[House Hearing, 115 Congress]
[From the U.S. Government Publishing Office]
COMPARING 21ST CENTURY TRUST LAND ACQUISITION WITH THE INTENT OF THE
73RD CONGRESS IN SECTION 5 OF THE INDIAN REORGANIZATION ACT
=======================================================================
OVERSIGHT HEARING
before the
SUBCOMMITTEE ON INDIAN, INSULAR AND
ALASKA NATIVE AFFAIRS
of the
COMMITTEE ON NATURAL RESOURCES
U.S. HOUSE OF REPRESENTATIVES
ONE HUNDRED FIFTEENTH CONGRESS
FIRST SESSION
__________
Thursday, July 13, 2017
__________
Serial No. 115-15
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COMMITTEE ON NATURAL RESOURCES
ROB BISHOP, UT, Chairman
RAUL M. GRIJALVA, AZ, Ranking Democratic Member
Don Young, AK Grace F. Napolitano, CA
Chairman Emeritus Madeleine Z. Bordallo, GU
Louie Gohmert, TX Jim Costa, CA
Vice Chairman Gregorio Kilili Camacho Sablan,
Doug Lamborn, CO CNMI
Robert J. Wittman, VA Niki Tsongas, MA
Tom McClintock, CA Jared Huffman, CA
Stevan Pearce, NM Vice Ranking Member
Glenn Thompson, PA Alan S. Lowenthal, CA
Paul A. Gosar, AZ Donald S. Beyer, Jr., VA
Raul R. Labrador, ID Norma J. Torres, CA
Scott R. Tipton, CO Ruben Gallego, AZ
Doug LaMalfa, CA Colleen Hanabusa, HI
Jeff Denham, CA Nanette Diaz Barragan, CA
Paul Cook, CA Darren Soto, FL
Bruce Westerman, AR A. Donald McEachin, VA
Garret Graves, LA Anthony G. Brown, MD
Jody B. Hice, GA Wm. Lacy Clay, MO
Aumua Amata Coleman Radewagen, AS Vacancy
Darin LaHood, IL
Daniel Webster, FL
Jack Bergman, MI
Liz Cheney, WY
Mike Johnson, LA
Jenniffer Gonzalez-Colon, PR
Greg Gianforte, MT
Todd Ungerecht, Acting Chief of Staff
Lisa Pittman, Chief Counsel
David Watkins, Democratic Staff Director
------
SUBCOMMITTEE ON INDIAN, INSULAR AND ALASKA NATIVE AFFAIRS
DOUG LaMALFA, CA, Chairman
NORMA J. TORRES, CA, Ranking Democratic Member
Don Young, AK Madeleine Z. Bordallo, GU
Jeff Denham, CA Gregorio Kilili Camacho Sablan,
Paul Cook, CA CNMI
Aumua Amata Coleman Radewagen, AS Ruben Gallego, AZ
Darin LaHood, IL Darren Soto, FL
Jack Bergman, MI Colleen Hanabusa, HI
Jenniffer Gonzalez-Colon, PR Raul M. Grijalva, AZ, ex officio
Vice Chairman
Rob Bishop, UT, ex officio
------
CONTENTS
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Page
Hearing held on Thursday, July 13, 2017.......................... 1
Statement of Members:
LaMalfa, Hon. Doug, a Representative in Congress from the
State of California........................................ 1
Prepared statement of.................................... 2
Torres, Hon. Norma J., a Representative in Congress from the
State of California........................................ 2
Prepared statement of.................................... 3
Statement of Witnesses:
Allyn, Hon. Fred B., III, Mayor, Town of Ledyard, Connecticut 20
Prepared statement of.................................... 21
Questions submitted for the record....................... 27
Cason, James, Acting Deputy Secretary, U.S. Department of the
Interior, Washington, DC................................... 5
Prepared statement of.................................... 5
Questions submitted for the record....................... 7
Francis, Hon. Kirk, President, United South and Eastern
Tribes, Washington, DC..................................... 8
Prepared statement of.................................... 9
Mitchell, Donald, Attorney at Law, Anchorage, Alaska......... 29
Prepared statement of.................................... 31
Supplemental testimony submitted for the record.......... 38
Additional Materials Submitted for the Record:
List of documents submitted for the record retained in the
Committee's official files................................. 64
Uintah County, Utah, testimony dated July 20, 2017 submitted
for the record by Chairman Bishop.......................... 61
OVERSIGHT HEARING ON COMPARING 21ST CENTURY TRUST LAND ACQUISITION WITH
THE INTENT OF THE 73RD CONGRESS IN SECTION 5 OF THE INDIAN
REORGANIZATION ACT
----------
Thursday, July 13, 2017
U.S. House of Representatives
Subcommittee on Indian, Insular and Alaska Native Affairs
Committee on Natural Resources
Washington, DC
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The Subcommittee met, pursuant to notice, at 10:07 a.m., in
room 1324, Longworth House Office Building, Hon. Doug LaMalfa
[Chairman of the Subcommittee] presiding.
Present: Representatives LaMalfa, Denham, Radewagen,
Bergman, Bishop; Torres, Gallego, Soto, Hanabusa, and Grijalva.
Mr. LaMalfa. The Subcommittee on Indian, Insular and Alaska
Native Affairs will come to order.
The Subcommittee is meeting today to hear testimony on
comparing 21st century trust land acquisition with the intent
of the 73rd Congress and Section 5 of the Indian Reorganization
Act.
Under Committee Rule 4(f) any oral opening statements at
hearings are limited to the Chairman, the Ranking Minority
Member, and the Vice Chair. This will allow us to hear from our
witnesses sooner, and help Members keep to their schedules.
Therefore, I ask unanimous consent that all other Members'
opening statements be made part of the hearing record if they
are submitted to the Subcommittee Clerk by 5:00 p.m. today.
Without objection, so ordered.
STATEMENT OF THE HON. DOUG LaMALFA, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF CALIFORNIA
Mr. LaMalfa. The purpose of today's hearing is to discuss
how to resolve Carcieri v. Salazar, and how to address issues
concerning Federal fee-to-trust policy. Carcieri was a lawsuit
disputing the scope of the power of the Secretary of the
Interior to take land into trust for tribes under the Indian
Reorganization Act of 1934, or the IRA.
Resolved by the Supreme Court in 2009, a majority of the
Justices held that the Secretary of the Interior may put land
into trust for tribes under the IRA only if the tribes were
under Federal jurisdiction in 1934. This has called into
question the status of lands previously taken in trust for
tribes affected by the court's opinion, and it brings up issues
relating to the Secretary's broad power under this Act.
Moreover, the meaning of ``under Federal jurisdiction'' was not
precisely defined by the court.
Trust land is critical for tribes to exercise their unique
powers of self-government, making resolution of Carcieri
critical in order to provide certainty for them as they plan
their tribal economies and govern their lands and members.
To begin the discussion, we will hear testimony
representing a variety of perspectives, beginning with the
Department of the Interior.
We will also hear from a witness representing a number of
federally recognized tribes who say the administrative
procedures the Secretary imposes on the acquisition of land in
trust are very rigorous, and that changes to the IRA are not
justified.
We will also hear from a mayor of a town in Connecticut
that has had to deal with the placement of lands in trust in
his jurisdiction.
And finally, we will hear from a private attorney who has
testified before the Committee in the past, and brings his own
perspective on what Congress intended when it wrote the IRA.
It is hoped that after today we can consult with tribes and
other interested parties on how best to resolve the issues
posed in the Carcieri v. Salazar case.
[The prepared statement of Mr. LaMalfa follows:]
Prepared Statement of the Hon. Doug LaMalfa, Chairman, Subcommittee on
Indian, Insular and Alaska Native Affairs
The purpose of today's hearing is to discuss how to resolve
Carcieri v. Salazar and how to address issues concerning Federal fee-
to-trust policy.
Carcieri was a lawsuit disputing the scope of the power of the
Secretary of the Interior to take land in trust for tribes under the
Indian Reorganization Act of 1934, or ``IRA.''
Resolved by the Supreme Court in 2009, a majority of the Justices
held that the Secretary of the Interior may put land in trust for
tribes under the IRA only if the tribes were ``under Federal
jurisdiction'' in 1934.
This has called into question the status of lands previously taken
in trust for tribes affected by the Court's opinion, and it brings up
issues relating to the Secretary's broad power under this Act.
Moreover, the meaning of ``under Federal jurisdiction'' was not
precisely defined by the Court.
Trust land is critical for tribes to exercise their unique powers
of self-government, making resolution of Carcieri critical in order to
provide certainty for them as they plan their tribal economies and
govern their lands and members.
To begin the discussion, we'll hear testimony representing a
variety of perspectives, beginning with the Department of the Interior.
We'll also hear from a witness representing a number of federally
recognized tribes, who say the administrative procedures the Secretary
imposes on the acquisition of land in trust are very rigorous, and that
changes to the IRA are not justified.
We'll also hear from a mayor of a town in Connecticut that has had
to deal with the placement of lands in trust in its jurisdiction, and
we'll finally hear from a private attorney who has testified before the
Committee in the past, and brings his own perspective on what Congress
intended when it wrote the IRA.
It is hoped that after today, we can consult with tribes and other
interested parties on determining how best to resolve the issues posed
in Carcieri v. Salazar.
______
Mr. LaMalfa. With that, I would like to now recognize our
Ranking Minority Member, Mrs. Torres, for her statement.
STATEMENT OF THE HON. NORMA J. TORRES, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF CALIFORNIA
Mrs. Torres. Thank you, and good morning, Mr. Chairman. And
good morning to everyone that has joined us today.
Throughout our Nation's history, tribes have suffered abuse
and ongoing indignity at the hands of the Federal Government.
They have had their lands taken away, communities ripped apart,
their culture and tribal identity stamped out.
The shameful allotment and assimilation periods of the late
19th and 20th century was nothing short of a disastrous time
for Native people, leading to extreme poverty, poor health
conditions, horrendous living conditions, not to mention
addictions.
In 1934, however, we thankfully changed course. And through
the Indian Reorganization Act we began to right some of those
wrongs by putting a stop to the allotment of Indian lands and
placing lands into trust on behalf of tribes. While we can
never fully make up for what took place, there is no question
that the return of land to its rightful owners', the tribes,
was and continues to be critical to restoring the tribal way of
life.
Despite the progress that the IRA accomplished, it still
has returned less than 10 percent of the roughly 90 million
acres that were taken from tribes. Some claim the process was a
free-for-all, but the numbers just don't back that up. And this
certainly is not about casinos, given that the majority of
applications aren't for gaming purposes.
Tribes need this land for self-sustainability, to create
economic development opportunities, for housing, for hospitals
and clinics, and for elder care facilities. This land is needed
to ensure the well-being of the people, to preserve their
culture, and to pass it down to future generations. This is why
the Carcieri decision has been so troubling in Indian Country.
That decision unraveled 75 years of agency practice, and in
the process, it has created a two-tiered system for Federal-
tribal relationships. Tribes deserve certainty and clarity in
dealing with the Federal Government, but because of the
Carcieri decision, this is not possible.
This could easily be remedied by passage of a clean
Carcieri fix, such as H.R. 130, introduced by our colleague
from Oklahoma, Mr. Cole. This bipartisan bill would amend the
language of the IRA, and re-establish the Secretary's authority
to take land into trust for all tribes, simply reaffirming what
the drafters of the IRA intended all along.
Mr. Chairman, through this process we must ensure that
tribes are treated with the fairness and dignity they
rightfully deserve. We must ensure that their input is heard in
the process, and that land acquisition for tribes remains a
priority for our Nation. Through our long friendship and
relationship, I know that you are willing to work together to
do right by our tribal communities.
I want to thank you and I want to thank the witnesses for
being here today. I yield back.
[The prepared statement of Mrs. Torres follows:]
Prepared Statement of the Hon. Norma J. Torres, Ranking Member,
Subcommittee on Indian, Insular and Alaska Native Affairs
Thank you, Mr. Chairman.
Throughout our Nation's history, tribes have suffered abuse and
indignity at the hands of the Federal Government. They had their lands
taken away, communities ripped apart, and culture and tribal identity
stamped out.
The shameful Allotment and Assimilation periods of the late 19th
and 20th century was nothing short of disastrous for Native peoples,
leading to extreme poverty, poor health conditions, and horrendous
living conditions.
In 1934, however, we thankfully changed course and the Indian
Reorganization Act at least helped to right some of those wrongs by
putting a stop to the allotment of Indian lands and placing lands into
trust for tribes.
While we can never fully make up for what took place, there is no
question that the return of land to the tribes was and continues to be
critical to restoring the tribal way of life. Despite the progress that
the IRA accomplished, it still has only returned less than 10 percent
of the roughly 90 million acres that were taken from tribes.
While some claim the process was a free-for-all, the numbers just
don't back that up, and this most certainly isn't about casinos, given
that the majority of applications aren't for gaming purposes.
This is land for other economic development opportunities, for
housing, for hospitals and clinics, and elder care facilities. This is
land to ensure the well-being of their people and to pass down to
future generations.
This is why the Carcieri decision has been so troubling in Indian
Country. That decision unwound 75 years of agency practice, and in the
process it has created a two-tiered system for Federal-tribal
relationships.
Tribes deserve certainty and clarity in their dealings with the
Federal Government regarding these trust lands, but because of the
Carcieri decision this is not possible.
This could easily be remedied by passage of a ``clean'' Carcieri
fix, such as H.R. 130, introduced by our colleague from Oklahoma, Mr.
Cole.
This bipartisan bill would amend the language of the IRA to re-
establish the Secretary's authority to take land into trust for all
tribes, simply reaffirming what the drafters of the IRA intended all
along.
Mr. Chairman, we must ensure that tribes are treated with the
fairness and dignity they rightfully deserve, that their input is heard
in the process, and that land acquisition for tribes remains a priority
for our Nation. From our long relationship, I know you are willing to
work together to do right by our tribal communities.
I want to thank all our witnesses for taking the time to share
their thoughts and opinions on these important matters, and I yield
back the reminder of my time.
______
Mr. LaMalfa. Thank you. I am recognizing we have our
Ranking Member of the Full Committee, Mr. Grijalva, here.
Do you have a statement you would like to make?
Mr. Grijalva. No, thank you, Mr. Chair.
Mr. LaMalfa. OK, all right. Thank you. I will now introduce
our witnesses here today.
We have Mr. James Cason, who is Acting Deputy Secretary of
the U.S. Department of the Interior, thanks for being here once
again; the Honorable Kirk Francis, President of the United
South and Eastern Tribes; the Honorable Fred B. Allyn III,
Mayor of the Town of Ledyard; and Mr. Donald Mitchell, Attorney
at Law. Thank you for joining us.
I will remind the witnesses that under Committee Rules they
must limit their oral statements to 5 minutes. Their entire
statement will appear in the hearing record.
Our microphones are not automatic. You know the drill.
Press the button for on. When you begin your testimony, you
will have a green light for 4 minutes, a yellow light for 1
minute, and then a red light, you know what that means. I will
ask you to complete your statement at that point.
I will also allow the entire panel to testify before we
will start questioning the witnesses.
The Chair will now recognize Mr. Cason to testify for 5
minutes.
STATEMENT OF JAMES CASON, ACTING DEPUTY SECRETARY, U.S.
DEPARTMENT OF THE INTERIOR, WASHINGTON, DC
Mr. Cason. Thank you, Mr. Chairman. Chairman LaMalfa,
Ranking Member Torres, and members of the Subcommittee, my name
is Jim Cason. I am currently serving as the Acting Deputy
Secretary for the Department of the Interior. Thank you for the
opportunity to testify before this Committee on the
Department's role on the acquisition of trust lands for
federally recognized tribes across the country.
Interior believes the process of trust land acquisition for
on-reservation parcels is an important and routine matter that
creates economic drivers for tribes. However, taking off-
reservation lands into trust may pose complications for the
Department, as well as some members of the public, particularly
when fee-to-trust applications are for gaming purposes.
Off-reservation lands that are required through the fee-to-
trust process have the potential to create uncertainties in
local communities, as well as complicate land use planning
efforts and the provision of services. As a result, the
Department's off-reservation trust regulations require
particular attention to issues of jurisdiction and taxation.
Taking off-reservation land into trust can be further
complicated by the prospect of Indian gaming. Such acquisitions
raise the possibility that a tribe may initiate gaming
operations once the land is held in trust by the Federal
Government, even though that was not the original plan. Local
communities that may have supported land into trust may not
support gaming, and this creates an entirely new predicament,
requiring a new public input process.
It is our understanding that Interior generally lacks the
authority to restrict the use of trust lands, as it would be an
infringement upon tribal sovereignty and self government. This
is why Congress will play a pivotal role in shaping the path
the Department takes in approving future gaming operations.
Congress has the sole authority to evaluate and amend
existing statutes and determine if the existing fee-to-trust
statutes need to be constrained or expanded. The Department
welcomes the opportunity to work with the Committee to discuss
Congress' recommendations for reasonable policies, and to
modernize the broader land-into-trust process.
Thank you for your time; I am pleased to answer questions
that you may have. Thanks.
[The prepared statement of Mr. Cason follows:]
Prepared Statement of James Cason, Acting Deputy Secretary, U.S.
Department of the Interior
Chairman LaMalfa, Ranking Member Torres, and members of the
Subcommittee, my name is Jim Cason. I am currently serving as the
Acting Deputy Secretary of the Department of the Interior (Department
or Interior). Thank you for the opportunity to testify before this
Committee on the Department's role in the acquisition of trust lands
for federally recognized tribes across the country.
The Indian Reorganization Act (IRA) [48 Stat. 984, 25 U.S.C.
Sec. 5108 et seq. (June 18, 1934)] provides the Secretary of the
Department of the Interior with the discretion to acquire trust title
to land or interests in land for tribes. Congress may also authorize
the Secretary to acquire title to particular land and interests in land
into trust under statutes other than the IRA.
The Secretary bases the decision to make a trust acquisition on the
evaluation of the criteria set forth in Title 25 Code of Federal
Regulations (CFR) Part 151, which derive from the Department's
interpretation of the IRA and its purposes. With the exception of
certain mandatory acquisitions, the decision to acquire title requires
approval of the Secretary or his designee.
Fee-to-trust applications involve the acquisition in trust of whole
or undivided interests in land held in fee. On-reservation
Discretionary Trust Acquisitions are governed by 25 CFR Sec. 151.10,
Off-reservation Discretionary Trust Acquisitions are governed by 25 CFR
Sec. 151.11, and Mandatory Trust Acquisitions are outlined in
Department policy. The Bureau of Indian Affairs (BIA) staff follow
procedures outlined in Interior-BIA's ``Acquisition of Title to Land
Held in Fee or Restricted Fee Status Handbook'' to implement the
regulations governing Fee-to-Trust transactions.
When the BIA receives a complete Fee-to-Trust application, the BIA
Regional Office with jurisdiction over the land issues a ``Notice of
(Non-Gaming) Land Acquisition Application'' to obtain state and local
government comments to the application. Regional offices then follow
the Fee-to-Trust Handbook by providing a period of 30 days for
collection of comments to the proposed transaction. The BIA forwards
all comments to the Applicant, who then has 30 days to provide the BIA
a response. However, the Applicant may decline to provide responses to
comments and request the Secretary issue a decision.
Review of the Fee-to-Trust applications requires BIA to consider
the type of environmental analysis appropriate for the property and its
intended use. Applications may receive review under a Categorical
Exclusion, Environmental Assessment, or Environmental Impact Statement.
The Department plays a critical role in the fee to trust process as
a means to restore and bolster self-determination and sovereignty in
Indian Country. The benefits to tribes are twofold. First, restoration
of tribal land bases reconnects fractionated interests and provides
protections for important tribal cultures, traditions, and histories.
Second, the connectivity that occurs when land is placed into trust
enables tribes to foster economic potential. From energy development to
agriculture, trust acquisitions provide tribes the flexibility to
negotiate leases, create business opportunities, and identify the best
possible means to use and sell available natural resources.
The examples of successful fee to trust acquisitions, particularly
on-reservation, are extensive. For instance, the Rosebud Sioux Tribe's
successfully brought into trust the Mustang Meadows Property, totaling
18,761.60 acres, on October 23, 2002. The land is now used for
agricultural and farm pasture purposes and managed by the Tribe's
Tribal Land Enterprise. The Reno-Sparks Indian Colony of Nevada (RSIC)
was also extremely successful with its on-reservation Fee-to-Trust
acquisition for economic development projects. RSIC now has several
major car dealerships and a Walmart Superstore on its lands in Reno and
Sparks, Nevada. It also has a modern tribal health center on the land
to provide services to its members and other urban Indians.
Interior believes the process of trust land acquisition for parcels
identified on-reservation is an important and routine matter that
results in the reconnection of critical land bases, thereby creating
economic drivers for tribes. We note, however, that taking off-
reservation lands into trust may pose complications for the Department
as well as some members of the public, particularly when the Fee-to-
Trust application is for gaming purposes, although the Department
receives only a minor percentage of applications for gaming versus
other applications.
Overall, land into trust acquisitions are uncontested transfers
that often have local support. Off-reservation lands that are acquired
through the Fee-to-Trust process have the potential to raise
jurisdictional uncertainties in local communities, as well as
complicating land-use planning and the provision of services. Moreover,
non-Indian communities may experience tax revenue consequences
especially if payments in lieu of taxes are not agreed upon.
Ultimately, the Department has received comments that taking land
located off-reservation into trust can introduce economic and other
conditions that can have significant impacts on the immediate and
surrounding communities. As a result, the Department's off-reservation
trust regulations require particular attention to issues of
jurisdiction and taxation.
Taking off-reservation land into trust can be further complicated
by the prospect of Indian gaming. This matter, which I worked on during
my previous tenure at the Department, continues to complicate and
isolate some communities near these facilities. Such acquisitions also
raise the possibility that a tribe may initiate gaming operations once
the land is held in trust by the Federal Government, even though that
was not in the original plan. If gaming is initiated once the land is
held in trust by the Federal Government, it is regulated by the
National Indian Gaming Commission under the Indian Gaming Regulatory
Act. Local communities that may have supported land into trust may not
support gaming, and this could create an entirely new predicament for
them as they would need to engage in a new public input process.
This possibility has prompted questions regarding what role the
Department could play in establishing land use restrictions to halt
certain lands from being used for gaming. It is our understanding that
Interior generally lacks the authority to restrict the use of trust
lands as this would be an infringement upon tribal sovereignty and
self-government. Therefore, Congress will play a pivotal role in
shaping the path the Department takes for approving future gaming
decisions.
Considering these challenges, Interior acknowledges the original
legislation intended to address land into trust matters does not always
meet the 21st century challenges we face. Congress, as the trust
settlor for all Indian Affairs matters, has the sole authority to
evaluate and amend existing statutes, including the Indian
Reorganization Act, to determine if the existing Fee-to-Trust statutes
need to be constrained or expanded. The Department welcomes the
opportunity to work with the Committee to discuss Congress'
recommendations for reasonable policies to modernize the broader land
into trust process.
This concludes my written statement. Thank you for your time, and I
am pleased to answer any questions you may have.
______
Questions Submitted for the Record by Chairman Rob Bishop to Acting
Deputy Secretary James Cason, U.S. Department of the Interior
Mr. Cason did not submit responses to the Committee by the appropriate
deadline for inclusion in the printed record.
Question 1. Based on the Department's actions in the Mashpee Tribe
matter, it is clear that the current Administration has problems with
the approach used by the Obama administration in using Section 5 of the
IRA, as interpreted by the Supreme Court in the Carcieri decision, to
acquire land in trust for the Mashpee Tribe. What steps will you take
to bring the principles that govern trust land acquisition into line
with that decision, including for decisions made under the previous
administration?
Question 2. Would you like Congress to establish clear standards on
how the Secretary's authority under Section 5 of the IRA should be
applied?
Question 3. Does the Department plan to revise the Department's
trust land regulations under 25 CFR Part 151? If so, what type of
revisions does the Department plan to make?
Question 4. What criteria does the Department use to determine a
tribe's need for additional trust land? Please provide examples of
Departmental findings of insufficient need. What criteria does the
Department use to determine that tax and jurisdictional impacts to
local governments are too great to justify a trust acquisition? Please
provide examples.
Question 5. In what ways is Solicitor's M-Opinion numbered M-37029
deficient, given your testimony that its criteria are too ``loose,'' it
does not respond to the Carcieri decision, and it has no distinguishing
effect among tribes? Given this testimony, does the Department intend
to replace the M-Opinion?
Question 6. What is the Department's authority to take land out of
trust to correct an error in the decision to acquire land in trust?
What is the mechanism or instrument to do so?
Question 7. Given your testimony that the Department may address
``dual taxation'' in revisions to the Indian Trader regulations, what
is the Secretary's authority to pre-empt state and local taxation of
non-Indian economic activities on Indian lands by regulation? Can the
Secretary by regulation define which government (tribal or non-tribal)
may exercise authority over anyone engaged in economic activities on
Indian lands?
______
Mr. LaMalfa. All right. Thank you, Mr. Cason.
The Chair now recognizes Mr. Francis to testify for 5
minutes.
STATEMENT OF THE HON. KIRK FRANCIS, PRESIDENT, UNITED SOUTH AND
EASTERN TRIBES, WASHINGTON, DC
Mr. Francis. Good morning Chairman, Ranking Member, members
of the Subcommittee. Thank you for this opportunity to provide
comments on the intent of the Indian Reorganization Act. I am
here today in my capacity as President of the United South and
Eastern Tribes' Sovereignty Protection Fund, an intertribal
organization representing 26 federally recognized tribal
nations from Texas across to Florida and up to Maine. I also
serve as Chief of the Penobscot Nation.
The Department of the Interior's implementation of its
trust acquisition authority pursuant to the Indian
Reorganization Act is fully consistent with the intent of the
73rd Congress. However, the goals of the IRA remain
unfulfilled. In the decades since the IRA's 1934 passage, the
Department has acted consistent with the law to restore tribal
homelands. But to date, only about 10 percent of the tribal
lands lost have been restored.
The IRA was enacted in pursuit of policy goals that are
still relevant today. Primary among these is to rebuild tribal
nations' land bases following nearly 200 years of systematic
dispossession by the United States, so that we may exercise
jurisdiction over our land and rebuild our economies for the
benefit of our people. When this happens, surrounding
communities, and the United States as a whole, benefit from the
economic prosperity generated.
In 1491, all 2.3 billion acres of what would become the
United States was Indian Country. By 1887, tribal nation land
holdings had fallen to 138 million acres. That year, Congress
passed the General Allotment Act, which further reduced land
holdings to 48 million acres by 1934, a loss of 90 million
acres. And that does not account for the countless millions of
acres lost prior to 1887 under different state and Federal
actions.
This loss of land resulted in tribal nations lacking the
necessary jurisdiction and economic resources to care for their
citizens, and left them heavily dependent on the Federal
Government. According to a 1934 House Report, Congress' goal in
enacting the IRA was to rehabilitate the Indian's economic
life, and to give him a chance to develop the initiative
destroyed by a century of oppression and paternalism. Without
this law, you would not see the progress that tribes have made
in recent decades.
