[Senate Hearing 113-214]
[From the U.S. Government Publishing Office]
S. Hrg. 113-214
CARCIERI: BRINGING CERTAINTY TO TRUST LAND ACQUISITIONS
=======================================================================
HEARING
before the
COMMITTEE ON INDIAN AFFAIRS
UNITED STATES SENATE
ONE HUNDRED THIRTEENTH CONGRESS
FIRST SESSION
__________
NOVEMBER 20, 2013
__________
Printed for the use of the Committee on Indian Affairs
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COMMITTEE ON INDIAN AFFAIRS
MARIA CANTWELL, Washington, Chairwoman
JOHN BARRASSO, Wyoming, Vice Chairman
TIM JOHNSON, South Dakota JOHN McCAIN, Arizona
JON TESTER, Montana LISA MURKOWSKI, Alaska
TOM UDALL, New Mexico JOHN HOEVEN, North Dakota
AL FRANKEN, Minnesota MIKE CRAPO, Idaho
MARK BEGICH, Alaska DEB FISCHER, Nebraska
BRIAN SCHATZ, Hawaii
HEIDI HEITKAMP, North Dakota
Mary J. Pavel, Majority Staff Director and Chief Counsel
Rhonda Harjo, Minority Deputy Chief Counsel
C O N T E N T S
----------
Page
Hearing held on November 20, 2013................................ 1
Statement of Senator Barrasso.................................... 3
Statement of Senator Begich...................................... 7
Statement of Senator Cantwell.................................... 1
Statement of Senator Feinstein................................... 4
Prepared statement........................................... 6
Witnesses
Dillon, Diane, Supervisor, Napa County Board of Supervisors;
Member, California State Association of Counties............... 30
Prepared statement........................................... 31
Johnson-Pata, Jacqueline, Executive Director, National Congress
of American Indians............................................ 19
Prepared statement........................................... 21
Pierite, Hon. Marshall, Chairman, Tunica-Biloxi Tribe of
Louisiana; Chair, USET Carcieri Task Force..................... 25
Prepared statement........................................... 27
Washburn, Hon. Kevin, Assistant Secretary--Indian Affairs, U.S.
Department of the Interior..................................... 9
Prepared statement........................................... 11
Appendix
Chase, Matthew D., Executive Director, National Association of
Counties (NACo), prepared statement............................ 58
Corn, Hon. Craig, Chairman, Menominee Indian Tribe, prepared
statement...................................................... 55
Iyall, Hon. William, Chairman, Cowlitz Indian Tribe, prepared
statement...................................................... 53
Response to written questions submitted by Hon. John Barrasso to:
Diane Dillon................................................. 72
Jacqueline Johnson-Pata...................................... 73
Hon. Marshall Pierite........................................ 76
Response to written questions submitted by Hon. Maria Cantwell to
Diane Dillon................................................... 69
Tohono O'odham Nation, prepared statement........................ 56
Tribal leaders, joint prepared statement......................... 63
Tribal organizations, joint prepared statement................... 60
Written questions submitted to Hon. Kevin Washburn............... 77
CARCIERI: BRINGING CERTAINTY TO TRUST LAND ACQUISITIONS
----------
WEDNESDAY, NOVEMBER 20, 2013
U.S. Senate,
Committee on Indian Affairs,
Washington, DC.
The Committee met, pursuant to notice, at 2:30 p.m. in room
628, Dirksen Senate Office Building, Hon. Maria Cantwell,
Chairman of the Committee, presiding.
OPENING STATEMENT OF HON. MARIA CANTWELL,
U.S. SENATOR FROM WASHINGTON
The Chairwoman. The Senate Indian Affairs Committee will
come to order.
Welcome to all. We are having an oversight hearing tody to
receive testimony on Carcieri: Bringing Certainty to Trust Land
Acquisitions. And I know the Vice Chairman of the Committee
will be here shortly.
We have a busy agenda today, so I want to go ahead and get
started with my opening statement and then to welcome our
colleague, Senator Feinstein from California, who is also with
us here today and will be part of our first discussion,
followed by the Honorable Kevin Washburn. And then a panel of
leaders to discuss their views on this issue.
This afternoon, the Committee is holding an oversight
hearing on Carcieri, as I said, in an attempt to bring
certainty to trust land acquisitions. Since the earliest days
of our republic, the United States and tribes have had a
government-to-government relationship that is based on treaties
and agreements. The fundamental element of these agreements is
that tribes secured lands that would be their homelands and
territories. The government-to-government relationship
continued, but not before some measures were tried to forcibly
assimilate Native American people. But Congress passed the
Indian Reorganization Act of 1934 to say that those policies
were a disaster.
So for the period of 1887 to 1933, approximately 90 million
acres of tribal land went out of tribal ownership. By 1934, the
then-Commissioner of Indian Affairs, John Collier, stated that
tribal lands had been diminished by 80 percent, and the value
of tribal lands had decreased 85 percent.
So when Congress enacted the Indian Reorganization Act of
1934, it represented a fundamental shift away from the United
States' failed policies of the 19th century. America returned
to recognizing tribes as a government, and dealing with them in
a government-to-government relationship with shared goals of
strengthening tribal communities and improving the lives of
Native Americans.
The purpose of the Indian Reorganization Act was three-
fold. One, to halt Federal polices of allotment and
assimilation; to reverse the negative impacts of allotment
policies; and three, to secure for all tribes a base of trust
land to engage in economic development and self-determination.
The bill aimed to restore tribal land bases by stopping the
loss of more lands and allowing consolidation of existing land
and acquiring new land, all of which was then placed into
trust.
Since 1934, the United States has taken approximately 10
million acres of land into trust on behalf of tribes. As Chair,
I will note that I think less than 1 percent of that land has
been used for gaming.
Since the enactment of the Indian Reorganization Act,
tribal governments have flourished, and tribes have adopted
constitutions and created governmental departments and have
been better able to serve their people and protect their
rights. It has also enabled a cultural revitalization within
Indian people, being more free to practice their traditions.
These were the goals of the Indian Reorganization Act, and they
remain relevant today as many tribes do not have any land or
sufficient land to meet the needs of their people.
In 1994, Congress made an adjustment to the Indian
Reorganization Act. Because the Department of Interior began to
treat treaties differently, based on whether they were
federally recognized. Our late colleague, Senator Inouye, led
the effort in 1994 to amend the Indian Reorganization Act to
ensure that all federally recognized tribes are treated
equally, including the right to have land taken into trust.
But we are at a crossroads again, almost 20 years later,
and now we must reaffirm Congressional intent to take land into
trust for all tribes under the Indian Reorganization Act. The
Indian Gaming Act and the provisions that allowed tribes to
game on off-reservation land have made the land into trust
process more visible and, in some cases, more complex. Of the
10 million acres that have been taken into trust since 1934, as
I said, only a very small amount has been for gaming. This is
clear from a recent report by the Interior Department. The last
five years, most of the trust land applications have been for
agriculture development, energy infrastructure and housing.
So these are the very reasons that Congress sought the
Indian Reorganization Act, to ensure the tribes would have
these kinds of controls. So almost 20 years after Congress
clarified that all tribes should be treated equally, we are
here again today because a Supreme Court decision in 2009,
Carcieri v. Salazar, has once again created two classes of
tribes. The Supreme Court narrowly defined the tribes that
could have taken land into trust as only those tribes under
Federal jurisdiction in 1934. This decision reversed what had
been 80 years of Federal policy to restore land holdings and
strengthen tribal governments.
The Supreme Court's decision did two things that greatly
undermined the Federal relationship with tribes and the Federal
policy to support tribal self-governance. First, the decision
created two classes of tribes: tribes that can legally take
land into trust and tribes that can't. This is contrary to the
fundamental principle of creating equality of Native Americans
in this particular area.
Secondly, the Supreme Court decision resulted in a chilling
effect for tribes in all of land into trust issues. It has
created a great deal of uncertainty as tribes try to move
forward within their communities on economic development
efforts. Since the court's decision, tribal organizations and
other stakeholders have asked this Committee to bring back
certainty into the process. The impacts of Carcieri have been
felt throughout Indian Country and have resulted in the loss of
economic opportunity, stalled a lot of infrastructure projects
and increased litigation and bureaucratic delays at the
Department of Interior.
In addition to the Carcieri decision, the Supreme Court's
recent decision on Patchak also has held a challenge to the
land into trust decisions and this is something we will be
hearing about today as well.
If the Carcieri decision is left to stand, the result will
be the perpetration of two classes of tribes. This is
inconsistent with the Indian Reorganization Act and this is why
we must bring certainty back into the process today.
I want to make sure one thing is clear. The government-to-
government relationship between tribal governments and the
Federal Government must be preserved. We are seeking certainty
and clarity in the land into trust process. But it cannot be at
the expense of tribal sovereignty, and not in a way that
impacts that trust relationship.
So we will be hearing today from a variety of people to
bring light to this issue and hopefully be able to move forward
and resolve this issue once and for all.
I again appreciate everyone's attention and the witnesses
who are here today. Now I would like to turn to the Vice
Chairman for his statement on this.
STATEMENT OF HON. JOHN BARRASSO,
U.S. SENATOR FROM WYOMING
Senator Barrasso. Thank you, Madam Chairman, for holding
this hearing. To start off, I welcome our friend and our
colleague, Senator Feinstein, to the hearing. I know she is
very busy, so I am going to be brief.
This Committee has held several hearings in the past two
Congresses examining the impacts of the Supreme Court case,
Carcieri v. Salazar, the impact on tribes and their lands. The
Committee has also examined and passed legislation in the past
two Congresses regarding this case. I know you have worked
diligently to find a resolution to this difficult case, and I
hope to hear from our witnesses today on how to move forward on
this matter.
Thank you, and thank you all for being here today. Thank
you, Madam Chairwoman.
The Chairwoman. Thank you, Senator Barrasso. Does my
colleague from Alaska have an opening statement?
Senator Begich. Madam Chair, if I can wait until after
Senator Feinstein, given her time, but I do have a couple quick
comments before the next panel, if that is okay.
The Chairwoman. Okay, thank you.
Senator Feinstein, the floor is yours. Thank you so much
for working with our Committee on this issue, and thank you for
being here before the Committee today.
STATEMENT OF HON. DIANNE FEINSTEIN,
U.S. SENATOR FROM CALIFORNIA
Senator Feinstein. I thank you as well, Madam Chairman, and
Dr. Barrasso and Senator Begich, thank you also for being here.
Let me just begin by thanking you for your willingness to
hear from local governments as well as tribes, to get the full
picture of how the fee to trust process affects communities
across the Nation. I want to particularly thank you for
inviting supervisor Diane Dillon from Napa County, California.
She is directly behind me. Supervisor Dillon is experiencing
first-hand the challenges that go along with recognition and
trust land acquisition. So I know she will speak with some
authority about the difficulties that face local governments.
As you may be aware, there are more than 100 federally
recognized tribes in California. There are likely to be many
more that will seek recognition in the near future. But what
really sets California apart is the scale of the tribal gaming
industry. According to the American Gaming Association, there
are 70 tribal gaming establishments in the State today. All of
these facilities have opened in the last 15 years.
As of 2010, the total revenue of these gaming
establishments was valued at $6.78 billion, more than twice
that of any other State. By that measure, it is approaching the
size of the gaming industry in Nevada, which is valued at just
over $10 billion. My concern is that California tribes, some of
them, are no longer content with casinos on Indian lands,
despite the fact that they agreed in a State-wide ballot
measure in 2000, called Proposition 1A, that tribal gaming
would be confined to Indian lands.
In recent years, we have seen the number of reservation
shopping proposals increase. These are proposals that are in
direct conflict with Proposition 1A. A landless tribe from
Santa Cruz tried to open a casino near Oakland. Another
landless tribe from Mendocino tried to do the same just miles
down the road from Oakland in Richmond, California. A tribe
that has a reservation in Butte County convinced the Secretary
of the Interior to approve a casino 50 miles away in Yuba
County near Sacramento. And a tribe with land in the Sierra
foothills convinced the Secretary to approve a casino outside
Fresno, more than 40 miles away.
Now, this issue is not limited to California. It is in
Wisconsin, there is a fight in Arizona, it is in Michigan, it
is in Oregon and it is in Washington. My full statement, which
goes into the record, will describe each situation.
The purpose of these moves is clear. Tribes want to open
casinos near major urban areas to increase their profits. And
the effect of major off-reservation casinos I think is
undeniable. Large casinos require local resources, including
increased costs for police, fire, water, sewer and
transportation.
But here is the catch. When new trust lands are acquired,
tribes are under no obligation to mitigate these impacts. The
Department of Interior also has no obligation to address local
concerns.
I strongly believe that local governments must have the
ability to influence the terms and conditions of the
development of new casinos, especially because many communities
simply do not want new casinos in their back yard. These
casinos are not small. They are done by syndicates out of
Atlantic City, out of Las Vegas, out of New Jersey.
Take the case of Butte County. When the tribe from Butte
County proposed a casino in Yuba County, Yuba County voters
were so opposed to the casino that they put an advisory measure
on the ballot. The voters rejected the proposed casino. But the
Department of Interior ignored the voters and approved the
tribe's request for the casino. I don't think this should be
allowed to happen.
I understand the intent of the Carcieri fix. And I do not
accept the notion that tribes recognized before the 1934 Indian
Reorganization Act have more rights than their counterparts
that were recognized after 1934. But any Carcieri fix must in
my view and the view of some others address concerns about
tribal gaming. I do believe there is room to work with your
Committee, Madam Chairman, to hopefully find common ground on a
path forward.
One way to fix the problem would be to enact the Tribal
Gaming Eligibility Act, a bill I introduced with Senator
Roberts earlier this year. The bill takes critical, common-
sense steps to slow reservation shopping and to protect those
communities that are opposed to new casino developments by
requiring tribes to demonstrate both a modern and an aboriginal
connection to the land before opening new gaming
establishments. As it is now, a tribe can buy a mall somewhere
in a community, shut it down and open a gaming establishment.
Other reforms that could be part of the solution include
prohibiting land taken into trust for non-gaming purposes from
being used for casinos at a later date, requiring tribes to
mitigate jurisdictional conflicts and effects as a condition of
trust acquisitions, increasing notice and comment periods for
local governments, and requiring the Department of the Interior
to consider that input, which they largely do not.
Collectively, these reforms would help address some of my
concerns.
When combined with the requirement that tribes demonstrate
modern and aboriginal ties to the land, these reforms would in
my view represent a real improvement in the fee to trust
process.
Let me just say one other thing that has concerned me. With
70 big gaming institutions, IGRA has a very minor regulatory
and supervisory role. Las Vegas gaming has hundreds of
regulators and supervisors. And long term, I think this
presents a problem. Because casinos have their own problems
with skimming, with other irregular activities and sometimes
criminal activities. I think you have found that, it is Las
Vegas' history, it is Atlantic City's history and so on.
We would like to work with you. In my view, the fact that
the Indian tribes of California went to the ballot, they told
the people one thing, and that is that the Indian gaming would
be on tribal land, and in fact now, there is effort after
effort to move away from that concept is candidly unacceptable.
Because you reach a point where with 70 operating casinos,
enough is enough.
So I thank you very much for listening. This has been my
point of view. And I might say that there is growing concern in
California. I think Supervisor Dillon will point out where
there is a tribe that now wants to put a gaming casino right in
the middle of Napa Valley. And there is one reason, and that is
a problem.
So in any event, welcome to the conflict, and I thank you
for your courtesy.
[The prepared statement of Senator Feinstein follows:]
Prepared Statement of Hon. Dianne Feinstein, U.S. Senator from
California
Madam Chairwoman, Mr. Ranking Member, thank you for the opportunity
to testify.
I appreciate your willingness to hear from local governments as
well as tribes to get the full picture of how the fee-to-trust process
affects communities across the nation.
I want to particularly thank you for inviting Supervisor Diane
Dillon from Napa County, California. Supervisor Dillon is experiencing
firsthand the challenges that go along with the recognition and trust
land acquisition process. So I know she will speak with great authority
about the difficulties that face local governments.
As you may be aware, there are more than 100 federally recognized
tribes in California. And there are likely to be many more that will
seek recognition in the near future.
But what really sets California apart is the scale of the tribal
gaming industry.
According to the American Gaming Association, there are 70
tribal gaming establishments in the state today. All of these
facilities have opened in the last 15 years;
As of 2010, the total revenue of these gaming establishments
was valued at $6.78 billion, more than twice that of any other
state.
By that measure, it is approaching the size of the gaming
industry in Nevada, which is valued at just over $10 billion.
My concern is that California tribes are no longer content with
casinos on Indian lands, despite the fact that they agreed in a state
ballot measure in 2000 (``Proposition 1A'') that tribal gaming would be
confined to Indian lands.
In recent years we have seen the number of reservation shopping
proposals increase. These are proposals that are in direct conflict
with Proposition 1A.
A landless tribe from Santa Cruz tried to open a casino near
Oakland.
Another landless tribe from Mendocino tried to do the same,
just miles down the road from Oakland in Richmond, California.
A tribe that has a reservation in Butte County convinced the
Secretary of the Interior to approve a casino nearly 50 miles
away in Yuba County, near Sacramento.
And a tribe with land in the Sierra foothills convinced the
secretary to approve a casino outside Fresno, more than 40
miles away.
This issue is not limited to California.
In Wisconsin, the Menominee (Mih-NOM-min-nee) tribe received
approval for a casino almost 200 miles from the tribe's
reservation.
The City of Glendale, Arizona, is disputing the Tohono
O'odham (Toe-hoe-no OH-tham) Nation's proposal to open a casino
and resort in the city's urban sport and entertainment
district, which even by the tribe's own admission is at least
75 miles from its reservation's border.
The Little River Band of Ottawa Indians has proposed to
build a casino in Fruitport Township, Michigan, approximately
90 miles south of the tribe's headquarters.
In Oregon, the Coquille (Ko-Kwell) Indian Tribe has been
purchasing land in the Interstate 5 corridor near Medford,
approximately 160 miles southeast of the tribe's land.
And as you are aware, Madam Chairwoman, the Spokane Tribe of
Indians in Washington is proposing to build an off-reservation
casino.
The purpose of these moves is clear-tribes want to open casinos
near major urban areas to increase their profits.
The effect of major off-reservation casinos is undeniable.
Large casinos require local resources, including increased costs
for police, fire, water, sewer and transportation.
But here's the catch: when new trust lands are acquired, tribes are
under no obligation to mitigate these impacts. That Department of the
Interior also has no obligation to address local concerns.
I strongly believe that local governments must have the ability to
influence the terms and conditions of the development of new casinos,
especially because many communities simply do not want new casinos in
their backyard.
Take the case of the tribe from Butte County, California. When the
tribe from Butte County proposed a casino in Yuba County, Yuba County
voters were so opposed to the casino proposal that they put an advisory
measure on the ballot. Voters rejected the proposed casino. But the
Department of the Interior ignored the voters and approved the tribe's
request for a casino. This should not be allowed to happen.
I understand the intent of the Carcieri Fix. And I do not accept
the notion that tribes recognized before the 1934 Indian Reorganization
Act have more rights than their counterparts that were recognized after
1934.
But any Carcieri fix must address concerns about tribal gaming.
I do believe there is room to work with the Committee to find
common ground on a path forward.
One way to fix the problem would be to enact the Tribal Gaming
Eligibility Act, a bill I introduced with Senator Roberts earlier this
year. The bill takes critical, common-sense steps to slow reservation
shopping, and to protect those communities that are opposed to new
casino developments, by requiring tribes to demonstrate both a modern
and an aboriginal connection to the land before opening new gaming
establishments.
Other reforms that could be a part of the solution include:
Prohibiting land taken into trust for non-gaming purposes
from being used for casinos at a later date.
Requiring tribes to mitigate jurisdictional conflicts and
effects as a condition for trust acquisitions,
Increasing notice and comment periods for local governments,
and requiring the Department of the Interior to consider that
input.
Collectively, these reforms would help address some of my concerns.
When combined with the requirement that tribes demonstrate modern
and aboriginal ties to the land, I believe these reforms would
represent a real improvement in the fee to trust process.
Thank you again for this opportunity, Madam Chairwoman.
I hope to continue working with you and this committee to solve
these issues and I hope we will pass a Carcieri fix soon.
The Chairwoman. Thank you, Senator Feinstein. Thank you for
being here today and for your testimony. I know this is an
issue you have been following for some time, and we appreciate
your due diligence here. We will look forward to, after today's
witnesses, dialoguing with you more.
Unless my colleagues have any questions for our colleague?
Thank you.
Senator Begich?
STATEMENT OF HON. MARK BEGICH,
U.S. SENATOR FROM ALASKA
Senator Begich. Thank you, Madam Chair, and thank you for
holding this hearing. I know Assistant Secretary Washburn is
going to be up next, and I look forward to seeing him again.
In my opinion, from an Alaska context on this, the
legislative fix of the 2009 Supreme Court ruling regarding the
ability for tribes to take land in trust, this is not a place,
and I know there is some work here, this is not a place to
solve or deal with Alaska issues, which are very different.
Hearing about all the gaming, we have no gaming in Alaska, so
it is a non-issue for us.
But I want to make it very clear that we have many issues
to deal with in Alaska, and this is not, for us, a place to
deal with it within the Carcieri fix.
But let me also say that there were some rulings this last
summer through the D.C. District Court that the State of Alaska
and the Secretary are in arguments now with Alaska tribe
regarding this issue and are going through the court process.
So again, I would make the point very clearly here that we do
not want to use, from purely Alaska's perspective, this
legislation to do anything to offset what is moving forward. We
think it is a good settlement and a good opportunity.
I also want to say that I am anxious to see what the House
does and produces. I know there have been discussions here on
the Senate side for what we are going to do. My understanding
is, the status quo for Alaska will be there, which I
appreciate. Again, I don't want to have anything in this
legislation that changes the way Alaska has been operating. I
don't want any Alaska provisions in there, again, because we
are moving through the court system. We have our own track we
are dealing with, many other issue to focus on.
I am anxious to get this done. I think ever since I got
here, to be frank with you, Madam Chair, I did not know much
about this until within about one month of getting here. Then
suddenly it was one after another who was talking to me about
this issue. It is clear to me that there has to be a
legislative fix. I am anxious to work through that, anxious to
deal with this issue once and for all. I think there are good
arguments I have heard from a lot of tribes regarding the issue
of putting land into trust.
We are unique in Alaska. We don't have that situation. We
do have one tribe that is now going, as I said, through the
court process on this issue. So I am anxious to work with the
Committee, do whatever I can to move this legislation forward.
