives, House
Natural Resources Committee, Subcommittee on Indian and Alaska Native
Affairs; on Behalf of the National Association of Counties and the
California State Association of Counties
h.r. 1291 (cole), 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; and h.r. 1234 (kildee), 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--july 12, 2011
Thank you Chairman Young, Ranking Member Boren and Members of the
Subcommittee for the opportunity to testify today on H.R. 1291 and H.R.
1234. I also want to take this opportunity to thank Chairman Hastings
and his staff for their continued accessibility and efforts to include
county governments in the ongoing discussions involving the far-
reaching implications of the Supreme Court's Carcieri v. Salazar
decision.
My name is Susan Adams and I am a County Supervisor in Marin
County, California and currently sit on the Board of Directors for the
California State Association of Counties (CSAC). This testimony is
submitted on behalf of the National Association of Counties (NACo) and
CSAC, both of which have been actively involved in pursuing federal
laws and regulations that provide the framework for constructive
government-to-government relationships between counties and tribes.
Established in 1935, NACo is the only national organization
representing county governments in Washington, DC. Over 2,000 of the
3,068 counties in the United States are members of NACo, representing
over 80 percent of the nation's population. NACo provides an extensive
line of services including legislative, research, technical and public
affairs assistance, as well as enterprise services to its members.
CSAC, which was founded in 1895, is the unified voice on behalf of
all 58 of California's counties. The primary purpose of CSAC is to
represent county government before the California Legislature,
administrative agencies and the Federal Government. CSAC places a
strong emphasis on educating the public about the value and need for
county programs and services.
For perspective on NACo's and CSAC's activities and approach to
Indian Affairs matters, attached to this testimony is the pertinent
NACo policy on the Carcieri v. Salazar decision and CSAC's
Congressional Position Paper on Indian Affairs.
The intent of this testimony is to provide a perspective from
counties regarding the significance of the Supreme Court's decision in
Carcieri and to recommend measures for the Subcommittee to consider as
it seeks to address the implications of this decision in legislation.
We believe that the experience of county governments is similar
throughout the nation where trust land issues have created significant
and, in many cases, unnecessary conflict and distrust of the federal
decisionmaking system for trust lands. The views presented herein also
reflect policy positions of many State Attorneys General who are
committed to the creation of a fee to trust process where legitimate
tribal interests can be met, and legitimate state and local interests
properly considered (see attached policies).
It is from this local government experience and concern about the
fee to trust process that we address the implications of the Carcieri
decision. On February 24, 2009, the U.S. Supreme Court issued its
landmark decision on Indian trust lands in Carcieri v. Salazar. The
Court held that the Secretary of the Interior lacks authority to take
land into trust on behalf of Indian tribes that were not under the
jurisdiction of the Federal Government upon enactment of the Indian
Reorganization Act (IRA) in 1934.
In the wake of this significant court decision, varied proposals
for reversing the Carcieri decision have been generated, some proposing
administrative action and others favoring a congressional approach.
Today's hearing is recognition of the significance of the Carcieri
decision and the need to consider legislative action. We are in full
agreement that administrative or regulatory action to avoid the
decision in Carcieri is not appropriate, but we urge the Subcommittee
that addressing the Supreme Court decision in isolation of the larger
problems of the fee to trust system misses an historic opportunity.
A legislative resolution that hastily returns the trust land system
to its status before Carcieri will be regarded as unsatisfactory to
counties, local governments, and the people we serve. Rather than a
``fix,'' such a result would only perpetuate a broken system, where the
non-tribal entities most affected by the fee to trust process are
without a meaningful role. Ultimately, this would undermine the
respectful government-to-government relationship that is necessary for
both tribes and neighboring governments to fully develop, thrive, and
serve the people dependent upon them for their well being.
Recommendation
Our primary recommendation to this Subcommittee and to Congress is
this: Do not advance a congressional response to Carcieri that allows
the Secretary of the Interior to return to the flawed fee to trust
process. Rather, carefully examine, with input from tribal, state and
local governments, what reforms are necessary to ``fix'' the fee to
trust process and refine the definition of Indian lands under the
Indian Gaming Regulatory Act (IGRA). A framework for such reforms is
outlined below. Concurrently, NACo and CSAC join in the request of
Members of Congress that the Secretary of the Interior determine the
impacts of Carcieri, as to the specific tribes affected and nature and
urgency of their need, so that a more focused and effective legislative
remedy can be undertaken.