We note that this Subcommittee's priorities include
economic development, infrastructure, energy dependence for
tribal nations, none of which can happen without trust land and
certainty in its status.
My own tribe, federally recognized in 1976, thanks the 73rd
Congress and every Congress after that for their practice. We
have been able to obtain over 120,000 acres of our homeland to
develop alternative energy projects and create housing
opportunities for our citizens. It has been invaluable.
The IRA responded to this devastation of the Allotment Act
and other past policies, signaling a dramatic shift in Federal
Indian policy. Congress did not undertake the enactment of the
IRA lightly. The IRA's enactment was preceded by consultation
with tribal nations, straw votes among tribal nation
citizenships, extensive public debate, and lengthy hearings
before Congress.
Today, the Department follows a very rigorous process,
requiring 16 distinct and transparent steps before land is
taken into trust. This process includes full consideration of
local interests before a decision is made. For off-reservation
acquisitions, the further the land being acquired is from the
reservation, the greater the weight the Department must give to
concerns raised by non-Indian interests.
Thus, legitimate local and other considerations can be
addressed through the administrative process. They do not
require statutory changes. And any suggested revisions must be
subject to extensive tribal consultation and dialogue.
It is important to note that this law was enacted for the
benefit of tribal nations, and concerns only the relationship
between the Federal Government and tribal nations. With all due
respect to my fellow panelists, other interests are not part of
this sacred relationship.
The only appropriate change to the IRA at this time is the
one tribal nations have been requesting for 8 years, one that
reaffirms the Secretary's authority to take land into trust for
all federally recognized tribal nations, and affirms the trust
status of lands already in trust. Representative Cole has
introduced legislation addressing this fix. This, and not
unrelated issues, should be the focus of the Subcommittee
related to the IRA.
Finally, because the issues being considered here today
have potential impact on all 567 tribal nations, I urge you all
to engage with Indian Country in a deep and meaningful dialogue
on land into trust prior to taking any legislative or
administrative actions.
I thank the Subcommittee for taking the time to conduct
this hearing. The importance of the IRA and its trust land
provisions to tribal nations today cannot be overstated. I am
happy to answer any questions. Thank you again.
[The prepared statement of Mr. Francis follows:]
Prepared Statement of the Hon. Kirk Francis, United South and Eastern
Tribes Sovereignty Protection Fund
Chairman LaMalfa, Vice-Chairman Gonzalez-Colon, Ranking Member
Torres, and members of the Subcommittee, thank you for this opportunity
to provide comments on the topic of ``Comparing 21st Century Trust Land
Acquisition with the Intent of the 73rd Congress in Section 5 of the
Indian Reorganization Act.''
The United South and Eastern Tribes Sovereignty Protection Fund
(USET SPF) is an inter-tribal organization representing 26 federally
recognized Tribal Nations from Texas across to Florida and up to
Maine.\1\ Due to their location in the south and eastern regions of the
United States, the USET SPF-member Tribal Nations have the longest
continuous direct relationship with the U.S. government, dating back to
some of the earliest treaties. One great consequence of this
relationship has been the steady loss of Tribal Nations' land. Indeed,
USET SPF-member Tribal Nations retain only small remnants of their
original homelands today. As a result, the trust land acquisition
authority of the Indian Reorganization Act (IRA) is of particular
significance and importance to them.
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\1\ USET SPF member Tribal Nations include the following: Alabama-
Coushatta Tribe of Texas (TX), Aroostook Band of Micmac Indians (ME),
Catawba Indian Nation (SC), Cayuga Nation (NY), Chitimacha Tribe of
Louisiana (LA), Coushatta Tribe of Louisiana (LA), Eastern Band of
Cherokee Indians (NC), Houlton Band of Maliseet Indians (ME), Jena Band
of Choctaw Indians (LA), Mashantucket Pequot Indian Tribe (CT), Mashpee
Wampanoag Tribe (MA), Miccosukee Tribe of Indians of Florida (FL),
Mississippi Band of Choctaw Indians (MS), Mohegan Tribe of Indians of
Connecticut (CT), Narragansett Indian Tribe (RI), Oneida Indian Nation
(NY), Passamaquoddy Tribe at Indian Township (ME), Passamaquoddy Tribe
at Pleasant Point (ME), Penobscot Indian Nation (ME), Poarch Band of
Creek Indians (AL), Saint Regis Mohawk Tribe (NY), Seminole Tribe of
Florida (FL), Seneca Nation of Indians (NY), Shinnecock Indian Nation
(NY), Tunica-Biloxi Tribe of Louisiana (LA), and Wampanoag Tribe of Gay
Head (Aquinnah) (MA).
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The Department of the Interior (Department) implements the IRA's
Section 5 trust land acquisition authority in accordance with the
intent of the 73rd Congress and within the limits defined by the
Supreme Court. The 73rd Congress' purposes of facilitating Tribal
Nations' self-governance and self-sufficiency in enacting the IRA's
trust land acquisition authority are still relevant and necessary
today. Further, the Department's implementation of its IRA trust land
acquisition authority complies with the parameters and purposes of the
IRA, including adequately considering the impacts on local interests
and properly complying with the Supreme Court's decision in Cariceri v.
Salazar. Therefore, USET SPF unequivocally opposes any update to the
IRA's Section 5 trust acquisition authority that would change existing
standards or criteria, amounting to an attack on the continued vitality
of the IRA's trust land acquisition authority, and it believes
administrative procedures rather than statutory procedures should
implement its enduring purposes. The only appropriate change to the IRA
at this time would be to amend Section 19's first definition of
``Indian'' to assure that all Tribal Nations can take land into trust
on an equal basis and, thus, correct the inequity resulting from the
Caricieri decision.
The History and Enduring Purposes of the IRA
In 1977, after 2 years of study, Representative Young, along with
his fellow commissioners on the American Indian Policy Review
Commission, submitted to Congress a final report on the status of
Indian people in America with recommendations for changes in Federal
Indian law and policy. In its opening pages, the Commission wrote: ``To
adequately formulate a future Indian policy it is necessary to
understand the policies of the past.'' \2\ As this Subcommittee now
considers the trust land acquisition authority under the IRA, it is
necessary to look back to the purposes and goals that defined the
content and design of the IRA. Looking back, we find that the IRA was
enacted in furtherance of policy goals that are still applicable today,
and that it was designed to provide powerful tools to address problems
that persist even now. Chief among these is the need to rebuild Tribal
Nation land bases following nearly 200 years of systematic
dispossession, from which Indian Country is still reeling, so that
Tribal Nations may exercise jurisdiction over their land and provide
for their people.
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\2\ American Indian Policy Review Commission, Final Report 3 (1977)
(``It has been the fortune of this Commission to be the first in the
long history of this Nation to listen attentively to the voice of the
Indian rather than the Indian expert. The findings and recommendations
which appear in this report are founded on that Indian voice. It can
only be hoped that this Commission will be seen as a watershed in the
long and often tarnished history of this country's treatment of its
original people. What are the explanations for the circumstances in
which the Indian finds himself today? First and foremost are the
consistently damaging Federal policies of the past--policies which
sought through the first three-quarters of the 19th century to remove
the Indian people from the midst of the European settlers by isolating
them on reservations; and policies which after accomplishing isolation
were then directed toward breaking down their social and governmental
structures and throwing their land, water, timber and mineral resources
open to exploitation by non-Indians. These policies were repudiated by
Congress with passage of the Indian Reorganization Act of 1934, but by
this time severe damage had been done.'').
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The size of the United States is 2.3 billion acres, which was once
all Indian Country. In 1887, within the lifetime of our grandparents,
residual Tribal Nation landholdings, often established by treaty, were
at 138 million acres. That year, Congress passed the General Allotment
Act (GAA),\3\ which further reduced Tribal Nation landholdings to 48
million acres by 1934--a loss of 90 million acres.\4\ Of course, Indian
Country's dramatic loss of land had an inverse effect of providing an
extraordinary gain for non-Indians and the surrounding state, county,
and local jurisdictions, which took control of the land.
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\3\ 25 U.S.C. Sec. Sec. 331 et. seq.
\4\ Cohen's Handbook of Federal Indian Law Sec. 15.07[1][a] (2012
ed.) (citing Readjustment of Indian Affairs: Hearings on H.R. 7902
Before the H. Comm. on Indian Affairs, 73d Cong. 2d Sess. 16 (1934)
(Memorandum of John Collier, Commissioner of Indian Affairs); see also
73rd Cong. Rec. 11726 (Daily ed. June 15, 1934) (Statement by Rep.
Howard).
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The assimilationist policy characterized by the GAA was designed to
break up Tribal Nation landholdings in order to ``put an end to tribal
organization'' and to ``dealings with Indians . . . as tribes.'' \5\ In
the end, this loss of land resulted in Tribal Nations lacking the
necessary jurisdiction and economic resources to care for their people
and left them heavily dependent on the Federal Government. The failure
of the assimilation and allotment policies was thoroughly documented in
the 1928 Meriam Report, which revealed that the vast majority of
Indians were living in extreme poverty and suffered from poor health,
substandard living conditions, and a lack of access to educational or
vocational opportunities.\6\
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\5\ See United States v. Celestine, 215 U.S. 278, 290 (1909).
\6\ Institute for Governmental Research, The Problem of Indian
Administration (Lewis Meriam ed., Johns Hopkins Press 1928).
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The IRA, enacted in 1934, was a specific congressional response to
the impoverishing and limiting effects of the GAA and other past
policies on Tribal Nations and Indian people, and it signaled a
dramatic shift in Federal Indian policy.\7\ Congress did not undertake
enactment of the IRA lightly. The IRA's enactment was preceded by
consultations with Tribal Nations, straw votes among Tribal Nation
citizenships, extensive public debate, and lengthy hearings before
Congress.\8\ For this reason, we have extensive legislative history
shedding light on the 73rd Congress' intentions in enacting the IRA.
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\7\ 25 U.S.C. Sec. Sec. 5101 et seq.
\8\ Readjustment of Indian Affairs: Hearings on H.R. 7902 Before H.
Comm. on Indian Affairs, 73d Cong. 2d Sess. (1934); To Grant Indians
Living Under Federal Tutelage the Freedom to Organize for Purposes of
Local Self-Government and Economic Enterprise: Hearings on S. 2755 and
S. 3645, 73d Cong. 2d Sess. (1934). See also S. Rep. No. 73-1080
(1934); H.R. Rep. No. 73-1804 (1934); H.R. Rep. No. 73-2049 (1934).
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The IRA's main purpose was and is to facilitate Tribal Nation self-
governance, self-determination, and self-sufficiency in order to
improve the lives of Indian people. According to the 73rd Congress, its
overarching goal in enacting the IRA was ``to rehabilitate the Indian's
economic life and to give him a chance to develop the initiative
destroyed by a century of oppression and paternalism.'' \9\ The Supreme
Court later explained that the IRA was designed with the ``over-riding
purpose'' of ``establish[ing] machinery whereby Indian tribes would be
able to assume a greater degree of self-government, both politically
and economically.'' \10\
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\9\ H.R. Rep. No. 1804, 73d Cong., 2d Sess., 6 (1934).
\10\ Morton v. Mancari, 417 U.S. 535, 542 (1974); see also
Mescalero Apache Tribe v. Jones, 411 U.S. 145, 151-52 (1973) (quoting
H.R. Rep. No. 1804, 73d Cong., 2d Sess., 6 (1934)).
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A central feature of the IRA intended to strengthen Tribal Nation
self-government and self-sufficiency was a set of provisions aimed at
protecting and rebuilding Tribal Nations' land bases. In Section 5, it
authorized the Department ``to acquire, through purchase,
relinquishment, gift, exchange, or assignment, any interest in lands,
water rights, or surface rights to lands, within or without existing
reservations, including trust or otherwise restricted allotments,
whether the allottee be living or deceased, for the purpose of
providing land for Indians.'' \11\ The IRA provided that title to such
acquired lands ``shall be taken in the name of the United States in
trust for the Indian Tribe or individual Indian for which the land is
acquired, and such lands or rights shall be exempt from state and local
taxation.'' \12\ In order to maintain and protect lands already held
for Tribal Nations, the IRA also prohibited any further allotment of
reservation lands,\13\ extended indefinitely the periods of trust or
restrictions on individual Indians' trust lands,\14\ provided for the
restoration of surplus unallotted lands to Tribal Nation ownership,\15\
and prohibited any transfer of restricted Tribal Nations' or individual
Indians' lands, with limited exceptions, other than to the Tribal
Nation or by inheritance.\16\
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\11\ Id. at Sec. 5 (codified at 25 U.S.C. Sec. 5108).
\12\ Id.
\13\ Id. at Sec. 1 (codified at 25 U.S.C. Sec. 5101).
\14\ Id. at Sec. 2 (codified at 25 U.S.C. Sec. 5102).
\15\ Id. at Sec. 3(a) (codified at 25 U.S.C. Sec. 5103(a)).
\16\ Id. at Sec. 4 (codified at 25 U.S.C. Sec. 5107).
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Regaining a land base is essential to the exercise of Tribal self-
government. When the Federal Government holds land in trust for a
Tribal Nation, the Tribal Nation is able to exercise jurisdiction over
the land, including over individuals' actions and over taxation.\17\
This jurisdiction allows the Tribal Nation to protect its people and to
generate economic growth, which in turn encourages the flourishing of
the Tribal Nation's cultural practices. United States courts have
determined that, even when a Tribal Nation uses its own funds to
purchase title to land, the Tribal Nation may not be permitted to
exercise jurisdiction over the land without something more, often
taking the form of trust acquisition. Thus, the IRA provides Tribal
Nations an avenue to gain jurisdiction over their land. Jurisdiction
over territory is a bedrock principle of sovereignty, and Tribal
Nations must exercise such jurisdiction in order to fully implement the
inherent sovereignty they possess. Just as states exercise jurisdiction
over their land, Tribal Nations must also exercise jurisdiction,
thereby promoting government fairness and parity between state
governments and Tribal Nation governments.
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\17\ See 18 U.S.C. Sec. 1151 (defining ``Indian Country'').
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Congressional representatives of the 73rd Congress who debated and
discussed enactment of the IRA uniformly understood that one of the
main purposes of the IRA was to provide a mechanism whereby the
Department could acquire land into trust for Tribal Nations.\18\
Congress designed the IRA not only to ``prevent further loss of land''
but also to gradually acquire additional land, as congressional
representatives understood ``prevention is not enough'' to undo the
problems caused by the GAA.\19\ The Supreme Court later emphasized that
Congress understood when enacting the IRA that the goal of self-
government for Tribal Nations could not be met without ``put[ting] a
halt to the loss of tribal lands.'' \20\
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\18\ See e.g., H.R. 7902, Rep. No. 1804, at 6, 73d Cong. 2d sess.
(May 28, 1934) (Submitted by Rep. Howard); 73rd Cong. Rec. 11125 (June
12, 1934) (Statement of Sen. Thomas); 73rd Cong. Rec. 9268 (May 22,
1934) (Statement of Rep. Hastings).
\19\ See 73rd Cong. Rec. 11727 (June 15, 1934) (Statement of Rep.
Howard); see also To Grant To Indians Living Under Federal Tutelage The
Freedom To Organization For Purposes Of Local Self-Government And
Economic Enterprise, 73rd Cong. 59 (1934) (Statement by Commissioner
Collier).
\20\ Mescalero Apache Tribe v. Jones, 411 U.S. 145, 151 (1973).
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Representatives of the 73rd Congress understood Tribal Nations'
need for land in order to facilitate economic self-sufficiency and thus
self-government. They noted that, in 1887, Indians were largely self-
supporting, but in 1934, because the ``Indian estate ha[d] dwindled,''
many were ``paupers'' reliant on the Federal Government.\21\ They
understood that, through a ``workable plan of land management and
development,'' Tribal Nations could ``achieve economic independence.''
\22\
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\21\ 73rd Cong. Rec. 11128 (June 15, 1934) (Statement by Rep.
Howard); See also H.R. 3645 Report No. 1080, at 6 (1934) (Submitted by
Rep. Howard); 73rd Cong. Rec. 11123 (June 12, 1934) (Statement of Sen.
Wheeler); 73rd Cong. Rec. 11125 (June 12, 1934) (Statement of Rep.
Thomas).
\22\ To Grant To Indians Living Under Federal Tutelage The Freedom
To Organization For Purposes Of Local Self-Government And Economic
Enterprise, 73rd Cong. 21 (1934) (Statement by Commissioner Collier).
In a memorandum to Congress upon the consideration of the IRA, its
primary architect, Commissioner of Indian Affairs John Collier,
recommended that the new Federal Indian policy include provisions for
the consolidation and reacquisition of Tribal Nations' lands. Regarding
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the effects of the GAA, he wrote:
Through sales by the Government of the fictitiously designated
`surplus' lands; \23\ through sales by allottees after the
trust period had ended or had been terminated by administrative
act; and through sales by the Government of heirship land,
virtually mandatory under the allotment act: Through these
three methods, the total of Indian landholdings has been cut
from 138,000,000 acres in 1887 to 48,000,000 in 1934.
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\23\ It did not escape Commissioner Collier's attention that much
of the land lost through the GAA had been specifically reserved to
Tribal Nations by treaty. Readjustment of Indian Affairs: Hearings on
H.R. 7902 Before the H. Comm. on Indian Affairs, 73d Cong. 2d Sess. 32
(1934) (Memorandum of John Collier, Commissioner of Indian Affairs).
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. . .
Furthermore, that part of the allotted lands which has been
lost is the most valuable part. Of the residual lands, taking
all Indian-owned lands into account, nearly one-half, or nearly
20,000,000 acres, are desert or semidesert lands.
. . .
A yet more disheartening picture will immediately follow the
above statement. For equally important with the outright loss
of land, is the effect of the allotment system in making such
lands as remain in Indian ownership unusable.\24\
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\24\ Id. at 17.
In short, Commissioner Collier correctly concluded that the
dispossession and fractionation of Tribal Nations' and individual
Indians' landholdings made it nearly impossible for Indian people to
make a living for themselves. He identified a direct connection between
the loss of a stable land base and the failure of Indian people to
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achieve social and economic security and self-sufficiency.
Those advocating for passage of the IRA to representatives of the
73rd Congress also understood that one of the benefits of strengthened
Tribal Nation self-sufficiency and self-government, as facilitated
through acquisition of land, is less reliance on the Federal Government
and reduced bureaucratic oversight. This leads to corresponding
benefits to the Federal Government such as decreased administrative
costs and more effective implementation of its trust
responsibilities.\25\ For example, Commissioner Collier noted the
increased administrative costs to the government under the GAA era:
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\25\ It is important to note that the IRA in no way reduces the
Federal Government's trust responsibilities to Tribal Nations, but
rather the IRA's goal of reduced Tribal Nation reliance on the Federal
Government is intended to strengthen the Federal Government's ability
to fulfill these trust responsibilities.
During this time, when Indian wealth has been shrinking and
Indian life has been diminishing, the costs of Indian
administration in the identical areas have been increasing. The
complications of bureaucratic management have grown steadily
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greater.
. . .
The approximately one-third of the Indians who as yet are
outside the allotment system are not losing their property; and
generally they are increasing in industry and are rising, not
falling, in the social scale. The costs of Indian
administration are markedly lower in these unalloted areas.\26\
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\26\ Readjustment of Indian Affairs: Hearings on H.R. 7902 Before
the H. Comm. on Indian Affairs, 73d Cong. 2d Sess. 16 (1934)
(Memorandum of John Collier, Commissioner of Indian Affairs).
Representatives of the 73rd Congress were well aware of the
possible negative effects on local interests resulting from acquisition
of trust land for Tribal Nations. However, the IRA's trust acquisition
provision was meant to undo past unjust and ineffective Federal Indian
policies that often benefited non-Indians. In enacting the provision,
Congress upheld its trust responsibilities to Tribal Nations by
prioritizing their interests, even if state and local governments may
occasionally experience negative side effects stemming from its
application, including a loss of jurisdiction and tax revenue. Thus,
Congress noted in Section 5 of the IRA that lands acquired into trust
``shall be exempt from state and local taxation''--thereby stating with
clarity its understanding that local interests may be harmed but that
such harm is nonetheless necessary. Representatives of the 73rd
Congress discussed in great detail the resulting removal of trust land
from state taxation, knowingly moving forward with enactment.\27\
However, it should be noted that, when Tribal Nations are able to
exercise jurisdiction over their land, surrounding communities and the
United States as a whole benefit from the economic prosperity
generated.
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\27\ See, e.g., 73rd Cong. Rec. 9268 (Daily ed. May 22, 1934)
(Statement of Rep. Hastings); To Grant To Indians Living Under Federal
Tutelage The Freedom To Organization For Purposes Of Local Self-
Government And Economic Enterprise, 73rd Cong. 28 (1934) (Statement by
Commissioner Collier).
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The IRA's underlying policy goals of improving the social and
economic welfare of Indian people through political and economic
empowerment are no less valid today. Indian people still lag far behind
the overall population in terms of health, education, employment,
income, and other measures of socioeconomic status. The architects of
the IRA within the 73rd Congress recognized that, in order to address
these seemingly intractable problems, Federal Indian policy must
support stronger Tribal Nation self-government and self-sufficiency,
including by protecting and rebuilding Tribal Nations' land bases.
While the goals and intent of the IRA remain valid and relevant in
our current world, in many ways the IRA has yet to be fully
implemented. With respect to land, only a small portion of the 90
million acres that were lost following enactment of the GAA have been
repatriated: less than 10 percent.\28\ And that does not account for
the countless millions of acres lost prior to 1887 under different, but
equally damaging, state and Federal policies and actions.
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\28\ According to the Bureau of Indian Affairs, approximately 56.2
million acres of land are currently held in trust by the United States
for Tribal Nations and individual Indians. Bureau of Indian Affairs
FAQ, What is a Federal Indian reservation?, http://www.bia.gov/FAQs/
(last visited June 5, 2017); see also executive branch Authority to
Acquire Trust Lands for Indian Tribes: Oversight Hearing Before the S.
Comm. on Indian Affairs, 111th Cong. (2009) (testimony of the National
Congress of American Indians); Memorandum from Ken Salazar, Sec'y of
Indian Affairs, to Larry Echohawk, Assistant Sec'y of Indian Affairs
(Jun. 18, 2010) (stating 8 percent of lands restored since enactment of
IRA).
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The tools of the IRA are needed now as much as ever before. Broad,
flexible Federal authority to acquire lands in trust for Tribal Nations
wherever feasible and appropriate is necessary if we are to achieve the
honorable goals set forth by the 73rd Congress in the IRA and as
further reflected in our current policy of supporting Tribal Nations'
self-determination. As Tribal Nations in large part have to use their
own resources to purchase land on the open market before requesting the
Department acquire it into trust, the existing tools of the IRA must
not be further limited. All Tribal Nations, whatever their historical
circumstances, need and deserve a stable, sufficient land base--a
restoration of homelands taken from them under the GAA and previous
Federal Indian policies--to support robust Tribal Nation self-
government and self-sufficiency.
Stringent Administrative Requirements that Consider Effects on Local
Interests and Comply with Carcieri v. Salazar Apply to the Department's
Trust Land Acquisitions
Part 151 is an Extremely Rigorous Administrative Process the Department
uses to Determine whether to Acquire Land into Trust
The Department's administrative process for acquiring land in trust
under the IRA is found at 25 C.F.R. Part 151 (Part 151). Part 151 is an
extremely rigorous administrative process the Department uses to
determine whether to acquire land into trust. Compliance with Part 151
is costly and time consuming for the Department as well as Tribal
Nations, and neither undertakes a trust acquisition application
lightly.
Section 5 of the IRA broadly authorizes the Department to acquire
trust rights to lands within or without existing reservations for the
purpose of providing land for Indians.'' \29\ Reviewing courts have
upheld this congressional grant of authority to the Department as
proper, refusing to find that the grant unconstitutionally lacked
standards.\30\ Despite the relatively broad language and intent of
Section 5, there is no lack of administrative requirements that must be
met before the Department will exercise its discretion to acquire land
in trust on behalf of a Tribal Nation. The Department's Part 151 is
arduous, time-consuming, and extremely rigorous.
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\29\ Pub. L. No. 73-838, Sec. 5 (codified at 25 U.S.C. Sec. 5108).
\30\ See, e.g., Michigan Gaming Opposition v. Kempthorne, 525 F.3d
23, 33 (D.C. Cir. 2008); cert. denied 555 U.S. 1137 (2009); South
Dakota v. U.S. Dep't of Interior, 423 F.3d 790, 796-99 (8th Cir. 2005);
Shivwits Band of Paiute Indians v. Utah, 428 U. S. 966, 974 (10th Cir.
2005), cert. denied, 549 U.S. 809 (2006); Carcieri v. Kempthorne, 497
F.3d 15, (1st Cir. 2007) rev'd on other grounds Carcieri v. Salazar,
555 U.S. 397 (2009); City of Yreka v. Salazar, 2011 U.S. Dist. LEXIS
62818 (E.D. Cal. June 13, 2011); Cent. N.Y. Fair Bus. Ass'n v. Salazar,
2010 WL 786526, at *5 (N.D.N.Y. Mar.1, 2010); Sac & Fox Nation v.
Kempthorne, 2008 U.S. Dist. LEXIS 69599 (D. Kan. Sept. 10, 2008); Sauk
County v. U.S. Dep't of Interior, 2008 U.S. Dist. LEXIS 42552 (W.D.
Wis. May 29, 2008).
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For a Tribal Nation seeking to have land acquired in trust, there
are separate procedures and criteria the Tribal Nation and Department
must comply with for on-reservation discretionary trust acquisitions
(which include land contiguous to a reservation), off-reservation
discretionary trust acquisitions, and trust acquisitions made mandatory
by some other law. Generally, they require the Tribal Nation to provide
and the Department to consider the needs of the Tribal Nation in
acquiring the trust land, the detriments to local interests, and
whether the Department is equipped to handle the additional
responsibilities acquiring the land into trust may bring.\31\ The
Department's ``Fee-to-Trust Handbook'' describing the criteria and
procedures to be used is 98 pages long.\32\
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\31\ 25 C.F.R. Sec. 151.10 (setting out criteria for on-reservation
acquisitions); 25 C.F.R. Sec. 151.11 (setting out additional criteria
for off-reservation acquisitions).
\32\ Dep't of Interior, Acquisition of Title to Land Held in Fee or
Restricted Fee Status (Fee-to-Trust Handbook) (June 28, 2016),
available at https://www.bia.gov/cs/groups/xraca/documents/text/idc1-
024504.pdf.
First, assembling a ``fee-to-trust application'' is no simple
matter. In order to fulfill all of the application requirements, a
Tribal Nation can spend amounts that range into hundreds of thousands
of dollars on expert technical assistance from environmental
consultants, realty experts, lawyers, and other professionals in order
to prove that its application meets the Department's standards and
requirements. All on-reservation discretionary trust acquisition
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applications must include:
A legal land description (conforming to specified
requirements);
A description of the need for acquisition of the property
(either economic development, self-determination, or non-
commercial Indian housing);
A description of the purpose for which the property will
be used;
Legal verification of current ownership; and
An identification of statutory authority for the trust
land acquisition.