But I want to make it very clear here that we are not
interested, from my perspective as an Alaskan, representing
Alaska tribes, which is about 230 plus tribes, interested in
putting anything in this bill that changes the way it is today.
I think there are so many tribes in the lower 48 that have to
get this resolved one way or another. So I am anxious to move
this forward in whatever way we can.
Thank you for having this hearing. I will have some
questions for the Assistant Secretary, and thank you for doing
this.
The Chairwoman. Thank you.
I want to turn back to the Vice Chairman, Senator Barrasso.
Senator Barrasso. Thank you very much, Madam Chairwoman
Just a second thought. Earlier today there was a
Congressional Gold Medal Ceremony in honor of Native American
Code Talkers. A number of members of this Committee were in
attendance, obviously bipartisan. Senator Johnson had a chance
to speak and tell some of the history I just think this
Committee meeting the same day, perhaps there are some here in
attendance who were able to attend this marvelous ceremony in
Emancipation Hall to thank those who made such incredible
sacrifices, true heroes as Code Talkers, and a story that for a
long time wasn't told intentionally because people were told to
be quiet when they went home from the war. Many times their
families weren't even aware of the incredible sacrifices.
But you talk about effectiveness, and true heroes of World
War II. So just as we meet today in this Committee hearing, I
thought it would be good for the record to recognize this
Congressional Gold Medal ceremony today in honor of our Native
American Code Talkers.
Thank you, Madam Chair.
The Chairwoman. Thank you very much for bringing that up.
It was a very beautiful ceremony, and great participation and
recognition for individuals who played such an incredible role
for our Country.
I want to note our former colleague and Chair of this
Committee, the late Senator Inouye, was also honored today with
the Medal of Freedom. His work was being recognized at the
White House. So many of us participated last night in a
reception to remember him and his work on this Committee. We
want to also remember his great contribution. So thank you for
doing that.
We will next turn back to our hearing and our panel today.
We are going to start with Assistant Secretary Kevin Washburn.
Thank you for being with us again today, and your hard work on
this issue.
STATEMENT OF HON. KEVIN WASHBURN, ASSISTANT
SECRETARY--INDIAN AFFAIRS, U.S. DEPARTMENT OF THE
INTERIOR
Mr. Washburn. Thank you, Madam Chair, Mr. Vice Chairman and
Senator Begich. It is good to be back here. I feel like I never
left.
I am here today to thank you for your leadership on the
Carcieri issue, and for doing the hard work of trying to find a
way forward to mitigate the harmful effects of this decision.
We have testified on numerous occasions on this subject, and we
continue to support your efforts to achieve a Carcieri fix.
Since we have testified so often before, I will be brief,
rather than repeating the same testimony.
I would note that the last week, last Wednesday, President
Obama himself reaffirmed the Administration's commitment to a
Carcieri fix. We had the White House Tribal Nations conference,
and the President was there, and the 13 Cabinet secretaries,
and Senator Begich, too. We were glad to see him there, thank
you, Senator. And he made a point of doing so from the podium,
the President did, asked for a Carcieri fix.
Some people suggest that we need to use this as an
opportunity to consider broader issues of land into trust. They
also suggest that we give tribes sort of a careful questioning
about what they are going to use the land for. I kind of want
to push back against that. We do inquire what the purpose of
the land into trust application is routinely. We always do
that.
That is how we know, for example, that the largest number
of land into trust applications is for agriculture. The second
most is for infrastructure, such as health care facilities,
schools and police stations and those sorts of things. Third,
for economic development, but not including gaming. And fourth,
for housing. Of the nearly 1,500 acquisitions since the
beginning of 2009 that we have made, fewer than 20 have been
for gaming. So gaming is really the small exception that ends
up having a great deal of public attention, but it does not
represent the heartland of land into trust in any way.
And I frankly sometimes wonder why we ask tribes at all
what the purpose is for taking land into trust. If you ask most
Americans why do they want a home, they look at you like you
are crazy. It is not something you need to explain. People have
a reason in their heart, and it is more than just shelter. It
is something deep within the American psyche. I think you find
people hard pressed to explain it. It is hard to put into
words.
We characterize, indeed, home ownership as the American
dream. And families need homes to thrive. It is not different
for Indian tribes. What we are doing here is trying to ensure
that tribes have home lands, so tribes can thrive as well. But
their homelands were taken, as Senator Cantwell very eloquently
stated in her opening statement. A lot of acres, millions of
acres were taken from tribes. So their American dream is a
little more cloudy than it is for the rest of America.
At the time, at the end of the allotment era, Congress made
a decision that we were going to stop eviscerating the tribal
land mass, and we were going to try to restore it. So Congress
made that decision, and that decision has been made for many
decades now. The Obama Administration has been very, very
committed to it, as everybody well knows.
The fact is though that some tribes may be denied the
American dream by the Carcieri decision. So this is a very
important issue.
Some people may think that I am taking liberties to compare
tribal governments to Americans and their dream for a home. But
I think that analogy is apt. But if you prefer just to talk
about the governmental analogy, we also don't quiz western
cities or counties very hard when they say they want to expand
into unincorporated areas. If you ask a county why it is going
to do that, it is going to say because it wants to take care of
its community. That is a common feeling.
Tribal governments are no different. There are a myriad of
reasons why they take land into trust, but the bottom line is
that they want homelands and they want to be able to provide
for their people. In America, this is a good enough reason to
take land into trust.
I think this is one of the most important issues of our
time in Indian Country. The question is whether we are going to
deny some tribes homelands or the ability to expand their
homelands, while others have that ability. So again, I want to
thank the Committee for bringing attention to this extremely
important issue, and I stand ready for questions.
[The prepared statement of Mr. Washburn follows:]
Prepared Statement of Hon. Kevin Washburn, Assistant Secretary--Indian
Affairs, U.S. Department of the Interior
I. Introduction
Chairwoman Cantwell, Vice-Chairman Barrasso, and Members of the
Committee, my name is Kevin Washburn and I am the Assistant Secretary--
Indian Affairs at the Department of the Interior (Department). Thank
you for the opportunity to provide the Administration's statement on
Carcieri v. Salazar \1\ and the need to bring certainty to trust land
acquisitions.
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\1\ 555 U.S. 379 (2009).
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Restoring tribal homelands is one of this Administration's highest
priorities. This Administration has repeatedly stressed the importance
of and need for a Carcieri fix. For the past three years, the President
has proposed a sensible fix to treat all tribes equally in exercising
the fundamental responsibility of placing land into trust for tribes.
Included as part of the budget request, the Administration's practical
solution would amend the Indian Reorganization Act essentially as
follows:
Effective beginning on June 18, 1934, the term ``Indian'' as
used in this Act shall include all persons of Indian descent
who are members any federally recognized Indian tribe, and all
persons who are descendants of such members who were, on June
1, 1934, residing within the present boundaries of any Indian
reservation, and shall further include all other persons of
one-half or more Indian blood.
Without such a fix by Congress, Carcieri presents a potential
problem for any tribe by allowing opponents to mire routine trust
applications in protracted and unnecessary litigation. As we have seen
repeatedly since the decision, those challenging a trust acquisition
routinely assert that a particular tribe was not under federal
jurisdiction in 1934, even when such claim is clearly unsupported by
the historical record. Tribes like the Oneida Tribe of Wisconsin and
the St. Regis Mohawk Tribe, which entered into treaties with the United
States in the 1790s, are forced to expend scarce resources defending
against such claims--resources that in these difficult budgetary times
could be better spent on housing, education, and public safety. The
Department is also forced to expend resources both before and during
litigation to defend against such spurious claims--resources that are
needed for social services, protection of natural resources and
implementation of treaty rights. A straightforward Carcieri fix would
be a tremendous economic boost to Indian country, at no cost to the
Federal Government.
II. Carcieri Conflicts with the Purposes of the Indian Reorganization
Act
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. As a result, the land could not be
acquired in trust for the tribe and the tribe could not complete its
low-income housing project. Carcieri is wholly inconsistent with the
longstanding policies of the United States under the Indian
Reorganization Act of 1934 of assisting 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 all
tribes equally for purposes of setting aside lands for tribal
communities.
Our testimony is informed by history. 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 General Allotment Act resulted in huge
losses of tribally owned lands, it created the Cobell fractional
ownership problem, and it 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 this
now repudiated federal policy.
Congress enacted the Indian Reorganization Act in 1934 in part to
remedy the devastating effects of these 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 fully supports and continues to implement and
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 protects tribal
lands for future generations. 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 Decision
The harms inflicted by Carcieri undermine the purposes envisioned
by the IRA to remedy the harms perpetrated on tribal communities by
policies like the General Allotment Act of 1887. Just as Congress acted
in 1934 to remedy the devastating impacts of the General Allotment Act,
Congress must act today to make clear that the United States'
responsibility to secure homelands extends to all tribes.
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.
In the wake of the Carcieri 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. We testified before this
Committee, just over a year ago, on the burdens, costs and uncertainty
on the fee to trust process that resulted from the Carcieri decision.
We stated then, and it continues to remain true, that once this
analysis is completed, if the Department decides to take land into
trust and provides notice of its intent, the Carcieri decision makes it
likely that we will face costly and complex litigation over whether
applicant tribes were under federal jurisdiction in 1934.
The Carcieri decision undermines 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. This decision imposes additional administrative
burdens on the Department's long-standing approach to trust
acquisitions and the uncertainty created by Court's decision serves to
destabilize tribal economies and their surrounding communities. The
Court's decision in Patchak, \2\ further undermines tribal self-
determination and self-governance by providing litigants an opportunity
to challenge trust acquisitions even when the land is already held in
trust.
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\2\ 132 S. Ct. 2199 (2012).
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The Administration recently promulgated a rule that implements a
``patch'' to address Patchak by clarifying that the Department will
immediately place land in trust once the agency makes a final decision
to take the land into trust. While the Patchak patch will provide some
relief for the problems Patchak created, the Carcieri decision,
combined with the Patchak decision, casts a dark cloud of uncertainty
on land acquisitions for tribes under the Indian Reorganization Act,
and ultimately inhibits and discourages the productive use of tribal
trust land itself.
IV. Conclusion
In 1934, Congress acted to correct the Federal Government's
allotment and assimilation policies. Congress' action then was designed
to foster tribal self-determination and economic development and in the
decades that followed, the Department implemented this responsibility
for all tribes. Today, the Federal Government and Indian country
continue to address the present day harms that emanate from the
policies of more than a century ago, yet Carcieri injects tangible
costs and delays that impede progress in Indian country. 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 proposed Fiscal Year
2014 Budget includes language that, if enacted, would resolve this
issue. We look forward to working with the Committee and the Congress
on this matter.
This concludes my statement. I would be happy to answer questions.
The Chairwoman. Thank you. Assistant Secretary, what do you
think the impact has been in taking land into trust for tribes
as it relates to this self-governance issue and this
trajectory? Has the Department done any studies or analysis to
analyze the economic development opportunities or impacts?
Mr. Washburn. Well, we live with it every day. Because we
now have to go through, jump through a lot more hoops to take
land into trust for any tribe. We first have to do a Carcieri
analysis to see if they are one of the tribes for whom we can
take land into trust. In every case, every tribe, in other
words, sort of has a Carcieri problem, because we have to go
through this lengthy analysis to determine whether it is okay
to take land into trust for them under the Carcieri decision.
Secondly, we are up to our eyeballs in litigation on these
matters. Some in Federal district courts and some in the
Interior Board of Indian Appeals, but in excess of 15 cases
that we are litigating. So once again, lots of man hours being
used to address this issue.
We certainly know that it also puts a damper on economic
development, because there is uncertainty about tribes' land
into trust applications. Those who want to finance development
or that sort of thing aren't willing to do so if there is a
cloud on the title, in essence.
So we have seen a lot of different problems along those
lines since we have had to live with the Carcieri decision.
The Chairwoman. So you don't know of any particular study
the Department has done about the economic impacts or loss of
economic development that has happened since the Carcieri
decision?
Mr. Washburn. We haven't put a battery of economists on the
question. No, it is much more anecdotal. We haven't researched
the issue systematically.
The Chairwoman. And how would you respond to people who say
that, I know we are going to hear from people about, they think
that these applications are rubber-stamped to a certain degree,
or always approved. What would you say?
Mr. Washburn. I will push back on that. Let me first say
that Congress has granted the Administration the power to
restore tribal homelands, and has suggested that we should be
doing so. And the President has strongly committed to restoring
tribal homelands. Having said that, it is not a rubber stamp.
It is true that there aren't very many disapprovals, but the
reason for that is, when an application becomes problematic,
usually it is withdrawn. Sometimes it is withdrawn so the
tribes can talk to local governments or others more, so they
can work through issues.
But we don't usually get to the point of disapproval. We
usually get applications withdrawn before that would ever
happen. So while it is true that applications are almost
entirely approved, it is that the ones that are likely to be
disapproved just get withdrawn. So it is not in fact rubber-
stamped.
The Chairwoman. I am going to turn to my colleagues to see
if they have any questions for you. Senator Barrasso?
Senator Barrasso. Thank you, Madam Chair.
I do, and I heard your testimony on home ownership and
communities that want to expand. The way these committees work,
you testify and then there is a panel after you, and sometimes
it is hard to go back to you. So I try to read the testimony,
and I have been doing that for Diane Dillon who is here,
Supervisor, Napa County Board of Supervisors on behalf of the
California State Association of Counties. Her written
testimony, and she is going to testify on the next panel,
contends that there are flaws in the trust land application
process.
The Chairwoman made some comments there, so local
governments may comment on jurisdictional and certain other
regulatory impacts arising from the trust land. But the
required notice to local governments doesn't actually include
the application or the proposed use of land by the tribe. And
you made some reference to the fact that they didn't have to
state the use.
How do you think the notice and the opportunity for impact
by local communities could be improved?
Mr. Washburn. We have just improved that to some degree
with our so-called Patchak patch regulations. So one of the
things we do in those regulations is increase the notice that
we give to people who have objected in the land into trust
process, so that if they do want to challenge the decision,
they get clearer notice. So one of the things we have done is,
if anybody had written in during the application process, they
will get personal notice afterwards, after a decision has been
made, if the decision ultimately is positive, so that they can
file a claim, they pursue other remedies if they like.
We do reach out directly to State and local governments to
determine what their views are. We specifically ask them about
tax issues, jurisdiction issues and usually environmental
consequences, because there is usually a NEPA process as well.
So we feel like we consult fairly heavily. We do ask for very
specific information and we certainly sometimes get more than
just what we have asked for, and we consider that information.
So that is something that we feel like we do actually fairly
well. In fact, if it is a very large development, usually the
tribe has to have some sort of agreement in place with county
or local governments for water treatment facilities, for road
access. There are usually all kinds of agreements between
governments to make these things happen.
So we feel like there is a heck of a lot of cooperation
that occurs.
Senator Barrasso. The final rules that you recently issued
are to address changes in the applicability of the Quiet Title
Act to trust acquisitions. They are also intended to broaden
and clarify the notice of decision to acquire land into trust.
Do you believe these preserve affected parties' ability to seek
judicial review before the land is actually taken into trust,
and what do you see the impacts are on judicial review?
Mr. Washburn. Thank you, Vice Chairman. Before the Patchak
decision, the United States had always taken the view that once
the land was taken into trust, there could be no action. It was
in trust, and the United States had sovereign immunity, so
there could be no action.
So there was a 30-day period between the decision and the
actual action of taking land into trust that was instituted in
1996 to give people a chance to bring an action in court if
they wished to oppose the land into trust application after it
had been decided.
The Patchak decision sort of erased the need for that.
Because now, even the land is into trust, presumably in most
cases or many cases, at any rate, someone can go ahead and
bring an action. So the need for the 30-day period was gone. So
we got rid of that 30-day period. But objectors now have quite
a bit of opportunity in the courts to pursue an action. And the
courts have said in Patchak that there is a waiver of sovereign
immunity for that action to proceed. So we don't see that the
new regulation is being needed. The old regulation, the 30-day
period, is not needed any longer.
Senator Barrasso. Thank you. Thank you, Madam Chairwoman.
The Chairwoman. Senator Begich?
Senator Begich. Thank you very much.
I have a couple of questions and then one somewhat not
related but connected. As you know, we are a little different
in Alaska, with ANSCA lands and so forth. But we do have, I
think we have one application going through the process total.
It is a unique process we have. Our tribes also don't have a
lot of resources, don't have lands, they have issues with
public safety, especially around public safety, which will be
the second part of my questions.
But can you tell me, and I think it is just one right now,
down in Haines, Alaska, Southeast Alaska, that may be applying.
Do you have any information on the status of that and what is
going on with their application of land in trust?
Mr. Washburn. The whole question of land into trust in
Alaska is in litigation right now.
Senator Begich. We are one of those 15 cases, I think you
said 15 different cases. We are one of them. So is this one on
pending that outcome?
Mr. Washburn. It is. The Department, this is in litigation,
so that is causing the Department, well, we have to deal with
the litigation, but also reassessing what does this all mean
with regard to land into trust in Alaska. That is an ongoing
conversation that really won't be able to be resolved until the
litigation is resolved.
Senator Begich. And we have gone through, if I am not
mistaken, the D.C. Circuit, District Court, and now it is going
to the next level. Is that correct?
Mr. Washburn. Well, that is----
Senator Begich. Depending.
Mr. Washburn. Right.
Senator Begich. I should never assume. I should just assume
that when one side loses, they will do something.
But let me move to a couple other questions. This is
somewhat unrelated, but again, I want to emphasize my point
here, and I appreciate it. I know there is not an update on the
Senate side on Carcieri in regard to legislation, but keeping
Alaska status quo is what we are interested in. I noted your
comments at the beginning, I don't know if you were referring
to some of the stuff that I have heard regarding Alaska. But we
are trying not to make this too broad. We are adding more
things to it from Alaska's perspective. I am in agreement on
that from Alaska's specific issues, trying to be added in there
or deleted out.
So I am not sure we are aligned, but we are aligned by that
statement you made earlier. I don't know if that makes sense to
you.
Mr. Washburn. Well, I think yes.
Senator Begich. We may disagree on what the outcome may be
through the litigation, but I am trying to avoid any Alaska
exceptions in here.
So let me go to another issue, and this is, and you may be
able to respond to this, it is in regard to the Indian Law and
Order Commission report that just came out. It is a pretty
significant report. It is a road map for making Native
Americans safer. It is thick actually in Alaska because of how
bad it is. We have a whole chapter, which is somewhat amazing
when you think about it. For how much trouble and how much time
to put one of these reports together, then to see Alaska a
whole chapter in there.
I have a letter going to the Chairwoman, I think it goes
out today, asking for a special hearing in regard to this
report. I think this is very telling of what we should be
doing. And part of putting land into trust on a national level
is to get more resources to tribes to solve some of the
problems. In Alaska, we have a little bit more unique
situation.
But I wanted to just pick your brain while you are here. I
caught you in the hall last time, I didn't have time on another
issue. But I want to pick your brain on this one in regard to
this report. As you know, I have a piece of legislation that is
Safe Families and Villages Act, which is focused on allowing
tribes in Alaska a little more jurisdiction. Because VAWA
missed Alaska tribes. That is also why I want to be very
careful about Carcieri. Because I want to make sure that we
don't have something later we have to fix. And in VAWA, we
missed Alaska tribes. And we have to fix that.
Can you give me any thoughts that you might have,
especially on how much you have had time to look at this
report? It is pretty significant. And like I said, Alaska has a
whole chapter. You actually, in a report like this don't
necessarily want a chapter dedicated to you, unless it is
saying all these great things. And this is not necessarily what
this talks about. It talks about our lack of justice, lack of
public safety efforts and many other things. Do you have any
comments on what we could be doing or just some thoughts? While
you are here, I figured I would take advantage of the moment.
Mr. Washburn. Absolutely. We do look forward to a hearing
on that subject. We are digesting the report, there is a lot in
that report. It is quite extensive. And certainly it is
extensive on Alaska.
We have heard from a lot of Alaska tribes about the
inadequacy of village public safety officers. They work really
hard, but we don't give them the tools that they need.
Senator Begich. That is right.
Mr. Washburn. Serious problems, obviously, with crime
control in rural villages. We are looking at that. So we are
grateful that you are providing it more attention. And we do
think it deserves more attention.
So we are digesting it and we would be glad to talk more
about it if the Chairwoman decides to hold a hearing on this
subject.
Senator Begich. Fantastic. Madam Chair, I am going to send
you a letter I have drafted today, just asking us to consider
that. I think it is an important report, a lot of good work. I
know from just Alaska's perspective, I think the folks came up
four different times and a lot of in-depth, good report. It is
not polished up, it is here it is, here is what needs to be
done, or here are the problems that we see, which I think is
telling for us, especially in Indian Country, not only
nationwide, but for my State of Alaska.
I will look forward to having the conversation with you. I
look forward to working with the Chairwoman in regard to
potentially having some discussion on this on a much broader
perspective.
Mr. Washburn. Thank you, Senator.
The Chairwoman. Yes, thank you, Senator. Thank you for your
letter.
If I could, just a couple more questions. I have looked at
this analysis of land into trust just for the last couple of
years. These are various applications but the majority of which
are, I think there are 1,466, something like that, that were
approved. The majority of which are housing, agriculture,
economic development, infrastructure. I guess infrastructure
includes things like habitat preservation or health care
centers. In fact, I was up in Senator Begich's State this
summer looking at one of these issues as it related to
expanding the health center in Anchorage, and making sure that
they could expand to better accommodate the issues of pregnancy
and housing of families in relation to that.
But the majority of these, as I said, the majority of these
are, well, it looks like a big chunk, the largest chunk, 593
out of that 1,400 is related to agriculture. Is that mining
too?
Mr. Washburn. No, I don't believe that would be mining. But
yes, it is a variety of things, honestly. But a lot of tribes
are highly fractionated and checkerboarded. So much of what
that is is tribes trying to reduce the checkerboard within
their reservation. So it is a variety of different type things.
Some of them are economic development. Some of them are grazing
or farming lands.
The Chairwoman. I think we hear a lot of this discussion as
it relates to gaming, and yet we want to make sure that we
don't hamper what is, I mean, to me, I would love to see some
economic analysis of what we have done to slow down economic
development in Indian Country, given that in our State, the
Port of Tacoma and the Puyallup Tribe, the Puyallup Tribe ended
up taking land into trust that allowed them to expand in
downtown Tacoma. They basically because of that land exchange
and partnership between the City of Tacoma and Puyallup and the
Port, the port expansion, it enabled Tacoma to basically
overtake Seattle in being the largest container port in our
State.