What the Carcieri decision presents, more than anything else, is an
opportunity for Congress to carefully exercise its constitutional
authority for trust land acquisitions, to define the respective roles
of Congress and the executive branch in trust land decisions, and to
establish clear and specific congressional standards and processes to
guide trust land decisions in the future. A clear definition of roles
is acutely needed regardless of whether trust and recognition decisions
are ultimately made by Congress, as provided in the Constitution, or
the executive branch under a congressional grant of authority. It
should be noted that Congress has power not to provide new standardless
authority to the executive branch for trust land decisions and instead
retain its own authority to make these decisions on a case-by-case
basis as it has done in the past, although decreasingly in recent
years. Whether or not Congress chooses to retain its authority or to
delegate it in some way, it owes it to tribes and to states, counties,
local governments and communities, to provide clear direction to the
Secretary of the Interior to make trust land decisions according to
specific congressional standards and to eliminate much of the conflict
inherent in such decisions under present practice. The reforms
suggested by NACo and CSAC are an important step in that direction.
We respectfully urge Members of this Subcommittee to consider both
sides of the problem in any legislation seeking to address the trust
land process post-Carcieri, namely: (1) the absence of authority to
acquire trust lands, which affects post-1934 tribes, and (2) the lack
of meaningful standards and a fair and open process, which affects
states, local governments, businesses and non-tribal communities. As
Congress considers the trust land issue, it should undertake reform
that is in the interests of all affected parties. The remainder of our
testimony addresses the trust land process, the need for its reform,
and the principal reforms to be considered.
Legislative Background
In 1934, Congress passed the Indian Reorganization Act (IRA) to
address the needs of impoverished and largely landless Indians. The
poverty of Indians was well-documented in 1934 and attributed in
substantial part to the loss of Indian landholdings through the General
Allotment Act of 1887 and federal allotment policy. Congress sought to
reverse the effects of allotment by enacting the IRA, which authorizes
the Secretary of the Interior to acquire land in trust for tribes
through section 5. Acquiring land in trust removes land from state and
local jurisdiction and exempts such land from state and local taxation.
As envisioned by its authors, the land acquisition authority in the
IRA allowed the Secretary to fill in checker-boarded reservations that
had been opened to settlement through allotment, and create small
farming communities outside existing reservations, to allow
impoverished and landless Indians to be self-supporting by using the
land for agriculture, grazing, and forestry. Western interests in
Congress resisted even that modest land acquisition policy, because
they did not want new reservations and did not want existing
reservations, where non-Indians already owned much of the allotted
land, to be filled in and closed. As a result, the IRA bill was
substantially rewritten and stripped of any stated land acquisition
policy, leaving the Secretary's authority to take land into trust
unsupported by any statutory context. In fact, Western interests took
the further step, after enactment, of restricting funding for the land
acquisitions called for by the IRA. Even with full funding, the annual
appropriations called for under the IRA would have allowed the
Secretary to purchase only 200 160-acre farms per year. Funding for
land acquisitions was eliminated during World War II. Following World
War II, federal Indian policy moved back toward assimilation and away
from creating separate Indian communities. These developments caused
land acquisitions under the IRA to be infrequent and small in scope,
producing relatively small impacts on state and local governments and
rarely generating significant opposition.
In recent years, the acquisition of land in trust on behalf of
tribes, however, has substantially expanded and become increasingly
controversial. The passage of the Indian Gaming Regulatory Act (IGRA)
in 1988, in particular, substantially increased both tribal and non-
tribal investor interest in having lands acquired in trust so that
economic development projects otherwise prohibited under state law
could be built. The opportunities under IGRA were also a factor in
causing many tribal groups which were not recognized as tribes in 1934
to seek federal recognition and trust land in the past 20 years.
Further, tribes have more aggressively sought lands that are of
substantially greater value to state and local governments, even when
distant from the tribe's existing reservation, because such locations
are far more marketable for various economic purposes. The result has
been increasing conflict between, on the one hand, the Federal
Government and Indian tribes represented by the government in trust
acquisition proceedings, and on the other hand, state and local
governments.