If the application is for an off-reservation parcel, it must also
include:
Documentation of the location of the land relative to
state boundaries;
Its distance from the boundaries of the reservation; and
An ``economic plan'' that specifies the anticipated
economic benefits associated with the use of the property,
if it is being acquired for business purposes.
Once the fee-to-trust application is received, including the
documentation listed above, the Tribal Nation must submit additional
documentation and information for processing. This includes a
commitment to issue final title insurance, a qualified Legal
Description Review that concurs with the legal description, and a
Warranty Deed with designation of Bureau of Indian Affairs approval.
In addition to the required application materials, according to the
Department's procedures, applicants are advised that it is
``beneficial'' to provide the following:
Any documentation describing efforts taken to resolve
identified jurisdictional problems and potential conflicts
of land use that may arise as a result of the trust
acquisition;
Any signed cooperative agreements relating to the trust
acquisition, and a description of agreements for
infrastructure development or services (e.g. utilities,
fire protection, or solid waste disposal);
Agreements that have been negotiated with the state or
local government;
A description of those services not required of the state
or local government for the property because they are
provided by the Tribal Nation's government;
Any information in support of the Tribal Nation applicant
being ``under Federal jurisdiction'' in 1934, if
applicable;
Additional information or justification to assist in
reaching a decision.
Needless to say, the process of assembling a fee-to-trust
application is expensive and time-consuming. It is not something Tribal
Nations undertake without a sincerely held need for land and belief
that the land will qualify for trust acquisition.
In addition to considering the specific criteria of Part 151, the
Department also undertakes laborious tasks associated with its review.
Among other prerequisites, the Department conducts a site inspection,
prepares a Certificate of Inspection and Possession, requests a
Preliminary Title Opinion from the Department's Solicitor's Office,
conducts an Environmental Compliance Review and documents National
Environmental Policy Act (NEPA) compliance in an Environmental
Compliance Review Memorandum, and ultimately prepares a Notice of
Decision addressing the criteria for trust acquisition. The
Department's investment in acquiring land into trust is significant and
also not undertaken lightly.
When a Tribal Nation seeks to game on its trust land, there are
additional criteria and procedures that must be met under the Indian
Gaming Regulatory Act (IGRA).\33\ Generally, gaming on land acquired
into trust after IGRA was enacted in 1988 is prohibited.\34\ There are
very limited instances when the prohibition does not apply, including
when the trust land is within or contiguous to a Tribal Nation's 1988
reservation \35\ or its former reservation,\36\ when lands qualify for
an ``equal footing'' exception available to Tribal Nations newly
federally recognized or to land acquired under a land claim
settlement,\37\ or when the state's governor is involved in the
decision to permit gaming under the ``two-part'' exception.\38\ This
gaming determination is made separate and apart from a decision to
acquire land into trust under the standards of the IRA.
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\33\ 25 U.S.C. Sec. 2719; 25 C.F.R. Part 292.
\34\ 25 U.S.C. Sec. 2719(a).
\35\ 25 U.S.C. Sec. 2719(a)(1).
\36\ 25 U.S.C. Sec. 2719(a)(2).
\37\ 25 U.S.C. Sec. 2719(b)(1)(B).
\38\ 25 U.S.C. Sec. 2719(b)(1)(A).
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The Administrative Requirements Provide Sufficient Opportunity for
Local Interests to Comment and for Local Interests to be Fully
Considered
Some have called for a requirement that the Department provide
notice of a possible trust acquisition under the IRA and the
opportunity to comment to state and local governments and consider
possible effects on them. These concepts are already embedded within
Part 151, despite the fact that the IRA on its face does not require
such consideration and Congress' intent in enacting the IRA focuses on
the needs of Tribal Nations rather than the needs of other entities.
Part 151 requires that local interests are notified of the possible
trust acquisition and given the opportunity to comment. For trust
acquisitions pursuant to the IRA, the Department must notify the state
and local governments having regulatory jurisdiction over the land to
be acquired.\39\ As part of its review of trust acquisition
applications, the Department prepares a Notice of Application to inform
state and local governments and any person or entity requesting notice
about the application and the opportunity to provide comments. Each
notified party is then given 30 days to provide written comments
regarding potential impacts on regulatory jurisdiction, real property
taxes, and special assessments, and then the applicant Tribal Nation is
provided with the comments and given a reasonable time to reply.\40\
Further, if a significant amount of time lapses between the dates of
the Notice of Application permitting submission of comments and the
Notice of Decision regarding the ultimate decision, the procedures
require that the Notice of Application be reissued to allow for updates
to the comments and the applicant's response to those comments.
---------------------------------------------------------------------------
\39\ 25 C.F.R. Sec. Sec. 151.10, 151.11(d).
\40\ Id.
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Part 151 also calls for compliance with NEPA.\41\ As part of its
Environmental Compliance Review under NEPA, the Department provides
state and local governments with an extensive opportunity to comment
and then considers comments received.
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\41\ See id. at Sec. Sec. 151.10(h), 151.11(a).
Part 151 then requires the Department to consider effects on local
interests in making a determination of whether to acquire land into
trust. For trust acquisitions under the IRA, included within the
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regulatory criteria considered by the Department are the following:
If the land to be acquired is in unrestricted fee status, the
impact on the state and its political subdivisions resulting
from the removal of the land from the tax rolls; [and]
Jurisdictional problems and potential conflicts of land use
which may arise.\42\
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\42\ Id. at Sec. 151.10.
If the land is located off-reservation, the criteria demand even
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more careful and weighty consideration of local interests, stating:
The location of the land relative to state boundaries, and its
distance from the boundaries of the Tribe's reservation, shall
be considered as follows: as the distance between the Tribe's
reservation and the land to be acquired increases, the
Secretary shall give greater scrutiny to the Tribe's
justification of anticipated benefits from the acquisition. The
Secretary shall give greater weight to the concerns raised
pursuant to [the provision providing for comment by local
interests] of this section.\43\
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\43\ Id. at Sec. 151.11(b).
The Department's Fee-to-Trust Handbook states that the Notice of
Decision ultimately issued should contain an analysis of comments and
concerns by local interests.
The Administrative Requirements Properly Consider and Comply with the
Supreme Court's Ruling in Carcieri v. Salazar
Some have claimed Part 151 does not properly consider and comply
with the Supreme Court's holding in Carcieri v. Salazar. However, the
Department's administrative process for acquiring land in trust under
the IRA complies with the IRA, including the Supreme Court's decision
in Carcieri interpreting the IRA.
Included within the Department's analysis of the criteria under
Part 151 is a determination of whether it has statutory authority for
the trust acquisition. As part of this determination when the trust
acquisition is to take place under the IRA, the Department conducts a
legal analysis regarding whether the acquisition complies with the
Supreme Court's interpretation of the IRA in Carcieri.\44\ The
Department consults with the Office of the Solicitor regarding this
analysis.
---------------------------------------------------------------------------
\44\ 555 U.S. 379 (2009).
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The Court in Carcieri construed the temporal limitations of the
Department's authority to acquire land in trust for Tribal Nations
under the IRA. The Court determined that a Tribal Nation seeking to
acquire land in trust under the IRA must meet an IRA definition of
``Indian.'' \45\ The decision in Carcieri was limited to a statutory
analysis of the meaning of ``now'' in the phrase ``now under Federal
jurisdiction'' in the first IRA definition of ``Indian.'' \46\ The
Court held that a Tribal Nation meeting that definition must have been
``under Federal jurisdiction'' when the IRA was enacted in 1934.\47\
---------------------------------------------------------------------------
\45\ Id. at 393.
\46\ Id. at 382.
\47\ Id. at 395.
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The Court in Carcieri did not address the meaning of ``under
Federal jurisdiction,'' \48\ and it did not state Tribal Nations must
have been federally recognized in 1934 in order to acquire land in
trust under the IRA.\49\ Thus, although some have claimed the Supreme
Court held in Carcieri that the Department may only acquire land in
trust under the IRA for Tribal Nations that were federally recognized
in 1934, the Supreme Court's holding was actually much narrower than
this. It is important not to conflate the two terms--``under Federal
jurisdiction'' and ``Federal recognition''--which are distinct legal
concepts and of which the Supreme Court in Carcieri addressed only the
former. Still, opponents of Tribal land acquisitions often self-
servingly conflate the two.
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\48\ Instead, the Court noted the petition for certiorari had
asserted that the Tribal Nation at issue there was not under Federal
jurisdiction in 1934 and that ``[t]he respondents' brief in opposition
declined to contest this assertion.'' Id. at 395-96 (majority opinion);
see also id. at 399 (Breyer, J., concurring); Stand Up for California!
v. U.S. Dep't of Interior, 919 F.Supp.2d 51, 66 (D.D.C. 2013) (``The
first and most pressing question left open by Carcieri is what it means
to have been `under Federal jurisdiction' in 1934.'').
\49\ Nowhere in its decision did the Court hold a Tribal Nation
must be federally recognized in 1934 to acquire land into trust under
the IRA. Instead, Justice Breyer in his concurrence indicated a Tribal
Nation may have been under Federal jurisdiction in 1934 regardless of
whether the Federal Government understood it to be federally recognized
at that time. Carcieri v. Salazar, 555 U.S. 379, 397 (2009) (Breyer,
J., concurring). He also stated that the IRA ``imposes no time limit
upon recognition. Id. at 398. Justice Breyer explained that sometimes
``later recognition reflects earlier `Federal jurisdiction.' '' Id. at
398-99. Justices Souter and Ginsberg concurred in Justice Breyer's
explanation of the majority opinion in the concurring portion of their
opinion.
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The Department has created a rigorous framework for determining
whether a trust acquisition under the IRA would comply with the Supreme
Court's Carcieri decision. Courts have found the IRA ambiguous in its
reference to ``recognized'' and ``under Federal jurisdiction'' and have
thus concluded that--under the legal principles set forth in Chevron v.
Natural Resources Defense Council, Inc., 467 U.S. 837 (1984)--the
Department has the legal right to reasonably interpret their meanings
and courts must defer to its reasonable interpretation.\50\
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\50\ See, e.g., Confederated Tribes of the Grand Ronde Community v.
Jewell, 830 F.3d 552, 560-61, 564 (D.C. Cir. 2016).
---------------------------------------------------------------------------
The Department first articulated its Carcieri framework in its 2013
trust acquisition for the Cowlitz Indian Tribe, and it later
memorialized its framework in an official 2014 M-Opinion issued by the
Solicitor.\51\ Contrary to some claims, the Department has by no means
read the restrictions of the Carcieri decision out of existence. In
fact, courts have upheld the Department's rigorous framework as a
reasonable interpretation of the meaning of ``under Federal
jurisdiction'' warranting deference under Chevron.\52\
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\51\ Memorandum from Solicitor to Secretary re The Meaning of
``Under Federal Jurisdiction'' for Purposes of the Indian
Reorganization Act (Mar. 12, 2014).
\52\ See, e.g., Confederated Tribes of the Grand Ronde Community v.
Jewell, 830 F.3d 552, 565 (D.C. Cir. 2016).
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Based on an exhaustive review of the IRA's legislative history and
its extensive experience examining the tribal status of and Federal
relationship with Tribal Nations, the Department's framework properly
does not require a Tribal Nation to have been federally recognized in
1934. In 1934, the Federal Government lacked a formal mechanism for
officially federally recognizing Tribal Nations. In fact, the
Department has acknowledged that its understanding of Tribal status and
Tribal-Federal relationships in the 1930s was limited and often
inaccurate.\53\ In an effort to clarify Tribal status questions and
facilitate a smoother Federal relationship, the IRA provided a
mechanism for formal organization of Tribal Nation governments--thereby
evidencing the IRA's contemplation of later Federal recognition.\54\
Even today, in an era where Tribal Nations can receive formal Federal
recognition, the status of ``Federal recognition'' and the status of
``under Federal jurisdiction'' are two different, although overlapping,
relationships between the Federal Government and a Tribal Nation. Thus,
as Justice Souter rightly noted, ``the two concepts, recognition and
jurisdiction, may be given separate content'' and each should be given
its ``own meaning.'' \55\ In upholding the Department's Caricieri
framework as a reasonable interpretation of the IRA, courts have
likewise upheld as reasonable the Department's position that a Tribal
Nation need not have been recognized in 1934.\56\
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\53\ See, e.g., Fed. Reg. 9280, 9281 (Feb. 25, 1994); 43 Fed. Reg.
39361 (Sept. 5, 1978).
\54\ Pub. L. No. 73-838, Sec. 16 (codified at 25 U.S.C. Sec. 5123).
The Department, with the help of legal opinions from its Solicitor's
Office, thereafter federally recognized Tribal Nations through
organization pursuant to the IRA. See Carcieri v. Salazar, 555 U.S.
379, 398-99 (2009) (Breyer, J., concurring).
\55\ Carcieri v. Salazar, 555 U.S. 379, 400 (2009) (Souter, J.,
concurring in part and dissenting in part).
\56\ See, e.g., Confederated Tribes of the Grand Ronde Community v.
Jewell, 830 F.3d 552, 565 (D.C. Cir. 2016).
---------------------------------------------------------------------------
The Department's Carcieri framework requires a Tribal Nation to
meet a two-part test to establish that it was under Federal
jurisdiction in 1934. This two-part test preserves sufficient
flexibility to allow the Department to make determinations on a case-
by-case basis that are measured against the backdrop of well-
established principles of Indian law and take into account the unique
history and circumstances of each tribe and its relationship to the
United States. It acknowledges that the United States has established a
wide variety of relations with Tribal Nations arising out of historical
and other circumstances and takes into account that in some cases these
relationships are broad and all-encompassing and in others they are
more limited. Under the two-part test, the Department first examines
whether at some point prior to 1934 the Tribal Nation was under Federal
jurisdiction, which is evidenced by the United States taking ``an
action or series of actions--through a course of dealings or other
relevant acts for or on behalf of the tribe or in some instance tribal
members--that are sufficient to establish, or that generally reflect
Federal obligations, duties, responsibility for or authority over the
tribe by the Federal Government.'' \57\ The Department second examines
``whether the tribe's jurisdictional status remained intake in 1934.''
\58\
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\57\ Memorandum from Solicitor to Secretary re The Meaning of
``Under Federal Jurisdiction'' for Purposes of the Indian
Reorganization Act, at 19 (Mar. 12, 2014).
\58\ Id.
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Administrative Procedures Rather than Statutory Procedures Should
Implement the Enduring Purposes of the IRA and Address Legitimate
Considerations Without Unduly Burdening Tribal Nations
The Department's regulatory procedures properly implement the trust
land acquisition provisions of the IRA in a way that is likely more
flexible and responsive to Tribal Nations' needs than procedures
formally codified by Congress or case-by-case statutory trust
acquisition legislation would be. This more flexible and responsive
framework better implements the IRA's over-riding purposes of
facilitating the self-determination and self-sufficiency of Tribal
Nations.
In additional to reversing allotment and restoring Tribal Nation
lands taken from them under the GAA and previous Federal Indian
policies, an over-riding purpose of the IRA was to reduce Federal
paternalism and control over the internal affairs of Tribal Nations. In
his memorandum to Congress, Commissioner Collier noted:
``Fundamentally, under existing law, the Government's Indian Service is
a system of absolutism.'' He stated that the IRA ``seeks to curb this
administrative absolutism and it provides the machinery for a
progressive establishment of home rule by [Tribal Nations] or groups of
Indians.'' \59\
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\59\ Readjustment of Indian Affairs: Hearings on H.R. 7902 Before
the H. Comm. on Indian Affairs, 73d Cong. 2d Sess. 21-22 (1934)
(Memorandum of John Collier, Commissioner of Indian Affairs).
Commissioner Collier also spoke to the balance of congressional
direction and administrative authority in the IRA, a balance that was
carefully considered and intentionally struck. He noted the unrealistic
situation Tribal Nations would face if they were required to obtain
separate statutory authority from Congress for each trust land
acquisition sought, a hardship that would be even more difficult today.
---------------------------------------------------------------------------
He explained:
By way of reaction to the excessive inflexibility of blanket
legislation in the past and the overcentralized administration
which such legislation has imposed on the Office of Indian
Affairs, there has arisen in recent years an increasing number
of requests for special legislation dealing with the particular
problems of one reservation or another. . . . For Congress to
assume the task of passing upon the claims of each particular
Indian group and dealing with the problems of 214 reservations
in 214 or more separate statutes would clearly involve an
assumption by Congress of onerous and complex administrative
functions.
The present bill pursues a middle road between blanket
legislation everywhere equally applicable and specific statutes
dealing with the problems of particular [Tribal Nations]. It
sets up, in effect, an administrative machinery for dealing
with the problems of different Indian reservations, and lays
down certain definite directions of policy and restrictions
upon administrative discretion in dealing with these problems.
It is recognized that the unlimited and largely unreviewable
exercise of administrative discretion by the Secretary of the
Interior and the Commissioner of Indian Affairs has been one of
the chief sources of complaint on the part of the Indians. It
is the chief object of the bill to terminate such bureaucratic
authority by transferring the administration of the Indian
Service to the Indian communities themselves.\60\
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\60\ Id. at 21-22.
Thus, the IRA was designed to preserve sufficient flexibility to
address the wide-ranging needs of diverse Indian communities (and avoid
the need for Congress to constantly enact exceptions for individual
Tribal Nations), while avoiding administrative over-reach by putting
more decision-making power in the hands of Tribal Nations. Consistent
with our current policies, the IRA envisioned that Tribal Nations would
exercise self-government, escape the heavy thumb of Federal
paternalism, and manage their own affairs and resources as they saw
fit. In many ways, this is the quintessential American ideal of ``home
rule,'' which allows local jurisdictions to exercise decentralized
governance powers.
In seeking to improve the trust land acquisition process today,
both Congress and the Administration must be mindful not to take any
steps backward from the important gains that have been made under the
IRA. As Tribal Nations build on the successes of self-governance and
self-sufficiency made in the past few decades and work to address
ongoing needs for improved housing, health care, social and educational
programs, training and employment, and cultural and religious exercise,
the goal should be to remove rather than add to the existing burdens on
Tribal Nations and the Federal Government in doing so. The solution is
not to return to an era of excessive Federal dependence and control by
stifling the agility and flexibility of Tribal Nations' governments,
but to further the IRA's vision of robust, self-determined Tribal
Nations and communities that are able to rely less on the Federal
Government.
USET SPF does not dismiss the fact that trust land acquisition can
have a range of impacts on local communities in the area in which the
land is located--often the same local communities that benefited by
gaining control of Tribal Nations' lands as a result of policies the
IRA was intended to reverse. However, legitimate considerations can be
addressed through reasonable and responsible administrative procedures
that strike an appropriate balance between flexibility, stability,
efficiency, and responsiveness. For example, existing procedures
provide states and local communities with the right to be notified of,
and comment on, pending fee-to-trust applications.
On the other hand, the statutory imposition of limits on the
purposes for which Tribal Nations' trust lands are used, or the vesting
of virtual veto power in state or local governments over a matter
arising in the inherently Federal context of Indian law and policy, as
some have called for, would signal a return to the abusive practices of
paternalism and ``absolutism'' that the IRA was intended to reject.
Such rigid legislation would jeopardize the underlying policy goals
first stated in the IRA, but which have carried through to the present
day. USET SPF unequivocally opposes any attack on the continued
vitality of the IRA's purpose to repatriate Tribal Nations' lands taken
from them under the GAA and previous Federal Indian policies and to
empower Tribal Nations to manage their own affairs and resources
through the exercise of self-government and self-sufficiency on their
own lands.
USET SPF thanks the Subcommittee for taking the time to conduct
this oversight hearing. The importance of the IRA and its trust
acquisition provisions to Tribal Nations today cannot be overstated.
They are absolutely fundamental to our ability to thrive as vibrant,
healthy, self-sufficient communities within the United States, as much
today as they were in 1934. USET SPF hopes this testimony has been
helpful in illuminating that the IRA's underlying goals and the tools
it gave us should be protected and strengthened as we continue to
improve Federal Indian policy and, through it, the lives of our Indian
people.
______
Mr. LaMalfa. Thank you, Mr. Francis, I appreciate it.
The Chair now recognizes Mr. Allyn to testify for 5
minutes.
STATEMENT OF THE HON. FRED B. ALLYN III, MAYOR, TOWN OF
LEDYARD, CONNECTICUT
Mr. Allyn. Chairman, Ranking Member, and members of the
Subcommittee, I submit my testimony on behalf of the towns of
Ledyard, North Stonington, and Preston, Connecticut. I am the
Mayor of Ledyard, a town of 15,000 residents located in the
southeastern corner of the state.
My testimony covers the impact to local communities from
the application of Federal Indian law specifically for trust
land acquisition, and efforts to pre-empt legitimate state and
local taxation on non-Indian entities on tribal land. Our
experience comes from decades of serving as the host community
for the Mashantucket Pequot Tribe and Foxwoods Resort Casino.
My own family has been in Ledyard for 358 years, and we are
proud of the relationship that we have with the tribe. But
Federal Indian law does little to foster the kind of
cooperative relationships that we have. The town's experiences
date from 1993, when the tribe applied to have 247 acres of
off-reservation land placed into trust. Our lawsuit filed in
1995 lasted for almost 10 years. In the end, the tribe withdrew
its request and began working with us to pursue its off-
reservation development plans under state and local laws, and
to acquire land in trust only for on-reservation parcels, which
the town has been able to support. The town has even revised
zoning regulations to allow for the tribe's use.
Our experience also comes from recent litigation with the
tribe over its claims that non-tribal slot machine vendors are
exempt from personal property tax. In 2013, after 8 years of
litigation, the Second Circuit court ruled in our favor,
finding that the economic effect of the tax on the tribe was
minimal, but the tax revenues were essential to the town's
ability to fund public services, including the education of
tribal children and the maintenance of the roads that bring
customers to the casino.
I will address the defects in Federal Indian law in both of
these areas. The impacts on local communities from trust land
acquisition are several, as illustrated by our experiences.
First, the demand for government services increases,
especially when gaming or large-scale development occurs. Since
Foxwoods opened in 1992, our police force has grown by 40
percent, while the population of our town has only grown by 1
percent. Traffic has tripled, and DUI arrests are twice the
state average.
Second, revenues declined from the loss of our tax base.
The most recent trust land acquisition cost the town
approximately $250,000 in annual property tax revenues out of a
current annual budget of just $55 million.
Third, once taken into trust, development is not subject to
zoning, allowing incompatible development to transform the
character of our community. The experiences of the town
illustrate the very real impacts trust land acquisition can
have on local communities. But our experience also shows that
local communities can have positive relationships with
neighboring tribes if trust decisions are made on a level
playing field.
We need Congress to set the standards that will govern land
trust acquisition. The BIA rules have been in place for
decades, and they are flawed, suffering from two over-riding
flaws: the lack of objective standards and the lack of
procedures that ensure real consideration of local community
impact.
As just one example, the regulations require BIA to
consider the need of the tribe for additional land, yet they do
not define the type of need to be considered, and how it should
be evaluated. BIA accepts generic statements that trust land
will further tribal self-governance and self-determination, and
finds the need criteria unsatisfied for even the wealthiest of
tribes.
My written testimony details additional problems that also
need to be addressed. To address these concerns, the towns
recommend the land should only be taken into trust when clear
objective standards have been met, and the concerns of local
government have been satisfied. No acquisition should be
approved unless impacts to the local community have been fully
addressed.
Finally, my town also faces the potential loss of very
significant personal property taxes. The impact to our small
town would be tremendous. Recently our fire marshal offered to
buy his uniforms from Walmart to save the town $180 a year.
These are very real, small-town decisions that are made every
day.
BIA is now considering a last-minute Obama administration
initiative to revise regulations governing the so-called Indian
traders under obsolete statutes originally enacted between 1790
and 1903, to prevent Indians from being defrauded by traders
doing business with them. No one seems to follow these
regulations today, and they are irrelevant for trader purposes.
This initiative seems to have the sole intent of pre-empting
legitimate state and local taxes on non-Indian businesses, and
is confirmed by the comments received by BIA and documents
released under FOIA.
The decision on whether the state and local governments
should be pre-empted from exercising this power should be made
by Congress, not by BIA. Of course, taxation powers must be
left in place.
Thank you for your time and consideration of my testimony,
and I will take any questions you may have. Thank you.
[The prepared statement of Mr. Allyn follows:]
Prepared Statement of Fred Allyn III, Mayor, Town of Ledyard,
Connecticut
Chairman LaMalfa, Ranking Member Torres, and members of the
Subcommittee, thank you for the opportunity to testify on issues
related to trust land acquisition under the Indian Reorganization Act
of 1934 (IRA). I am the Mayor of Ledyard, Connecticut, a municipal
government for a town of 15,000 residents, located in the southeastern
corner of the state. I also submit this testimony on behalf of our
neighboring towns of Preston and North Stonington.
Based on our experiences with the Mashantucket Pequot and Mohegan
Tribes, we are uniquely situated to provide testimony on the issues
associated with Indian gaming, including trust land, off-reservation
casinos and gaming-related facilities, taxation of non-tribal personal
property on-reservation lands, and tribal acknowledgment. Our
experience comes from decades of serving as the host community for the
reservation of the Mashantucket Pequot Tribe, the Foxwoods Resort
Casino and, to a lesser degree, from our proximity to the Reservation
of the Mohegan Tribe and the Mohegan Sun Casino.
The purpose of this testimony is to discuss why the current
standards and procedures of the Bureau of Indian Affairs (BIA)
regulations for trust land acquisition in 25 C.F.R. Part 151 are
seriously flawed and need to be revised to ensure that decisions meet
the intent of Congress in the IRA. My testimony will speak to the
concerns of local government bodies with the BIA rules. I also will
speak to an Advance Notice of Proposed Rulemaking (ANPRM), published by
the Obama administration on December 9, 2016, to revise the current
rules implementing the Indian Trader laws. 81 Fed. Reg. 89, 015-017. As
my testimony will discuss, the ANPRM will be very harmful to state and
local governments and is motivated not by a desire to address the
regulation of ``Indian traders'' but instead to manufacture a basis for
the pre-emption of state and local taxation of non-Indian economic
activities on Indian lands. The potential loss of such tax revenues on
Indian lands is one of the significant burdens imposed on local
governments when land is taken into trust.
impacts to local communities
Before making recommendations, I offer perspective on why acquiring
off-reservation land in trust has such a profound negative impact on
local communities. These impacts fall into four categories. While the
nature and extent of the impacts will vary according to the intended
use of the land, I believe that these types of impacts will be
experienced by most communities that confront the expansion of tribal
lands pursuant to trust land acquisition undertaken by the Secretary of
the Interior through the BIA.
First, local governments will experience an increase in the demand
for government services, especially when gaming or large-scale economic
development occurs, bringing large influxes of both patrons and
employees. Local governments provide services used by all, including
emergency and law enforcement services, public sanitation, and the
expansion and maintenance of public roads, schools, and hospitals.