So this little land into trust issue is, for me in a lot of
ways, it is a much bigger economic tool than whether it is
going to work effectively or whether it is going to be a
chilling effect. So I certainly want it work effectively,
because it has been a major tool for not just Indian Country to
solve problems, but for Indian Country to form partnerships
within communities, to solve larger problems. So it is a very,
very important business tool.
But I also wanted to just follow up on Vice Chairman
Barrasso's question. Do you think there is any more that can be
done to provide communities a voice in this process without
diminishing their tribal sovereignty?
Mr. Washburn. We have heard those complaints, and that is
one of the reasons we increased the notice that we provided
after, when we make one of these decisions. Because we wanted
to make sure that there was such notice.
The law is built to account for that voice, to bring that
voice in. Part 151 requires us to notify State and local
governments and then look at the information they provide us.
We specifically question them about tax and jurisdiction and
environmental consequences, and look at the information that
those governments provide. So there is a fair bit of
communication that happens with State and local governments
already.
So I suspect we could always do more. Communication is
vitally important. But we have built-in processes for doing
that, both in our regulations and in IGRA. IGRA requires that
as well.
The Chairwoman. Yes, Senator Begich?
Senator Begich. Just one more. You just made me think
about, as a former mayor, I am just trying to think of all the
developments that ever came into my city. They never work in
isolation. So you are always engaged, even without the
regulatory process, I mean, as I was listening to this back and
forth, I am thinking to myself, I can't think of one project
that just kind of like planted themselves down in our community
of 1,900 square miles, that is how large the city was by size,
so you can get a little visual there, and just suddenly, they
are in business. It doesn't work that way.
Even if the rules weren't there, the local government is
going to be engaged because of road access, water, sewer,
power, even phone and cable, depending on how that relationship
is in the local communities. I am just trying to think, I am
anxious for the next panel, because I am trying to figure out
what the fear is. I can only tell you that there is no way
someone could come into a community, at least, I am thinking of
Anchorage, when I was mayor, dropped in a whole development and
say, we are going to do this and we are not really going to
talk to you. It doesn't work that way. They want the
connectivity and the cooperation because at the end of the day,
there is joint use of resources.
Am I missing something here?
Mr. Washburn. I think you are correct. There is also law
enforcement and fire, all these things that have to be dealt
with. I think Supervisor Dillon is very articulate and very
thoughtful and I am sure she will talk about some of those
things. In my experience, there is a lot of cooperation that
has to happen. You might need an exit off the freeway, you
might need a lane widened, you have to have a water treatment
plant. All that stuff. There is just a lot of need for that
cooperation at all levels of government. And it tends to
happen. You can't produce a $100 million or $500 million casino
without working with the local authorities.
Senator Begich. I will give one last example. There is a
large development by one of our regional corporations, just on
the edge of what we would consider the east part of Anchorage.
They were near a freeway, but it was all their land and it was
pretty wide open. And it was undeveloped land and they wanted
to build a large mall with multiple box stores, all kinds of
things. But everything from the street sign to the stop light
to the overpass to the access to the employment to the buses,
all that was part of the discussion.
Because at the end of the day, for example, I remember
negotiating the bus route system that went through there. Why
did I do that? Because one, it was going to be a very lucrative
route, because of all those employees. Second, they needed it
for their employees. So we had both mutual interests here.
I had wanted a stoplight in that location forever. Well,
now that they were developing it, I made them pay for it. They
wanted it because it made better traffic flow.
So they couldn't just plop it down. I would not consider it
like a casino, obviously, but the traffic flow is like a very
busy casino, there is a lot of traffic going through there,
theaters, everything. But it forced us to get some of our
priorities resolved that we had been waiting for for years in a
partnership.
I was just thinking about that, Madam Chair. I was
interested in your conversation back and forth, and it
triggered my time as mayor and how these development work.
The Chairwoman. Thank you. I thank you for helping to
eliminate this issue. And again, Assistant Secretary, thank you
for being here. We appreciate it and we look forward to working
with you on this issue.
Mr. Washburn. Thank you, Madam Chairwoman.
The Chairwoman. We will call up our next panel: Ms.
Jacqueline Johnson-Pata, who is Executive Director of the
National Congress of American Indians; the Honorable Marshall
Pierite, Chairman of the Tunica-Biloxi Tribe of Louisiana; and
Ms. Diane Dillon, Supervisor, Napa County Board of Supervisors,
on behalf of the California State Association of Counties.
Welcome to all of you. Thank you for being here. We
appreciate it. And Ms. Johnson-Pata, we will start with you.
STATEMENT OF JACQUELINE JOHNSON-PATA, EXECUTIVE DIRECTOR,
NATIONAL CONGRESS OF AMERICAN INDIANS
Ms. Johnson-Pata. [Greeting in Native tongue.] On behalf of
the National Congress of American Indians, I would like to
thank you for first of all, having this hearing, which is so
important to Indian Country, regarding the Supreme Court
decision of Carcieri v. Salazar.
Before I get started, I would like to recognize Randy Notka
and Hiawatha, who are here from the Narragansett Tribe. As you
know, this issue stemmed from them wanting to take land into
trust for housing. And here we are today, so many years later,
still dealing with an issue that is just core to Indian
Country.
NCAI has been asking Congress to amend the Indian
Reorganization Act since the Supreme Court decision in 2009.
And our concerns about the decision are coming to pass. At
least 18 pending cases where tribes and the Secretary of
Interior are under challenge. And then there are many more
tribes whose land into trust applications, whether they are for
housing, economic development, health care centers, have just
been stalled while the Department works through the legal and
historical analysis which is now required.
There is also concern that the litigation will grow. The
IRA is a comprehensive piece of legislation that provides for
tribal constitutions and tribal business structures and serves
as the framework for tribal self-government. Future litigation
could threaten tribal organizations, contracts, loans, tribal
reservation and land, and also the provision of services.
Litigation also may come from criminal defendants seeking to
avoid Federal or tribal jurisdiction that would negatively
impact our public safety.
We feel that this will continue to get worse until Congress
acts to clarify that all federally recognized tribes are
eligible under the IRA. At the same time, I want to make it
clear to the county government representatives that this s not
an opportunity for changes to Federal law that will place
decision-making authority into county hands. The Federal
Government and the Secretary of Interior have a trust
responsibility to provide for the future of Indian tribes.
While local government issues are considered by the Secretary
under the regulatory process, and we heard that from Kevin
Washburn today, at 25 C.F.R. 151, tribal leaders will never
accept a legislative proposal that will transfer authority to
State or county governments.
This issue starts with the history where States and
counties took huge parcels of land from Indian tribes. And we
need the Federal Government to protect the rights of tribes to
recover land for their own tribal self-determination.
We have a vision for Indian Country and Indian people.
Indian lands should be places where the old ways are
maintained, where our languages are spoken, where our children
learn their traditions and pass them on to the next generation.
And at the same time, our vision includes a modern vision of
modern life, economic development to sustain our people, safety
and respectful relationships with our neighbors and the
blessings of education, health care and modern technology to
help us thrive.
This vision was shared by the U.S. Congress in 1934 when it
passed one of the most important Federal laws in the history of
our Country, the Indian Reorganization Act. With the IRA,
Congress renewed its trust responsibility to protect and to
restore tribal homelands, and the Indian way of life. Prior to
1934, the Federal policy toward Indian tribes was to sell off
tribal land base and assimilate Indian people. The Federal
Government did everything that it could to disband our people,
our tribes, break up our families and suppress our culture. And
as you stated earlier in your opening remarks, over 90 million
acres of tribal land held under treaties was taken, more than
two-thirds of our tribal land base. And the remaining lands
often had very little value.
By the early 1930s, the Allotment and the Assimilation Act
policies were widely recognized as failures. And in 1934,
Congress rejected the Allotment and Assimilation and passed the
IRA. It had clear and overriding purposes that Congress would
reestablish and restore tribal governments.
So 75 years later, here we are. The IRA is just as
necessary as it was then. I would like to raise two important
points. First, while some controversies exist, the vast
majority of Indian land acquisitions taken into place in
extremely rural areas are not controversial in any way. And
second, State and local governments have a role in land into
trust process. Under the current processes, the Interior
regulation provides opportunities for all parties that are
concerned about it to be heard, and to place the burden on the
tribes to justify the land into trust acquisition. The
regulations provide a forum for State and local communities to
raise these concerns. And I believe there is time in that
process to engage in ample, constructive dialogue with tribes
in the most sensible and mutually agreeable options for
restoring land.
I would like to thank the Committee for taking a close look
at this issue today and helping us move forward the Carcieri
fix. Thank you for all your diligent efforts on this and so
many issues that face you every single day, and your
representation for Indian Country. [Phrase in Native tongue.]
[The prepared statement of Mr. Johnson-Pata follows:]
Prepared Statement of Jacqueline Johnson-Pata, Executive Director,
National Congress of American Indians
On behalf of the National Congress of American Indians, thank you
for the Committee's hearing regarding the adverse implications of the
U.S. Supreme Court's decision in Carcieri v. Salazar. As you know, the
Carcieri decision has called into question the Department of Interior's
longstanding interpretation of law regarding the Indian Reorganization
Act of 1934 (IRA) and sets up unfair treatment of Indian tribes. We
urge Congress to reinstate the principle that all federally recognized
Indian tribes are eligible for the benefits of the IRA. Our testimony
will also discuss general principles relating to the Secretary's
authority to acquire land in trust for Indian tribes. Under the U.S.
Constitution, all Indian tribes who had maintained tribal relations
were ``under federal jurisdiction'' in 1934.
Legislative Action Needed to Address Carcieri v. Salazar
As you know, NCAI has been asking Congress to amend the IRA since
the Supreme Court decision in 2009. Our concerns about the decision are
coming to pass. There are at least eighteen pending cases where tribes
and the Secretary of Interior are under challenge. There are more
tribes whose land to trust applications have been stalled while the
Department of Interior works through painstaking legal and historical
analysis. We are seeing harassment litigation against tribes who were
on treaty reservations in 1934. Land acquisitions are delayed. Lending
and credit are threatened. Jobs are lost or never created.
We are also concerned that the litigation will grow. The IRA is
comprehensive legislation that provides for tribal constitutions and
tribal business structures, and serves as a framework for tribal self-
government. Future litigation could threaten tribal organizations,
contracts and loans, tribal reservations and lands, and provision of
services. Ancillary attacks may also come from criminal defendants
seeking to avoid federal or tribal jurisdiction, and would negatively
affect public safety on reservations. We fear that this could continue
to get worse until Congress acts to clarify that all federally
recognized tribes are eligible for the IRA.
At the same time I want to make it clear to county government
representatives that this is not an opportunity for changes to federal
law that will place decisionmaking authority in county hands. The
Federal Government and the Secretary of the Interior have the trust
responsibility to provide for the future of Indian tribes. While local
government issues are considered by the Secretary under the regulatory
process at 25 CFR 151, tribal leaders will never accept a legislative
proposal that transfers authority to state or county governments. This
issue starts with a history where states and counties took huge amounts
of land from Indian tribes, and we need the federal government to
protect our right to recover land for tribal self-determination.
We have a vision for our future as Indian people. Indian lands
should be places where the old ways are maintained, our languages are
spoken, and our children learn our traditions and pass them on to the
next generation. At the same time, this vision includes modern life--
economic development to sustain our people; safety and respectful
relationships with our neighbors; and the blessings of education,
healthcare and modern technology to help us thrive.
This vision was shared by the U.S. Congress in 1934 when it passed
one of the most important federal laws in the history of our country--
the Indian Reorganization Act. With the IRA, Congress renewed its trust
responsibility to protect and restore our tribal homelands and the
Indian way of life. Four and a half years ago, the shared vision and
the federal responsibility to Indian tribes were threatened by the
Supreme Court's interpretation of the IRA in Carcieri v. Salazar.
Prior to 1934, the Federal Government policy toward Indian tribes
was to sell off the tribal land base and assimilate Indian people. The
federal government did everything it could to disband our tribes, break
up our families, and suppress our culture. Over 90 million acres of
tribal land held under treaties were taken, more than two thirds of the
tribal land base, and the remaining lands were often of little value.
By the early 1930's the allotment and assimilation policies were widely
recognized as failures. The policies did little more than inflict great
suffering on Indian people and dishonor our Nation.
In 1934, Congress rejected allotment and assimilation and passed
the IRA. The clear and overriding purpose of Congress was to re-
establish the tribal land base and restore tribal governments that had
withered under prior federal policies. The legislative history and the
Act itself are filled with references to restoration of federal support
for tribes that had been cut off, and ``to provide land for landless
Indians.''
A problem with our legal system is that lawyers sometimes lose
sight of the fundamental history and purpose of a law, debate the
meaning of a few words, and suddenly the law is turned on its head.
Today, because of the Carcieri decision, we have opponents arguing that
tribes are not eligible for the benefits of the IRA if they were not
under active federal supervision by the Bureau of Indian Affairs in
1934, or if they did not have lands in trust 1934. Both of these
arguments are contrary to the history and purpose of the law to re-
establish federal support for tribes that had been abandoned or ignored
by the BIA, and to restore land to tribes that had little or no land.
Today, 75 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 and self-
government and culture. We will need the IRA for many more years until
the tribal needs for self-support and self-determination are met.
U.S. Constitution Creates Presumption of Federal Jurisdiction over
Indian Tribes
Carcieri v. Salazar involved a challenge by the State of Rhode
Island to the authority of the Secretary to take land in to trust for
the Narragansett Tribe under Section 465 of the Indian Reorganization
Act (IRA). The opinion involves the definition of ``Indian'' in Section
479:
25 U.S.C. 479
The term ``Indian'' as used in this Act shall include all
persons of Indian descent who are members of any recognized
Indian tribe now under Federal jurisdiction, and all persons
who are descendants of such members who were, on June 1, 1934,
residing within the present boundaries of any Indian
reservation, and shall further include all other persons of
one-half or more Indian blood. For the purposes of this Act
Eskimos and other aboriginal peoples of Alaska shall be
considered Indians. The term ``tribe'' wherever used in this
Act shall be construed to refer to any Indian tribe, organized
band, pueblo, or the Indians residing on one reservation. The
words ``adult Indians'' wherever used in this Act shall be
construed to refer to Indians who have attained the age of
twenty-one years. (emphasis added.)
The Supreme Court's decision reversed the 1st Circuit and held that
the term ``now'' limits the authority of the Secretary to only take
land in trust for Indian tribes that were under federal jurisdiction on
June 18, 1934, the date the IRA was enacted. The Court accepted the
State of Rhode Island's assertion that the Narragansett Tribe was not
``under federal jurisdiction'' in 1934.
After the Carcieri decision, the phrase ``under federal
jurisdiction'' takes on greater legal significance in the land to trust
process and in all applications of the IRA. The Secretary of Interior
is faced with questions of whether an Indian tribe was ``under federal
jurisdiction'' on a date nearly eighty years ago--a period of time when
federal administration was highly decentralized and for which record
keeping was often inconsistent. After significant research into the
legislative history of the IRA, NCAI strongly urges both Congress and
the Administration to recognize the constitutional roots of federal
jurisdiction in Indian affairs. The Department of Interior can and
should narrowly interpret the Carcieri decision, and NCAI strongly
urges Congress to reaffirm the principle of equal treatment of all
federally recognized tribes--because it is rooted in our federal
Constitution.
Although the nature of federal Indian law has varied significantly
during the course of U.S. history, there is a central principle that
has remained constant: jurisdiction over Indian affairs is delegated to
the federal government in the U.S. Constitution. The authority is
derived from the Indian Commerce Clause, the Treaty Clause, the
Territory and Property Clause, and the trust relationship created in
treaties, course of dealings and the Constitution's adoption of
inherent powers necessary to regulate military and foreign affairs.
See, United States v. Lara, 541 U.S. 193 (2004).
Federal jurisdiction over Indian tribes is limited by legal
principles that were at the forefront of Congressional consideration in
1934, although they are not in frequent use today. During Allotment Era
prior to 1934, Congress passed laws that created U.S. citizenship and
allotments of private property for tribal Indians. Questions arose on
whether those citizens could be treated legally as ``Indians'' for the
purposes of the federal Indian laws. There was a significant string of
Supreme Court cases that dealt with these questions, primarily in the
context of the federal criminal laws and liquor control laws related to
Indians, and restrictions on alienation and taxation of Indian
property. See, Hallowell v. United States, 221 U.S. 317 (1911); Tiger
v. Western Invest. Co., 221 U.S. 286 (1911); United States v. Rickert,
188 U.S. 432 (1903); United States v. Celestine, 215 U.S. 278 (1909);
United States v. Sandoval; 231 U.S. 28 (1913); Matter of Heff, 197 U.S.
488 (1905) overruled by United States v. Nice, 241 U.S. 591 (1916);
U.S. v. Ramsey, 271 U.S. 467 (1926).
The holding of these decisions is that Indian tribes and Indian
people remain under federal jurisdiction unless they have ceased tribal
relations or federal supervision has been terminated by treaty or act
of Congress. See, U.S. v. Nice, 241 U.S. 591, 598 (1916), ``the tribal
relation may be dissolved and the national guardianship brought to an
end; but it rests with Congress to determine when and how this shall be
done, and whether the emancipation shall at first be complete or only
partial.'' ``The Constitution invested Congress with power to regulate
traffic in intoxicating liquors with the Indian tribes, meaning with
the individuals composing them. That was a continuing power of which
Congress could not devest itself. It could be exerted at any time and
in various forms during the continuance of the tribal relation . . .''
Id at 600.
The origins of this constitutional legal doctrine are summarized in
Cohen's Handbook of Federal Indian Law (2005 ed.) 14.01[2-3],
regarding the prior status of non-citizen Indians and efforts to
assimilate Indians and terminate their tribal status. In this era the
Supreme Court repeatedly affirmed Congress's authority to terminate
federal guardianship, but found that Congress retained jurisdiction
over Indians despite allotment of tribal lands and the grant of U.S.
citizenship to Indians so long as tribal relations were maintained.
The exclusion of Indians who had ceased tribal relations was a
significant limitation on the scope of the IRA. During the Allotment
Era, Indian tribes were under severe pressures from federal policies
and warfare, extermination efforts, disease and dislocation. Some
tribes had become fragmented and were no longer maintaining a social or
political organization.
This understanding comports with the unique legislative history of
the phrase ``now under federal jurisdiction'' in Section 479. During a
legislative hearing in 1934 when Commissioner of Indian Affairs John
Collier was presenting the IRA to the Senate Committee on Indian
Affairs, he was asked by Senator Burton Wheeler, the Chairman of the
Committee, whether the legislation would apply to Indian people who
were no longer in a tribal organization. Collier responded by
suggesting the insertion of the terms ``now under Federal
jurisdiction.'' See, Senate Committee on Indian Affairs, To Grant
Indians the Freedom to Organize, 73rd Cong., 2nd Session, 1934, 265-
266. By inserting these terms, Congress excluded the members of tribes
who had ceased tribal relations. As discussed in the hearing record,
those tribal members could only gain the benefits of the IRA if they
met the definition under the ``half-blood'' provisions. Commissioner
Collier submitted a brief to the Committee that reiterated the
principles of broad federal jurisdiction in Indian affairs under the
Constitution. Id at 265. This brief specifically quoted the Supreme
Court's decision in United States v. Sandoval; 231 U.S. 28 at 46
(1913):
Not only does the Constitution expressly authorize Congress to
regulate commerce with the Indian tribes, but long continued
legislative and executive usage and an unbroken current of
judicial decisions have attributed to the United States as a
superior and civilized nation the power and the duty of
exercising a fostering care and protection over all dependent
Indian communities within its borders, whether within its
original territory or territory subsequently acquired, and
whether within or without the limits of a state.
The practices and regulations of the Bureau of Indian Affairs
regarding the establishment of recognition for American Indian tribes,
found in 25 C.F.R. Pt. 83, are also based on these legal principles. 25
C.F.R. Pt. 83.7(b) and (c) are the requirements of continued tribal
relations. 25 C.F.R. 83.7(g) is the requirement that tribal status and
federal relations have not been revoked by Congress. Any tribe
recognized pursuant to Part 83 has already received a factual
determination that the tribe was under federal jurisdiction in 1934.
The only other available methods for organizing under the IRA are to be
recognized as Indians of one-half or more Indian blood, or to receive
federal recognition directly from Congress.
In short, the Carcieri decision's requirement that an Indian tribe
must be ``under federal jurisdiction'' in 1934 should not place a
burden of proof on the tribe to demonstrate that federal jurisdiction
existed or was actively exercised at that time. The presumption under
the Constitution is that federal jurisdiction over tribes always exists
unless it has been completely and equivocally revoked by an Act of
Congress, or tribal relations have ceased. Because the practices and
regulations of the BIA regarding federal recognition already include
these exclusions, and have prevented the recognition of tribes that
have failed to maintain tribal relations, there are no federally
recognized tribes which were not ``under federal jurisdiction'' in
1934.
The Secretary of the Interior's Authority and Responsibility to Restore
Land in Trust for Indian Tribes
The principal goal of the Indian Reorganization Act was to halt and
reverse the abrupt decline in the economic, cultural, governmental and
social well-being of Indian tribes caused by the disastrous federal
policy of ``allotment'' and sale of reservation lands. Between the
years of 1887 and 1934, the U.S. Government took more than 90 million
acres from the tribes without compensation, nearly 2/3 of all
reservation lands, and sold it to settlers and timber and mining
interests. The IRA is comprehensive legislation for the benefit of
tribes that stops the allotment of tribal lands, provides for the
acquisition of new lands, continues the federal trust ownership of
tribal lands, encourages economic development, and provides a framework
for the reestablishment of tribal government institutions on their own
lands.
In contemporary implementation of trust land acquisition, we would
like to raise three important points. First, while some controversies
exist, what is often misunderstood is that the vast majority of trust
land acquisitions take place in extremely rural areas and are not
controversial in any way. Most acquisitions involve home sites of 30
acres or less within reservation boundaries. Trust land acquisition is
also necessary for consolidation of fractionated and allotted Indian
lands, which most often are grazing, forestry or agricultural lands.
Other typical acquisitions include land for Indian housing, health care
clinics that serve both Indian and non-Indian communities, and land for
Indian schools.
Second, state and local governments have a role in the land to
trust process. The Interior regulations provide opportunities for all
concerned parties to be heard, and place the burden on tribes to
justify the trust land acquisition, particularly in the off-reservation
context. It is important to recognize that land issues require case by
case balancing of the benefits and costs unique to a particular
location and community. The regulations cannot be expected to
anticipate every situation that might arise, but they do provide an
ample forum for local communities to raise opposition to a particular
acquisition and they reinforce the Secretary's statutory authority to
reject any acquisition. State and local governments have an opportunity
to engage in constructive dialogue with tribes on the most sensible and
mutually agreeable options for restoring Indian land. In most cases,
there is strong community support for the development of tribal
schools, housing, health care clinics, and economic development
ventures that will benefit surrounding communities as well as the
tribe.