Congressional Action Must Address the Broken System
A central concern with the current trust acquisition process is the
severely limited role that state and local governments play. The
implications of losing jurisdiction over local lands are very
significant, including the loss of tax base, loss of planning and
zoning authority, and the loss of environmental and other regulatory
power. Yet state, county and local governments are afforded limited,
and often late, notice of a pending trust land application, and, under
the current regulations, are asked to provide comments on two narrow
issues only: (1) potential jurisdictional conflicts; and (2) loss of
tax revenues. The notice local governments receive typically does not
include the actual fee-to-trust application and often does not indicate
how the applicant tribe intends to use the land. Further, in some
cases, tribes have proposed a trust acquisition without identifying a
use for the land, or identifying a non-intensive, mundane use for the
land, only to change the use to heavy economic development, such as
gaming or energy projects soon after the land is acquired in trust. As
a result, state and local governments have become increasingly vocal
about the inadequacy of the role provided to them in the trust process
and the problems with the trust process.
While the Department of the Interior understands the increased
impacts and conflicts inherent in recent trust land decisions, it has
not crafted regulations that strike a reasonable balance between tribes
seeking new trust lands and the states and local governments
experiencing unacceptable impacts. A legislative response is now not
only appropriate and timely but critical to meeting the fundamental
interests of both tribes and local governments.
The following legislative proposal addresses many of the concerns
of state and local government over the trust process and is designed to
establish objective standards, increase transparency and more fairly
balance the interests of state and local government in the trust
acquisition process. It is offered with the understanding that a so-
called Carcieri ``fix'' which leaves the fee to trust system broken is
ultimately counterproductive to the interests of tribes as well as
local and state governments.
The Problem with the Current Trust Land Process
The fundamental problem with the trust acquisition process is that
Congress has not set standards under which any delegated trust land
authority would be applied by the Bureau of Indian Affairs (BIA).
Section 5 of the IRA, which was the subject of the Carcieri decision,
reads as follows: ``The Secretary of the Interior is hereby authorized
in his discretion, to acquire [by various means] any interest in lands,
water rights, or surface rights to lands, within or without
reservations . . . for the purpose of providing land to Indians.'' 25
U.S.C. 465. This general and undefined Congressional guidance, as
implemented by the executive branch, and specifically the Secretary of
Interior, has resulted in a trust land process that fails to
meaningfully include legitimate interests, to provide adequate
transparency to the public, or to demonstrate fundamental balance in
trust land decisions. The unsatisfactory process, the lack of
transparency and the lack of balance in trust land decisionmaking have
all combined to create significant controversy, serious conflicts
between tribes and states, counties and local governments, including
litigation costly to all parties, and broad distrust of the fairness of
the system.
All of these effects can and should be avoided. Because the
Carcieri decision has definitively confirmed the Secretary's lack of
authority to take lands into trusts for post-1934 tribes, Congress now
has the opportunity not just to address the issue of the Secretary's
authority under the current failed system, but to reassert its primary
authority for these decisions by setting specific standards for taking
land into trust that address the main shortcomings of the current trust
land process. Some of the more important new standards are described
below.
Legislative Reform Framework
Notice and Transparency
1) Require Full Disclosure From The Tribes On Trust Land
Applications and Other Indian Land Decisions, and Fair Notice and
Transparency From The BIA. The Part 151 regulations, which implement
the trust land acquisition authority given to the Secretary of Interior
by the IRA, are not specific and do not require sufficient information
about tribal plans to use the land proposed for trust status. As a
result, it is very difficult for affected parties (local and state
governments, and the affected public) to determine the nature of the
tribal proposal, evaluate the impacts and provide meaningful comments.
BIA should be directed to require tribes to provide reasonably detailed
information to state and affected local governments, as well as the
public, about the proposed uses of the land early on, not unlike the
public information required for planning, zoning and permitting on the
local level. This assumes even greater importance since local planning,
zoning and permitting are being preempted by the trust land decision,
and therefore information about intended uses is reasonable and fair to
require.
Legislative and regulatory changes need to be made to ensure that
affected governments receive timely notice of fee-to-trust applications
and petitions for Indian Land Determinations in their jurisdiction and
have adequate time to provide meaningful input.
For example, Indian lands determinations, a critical step for a
tribe to take land into trust for gaming purposes, is conducted in
secret without notice to affected counties or any real opportunity for
input. Incredibly, counties are often forced to file a Freedom of
Information Act (FOIA) request to even determine if an application was
filed and the basis for the petition.