These services directly benefit, and often are essential to, such
tribal economic development. In fact, it is generally the case that
states and local governments do not differentiate between tribal
members and other citizens in providing governmental services.
Second, while financial burdens increase, revenues decline from the
loss of tax base. Land in trust is not subject to state and local
property taxes, and economic substitution effects can affect the local
economy, resulting in losses of other tax revenue streams as well.
Increasingly, tribes are challenging state and local taxation of non-
Indian activities on trust lands, further threatening local government
funding.
Third, control is lost over the use of land, often resulting in
fragmented development and negative environmental and quality-of-life
impacts. Once taken into trust, land is not subject to local zoning
laws, allowing incompatible development that the local government
cannot regulate. State and local environmental laws also do not apply.
Finally, changes occur in the nature of daily life in the area
surrounding the trust land, and in the ability of residents or
government officials to decide whether those changes are desirable or
how they should be achieved. Large-scale tribal gaming or other
economic development can completely transform the character of a small
town or a rural community. To a large extent, local communities can
feel as if they have lost control of their own future.
Our experience illustrates these impacts. As noted above, the three
towns extensive experience with trust land acquisition by the Secretary
of the Interior. Our experience dates from 1993, when we learned that
the Mashantucket Pequot Tribe had filed an application to have 247
acres of off-reservation land acquired in trust on its behalf.
Concerned about the loss of tax revenue in the face of growing burdens
on our small-town government due to the success of the Foxwoods Casino
and negative impacts of development inconsistent with local land use
and environmental laws, Ledyard joined with the neighboring towns of
North Stonington and Preston to oppose the Secretary's acquisition of
this land in trust.
Our lawsuit, filed in 1995, lasted for almost 10 years. In the end,
the Tribe withdrew its request and instead worked with the town to
pursue its off-reservation development plans in accordance with state
and local laws, and to acquire land in trust only for on-reservation
parcels, which the town of Ledyard has been able to support.
Our experience also comes from recent litigation with the Tribe
over its claim that non-tribal slot machine vendors who lease gaming
equipment for use at Foxwoods are exempt from local personal property
tax. Mashantucket Pequot Tribe v. Town of Ledyard, 722 F.3d 457 (2d
Cir. 2013). In 2005, the Tribe challenged Ledyard's assessment of
Connecticut's personal property tax on the lessors of slot machines
used by the Tribe at its casino, arguing that the tax, which the Tribe
contractually agreed to pay, infringed on tribal sovereignty. After 8
years of litigation, the Second Circuit ultimately ruled that non-
Indian slot machine companies must indeed pay personal property tax
like any other business that maintains such property. Id. The Court
found that the state and local interests in the tax revenues at stake
outweighed the Federal and tribal interests in economic development and
tribal sovereignty. The Court found that the economic effect of the tax
on the Tribe was minimal, but the tax revenues were essential to the
town's ability to fund public services, including the education of
tribal children, and the maintenance of the roads that bring customers
to the Tribe's casino. In short, the town and state had more at stake
than the Tribe.
The result of this progression from divisive and expensive
litigation and conflict to amicable and collaborative land use planning
provides important lessons learned and a clear picture of the changes
needed to improve trust land acquisition decision making, which I offer
in this testimony.
the town of ledyard
We commend the Tribe for its great success in developing Foxwoods
and achieving governmental and economic self-sufficiency. The fact
remains, however, that the town of Ledyard has been adversely impacted
since the opening of the first casino in 1992. This is a result of the
governmental burdens our town must bear to accommodate Foxwoods and the
lack of an adequate source of revenue for that purpose due to the tax-
exempt status of trust land.
To understand the basis for my testimony, the Subcommittee needs
background information on my town. Ledyard has an annual budget of $55
million, which is a mere fraction of the annual revenues of the Tribe,
estimated to be in excess of $1.5 billion/year. Within such a small
budget, we must be able to recover all of the costs of the governmental
services we supply to the Tribe and provide for our own residents. This
must occur with declining State Aid.
The shortfall in the town's budget increases every time the Federal
Government takes more land into trust. Currently, the Tribe has
approximately 1,095 acres held in non-taxable trust within its existing
reservation boundary, which encompasses about twice that amount of
land. At present, we do not believe the Tribe seeks to add any trust
land outside of its reservation boundaries. Since the enactment of the
Connecticut Indian Land Claim Settlement Act of 1983, however, the
Tribe has gradually and continually expanded the amount of land in
trust status inside the reservation.
Consistent with the town's cooperative working relationship with
the Tribe, we have supported on-reservation trust land acquisition,
provided all applicable laws are satisfied and the town is consulted
with in advance. In supporting these requests, however, the town has
had to absorb a significant loss in tax revenue every time another
acquisition is completed. For example, the Federal Government's most
recent trust land acquisition for the Tribe cost the town approximately
$250,000 in annual property tax revenue. We believe the Tribe intends
to continue to add more trust land within its reservation boundaries,
so further losses in tax revenue to the town will occur.
flaws in the current trust acquisition process
The current trust acquisition process is so deficient that it
cannot possibly meet the intent of Congress in enacting the IRA. The
current process suffers from two over-riding flaws:(1) the lack of
objective standards governing the trust acquisition decision; and (2)
the lack of procedures that ensure real consideration of the impacts to
local communities. This lack of any real constraints on the BIA's
discretionary authority is what allowed the Obama administration to
make the heavily publicized political commitment to take 500,000 acres
of land into trust while in office, and in fact was able to exceeded
that target.\1\ The trust acquisition process should not be so
unconstrained as to allow administrations to make political promises to
take such a significant and arbitrary amount of land into trust, even
before any consideration of the actual merits of individual
applications.
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\1\ https://www.doi.gov/pressreleases/obama-administration-exceeds-
ambitious-goal-restore-500000-acres-tribal-homelands.
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In our 1995 lawsuit, joined by the state of Connecticut, we argued
that Section 5 of the IRA was intended to serve a limited, but
important, purpose of assisting tribes in achieving a sufficient land
base, usually within reservation boundaries, to achieve economic
development and provide for their members. We also argued, in the first
case to raise the so-called ``Carcieri issue'' that such authority has
to be used only for ``any recognized Indian tribe now under Federal
jurisdiction.'' Unfortunately, while this intent of Congress was clear,
apparently the words chosen in Section 5 were not, which has allowed
BIA to proceed with trust land acquisition that has virtually no limits
and no discernible standards, and to acquire land in trust for tribes
that were not recognized in 1934.
The courts have thus far not found Section 5 of the IRA to be so
lacking in any intelligible principle governing its exercise as to be
an unconstitutional delegation of legislative authority. Nonetheless,
the statute itself provides little guidance as to the basis for trust
decisions. Section 5 simply states that the Secretary of the Interior
is ``hereby authorized, in his discretion, to acquire . . . lands . . .
for the purpose of providing land for Indians.'' The statute thus
provides no meaningful guidance to the decision maker, tribes, state or
local governments, or the public.
The trust acquisition regulations at 25 C.F.R. Part 151 set forth
various criteria, but provide little meaningful guidance.\2\ For
example, the regulations require the BIA to consider ``the need of the
individual Indian or tribe for additional land,'' yet the regulations
do not define or provide guidance on the type of need to be considered
and how the level of need should be evaluated. The BIA regularly
accepts generic statements that placing land in trust will further
tribal self-governance and self-determination as showing sufficient
need, and finds the need criterion satisfied for even the wealthiest of
tribes.
---------------------------------------------------------------------------
\2\ See generally, Government Accountability Office, Indian Issues:
BIA's Efforts to Impose Time Frames and Collect Better Data Should
Improve the Processing of Land Trust Applications (GAO-06-781).
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Similarly, the regulations require consideration of the purposes
for which the land will be used, but according to the BIA, almost any
purpose will suffice. Moreover, in many cases, the tribe claims one
proposed land use, or even no change in land use, but then pursues
completely different uses once the land is in trust. Changes in uses
are not subject to further review by the BIA, so there is a strong
incentive to claim that no change in land use is intended to avoid the
need for review under the National Environmental Policy Act (NEPA). As
a result, the impacts of development are not considered in the trust
decision, local communities are blindsided, distrust replaces
cooperation, and negative impacts that could easily have been avoided
or mitigated nonetheless occur.
If the land to be acquired is in unrestricted fee status, the
regulations require the BIA to consider the impact on the state and its
political subdivisions resulting from the removal of the land from the
tax rolls. This is a fundamental concern for local governments, yet the
regulations provide no guidance on what constitutes an acceptable level
of tax loss. In addition, only the amount of current property taxes on
what is often undeveloped land is considered, rather than the property
taxes that would be generated after the land is developed, even when
proposed development is the purpose of the trust request, and will
generate greater demand for public services. In addition, the BIA
refuses to consider the cumulative impact of trust acquisitions, and
every new request is treated in isolation, even in cases where half the
land in a county is already in trust.
The BIA is also required to consider jurisdiction problems and
potential conflicts of land use that may arise. The exercise of zoning
authority is one of the primary tools by which communities can protect
their integrity, and this important local government tool is lost once
land is in trust. Again, there is no guidance in the regulations on
what types of jurisdictional and land use concerns might warrant denial
of the application. As a result, the BIA consistently fails to accord
any real weight to the loss of local government zoning authority over
lands taken into trust. Indeed, the BIA often cites the need to
eliminate such state and local control as a reason to take land into
trust.
The BIA must also consider the extent to which the applicant has
provided information that allows the Secretary to comply with
environmental requirements, particularly under NEPA. Yet again, the
regulations provide no guidance on the amount or type of information
needed by the BIA to make the required environmental determinations.
Under what is known as a categorical exclusion, the BIA frequently
exempts proposed acquisitions from any environmental review at all.
Rather than serving as a mechanism to explore and resolve negative
impacts through agreements with local governments or other parties, or
meeting tribal needs without taking land into trust, NEPA is often
viewed as a roadblock to unbridled trust land acquisition, and an
obstacle to be avoided.
In addition to the flaws in these standards, the BIA routinely
limits, or ignores, the role of local governments in making decisions,
including for off-reservation lands. The BIA limits its inquiries with
local governments to little more than getting information on tax value
of land to be removed from the rolls; it seldom considers the other
impacts on communities or does anything to encourage cooperative
relationships between tribes and local governments. Local governments
are typically ignored, or treated as a problem to be overcome. As a
result, there is little incentive for tribes to work with local
governments to explore alternatives to trust land acquisition, often
leading to conflict, litigation, and negative impacts.
recommendations on trust land
To address these concerns, the town recommends that trust
acquisitions be limited as follows: First, to give effect to the intent
of Congress in enacting the IRA, on-reservation acquisitions under
Section 5 of the IRA should be limited to land located within the
boundaries of Indian reservations that were in existence on June 18,
1934--the date of enactment of the IRA. Second, all other lands should
only be taken into trust when clear, objective standards have been met,
and the concerns of local governments have been satisfied. In
particular, tribes should be required to seek solutions to trust land
requests before seeking BIA approval; local governments should be
consulted early in the process; and no acquisition should be approved
unless impacts to the local community have been addressed and
mitigated, either through binding agreements with the tribe, or
enforceable Federal decisions. Meaningful requirements should be
established for tribes to prove the need for trust land, as envisioned
by Congress in 1934. And no change in use or purpose should be allowed
without a new decision.
In addition, the Secretary's authority to take land out of trust
should be confirmed. The BIA appears reluctant to remove land from
trust after conveyances have been made, even if the decisions are made
in error. The Secretary should also have clear authority to remove land
from trust if the proposed land use changes after trust acquisition to
a land use that was not considered in the original decision, or to stop
the new land use from occurring until a new review is conducted.
rulemaking to revise the indian trader regulations will make these
problems worse
In addition to the loss of tax revenues from trust land
acquisition, the town is also facing the loss of potentially
significant revenues from state tax laws that require the payment of
personal property taxes to local governments. Those assessments amount
to hundreds of thousands of dollars in personal property tax every
year, and, as previously described, were upheld by the Second Circuit
in 2013. To be clear, these are taxes paid by non-Indians for personal
property, wherever it is held, including on Indian lands. The potential
loss of these revenues would obviously be magnified as more land is
taken into trust.
The BIA, however, is considering whether to proceed with an Obama
administration initiative to revive obsolete and unused regulations
governing ``Indian traders.'' The comment letters submitted by tribes
to the ANPRM, issued in December of 2016, as well as records obtained
under the Freedom of Information Act documenting communication between
the BIA and tribes prior to the ANPRM, reveal that the true objective
of this rulemaking is to pre-empt state and local taxes--including
taxes on sales to non-Indians, as well as non-Indian personal
property--that are valid under existing law, rather than any sincere
objective to modernize the role played by the archaic concept of
``Indian traders.''
Our town, in conjunction with the towns of North Stonington and
Preston, Connecticut, submitted comments opposing revising the Indian
Trader regulations, which are no longer used by the vast majority of
tribes and non-Indian businesses. Congress enacted the original Indian
Trader Statutes more than two centuries ago, during a time when most
tribes were isolated and economically undeveloped, to protect them from
exploitation.\3\
---------------------------------------------------------------------------
\3\ The first Indian Trade and Intercourse Act was enacted in 1790.
Act of July 22, 1790, 1 Stat. 137 (``An Act to regulate trade and
intercourse with the Indian tribes.'').
---------------------------------------------------------------------------
The current versions of the Indian Trader Statutes (Statutes) were
enacted between 1834 and 1903 to prevent Indians from being defrauded
by traders doing business with Indian tribes. 25 U.S.C. Sec. Sec. 261-
264. The Statutes authorized the Federal Government to regulate those
who trade with Indians. See id. Sec. Sec. 261, 262. The Statutes
directed the Secretary to specify the kind and quantity of goods that
traders could sell to Indians and at what prices. See id. In 1957, the
BIA promulgated the current regulations to implement the Statutes,
which, among other things, prohibited traders from selling alcohol,
selling tobacco to minors, and conducting gambling of any type on
Indian reservations. See 25 C.F.R. Part 140. The regulations required
traders to seek a license, prohibited them from trading with Indians
anywhere other than at trading posts, and required traders to charge
prices that were fair and reasonable.
No one follows these regulations today. Tribes now conduct all
sorts of business activities where they or their management companies
operate gaming and sell alcohol. They also have pharmaceutical
operations; they operate outlet malls, gas stations, box stores,
hotels, restaurants, golf courses, convention centers and arenas. In
some cases, they do this directly. In other cases, they enter into
business arrangements where non-Indians operate businesses. Tribes are
no longer dependent on a single or a few Indian traders for goods and
services as many were when the Statutes were enacted; instead they have
ordinances pursuant to which they govern their own economic activities.
There is no need, therefore, to resurrect regulations to effectuate
what are paternalistic and effectively obsolete statutes. The only
appropriate contemporary response is that the Statutes are obsolete and
the regulations should be eliminated entirely. Both the BIA and tribes
recognize the modern irrelevance of the Indian Trader Statutes and the
implementing regulations.
The BIA's current effort to ``update'' those regulations,
therefore, appeared intended, even at the time, to serve an entirely
different purpose--to undermine the ability of states and local
governments to assess legitimate taxes on non-Indians engaged in
commerce on Indian land. Even on its face, the key focus of the ANPRM
appeared to be taxation--an issue not addressed in the Indian Trader
Statutes.
The ANPRM states that ``the Department recognizes that dual
taxation on tribal lands can undermine the Federal policies supporting
tribal economic development, self-determination, and strong tribal
governments.'' In that context, the ANPRM explicitly sought comments on
``how the Federal Government can bolster those tribes that currently
comprehensively regulate trade;'' the ``services [tribes] currently
provide to individuals or entities doing business in Indian Country and
what role do tax revenues play in providing such services;'' and ``how
revisions to the trade regulations could facilitate economic activity
in Indian Country and tribal economic self-sufficiency.'' It therefore
seems likely that the BIA intends to include a provision purporting to
pre-empt state and local taxation on non-Indians.
The Secretary does not have the power to determine the
applicability of state and local laws to non-Indians and should not be
attempting to do so by regulation. The Secretary's lack of authority,
however, is little comfort to those local governments that will have to
defend against the lawsuits that will inevitably follow. The BIA
recently included similar provisions when it revised leasing and right-
of-way regulations in the last administration, and those provisions
have indeed generated significant litigation across the Nation. And
while the Department has stated in Federal courts that the tax
provisions in those rules have no pre-emptive effect, those regulations
have clearly been used to undermine state and local taxation. This is
the sort of outcome Federal agencies ought to be avoiding, not
exacerbating.
The impression that this rulemaking effort is intended to displace
valid, and very necessary, state and local taxation of non-Indian
activities was fully confirmed by the comments received by the BIA in
response to the ANPRM. Almost every comment letter, out more than 50
received by the BIA, was from an Indian tribe or tribal organization,
and those comment letters uniformly supported the rulemaking effort as
a way to eliminate the so-called ``dual taxation'' by state and local
governments under existing law. In our view, there is no ``dual
taxation;'' there is only the legitimate exercise of state and local
authority to tax non-Indians, and the Tribe's authority to apply its
power to tax where it has the authority to do so.
In addition, documents released under the Freedom of Information
Act reveal that issuance of the ANPRM was heavily influenced by a
coordinated effort by the National Congress of American Indians (NCAI)
and numerous Indian tribes to persuade the BIA to undertake this
rulemaking, specifically for the purpose of pre-empting state and local
taxation of all non-Indian economic activity on Indian lands. The NCAI
provided a detailed memorandum, dated July 7, 2016, that is
particularly revealing. Addressed to Solicitor Hilary Tompkins, the
memorandum presents a legal argument for the BIA's authority to
completely delegate the Indian trader licensing function to tribal
governments and to ``eliminate dual taxation'' by promulgating a clear
and unambiguous statement of Federal pre-emption of state and local tax
laws. Expressing the concern that most Secretaries of the Interior come
from a state government background, and therefore are sympathetic to
the interests of state governments, the memorandum states that,
``[b]ecause our proposal is for updated regulations that would further
define the Federal interest in limiting state taxing authority on
Indian reservations, many past Secretaries of Interior wouldn't let it
see the light of day.''
The ``light of day'' is indeed the best medicine for the BIA's
initiative. The ANPRM, however, failed to draw the public's attention
to the purpose and implications of such a rulemaking. As a result, the
public at large failed to understand the significance of this
rulemaking. Our towns were one of the very few non-Indian commenters on
the ANPRM, and our comments were the only comments in opposition to
this effort.
Our town, like most local governments, is dependent on state and
local taxation to fund the crucial governmental services we provide to
all of our residents, including tribal members. Like virtually all (if
not all) non-Indian governmental entities, we do not operate for-profit
businesses and cannot easily offset tax revenues lost by Federal
regulation. As previously described, our town has made significant
efforts to defend our taxing authority.
The town therefore opposes any effort by the BIA to create legal
uncertainty regarding taxes that we have successfully defended in
Federal court, as well as any general effort to undermine state and
local taxing authority under the guise of reviving now-defunct
regulations. We simply cannot afford to leave personal property tax
revenues on the table from all non-tribal companies doing business on
the reservation. If state and local taxation authority over non-Indians
is to be pre-empted, that's a decision for Congress to make, not the
Assistant Secretary for Indian Affairs. We ask this Subcommittee to use
its authority to ensure the ANPRM does not move forward.
conclusion
In conclusion, the trust acquisition process must be reformed to
include objective standards for off-reservation requests and the full
consideration of impacts to local communities. The current rulemaking
proceeding to revive the Indian Trader Regulations should be halted to
protect valid state and local revenue streams from non-Indian
activities on trust lands. In addition, Congress should clarify the
authority of the Secretary to remove land from trust if the proposed
land use changes from that which was evaluated in the original
decision, or to correct decisions made in error.
Thank you for considering this testimony.
______
Questions Submitted for the Record by Chairman Rob Bishop to Mayor Fred
Allyn, Town of Ledyard, Connecticut
Question 1. You indicated that the trust land process does not
accommodate the concerns of local governments. Please describe what
changes should be made to the regulations or the procedures used to
consider trust land requests for that purpose.
Answer. As the municipal CEO of a small community, I believe it is
crucial for the host community, as well as adjacent, potentially
impacted communities, to be provided advanced notice of an application
for proposed trust acquisition. Further, these same municipalities
should be consulted and permitted to participate in the discussion and
ultimate approval of proposed and future uses of the requested trust
lands. If a tribe is unwilling to permit such collaborative effort, the
land trust request should not be granted in the absence of a very
strong ``need'' to do so. Existing criteria must be revised to take
into consideration the aforementioned as well as the economic success
of the requesting tribe.
Specifically, Congress should amend section 5 of the Indian
Reorganization Act to require the consent of the affected local
government before off-reservation land is acquired in trust. The
purpose for which land is proposed for acquisition--and which is
analyzed under NEPA--must be clear and binding. Significant changes in
land use must be subject to a new Federal approval, so that additional
impacts can be addressed.
In addition, ``on-reservation'' must be strictly limited to land
within officially proclaimed reservation boundaries, not simply
touching trust lands located anywhere. An objective standard for
``need'' should be defined, including consideration of the tribe's
economic success and its relative need for the extraordinary benefit of
trust land compared to the impacts to the economic and social well-
being of the surrounding community. The impact to local tax revenues
must be based on the proposed use, not the undeveloped land, because
development will increase the cost of public services, without a
commensurate increase in tax revenues.
An objective definition of need is a critical step, as the economic
benefit to the tribe in acquiring existing taxable lands in trust and
potentially constructing new, non-taxable development will have a
profound impact on the financial and social well-being of the host and
adjacent communities. Low-density housing with ancillary uses such as
community centers, places of worship and the like may pose modest
impact on the host community and surrounding communities in terms of
infrastructure, schools, emergency services and general municipal
support. Gaming and other high-impact uses which may include, but are
not limited to, destination retail, specialty retail, arenas/convention
centers, professional athletic complexes and for that matter, large
corporate headquarters will have tremendous impacts on both host and
adjacent communities from many perspectives, including public utilities
(such as generating a need to expand water treatment facilities),
roads, bridges, emergency services, schools and other municipal
services. How will these burdensome impacts on host and adjacent
communities be addressed? In the current format, communities are left
to address the impacts on their own, after the fact, and with a
substantial increase in cost to taxpayers. In an open, collaborative
format under revisions to the trust acquisition process, each of these
impacts can be quantified and addressed in a manner that seeks fairness
to all parties involved.
Depending on the location of a reservation and based on current
trust acquisition laws, it may be possible for a tribe to acquire land
in trust, citing the existing arbitrary ``need criterion,'' then
relocate a corporate headquarters or large scale manufacturing facility
to a reservation. Such proposals on trust lands are not required to
seek planning or zoning approvals, or to address local traffic impacts
or impacts to municipal services. Should such an event occur, it would
essentially become a new form of tax inversion. If it is not the intent
of the Federal Government to fully guaranty reimbursement funding
through Payment In Lieu Of Taxes (PILOT) and other means to the host
and adjacent communities for the potential and very real impacts to,
and ongoing maintenance of, the aforementioned municipal services, then
the need for advance notice and a place at the table for the impacted
communities must be provided for a revised trust acquisition process.
Procedurally, the tribe should be required to provide advance
notice to the affected local governments before an application is
submitted to BIA, and those local governments must be consulted
throughout the process. Trust acquisitions should not be approved
without local government consent in the absence of a compelling need to
do so.
Question 2. You said that pre-empting state/local personal property
tax over non-Indians would have a negative impact on your town. Can you
provide specific information about that impact?
Answer. The state of Connecticut empowers municipalities to tax
personal property (including vehicles), as a means to assist in funding
municipal government needs. To that end, the town of Ledyard issues tax
bills for personal property only to the non-Indian private enterprise
vendors doing business on the tribe's reservation. In Ledyard's case,
this includes private enterprises doing business within the Foxwoods
Resort Casino campus, including California Pizza Kitchen, Dunkin Donuts
and Panera Bread Company as well as Tanger Outlets (a $2.5 billion
publicly traded company), and the outlet and factory stores associated
with the Tanger Outlet center, which include Nike, Ann Taylor, Armani,
Gap Stores as a few of the 80+ stores. These non-Indian businesses
generate a variety of burdens on our local government, and make use of
our public services, for which the personal property tax is the only
way we have of collecting revenue to pay for these costs. For example,
these businesses depend on our public roads for their customers,
employees, and suppliers. Those customers and employees can require
emergency services from the town while in transit, and many employees
live in Ledyard, using the full range of public services provided by
the town, as well.
For Fiscal Year 2016-2017, the town of Ledyard collected
$539,073.54 in personal property taxes from these private enterprise,
profit-motivated, non-Indian owned businesses operating on the
reservation. These personal property taxes, a routine cost of doing
business in numerous states throughout the country, have minimal impact
on corporate owners, yet to our town, represent more than .5 mils
annually in taxes used to mitigate the tax burden on our residents. In
our town of 15,100 residents and a tax base comprised of 92 percent
residential and only 8 percent commercial, each tax dollar increase or
decrease falls squarely on the backs of the homeowners.
To be clear, the town does not collect real property taxes on any
structure upon the reservation, it is strictly limited to personal
property taxes collected only from non-Indian owned entities (The Hard
Rock Cafe is excluded from all taxes as it operates within the
Foxwood's Resort Casino and it is owned by the Seminole Indian Tribe of
Florida). The collection of personal property taxes should have no
impact on the Mashantucket Pequot Tribe as the non-Indian owned
businesses operating within the casino and reservation boundaries are
responsible for paying these personal property taxes, not the tribe.
There is nothing unusual about this in terms of what is often labeled
as ``double taxation''--private businesses are typically subject to
various taxes by more than one jurisdiction (Federal, state, local, or
tribal), which are used to pay for the costs of government and the
public services provided by each jurisdiction.
The town has prevailed in a Federal legal case brought by the tribe
regarding the town's taxation rights on personal property of privately
owned, leased slot machines located on the reservation. The town has
expended more than $1 million in this case and much to my dismay, the
town has yet to be compensated for this 10-year legal battle.
The loss of personal property taxes levied on businesses operating
within the reservation would be catastrophic for our town. We have a
total of two departments with more than 10 employees within the town's
general government--those being the Police Department and Public Works.
The balance of the departments are 1 to 3 employees. We do not have
fluff and we have no overstaffing. The town operates on a very lean
annual budget and find ourselves combing through line item expenditures
yearly to seek savings as little as $50-$75. At last year's budgeting
sessions, our Fire Marshal offered to purchase his uniforms at Wal-Mart
at an annual savings to the town of approximately $180. This is but one
example of the very real financial challenges we face daily. As Chief
Francis of the Penobscot Tribe of Maine pointed out in congressional
testimony on July 13, 2017, Ledyard does receive money from the so-
called Mashantucket Pequot/Mohegan Fund, as do ALL 169 municipalities
within the state of Connecticut. As administrator of these funds, the
state distributes this ``grant funding'' from this revenue stream that
currently produces $269 million for the state. These proceeds are never
fully distributed. As a host community, we receive an additional amount
of funding. In Fiscal Year 2016-2017 that additional payment was
$128,678--roughly enough funding to pay for one fully burdened police
officer. A town adjacent to Ledyard, but not adjacent to the tribe's
reservation, receives more than double what Ledyard receives as a host
community. As of this writing, the governor of Connecticut's budget
calls for elimination of all payments from this fund.