Third, the chief problem with the land to trust process is the
interminable delays caused by inaction at the Bureau of Indian Affairs.
Too often have tribes spent scarce resources to purchase land and
prepare a trust application only to have it sit for years or even
decades without a response. In addition, during inordinate delays
tribes risk losing funding and support for the projects that they have
planned for the land, and environmental review documents grow stale.
Tribal leaders have encouraged the BIA to establish internal time lines
and checklists so that tribes will have a clear idea of when a decision
on their application will be rendered. Tribes should know if progress
is being made at all, and, if not, why not. While there have been some
recent improvements in the process, the issue evokes great frustration
over pending applications and has been raised by tribal leaders at
every NCAI meeting.
Conclusion
While it is important for the Interior Department to properly apply
the principles we have discussed here, many tribes (and the federal
government) would still be subject to litigation that could create
uncertainty and delay tribal progress for years to come. Legislation to
address Carcieri is the only way to provide the certainty needed to
avoid that wasteful result. NCAI urges the Committee to work closely
with Indian tribes and the Administration on legislation to address
Carcieri and allow all federally recognized Indian tribes to enjoy the
benefits of the IRA. We thank you for your diligent efforts on behalf
of Indian country on these and many other issues.
The Chairwoman. Thank you, and thank you for your
testimony.
We will next turn to the Honorable Marshall Pierite. Thank
you so much for being here.
STATEMENT OF HON. MARSHALL PIERITE, CHAIRMAN, TUNICA-BILOXI
TRIBE OF LOUISIANA; CHAIR, USET CARCIERI TASK FORCE
Mr. Pierite. Thank you. First I want to give all honor, all
praise and all the glory to God the Father, the Son and Holy
Spirit.
Good afternoon, Madam Chairman, Senator Begich. I am
Chairman of the Tunica-Biloxi Tribe and serve as chair of the
USET Carcieri Task Force. Thank you for this opportunity to
testify today.
First and foremost, I want to touch on your opening
comments, Madam Chairwoman, when you said we need to shed light
on this issue. We need to shed a light on all issues and
concerns, because when we shed a light, faith is born. And
faith is born always during the light.
It also is developed in the darkness. And Native American
culture is strong in faith, because we dwelled in the darkness
for centuries. I just wanted to make that comment.
Despite the many contributions and personal sacrifices that
Native Americans have made to the Nation, the United States has
a miserable record of keeping faith with tribal governments.
The history of theft, neglect and broken laws and treaties has
led to hard feelings for Native Americans and non-Natives
alike.
Today, however, I would like to highlight what happens when
tribal governments utilize their unique legal position to
benefit themselves and how this is also good for their non-
Indian neighbors. Unfortunately, the U.S. Supreme Court
Carcieri decision has cast doubt on the sovereign control of
tribal lands and slowed the Federal Government's ability to
place land into trust for the benefit of tribal government.
Until Congress amends the Indian Reorganization Act to correct
the problems created by the Carcieri decision, the benefits
brought on by strong tribal governments for themselves and
their surrounding local community will be significantly
diminished.
While I do not want to dwell on the sad history of
injustice against tribes and Native Americans, it is important
to remember this history in order to illuminate the justice and
healing that tribal reacquisition can bring. All tribes held
title to large amounts of amount that has been stolen from
them. Ours is merely one example.
At the time of the Louisiana Purchase treaty in 1803, the
Tunica-Biloxi tribe held title to well over 50 square miles of
land. But in 1980, however, the tribe controlled less than 200
acres. These lands were stolen in hundreds of small ways. But
one example stands out. In 1841, Chief Melancon confronted a
local landowner whose work crew was moving his fence posts into
Tunica land. As the Chief protested and began removing the
fence posts, the landowner shot Chief Melancon in the head in
full sight of many witnesses. The common view at the time was
that Indians were savages who could not farm their land
properly and therefore had no right to keep it. As a result,
the killer was thought to be within his rights and never stood
trial.
Against this history of injustice, the Tunica-Biloxi Tribe
and hundreds of other tribes across the country are utilizing
their own resources to purchase land that has been stolen from
them. But we do not wish to continue the cycle of mistrust,
envy and hard feelings. Instead, we have forged new positive
relationships with the local non-Indian communities that have
grown up around us.
Utilizing our status as a sovereign nation, the Tunica-
Biloxi Tribe has created several economic development
enterprises that generate revenue for the tribal government to
protect and enhance the welfare and culture of our tribal
citizens. But they also provide major benefits for our non-
Indian neighbors and revenues for State and local governments
in the region.
For example, our tribal enterprises purchases over $10
million per year from local and non-Indian vendors and supplies
wages in excess of $26 million per year to mostly non-Indian
employees, resulting in State and Federal employment taxes of
over $2 million per year. In addition, we have donated over $3
million to local charities and controlled over $25 million to
the local parish government to help cover the cost associated
with the additional demands facing the community from the
increased economic activity.
When the tribe casino gaming as a means for economic
advancement in the early 1990s, unemployment rates in Avoyelles
Parish was as high as 17 percent, almost twice the national
average. Local governments struggled to provide even the most
basic services and it looked as if there was nothing on the
horizon that might change the dismal forecast for the area.
Today, I am very proud to say that Tunica-Biloxi employs
nearly 1,700 people, the vast majority of them are non-Indians.
After our gaming facility opened in 1994, the direct and
indirect jobs created by the Tribe caused the unemployment rate
in Avoyelles Parish to drop below the national average. Home
prices increased. New roads were paved. Schools improved.
Parish government service expanded and hundreds of new
businesses sprang up in nearby Louisiana.
Of course, many of our tribal citizens who suffered from
the bitter yoke of poverty were helped as well, a first step as
one of renewal for the entire region, all of our citizens and
neighbors. Tribal governments across the Country are working
hard to diversify our economies away from gaming and find new
ways to provide the revenues we need to support our community.
We hope and pray to create new manufacturing facilities, enter
the software and service industry and build new clean energy
projects. In order to do this, we must first repurchase the
land that was stolen from us and place that land back into
trust.
In light of the often-brutal history of relationships
between tribes and their neighbors, the level of acrimony we
often hear from non-Indians who are opposed to tribal economic
development projects is not entirely surprising. I am hopeful,
however, that the lessons we are learning today will yield a
new spirit of cooperation and unity and that non-Indians who
are fearful of tribal economic development will come to realize
that what is good for our tribal nations is good for them as
well.
The Supreme Court decision in Carcieri v. Salazar was a
major step backward in the process of justice and healing. The
ruling has slowed economic growth and job creation and
continues to spawn legal impediments to the repatriation of
Indian homelands. For the good of the tribes and generations
yet to come, and for the good of our non-Indian neighbors and
the Nation as a whole, Congress should act swiftly to amend the
Indian Reorganization Act to conform to its original intended
purposes for Native American Country and non-Native American
alike, to walk in the same light. Amen.
Thank you.
[The prepared statement of Mr. Pierite follows:]
Prepared Statement of Hon. Marshall Pierite, Chairman, Tunica-Biloxi
Tribe of Louisiana; Chair, USET Carcieri Task Force
Chairwoman Cantwell, Vice Chairman Barrasso, and members of the
Committee, my name is Marshall Pierite. I am the Chairman of the
Tunica-Biloxi Tribe of Louisiana and serve as Chair of the USET
Carcieri Task Force. Thank you for this opportunity to testify before
you today.
The United South and Eastern Tribes, Inc. (USET), is an inter-
tribal organization representing 26 federally recognized Tribes from
Texas across to Florida and up to Maine. The USET Tribes are within the
Eastern Region and Southern Plains Region of the Bureau of Indian
Affairs (BIA) and the Nashville Area Office of Indian Health Services
(IHS), covering a large expanse of land and area compared to the Tribes
in other Regions. USET Tribes can be found from the Canadian Border in
Maine and New York, along the east coast to Florida, west into
Mississippi and south into Texas.
Due to this large geographic area, the Tribal Nations in our region
have incredible diversity. From an economic standpoint, some of our
member tribes have highly developed economies, while others remain
mired in poverty. All of our tribes, however, look to the United States
to live up to its trust responsibility and to promote and protect our
inherent Tribal sovereignty. I am here before you today, to state
unequivocally, that the Carcieri decision is a direct infringement to
the sovereignty rights for all Tribal Nations across the United States.
This decision has resulted in the inability of our trustee to fulfill
its trust obligations, has created two classes of sovereignty, and has
presented a major barrier and challenge in our ability to pursue
economic growth and prosperity.
Over the years, many witnesses have come before this committee to
assert the rights of tribes and to detail the legal obligations of the
federal government to protect and promote effective tribal governments.
Unfortunately, the history of the United States in meeting these
obligations is full of broken treaties and statutes. Despite the myriad
major contributions and personal sacrifices that tribes and Native
Americans have made to the nation, the United States has a miserable
record of keeping even the most basic of its promises to tribal
governments.
This history of neglect and disdain has led to hard feelings for
both Native Americans and non-natives alike. In some cases a level of
mistrust has developed that is deeply ingrained on both sides. Today
however, instead of focusing on this troubling past, I would like to
highlight the success of my tribe as an example of what happens when
tribal governments utilize their unique legal position to benefit not
only the welfare of tribal citizens, but also the welfare of their non-
Indian neighbors. The lesson of the last several decades that hundreds
of tribes and local communities are learning is that strong tribal
governments and the economic activity that they develop is good for
both tribal communities and their non-Indian neighbors. Provided the
right legal landscape, tribal governments are strong engines of
economic and civic growth, and are good partners to non-Indian local
communities.
Unfortunately, the U.S. Supreme Court's 2009 decision in Carcieri
v. Salazar has cast doubt on the sovereign control of Indian lands and
slowed the federal government's ability to place land into trust for
the benefit of tribal governments. This complication not only harms the
ability of tribes to provide for the welfare of their citizens-it also
hampers the ability of tribes to bring the benefits of their economic
development activities to their non-Indian neighbors. Until Congress
corrects the Indian Reorganization Act in such a way as to correct the
problems created by the Carcieri decision, the successes and benefits
brought on by strong tribal governments will be significantly
diminished.
While I do not want to dwell on the sad history of injustice
against tribes and Native Americans, it is important to note some
important parts of this history as it relates to land ownership, in
order to illuminate the justice and healing that tribal land
reacquisition can engender. Every tribe has its own history of loss,
and every federally-recognized tribe once held title to large amounts
of land that has been stolen from them. There are numerous stories
across the country about the theft of Indian land and resources, and
even of the killing of our people. Ours is merely one example.
Prior to the acquisition of our land by the United States through
the Louisiana Purchase Treaty in 1803, the Tunica-Biloxi Tribe had been
granted a ``league squared'' around each one of its villages by the
King of Spain. Accordingly, the tribe held title to well over 50 square
miles of land at that time. Like all other Spanish land grants, this
land ownership was recognized by the United States in the Louisiana
Purchase Treaty, and per the Trade and Intercourse Acts, these Indian
lands could not be legally removed from tribal ownership without
approval of the Federal Government. However, despite no approval for
land transfer by the U.S. Congress in the intervening years, by 1980
the tribe controlled less than 200 acres of land.
These lands were stolen in hundreds of small ways, but one example
stands out. In 1841, Chief Melacon confronted a local land owner whose
work crew was moving his fence posts onto Tunica land. As the Chief
began removing the fence posts the land owner shot Chief Melacon in the
head in view of several other tribal citizens and non-Indians. The
killer never stood trial, as the common view at the time among non-
Indians in the area was that the Indians were savages who did not farm
their land ``properly'' and therefore had no right to keep it.
Against this history of injustice, the Tunica-Biloxi Tribe, and
hundreds of other tribes across the country, are utilizing their own
resources to purchase land that has been stolen from them. But, we do
not wish to continue the cycle of mistrust, envy and hard feelings.
Instead, we have forged new positive relationships with the local non-
Indian communities that have grown up around us. Utilizing our status
as a sovereign nation, the Tunica-Biloxi Tribe has created several
economic development enterprises. These businesses generate revenue for
the tribal government to protect and enhance the welfare and culture of
the tribal citizens. However, they also provide major benefits for our
non-Indian neighbors and revenues for state and local governments in
the region. For example, our tribal enterprises purchase over $10
million per year from local non-Indian vendors, and supply wages in
excess of $26 million dollars per year to mostly non-Indian employees,
resulting in state and federal employment taxes of over $2 million per
year. In addition, we have donated millions of dollars to local
charities, and have paid the local Parish government over $25 million
to help cover the costs associated with the additional demands placed
on the community from the increased economic activity.
The Tunica-Biloxi Tribe is located near the small town of
Marksville in Central Louisiana. Despite a population of less than
6,000, Marksville serves as the seat of the Avoyelles parish
government. When the Tribe began looking at gaming as a means for
economic advancement in the early 1990s unemployment rates in Avoyelles
Parish were as high as 15-17 percent (compared to the national rate at
the time of about 8 percent). Youth were leaving the area as fast as
they could, and those unable to leave had no employment options. Local
governments struggled to provide even the most basic services, and it
looked as if there was nothing on the horizon that might change the
dismal forecast for the area.
While the population of Marksville has not changed much in 20
years, the Tunica-Biloxi Tribe, through its several economic
development enterprises, employs nearly 1,500 people--the vast majority
of them non-Indian. After our gaming facility opened in 1995, the
direct and indirect jobs created by the Tribe caused the unemployment
rate in Avoyelles Parish to drop to about 6 percent. Home prices
increased, new roads were paved, schools improved, Parish government
services expanded, and hundreds of new businesses sprung up in
Marksville and across the parish. Of course, our tribal citizens who
had previously suffered greatly from economic hardship were helped as
well, but the full story is one of renewal for the entire region and
all of our citizens and neighbors.
Today, the Tunica-Biloxi Tribe, and hundreds of other tribal
governments across the country are working hard to diversify our
economies and find new enterprises that can provide the revenues we
need to support our communities and protect and enhance our unique
cultures. Tribes, including ours, are hoping to create new
manufacturing facilities, enter the software and services industries,
and build new clean energy projects. Because of the loss of our land
base, in order to create these new economic development projects we
must first repurchase the land that was stolen from us.
Further, in order to take advantage of the benefits of our
sovereignty, we must have that land added back into the trust status
from which it was originally removed. Often, purchasing the tribe's
original land is not an option. In some cases this is because the tribe
was removed and sent a long way from their traditional homelands. In
other cases the current owners are simply not willing to sell, or the
land is no longer suitable for the intended purpose due to other
development, environmental degradation, or any number of other reasons.
Regardless of the location of the repurchased land, the inability of
tribes to swiftly have these lands placed into trust by the U.S.
Department of the Interior has dramatically decreased the ability of
tribal governments to create new economic opportunities and jobs for
our own tribal citizens and our neighbors. We realize that we cannot
fully recreate what was lost. We can strive, however, to create a
better world and better lives for our children.
In light of the complicated and often brutal history of
relationships between tribes and their neighbors, the level of acrimony
we often hear from non-Indians who are opposed to tribal economic
development projects is not entirely surprising. What I hope all of us
will come to recognize, however, is that tribes and their neighbors are
in this together. We must realize that we rely on each other, and all
parties want the larger community and the nation to prosper. I am
hopeful that the lessons we are learning in Central Louisiana and in
hundreds of other communities across the country will yield a new
spirit of cooperation, and that non-Indians who are fearful of tribal
economic development will come to realize that what is good for our
tribal communities is good for them as well.
The Supreme Court decision in Carcieri v. Salazar was a major step
backward in this process of justice and healing. The ruling confused
both tribal governments and non-Indians alike, slowed economic growth
and job creation, and continues to spawn legal impediments to the
repatriation of Indian homelands. For the good of tribes, for the good
of Indian children and generations yet to come, and for the good of our
non-Indian neighbors and the nation as a whole, Congress should act to
amend the Indian Reorganization Act to conform to its original intended
purpose.
The Chairwoman. Thank you, Mr. Chairman. Thank you for
being here. Thank you for representing the Tunica-Biloxi Tribe
so well. We appreciate it.
Ms. Dillon, thank you for being here. We are looking
forward to your testimony. You can begin.
STATEMENT OF DIANE DILLON, SUPERVISOR, NAPA COUNTY BOARD OF
SUPERVISORS; MEMBER, CALIFORNIA STATE
ASSOCIATION OF COUNTIES
Ms. Dillon. Thank you very much.
Chairwoman, Senator Begich, thank you for the opportunity
to address you today. My name is Diane Dillon and I serve on
the Napa County Board of Supervisors. The testimony I am
delivering today is on behalf of the California State
Association of Counties, known as CSAC, of which I am an active
member. Fifty-eight counties, almost 300 elected officials,
representing the entire population of California, one-tenth of
the U.S. population. Everyone who lives in a city lives in a
county as well.
I am also submitting for the record a statement from the
National Association of Counties, NACO. CSAC works closely with
NACO on a number of issues, including several key Indian
affairs matters.
In the brief time that I have before you today, I will
describe what CSAC believes are major deficiencies in the
Department of Interior's fee to trust process and provide the
Committee with our recommendations for addressing these flaws.
County governments have long been frustrated with the process
by which lands are taken into trust. We believe the fee to
trust system is broken and broken for al parties. A so-called
simple Carcieri fix, as advocated by some stakeholders, would
do nothing to repair the underlying problems in the trust land
process and would serve only to perpetuate the conflict
inherent in the current system.
As county governments, the people we serve are heavily
impacted by fee to trust decisions. In California alone, there
are currently 113 federally recognized tribes. As Senator
Feinstein mentioned, there are 70 casinos. Apart from the
removal of trust lands from the local tax base and land use
jurisdiction, which as Secretary Washburn described, are the
two issues upon which we are consulted, trust acquisitions
increase demands for law enforcement, fire protection, health
and social services, transportation, water and other resources
provided by counties without providing any mitigation for the
burdens created.
These challenges are of particular concern because newly
sought-after tribal lands are targeted in well-established
communities that are closer to large urban populations than
existing casinos. These newly sought tribal land applications
are aimed at creating new gamblers, as well as drawing business
from existing casinos.
Although trust acquisitions can result in these significant
off-reservation impacts, the Department of Interior does not
provide impacted local governments and communities with
sufficient notice regarding fee to trust applications. Further,
the Department does not accord county concerns adequate weight
in the land into trust process.
Many of these deficiencies in the trust land process were
recently documented in a Pepperdine law review quantitative
analysis of all 111 fee to trust decisions by the Pacific
Region Bureau of Indian Affairs office between 2001 and 2011.
The analysis found that the BIA granted 100 percent of the
acquisition requests, and in no case did any Section 151 weigh
against approval of an application.
Because of the lack of clear guidance and objective
criteria for analyzing trust land requests, the Pacific Region
BIA decisions did not give due consideration to the issues at
stake.
Perhaps most egregious is that as determinations are made
regarding whether property qualifies as Indian lands under the
Indian Gaming Regulatory Act, which is critical to a gaming
application, counties are not notified of such determination,
not consulted and not invited to participate in the process. We
believe that local government participation is essential in
order to ensure there is a complete factual basis upon which
objective decisions can be made.
We want a real and lasting fix to the entire land into
trust process. In our view, an amendment to the 1934 Indian
Reorganization Act that extends tribal trust land acquisition
authority to the Secretary of Interior must also include clear
direction to provide adequate notice to local governments,
ensure that local governments are consulted throughout the fee
to trust process, provide incentives for tribes and local
governments to work together. We want to do that. And provide
for cooperating agreements that are enforceable.
Rather than authorize the Department to continue business
as usual, this Committee should advance legislation that
balances the legitimate interests of both tribal and county
governments.
In closing, I ask you to note that CSAC has submitted
formal written testimony for the record that includes
additional details, more than I can give in this allotted oral
time. One-fifth of the Nation's federally recognized tribes are
in California. There are 352 applications for Federal
recognition pending nationwide; one-fourth are from California.
If Carcieri reform occurs without addressing fee to trust
reform, it will have a disproportionate impact on California
compared to the rest of the Nation, because of the large
numbers of tribes that could be positioned for trust land
acquisition. I believe personally that that is why Senator
Feinstein is so concerned about this issue.
The fee to trust process mus be part of a Carcieri fix. You
will only fix part of the problem if you don't address the
whole underlying situation. We need to look at this
comprehensively. We urge you to work with counties to ensure
that this historic opportunity is not missed.
Thank you very much.
[The prepared statement of Ms. Dillon follows:]
Prepared Statement of Diane Dillon, Supervisor, Napa County Board of
Supervisors; Member, California State Association of Counties
Thank you Chairwoman Cantwell, Ranking Member Barrasso, and Members
of the Committee for the opportunity to testify today. My name is Diane
Dillon, and I am a County Supervisor in Napa County, California and am
actively involved in the California State Association of Counties
(CSAC). This testimony is submitted on behalf of CSAC, which has been
actively engaged in pursuing federal laws and regulations that provide
the framework for constructive government-to-government relationships
between counties and tribes.
CSAC, which was founded in 1895, is the unified voice on behalf of
all 58 of California's counties. The primary purpose of the association
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.
The intent of this testimony is to provide a perspective from
counties regarding the significance of the Supreme Court's decision in
Carcieri v. Salazar and to recommend measures for the Committee to
consider as it seeks to address the implications of the decision. 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 in which tribal interests can be met and legitimate state and
local interests are properly considered.
In our view, the recent Carcieri decision provides Congress with a
rare opportunity to address long-standing defects in the land-into-
trust system. The current process--as authorized under the Indian
Reorganization Act of 1934 (IRA) and governed by the Department of the
Interior's Part 151 regulations--lacks adequate standards and has led
to significant, and in many cases, unnecessary conflict and distrust of
the federal decisionmaking system for trust lands. It is from this
local government experience regarding the fee-to-trust process that we
address the implications of the Carcieri decision.
The Deficiencies of 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). The
relevant section of federal law, Section 5 of the IRA, 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.
The aforementioned general and undefined congressional guidance has
resulted in a trust land process that fails to meaningfully include
legitimate interests, provide adequate transparency to the public, or
demonstrate fundamental balance in trust land decisions. The
unsatisfactory process has created 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.
It should be noted that the deficiencies in the trust land process
were reaffirmed recently in a quantitative analysis of all 111 fee-to-
trust decisions by the Pacific Region BIA Office between 2001 and 2011.