New paradigm required for collaboration between BIA, Tribes and
local government. Notice for trust and other land actions for tribes
that go to counties and other governments is very limited in coverage
and opportunity to comment is minimal; this must change. A new paradigm
is needed where counties are considered meaningful and constructive
stakeholders in Indian land-related determinations. For too long
counties have been excluded from providing input in critical Department
of Interior decisions and policy formation that directly affects their
communities. This remains true today as evidenced by new policies being
announced by the Administration without input from local government
organizations.
The corollary is that consultation with counties and local
governments must be real, with all affected communities and public
comment. Under Part 151, BIA does not invite comment by third parties
even though they may experience major negative impacts, although it
will accept and review such comments. BIA accepts comments only from
the affected state and the local government with legal jurisdiction
over the land and, from those parties, only on the narrow question of
tax revenue loss and zoning conflicts. As a result, under current BIA
practice, trust acquisition requests are reviewed under a very one-
sided and incomplete record that does not provide real consultation or
an adequate representation of the consequences of the decision. Broad
notice of trust applications should be required with at least 90 days
to respond.
2) The BIA Should Define ``Tribal Need'' and Require Specific
Information about Need from the Tribes. The BIA regulations provide
inadequate guidance as to what constitutes legitimate tribal need for
trust land acquisition. There are no standards other than that the land
is necessary to facilitate tribal self-determination, economic
development or Indian housing. These standards can be met by virtually
any trust land request, regardless of how successful the tribe is or
how much land it already owns. As a result, there are numerous examples
of BIA taking additional land into trust for economically and
governmentally self-sufficient tribes already having wealth and large
land bases.
``Need'' is not without limits. Congress should consider explicit
limits on tribal need for more trust land so that the trust land
acquisition process does not continue to be a ``blank check'' for
removing land from state and local jurisdiction. Our associations do
not oppose a lower ``need'' threshold for governmental and housing
projects rather than large commercial developments and further support
the use by a tribe of non-tribal land for development provided the
tribe fully complies with state and local government laws and
regulations applicable to other development.
3) Applications should Require Specific Representations of Intended
Uses. Changes in use should not be permitted without further reviews,
including environmental impacts, and application of relevant procedures
and limitations. Such further review should have the same notice,
comment, and consultation as the initial application. The law also
should be changed to specifically allow restrictions and conditions to
be placed on land going into trust that further the interests of both
affected tribes and other affected governments.
There needs to be opportunity for redress when the system has not
worked. BIA argues that once title to land acquired in trust transfers
to the United States, lawsuits challenging that action are barred under
the Quiet Title Act because federal sovereign immunity has not been
waived. This is one of the very few areas of federal law where the
United States has not allowed itself to be sued. The rationale for
sovereign immunity should not be extended to trust land decisions where
tribes have changed, or proposed to change the use of trust property
from what was submitted in the original request. These types of
actions, which can serve to circumvent laws, such as IGRA, and the
standard fee to trust review processes, should be subject to challenge
by affected third parties.
4) Tribes that Reach Local Intergovernmental Agreements to Address
Jurisdiction and Environmental Impacts should have Streamlined
Processes. The legal framework should encourage tribes to reach
intergovernmental agreements to address off-reservation project impacts
by reducing the threshold for demonstrating need when such agreements
are in place. Tribes, states, and counties need a process that is less
costly and more efficient. The virtually unfettered discretion
contained in the current process, due to the lack of clear standards,
almost inevitably creates conflict and burdens the system. A process
that encourages cooperation and communication provides a basis to
expedite decisions and reduce costs and frustration for all involved.
5) Establish Clear Objective Standards for Agency Exercise of
Discretion in making Fee to Trust Decisions. The lack of meaningful
standards or any objective criteria in fee to trust decisions made by
the BIA have been long criticized by the U.S. Government Accountability
Office and local governments. The executive branch should be given
clear direction from Congress regarding considerations of need and
mitigation of impacts to approve a fee to trust decision. BIA requests
only minimal information about the impacts of such acquisitions on
local communities and BIA trust land decisions are not governed by a
requirement to balance the benefit to the tribe against the impact to
the local community. As a result, there are well-known and significant
impacts of trust land decisions on communities and states, with
consequent controversy and delay and distrust of the process. It should
be noted that the BIA has the specific mission to serve Indians and
tribes and is granted broad discretion to decide in favor of tribes.
However the delegation of authority is resolved, Congress must
specifically direct clear and balanced standards that ensure that trust
land requests cannot be approved where the negative impacts to other
parties outweigh the benefit to the tribe.