We also educate the tribe's children in our public schools.
Currently, we have 76 enrolled in our schools. For that, we receive
annual Federal Impact Aid in an amount equal to $4,044.40 per pupil.
Additionally, 14 percent of those students are special needs students.
The town receives an additional annual payment of $669.90 per pupil for
this. The annual cost of education per pupil in Ledyard is currently
$15,100. This education example is one of the many additional costs
placed upon the host community with no consideration of impact.
______
Mr. LaMalfa. Thank you, Mayor Allyn.
I now recognize Mr. Mitchell to testify for 5 minutes.
STATEMENT OF DONALD MITCHELL, ATTORNEY AT LAW, ANCHORAGE,
ALASKA
Mr. Mitchell. Thank you, Mr. Chairman and Ranking Member
Torres. This is my fourth time since the Carcieri decision that
the Committee has invited me to discuss it and the Indian
Reorganization Act. How I got this gig is an interesting war
story, but here I am again, and I very much appreciate the
opportunity.
In addition to my analysis of the situation in my written
testimony, I would just make three points that I think are all
self-evident.
First, the Indian commerce clause of the U.S. Constitution
grants Congress, not the Secretary of the Interior, not
employees of the BIA bureaucracy, but Congress, the exclusive
plenary authority to decide the Nation's Indian policies.
Congress expresses its policy preferences by enacting statutes.
The executive branch has a constitutional obligation to
implement those statutes in the manner that the Congress that
enacted a particular statute intended.
That is not the situation that has happened here, as the
Ranking Member just said, what the Carcieri decision did was to
unsettle a ``long-standing administrative interpretation.''
Well, that is not how our constitutional system works.
The way our constitutional system works is that they should
have been administering the intent of Congress as that intent
was enacted and codified in 1934. The U.S. Supreme Court said
that they had not been doing that. And it is quite amazing that
in 2014, that Solicitor Hilary Tompkins, having learned
absolutely nothing from the Carcieri experience, came up with a
Solicitor's Opinion to try to explain away the Carcieri holding
in her Solicitor's Opinion on what ``under Federal
jurisdiction'' means. And I suspect that when some day that is
litigated, we will find that once again the Department has done
whatever it can to not implement the intent of Congress from
1934.
The second point I would like to make is that, since the
days of Ada Deer as the Assistant Secretary in 1993, I have
been around a long time, this Committee has continually been
told that the Members of the 73rd Congress intended their
enactment of the IRA to end the ``assimilation policy'' of
assimilation being the objective of Congress' Indian policy.
That is simply historically inaccurate.
To the man and the single woman, the members of the Senate
and House Committees on Indian Affairs that wrote the IRA were
committed assimilationists in that they thought that the best
thing Congress could do for Native Americans who lived on
reservations in existence in 1934 was to have programs that
would encourage them to integrate themselves into the economy
and popular culture of the Nation in which those reservations
are located.
Now, you can agree with that or you can disagree with that,
but that was what they intended by any fair reading of the
historical record. And what they intended was that the IRA
should benefit people that were residing on reservations that
were in existence in 1934.
If you could bring Senator Burton Wheeler, who was a
progressive Democrat, or Chairman Edgar Howard, the Chairman of
the House Indian Committee, back from the dead, and tell them
that 80 years later Congress was creating Indian tribes like
the Graton Rancheria in statutes, or that the BIA was creating
Indian tribes like the Cowlitzes out in Washington, they would
be, first, astounded, and then outraged. And I am not
expressing my policy views, I am just trying to tell you what
those people that enacted the statute that is on the table
today intended.
Then the last thing I would say, Mr. Chairman, is that
every member of this Committee has introduced bills that they
hope that the 115th Congress will enact into law. If one of
those bills is enacted, with the possible exception of Mr.
Young, nobody stays in the U.S. House of Representatives
forever, and if one of your bills was enacted, and 20, 30 years
later you came back and you found out that the Interior
Department bureaucracy did not like what you had done in your
statute, and therefore had come up with an administrative
interpretation to nullify it, I would suspect that, regardless
of party or political philosophy, that each of you would be
outraged.
And that is, in fact, historically what has happened with
respect to the Department's implementation of the Indian
Reorganization Act in the modern age. Thank you very much, Mr.
Chairman.
[The prepared statement of Mr. Mitchell follows:]
Prepared Statement of Donald Craig Mitchell, Attorney at Law,
Anchorage, Alaska
Chairman LaMalfa, members of the Subcommittee, my name is Donald
Craig Mitchell. I am an attorney in Anchorage, Alaska, who has been
involved with Native American policy and legal issues from 1974 to the
present in Alaska, on Capitol Hill, inside the Department of the
Interior, and in the Federal courts. I first testified before the
Committee on Interior and Insular Affairs (as the Committee on Natural
Resources then was known) in 1977. That was 40 years ago. Since then I
have testified before the Committee and its Subcommittees approximately
a dozen times, including when I was invited in 2009 and 2011 to discuss
Carcieri v. Salazar, the 2009 decision in which the U.S. Supreme Court
construed the intent of the 73rd Congress embodied in the first
definition of the term ``Indian'' in Section 19 of the Indian
Reorganization Act (IRA), and in 2015 to discuss the changes Assistant
Secretary of the Interior for Indian Affairs Kevin Washburn had
proposed to the BIA's tribal recognition regulations, 25 C.F.R. 83.1 et
seq.
I appreciate being invited back to discuss the need for the 115th
Congress to amend Sections 5 and 19 of the IRA.
With respect to that subject I would like to make two points.
1. The Indian Commerce Clause of the U.S. Constitution grants
Congress--not the Secretary of the Interior, and certainly not the
(BIA)--exclusive plenary power to decide the Nation's Indian policies.
Congress exercises that power by enacting statutes. The U.S. Supreme
Court has instructed that when an executive branch agency responsible
for administering a statute determines the intent of the Congress that
enacted it embodied in the statute's text, the agency must do so ``with
reference to the circumstances existing at the time of the [statute's]
passage.'' In 2014 when she issued Solicitor's Opinion M-37029 (The
Meaning of ``Under Federal Jurisdiction'' for Purposes of the Indian
Reorganization Act) Department of the Interior Solicitor Hilary
Tompkins disregarded that blackletter rule of statutory construction in
order to produce a policy result of which the BIA approves, even though
that result violated the intent of the 73d Congress embodied in the
text of Section 19 (and Section 5) of the IRA.
Section 5 of the IRA authorizes the Secretary of the Interior to
acquire land ``for the purpose of providing land for Indians.'' In
turn, Section 19 of the IRA contains three definitions of the term
``Indian.'' The first definition states that ``Indian'' means persons
of Indian descent who are members of ``any recognized Indian tribe now
under Federal jurisdiction.'' (emphasis added). On February 24, 2009 in
its decision in Carcieri v. Salazar the U.S. Supreme Court held that,
contrary to the BIA's administrative interpretation, the 73rd Congress
that enacted the IRA intended the word ``now'' to mean ``the date of
enactment of the IRA, i.e., June 18, 1934.''
In Carcieri the State of Rhode Island had challenged the validity
of a decision by the Secretary of the Interior to take the title to 32
acres of land into trust for the Narragansett Tribe pursuant to Section
5 of the IRA. The members of the Narragansett Tribe did not become a
federally recognized tribe until 1983 when Acting Assistant Secretary
of the Interior for Indian Affairs John Fritz granted the members that
legal status pursuant to an administrative process--codified at 25
C.F.R. 83.1 et seq.--that the BIA and the Office of the Solicitor
invented in 1978. Because on June 18, 1934 the Narragansett Tribe did
not exist, when the Carcieri litigation was in the lower Federal courts
the tribe admitted that it had not been ``under Federal jurisdiction''
on June 18, 1934. As a consequence, in Carcieri the U.S. Supreme Court
held that the State of Rhode Island was correct that the members of the
Narragansett Tribe were not ``Indians'' as the first definition in
Section 19 of the IRA defines that term. And because they were not, the
Secretary of the Interior had no authority pursuant to Section 5 of the
IRA to take into trust the title to the 32 acres of land that was the
subject of the lawsuit.
Between 1972 and 2009 Congress enacted statutes that created 17 new
federally recognized tribes, and between 1980 and 2009, in addition to
the Narragansett Tribe, the BIA created 15 other new federally
recognized tribes utilizing its 25 C.F.R. 83.1 et seq. administrative
process. Since the Secretary--aka the BIA--had used Section 5 of the
IRA to take the title to land into trust for a number of those tribes,
at least 10 of which were operating Las Vegas-style gambling casinos on
the land, the Carcieri decision was problematical for those tribes
because the decision suggested that the Secretary's acquisition of land
for the tribes pursuant to Section 5 of the IRA had been ultra vires.
A week after the U.S. Supreme Court issued the Carcieri decision,
during its winter meeting in Washington, DC, the National Congress of
American Indians (NCAI) passed a resolution that condemned the decision
and urged the 111th Congress to amend Section 19 of the IRA to reverse
its holding. In response, Representative Nick Rahall and Senator Byron
Dorgan, the Democratic Chairmen of the House Committee on Natural
Resources and Senate Committee on Indian Affairs, announced that both
committees would hold oversight hearings on the Carcieri decision.
The Committee on Natural Resources held its hearing on April 1,
2009. I was invited to testify to explain why the U.S. Supreme Court
had correctly construed the intent of the 73rd Congress embodied in the
word ``now'' in Section 19, and Colette Routel, a professor at the
University of Michigan Law School, was invited to testify to explain
why I was wrong. That October Representative Tom Cole, a Republican
member of the Appropriations Committee, and Representative Dale Kildee,
a Democratic member of the Committee on Natural Resources, introduced
H.R. 3697 and H.R. 3742, bills whose enactment would have amended
Section 19 in a manner that would have reversed the Carcieri decision.
That was four Congresses and more than 7 years ago. Throughout that
time NCAI and the BIA failed to persuade the Committee on Natural
Resources to report Representatives Cole's, Representative Kildee's, or
any other bill whose enactment would have amended Section 19 and
reversed the Carcieri decision. One reason why the Committee did not
report a bill is that Secretaries of the Interior Ken Salazar and Sally
Jewell refused to provide the Committee the information the members
needed to evaluate the effect of the Carcieri decision.
On November 4, 2009 the Committee held a hearing on H.R. 3697 and
H.R. 3742. Prior to the hearing Representative Doc Hastings, at the
time the Ranking Republican Member, sent Secretary Salazar a letter in
which he requested the Secretary to have the Department of the
Interior's witness prepared to provide the Committee with answers to 16
questions. One was: Has the Department determined which tribes . . .
were not under Federal jurisdiction on June 18, 1934?'' Another was:
``Does the Department agree that the Supreme Court's decision was
correct as to the law, notwithstanding the long-standing policy of the
Department?'' (emphasis in original).\1\ Pointedly ignoring that
request, the Department's witness, Deputy Assistant Secretary of the
Interior for Indian Affairs Donald Laverdure, answered none of those
questions. Instead, in a letter dated January 19, 2010 the Legislative
Counsel of the Department of the Interior informed Chairman Rahall that
``the Department has not made, and does not intend to make, a
comprehensive determination as to which federally recognized tribes
were not under Federal jurisdiction on June 18, 1934,'' that ``the
Department has not created a list of tribes negatively impacted by the
Carcieri decision,'' and that ``the Department has not undertaken a
review of what land was acquired in trust for tribes that may not have
been under Federal jurisdiction on June 18, 1934.''
---------------------------------------------------------------------------
\1\ Letter from Doc Hastings, Ranking Republican Member, House
Committee on Natural Resources, to The Honorable Ken Salazar, Oct. 30,
2009.
---------------------------------------------------------------------------
NCAI and the BIA had better luck in the Senate with the Committee
on Indian Affairs. In May 2012 the Committee reported S. 676, and in
August 2014 reported S. 2188, bills Senators Daniel Akaka and Jon
Tester, the Chairmen of the Committee, sponsored during the 112th and
113th Congresses. But the Senate refused to consider either bill.
Solicitor's Opinion M-37029
After watching Representatives Cole and Kildee and Senators Akaka
and Tester repeatedly fail to persuade their colleagues to pass a bill
whose enactment would amend Section 19 of the IRA and reverse the
Carcieri decision, in 2014 Hilary Tompkins, the Solicitor of the
Department of the Interior, decided to try and ameliorate on her own
what she considered the adverse consequences of the decision.
Between February 24, 2009, the date the U.S. Supreme Court issued
the Carcieri decision, and March 2013 Secretary Salazar--aka the BIA--
took into trust for various tribes the title to more than 202,000 acres
of land. In a letter dated March 20, 2013, Solicitor Tompkins explained
how that was done as follows: ``The [Supreme] Court did not elucidate
th[e] phrase [``under Federal jurisdiction''] and, accordingly, the
Department has utilized its expertise in interpreting and applying the
temporal qualification . . . Each land-into-trust application has
required the Department, based on advice provided by the Office of the
Solicitor, to conduct an individualized legal analysis based on
Carcieri.'' \2\
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\2\ Letter from Hilary C. Tompkins, Solicitor, U.S. Department of
the Interior, to Honorable Cedric Cromwell, Chairman and President,
Mashpee Wampanoag Tribe, March 20, 2013.
---------------------------------------------------------------------------
What legal standard did Solicitor Tompkins advise the BIA to apply
to determine whether a federally recognized tribe that had submitted an
application had been ``under Federal jurisdiction'' on June 18, 1934?
On March 12, 2014 Solicitor Tompkins issued Solicitor's Opinion M-37029
in which she announced that she had instructed the BIA to apply a two-
part test.
Part one requires the BIA to determine whether the evidentiary
record demonstrates that ``the United States had, in 1934 or at some
point in the tribe's history prior to 1934, taken an action or series
of actions--through a course of dealings or other relevant acts for or
on behalf of the tribe or in some instance tribal members--that are
sufficient to establish, or that generally reflect Federal obligations,
duties, responsibility for or authority over the tribe by the Federal
Government.'' (emphases added). If that evidentiary showing is made,
part two requires the BIA ``to ascertain whether the tribe's
jurisdictional status remained intact in 1934.''
It merits comment that after making the bald assertion in part one
of her two-part test that ``a course of dealings or other relevant acts
for or on behalf of . . . tribal members'' can establish the Federal
Government's exercise of authority over the members' tribe Solicitor
Tompkins did not explain how the BIA providing benefits to individual
Indians--such as enrolling children at Carlisle or one of the other
boarding schools the BIA operated--is evidence that Federal
jurisdiction had been asserted over a tribe. Solicitor Tompkins'
silence regarding that portion of her analysis is problematical because
on June 19, 2017 Associate Deputy Secretary of the Interior James Cason
issued a draft decision in which he determined that the Mashpee
Wampanoag Tribe, which the BIA created in 2007 utilizing its 25 C.F.R.
83.1 et seq. administrative process, had not been ``under Federal
jurisdiction'' on June 18, 1934. In that decision he concluded that
``evidence of Mashpee student enrollment at Carlisle does not
unambiguously demonstrate that such enrollment was predicated on a
jurisdictional relationship with the Tribe as such. Without any other
evidence that the Federal Government provided services to the Tribe,
the Mashpee student records fall short of demonstrating that (sic)
Tribe itself came under Federal jurisdiction.''
In 2014 in her decision in Confederated Tribes of the Grand Ronde
Community v. Jewell \3\ District Judge Barbara Rothstein deferred to
Solicitor Tompkins and held that she had authority to interpret the
intent of the 73rd Congress embodied in the phrase ``under Federal
jurisdiction'' by inventing her two-part test.\4\ Judge Rothstein also
deferred to Solicitor Tompkins' assertion, which she subsequently
announced in Solicitor's Opinion M-37029, that the 73rd Congress
intended the phrase ``any recognized Indian tribe now under Federal
jurisdiction.'' (emphases added) in the first definition of the term
``Indian'' in Section 19 of the IRA to allow a tribe that was ``under
Federal jurisdiction'' on June 18, 1934 to be ``recognized'' at a later
date.
---------------------------------------------------------------------------
\3\ 75 F. Supp.3d 387 (D.C.D.C. 2014).
\4\ In 2013 Secretary of the Interior Sally Jewell issued a record
of decision in which she concluded that the Cowlitz Indian Tribe, which
the BIA had created utilizing its 25 C.F.R. 83.1 et seq. administrative
process, had been ``under Federal jurisdiction'' on June 18, 1934. When
the validity of that decision was challenged, after noting that ``The
parties agree . . . that under [Section 19 of the IRA], the tribe, as
opposed to its individual members, must be under Federal
jurisdiction,'' Judge Rothstein deferred to Solicitor Tompkins and
concluded that ``Nothing in [Section 19 of the IRA] prohibits the
Secretary from considering the relationship between the Federal
Government and individual Indians when determining whether the tribe
itself was under Federal jurisdiction in 1934.'' See 75 F. Supp.3d at
402-403. If, as Associate Deputy Secretary Cason in his draft decision
now implies that it has, the Office of the Solicitor has concluded that
it was error for Judge Rothstein to have accepted Solicitor Tompkins'
assertion that school enrollment and other services the BIA may have
provided to an individual Indian is evidence that the United States had
asserted Federal jurisdiction over the tribe in which that Indian may
have been a member, considerations of fundamental fairness mandate that
Secretary of the Interior Ryan Zinke reconsider the Cowlitz record of
decision.
---------------------------------------------------------------------------
In 2016 a panel of the U.S. Court of Appeals for the District of
Columbia Circuit affirmed Judge Rothstein's deferral to Solicitor
Tompkins regarding those issues of statutory construction.\5\ However,
Solicitor Tompkins' statutory interpretations reflect a troubling
(because potentially purposeful) disregard for the intent of the
members of the Senate and House Committees on Indian Affairs who during
the 73rd Congress reported the bills that would be melded by a
Conference Committee on which many of those members served into the
text of the IRA.
---------------------------------------------------------------------------
\5\ See 830 F. 3d 552 (D.C. Cir. 2016).
---------------------------------------------------------------------------
As noted, the first definition of the term ``Indian'' in Section 19
states that ``Indian'' means persons of Indian descent who are members
of ``any recognized Indian tribe now under Federal jurisdiction.''
(emphases added).
Throughout the litigation that culminated in the Carcieri decision
the State of Rhode Island asserted that the 73rd Congress intended that
text to require an ``Indian tribe'' to have been both ``recognized''
and ``under Federal jurisdiction'' on the date of enactment of the IRA,
i.e., on June 18, 1934. In that regard, in its petition for a writ of
certiorari the State asked the U.S. Supreme Court to decide three
questions. The first was: ``Whether the 1934 Act empowers the Secretary
to take land into trust for Indian tribes that were not recognized and
under Federal jurisdiction in 1934.'' (emphasis added). The Court
granted the State's petition with respect to that question.
Because the Federal respondents and the Narragansett Tribe had
admitted that the tribe had not been ``under Federal jurisdiction'' on
June 18, 1934, the U.S. Supreme Court decided the case exclusively on
that ground. As a consequence, the Court did not consider the separate
question of whether the 73rd Congress intended the phrase ``recognized
Indian tribe now under Federal jurisdiction'' to require the
Narragansett Tribe to have been ``recognized'' on that date. However,
in a concurring opinion Justice Breyer mused that ``The statute [i.e.,
the first definition of the term ``Indian'' in Section 19] . . .
imposes no time limit upon recognition.''
Justice Breyer provided no rationale based on the history of the
73rd Congress' enactment of the IRA that supported the validity of that
assertion. Nevertheless, in Section F of Solicitor's Opinion M-37029
Solicitor Tompkins transformed Justice Breyer's dictum into a holding
by announcing that ``the IRA does not require that the agency determine
whether a tribe was a `recognized Indian tribe' in 1934; a tribe need
only be `recognized' at the time the statute is applied (e.g., at the
time the Secretary decides to take land into trust).''
Solicitor Tompkins based that conclusion regarding the intent of
the 73rd Congress embodied in the text of the first definition of the
term ``Indian'' in Section 19 of the IRA on a snippet from the hearing
record of the Senate Committee on Indian Affairs in which Wyoming
Senator Joseph O'Mahoney volunteered his view of the status of the
descendants of the Catawba Indians who resided on the border between
North and South Carolina.
The result she announced in Solicitor's Opinion M-37029 regarding
the date on which she believed the 73rd Congress intended to require an
``Indian tribe'' to have been ``recognized'' furthered a policy
objective Solicitor Tompkins considered laudable because--when combined
with the BIA's application of her two-part ``under Federal
jurisdiction'' test--it authorizes the Secretary of the Interior to
take into trust pursuant to Section 5 of the IRA the title to land for
most, if not all, of the more than 30 federally recognized tribes that
did not exist in 1934. However, Solicitor Tompkins' interpretation of
the intent of the 73rd Congress embodied in the text of the first
definition of the term ``Indian'' in Section 19 of the IRA reflects a
(purposeful?) disregard for the views regarding Federal Indian policy
of the members of the Senate and House Committees on Indian Affairs who
recommended the IRA to the 73rd Congress.
Since the U.S. Supreme Court issued the Carcieri decision in 2009,
the Department of the Interior has represented to the Committee on
Natural Resources and to this Subcommittee that the Members of the 73rd
Congress intended their enactment of the IRA to signify the abandonment
of assimilation as the objective of Congress' Indian policy. In 2009
when he testified in support of H.R. 3742 and H.R. 3697 Deputy
Assistant Secretary of the Interior for Indian Affairs Donald Laverdure
told the Committee: ``Congress' intent in enacting the Indian
Reorganization Act was threefold: to halt the Federal policy of
Allotment and Assimilation . . .'' (emphasis added). In 2011 when he
testified in support of H.R. 1234 and H.R. 1291 Deputy Assistant
Secretary Laverdure told this Subcommittee the same thing. And in
Solicitor's Opinion M-37029 Solicitor Tompkins described the IRA as ``a
sharp change of direction in Federal policy toward the Indians. It
replaced the assimilationist policy characterized by the General
Allotment Act, which had been designed to `put an end to tribal
organization' and to `dealings with Indians . . . as tribes.' ''
(emphasis added).
Those are self-serving misstatements of history because, while
Commissioner of Indian Affairs John Collier and Assistant Solicitor
Felix Cohen wanted Congress to abandon assimilation as the objective of
its Indian policy, the members of the Senate and House Committees on
Indian Affairs during the 73rd Congress were, to the man and single
woman,\6\ committed assimilationists who agreed to Commissioner
Collier's request that Section 1 of the IRA prohibit the further
allotment of reservations, not because they agreed with Collier that
Congress should abandon assimilation as its policy objective, but
because they had been convinced that allotting reservations had proven
a bad strategy for achieving that objective.
---------------------------------------------------------------------------
\6\ The single woman was Democratic Representative Isabella
Greenway who in 1932 was the first woman elected to represent the State
of Arizona in the U.S. House of Representatives.
---------------------------------------------------------------------------
For example, during the hearings the Senate Committee on Indian
Affairs held on S. 2755, the bill Commissioner Collier sent to the
Senate and of which Felix Cohen had been the principal draftsman,
Senator Burton Wheeler, the Chairman of the Committee, told
Commissioner Collier: ``Why shouldn't we take these Indians that want
to come and go out there and give them a piece of land, and if they
will go out and work that piece of land and do subsistence farming, and
start the Indian out with something that he can work with on that piece
of land, I think we will make a much better citizen out of him and a
much better Indian out of him, and he will work into the life of the
Nation. That is what we are seeking to do.'' (emphases added).\7\ And
during the Senate debate on a substitute version of the bill, when Utah
Senator William Henry King informed Senator Wheeler that he had been
told ``the Indian Bureau has been very anxious for a measure of this
character, fearing that the life of that organization might be ended in
the near future should the Indians take upon themselves the
responsibilities of citizenship,'' Wheeler responded: ``On the
contrary, this bill proposes to give the Indians an opportunity to take
control of their own resources and fit them as American citizens.''
(emphasis added).\8\
---------------------------------------------------------------------------
\7\ To Grant to Indians Living Under Federal Tutelage the Freedom
to Organize for Purposes of Local Self-Government and Economic
Enterprise: Hearing on S. 2755 before the Senate Comm. on Indian
Affairs, 73rd Cong. 73-74 (1934) [hereinafter ``1934 Senate Hearing''].
\8\ 78 Cong. Rec. 11124 (1934). In 1924 Congress granted
citizenship to ``all noncitizen Indians born within the territorial
limits of the United States''--see Pub. L. No. 68-175 (1924). In 1924
Senator Wheeler was a member of the Committee on Indian Affairs that
wrote the Indian Citizenship Act--see 65 Cong. Rec. 156 (1923); S. Rep.
No. 68-441 (1924) . So when he assured Senator King that participating
in the programs the IRA would make available would fit Indians to
become ``American citizens'' Wheeler knew they already were citizens.
For that reason, it is reasonable to assume that what Wheeler meant was
that their participation in the programs the IRA would make available
would facilitate Indians to ``work into the life of the Nation,'' i.e.,
to assimilate themselves into the mainstream American economy and
popular culture.
---------------------------------------------------------------------------
Senator Wheeler's involvement in the 73rd Congress' enactment of
the IRA is consequential because the Conference Committee he co-chaired
based the text of the ``Indian'' definition in Section 19 of the IRA on
the text of the ``Indian'' definition in Section 18 of the bill the
Senate Committee on Indian Affairs reported.\9\
---------------------------------------------------------------------------
\9\ See H.R. Rep. No. 73-2049, at 8 (1934) (``Section 19: The
definitions contained in Section 18 of the Senate bill were agreed
upon'').
---------------------------------------------------------------------------
Section 13(b) of Title I of S. 2755, the bill Commissioner Collier
sent to the Senate and of which Felix Cohen had been the principal
draftsman, defined the term ``Indian'' to mean ``all persons of Indian
descent who are members of any recognized Indian tribe, band, or,
nation, or are descendants of such members and were, on or about
February 1, 1934, actually residing within the present boundaries of
any Indian reservation, and shall further include all persons of one
fourth or more Indian blood . . .'' \10\ (emphases added). That text
suggests that Commissioner Collier and Felix Cohen believed that the
only persons eligible to benefit from the provisions of the IRA were
individuals of any degree of Indian blood quantum who resided on Indian
reservations that existed on February 1, 1934, plus individuals who did
not reside on a reservation but were of ``one fourth or more Indian
blood.'' That definition did not include within its purview individuals
of less than one fourth Indian blood who did not reside on a
reservation that existed on February 1, 1934.
---------------------------------------------------------------------------
\10\ 1934 Senate Hearing, at 6.