\1\ The analysis found that BIA granted 100 percent of the proposed
acquisition requests and in no case did any Section 151 factor weigh
against approval of an application. \2\ The analysis further found that
because of the lack of clear guidance and objective criteria, Pacific
Region BIA decisions avoid substantive analysis in favor of filler
considerations and boilerplate language. \3\ The result is a broken
process in which community concerns are ignored or downplayed,
applications are rubber-stamped at a 100 percent acceptance rate, and
tribes and local governments are forced into unnecessary and
unproductive conflict. \4\ The problem appears likely to worsen in the
future, given recent statements by the Department trumpeting its desire
to ``keep that freight train moving'' and ``keep restoring lands for
tribes.'' \5\
---------------------------------------------------------------------------
\1\ (Kelsey J. Waples, Extreme Rubber Stamping: The Fee-to-Trust
Process of the Indian Reorganization Act of 1934, 40 Pepperdine Law
Review 250 (2013).
\2\ Id., pp. 278.
\3\ Id., pp. 286, 293, 302.
\4\ Id., pp. 292, 295, 297.
\5\ See ``Washburn Announces Plan of Attack for Patchak Plan,''
http://indiancountrytodaymedianetwork.com/2013/05/24/washburn-
announces-plan-attack-patchak-patch-149514.
---------------------------------------------------------------------------
While there are a number of major flaws in BIA's fee-to-trust
process, one of CSAC's central concerns 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.
Moreover, the notice that 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; in other cases, tribes have identified
a non-intensive, mundane use, only to change the use to heavy economic
development, such as gaming or energy projects, soon after the land is
acquired in trust.
Local governments also are often forced to resort to Freedom of
Information Act (FOIA) requests to ascertain if a petition for an
Indian lands determination--a key step in the process for a parcel of
land to qualify for gaming--has been filed in their jurisdiction.
Because many tribal land acquisitions ultimately will be used for
economic development purposes--including gaming activities--there are
often significant unmitigated impacts to the surrounding community,
including environmental and economic impacts. Unfortunately, current
law does not provide any incentive for tribes and affected local
governments to enter into agreements for the mitigation of off-
reservation impacts.
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. Indeed, the current notification
process embodied in the Part 151 regulations is, in practice,
insufficient and falls far short of providing local governments with
the level of detail needed to adequately respond to proposed trust land
acquisitions. Accordingly, a legislative effort is needed to meet the
fundamental interests of both tribes and local governments.
Carcieri v. Salazar--An Historic Opportunity
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 IRA in 1934.
Because the Carcieri decision has definitively confirmed the
Secretary's lack of authority to take land into trust for post-1934
tribes, Congress has the opportunity not just to address the issue of
the Secretary's authority under the current failed fee-to-trust 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 trust land process.
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, like several hearings before it, is a recognition of
the significance of the Carcieri decision and the need to consider
legislative action.
We believe that the responsibility to address the implications of
Carcieri clearly rests with Congress and that a decision to do so in
isolation of the larger problems of the fee-to-trust system would
represent an historic missed opportunity. Indeed, 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 trust acquisition 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.
Our primary recommendation to the Committee 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, Congress should make meaningful, comprehensive reforms
to the trust land system. Legislation should include provisions that
ensure local governments and impacted parties are able to file a
challenge to a trust acquisition decision before title to the land is
transferred. Such a change is necessary in light of the Department of
the Interior's recent decision--discussed in further detail below--to
eliminate the waiting period in which the Secretary was required to
publish a notice of a trust decision 30 days before actually acquiring
title to the land.
CSAC believes that the Carcieri decision presents Congress with an
opportunity to carefully exercise its constitutional authority for fee-
to-trust acquisitions and to define the respective roles of Congress
and the Executive Branch in trust land decisions. Additionally, it
affords Congress with the opportunity 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 the power to not provide new
standard-less 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.
Looking ahead, we respectfully urge Members of this Committee to
consider a comprehensive approach to 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.
Some of the more important new standards should be as follows:
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 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 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; accordingly, 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. 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. As previously indicated,
counties are often forced to file a FOIA request to even determine if
an application was filed and the basis for the petition.
Notice for trust and other land actions for tribes that go to
counties and other governments is not only very limited in coverage,
the 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 or consultation with
local government organizations.
The corollary is that consultation with counties and local
governments must be substantive, include all affected communities, and
provide an opportunity for 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, government services currently
provided to the subject parcels, 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.
Define Tribal Need
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 a
trust land acquisition. There are no standards other than the
stipulation 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.
Congress should consider developing standards requiring
justification of the need and purpose for acquisition of additional
trust lands so that the acquisition process does not continue to be a
``blank check'' for removing land from state and local jurisdiction.
Notably, CSAC supports a lower threshold for acquisition of trust land
that will be used only for non-gaming or non-intensive economic
purposes, including governmental uses and housing projects.
Changes in Use of Land
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 explicitly authorize restrictions and conditions
to be placed on land going into trust that further the interests of
both affected tribes and other affected governments.
Intergovernmental Agreements
4) Tribes that Reach Local Intergovernmental Agreements to Address
Jurisdiction and Environmental Impacts Should Have a Streamlined
Process. 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.
It should be noted that an approach that encourages
intergovernmental agreements between a tribe and local government
affected by fee-to-trust applications is required and working well
under recent California State gaming compacts. Not only does such an
approach offer the opportunity to streamline the application process,
it can also help to ensure the success of the tribal project within the
local community. The establishment of a trust land system that
incentivizes intergovernmental agreements between tribes and local
governments is at the heart of CSAC's fee-to-trust reform
recommendations and should be a top priority for Congress.
Clear and Objective Standards
5) Establish Clear and 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. For example, BIA requests only minimal
information about the impacts of such acquisitions on local communities
and 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.
Furthermore, the BIA has the specific mission to serve Indians and
tribes and is granted broad discretion to decide in favor of tribes. In
order to reasonably balance the interests of tribes and local
governments, the Executive Branch should be given clear direction from
Congress regarding considerations of need and mitigation of impacts to
approve a trust land acquisition. However any 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.
The attached fee-to-trust legislative reform proposal developed by
CSAC seeks to address the inequities and flaws in the current trust
land system. The centerpiece of the reform package is a proposal that
would provide an incentive for tribes and local governments to enter
into judicially enforceable mitigation agreements. Additionally, the
proposal would remedy the serious defects in the fee-to-trust process
related to inadequate notification and consultation requirements,
including those outlined in the aforementioned Pepperdine Law Review
analysis of fee-to-trust decisions, as well as address other
significant shortcomings in the trust land system.
Appeals of Land Acquisition Decisions
On November 13th of this year, the Department of the Interior
finalized a new rule governing decisions by the Secretary to approve or
deny applications to acquire land in trust. CSAC believes that the
final rule, which amends the Department's 151 regulations, will
expedite trust approvals to the detriment of all interested parties,
and to the administrative process itself.
The rule (found at 25 CFR Part 151, BIA-2013-0005, RIN 1076-AF15)
effectively repeals the Department's ``self-stay'' policy, which
required the Secretary to publish a notice of a trust decision 30 days
before actually transferring title. The now-eliminated waiting period
was intended to ensure that interested parties had the opportunity to
seek judicial review under the Administrative Procedure Act (APA)
before the Secretary acquired title to land in trust. In virtually all
past cases, if a challenger filed suit within the 30-day window, the
Secretary agreed to ``self-stay'' the trust transfer during court
proceedings, thus allowing for the orderly resolution of the challenge.
It should be noted that the Department's new rule incorrectly
asserts that because of the Supreme Court's 2012 decision in Match-E-
Be-Nash-She-Wish Band of Pottawatomi Indians v. Patchak, eliminating
the current 30-day wait period will not effect a change in the law or
affect any parties' rights under current law. In Patchak, the Court
determined that the Quiet Title Act did not bar APA challenges to trust
decisions after title transfer to the United States. However, as
described below, the final rule puts local governments in a far worse
position by dramatically altering the balance of equities and
eliminating their ability to obtain emergency relief after a decision
to accept the land in trust, but before the land achieves trust status.
The rule fails to recognize that the facts on the ground and
balance of equities changes when land achieves trust status and
development commences. The rule directs the Secretary or other BIA
official to ``immediately acquire the land in trust'' after a decision
becomes final, and the BIA is encouraging tribes to begin development
immediately upon acceptance of land into trust. Both of these steps
appear intended to foreclose concerned parties from obtaining emergency
relief, even with regard to trust decisions that are clearly
inappropriate and arbitrary. Courts are less likely to order emergency
relief if a tribe and its development partners have invested resources
and substantially implemented a gaming or other development project.
Indeed, courts may be unable to grant relief at all if tribes decline
to participate in the action and claim sovereign immunity.
The rule also contravenes protections in the APA for parties
seeking emergency relief from administrative decisions. In particular,
Section 705 of the APA authorizes federal courts to postpone the
effective date of an agency action and to preserve status or rights
pending conclusion of the review proceedings. The rule circumvents
Section 705 by pushing land transfers before an affected party can seek
judicial review and allow the courts to exercise their authority to
review trust transfers. Communities and local governments will be
harmed because, even if successful in the litigation, their success
likely will not bring back the tax revenue and other fees lost when the
land went into trust, nor remove the incompatible developments that are
not permitted under comprehensive local land use plans, now possible
without the rule.
The Department's push for immediate project implementation also
appears intended to impede a court's ability to award complete relief.
Litigation can take years to reach a final decision, which raises
strong concerns regarding the Department's practical ability to unwind
a trust decision and remove land from trust. The rule ignores these
concerns, and includes no procedure for undoing a trust decision in a
transparent and orderly manner.
The Department is amiss in asserting that these harms are balanced
by the rule's requirements regarding the notification of decisions and
administrative appeal rights. These changes are equally flawed, as the
rule requires communities and local governments to make themselves
known to BIA officials at every decisionmaking level to receive written
notice of a trust land acquisition. It will be extremely difficult for
anyone to sort through local and national BIA organizational charts to
try to determine how, when, and by whom a particular application will
be processed. BIA decisionmaking is far from transparent today, and the
rule will make the process even more opaque and participation more
difficult in the future.
In light of the Department's new rule, we believe that Congress
should seek legislative changes that would entitle a party, upon timely
request, to an automatic 30 day stay of a decision approving a trust
application. A stay of decision should hold true whether a party has
appealed a trust decision to the Interior Board of Indian Appeals, or
has appeared before the Assistant Secretary--Indian Affairs. This would
enable the party to preserve its rights by seeking a judicial order
staying the effectiveness of any Departmental approval pending the
court's review of the validity of that decision.
Additional provisions requiring BIA to publish trust applications
on its website, provide regular updates as to the status of its review,
identify the decision-makers responsible for an application, and
provide contact information to allow parties to identify themselves as
interested parties also should be required. Parties should be exempt
from exhaustion requirements in the absence of substantial compliance
with these provisions.
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 sheer number of pending applications in California further
amplifies the need for reform. From 2011 to September of 2013 alone,
dozens of California tribes submitted fee-to-trust applications--for
both gaming and non-gaming purposes--totaling more than 9,600 acres of
land. Numerous previously submitted applications remain in process at
the Department of the Interior representing tens of thousands of
additional acres of land that could be removed from state and federal
tax rolls and exempt from county and state regulatory control.
The Supreme Court's decision in Carcieri complicates the picture in
California and across the country. 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, CSAC strongly urges 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, congressional action must address the critical
repairs needed in the fee-to-trust process. Unfortunately, legislation
currently pending in the House (H.R. 279 and H.R. 666) 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. 279, 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 [emphasis added].'' 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 Committee 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. 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, the Indian Gaming Regulatory Act 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.
Attachment
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The Chairwoman. Thank you, and thank you for your testimony
I think I might just start with you on a couple of things.
One, do you know if the counties took any position or had any
position prior to the gaming laws that were on the books? Did
the counties ever have problems in dealing with land into trust
issues or take a formal position?
Ms. Dillon. You mean prior to 1988?
The Chairwoman. Yes.
Ms. Dillon. I don't know that. I don't know that. And I
don't have a lot of specific details at hand. I was only
informed about this hearing a week ago Friday. And we were not
able to compile all that we would like to present. I understand
we have another two weeks to present that.
The Chairwoman. Yes. Do you think any of the current issues
that your county association, just within California, and we
will submit the NACO letter for the record, but on your
California counties, do you think there are any issues that
they have in taking land into trust that aren't related to
gaming?
Ms. Dillon. Oh, yes, I would definitely say so. As you
know, California produces one-third of the Nation's food crop.
We have a very great concern about diminishing agricultural
land. In California in the 1940s, 1950s and 1960s and into the
1970s, we saw subdivisions encroach on agricultural land. But
in the last 20 to 30 years, there has been a concentrated focus
on protecting agricultural land and not having sprawl, as we
saw in that period of time.
We are working, for instance, in my county, very closely
with the Napa Valley Vintners Association, because counties do
not have the ability to engage and there is no, there is not an
approach with this process that encourages local cooperative
agreements, we have no real protection in terms of anyone who
acquires or a tribal entity, for instance, that acquires
agricultural land, in keeping it in agriculture, in making sure
that that is how it continues, and in making sure that other
issues concerning water use and so forth are adhered to.
Without that enforceability mechanism, we have great
concerns, even with regard to lands taken into trust for
agricultural purposes.
The Chairwoman. So do you know if any of the California
counties have ever objected or sent remarks, testimony, to the
Department of Interior on a project that is not gaming?
Ms. Dillon. I don't know that personally, but I intend to
find out.
The Chairwoman. That would be great, thank you. I am just
curious to know and understand on that.
And has your association taken a position on tribal
sovereignty?
Ms. Dillon. I don't know that we have a formal position. I
believe our written remarks, the written testimony reflects our
great respect for tribal sovereignty. This is not the concern
that we have. It is not our position that we want to have local
control. We are simply advocating to be able to have
cooperative agreements. That is not the path that California is
headed in.
The Chairwoman. If I could turn to Ms. Johnson-Pata. I was
asking the Assistant Secretary this issue about economic
impact, because I feel like we have had this chilling effect
and it is hard to understand or measure how much has been
slowed down. Do you have any data from the National Congress of
American Indians on that?
Ms. Johnson-Pata. I made a note of that when you were
asking that question. The difficulty with that is, we hear the
stories, I hear from tribes, several tribes who have let us
know about investors who have decided not to invest because of
the uncertainty of the land. So we hear those stories, but
those are really difficult for them to document. First of all,
a tribe doesn't want to be in a position where maybe a future
investor might be a little concerned. And secondly, investors
don't want to be seen as red-lining. So that becomes one of the
challenges, I think, in doing so.
When you asked that question, I was thinking if there was a
possible way for us to do some kind of confidential kind of
survey to get some kind of grasp of economic impact. But I will
check with our folks at the Policy Research Center to see if
there is a means of being able to come up with that. It is
pretty targeted right now with the 18 cases that are moving
forward. Certainly cases adjacent to those areas would probably
be more targeted.
But overall, I don't know how you measure the economic
impact of slow decision-making, which I think is the most
critical right now. Decision-making around particularly energy
development and lands that would be utilized for energy
development and the slowed process of taking land into trust
and to addressing those decisions has increased, created a
bottleneck for tribal development moving forward. That causes a
chilling effect on investors and folks who want to have some
co-development responsibilities with tribes.
The Chairwoman. To me, it is an important issue. I know, as
you say, it is probably hard to document. We could probably
look at pre-2009 and see what the average permit process was.
Ms. Johnson-Pata. The time line.
The Chairwoman. Time line, even excluding gaming. But
again, the reason I mention this is because I think most of my
colleagues think this issue has to deal with land into trust,
when in reality I think it probably deals more with NIGRA and
the process by which tribes are recognized. Those two issues,
as opposed to really the land into trust issue. Land into trust
is just the last step in a process.
Ms. Johnson-Pata. Right.
The Chairwoman. As opposed to, we have many previous chairs
to me who have had many, many hearings on the failure to
implement various policies after the original Gaming Act was
implemented, and then the policy decisions to follow on that. A
lot of those got dragged out over a long period of time and
caused lots of challenges and things that we are still dealing
with.
But I think it is interesting that we don't have any data
to measure this. Maybe that is why most of my colleagues think
this issue deals with gaming, when 98 percent of it doesn't
have anything to do with gaming.
Ms. Johnson-Pata. We will definitely work on a report that
we can at least share with you, as much as we are able, to
quantitatively put together.
The Chairwoman. Okay. And what would you say is certainty
in the process? What do you think is a time frame for, what
kind of process for reviewing land into trust and getting land
through a process, what do you think certainty is?
Ms. Johnson-Pata. Prior to Patchak, we got, the certainty
was once the Department made a determination, that that was the
determination the tribe could move forward. And that was really
critically important for us, because we believe our
relationship is with the Federal Government. And when the
Federal Government makes this decision that says, this land is
taken into trust for the purpose of the tribe to develop or to
do what it is intended to do, that should be certainty. And it
shouldn't be second-guessed again.
So I believe that that is what certainty is. We have worked
with the Department to try to make sure that we can at least
identify any folks that may have challenges to the taking of
that land into trust, so that there is a process for addressing
that. So the uncertainty of who may be out there in the world
of challenges is limited. So certainty is, I believe, when the
Department takes that action and finalizes that action, that
should be what certainty is.
The Chairwoman. You don't have a time frame in mind?
Ms. Johnson-Pata. A time frame?
The Chairwoman. Well, just in the sense of, I guess on all
these, we have hydro relicensing that happens every 50 years. I
think it takes probably about 10 years to decide the
relicensing of hydro. Some people would say, in a very
appropriate need, because hydro relicensing has to balance a
lot of different needs, a lot of people have to weigh in, a lot
of people have to discuss. I think my former colleague from
Idaho and I worked on a process to make that a little smoother.
Because 10 years is a pretty long time to go through a process.
Ms. Johnson-Pata. And unfortunately, some of these land
into trust applications are 10 years plus. Because as they are
having to deal with some of the nuances, every single
application is different. And there are things to be able to
consider. That is why I think that trying to develop, the
regulatory process allows for that engagement, to evaluate
those applications on a case by case basis. And I would be
concerned about legislation that so narrowly constrained this
conversation about even ancestral land, for example. The
stories were different for each tribe. I think that is
important.
The current process, the pre-Patchak process was that the
Department made that decision, and then there was that 30 days
and it was final, that was it. Thirty days for comments and
then it was final. Now today, they make a decision and we note
who potentially has challenges. And then we weigh out their
ability to decide whether or not they want to litigate. And we
know at least what the scope of that will be.
I think reasonable time frames, like in any process, if
someone was, housing for example, something I know more about,
a tribe purchases a parcel for housing. And clearly, like any
other development, you should reasonable think that within
three months to six months at max, you should be able to
finalize and close your loan, right? That process doesn't
happen. And it has become more labored because of the longer
term of all these questions that have to go about, rather than
just looking at this as a parcel of land, as being brought to
the tribe to provide housing to its people as you would
purchase housing as a developer or somebody else would purchase
housing in the common market.
The Chairwoman. Senator Begich?
Senator Begich. Thank you very much.
Jackie, let me ask you a question, I don't know if you can
answer this, and again, I don't come from a State that has
gaming. And I agree with the Chairwoman, it seems like that is
all this issue continues to circle around, but really it is a
very small percentage. But let me ask you, in California, I am
going to use California as an example, aren't there compacts
with the State in regard to the arrangement?
Ms. Johnson-Pata. There is.
Senator Begich. And there are financial arrangements,
right?
Ms. Johnson-Pata. Yes, there is. Extensive compacts with
the State, particularly in California.
Senator Begich. Right, but financial arrangements, too.
Ms. Johnson-Pata. Yes.
Senator Begich. So the State receives some of the proceeds?
Ms. Johnson-Pata. Most of the proceeds, each tribe
negotiates their compact. But they have pretty much a standard
in California.
Senator Begich. But it is a percentage?
Ms. Johnson-Pata. It is a range around 25 percent.
Senator Begich. Yes, so the State gets some money.
Ms. Johnson-Pata. Yes.
Senator Begich. My guess is they probably don't distribute
it equally to the counties. That is a different problem. I know
this from my State, which has oil wealth, that my State, they
are cloudy sometimes on giving it to local governments. As a
former mayor, I always believe the States shouldn't have the
money, but that is a different issue.
So I am sensing, I am just guessing here that there are
impacts, I don't deny that. Just like if a Wal-Mart opened up,
there are going to be impacts. If they develop a mall, there
are going to be impacts. There are always impacts. Matter of
fact, most counties and cities, residential development, if you
took it as an economic model, is a loser because of all the
costs of services that go along with it, versus a commercial
building and compacted lot that produces a lot of jobs and
potential revenue, sales tax, especially in California. We
don't have it in Anchorage.
But I want to make sure on that point
Ms. Johnson-Pata. Yes
Senator Begich. So let me, if I can, Ms Dillon, I am
struggling with this, because I am sitting here, and it reminds
me for a moment of city council time, when I was on the city
council. Communities don't want certain things in the
neighborhood. I will take LA County, we don't have counties, we
have boroughs, but LA County, 30 some different cities work in
that county. Each city tries to take business from each other.
But one city doesn't regulate another city.
And this is the fundamental issue that I am struggling with
here. Tribes have a government-to-government relationship. That
is what they are. They are governments. We get a little foggy
sometimes around here about what that means. But it is very
clear to me. It is a government-to-government relationship. So
it is no different than, I will use LA County, with 32 cities,
when one city says, I am going to do X, and the city next door,
I will use a city where I have an investment in, in Nevada,
Carson City. Because Carson City wouldn't do the right deal
with a developer, they went right over the city line and built
a development there.
Of course, the city doesn't have the right to tell that
city what to do. Because the city made a choice, the developer
made a choice.
In this situation, I am struggling, when a tribe, a
government, recognized by the Federal Government, decides to do
something in their jurisdiction and rights, how that is
different from a city next door who decides to do something
that the city on the other side doesn't like. Help me
understand that. Do you see what I am saying?
Ms. Dillon. I do.
Senator Begich. That is the fundamental issue here, it is a
government-to-government relationship.
Ms. Dillon. It is a government-to-government relationship.
And I can't speak to the other 49 States, obviously. But in
California, we have something called LAFCO, Local Area
Formation Commission, in every county, that includes the county
and the cities in that county. They are not allowed, things
that are inter-jurisdictional, of what the kind you are
describing, where a city might acquire land in the county, that
is not allowed to happen unless it goes through the LAFCO
process.
So we all have to answer to something greater than
ourselves.
Senator Begich. But the challenge is, we took their land.
So they are trying to get their land back. It is different than
a city. But that agreement you have doesn't tell a city that
another city can veto what they want to do in their city,
correct?