Intergovernmental Agreements and Tribal-County Partnerships
NACo and CSAC believe that Intergovernmental Agreements should be
encouraged between a tribe and local government affected by fee-to-
trust applications to require mitigation for all adverse impacts,
including environmental and economic impacts from the transfer of the
land into trust. Such an approach is required and working well, for
example, under recent California State gaming compacts. As stated
above, if any legislative modifications are made, we strongly support
amendments to IGRA that facilitate a tribe, as a potential component of
trust application approval, to negotiate and sign an enforceable
Intergovernmental Agreement with the local county government to address
mitigation of the significant impacts of gaming or other commercial
activities on local infrastructure and services. Such an approach can
help to streamline the application process while also helping to insure
the success of the tribal project within the local community.
California's Situation and the Need for a Suspension of Fee-To-Trust
Application Processing
California's unique cultural history and geography, and the fact
that there are over 100 federally-recognized tribes in the state,
contributes to the fact that no two fee-to-trust applications are
alike. The diversity of applications and circumstances in California
reinforce the need for both clear objective standards in the fee to
trust process and the importance of local intergovernmental agreements
to address particular concerns.
The Supreme Court's decision in Carcieri further complicates this
picture. As previously discussed, the Court held that the authority of
the Secretary of the Interior to take land into trust for tribes
extends only to those tribes under federal jurisdiction in 1934.
However, the phrase ``under federal jurisdiction'' is not defined.
Notably, many California tribes are located on ``Rancherias,''
which were originally federal property on which homeless Indians were
placed. No ``recognition'' was extended to most of these tribes at that
time. If legislation to change the result in Carcieri is considered, it
is essential that changes be made to the fee-to-trust processes to
ensure improved notice to counties and to better define standards to
remove property from local jurisdiction. Requirements must be
established to ensure that the significant off-reservation impacts of
tribal projects are fully mitigated. In particular, any new legislation
should address the significant issues raised in states like California,
which did not generally have a ``reservation'' system, and that are now
faced with small Bands of tribal people who are recognized by the
Federal Government as tribes and who are anxious to establish large
commercial casinos.
In the meantime, NACo and CSAC strongly urge the Department of the
Interior to suspend further fee-to-trust land acquisitions until
Carcieri's implications are better understood and legislation is passed
to better define when and which tribes may acquire land, particularly
for gaming purposes.
Pending Legislation
As stated above, while our associations support legislation, it
must address the critical repairs needed in the fee to trust process.
Unfortunately, the legislation pending in the House (H.R. 1291, Rep.
Tom Cole and H.R. 1234, Rep. Dale Kildee) fails to set clear standards
for taking land into trust, to properly balance the roles and interests
of tribes, state, local and federal governments in these decisions, and
to clearly address the apparent usurpation of authority by the
Executive Branch over Congress' constitutional authority over tribal
recognition. H.R. 1291, in particular, serves to expand the undelegated
power of the Department of the Interior by expanding the definition of
an Indian tribe under the IRA to any community the Secretary
``acknowledges to exist as an Indian Tribe.'' In doing so, the effect
of the bill is to facilitate off-reservation activities by tribes and
perpetuate the inconsistent standards that have been used to create
tribal entities. Such a ``solution'' causes controversy and conflict
rather than an open process which, particularly in states such as
California, is needed to address the varied circumstances of local
governments and tribes.
Conclusion
We ask Members of the Subcommittee to incorporate the
aforementioned requests into any Congressional actions that may emerge
regarding the Carcieri decision. Congress must take the lead in any
legal repair for inequities caused by the Supreme Court's action, but
absolutely should not do so without addressing these reforms. NACo's
and CSAC's proposals are common-sense reforms, based upon a broad
national base of experience on these issues that, if enacted, will
eliminate some of the most controversial and problematic elements of
the current trust land acquisition process. The result would help
states, local governments and non-tribal stakeholders. It also would
assist trust land applicants by guiding their requests towards a
collaborative process and, in doing so, reduce the delay and
controversy that now routinely accompany acquisition requests.
We also urge Members to reject any ``one size fits all'' solution
to these issues. In our view, IGRA itself has often represented such an
approach, and as a result has caused many problems throughout the
nation where the sheer number of tribal entities and the great
disparity among them requires a thoughtful case-by-case analysis of
each tribal land acquisition decision.
Thank you for considering these views.