---------------------------------------------------------------------------
After listening to Commissioner Collier explain its content, the
members of the Senate Committee on Indian Affairs rejected S. 2755 and
Chairman Wheeler appointed a subcommittee to write a new bill. But then
Wheeler met privately with Collier and they worked out the general
content of a new bill, which Department of the Interior attorneys
(Felix Cohen?) then drafted, and Commissioner Collier sent to
Wheeler.\11\
---------------------------------------------------------------------------
\11\ Id. at 237 (Senator Wheeler informing the other members of the
Senate Committee on Indian Affairs: ``I first appointed a subcommittee
with the idea of taking the other bill [S. 2755] and amending it, but
subsequently I got together with the Commissioner of Indian Affairs and
went over the important points that I thought were in controversy, and
yesterday they sent up this bill, which eliminates, it seems to me,
practically all of the matters that are in controversy, but I want to
go over it'').
---------------------------------------------------------------------------
The text of the ``Indian'' definition in Section 19 of that bill is
identical to the text of the ``Indian'' definition in Section 19 of the
IRA, except it did not include the phrase ``under Federal
jurisdiction'' and it included within the purview of the definition
``persons of one fourth or more Indian blood.''
When the Committee members marked-up the bill, at Senator Wheeler's
request they amended the ``Indian'' definition by increasing the blood
quantum requirement from one-fourth to one-half because, as Wheeler
explained:
I do not think the Government of the United States should go
out here and take a lot of Indians in that are quarter bloods
and take them in under provisions of this act. If they are
Indians of the half-blood then the Government should perhaps
take them in, but not unless they are. If you pass it to where
they are quarter-blood Indians you are going to have all kinds
of people, coming in and claiming they are quarter-blood
Indians and want to be put upon the Government rolls, and in my
judgment it should not be done. What we are trying to do is get
rid of the Indian problem rather than add to it. (emphases
added).\12\
---------------------------------------------------------------------------
\12\ Id. at 263-264.
It is reasonable to assume that the vast majority of the members of
most of the more than 30 Indian tribes Congress and the BIA created
after the date of enactment of the IRA, and particularly the tribes the
BIA created utilizing its 25 C.F.R. 83.1 et seq. administrative
process, are individuals who each are of less than ``one-half or more
Indian blood.''
The Cowlitz Tribe, which I previously have mentioned, is a
representative example. In the 19th century Indians lived in villages
along the Cowlitz River, a tributary of the Columbia River, which today
demarks the boundary between the states of Washington and Oregon. In
2000 the BIA ``recognized'' the Cowlitz Tribe, and in 2002 reaffirmed
that designation. When the BIA did so who were the members of the
tribe? According to the BIA, that is no one's business but the tribe's.
But in 1995 the BIA's anthropologist reported that 1,030 of the tribe's
1,577 members lived in 133 cities and towns throughout the state of
Washington, and that the tribe's 547 other members lived in cities and
towns in 34 other states as far east as Connecticut. The chairman of
the tribe was John Barnett who said he was a Cowlitz Indian because he
had a great-great grandmother who had been one. In 2015 the BIA took
into trust for the Cowlitz Tribe pursuant to Section 5 of the IRA a cow
pasture located next to an off-ramp of Interstate 5 north of Portland,
Oregon, as the tribe's ``initial reservation.'' Today, no member of the
Cowlitz Tribe resides on the reservation. Instead, 3 months ago the
tribe opened the Ilani Casino on the property whose gaming floor
contains 2,500 video gaming machines and 75 table games.
The members of the Senate Committee on Indian Affairs who wrote the
``Indian'' definition in Section 19 of the IRA explicitly intended that
individuals such as John Barnett not be ``taken in under the provisions
of the IRA.'' Nevertheless, in Section F of Solicitor's Opinion M-37029
Solicitor Tompkins announced that the 73rd Congress intended such
individuals to be taken in because the members of the Senate Committee
on Indian Affairs intended the phrase ``recognized Indian tribe now
under Federal jurisdiction'' to include within its purview Indian
tribes composed of individuals of any blood quantum that were
``recognized'' after the date of enactment of the IRA. The panel of the
U.S. Court of Appeals that decided Confederated Tribes of the Grand
Ronde Community v. Jewell upheld Solicitor Tompkins' authority to
reason to that result. But Solicitor Tompkins' interpretation of the
intent of the 73rd Congress embodied in the ``Indian'' definition in
Section 19 of the IRA stretches credulity past breaking.
The reason it does is that the U.S. Supreme Court has instructed
that the text of a statute is to be construed ``with reference to the
circumstances existing at the time of passage.'' \13\ For that reason,
it is ironic in the extreme that in his concurring opinion in Carcieri
v. Salazar Justice Breyer accepted the proposition that the 73rd
Congress intended the phrase ``recognized Indian tribe now under
Federal jurisdiction'' to ``impose[] no time limit upon recognition''
because its ``administrative practice suggests that the Department [of
the Interior] has accepted this possibility.'' \14\ Justice Breyer
deferred to the BIA's administrative practice because he believed ``the
Court owes the Interior Department the kind of interpretative respect
that reflects an agency's greater knowledge of the circumstances in
which a statute was enacted.'' (emphasis added).\15\ But Solicitor
Tompkins made no attempt to consider the circumstances in which the IRA
was enacted before she reasoned to her interpretation of the intent of
the 73rd Congress embodied in the phrase ``recognized Indian tribe now
under Federal jurisdiction'' that she announced in Section F of
Solicitor's Opinion M-37029.
---------------------------------------------------------------------------
\13\ United States v. Wise, 370 U.S. 405, 411 (1962).
\14\ 555 U.S. at 398.
\15\ Id. at 396.
---------------------------------------------------------------------------
In summary, whether the members of tribes that Congress and the BIA
created after the date of enactment of the IRA should be included
within the purview of the first definition of the term ``Indian'' in
Section 19 of the IRA so that the BIA can acquire land for those tribes
pursuant to Section 5 of the IRA is a policy question. If the members
of this Subcommittee determine that it is an appropriate policy outcome
for members of tribes such as the Cowlitz Tribe to be included, they
can recommend to the Committee on Natural Resources that the Committee
report a bill to the 115th Congress whose enactment will amend Section
19 to allow that result. But until and unless Section 19 is amended,
the members of those tribes are not Section 19 ``Indians.'' And because
they are not, the Secretary has no authority pursuant to Section 5 of
the IRA to acquire land for their benefit.
2. Section 5 of the IRA is an unconstitutional delegation of authority
to an executive branch agency. The regulations the Secretary of the
Interior promulgated while South Dakota v. Department of the Interior
was being litigated do not cure the constitutional defect, nor do the
Secretary's regulations establish substantive criteria that govern his
exercise of the discretionary authority that Section 5 delegates.
Section 5 of the IRA authorizes the Secretary of the Interior to
acquire land ``for the purpose of providing land for Indians,'' and
directs that the title to that land ``be taken in the name of the
United States in trust for the Indian tribe or individual Indian for
which the land is acquired.'' In 1990 the BIA announced that it had
made a decision to take the title to 91 acres of land into trust
pursuant to Section 5 for the Lower Brule Tribe of Sioux Indians.
The State of South Dakota challenged the BIA's authority under
Section 5 to do so, and in 1995 in South Dakota v. Department of the
Interior a panel of the U.S. Court of Appeals for the Eighth Circuit
issued a decision in that lawsuit in which the panel declared that
Section 5 is an unconstitutional delegation of authority to an
executive branch department because the text of Section 5 contains no
judicially identifiable and enforceable standards that limit the BIA's
exercise of the authority Section 5 delegates. In so holding, the panel
observed that:
By its literal terms, the statute permits the Secretary [of the
Interior] to purchase a factory, an office building, a
residential subdivision, or a golf course in trust for an
Indian tribe, thereby removing these properties from state and
local tax rolls. Indeed, it would permit the Secretary to
purchase the Empire State Building in trust for a tribal
chieftain as a wedding present. There are no perceptible
`boundaries,' no `intelligible principles,' within the four
corners of the statutory language that constrain this delegated
authority . . .''
After the State of South Dakota challenged the Secretary's
authority pursuant to Section 5 of the IRA to take the title to the
aforementioned 91 acres of land into trust, in 1991 the BIA published a
proposed rule whose adoption as a final rule would amend regulations
the BIA had promulgated in 1980 that created a cursory process for
making Section 5 land acquisitions. Five months before the panel issued
its decision in South Dakota, in June 1995 the BIA published a final
rule that promulgated the regulations. And 5 months after the panel
issued its decision, in April 1996 the BIA published a final rule that
amended its Section 5 regulations again by adding a provision that
required the BIA to publish in the local newspaper a notice of a
decision to take the title to a parcel of land into trust and to not
take the title into trust for 30 days in order to provide an
opportunity for a lawsuit challenging the validity of the decision to
be filed.
The Solicitor General then used the 1996 regulation as a pretext
for requesting the U.S. Supreme Court to vacate the panel's decision in
South Dakota and remand the BIA's decision that was the subject of the
lawsuit to the Secretary of the Interior for reconsideration. Over the
protestation of Justices Scalia, O'Connor, and Thomas,\16\ a majority
of the members of the Court agreed to do so.
---------------------------------------------------------------------------
\16\ See Department of the Interior v. South Dakota, 519 U.S. 919
(1996).
---------------------------------------------------------------------------
On May 12, 2015 this Subcommittee held an oversight hearing
regarding the ``Inadequate Standards for Trust Land Acquisition in the
Indian Reorganization Act.'' In his testimony, Assistant Secretary of
the Interior for Indian Affairs Kevin Washburn, the first witness,
pointed out that since the U.S. Supreme Court vacated the South Dakota
v. Department of the Interior decision ``every court to consider the
issue has upheld the constitutionality of Section 5 of the IRA in the
face of a challenge to its lack of standards.'' Assistant Secretary
Washburn also represented to the Subcommittee that ``The Department's
land-into-trust regulations at 25 C.F.R. Part 151 establish procedures
and substantive criteria to govern the Secretary's discretionary
authority to acquire land in trust.'' (emphases added).
Whatever the expressions of opinion of the lower Federal courts
regarding the constitutionality of Section 5 of the IRA, until the U.S.
Supreme Court grants a petition for a writ of certiorari that requires
the Court to decide the question, whether Section 5 is constitutional
is an undecided question about whose answer Kevin Washburn, who is now
a law professor, and I can continue to disagree. But what is not in
dispute is that Assistant Secretary Washburn's representation to this
Subcommittee that 25 C.F.R. 151.1 et seq. ``establish[es] . . .
substantive criteria to govern the Secretary's discretionary authority
to acquire land in trust'' was demonstrably false.
25 C.F.R. 151.10 directs the Secretary of the Interior to
``consider'' eight criteria before he decides whether to take into
trust the title to land that is ``located within or contiguous to an
Indian reservation.'' And 25 C.F.R. 151.11 directs the Secretary to
``consider'' those criteria plus two others before he decides whether
to take into trust the title to land that is ``located outside of and
noncontiguous to the tribe's reservation.''
But in both cases, after he ``considers'' the criteria, the
Secretary may ignore any or all of the information his consideration
generated and make any decision he wishes regarding whether to take the
title to the land into trust. So contrary to Assistant Secretary
Washburn's representation, on their face, 25 C.F.R. 151.10 and 151.11
do not establish substantive criteria that govern ``the Secretary's
discretionary authority to acquire land in trust.''
It also merits mention that 25 C.F.R. 1.2 announces that ``the
Secretary retains the power to waive or make exceptions to his
regulations as found in chapter I of title 25 C.F.R. in all cases where
permitted by law and the Secretary finds that such waiver or exception
is in the best interest of the Indians.'' (emphasis added). Since 25
C.F.R. 151.1 et seq. is located in chapter I, if arguendo the criteria
listed in 25 C.F.R. 151.10 and 151.11 are ``substantive'' because they
somehow ``govern'' the Secretary's exercise of the discretionary
authority that Section 5 of the IRA delegates to take the title of land
into trust, whenever he decides that doing so will be ``in the best
interest of the Indians'' the Secretary may disregard any criterion he
wishes, or, if need be, all 10 of them.
In conclusion, the 73rd Congress enacted Sections 5 and 19 of the
IRA more than 80 years ago. During that time no succeeding Congress has
revisited the policy rationale that underpins either section.
Whether in the first decades of the 21st century it is an
appropriate policy result for Section 5 of the IRA to continue to
delegate the Secretary of the Interior unfettered authority to take
into trust the title to land located outside the boundaries of Indian
reservations that were in existence on June 18, 1934 is a question that
merits public discussion. As are the questions of whether Section 5
should be amended to include in the section's text judicially
identifiable and enforceable standards to govern the Secretary's
exercise of the land acquisition authority Section 5 delegates, and
whether it would be an appropriate policy result for the 115th Congress
to amend Section 19 of the IRA to expand the definition of the term
``Indian'' to include within the term's purview individuals of Indian
descent who regardless of their degree of blood quantum are members of
groups that, subsequent to June 18, 1934, Congress or the Secretary of
the Interior (acting lawfully pursuant to authority that Congress has
delegated to the Secretary in a statute) has designated as a
``federally recognized tribe.''
The Subcommittee's consideration of those and related policy
questions regarding the IRA is decades past due.
______
Supplemental Testimony of Donald Craig Mitchell
July 27, 2017
Chairman LaMalfa, members of the Subcommittee, at the
Subcommittee's invitation on July 13, 2017 I testified at the oversight
hearing the Subcommittee held to obtain information regarding whether
in recent years the Secretary of the Interior--aka the Bureau of Indian
Affairs (BIA)--has exercised the land acquisition authority the 73rd
Congress delegated to the Secretary in Section 5 of the Indian
Reorganization Act (IRA) in the manner the 73rd Congress intended.
In my testimony I made the following points:
First, during the 73rd Congress the texts of the bills that a
Conference Committee melded into the text of the IRA were written by
the members of the Senate and House Committees on Indian Affairs;
Second, to the man and single woman the members of those committees
believed that encouraging Indians who resided on reservations to
assimilate into the cash economy and popular culture should continue to
be the objective of Congress' Indian policies just as it had been the
objective of those policies since the 1880s and just as it would
continue to be the objective of those policies until the late 1970s;
Third, in Section 1 of the IRA the members of both committees
directed the BIA to stop the allotment of Indian reservations, not
because Commissioner of Indian Affairs John Collier had convinced them
to abandon assimilation as the objective of Congress' Indian policies,
but because Commissioner Collier had convinced them that the allotment
of reservations had failed to achieve that policy objective and instead
had left many Native Americans who had been allotted land that they
then had sold or to which they had otherwise lost their title
impoverished;
Fourth, the members of both committees intended to limit the land
acquisition authority that Section 5 of the IRA delegates to the
Secretary of the Interior to the acquisition of land for members of
Indian tribes that had been lawfully recognized on or before June 20,
1934, i.e., the date of enactment of the IRA;
Fifth, in Solicitor's Opinion M-37029 Department of the Interior
Solicitor Hilary Tompkins misinterpreted the intent of the 73rd
Congress embodied in the text of Section 19 of the IRA when she
announced that, in her view, the 73rd Congress intended the phrase
``recognized Indian tribe now under Federal jurisdiction'' to include
within its purview Indian tribes that have been created by Congress or
lawfully recognized by the Secretary of the Interior subsequent to June
20, 1934; and
Sixth, Section 5 of the IRA is an unconstitutional delegation of
authority from Congress to the head of an executive branch department
because the text of Section 5 contains no judicially identifiable and
enforceable standards that limit the exercise of the authority Section
5 delegates.
When I made those points at the July 13, 2017 hearing I was joined
at the witness table by James Cason, the Acting Deputy Secretary of the
Department of the Interior, Fred Allyn, the Mayor of Ledyard,
Connecticut, and Kirk Francis, the President of United South and
Eastern Tribes (USET).
In his written and oral statements, President Francis expressed to
the members of the Subcommittee views regarding the history and
present-day implementation of the IRA that were diametrically the
opposite of the views regarding those subjects that I expressed in my
written and oral statements.
President Francis undoubtedly believes in the historical and legal
validity of the views about the IRA he expressed to the Subcommittee
and he certainly was entitled to express those views and to have the
members of the Subcommittee consider them just as they will consider
the views Acting Deputy Secretary Cason, Mayor Allyn, and I expressed.
However, in an apparent attempt to persuade the members of the
Subcommittee to accept his views and reject mine, after the hearing
President Francis submitted to the Subcommittee, not an explanation of
why he believes I did not know what I had been talking about regarding
the IRA, but rather a written statement USET submitted to the
Subcommittee 2 years ago in an attempt to discredit testimony I
presented when I was invited by the Subcommittee to testify at a
hearing the Subcommittee held on April 22, 2015 entitled ``The Obama
Administration's Part 83 Revisions and How They May Allow the Interior
Department to Create Tribes, not Recognize Them.''
President Francis deciding to do that is curious because the
subject of the April 22, 2015 hearing has nothing to do with the IRA-
related subjects about which the Subcommittee solicited testimony at
the July 13, 2017 hearing.
In any case, the written statement I submitted to the Subcommittee
at the April 22, 2015 hearing and my oral presentation at that hearing
are available on the Committee on Natural Resources' website at:
https://naturalresources.house.gov.
I would encourage the members of the Subcommittee and interested
members of the public to read that written statement and watch that
oral presentation, then read the written statement USET submitted to
the Subcommittee in which the organization attempted to discredit both,
and then decide for themselves whether, as USET asserted, I had no idea
what I was talking about regarding the subject of the April 22, 2015
hearing, which was then Assistant Secretary of the Interior for Indian
Affairs Kevin Washburn's rewrite of the BIA's 25 C.F.R. 83.1 et seq.
tribal recognition regulations.
In closing, Mr. Chairman, Federal Indian policy involves an arcane
mix of law and history of which few members of the Subcommittee, much
less most other Members of the 115th Congress, are fully conversant
regarding many of the details that have potentially consequential
policy impacts in the present day. For that reason, the members of the
Subcommittee are to be commended for wanting to educate themselves
about those details by holding hearings such as the hearing the
Subcommittee held on July 13, 2017.
It is regrettable that, rather than assisting the members of the
Subcommittee in that endeavor, President Francis decided, as USET did
after the April 22, 1915 hearing, to try to discredit the professional
qualifications of a messenger with whose message he and his
organization disagree. While timeworn, that tactic does the
Subcommittee, the 115th Congress, and the members of the tribes
President Francis and USET purport to represent no service.
______
Mr. LaMalfa. All right, thank you. The gentleman's time has
expired. We will now recognize Members for questions. We will
impose a 5-minute limit on questions for Members. And away we
go.
Let me ask Mayor Allyn a question really quick here. What
year was your city incorporated, or founded?
Mr. Allyn. You are referencing the Mashantucket Pequot
Tribe?
Mr. LaMalfa. No, your city.
Mr. Allyn. Oh, Ledyard was part of what was called North
Groton. It then separated in 1836 and became Ledyard. It was
originally part of a nearby town, which is now known as Groton,
Connecticut.
Mr. LaMalfa. OK. What year do you think the tribe was
founded there?
Mr. Allyn. The Mashantucket Pequot Tribe had been in and
out of existence, I would say, in Ledyard for at least a couple
hundred years. My great-great-grandfather, who was also the
town clerk in the Town of Ledyard, was responsible for visiting
the reservation back in the 1800s, and essentially inventorying
animals and people and what not, so----
Mr. LaMalfa. OK. I just found the term ``host community''
for Ledyard kind of a little maybe backwards on timing. So, I
saw a little humor in that, so I just wanted to check out the
dates on that.
Anyway, let me go to Mr. Cason here. During the Bush
administration, I am sure you are familiar with the litigation
as it moved through the lower courts on Carcieri, when it began
as Carcieri v. Norton. Do you believe the Supreme Court's
opinion is correct as to the law and intent of Congress in
enacting the IRA, or that the court got it wrong?
Mr. Cason. Mr. Chairman, as far as I know, we haven't taken
any position about whether the court got it wrong. We just
interpreted that the court said that we need to take a look at
the term of ``under Federal jurisdiction as of 1934,'' and the
Department of the Interior has been working to adopt that
standard established by the Supreme Court. So, I don't think we
took any position that it is right, wrong, or indifferent.
Mr. LaMalfa. OK. Now, going back to the 1934 legislation,
how many applications filed by tribes seeking to place lands in
trust have been formally denied by the Department on the
grounds that they were not under that 1934 jurisdiction?
Mr. Cason. I don't know how many would be denied under the
prior Obama administration. Our other witness here, Mr.
Mitchell, made some comments about the Solicitor's Opinion in
the Department, and I would agree with him to the extent that
the opinion incorporated some criteria for determining ``under
Federal jurisdiction'' that were pretty loose. So, I would be
surprised if any tribe was denied a gaming application based on
that during the Obama administration.
For us, since January 20, we have not made a gaming
determination that is final yet. The first one that also got
mentioned by the panel is Mashpee. And in the Mashpee position,
that is a case in Massachusetts where the Mashpee Indian Tribe
is seeking to have land taken into trust for the purposes of
gaming. And they are one of the tribes that are being looked at
under the Carcieri decision that are----
Mr. LaMalfa. OK, I am limited on time here.
Mr. Cason. OK.
Mr. LaMalfa. Thank you. Chief Francis, again, we know the
key importance of the tribe's ability under trust land to be
able to do as it sees fit and seek those economic
opportunities, and we know that, with a lot of talk of
infrastructure this year, that there are great opportunities
for tribes for furthering their needs, whether it is housing,
whether it is health facilities, or some of the opportunities
in economic action for energy exploration, mining, agriculture,
all those kinds of things that can make them prosper.
Just please quickly comment on the importance of that land
in trust toward your autonomy and ability, and I will have to
go fast. Thank you.
Mr. Francis. Thank you, Mr. Chairman, for the question. And
it is an important question. Tribes' ability to regain their
homelands is not only critical to overcoming economic
disparities, educational outcome disparities, housing
disparities, a whole host of issues, but it is also at the very
core of cultural identity.
So, I take a little bit of, with all due respect to the
other witnesses, some of the testimony here today not only
lacks facts, but is also very dangerous when we start to talk
about the IRA and the idea of somehow that the Federal
Government creates Indian tribes. We do not create Indian
tribes. There is a very rigorous, historical process to get----
Mr. LaMalfa. I will have to come back to you on that. I
appreciate it. Thank you and we will come back to you.
Mr. Francis. Very good.
Mr. LaMalfa. Let me now recognize our Ranking Member, Mrs.
Torres.
Mrs. Torres. Thank you, Mr. Chairman. We do know the intent
of the 73rd Congress in regards to the IRA. They clearly stated
that the IRA's goal was to, and I quote, ``rehabilitate the
Indians' economic life, and to give him a chance to develop the
initiative destroyed by a century of oppression and
paternalism.'' So, I am clear on that intent.
Mr. Cason, with that in mind, do you acknowledge that when
tribal governments rightfully have their homelands restored it
helps to achieve the goals of the IRA as it was intended by the
73rd Congress, of economic development, self-sufficiency, self-
determination for Indian tribes?
Mr. Cason. That is a big driver on a lot of applications we
get, and we try to support that.
Mrs. Torres. Why, then, would that not be a top priority
for the Interior?
Mr. Cason. It is an activity that we work on within
Interior. The issue is land under trust on reservations which
is relatively easy. Land into trust off reservations is a
little bit more complicated, especially when it deals with
gaming. And the off-reservation gaming issues are ones in which
we have to work with local communities, as well.
Mrs. Torres. And I absolutely agree with that. California
is the perfect example of a good model----
Mr. Cason. Yes, it is.
Mrs. Torres [continuing]. Where we have had compacts and we
have had a lot of discussion about on- and off-reservation
gaming.
To that end, would you agree that reducing the
checkerboarding of tribal lands creates opportunities for
higher and better land use for tribes, especially for economic
development purposes?
Mr. Cason. On reservation, absolutely. The same kind of
effect we have for Federal lands that are checkerboarded. We
try to block them up as much as we can.
Mrs. Torres. So, again, the current land-into-trust process
is paramount to achieving those goals.
Mr. Cason. Yes, it is an important element. Yes, ma'am.
Mrs. Torres. Thank you, sir. During your previous tenure as
Associate Deputy Director at DOI under the Bush administration,
tribes felt like there was a de facto moratorium on land into
trust acquisitions. And rightfully, tribes are now concerned
that there will be a repeat of that policy in your current
tenure.
To ease their concerns, will you and the Administration
commit to moving forward on the land-into-trust decisions that
are pending before the Department using the current process and
rules that are in place that they have been abiding by?
Mr. Cason. An explanation for the former policy, at the
time we were being sued by an estimated 300,000 individual
Indians and by most of the land-based tribes for departmental
malfeasance in managing trust lands and trust assets. And at
the time it did not make a whole lot of sense to say, yes, I
want to take more land, when all of you are suing me for how I
did not take care of the land I have. So, it was a different
environment.
The Cobell lawsuit has been settled. It is no longer a
major issue within the Department. And we will take a look at
land-into-trust applications, and particularly those for
gaming, following the rules that we have.
Mrs. Torres. Putting aside those lands that are being
requested for gaming, why would you not continue this policy
for opportunities for them to create energy projects, housing,
address the issues of the lack of infrastructure for hospitals
and schools?
Mr. Cason. I am not sure exactly how to answer your
question.
On-reservation we try to be supportive of all of those
activities. There are some challenges with the BIA bureaucracy
about getting things done in a timely way, and we have
challenges with other requirements that we have under Federal
law----
Mrs. Torres. Thank you. My time is up.
Mr. Mitchell, if we are going to talk about history, I want
to remind you of that day of June 2, 1924. However, the right
to vote was not granted by most states until 1957 to Indians.
With that, I yield back.
Mr. LaMalfa. Thank you, Ranking Member Torres. Before I
recognize Mr. Denham, I just note our Full Committee Chairman,
Mr. Bishop, is here today. Thank you for joining us, and for
calling for this hearing today on this key topic.
With that, Mr. Denham, 5 minutes.
Mr. Denham. Thank you, Mr. Chairman. First of all, just a
quick statement. Like most Members of Congress, I am very
concerned about resolving the Carcieri decision in an equitable
way for tribes. I appreciate the Committee's willingness to
look back at what happened, so we can discuss a responsible
path forward that upholds Congress' constitutional authority,
and ensures tribal sovereignty.
Tribes need to be able to maintain their ability to have
land taken into trust. Earlier this week, I passed a bill that
took land into trust for a tribe. This process is critical for
restoring past injustices and promoting tribal self-
sufficiency, moving forward. I just wanted to add that at the
beginning of the statement. Carcieri is something that we have
to continue to focus on.
I just have one question. Mr. Cason, how many acres were
under tribal control before the allotment era?
Mr. Cason. I don't know the exact number. It is around 150
million acres or so.
Mr. Denham. It is my understanding that vast tracts of land
were lost as a result of the now-reputed allotment process
under the Indian Reorganization Act that was an attempt to
rectify that policy and restore land to tribal control. Do you
think that we are actually there yet?
Mr. Cason. No, there are still a lot of allotments that
exist. It is on the order of between 125 and 150,000 allotments
that still exist, and that is part of the fractionated buyback
program that Congress has provided money for.