Ms. Dillon. No, and our concern is not, once, our issue
isn't with tribal sovereignty.
Senator Begich. I get that. But they get their land, that
is part of their government, what does that matter what they
then do with it? It is similar to a city to city relationship.
Ms. Dillon. Our concerns are with that fee to trust process
in terms of ancestral land, in terms of, is that the land that
this Native American group had before, that they should now be
able to reacquire and then deal with as they would desire. We
are talking about way back early int eh process, about the
acquisition of land.
And the fact of the matter is that in a place like
California, despite the fact that we have vast areas that are
open space and in national parks and Federal lands, 39 million
of us, 80 percent of the 39 million are living in a pretty
concentrated area. And what happens next door is very important
and is affected. And we have, in the Bay Area where I live, we
have 9 counties and 101 cities. And we work together to plan
where housing goes. So we don't, yes, I can't tell Sonoma
County or Solana County, my neighbors, what they can do. But we
have gotten past that by working together on the bigger
picture.
Senator Begich. But there is no jurisdictional requirements
for you to do that. You just did it.
Ms. Dillon. Yes.
Senator Begich. I will tell you, every time I go to a
community around the Country, I visit tribes, some landless
tribes. Matter of fact, in the wine country, I was up north
that they showed me some of their lands that they have been
able to acquire that are ag lands. That was very impressive,
that they were putting them into wine country land, in fact, to
produce.
Ms. Dillon. Not in Napa County, but yes, that is right.
Senator Begich. Yes, Napa County is not only wine country,
it is the wine country, I know in some people's minds, but it
is not the only. I will tell you eastern Washington has some
beautiful wine country. So it is all different.
But I am just saying to you that I saw the land. I thought
it was very responsible. Because why? They were working with
the local community. And it wasn't regulated for them to do
that. It is good business and good for their community.
So that is why I understand your point of, let's try to
catch everything. I am not seeing where the problem is at the
level you are describing.
Now, I get where people don't like gaming. I get that. Our
State does not allow gaming. The whole State. I get that. But
this is only 1, 2 percent of the issue. I visit tribes all over
the Country. And I will tell you, that is not the issue I see
as the prevalent issue. I see people who have land that they
want to get back into their homelands and then have a
relationship with whatever those governments are adjoining
them, and I have see it successful.
Now, does gaming by itself and its activity create all
kinds of other activities? Yes. That is why in your State there
is a compact or compacts, I should say, but if the State is not
sharing that wealth and those impact dollars the right way,
that is a different question that we can't answer here. I would
love if I could figure out a way to tell my State that they
need to give more money to local governments that they are
taking on oil and gas revenues. They don't. They should,
because that is the best expenditure location.
But I see multiple issues here. So I just want to kind of
put it out there, not necessarily, I don't know if I need an
answer. I am struggling with why this would not get the fix,
get land going into trust again in the right way. And the
cooperation I have seen in many communities I have visited is
occurring without a regulatory process, without the Federal
Government saying, you shall do this.
Ms. Dillon. If I might respond with three points, one is
that probably, I am going to say, everybody in this room, we
are all reasonable people. I bet we could all live in a town
together and not even need zoning regulations. But that is not
how the world works. We have to have laws for the 1 or 2
percent or however many there are that don't work
cooperatively.
And I submit to you, I don't have actual names and places
today, but I can tell you based on what I have heard from my
colleagues in CSAC that there are, just as there are in every
population, every group of folks, some folks who don't want to
play by the rules, some folks who don't respect others. And
that is why, respectfully, we are asking for a better
regulatory structure. It doesn't have to do with the bulk of
folks.
I also want to say that I agree that tribal nations deserve
certainty. And I think in a government-to-government
relationship both sides should have certainty. We need, county
governments need to have certainty that the mitigations are
addressed.
And I believe, I am not conversant on the law that creates
the requirement for the compacts. But I will be looking into
it, I can assure you, in the next two weeks.
Senator Begich. I bet you you should get your Governor to
do a little revenue sharing off those compacts.
Ms. Dillon. Again, I have no idea if he is even allowed to.
But I am going to, the last point I would like to make is with
regard to the quantification that you are looking for. And the
quantification that I see is the number of lawsuits. Any time
you have a situation with the number of lawsuits that we have
out there, all this litigation, there is something wrong. And
that is the proof of it. Most of those lawsuits are not with
regard to only the Carcieri issue.
So as an elected person, and I would guess that you feel
the same way, our job is to try to fix things so that future
litigation doesn't occur. I think this Committee is in a place
to be able to do that if more than the Carcieri fix is
addressed.
The Chairwoman. I am sorry, did you say most of them were
related? Did you mean most of those other issues weren't
related to gaming or they were related to gaming? When you said
most of these weren't related?
Ms. Dillon. I said the litigation that is out there is not
all just related to Carcieri issues.
The Chairwoman. Meaning?
Ms. Dillon. It is related to fee to trust issues.
The Chairwoman. But mostly around gaming?
Ms. Johnson-Pata. They are fee to trust issues, but they
are using the Carcieri as the their ability to pursue.
Ms. Dillon. And my point is, if I may, my point is simply
by fixing Carcieri it is not going to make litigation go away.
We had litigation before the Carcieri decision and I think we
will continue to see it as long as the Department of Interior
continues to operate with the interpretations. One of the
things we have great concern about is the rule that was just
adopted within the last two months. There hasn't been any
litigation on it yet because it is not right. But I predict
that we will be seeing some.
The Chairwoman. Well, as someone who chaired an energy
subcommittee on water on the oversight of the San Joaquin water
settlement issue, I agree. I think that had been like 18 years
in litigation and finally everybody came to the table and said,
this is what we want to do for water, which is basically
figuring out how to more efficiently use the water in the Bay
Area that people had. So I agree that it is a better process to
figure out.
One of the things, I want to go back to Ms. Johnson-Pata,
you heard Ms. Dillon, she says she doesn't want to affect
tribal sovereignty. So one of the issues that I am interested
in is if the association is encouraging a streamlined process,
that is voluntary, do you think that impacts tribal
sovereignty?
Ms. Johnson-Pata. A streamlined process that is voluntary?
The Chairwoman. Yes. One of the things, as I was mentioning
earlier, the hydro relicensing decision, a lot of it was,
people would wait in the process and then end up filing suit
and it would elongate the process even longer. So one of the
things that we did was say, you could form agreements up front.
But they were voluntary. They were totally voluntary. It is
just a way to get some of the issues on the table.
Ms. Johnson-Pata. I think you see that all the time with
tribes. They choose to have cooperative agreements. I look at
California, I have spent a great deal of time there. There are
a lot of cooperative agreements in California with the local
communities on the water, the fire protection, other issues
that mitigate impacts. I think that tribes see that as being a
good neighbor. I think Marshall speaks to that, being a good
neighbor and providing resources outside of just their tribe in
many ways.
So I think that is what we would all ultimately hope for,
is to have those kinds of relationships.
The Chairwoman. Do those take place as part of a normal
function on land into trust issues?
Ms. Johnson-Pata. It is very normal. It is part of a normal
function.
The Chairwoman. So in the beginning of a land into trust,
people would go and form, basically have a discussion with the
local government?
Ms. Johnson-Pata. Every tribe who is pursuing land into
trust ultimately wants to get to the land into trust. So if you
are a businessman or tribal leader, you are going to take a
look at what is out there as potential challenges and you are
going to try to mitigate those or try to address them, try to
be able to figure out how you can finalize your deal. And you
don't go into it thinking that those things are going to become
real obstacles. I don't know of any tribes who haven't tried to
mitigate those issues. Challenges become when requests are
unreasonable. And then all of a sudden, as happens in family
groups, and other folks, those sometimes emotionally charged
relationships then create their own obstacles to finding
solutions together.
But I see agreements after agreements. In fact, at NCAI's
website you can see, I think we have, we haven't done this for
a while, but several years ago we went just to take a look at
law enforcement agreements when we were getting ready for the
TROA. And there were over 400 agreements between tribes and
local governments, just on law enforcement alone, and
cooperative agreements.
So Indian Country, it is a common use for us to be able to
have agreements and to seek agreements with other governments
in a respectful government-to-government relationship. Our
point is, to make it very clear, our primary relationship is
with the Federal Government. And this relationship with the
Federal Government shouldn't be usurped by the county
government. And we want to be able to make sure that when we
make a decision with the Federal Government that that is a
final decision. And that decision is what gets solidified
through that relationship.
The Chairwoman. So a voluntary agreement, you are saying
they are done and you would support voluntary agreements?
Ms. Johnson-Pata. Yes.
The Chairwoman. Okay. Mr. Chairman, do you have any input
on the counties' recommendations for additional local level
input?
Mr. Pierite. Yes, Madam Chairwoman. When Tunica-Biloxi
entered into the State compact negotiations with the State of
Louisiana, we took a small contingency of community leaders
with us. We agreed up front, they actually came with us and
helped negotiate the State compact. We are looking at, we have
entered tribal government agreement with them for social
services to provide health service, mental health services, law
enforcement services. So it has been done. We have been doing
it for over 20 years.
And we always highly recommend that the counties or parish
get involved with their tribal governments. Because it is the
fair thing to do. And I want to echo what Ms. Johnson-Pata
said, the trust responsibility, the relationship is between the
tribal government and the U.S. government, not between the
local counties and tribal governments. But we do respect our
local governments and ask them into our reservation and work
out any agreements for us to have a joint agreement.
Also I want to mention about Tunica-Biloxi has been working
with the U.S. Chamber of Commerce. They have agreed to do a
study on the impact of Carcieri as it relates to lack of
economic development and job creation, because of Carcieri.
Hopefully we will have that study within six months.
The Chairwoman. So when you were mentioning those compacts,
those were compacts with the State of Louisiana around gaming
issues?
Mr. Pierite. The State of Louisiana, around gaming issues.
We do have inter-tribal agreements as far as, inter-
departmental agreements as far as law enforcement, mental
health, social services. We just have a close working
relationship with our community. I would strongly encourage all
counties and parishes as well as Native American tribes,
because you have to be good neighbors.
The Chairwoman. So if Tunica-Biloxi was taking land further
into trust, would part of that at the beginning process be a
dialogue with the local governments?
Mr. Pierite. Yes. We would let them know that we were
planning on putting land into trust and what is the purpose.
Being good community partners allows respect to be built on
both sides. One of the things about Carcieri is a lot of mis-
communication being put out there as far as this being a gaming
issue. This is not about gaming. This is about putting land
into trust, about tribes to get back lands that they once owned
and that were stolen from them. It is a spiritual connection to
that land.
Before Columbus stumbled upon America, because he did not
discover America, you cannot discover something where people
were already here, Native Americans were here first. And all
these lands were taken from us. I am not about to sit here and
rehash old stuff, because we have to work together. You have to
put it all in perspective and know that you have to be a good
neighbor. But you have to be respectful of your neighbor. You
have to respect their sovereignty. You have to respect what
Native American Country has been through.
In my opening comments, I mentioned about Native Americans
walked for centuries in darkness. You have to take that to
heart. Sometimes you have to put your spiritual eyes on it and
see what people have been through and see what it is all about.
Once again, it is about a spiritual connection. Because in
those same lands you are speaking of, there are some tribes
there, used to own their land. And in them is burial grounds.
And in those burial grounds is dreams that will never come into
fruition, books that were never written, stories that never
will be told, relationships that never will be formed. And you
have to put all that into perspective.
It is not all about gaming. It is not all about dollars and
sense. It is all about what we can bring back for our children,
for our next generation. It is about securing the future for
them. Thank you.
The Chairwoman. I don't think I ever failed to meet with
you or be in your presence where you don't say something very
profound and meaningful. Thank you for reminding us about all
of that.
Are you saying on this notion of a streamlined process, if
it was voluntary, if you are saying Tunica-Biloxi already do
agreements, and you had a voluntary process and said, okay, you
could have a streamlined process at Interior on land into trust
if you had agreements, is that a problem? Is that acceptable?
Mr. Pierite. My philosophy is, and I take difference with
the demographic country philosophy, never enter, if you have
the strength to enter into a conflict or confrontation, also
into wisdom to bring resolution to same conflict or
confrontation. So it is about sitting down to the table and
discussing it. And yes, we will be willing to discuss it.
But one of the things about a clean Carcieri fix that I
would like to go on record is, we don't want to leave any
tribes behind. With a clean Carcieri fix, we want to make sure
that each and every tribe has the ability to put land into
trust. Because that is the only thing they can hold onto. That
is the only thing they can reach out to. That is the only thing
they can embrace.
The Chairwoman. I hear Ms. Dillon saying they just want to
have some discussion. I hear other, there are all sorts of
agreements going on or have gone on, there are other State
ballot issues, I guess, or agreements, compacts that say okay,
we don't want to be by schools or we don't want to be near
this. So then I see Ms. Dillon, do you represent the Napa
Valley area, is that what I heard?
Ms. Dillon. I am a county supervisor in Napa County, yes.
The Chairwoman. So I am assuming that one of these issues
for you is you want to keep most of that land in wine
production.
Ms. Dillon. We have the first agricultural preserve, our
valley floor, in the United States, and that is our goal. We
are the equivalent of Bordeaux, if you will. And it can't be
replicated anywhere else.
The Chairwoman. And is that currently under threat by some
proposed land into trust agreement?
Ms. Dillon. Not an actual land into trust, it hasn't
reached that stage yet. There is a group seeking recognition
through the Federal court system with the stated intention of
acquiring land for a casino.
The Chairwoman. So is your issue with then their ability to
be recognized and their holding, you said earlier you were not
against tribal sovereignty, but you had questions about whether
people had rights to access certain lands. I am trying to
distinguish between --
Ms. Dillon. We don't believe that the group of people who
are seeking recognition necessarily have any connection with
Napa County, that is more a desire to be in a relatively, well,
a very well-known place that is highly desirable to many people
as a place to be.
The Chairwoman. So I think some of those issues are in a
different area of concern as it relates to Indian Country. I
don't know, Ms. Johnson-Pata, whether you want to comment on
that.
Ms. Johnson-Pata. I do. I think you hit it on the head.
When there are, there are issues that are out there, folks that
don't want something in their back yard, that comes up
periodically in all kinds of development, inside and outside of
Indian Country. We shouldn't clog up the system or for that
matter, this whole Congressional process of trying to address
land into trust, basic land into trust, pre-Carcieri, to make
sure that we have the same rights that we had. All the Supreme
Court was saying is, Congress, you need to clarify this.
I remember Chief Justice Breyer saying to us at NCAI, many
years ago, he came to us and he said, there is some gray matter
that is making it difficult in the courts. We need Congress to
clarify. What we are saying to Congress is, we need you to
clarify this so we can go back to having land brought into
trust for all of these other beneficial reasons.
And this isn't the piece of legislation to piggyback on
other issues and solutions. We want to be able to get back to
pre-2009 status. And these other issues, such as Senator Begich
talked about, I am from Alaska, this is a sensitive issue for
me. But Alaska Natives have said, we want Carcieri for our
brothers and sisters across the Country. We recognize our issue
is tougher to deal with. We are not going to piggyback it onto
the Carcieri fix. We are going to find another place for us to
address that.
I say this is another issue that wasn't brought about by
the challenge that this issue is. We can't use that as the
vehicle to be all, fix all. But we certainly should have
continued dialogue on this issue and find the appropriate
vehicle to address other concerns that are clearly more of a
local nature, that should not bottleneck the whole potential
economic system of Indian Country when we are just barely
beginning to rise up from where we have been and grasping
economic opportunity.
And then now we can't develop our energy potential, we
can't develop our reservation economies. Our health care
facilities are stalled, our school systems are stalled, all
because of this issue. This is not the vehicle to deal with an
issue that has a controversy of a local nature that we can't
fix in national legislation.
The Chairwoman. But you would say, Ms. Johnson-Pata, that
the counties do deserve to have an opportunity to express their
concerns about these kinds of issues, particularly as they come
up in the process of who might get recognized and how they get
recognized and the process of how they might then proceed.
Ms. Johnson-Pata. Absolutely. I think the process already
says that people who have objections have a right to be able to
voice their objections. And I think the process allows for
that. I don't think those objections get elevated to the fact
that every parcel of land that is being taken into trust for
Indian Country should now be circumvented or stalled or a
barrier to it, because somebody, and I am not just speaking to
you, bu somebody has a concern in Napa Valley, so we want to
change the whole system.
I think there should be a process to be able to have that
kind of meaningful dialogue and solution oriented, but still
recognize the ultimate authority is with the Federal Government
and the tribes as they deal with their trust relationship that
is constitutionally bound.
The Chairwoman. I did hear Ms. Dillon say that she wanted
to honor that.
Ms. Dillon. I do.
The Chairwoman. I think that is good, and I hope you know
what you mean when you say that. Those are big words, honoring
and recognizing tribal sovereignty. There is a lot of law that
goes with that.
Ms. Dillon. Let me say that you asked me about Napa County
and I responded. But that is not why I am here. So I want to
make that really clear. I am here representing CSAC, and that
is 58 counties who have grave concerns, who have put forth a
position paper of the changes that they would like to see
Congress implement. And again, it is asking that there be
incentives for tribes and local governments to work together
and to provide for cooperating agreements that are enforceable.
If that is contrary to recognizing tribal sovereignty, then
I will condition my prior statement. But what we would like to
see is that as things evolve, we have a mechanism, an agreement
for dealing with those issues, a working agreement. And as you
know, California is a pretty heavily regulated State
internally. We have new things coming up all the time that our
State government wants us to do, with water, with wastewater,
stormwater, constantly imposing new regulatory requirements
that cost money.
Many of those require us to work on a watershed basis. If
you will just let me give you an example. All of a sudden you
will have a watershed area where the State makes a regulation
and says, if 90 percent of the land in this watershed is not
cooperating, then every landowner is going to have to pay on an
individual basis to the State. So obviously it behooves
everyone to work together in the watershed to minimize their
costs on whatever particular regulation this was, for irrigated
ag lands in this case.
But if we don't have a mechanism, if we had a tribal
entity, for instance, that owned agricultural land and said, we
are not going to participate, and we have no mechanism for
enforcing that, it would have this impact that we would not be
able to deal with, that was never anticipated at the time,
perhaps, that the tribe acquired land.
So it is those kinds of issues, that is the kind of
agreement that we need to have and would like to have on a
local government to tribal government basis. That is just one
example.
The Chairwoman. Okay. I thank all the witnesses. I have
definitely pushed some things out there today in hopes that we
might resolve this issue and move forward. I think I am in
agreement with the panelists that if we end up in a legal
lawsuit process that is just held up for years and years and
years, that that is not going to be in our best interest, that
we want to try and figure this out.
People have given good food for thought today about how to
do that. And we will certainly be taking that into
consideration as we think about legislative solutions.
I know how important this issue is to many people. We
certainly want to restore, I think, what the 1934 Act had as an
intention, which is not to divide tribes that are recognized.
So we will be working on that issue and certainly taking into
consideration how we move forward. But to do so that really
brings about clarity.
And maybe that we have to do things that are clarifications
in other areas, and just to get there. But certainly we want to
move forward as soon as possible on clearing this up, so that
this larger issue of taking land into trust that has just been
such a historic part of what I think has been very positive
self-governance for tribes, resulting in very positive economic
development and in many cases very positive economic
development for the entire region, continues and continue as it
has in the past.
So we have a lot of work to do, but I thank all the
witnesses for being here today and for their testimony.
Mr. Pierite. Madam Chair, can I enter these letters of
support from tribal leaders, tribal organization and community
leaders into the record, please?
The Chairwoman. Without objection.
The Chairwoman. This hearing is adjourned.
[Whereupon, at 4:25 p.m., the Committee was adjourned.]
A P P E N D I X
Prepared Statement of Hon. William Iyall, Chairman, Cowlitz Indian
Tribe
The Cowlitz Indian Tribe (``Cowlitz'' or ``Tribe'') is very
appreciative of the Committee's commitment to resolving the crisis
caused by the Supreme Court's decision in Carcieri v. Salazar, 555 U.S.
379 (2009), which has had devastating impacts on Indian Country--
threatening tribal sovereignty and economic self-sufficiency, creating
unequal treatment of federally-recognized Indian tribes contrary to
Congressional intent, and resulting in costly, protracted litigation in
which the United States is the defendant (at taxpayer expense). As I am
sure you are aware, the Cowlitz Tribe is currently involved in just
this type of litigation. As a result, Cowlitz is on the front line of
the efforts to deal with the Carcieri decision and this experience has
afforded us some valuable insight that we think might benefit the
Committee in its consideration of this very important issue.
We greatly appreciate that the Committee held a hearing to address
the issues raised by Carcieri. Cowlitz strongly believes that all
federally recognized tribes should have equal access to the intended
benefits of the Indian Reorganization Act (IRA), and that those
benefits are crucial to ensuring that tribes have adequate trust lands
on which to provide housing, education, health care, cultural and
natural resource protection, economic development and governmental
services to their members. But we are concerned about certain remarks
made by some witnesses during the hearing suggesting changes that would
effectively take the decision making out of the hands of the federal
government and allow local governments to veto future trust
acquisitions.
The IRA was enacted to effect a sea change in federal Indian
policy, explicitly rejecting long-standing federal policies which had
undermined the political and even physical existence of tribal nations.
In particular, the IRA was meant to address the staggering loss of
tribal land occasioned by passage of the General Allotment Act in 1887,
which resulted in more than 90 million acres of tribal land passing out
of trust status. The IRA provides a legal framework to support tribal
governments and tribal economic development, and the most important
component of that framework is the administrative mechanism to assist
in the reacquisition of land for Indians. Any Carcieri fix must be
viewed against this backdrop, and should not unduly or unfairly
restrict the ability of Indian tribes to acquire trust lands.
Section 20 of the Indian Gaming Regulatory Act (IGRA) and the
Department of the Interior's implementing regulations already include
appropriate and extremely rigorous requirements that must be met before
gaming can occur on Indian lands acquired in trust after October 17,
1988. Despite the concerns expressed by some witnesses during the
hearing, approvals to acquire off-reservation lands for gaming are
extremely rare. Indeed, the Cowlitz Tribe has been in the fee-to-trust
process for more than eleven years now, and yet we still are landless.
The notion that the Department is some kind of rubber stamp for new
tribal casinos is almost comical to any tribe that actually has tried
to go through the process. We do not believe that new restrictions are
necessary, and we are concerned about incorporating new gaming-related
requirements into a legislative vehicle aimed at addressing Carcieri.
The testimony from Senator Feinstein as well as Ms. Diane Dillon
for the California State Association of Counties advocated for a
greater role for local governments in the fee-to-trust process,
focusing on gaming acquisitions. \1\ She stated, ``I strongly believe
that local governments must have the ability to influence the terms and
conditions of the development of new casinos, especially because many
communities simply do not want new casinos in their backyard.'' Ms.
Dillon complained of the uncertainty for California counties with
respect to planning caused by the creation of new Indian lands. But the
fee-to-trust process already provides local governments with ample
opportunity to influence the terms and conditions of the Secretary's
decision. 25 C.F.R. Part 151 specifically provides for State and local
government input on jurisdictional, tax, and related issues like
planning, and the NEPA process already requires analysis of land use
issues, including potential impacts and mitigation of those impacts on
local governments and services, and provides several opportunities for
public hearing and comment. In addition, most proposed gaming-related
trust land acquisitions already include agreements with local
communities (or some other vehicle to address the concerns of local
governments) in order to provide for the mitigation of impacts from
proposed gaming projects. But as Ms. Dillon acknowledged in her
testimony, some non-Indian communities/local governments will never
consent to tribal land acquisition, regardless of the merits or purpose
for the acquisition. To give those communities effective veto authority
would be neither appropriate nor consistent with the purposes of the
IRA.
---------------------------------------------------------------------------
\1\ We note that Senator Feinstein's and Ms. Dillon's comments were
focused entirely on Indian gaming rather than the fee-to-trust process.
We must emphasize that these are two separate administrative processes,
land acquisition being governed by the IRA and gaming eligibility by
IGRA.
---------------------------------------------------------------------------
During the hearing, it was suggested that local government
participation in the process could be strengthened by including in a
Carcieri fix some kind of requirement that a tribe enter into a
``voluntary'' memoranda of understanding (``MOU'') with local
communities affected by a proposed tribal land acquisition for off-
reservation gaming. Apart from the fact that it is unclear how a
statutory requirement could impose a voluntary agreement, this type of
requirement is troubling because it could allow non-Indian communities
to exact a high price from a newly recognized or restored tribe (which
has limited options because of existing regulatory historical and
modern connections requirements) in exchange for allowing a gaming
acquisition to proceed, or to delay the process indefinitely, or to
simply refuse to negotiate a all. While the Cowlitz Tribe fully
supports voluntary agreements with local communities, and like most
tribes desires to forge positive, productive, mutually beneficial
relationships with its neighbors, we are concerned that this type of
provision is not appropriate to include in a Carcieri fix and would
effectively hand over the Federal Government's decision-making
authority to local governments. Or, as in the case of Cowlitz, where
our MOU with Clark County was challenged and set aside under state law,
a hostile third-party effectively could derail the fee-to-trust process
by challenging the MOU. We believe that the existing rules already
provide local communities with ample opportunity to participate in and
comment on the impacts of proposed tribal gaming acquisitions, and
require the Department to address issues raised by local communities.
The law should not be changed to give non-Indian communities or
interested third parties veto power over where (or even whether) newly
recognized or restored tribes may acquire land in trust for gaming.
The Cowlitz Tribe understands that enactment of clean Carcieri-fix
legislation is a very significant challenge. Nevertheless, we add our
voices to those of the Obama Administration, the National Congress of
American Indians (NCAI), the United South and Eastern Tribes, and
tribes throughout Indian Country in asking Congress to enact a fix that
puts all federally recognized tribes on an equal playing field, and
does so without imposing draconian new restrictions on fee-to-trust
acquisitions. Chairwoman Cantwell and Vice Chairman Barrasso, and
members of the Committee, we again appreciate your commitment to
achieving an honorable Carcieri fix.
______
Prepared Statement of Hon. Craig Corn, Chairman, Menominee Indian Tribe
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
______
Prepared Statement of the Tohono O'odham Nation
As Chairwoman Cantwell so eloquently said in her opening statement,
the Supreme Court's 2009 decision in Carcieri v. Salazar has created
two unequal classes of federally recognized tribes--tribes that are
able to benefit from the Indian Reorganization Act (IRA) and tribes
that are not. Since the IRA is in many ways the fundamental backbone of
modern federal Indian law, this disparity has caused significant
injustices. The Nation applauds the Committee's continuing effort to
find a path forward to enact an honorable fix to the damage Carcieri
has caused Indian Country.
While the Nation was not directly affected by the Carcieri
decision--as its status as a tribe ``under federal jurisdiction'' in
1934 is beyond dispute--the Nation has consistently expressed its
unequivocal support for federal legislation that would undo the very
real damage that Carcieri has wreaked on so many federally recognized
tribes. As one of the largest tribes in the United States, the Nation
feels an obligation to speak out in support of tribes that have been
less fortunate--tribes that were terminated, tribes that were or are
landless, and tribes that, for other reasons, have suffered the
devastating effects of having an inadequate homeland. The Nation well
understands these deprivations, as nearly 10,000 acres of the Nation's
own reservation land were taken by the United States in the mid-
twentieth century, and the tribal members residing on those lands were
forced to crowd together on a small 40-acre parcel of land. We know
what it is like to lose our traditional land, and we know how hard it
is to try to acquire replacement land. For some tribes, the Carcieri
decision has made acquiring new land impossible.
The Nation understands that the Committee may eventually consider
specific legislative language, and the Nation likely will submit more
specific comments after that proposed language becomes available. In
the meantime, the Nation would like to bring to the Committee's
attention significant misstatements in written testimony submitted by a
witness at the November 20, 2013, hearing that were directed at the
Nation. In addition, the Nation feels compelled to express its concerns
about several suggested new limitations on taking land in trust that
were discussed by some witnesses at the November 20, 2013 hearing. The
Nation will address each of these matters in turn.
A. The Nation's Proposed West Valley Resort
In her written testimony, Senator Dianne Feinstein made the
following statement:
The City of Glendale, Arizona, is disputing the Tohono O'odham
(Toe-hoe-no OH-tham) Nation's proposal to open a casino and
resort in the city's urban sport and entertainment district,
which even by the tribe's own admission is at least 75 miles
from its reservation's border.
Testimony of Senator Diane Feinstein, at 4.
This statement, which was directed at the Tohono O'odham Nation's
replacement lands acquisition for its West Valley Resort project near
the cities of Glendale and Peoria in Maricopa County, Arizona, is
incorrect in several key respects. First, the West Valley Resort enjoys
widespread support from nearby communities. In fact, three neighboring
communities, Peoria, Tolleson, and Surprise, have passed resolutions in
support of the Nation's project. What is more, as has been widely
reported, the City of Glendale has begun a productive dialogue with the
Nation. \1\ Second, contrary to Senator Feinstein's statement, the
Resort site is not ``at least 75 miles from [the Nation's] borders.''
In fact, as the Nation has repeatedly testified, the West Valley Resort
property is only about 48 miles from the Nation's existing trust land
at San Lucy Village, near Gila Bend, Arizona (where its land was
flooded and destroyed) and is located in the same county (Maricopa) as
this existing trust land. \2\
---------------------------------------------------------------------------
\1\ Carolyn Dryer, Ed., Dialogue has begun; partnership appears on
horizon, Glendale Star, September 15, 2013 (available at http://
www.glendalestar.com/opinion/editorials/article_4408fed6-11a6-11e3-
9130-001a4bcf887a.html)
\2\ Although not pertinent under the Nation's land settlement, the
West Valley Resort property is a readily commutable distance from Gila
Bend. Indeed, ``almost twice as many workers leave the Gila Bend area
to commute to jobs in the East Valley as stay to work in Gila Bend.
East Valley consists of Scottsdale, Paradise Valley, Fountain Hills,
Tempe, Mesa, Gilbert and Chandler.'' Creating New Avenues for Success:
The West Valley Workforce and Labor Market Study, 2008, pp. 53-54
(sponsored by WESTMARC, a coalition of fifteen West Valley
communities). The East Valley cities to which the majority of Gila
Bend's workers commute are significantly farther from Gila Bend than is
the West Valley Resort property.
---------------------------------------------------------------------------
B. Other Limitations on the Fee-to-Trust Process Discussed at the
Hearing
1. The Proposed ``Aboriginal Ties'' Requirement Will Lead to Unjust and
Perverse
Results
As a consequence of the Removal Era, culminating in the Indian
Removal Act of 1830, many tribes ceded their aboriginal territories in
the Eastern United States and were forcibly removed to areas west of
the Mississippi River. Act of May 28, 1830, ch. 148, Stat. 411. Many of
the tribal victims of the removal era were widely dispersed, and some
have only recently achieved federal acknowledgment and/or obtained
reservations. Similar displacement occurred in the Western United
States as well, such that not all tribes today reside in their
aboriginal territories. To graft an across-the-board aboriginal ties
requirement onto the IRA's trust land acquisition authority would
impose a great injustice for some tribes, and lead to absurd results
for others, because in the modern era some tribes simply are not
currently located within the confines of their aboriginal territories.
Indeed, some tribes' aboriginal territories are not even located within
the same states or the same regions of the country as where the tribes
currently are located. \3\
---------------------------------------------------------------------------
\3\ The reality is that, when Indian gaming comes into play, the
Department of the Interior's own regulations generally already require
the Secretary to consider a tribe's historical (as opposed to
aboriginal) connections to the land at issue before she will decide
whether to acquire land for gaming for newly recognized or newly
restored tribes. The only instances in which historical ties are not
required are when lands are acquired as part of a ``two-part
determination'' (in which cases the Governor of the State has absolute
veto authority) and when lands are acquired in the settlement of a land
claim (in which cases the Department follows Congress' specific
direction, since land claim settlements generally are implemented
through acts of Congress).
---------------------------------------------------------------------------
Depending on how it might be formulated, an aboriginal ties
requirement also could have an unintentional adverse impact on the
Nation. In the Nation's land claim settlement, Congress explicitly
identified the three counties within which the Nation would be entitled
to acquire new land to replace lands destroyed by the Army Corps of
Engineers (i.e., the same three counties in which the Nation already
has other reservation lands). Imposition of an aboriginal ties
requirement on the Nation's land claim settlement could significantly
and inappropriately alter the settlement terms agreed to by the Nation
and the United States nearly three decades ago.
2. Requiring MOUs with Local Counties Also May Lead to Unjust Results
Another potential restriction on the fee-to-trust process discussed
at the hearing would require tribes and neighboring non-Indian
communities to enter into memoranda of understanding (MOUs) before the
Secretary could acquire land in trust for tribes. Like many tribes, the
Nation has always worked closely with its neighboring communities to
deal with the kinds of issues that all governments regularly address,
including water and power, transportation, and public safety, and we
are proud of the many mutually beneficial agreements that we share with
local non-Indian communities.
For these issues to be addressed in a fair, equitable, and mutually
agreeable manner, however, the Nation believes that discussions must
take place in an environment of mutual respect and trust, not one of
coercion. Further, the Nation is aware that, in some circumstances, a
tribe may have very little latitude on where it can acquire lands. In
our case, our Federal land claim settlement requires that we acquire
our replacement land in one of three counties. If an MOU requirement
was grafted onto our land claim settlement, then local governments
could unilaterally block implementation of our Federal land claim
settlement, if they were of a mind to do so, completely undermining the
long-recognized Federal trust obligation owed to the Nation as an
Indian tribe.
Accordingly, the Nation opposes a condition on the IRA that would
unfairly interfere in intergovernmental discussions and the Federal
trust obligation by requiring that a tribe enter into agreements with
surrounding communities before the acquisition of lands in trust for a
tribe.
Finally, the Nation urges the Committee to consider grandfathering
existing fee-to-trust decisions that have not yet been fully
implemented to protect tribes, like the Nation, that have spent many
years and expended significant resources to navigate the existing
process. Failure to include such a grandfathering provision will
effectively punish tribes that have been playing by the rules in good
faith.
Conclusion
The Nation supports the Committee's efforts to ensure that the IRA
applies to all tribes. However, the concerns raised by some witnesses
relate only to gaming issues and do not belong in legislation designed
to address the injustices of the Carcieri decision. The Nation urges
that some of the trust acquisition restrictions suggested by some
witnesses are inconsistent with the primary purposes of the
Reorganization Act and, if adopted, may result in unforeseen and unjust
consequences.
We hope these comments are helpful to the Committee, and the Nation
is happy to answer any questions the Committee might have.
______
Prepared Statement of Matthew D. Chase, Executive Director, National
Association of Counties (NACo)
Dear Chairwoman Cantwell and Vice Chairman Barrasso:
On behalf of the nation's 3,069 counties, we thank you for the
opportunity to submit the following statement to the Senate Committee
on Indian Affairs as you consider such a critical issue for county and
tribal governments. We submit for the Committee's consideration our
statement that provides the National Association of Counties' (NACo)
relevant policy, determined and approved by our full membership, as it
pertains to county and tribal government relationships and to the
Supreme Court decision in Carcieri v. Salazar, 555 U.S. 379 (2009).
NACo is the only national organization that represents county
governments in the United States. Founded in 1935, NACo advances issues
with a unified voice before the Federal Government, improves the
public's understanding of county government, assists counties in
finding and sharing innovative solutions through education and research
and provides value-added services to save counties and taxpayers money.
As part of its work, NACo is engaged in pursuing federal laws and
regulations that provide the framework for constructive government-to-
government relationships between counties and tribes.
County and Tribal Government Relations
The policy of NACo is to support government-to-government relations
that recognize the role and unique interests of tribes, states,
counties and other local governments to protect all members of their
communities and to provide governmental services and infrastructure
beneficial to all--Indian and non-Indian alike.
NACo recognizes and respects the tribal right of self-governance to
provide for tribal members and to preserve traditional tribal culture
and heritage. In similar fashion, NACo recognizes and promotes self-
governance by counties to provide for the health, safety and general
welfare of all members of their communities. To that end, NACo supports
active participation by counties on issues and activities that have an
impact on counties.
NACo supports tribes and local governments reaching enforceable
agreements concerning the mitigation of impacts of gaming or other
development. NACo opposes any federal limitation on the ability of
tribes, states, counties and other local governments to reach mutually
acceptable and enforceable agreements or on the ability of these
governments to fulfill the purposes for which they have self-
governance.
Nothing in federal law should interfere with the provision of
public health, safety, welfare, or environmental services by local
government. It is the policy of NACo to support legislation and
regulation that preserves--and does not impair--the ability of counties
to provide these services to the community.
Lands in Trust
NACo supports the improvement of the process by which lands are
considered to be taken into trust, such as revising the Indian
Reorganization Act of 1934 (IRA) to require adequate advance notice of
applications, actual meaningful consultation (including providing
counties 120 days to respond to applications and requiring the
Department of the Interior/Bureau of Indian Affairs to respond within
90 days, in writing, to such comments explaining the rationale for
acceptance or rejection of those comments) and (to the extent
constitutionally permissible) the consent of the affected counties.
NACo opposes administrative action or a legislative ``quick fix''
to overturn the United States Supreme Court decision in the case of
Carcieri v. Salazar, which held that the Secretary of the U.S.
Department of the Interior (DOI) lacks authority to take land into
trust for tribes that were not ``under federal jurisdiction'' upon
enactment of the IRA in 1934. NACo calls on Congress to address any
Carcieri issues as part of a comprehensive examination and reform of
the fee land into trust process.
This reform is necessary as the current federal fee to trust
process, as exercised under the IRA and as used under the ``restored
lands'' exception to the Indian Gaming Regulatory Act (IGRA), is
contrary to the original legislative intent; is without clear and
enforceable standards; does not take into account county interests;
and, at times, interferes with county ability to provide essential
services to the community. NACo supports legislative changes to the
trust process that also include full compensation to counties for lost
tax revenue resulting from taking lands into federal jurisdiction.
Once again, thank you for the opportunity to comment and provide
NACo's policy.
______
Joint Prepared Statement of Tribal Organizations
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
______
Response to Written Questions Submitted by Hon. Maria Cantwell to
Diane Dillon
Question 1. Has CSAC taken a position on tribal sovereignty?
Answer. CSAC's adopted policy affirms the association's recognition
and respect for tribal self-governance to provide for its members and
to preserve traditional Indian culture and heritage. CSAC's policy also
states support for cooperative and respectful government-to-government
relations that recognize the interdependent role of tribes, counties,
and other local governments to be responsive to the needs and concerns
of all members of their respective communities.
As reiterated in past and recent congressional testimony, CSAC has
great respect for the authority granted to all federally recognized
Indian tribes. It is CSAC's intent to pursue policies that respect
tribal authority, while at the same time protecting counties'
legitimate interests, including the legal responsibility to provide for
the health, safety, environment, infrastructure, and general welfare of
all citizens.
Question 2. Did counties have issues with the fee-to-trust process
or take a formal position on the process prior to passage of the Indian
Gaming Regulatory Act (IGRA)?
Answer. Although CSAC did not have a formal position on the BIA's
fee-to-trust process prior to the 1988 enactment of IGRA, many
individual California counties were experiencing impacts in rural areas
from Indian gaming establishments. These early establishments were
places where Indian bingo was the primary commercial enterprise in
support of tribal economic self-reliance. The impacts on local
communities were not as significant in large part because the
facilities where Indian bingo was played were modest in size and did
not attract as many patrons as larger casinos that have proliferated
today. Following the enactment of IGRA, the impacts to counties from
Indian gaming enterprises increased with the advent of larger
facilities. Even so, the impacts to local communities from these larger
facilities were generally manageable, except in certain instances.
Beginning with the 1999 signing of the State's Tribal Gaming
Compacts, the ensuing rapid expansion of Indian gaming in California
has had profound impacts beyond the boundaries of tribal lands. The
majority California's counties now have a casino, a tribe petitioning
for federal recognition, or are the site of a proposed casino plan. As
the Committee is aware, many casino proposals relate to projects on
land far from a tribe's ancestral territory.
In response to the rise of significant off-reservation impacts
resulting from tribal gaming establishments, CSAC adopted formal policy
on Indian gaming in 2003. The association adopted subsequent policy
revisions and updates in order to emphasize the need for counties and
tribal governments to each carry out their governmental
responsibilities in a manner that respects the governmental
responsibilities of the other.
Today, California has 111 federally recognized tribes, 59 of which
operate 60 casinos. Moreover, there are currently 352 applications for
federal recognition pending nationwide, with one quarter of those from
the state of California. With a large number of tribes already engaged
in gaming and with the possibility that a significant number of
additional tribal groups could gain federal recognition, CSAC and
California's counties continue to take an active interest in federal
Indian affairs issues and policies.
Question 3. Do California's counties have issues with the fee-to-
trust process that aren't related to gaming?
Answer. Yes, California's counties have a number of concerns with
the fee-to-trust process that are not related to tribal gaming. These
concerns have become increasingly pressing, as California tribes have
petitioned to have at least 9,938 acres of additional land taken into
trust status for a variety of purposes since 2011 alone. As outlined in
CSAC's congressional testimony, the association's fundamental concerns
stem from the fact that there is a lack of clear and enforceable
standards in the land-into-trust process. Congress has not set
standards under which any delegated trust land authority would be
applied by BIA. The relevant section of federal law, Section 5 of the
Indian Reorganization Act, 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.
The aforementioned general and undefined congressional guidance, as
implemented by the Department of the Interior in its Part 151
regulations, has resulted in a trust land process that fails to
meaningfully include the legitimate interests of local government
agencies. Therefore, the concerns of California's counties are given
minimal consideration in the fee-to-trust process, despite the fact
that counties must address the off-reservation impacts of projects on
trust lands and any inconsistencies with surrounding land uses, as well
as provide some local government services, including law enforcement in
California, on trust lands.
The lack of guidance has also led to procedural shortcomings in the
fee-to-trust process. Local governments often do not receive timely
notice when a trust land application is filed within their
jurisdictions. In turn, BIA only invites comments from the affected
state and the local governments with legal jurisdiction over the land
and, from those parties, only on the narrow question of tax revenue
loss and regulatory jurisdictional conflicts. As a result, 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. Moreover, local
governments are often forced to resort to Freedom of Information Act
requests to ascertain if petitions for Indian land determinations have
been filed in their jurisdictions.
While CSAC remains particularly concerned that tribal gaming often
leads to significant unmitigated impacts to the surrounding community,
including environmental and economic impacts, other forms of tribal
development also are a source of concern. For example, many tribal
projects are often incompatible with local land-use plans and
regulations (i.e. proposed tribal housing and associated infrastructure
in areas that are zoned exclusively for agriculture). Moreover,
economic development projects on trust lands that support existing
Tribal gaming enterprises, for instance a golf course or music venue,
can have off-reservation impacts similar to those of casinos. Unlike
casino projects, which require negotiation of mitigation agreements
with affected local governments under California's recent tribal-state
gaming compacts, local governments have no ability to secure mitigation
for the off-reservation impacts a project on trust lands may have on
government services or the environment.
It should also be noted that many non-gaming trust acquisitions,
both large and small, can result in jurisdictional confusion with
regard to law enforcement, social service delivery, and emergency
services. In addition, the loss of local control to regulate land uses
without appropriate mitigation can congest county and state roadways,
impact water quality in waterways, reduce water supply to adjacent
properties, degrade habitat, air quality and the environment, and
create a public nuisance. These types of impacts are not simply limited
to the development and operation of Indian casinos.
Question 4. Have any California counties objected or sent remarks
or testimony to the Department of the Interior (DOI) on a trust land
application that was not related to gaming?
Answer. Yes, a number of California counties have sent comment
letters to DOI/BIA regarding proposed non-gaming trust land
acquisitions. For example, Fresno County sent a letter to BIA in 2012
regarding the Table Mountain Rancheria's application to have nine
parcels of land taken into trust for non-gaming purposes. The County
provided comments to the BIA in an effort to highlight a number of
pertinent issues, including the expected loss of county property tax
revenue and the continued provision of county services to the land.
Yolo County submitted comments in response to the Environmental
Assessment and subsequent Finding of No Significant Impacts for the
proposed acquisition of approximately 853 acres of land for the Yocha
Dehe Wintun Nation in 2011 and 2013, respectively. The County raised no
objections to the Tribe's proposed development of approximately 100
acres of the intended trust lands for housing, community facilities,
infrastructure and cultural facilities. The Board of Supervisors was,
however, concerned that there would be no mechanism for the County to
provide meaningful input or secure mitigation measures for the off-
reservation impacts of any future projects on the remaining 753 acres,
for which no planned development was described in the Tribe's
application.
Santa Barbara County recently sent correspondence to the BIA to
register opposition to the Santa Ynez Band of Chumash Mission Indians'
non-gaming fee-to-trust application. The parcel of land in question,
which encompasses more than 1,400 acres, would be used for tribal
housing and perhaps other non-gaming purposes, such as a major
community center and an office complex. The County opposes the fee-to-
trust application on the grounds that the proposed project conflicts
with the County's General Plan, the Santa Ynez Community Plan, and
local land-use regulations.