Mr. Denham. Thank you. I would agree, and think that most
tribes that come before this Committee also agree that much
more needs to be done, not only bringing more land into trust,
but also making sure that we are focused on tribal self-
sufficiency. I yield back.
Mr. LaMalfa. Thank you, Mr. Denham. We will recognize Ms.
Hanabusa for 5 minutes.
Ms. Hanabusa. Thank you, Mr. Chair. First of all, Mr.
Cason, in not only Mr. Mitchell's statement, but I have also
had the opportunity to review the Solicitor's letter of March
12, 2014. I guess it is within the Interior, and it reply
numbers M-37029.
First I would like to understand from you what weight is
given to the Solicitor's Opinions, even if this may have been
done in a prior administration? Does this continue on as the
position of the Interior Department until such time that it is
repealed?
Mr. Cason. It does.
Ms. Hanabusa. So, in this particular case, the Solicitor is
Hilary Tompkins. Is that name familiar to you?
Mr. Cason. Oh, yes, sure, I have met her.
Ms. Hanabusa. I am trying to understand exactly what is
your position on what we are going to see as the proposed bill,
which is trying to clean up the Carcieri decision. Is the
Interior Department on board, that they believe that we need to
address basically the two major issues, which is what does now,
the word ``now,'' mean under Federal jurisdiction, and
basically what does ``Federal jurisdiction'' mean?
Mr. Cason. OK, that is a great question. If you look at the
Solicitor's Opinion itself, my concern about the Solicitor's
Opinion is the criteria is very wide, and that it does not
respond very particularly to the Supreme Court decision. We
have concerns about the current advice in the Solicitor's
Opinion about being specific enough to actually distinguish
between applications.
If you move to Congressman Cole's bill, the dividing line
for the Department of the Interior is there is a wide range of
Indian tribes that will qualify under Carcieri to have land
taken into trust, and then there are a group of tribes that
would not qualify under Carcieri. And if it is Congress'
determination that they would like those tribes to be eligible
to take land into trust, then it would require some sort of
legislation to do that.
Ms. Hanabusa. OK, so let's go exactly there, because that
is the crux of this whole matter.
When you say that under Congressman Cole's fix of Carcieri
you feel that there are lands that will not go into trust as
not intended to be covered, what are those lands? How would you
describe those lands, as quickly as possible?
Mr. Cason. It is not really the lands, it is whether the
tribe itself qualifies as being under Federal jurisdiction as
of 1934. So, it is not really related to the land itself.
Ms. Hanabusa. I was here in the 2011-2014 time frame, and a
predecessor of yours was in this exact same room, talking about
what does it mean to be under Federal jurisdiction. So,
technically, the concept of ``under Federal jurisdiction,''
should that be something that Congress needs to define for you?
Or is that something that would be rightfully covered under
rulemaking under the Administrative Procedures Act?
And before you answer that, there is also the issue that we
all deal with, which is called 23 CFR Part 83, which also
determines when a tribe is recognized.
So, in light of all of that, how do you respond to when is
a tribe to be covered under Carcieri and when is a tribe not to
be covered under Carcieri?
Mr. Cason. OK. There are a couple things involved there.
The Federal recognition process is separate from determining
whether the tribe was under Federal jurisdiction as of 1934.
So, typically, to make it simple, there were a number of tribes
that were recognized by the Federal Government as of 1934,
where we had relationships with them, either where we had a
treaty with a tribe, or there was land taken into trust and
placed in a reservation for the tribe, or Congress had
appropriated money for the tribe, et cetera.
Ms. Hanabusa. I don't mean to interrupt you, but if you
look at what Representative Cole is proposing as changes to the
law, the ``effective beginning on June 18, 1934'' would address
``now under Federal jurisdiction,'' and by striking ``any
recognized Indian tribe now under Federal jurisdiction'' to
``any federally recognized Indian tribe,'' those are the two
major changes that this bill proposes.
So, from what you are limiting in your discussion here,
they would actually become moot under the proposed amendment,
if Congress enacts it.
And I see my time is up, so thank you. I will yield back.
Mr. Cason. That would be true.
Ms. Hanabusa. That would be true.
Mr. LaMalfa. OK, thank you. We will now recognize Mrs.
Radewagen for 5 minutes.
Mrs. Radewagen. I want to thank you, Mr. Chairman and the
Ranking Member. I also want to thank the panel for appearing
today.
Mr. Mitchell, why would Congress in 1934 delegate to the
Secretary such broad power to make trust land decisions?
Mr. Mitchell. That is a very interesting question,
considering what an incredible lack of confidence the members
of the Senate and House Indian Affairs Committees had in
Commissioner Collier within a year of the enactment of the
Indian Reorganization Act.
When I testified in 2015, I submitted written testimony
that showed that the very next Congress, the folks that had
enacted the Indian Reorganization Act introduced legislation to
repeal it, and that they attempted to repeal the IRA all the
way until 1946, when Commissioner Collier finally left the
Department and they gave up.
They were outraged as to how he was implementing the
statute that they had enacted. One of the reasons, as I
described in my written testimony, and now I am getting into
the area of conjecture, but I will give you my view, having
been familiar with the history, is that if you go to the
Congressional Directory, you will see that back in 1934 there
was on legislative council--do you know how many people were on
the staff of the Senate Committee on Indian Affairs? One
person. One person.
Therefore, as you can see, as I documented in a footnote,
that after they repudiated the bill that Commissioner Collier
and Felix Cohen had sent up, the committees were going to start
completely over, at which point Commissioner Collier came up
and met with Senator Wheeler and said, ``Well, maybe we can
work something out.'' They wrote down on a piece of paper the
basic outlines of the new bill. Commissioner Collier took it
downtown, and we don't know who drafted it, but it was probably
Felix Cohen, and it was sent back up here.
They were not Talmudic legal scholars of what that statute
said. And in fact, it is sort of off the point, but I had a
meeting with Mr. Young up in Alaska in May, and we were sitting
around in his office, and we were actually discussing the fact
about how many Members of any Congress actually read the bills
on which they vote upon. And I will leave that to you, because
you are the experts.
And that is how it happened. And what I would suggest to
you is that if you read the legislative history of the statute,
that what they thought they were doing was giving Commissioner
Collier the legal authority to do what I think everybody in
1934 thought should be done, which was to buy back land inside
the boundaries of Indian reservations that were in existence in
1934 to try to undo some of the loss of Indian ownership that
the allotment of the reservations had caused.
Mrs. Radewagen. Thank you. Congress presumably understood
the dangers of transferring too much power to the executive
branch. Wouldn't it be fair to say Congress would have not
enacted Section 5 if it believed that doing so delegated
excessive power to the executive?
Mr. Mitchell. I have no idea what was in the mind of
Congressman Howard and Senator Wheeler. I can just tell you
what I think it is reasonable to infer by reading the quite
extensive history of the Reorganization Act.
And I might add that it is quite unusual that that record
includes not only the hearings that were held, at which
Commissioner Collier explained the bill, but something that
rarely happens around here, which was the actual transcript of
the markup is part of that hearing record. And I would suggest
to you, if you have not done so, sitting down with that
material some weekend and starting at the beginning and going
to the end you might find quite interesting.
Mrs. Radewagen. Thank you, Mr. Chairman. I yield back.
Mr. LaMalfa. Thank you, Mrs. Radewagen. We will now go to
Mr. Soto for 5 minutes.
Mr. Soto. Thank you, Mr. Chairman. When you hear about the
history of going from 2.3 billion acres to 1.38 billion down to
48 million, you really see there is a historic duty here on
behalf of Congress and on behalf of the Federal Government to
try to right this wrong as best we can. And I know that is
really the context by which the original legislation came
about, was to help bring back sufficient land so that our
tribes who are sovereigns can be able to care for their people
and be able to have agriculture, businesses, and the like.
And obviously, we see here the real problem is not the 1934
Act, it is not Carcieri, it is congressional inaction. It is
the fact that there has not been a fix bill that has been given
a serious look, where it has passed through the whole process
yet, and that is why we are here today. So, that is what I
would like to specifically focus on, and particularly in the
guise of Congressman Cole's fix bill.
I first wanted to ask President Francis what specific parts
of the Cole bill or other legislation do you like, and what
would you like to see in a potential reform if the Committee
were to pass one?
Mr. Francis. With Congressman Cole's bill, obviously, it is
USET's position and Indian Country's position that all
federally recognized tribes have the right to take land into
trust.
What we are seeing here is not only what are we going to do
with the path forward in this conversation, but also what are
we doing about the past, when we have hundreds of frivolous
lawsuits being filed against tribes all over the country for
developing on existing trust lands, based on uncertainty around
Carcieri.
We support wholeheartedly, USET, a bill that unequivocally
affirms lands that tribes have in their possession today, and
we also support, going forward, cleaning that up and getting
back to what the IRA was intended to do, define the Federal
Government and tribal nations' relationship.
When we talk about all these other things today that the
panelists have brought up, the Town of Ledyard example, the
state of Connecticut is their trustee. Billions of dollars go
from these casinos to the states to support local interests.
And to talk about assimilation and creation of tribes, very
dangerous, given the policies of the past that the IRA has
corrected.
So, when we think about Mr. Cole's bill and moving forward
here, stopping the bleeding on these lawsuits which also
affects the United States is very, very important. But also,
again, getting back to the IRA's intent and purpose, the 73rd
Congress' intent and purpose, to stop this from ever happening
again, and figuring out a productive path forward. And I think
we all agree that being good neighbors is important. That is a
two-way street. But this relationship is really between the
Federal Government and the Tribes of America.
Mr. Soto. Thank you, President Francis.
Secretary Cason, you have been around a while, obviously,
in this. In your own opinion, what do you think would need to
be added to the Cole bill? What, pragmatically, do you see we
should be looking at?
Mr. Cason. I don't really have any suggested additions. If
it is purely just a Carcieri fix, I think it is probably
adequate already to include all tribes. But I don't have any
other recommendations about what should be added to it.
Mr. Soto. If we were to make a clean fix from an
administrative ease point of view, your office would be able to
handle it, just like before Carcieri?
Mr. Cason. It would simplify matters, actually. The Cole
bill would make it possible for all federally recognized
tribes, as of today, to apply to have land taken into trust.
And that would be simpler to do, rather than have us actually
evaluate the Carcieri standard.
Mr. Soto. Thank you, Secretary. It seems like the
complexity of all these issues has to do with the fact that we
are just simply not getting a bill passed that clarifies this.
I appreciate your testimony today, and I yield back.
Mr. LaMalfa. Thank you, Mr. Soto. We will now go to
Chairman Bishop for 5 minutes.
Mr. Bishop. Thank you. I want to thank you gentlemen for
being here today. I especially thank you for being here today.
Often these types of hearings and panels are basically staged
events, where I know what answer I want to hear, so we get
people in front of me that will tell me what I want to hear.
This is one of the situations where I am not sure what the
right answer is. And that is why I am very happy that all of
you are here to express your opinions, because we are going to
try to do something, hopefully, as we move forward, that has
some logic and base to it.
Let me ask a couple of questions, just on that particular
theme. Mr. Cason, let me start with you.
There has been a lot of testimony so far, both written and
here, and also, I apologize for missing the opening statements.
That is the reason I had you here in the first place.
Mr. Cason. That is OK.
Mr. Bishop. I will read them.
Mr. Cason. OK.
Mr. Bishop. And blame the EPA for that one.
We have heard all sorts of vague, loose trust land
regulations that have caused significant questions on how much
the community should impact, what the community should say
about it, what the Congress intent was in 1934. Mr. Cason,
would you like Congress to take action to establish a clear
standard on how the authority should be applied?
Mr. Cason. If you are talking about the Carcieri fix idea--
--
Mr. Bishop. Or trust lands.
Mr. Cason. Yes. I think there are two basic choices. If
Congress wants to establish and articulate the standards that
are ``consistent'' with Carcieri or change new standards, that
is certainly their prerogative.
In the absence of any further direction from Congress, they
will rely upon us to establish standards. Right now that is
done with the Solicitor's Opinion, and we are taking a look at
firming that up a little bit differently to be more clear.
Mr. Bishop. In the past, we have had people who have come
here who have given us their authority claims in this
particular area that I defy to be able to find in either the
Constitution or in past regulations or in case law. Would you
commit to work with us, this Committee, to try to develop those
kinds of standards, as we go forward?
Mr. Cason. Sure.
Mr. Bishop. That was too easy of an answer.
[Laughter.]
Mr. Bishop. Mr. Mitchell, I appreciate your historical
perspective. In your answer to Mrs. Radewagen on Section 5, I
take it that you don't think Congress would have given that
type of power away had they realized the extent to which it
would take place. Do you have any specific suggestions on what
Congress should do today? In a minute or less.
Mr. Mitchell. I will do my very best. In the now four times
that I have been at this witness table, I have never expressed
my own policy views, because I don't think those are
particularly relevant. But I would say, with respect to what
this Subcommittee needs to do, and it is your business,
constitutionally, not mine, is that there are maybe four issues
that you need to make a decision about.
One is that the U.S. Supreme Court got it right in 1934,
that they intended only those tribes that were now, in 1934,
under jurisdiction. If you think, as a matter of policy, that
that is still a good idea today, then leave it alone. If you
think, as a matter of policy, it is not a good idea today, then
you can eliminate or change that in some way. That is the first
thing.
The second thing is that the U.S. Supreme Court did not
define the term ``under Federal jurisdiction.'' As you know, in
many of your statutes sometimes you have a whole definition
section that defines various terms because you think they are
important, and in other statutes you just leave that to Mr.
Cason. Probably, the ``under Federal jurisdiction'' issue has
become a big-enough deal that in some bill you should either
define what Congress thinks it means, or get rid of the whole
thing. I am expressing no policy view.
The third thing is, which goes to the heart of the matter,
what the U.S. Supreme Court did not get to, but which is the
gorilla in the room, is whether or not a tribe today that has
been recognized can come in under this statute. And you need to
decide that.
Mr. Bishop. All right, Mr. Mitchell, I am going to have to
cut you off here. But what I am going to ask you is if you
would put your answer in writing for me, because your opinion
is----
Mr. Mitchell. I would be happy to do that.
Mr. Bishop. Mr. Cason, let me just ask one quick question.
I have 20 seconds to do this. In your opinion, would you say
the Department of the Interior has generally ignored the
Carcieri decision?
Mr. Cason. No. But the criteria in the opinion is very
loose, so I don't think it had any material distinguishing
effect.
Mr. Bishop. I thank you for your answers, I thank you for
being here and for your testimony. I was very sincere when I
say I don't know what I want to do, what the right answer is,
and I want to have this Committee and you all help explore what
those are as we go forward.
And one other thing before, I know I am over time; this is
not a question. Mr. Denham is a great Member of Congress. He
works hard on this Committee, he does a wonderful job. But when
Duncan has his suppressor language coming in that applies to
guns, I think that protection needs to go to anyone who is
sitting next to Mr. Denham when he is asking a question on a
microphone.
I am just going to put that out there as someone who has a
ringing still in my right ear right here.
[Laughter.]
Mr. Bishop. If there is anyone who does not need a
microphone, but then to mic the guy, as good as he is, there
needs to be protection.
I yield back.
Mr. LaMalfa. Suppressor bill, OK. All right. Mr. Grijalva,
5 minutes.
Mr. Grijalva. Thank you. Thank you, Mr. Chairman. And let
me, President Francis, try to get some quick answers. And I
know the topic does not lend itself many times to quick
answers, but, if you would, indulge me.
Part of the context of what we are talking about, how long
does it take a tribe that is not recognized to be federally
recognized? It is a robust process, a rigorous process. So
time?
Mr. Francis. It is a very rigorous process. There are
tribes that have been in it for decades. There are other tribes
that go through it for years. But if you look at the criteria
that is used, what Congress, the Federal Government, and the
United States are doing in that instance, again, is not
creating Indian tribes. They are reaffirming a historical
presence in this country.
Mr. Grijalva. Thank you. The other point that I think came
up, and that is the role of other, let's say, municipalities,
in the point of your fellow panelist there, their role in the
process. You have everything from demands for veto power over
every decision to some sort of role. Can you, the whole process
is correct. Could you respond to that?
Mr. Francis. Sure. The intent of the IRA was not to
assimilate. It actually allowed tribes to form constitutions,
governmental organizations. It recognized tribal sovereignty.
So, when we look at this issue in terms of, again, we all agree
that dignified governments should be good neighbors and have
discussions, but what we are really talking about is who gets
to decide. And who gets to decide on Indian lands is tribal
governments.
I think that the IRA was very clear about who that
relationship under that Act was with. That is with tribes and
the Federal Government.
Mr. Grijalva. Thank you.
Secretary, the whole historical context of what we are
talking about, I think, is something that has to be part of
this whole process as we explore, as we look at Mr. Cole's
piece of legislation, which I hope is part of that exploration
that creates a clean fix. Do you feel that the United States is
directly responsible for, I would say, immoral, unethical
erosion and destruction of tribal land bases and economies? Do
you think we have a historical responsibility to that?
Mr. Cason. OK, if you took all the other adjectives out of
the way and said just a historical responsibility for Federal
Government policy, I would say yes.
Mr. Grijalva. Removing immoral and unethical, correct?
Mr. Cason. Yes.
Mr. Grijalva. Do you feel the United States has, let me
take out moral and ethical obligation, just say an
``obligation'' to right this wrong by ensuring a strong fee-to-
trust process that allows tribal nations to begin to rebuild
those homelands and those economies?
Mr. Cason. The tribal relationship for rebuilding their
estate has been in place for a long time.
Mr. Grijalva. OK. So, back to the question I was asking
President Francis. If so, should states and local governments
be allowed to interfere, veto these efforts to correct this
historical wrong?
Mr. Cason. I would say yes. States and local communities
have a say in establishing new tribal jurisdiction within their
communities. And this is----
Mr. Grijalva. So, the response is yes.
Mr. Cason. Yes.
Mr. Grijalva. Secretary Zinke suggested in a comment, ``If
tribes would have a choice of leaving Indian trust lands and
becoming a corporation, tribes would take it.'' I have not
heard from any tribal nations seeking to become corporations.
So, the Administration would support a fix similar to
Representative Cole's legislation, so that we can restore this
fairness and parity to the process?
Mr. Cason. I am not aware----
Mr. Grijalva. Other than going the route of a corporation?
Mr. Cason. Those are two totally separate issues. I am not
aware of the Administration taking any position on the Cole
legislation yet.
And as far as the Secretary's comments, he is just
recognizing there are some tribes that come to us to say, ``Get
out of the way, let us do our own thing,'' and that is what he
is trying to be responsive to.
Mr. Grijalva. I yield back.
Mr. LaMalfa. Thank you, Mr. Grijalva.
I seem to rival Mr. Gallego as we finish our first round of
questions. Would Mr. Gallego like to be recognized?
Mr. Gallego. Thank you, Mr. Chair. This question is for Mr.
Cason. We have heard the claim that the Secretary acquires land
in trust, regardless of the impact on state and local
governments. But the regulations set by the part 151 process
specifically require the Secretary must consider these impacts.
So, I fail to see the dilemma they claim to face right now.
What additional role would you have state and local
governments play in the land-to-trust process, and how is this
not already addressed in the part 151 process?
Mr. Cason. It is addressed in the 151 process. Our job, in
looking at tribal applications to take land into trust, is to
balance the needs of the tribe and the concerns of local
communities, if they have any.
Mr. Gallego. So, do you think that tribes should have the
same right to comment on, or have input into land acquisitions
or use by state and county governments, especially when they
abut or are near Indian land?
Mr. Cason. We try to take comments from everybody that is
involved.
Mr. Gallego. So, what is good for the goose is good for the
gander, is what you are saying?
Mr. Cason. Yes.
Mr. Gallego. This is for Chief Francis. Just the same
question. What role do you believe state and local governments
should play in the land-to-trust process, and how is this not
already addressed in the current part 151 process?
Mr. Francis. Good morning, Congressman. I believe that it
is addressed adequately in the 151 process. And, as I said
before, I think being good neighbors and having a conversation.
I will give you an example, and when you talk about what is
good for the goose, it is really, and I will give a Penobscot
example.
There was development of industry and mills all up and down
our river. We got to participate in those processes, we got to
file comments. In the end, we did not get to veto those
projects, we did not get to decide those projects, and those
projects went forward, to the detriment of Indian Territory.
So, what we really have to recognize is the sovereign,
self-determining, self-governing rights of Indian nations. And
these processes, while I understand the outcomes may not be to
the liking of everyone, these are the decision-making
authorities of government. And that is what happens. I don't
agree with everything the state of Maine does. I don't get to
say what they do. We don't agree with everything Canada does,
we don't get to go tell them what to do, and vice versa.
That is how I see this issue, and I think that the IRA is
very clear about who this relationship is with.
Mr. Gallego. Thank you, Chief Francis. Your testimony noted
that Indian people lag far behind the overall population in
terms of health, education, employment, income, and other
measures of socio-economic status. As a Latino, I empathize
with these struggles, and I have seen many of these challenges
in my own community. But I also know the value of a community's
progress is to the surrounding communities.
As you put it, when tribal nations are able to exercise
jurisdiction over their land, surrounding communities and the
United States, as a whole, benefit from the economic prosperity
generated. This is certainly true in Arizona. I thank you for
your highlighting the important truth, and appreciate your
testimony here today.
I yield back.
Mr. LaMalfa. Thank you, Mr. Gallego. Now we will open it up
for a second round of questions for the panelists here.
Mr. Denham, would you like to--all right. Well, I will
start back with the Chair, recognize myself for up to 5
minutes.
Coming back to Chief--oh, all right. Continue on the first
round, then, just in the nick of time.
Mr. Bergman, do you have a----
Mr. Bergman. Thank you, Mr. Chairman. My apologies for
being tardy. We were just doing something simple this morning
like solving Gulf War illness scenarios with the VA. I
apologize for being late.
Thank you to all the witnesses for being here today, and to
the Committee for having the hearing. My district, the 1st
District of Michigan, which is all the Upper Peninsula and the
upper third of Lower Michigan, 46 percent of the land mass in
Michigan is home to eight tribes. And in my short time in
Congress, it has been my honor to not only represent each of
them here in Congress, but represent them because I have had
the chance to visit, I think, all but one of their home areas
and see what is going on.
Representing these tribes allows me the opportunity to
learn and engage not only on important tribal issues, but on
issues that are truly important to the entire 1st District of
Michigan.
One of the things that I have been able to learn is that
having an adequate land base is essential for the tribe's
ability to engage in meaningful economic development and job
creation. Those abilities benefit not only the tribes, but also
the surrounding communities and the people who populate them.
With that, my first question, actually, my only question at
this point, is for Mr. Cason. President Trump has emphasized
job creation and helping grow our economy, which I
wholeheartedly support and endorse. And, to that end, I trust
that the Department is working to help tribes benefit from the
President's policy priorities.
When looking at the trust land acquisition, does the
Department recognize where tribal economic development can be a
win for both the tribes and the local communities? And do you
think, in those instances where there is a clear economic
benefit, that the Administration should work to eliminate as
much of the bureaucratic red tape as possible?
Mr. Cason. Yes.
Mr. Bergman. I love your answers.
[Laughter.]
Mr. Bergman. So, any idea on how, now that we have answered
yes? What is the how?
Mr. Cason. That is a much bigger problem. The bureaucracy
associated with BIA has many roots and we are currently working
on trying to improve the organization and how it does its work,
and to streamline the work. But that will take a while.
Mr. Bergman. Do you need any help from Congress to speed up
the timeline, or do you have a plan, a sense of urgency for
your own----
Mr. Cason. At this point, I don't have a specific ask for
Congress. There are certain limitations that we have that delay
the process, and one of those is NEPA. When we have a Federal
action that is involved, we end up needing to do NEPA
documents. And we have a number of tribes that have come to us
and said, ``If you get out of the way and let us decide, we can
make things go a lot faster,'' because they will not have the
same requirements that we do.
So, that is something we are actively looking at, is how
can we develop a relationship with tribes that is different
than it is today, essentially granting them more autonomy to
make decisions on their reservations.
Mr. Bergman. How do you instill in those folks, let's say,
who might do the NEPA assessment, a sense of urgency from the
top of the Department on down, that business as usual,
timelines as usual, in some instances, is not cutting it?
Now, reality, a good bureaucracy and good bureaucratic work
is going to help the organization make good decisions or
prevent them from making bad decisions quickly. How do we
balance that middle ground on the bureaucratic side that really
infuses that sense of urgency, or surge, or whatever you want
to call it, into the bureaucratic operations?
Mr. Cason. That is a difficult question. The bottom line
for me is that we need to recognize that there is little to be
gained by a Federal career employee making very quick decisions
and processing work quickly. They get a nominal pat on the
back, ``Thanks for doing a good job on that, here is your next
problem.'' But if they make a decision quickly and it turns out
wrong, then they get beat up a lot.
So, the natural inclination is to avoid making a quick
decision, or to pass the decision on to somebody else to make.
That is one of the things I work on every day, is to encourage
people to move quickly and to get things done quickly and
streamline their processes, because we really do not gain
anything by delaying and taking forever to do anything.
Mr. Bergman. Thank you.
Mr. Cason. And I would be much more comfortable making the
decision and, even if it is wrong, make it in a timely way.
Mr. Bergman. Well, we all acknowledge we have some great
lengths to go in bureaucratic, I am not even going to say
bureaucratic efficiency, I don't think those two words match,
necessarily.
Thank you. I yield back.
Mr. LaMalfa. All right. Thank you, Mr. Bergman.
Now we will start the second round here. Again, we thank
the panelists for their travel here today, and our robust
discussion here. I will recognize myself again for 5 minutes.
Again, the issue with being able to have land in trust is a
very important cornerstone with the ability for tribes'
autonomy, self-determination, their sovereignty, to be able to
do business. And tribes, by and large, have a very, very
special relationship with their lands, with the history there,
and in some small way can identify that with our 85-year-old
farm, five generations, with just how special that is to me and
my family, which is just a blip in time compared to the history
of many tribes and their lands when they go back to the
original heritage.
So, this is something we need to get right. It is something
we need not take lightly. And I sense, of course, much
frustration with tribes with the ability to move on this
Carcieri situation, ever since I have been here. And you know,
can one piece of legislation pass the House? Can the same one
that passes the House get through the Senate?
And the people outside of this process are very frustrated.
Why can't you guys get your stuff done? And I feel that. So, I
hope we can start to shed more light on this, and this hearing
could be part of that moment to be able to accomplish that, as
well as important legislation that was mentioned earlier.
Just affirming the lands that are already in, whether or
not it is 1934 forward or backwards, we need to give that
certainty there. Anybody that is in business understands that.
And for tribes that have uncertainty, whether it is just for
peace of mind or a business they want to do, they need that.
And we need to get that done.
So, coming back again to Chief Francis, taking land in
trust again, there is this local government angle that gets
talked about a lot. But this is a relationship between the
Federal Government and tribes at the end of the day. What I
have seen is there has been a lot of cooperation with tribes
with local governments when a particular trust situation or a
compact has come up in California. And I have seen them work
some things out pretty well in the past.