Additionally, if the land is taken into trust, Santa Barbara County
would lose substantial tax revenue while at the same time experiencing
an increased demand for services and infrastructure. In its
correspondence to the BIA, the County notes that it is anticipated that
the tribe may choose to change its intended uses on the site. Once the
land is in trust, however, the County would have no regulatory
authority in the approval process.
On a related matter, CSAC would like to highlight the fact that
there are a number of tribes both within and outside the state of
California that have switched the stated or intended uses of trust
land. According to BIA records, land was taken into trust for the Smith
River Rancheria in Del Norte County for tribal housing in 1989, only to
be converted to gaming use in 1996. \1\ In Butte County, a parcel of
land was taken into trust for HUD tribal housing units and community
uses in 1994; the land was converted to gaming in 1996. \2\
Incidentally, in both of the aforementioned cases, National Indian
Gaming Commission officials were not aware of applicable IGRA
exceptions or status.
---------------------------------------------------------------------------
\1\ (U.S. Department of the Interior, Office of Inspector General.
Final Evaluation Report on the Process Used to Assess Applications to
Take Land into Trust for Gaming Purposes. Report Number: E-EV-BIA-0063-
2003 (2005).
\2\ Id., pp. 18.
---------------------------------------------------------------------------
Thank you again for your leadership on this issue and for your
consideration of our views.
______
Response to Written Questions Submitted by Hon. John Barrasso to
Diane Dillon
Question 1. What recommendations do you have for incentivizing
local governments to enter into mitigation agreements?
Answer. CSAC believes that a strong incentive already exists for
local governments, as well as tribes, to reach judicially enforceable
agreements. For starters, the process of negotiating an agreement or
memorandum-of-understanding (MOU) brings both parties to the table and
often lays the foundation for a more productive, beneficial, and long-
term government-to-government relationship. Moreover, a mitigation
agreement provides the jurisdictional local government with certainty
that the impacts of a particular development project will be adequately
addressed.
Unfortunately, the current fee-to-trust process--as authorized
under the Indian Reorganization Act and governed by the Department of
the Interior's Part 151 regulations--lacks adequate standards and does
not provide any incentive for local governments or tribes to enter into
mitigation agreements. The result is a trust land system that gives
rise to mutual distrust and dissatisfaction.
We believe that the federal legal framework must be modified to
encourage both parties to reach mitigation agreements. This could be
done, for example, by establishing a more streamlined fee-to-trust
process for cases in which local agreements are in place. Pursuant to
CSAC's trust reform proposal, this would be accomplished by exempting a
tribe from the need to meet the statutory requirements of subsection
(b) if the tribe and the jurisdictional local government(s) have
entered into an MOU that address the impacts of the proposed trust
acquisition.
In the absence of a mitigation agreement, federal law should
require the Secretary to ensure that the interests of the tribe and the
jurisdictional local government are balanced in the fee-to-trust
process. This should be done by requiring the Secretary to determine,
after consulting with appropriate state and local officials, that the
proposed land acquisition would not be detrimental to the surrounding
community. Additionally, the Secretary should be required to determine
that tribes have taken necessary steps to ensure that jurisdictional
conflicts and impacts have been mitigated. Once these requirements have
been satisfied, the Secretary would be authorized to approve the
tribe's development.
Question 2. What should be done if local governments refuse to
enter mitigation agreements?
Answer. CSAC does not believe that local governments--or tribes for
that matter--should be compelled to enter into mitigation agreements.
Indeed, we acknowledge that there will be cases in which neither party
will ultimately want to negotiate an MOU no matter how much a potential
new fee-to-trust process is able to ``incentivize'' intergovernmental
cooperation.
It is important to note that CSAC's reform proposal would not
preclude a tribe from moving forward with a trust application if a
local government refuses to enter into an agreement. In such cases,
proposed development could move forward as long as other reasonable
standards have been met.
While a perfect fee-to-trust process may not be attainable, we
remain steadfast in our belief that the best possible system is one
that provides a framework for both tribes and local governments to work
together.
Question 3. Could you describe the importance of intergovernmental
agreements between the tribes and the local governments?
Answer. CSAC believes that intergovernmental agreements between
tribes and local governments is essential when one government's
development project will significantly impact the other. This cannot be
understated given the history of conflict, mistrust, and gridlock that
has characterized the current fee-to-trust process.
For the reasons already stated herein, federal statutory law must
provide a framework that encourages cooperation between neighboring
governments.
Question 4. How should economic self-sufficiency be determined?
Answer. One of the principal goals of Federal Indian policy is to
promote tribal economic development and self-sufficiency. Incidentally,
the statutes and regulations governing tribes and tribal development do
not define self sufficiency or provide further policy guidance relative
to how such a standard is to be measured.
In general, economists, think tanks, research centers, and private
interest groups agree that economic self-sufficiency is achieved when
an individual or family's basic needs--including food, housing,
utilities, health care, transportation, taxes, dependent care,
clothing, etc.--are consistently met with minimal or no outside
financial assistance or subsidies. Expressed as a measurement of
income, self-sufficiency is reached when an individual/family has an
income of at least 200 percent of the federal poverty level, relative
to household size.
CSAC recognizes that the aforementioned measurement, although a
widely used standard, may or may not be appropriate for determining
whether a tribe and its members have attained economic self-
sufficiency. However, since promoting self sufficiency is one of the
primary purposes of Federal Indian policy--and in consideration of the
significant off-reservation impacts that result from the establishment
of casinos and other tribal development projects--we believe that the
term, in this context, should be defined in federal law. We therefore
urge Congress to carefully consider this issue as part of a broader
discussion on fee-to-trust reform, with a particular emphasis on the
policy-related implications of potentially applying a different self-
sufficiency standard to different socio-economic groups.
Thank you for your leadership on this issue and for your
consideration of our views.
______
Response to Written Questions Submitted by Hon. John Barrasso to
Jacqueline Johnson-Pata
The fee to trust process involves trust acquisitions of lands
located both within an Indian reservation and outside the reservation
boundaries. In particular, ``off-reservation'' trust acquisitions may
result in a change of jurisdiction and impact the surrounding
community.
Question 1. Please describe some of the ways Indian tribes address
jurisdictional issues and mitigate local community impacts for off-
reservation trust acquisitions?
Answer. Thank you Senator Barrasso. First, it is important to note
that the vast majority of tribal land acquisitions occur in very rural
areas, including those that are off-reservation. These are mostly
agricultural and forest lands that are adjacent or very near to
existing reservations. Most land acquisitions have little impact
outside of the tribe.
Of course there are tribes located closer to populated areas, and
in these cases there is generally a significant amount of cooperation
already in place between the tribal and local government. Most common
are public safety and mutual aid agreements. Services agreements and
revenue sharing agreements are also common where services are jointly
provided. Cooperative land use planning is frequent in populated areas.
If new lands are placed into trust, they usually fall under an existing
system of tribal and local government cooperation. For the most part,
tribes and local governments find that these agreements work very well,
services and jurisdiction are seamless, and are capable of providing a
higher degree of public services because of the pooling of effort and
resources.
Although the clear trend is towards intergovernmental cooperation,
of course there are places where relations are strained. Cooperation
between tribal and local governments tends to improve when the tribe is
a significant part of the local economy. Tribes and local communities
have been living and working together for multiple generations, and
will continue to do so. Congress should continue to fulfill its trust
responsibilities to Indian people by restoring tribal lands and
empowering tribes to make positive contributions to the local economy.
Your written testimony submitted for the Committee hearing on
November 20, 2013, on ``Carcieri: Bringing Certainty to Trust Land
Acquisitions,'' states that tribes would never accept a transfer of
section 151 authority to state or county governments.
Question 2. What kind of meaningful role can local and county
governments have in the section 151 process without transferring
authority to them?
Question 2a. Do you believe that the local or county governments'
support or opposition to the land into trust acquisition should be
taken into consideration by the Secretary?
Answer. I will answer these related questions together. Local and
county governments currently play a vital role with their informed
participation in the land to trust process, and this option to
participate and provide comments is required under the federal
regulations at 25 CFR 151. Local government concerns are a critical
factor that the Secretary considers regularly. However, in most
instances, local concerns are addressed in government-to-government
discussions preceding the application to Interior.
The Secretary of Interior is an independent decision maker,
confirmed by the Senate, and is charged with making reasonable
decisions and weighing the costs and benefits of any land acquisition.
In practice, tribes don't waste time on unrealistic plans for
discretionary land acquisitions that would transfer significant costs
or raise legitimate concerns for the local community. The Secretary's
independent and informed decisionmaking role is critical to ensuring
that valid local government concerns are properly addressed.
We want to again point out that most issues with county governments
relate to off-reservation acquisitions in populated areas, and that the
vast majority of acquisitions are much more rural in character. In
populated areas it is common that the parties will negotiate conditions
and agreements, facilitated by the Secretary's approval function.
Question 3. Do you believe that tribes should be able to state on
their application that the land is being taken into trust for one
purpose, but then use the land for another purpose without further
review by the Bureau of Indian Affairs?
Answer. Existing law prevents tribes or anyone else from making
false statements regarding land to trust applications. Interior's land
acquisition regulations at Sec. 151.25 state that anyone who knowingly
and willfully makes a false statement in connection with a trust title
acquisition request may be subject to criminal prosecution under the
False Statements Accountability Act of 1996, 18 U.S.C. 1001.
That said, it is entirely possible and even likely that land use
plans will change over periods of time, and this is true for every
local government in the country. Twenty years ago very few would have
predicted the use of land for cell phone towers, now they are
ubiquitous across the landscape. Changing land use plans will often
cause public debate, but change is inevitable. We do not believe that
further federal review is appropriate or necessary for a change in land
use plans.
Instead, we should increase cooperation between local and tribal
governments on land use planning. This is already common in developed
areas, such as the Tulalip Reservation north of Seattle, where
cooperative land use planning with Snohomish County has been a
foundation for cooperation on economic development, public services,
and natural resources protection. Land use planning is much less common
in very rural areas, however, for both tribes and local governments.
Land use planning is critical to economic development and improving
living conditions for individuals and families in and around Indian
Country. Tribal land use planning tends to be siloed on certain
programmatic needs--for example transportation or housing. There is a
great need for integrated planning across infrastructure needs, and
NCAI strongly encourages Congress, as a part of its trust
responsibility, to provide additional support for land use planning in
Indian country.
Question 4. Do you believe that tribes should be required to
mitigate jurisdictional conflicts and effects as a condition for
placing land into trust?
Answer. No. As I noted above, there is a great deal more
jurisdictional cooperation than conflict in Indian country, and land
transfers tend to fall under existing jurisdictional arrangements that
have been in place for decades. Of course there are places where
cooperation is more difficult, but these are the exception rather than
the rule.
In addition, the current process requires the Interior Department
to consider all concerns raised by local governments, and the
Department's process and independent review heavily favors parties who
work together to mitigate impacts.
I should also mention that local communities near Indian
reservations already benefit a great deal from federal spending on
reservation, from programs such as Johnson O'Malley that provides funds
to local schools near reservations, and also from federal Payments in
Lieu of Taxes for communities near federal lands.
We urge Congress to keep the context in mind. Restored lands were
frequently stolen or unfairly taken from Indian tribes and now tribes
must repurchase every square foot before it can be considered for a
land to trust transfer. Tribes work very hard to provide services and
cooperate with surrounding governments, and the results are impressive.
The process should not be held hostage to a mitigation requirement that
would be extraordinarily difficult for Interior to manage, would slow
the process to a crawl, give even more leverage to local governments,
and disadvantage Indian tribes who are the beneficiary of a federal
trust responsibility.
In her testimony before the Committee at the hearing on November
20, 2013, on ``Carcieri: Bringing Certainty to Trust Land
Acquisitions,'' Senator Feinstein proposed that land taken into trust
for non-gaming purposes should be prohibited from being used as casino
locations at future dates.
Question 5. Do you agree with this proposal?
Answer. This is already the law for off-reservation acquisitions.
Section 20 of the Indian Gaming Regulatory Act prohibits gaming on off-
reservation Indian lands acquired in trust after 1988, with only three
exceptions:
1.) Two Part Determinations--25 USC 2719(b)(1)(A) permits
gaming on lands acquired in trust after 1988 if the Secretary
of Interior ``determines that a gaming establishment on newly
acquired lands would be in the best interest of the Indian
tribe and its members, and would not be detrimental to the
surrounding community, but only if the Governor of the State in
which the gaming activity is to be conducted concurs in the
Secretary's determination. . .'' These acquisitions require
wide public engagement on the proposal, and the state's
Governor must concur.
2.) Settlement of Land Claims--25 USC 2719(b)(1)(B)(i) permits
gaming on lands acquired in trust after 1988 if the lands are
taken into trust as part of a settlement of a land claim. There
are several older settlement statutes that permit certain
tribes to select replacement lands in a defined geographic
area. These are existing settlements and generally the
Secretary lacks discretion in making these acquisitions under
federal law. Any acquisitions for gaming purposes require
notice to state and local government and public notice and
comment under 25 C.F.R. Part 151 and 292.
3.) Initial Reservation or Restored Lands. 25 USC
2719(b)(1)(B) permits gaming on lands acquired in trust after
1988 if the lands are taken into trust as part of ``(ii) the
initial reservation of an Indian tribe acknowledged by the
Secretary under the Federal acknowledgment process, or (iii)
the restoration of lands for an Indian tribe that is restored
to Federal recognition.'' These acquisitions only occur in a
public process where the purpose to acquire the land for gaming
purposes is widely shared with state and local governments, and
the Department of Interior seeks comment from interested
parties under 25 C.F.R. Part 151 and 292.
In her testimony before the Committee at the hearing on November
20, 2013, on ``Carcieri: Bringing Certainty to Trust Land
Acquisitions,'' Senator Feinstein noted that casinos require local
resources, including increased costs for police, fire, water, sewer,
and transportation.
Question 6. Do you believe tribes should be required to mitigate
these costs?
Answer. The Indian Gaming Regulatory Act requires tribes and states
to negotiate compacts before the tribe can exercise Class III gaming.
Compacts may include provisions related to the allocation of criminal
and civil jurisdiction and the costs necessary for regulating such
activities. Many state governments already receive revenue transfers
from tribes for these purposes, and local governments are subdivisions
of the states. For example, in Wisconsin the State provides for
extensive transfers of gaming revenue funds for local police efforts in
cooperation with tribal police. We do not believe it is necessary to
provide additional authority to local governments as these issues can
and have been resolved through state-tribal compact negotiations. Many
tribes provide very substantial contributions to state and local
government costs, and these are managed through intergovernmental
negotiations.
Question 6a. Please explain how tribes have addressed these costs.
Answer. Most tribes are already providing support for the state
budget and for local law enforcement and police departments through
gaming compact negotiations.
In addition, many tribes make tangible contributions to assist
services in their local area--for example it is remarkable the number
of press releases we see where a tribal government has made a
contribution in the form of a new fire truck or a police cruiser.
Indian tribes are a foundation for economic development in many local
areas that is never going to be outsourced to a foreign country, and
tribes make enormous contributions in their local communities. In many
cases tribes are largest employers in the county and provide jobs and
economic support to not only tribal members, but local communities as
well.
Question 7. Have there been any instances where disputes arose
between tribes and local, county, or state governments regarding
mitigating, paying for, or entering agreements to address these local
impacts?
Answer. Of course local debates arise from time to time about
revenue and services--which are the primary topics of every government
discussion. For example, until recently some of the tribes in New York
were withholding payment until the terms of their compacts were
fulfilled. But the State of New York and the tribes engaged in a series
of far-reaching settlements that will benefit both the tribes and their
neighbors. We urge Congress to continue to trust in the good will and
track record of government-to-government negotiations. Cooperation
between tribal and local governments tends to improve when the tribe is
empowered, and is making positive contributions to the local economy
and governmental services. Congress should continue to fulfill its
trust responsibilities to Indian people, restore tribal lands, and
empower tribes to make positive contributions to the local economy and
governmental services.
In her written testimony submitted for the Committee hearing on
November 20, 2013, on ``Carcieri: Bringing Certainty to Trust Land
Acquisitions,'' Ms. Diane Dillon recommended several changes to the
land into trust process. One recommendation is that trust land requests
cannot be approved when negative impacts to other parties outweigh the
benefit to the tribe.
Question 8. What do you think about balancing these impacts and
benefits?
Answer. As I mentioned above, the Secretary of Interior is a
Senate-confirmed cabinet member who is charged with exercising
discretion to make these judgments. Tribes work very hard to provide
services and cooperate with surrounding governments, and the results
are impressive. We do not believe it would be appropriate to create a
mitigation requirement that would be extraordinarily difficult for
Interior to quantify or apply, would slow the process to a crawl, give
even more leverage to local governments, and disadvantage Indian tribes
who are the beneficiary of a federal trust responsibility.
______
Response to Written Questions Submitted by Hon. John Barrasso to
Hon. Marshall Pierite
In her written testimony submitted for the Committee hearing on
November 20, 2013, on ``Carcieri: Bringing Certainty to Trust Land
Acquisitions,'' Ms. Diane Dillon recommended several changes to the
land into trust process. One recommendation is that trust land requests
cannot be approved when negative impacts to other parties outweigh the
benefit to the tribe.
Question 1. What do you think about balancing these impacts and
benefits?
Answer. This question must be considered within the historical
context of broken promises and illegal dispossession of tribes from
their land. Although we should strive to find justice and balance, a
part of the equation must include a recognition that tribes had their
land stolen from them and now are forced to buy it back.
Question 2. Could you describe some of the impacts that Carcieri
has had on Indian tribes?
Answer. Tribes are working every day to improve the welfare of
their people through projects for community and economic development.
The uncertainty over the status of their land has increased risk to
potential investors which has led in many cases to an increase in the
cost of capital for projects, and the inability to find capital for
others. The Carcieri decision has stagnated job growth and diminished
the chance for thousands of people to increase their standard of living
and provide a more certain future for their children.
Question 3. How important do you think it is for tribes to work
with local governments when taking land into trust that is not
contingent to an existing Indian reservation?
Answer. Tribes work on a daily basis with their local non-Indian
neighbors. While many people would like to spread fear in those places
where tribes are seeking to develop new economic development
facilities, the truth is that tribal enterprises are a positive force
in local communities and in most cases a strong mutually beneficial
relationship evolves. We encourage all tribes to seek strong
partnerships with local governments, but we cannot agree that local
governments should have a veto power over projects on tribal land--land
that was in most cases stolen from the tribe to begin with.
______
*Response to the following written questions was not received before
the hearing's print deadline*
Written Questions Submitted to Hon. Kevin Washburn
The written testimony from Ms. Diane Dillon submitted for the
Committee hearing on November 20, 2013, on ``Carcieri: Bringing
Certainty to Trust Land Acquisitions,'' states that the acceptance rate
for section 151 fee-to-trust applications from the Bureau of Indian
Affairs (BIA) Pacific Regional Office was 100 percent from 2001 to
2011.
Question. How many section 151 applications were received,
withdrawn, accepted, and denied in that Office in the past 10 years?
Question. How many section 151 applications have been received,
withdrawn, accepted, and denied in all BIA regions in the past 10
years?
Your written testimony submitted for the Committee hearing on
November 20, 2013, on ``Carcieri: Bringing Certainty to Trust Land
Acquisitions,'' questions whether tribes should be asked at all what
their purpose for taking land into trust is.
Question. Do you question this provision as well for off-
reservation acquisitions?
Question. How would local communities and governments provide
meaningful comments on a tribal application when the purpose is
unknown?
In her written testimony submitted for the Committee hearing on
November 20, 2013, on ``Carcieri: Bringing Certainty to Trust Land
Acquisitions,'' Ms. Diane Dillon states that the state, county, and
local governments are only afforded limited notice and consultation on
pending applications.
Question. Please describe in detail the process of notifying state,
county, and local governments and of receiving comments from local
governments and local communities (i.e., do you conduct town hall
meetings or consultation, etc., if so, how are they conducted).
Question. Please describe how the input of these governments and
communities affects the decision on whether the land is taken into
trust.
Question. Do intergovernmental agreements help streamline the fee-
to-trust process?
Question. Do you believe there is something that should be done to
expedite land-into-trust applications that are accompanied by an
intergovernmental agreement?
According to data received from the Bureau of Indian Affairs (BIA)
regarding land-into-trust acquisitions, there have been 18 applications
for land into trust accepted over the last 4 years, for which the
purpose of the acquisition is ``unidentified.'' The data received from
the BIA also states that only 13 of the land-into-trust applications
were for gaming.
Question. How can the Secretary evaluate the application and
conduct an environmental assessment or impact statement when no purpose
is provided in the fee to trust application?
Question. What kind of BIA oversight exists to ensure the current
and future uses of the trust land are consistent with the purpose for
which the land was taken into trust?
Question. What happens if the purpose that the land was taken into
trust for is not the purpose being carried out on the land?
In her testimony before the Committee hearing on November 20, 2013,
on ``Carcieri: Bringing Certainty to Trust Land Acquisitions,'' Senator
Feinstein proposes that land taken into trust for non-gaming purposes
should be prohibited from being used as casino locations at future
dates.
Question. Do you agree with this proposal?
In her written testimony submitted for the Committee hearing on
November 20, 2013, on ``Carcieri: Bringing Certainty to Trust Land
Acquisitions,'' Ms. Diane Dillon proposed that land be taken into trust
on the condition that it is used for the intended purpose. She further
proposes that if the purpose is changed, the land into trust
application must be further reviewed.
Question. Do you agree with this proposal?
On November 13, 2013, the Administration published a final rule
amending the land acquisition regulations in 25 CFR Part 151. Ms. Diane
Dillon's written testimony submitted for the Committee hearing on
November 20, 2013, on ``Carcieri: Bringing Certainty to Trust Land
Acquisitions,'' states that this new rule will allow tribes to
immediately begin development of the trust land and result in
irreparable damage to local governments even if the local governments
receive a favorable decision in court.
Question. Could you describe how this rule mitigates the impacts of
the Patchak decision?
Question. How would the BIA manage or treat lands that had been
taken into trust but, after the acquisition, a court holds that the
acquisition was outside the scope of the Secretary's authority and that
the acquisition was invalid?
Question. How would this invalidation of a Secretarial acquisition
affect the application of the final rule published on November 13, 2013
to the acquisition or other trust land applications?
Data received from the Bureau of Indian Affairs indicates that only
13 applications for land-into-trust for gaming purposes have been
approved in the past 4 years.
Question. How many have been submitted in that timeframe?
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