I also have a great frustration with some we are personally
working on in California where the local government will hardly
even talk to the local tribe about that. And when they want to
do something as simple as building housing for their members,
it sounds kind of like a, well, we got ours, but you are not
going to get yours, so it kind of goes both ways.
I guess a criticism you would hear about tribes trying to
do what they see fit from local governments, what would you
say, Chief Francis, as to looking at the different ways it has
worked, either cooperatively or not cooperatively? What would
be the fair middle ground on that, do you think?
Mr. Francis. Well, I think, as the regs really point to, it
really recognizes the reservation, and as you get further, the
regs get more stringent, in terms of how you have to bring in
local communities.
Again, I am a firm believer in a government-to-government
consultation. I believe that discussion should take place. I
believe that we should always exercise diplomacy with other
governments. What I don't agree with is that there should be a
decision-making authority by state and local governments into
tribal affairs on tribal lands.
What we have been talking about here all morning is a
fraction of the land that has been going back to Indian nations
in this country even since 1934. We are not talking about
tribes that are controlling half of states, or three-quarters
of states. We are talking about tribes with minimal re-
acquisitions of their homelands that are trying to dig out of
centuries of problems that these homelands are critical to.
And what we have seen over and over in history, as we talk
about a subject that is littered with unintended consequences,
is that when others make decisions for Indian nations and a
governmental status, that never turns out really well. So, what
we are really saying is it is important to have the
conversation, it is important to be good neighbors, be
partners, and hopefully build not only our own communities, but
build our regions and our states that were our homelands for a
very, very long time that we all care about, whether they are
in our status or not.
Mr. LaMalfa. I will have to come back to you if we have a
third round here. But I appreciate your time, and I will yield
and turn it over to our Ranking Member, Mrs. Torres.
Mrs. Torres. Thank you, Mr. Chairman.
Mayor Allyn, I just want to tell you that I know that you
are a mayor of a small city of 15,000. I am also a former mayor
of a small city of 170,000. And I personally have had to deal
with adjacent jurisdictions trying to come in and dictate how
my city should be run. And I understand that sometimes we have
to push back.
I also understand the importance of joint powers agreements
when it comes to roads, transportation, the infrastructure that
creates a much better environment for our mutual
constituencies. Thank you for being here today. I don't want
you to walk away thinking that your concerns were not heard,
because they have been heard and they are important to us.
Mr. Cason, you also stated, as I did in my opening
statement, that the Department receives only a minor percentage
of applications for gaming versus other applications. I feel
that the public should be aware of this, and we should talk
about it more. It is lost often, that information is lost when
we are debating off-reservation casinos, or talking about
casinos.
The majority of trust applications have nothing to do with
large land grabs or gaming. Most applications involve very
small homesites of 30 acres or less within reservation
boundaries, and typical acquisitions include land for housing,
health care, hospitals, clinics, and schools.
My final ask to you today is that I hope that you will
continue to be open and work with me and Chairman LaMalfa at
ensuring that we continue to uphold the long-standing Federal
policies supporting Indian self-determination.
Chief Francis, you are testifying today on behalf of the
United South and Eastern Tribes organization, but you are also
the leader of the Penobscot Indian Nation. As a tribal leader
who is responsible for running your government, and as the only
tribal member invited here today, what do you think about the
issues and concerns being raised at this meeting? I know my
heart sunk during some of the testimony. I would like to get
your feedback on it.
Mr. Francis. Well, I appreciate the opportunity. And as you
mention, I think some of this conversation over the years has
really been rooted in, really, the lack of understanding of
tribal government, where our inherent sovereignty and
authorities come from, and our relationship with the United
States.
When I think about some of the things I had talked about
earlier, in terms of using words like ``dangerous,'' when we
look at--the IRA was to really address a devastating policy on
Native people. But what the 73rd Congress also said is we do
not want this to ever happen again. What happened? We ended up
with bad termination policies, going forward. What did we come
back to? We came back to the IRA to soothe that.
And I think it is dangerous rhetoric to talk about the
creation of tribes, and to talk about the IRA being rooted in
some assimilation policy, when it was rooted in the recognition
of tribal sovereignty.
But, what this has meant for my tribe, as a tribe, as you
have mentioned earlier, that did not have the right to vote
until the late 1960s, where we were on our ancestral lands and
forgotten about, with no infrastructure, no housing
opportunities, no real economic ability or opportunity,
educational outcomes were non-existent.
But beyond that, without a tribal homeland, and what we
have been able to do with our 2,700 members and 120,000 acres
of trust land is create all those opportunities. We have
schools and clinics and state-of-the-art treatment centers and
drinking water, and all of the things that are necessary to
provide governmental services.
Mrs. Torres. The same things that Mayor Allyn cares about.
Mr. Francis. Absolutely. So, what we have been able to do
is really excel under the IRA with the regaining of our
homelands. But this is a core cultural identity issue,
homelands of tribes. And when we strip the ability of tribes to
do that, unintended or otherwise, it is a termination policy.
Mrs. Torres. Thank you, Chief. My time has expired. I yield
back.
Mr. LaMalfa. Chairman Bishop.
Mr. Bishop. Thank you. I do have a couple of questions.
Mr. Cason, this one may be slightly off topic from what we
are dealing with, but I would wonder if you would agree, and I
realize that is a key word, if you would agree that the Indian
trader rules should not be used as a vehicle to pre-empt the
authority of state and local governments to tax non-Indians on
tribal land.
Mr. Cason. Mr. Chairman, we have a new Deputy Assistant
Secretary who is interested in pursuing the Indian trading
rules and updating them, because they are very old. It remains
to be seen what we would put into the Indian trading rules.
One of the issues that he has an interest in pursuing is
what I will call double taxation of Indian reservations, and he
is attempting to clarify what the role of state and local
taxation is, and Indian tribal taxation on their property.
So, at this point in time I don't know what is going to go
in it, but I do know that it is something that we will have to
tread very carefully on, and have a lot of consultation with
all the various parties on before we decide anything.
Mr. Bishop. Would it be your recommendation or opinion in
any way that any decision to apply Federal authority to pre-
empt such taxation should actually be done by Congress, and not
the executive branch?
Mr. Cason. I think that is one of the possibilities, and I
would be happy to come up and talk with you or the Committee
here about that issue and get a clarification from you folks.
Mr. Bishop. Then, rather than ask a question of all of you
here, could I just simply ask all of you to help this
Subcommittee? So, any kind of written recommendations you have
of what this Subcommittee or Congress could do legally to bring
coherence and some kind of certainty to the trust acquisition
policy.
As I said, I really am looking for kind of guidance of how
we come up with a policy that I think is fair, allows everyone
to have some kind of say in the process, but still has a
coherent policy that can move forward and not get bogged down.
And I would really appreciate any kind of written comments from
all four of you to send to us that would help us to come up
with an acquisition policy that really has some certainty to it
and some coherence, and that can help us to move forward. So, I
would simply make that request of all of you.
Mr. Cason. Sure.
Mr. Bishop. And with that, Mr. Chairman, I will yield back,
and I appreciate your time.
Mr. LaMalfa. Thank you, Mr. Chairman. We will recognize Ms.
Hanabusa again for 5 minutes.
Ms. Hanabusa. Thank you, Mr. Chairman.
Mr. Mitchell, I know that Chairman Bishop had you going on
some points, and you did not get to finish it, and I really
would like to know. I think you were on the third one, which is
the tribes today recognized are not really anticipated under
the statute. I think that is what you were intending. And I
thought you had a fourth provision that you wanted us to
understand that Congress needed to clarify.
Mr. Mitchell. Yes. What I was just scrolling through, I was
just trying to identify the basic decisions that it would seem
to me logically that the Subcommittee would want to make,
without prejudging what it is you decide. You decide whatever
you want.
And I think my third one was the one that you just
identified, which was that it is certainly clear that in the
73rd Congress they thought what they were dealing with were
Indian tribes that were in existence whose members were living
on reservations that were in existence when the IRA was enacted
in 1934.
If, as a matter of policy, you believe that the eligibility
to participate in the IRA should be expanded to also include
tribes that have been created after 1934, that is a decision
for you. But that is certainly something that should be on your
list.
And I might add there was talk earlier about how tough it
is to become a tribe these days. It is not tough at all if you
have the right lobbyist. You can either go through the part 83
process, or you can come up here, and the Graton Rancheria and
the Mashantucket Pequots, and I can go down the list of people
that suddenly, instantaneously became Indian tribes because
they had the attention of the Congress. But if you believe that
those folks should be included, well then, include them. But
make it clear that you do that.
And then, the last thing I would suggest is, should there
be any different policy considerations with respect to taking
into trust land located outside of reservations that were in
existence in 1934. Are there other policy considerations? And I
will give you a quick example without scrolling into another of
my endless history diatribes.
But in 1986, when H.R. 1920, which was the Indian Gaming
Regulatory Act, came through this Committee, it was John
Seiberling, a distinguished Democratic member of this
Committee, that proposed an amendment which was accepted. I
have read the transcript of that markup, courtesy of Chairman
Rahall at the time. Mr. Seiberling proposed an amendment that
said that any land taken into trust after the date of enactment
of the IRA could not be used for gaming purposes, unless that
was approved by both the state and the local government where
the land was located.
In other words, both the state and the local government had
a sign-off. That was an amendment proposed by Mr. Seiberling, a
distinguished Democratic Member. It was accepted by this
Committee without controversy. It was in the bill that the
House of Representatives passed in 1986. And, glory be, it was
in the bill that the Senate Indian Committee reported that
year.
When that bill died in the Senate and they came back the
next year, the Senate Indian Committee staff magically
eliminated the reference to local government. And, as a result,
local government has to sit there and watch as Indian casinos
go into their communities, and all they can do is send a letter
in with comments to the BIA.
Ms. Hanabusa. OK. Mr. Mitchell, I don't want to cut you
off, but there is another point that I do want to make, and
that is it is also mentioned in your testimony that, in fact,
we have had a post-Carcieri case decided by the D.C. Circuit,
and that is the Confederated Tribes of Grand Ronde Community of
Oregon v. Jewell, and that was just about a year ago, June 29,
2016.
So, I assume that that is probably going to make its way to
the Supreme Court if the certiorari is granted.
Mr. Mitchell. Certiorari was denied.
Ms. Hanabusa. Was denied?
Mr. Mitchell. Was denied, and----
Ms. Hanabusa. That is good decision, then.
Mr. Mitchell. Right, and what is interesting about--no, it
is not good, in the sense----
Ms. Hanabusa. My time is up. I am sorry, I must yield back.
Mr. LaMalfa. All right. I recognize Mr. Gallego for 5
minutes.
Mr. Gallego. Thank you, Mr. Chair. That was a lot of
history, and wrong history, that we just got loaded on right
now.
Chief Francis, could you clarify some of the things that
were just dropped on us? Because I think you have a different
perspective that would be a lot more, well, I am just going to
be honest, correct.
Mr. Francis. Well, I will try, Congressman, to bring us
back to some reality here.
Mr. Gallego. Thank you.
Mr. Francis. Not only is, again, talking about the creation
of tribes, de-legitimizing tribes' relationship historically
and in present day with the United States dangerous, to call
them out individually is offensive.
And I would just like to say that these are very rigorous
processes. To suggest that a Congressman just raises their hand
and all of a sudden a tribe appears is not only, again,
insulting, it lacks the respect for the process and the
relationship we have here.
I think that tribes go through a very rigorous process.
They also have to prove not only their historical presence in
their territory, but ongoing governments, political
connections, culture, language. All of those things go into a
recognition process. And the nearest date I can find that they
have to go back to is 1900, over three decades before the IRA.
So, I think what we struggle with a lot of times with this
issue is, what does it mean to be under Federal jurisdiction?
We have 567 tribes, all with very diverse and unique histories
that we, and I believe the M-opinion, and I am not a lawyer. I
am happy to try to pretend to be one at times, but I think that
the M-opinion is really trying to get at that question. We have
these unique tribes, 567 of them. We have to be able to
evaluate their history and their jurisdictional relationship
with the United States. Federal acknowledgment is a totally
different thing.
I think, again, that rhetoric is dangerous, to try to de-
legitimize very powerful and historical nations in this
country.
Mr. Gallego. Thank you, Chief. I yield back.
Mr. LaMalfa. All right. Well, we have a little time left
here if we want to continue to go on. I think I would like to
follow up a little more, as well.
We all know the process here. The House and the Senate
create laws, the President signs them, and then, once they are
in place, the executive branch enforces those laws. So, the
discussion today is finding the balance, taking a snapshot
after what was done 80 years ago in process is, we are looking
back over that. Of course, there are corrections we need to
make here. Are we in balance?
Is the process of taking land into trust, whereas the
Congress can do that, in short order if it wishes to, or the
BIA process through the Secretary, a lot of times a lot more
arduous. So, this is a good discussion to have.
I want to come back to what suggestions, as Chairman Bishop
kind of pleaded for with suggestions that would come from this
panel and from others that are not on this panel today, what
could we to do clean up the process, to have it be more timely?
I think everybody deserves to have a timely resolution to
whatever their question is that is being brought forth to their
government, which is a simple permit for building a porch on
your house or something very important like tribal recognition
or a land into trust question. People like answers in the same
lifetime, and it is deplorable, how long it takes sometimes.
So, Mr. Mitchell, I think you mean well in this process
here, but government does not create a tribe. God, our creator,
creates things. We shuffle paper. And with what has happened in
the past with de-recognition of tribes previously, we have a
past that needs to be rectified here. And this is what this
process, this Committee, is for.
So, I would just give one last shot at the panel here in my
final 2 minutes. What would the recommendations be, when we are
talking about trust land, what would you have Congress do?
Should it amend Section 5, for example?
And I want to go again to Chief Francis first, and then to
the rest of the panel. What is it you would see, in a nutshell,
to have us improve this process timely? OK.
Mr. Francis. I would suggest that we not reinvent the wheel
on this. For 8 to 9 years, Indian Country has comprehensively
worked on solutions to present to Congress through a Carcieri
fix that addresses clarity for those that need it, and allow us
to move forward, and that puts a process in place for all
federally recognized tribes to obtain trust land and regain
their homelands. Those documents and those efforts are readily
available.
I would just say, Mr. Chairman, USET stands ready to work
with this Committee and anyone else to find solutions, and we
would base that on Indian Country's approach to this issue to
date.
Mr. LaMalfa. All right. Mr. Cason?
Mr. Cason. Mr. Chairman, I would say for the benefit of
everybody here, our on-reservation processes I think are
relatively straightforward and relatively expeditious to try to
address land into trust applications. Off reservation, I would
encourage the panel to take a look at how we are implementing
the law. And if Congress believes that we should make a course
correction on how we implement the law, I would encourage
Congress to let us know what you would like us to do.
Mr. LaMalfa. OK. Mayor Allyn, recognizing again that this
is a relationship between the Federal Government and the
tribes, but also the importance of a positive relationship with
local government, and a consultation, what would you see?
Mr. Allyn. A seat at the table, if you will, is important.
As a municipal CEO, and Ranking Member Torres referred to a
city. I chuckled inside, because a town of 15,000 is not quite
a city, but I appreciate where you came from and your roots
are, as well.
Our biggest concern, of course, especially when you are
talking or referring to either gaming or large format
development is the municipality having some level of say,
because what happens, and I mention this in my oral argument,
is the impact to our municipal levels is tremendous, both
police force, schools, you know, Chief Francis made mention of
schools. We school the Mashantucket Pequot children.
Mr. LaMalfa. OK, thank you.
Mr. Allyn. So, those are the things that are important to
us.
Mr. LaMalfa. OK. And, Mr. Mitchell, I think what I would
pull out of all of that is you would like to see just clarity
from Congress and maintain its proper path?
Mr. Mitchell. Well, Mr. Chairman, I have identified for you
four issues about which I believe you need to make whatever
decision you think is appropriate. As I said, I have never
expressed to this Committee my own policy views with respect to
each of those issues.
The only other thing I would add is that part of this
puzzle has to do with tribal recognition. And Mr. Gallego can
trash my reading of history and the law as he wishes, and I
wish he was still here, but----
Mr. LaMalfa. I am over time, so I will ask you to wrap up.
Mr. Mitchell. Well, the fact of the matter is that that is
directly relevant to the land-into-trust issue.
And, as you know, last Congress, Chairman Bishop had a bill
that, had it been enacted, would have taken the tribal
recognition process back to where it should be, which is in the
hands of the Congress, and out of the bureaucracy. And I think
that should be on the table with respect to any analysis of
what should be done about Carcieri.
Mr. LaMalfa. All right. Thank you, sir. I appreciate the
time and looking around, it is me and Mrs. Torres.
Do you have any further----
Mrs. Torres. Mr. Chairman. I just want to associate myself
with your last comments. And I do appreciate us moving forward.
Mayor, my intention was not to offend you. A town of
15,000, you know----
Mr. Allyn. No offense whatsoever.
Mrs. Torres. My city, like I said, 170,000, but too often
the county owns a piece of property within my city limits and
our city government has to face down on the county that
represents 10 million people, so I truly understand the David
and Goliath issue.
At the same time, I think it is really important for us to
move forward on a clean Carcieri fix, and I hope that we can
work together in a bipartisan way to move forward and continue
with our work.
Mr. LaMalfa. OK, thank you. Well, my town is population
250. I have to go to a different town if I want to vote in
person.
So, anyway, I appreciate the panelists, again, for your
travel, your time, for being here today, and for our colleagues
on the Committee with questions.
If there are any additional questions for the witnesses, we
will ask you to respond to these in writing. Under Committee
Rule 3(o), members of the Committee must submit witness
questions within 3 business days following the hearing, and the
hearing record will be held open for 10 business days for these
responses.
If there is no further business, without objection, the
Subcommittee stands adjourned.
[Whereupon, at 11:52 a.m., the Subcommittee was adjourned.]
[ADDITIONAL MATERIALS SUBMITTED FOR THE RECORD]
Testimony of Uintah County, Utah
July 20, 2017
Mr. Chairman, and members of the Committee, Uintah County, Utah
respectfully submits these comments concerning the July 13, 2017
hearing. We were pleased with the open and direct discussion that was
held during the hearing. It is our hope that such discussions can
continue and open dialogue can be utilized to address these important
matters. These comments are provided to address the specific issue of
on- and off-reservation fee-to-trust acquisition.
Uintah County is located in northeastern Utah. The county is
approximately 90 miles long and 50 miles wide. The U.S. Census Bureau
2016 estimated population lists a total of 36,373 residents, with an
estimated 2,631 (less than 8 percent of the total population)
individuals identifying themselves as American Indian. Of the roughly
2.8 million acres of land in Uintah County, 15 percent of the land is
privately owned and 15 percent of the land is held in trust for the Ute
Indian Tribe. The largest landowner/manager in Uintah County is the
Bureau of Land Management (1.3 million acres of public land or 47
percent of the total land mass within Uintah County. Real Property
Taxes are collected off non-tax-exempt land, these taxes constitute a
substantial, if not 100 percent of the revenue to local taxing entities
and other government funds.
During the hearing, Representative Torres and Chief Kirk Francis
stated multiple times that the purpose of the IRA provisions for fee-
to-trust acquisitions was to address energy projects, housing,
infrastructure (hospitals, schools, etc.) and reduce checkerboarding.
Uintah County understands this is quite relevant for on-reservation
acquisitions. However, for off-reservation acquisitions such goals must
be carefully weighed against the impacts to local government. Chairman
LaMalfa pointed out that this is a relationship between the Federal
Government and Indian tribes. However, we would urge the Committee to
be cognizant of the impacts on state and local governments. The impacts
of these decisions are usually only born by the applicant tribe and the
local government. Therefore, there must be more analysis and effort to
address local impacts when dealing with off-reservation fee-to-trust
applications.
Currently, we are dealing with three separate applications from the
Ute Tribe to convert off-reservation fee land into trust status. As
illustrated by the maps in Exhibit A, each parcel is miles from the
exterior boundary of the existing reservation and has never been
included within any historic reservation. We summarize our comments
provided to the BIA on these applications below and note that they
closely mirror comments made by Mayor Allyn during the hearing.
Notice:
Uintah County is confused as to what notice we are supposed to
receive for these types of applications. We first discovered the
existence of these applications from a printed notice in a local
newspaper. It appeared as though the BIA was going to use a NEPA
process to analyze the requested acquisition of land. However, for off-
reservation acquisitions, under 25 C.F.R. 151, it appears another
administrative process should have been utilized. Specifically, 25
C.F.R. Sec. 151.11(d) requires, upon receipt of a tribe's written
request to have lands taken into trust, the Secretary to notify ``state
and local governments having regulatory jurisdiction over the land to
be acquired'' and give 30 days for the governments to provide ``written
comment as to the acquisition's potential impacts on regulatory
jurisdiction, real property taxes and special assessments.'' For each
application, it took almost 2 years for the BIA to send Uintah County
the required notice.
We are also not the only impacted governmental entity. As shown in
the Tax Notices in Exhibit B, there are a number of local governmental
entities that will be impacted by this proposed action. The BIA, not
Uintah County, should provide notice to all of these taxing entities
because they are not local sub-districts.
Statements in Application:
As applied to the 2016 Department of the Interior Acquisition of
Title to Land Held in Fee or Restricted Fee Status (Fee-to-Trust
Handbook), the applications we are now addressing do not provide a plan
which specifies the anticipated economic benefits associated with the
proposed use. The applications merely give generic and broad statements
concerning economic benefit of real property in an investment portfolio
and current zoning. Such sparse information does not satisfy the
requirements in the manual and rules.
The applications are wholly devoid as to how converting these
parcels into trust property would promote economic development or
tribal self-determination; just stating it does not make it so. The
applications also do not contain any analysis on comparable properties
within the reservation that could have been acquired for the same
purpose. Indeed, there are over 60 miles of Highway 40 within the Uinta
Valley portion of the reservation (already subject to checkerboard
jurisdiction) that could lend itself to industrial development by the
Ute Tribe. Adding new land miles away from the reservation does not
promote the goals stated above.
The applications are devoid of any documentation describing efforts
taken to resolve identified jurisdictional problems. In fact, the
application states ``no jurisdictional problems . . . will be caused by
the acquisition of the Subject Property in trust.'' Local governments
disagree with this assertion. As stated below, the parties have been
engaged in almost 40 years of legal battles regarding jurisdiction in
Indian Country. Creating a new checkerboard area completely removed
from the exterior boundaries of the reservation will create
jurisdictional problems. Some of the areas requested to be converted to
trust status are far removed from tribal law enforcement headquarters.
There are no cross-deputization agreements between tribe and local law
enforcement agencies. Parties have spent millions of dollars arguing
over criminal jurisdiction and additional checkerboarding in areas that
have never been part of a reservation would create new complications.
The application does not evidence any cooperative agreements with local
entities for utilities, fire protection, solid waste disposal, etc.
The Secretary of Interior must act as the honest broker in these
situations and analyze the applications with an eye to insure full
compliance with the Act and an open process where all stakeholders are
informed and can participate in the process.
Impacts on Local Government:
Uintah County, and other local governments, relies heavily on real
property taxes to provide necessary services to the residents that live
here. Yet, only 15 percent of the county is privately owned. This
places a great burden on the local governments to provide services
(e.g. law enforcement, fire, water, mosquito abatement, health
services, etc.) when properties are placed into non-taxable status.
Placing these properties into trust status typically strikes them
from the tax rolls and negatively impacts state and local governments.
To be clear, Uintah County does not support the removal of any private
property from the tax rolls, regardless of the acquiring agency, be it
state or Federal.
It is important to be clear on the cumulative impact of all three
applications. The local taxing entities would lose taxable value of
over $1,733,000; accounting for just below $20,000 in lost tax revenue.
Yet, these entities would still be charged with the responsibility of
providing services to these parcels. Easements and rights-of-way should
also be carefully considered; the location of such needs to be analyzed
and protected.
The 2016 Fee-to-Trust Handbook makes a distinction between bringing
land into trust status and Reservation Proclamations. If this land is
simply brought into trust status then the County's only objection would
be on the reduction of privately held property and the resulting
negative impacts to property taxes. However, if this action carries
with it the added categorical designation of ``Indian Country'' or
``Reservation'' then our concerns are much starker.
BIA's creation of a checkerboard system outside of the historical
boundaries of the reservation would cause more uncertainty in an
environment where the various governmental entities are struggling to
find common ground. Courts have long acknowledged the supreme
difficulty to all governmental entities trying to manage affairs in an
area with checkerboard jurisdiction. In the event of an emergency,
local law enforcement, fire protection, and/or health departments, etc.
would respond to these properties and immediately have to deal with the
impacts of such events. Because Fort Duchesne is over 30 road miles
from the parcel, the responding agencies would include Vernal City,
Naples City, and the Jensen Fire Department. These entities are very
unfamiliar with jurisdictional nuances in Indian Country.
For what it's worth, as it relates to on-reservation fee-to-trust
acquisitions, the governments with jurisdictional responsibilities
within the historic boundaries of the reservation will have to continue
to figure out how to cooperate within the checkerboard area Congress
and the Federal Courts have created. However, we can see no plausible
reason why the BIA would seek to extend this to an area far removed
from the Uintah & Ouray Indian Reservation, without a clear and
convincing need for such acquisition. In fact, the U.S. Supreme Court
has cautioned and recognized the impracticability of returning to
Indian control land that generations earlier passed into numerous
private hands. See, e.g., Yankton Sioux Tribe v. United States, 272
U.S. 351. These applications provide stark examples of the
impracticability referenced by the U.S. Supreme Court. Finally, a new
checkerboard of state and tribal jurisdiction would ``seriously
burde[n] the administration of state and local governments'' and would
``seriously disrupt the justifiable expectations of the people living
in the area'' and neighboring this new patch of Indian Country. See
Hagen v. Utah, 510 U.S. 399, 421.
Conclusion:
We appreciate the opportunity to provide these comments. Uintah
County will continue to look for ways to work cooperatively with all
government agencies with responsibilities in the Uintah Basin. We would
also like to offer our assistance to Chairman Bishop with his stated
goal to develop a fair policy to handle these acquisitions.
Sincerely,
Uintah County Commission.
*****
The following documents were attachments to the above testimony. These
documents are part of the hearing record and are being retained in the
Committee's official files:
--Exhibit A: Maps
--Exhibit B: Tax Notices
______
[LIST OF DOCUMENTS SUBMITTED FOR THE RECORD RETAINED IN THE COMMITTEE'S
OFFICIAL FILES]
Chairman Bishop Submission
--Testimony of the National Congress of American Indians,
dated July 13, 2017.
Rep. Grijalva Submissions
--Coalition of Large Tribes (COLT): Resolution Promoting
the Restoration of Indian Homelands and Supporting
the Integrity of the Indian Reorganization Act,
dated July 24, 2017.
--Written Statement of Troy Scott Weston, President of the
Oglala Sioux Tribe, dated July 13, 2017.
--Written Testimony of Governor Kurt Riley, Pueblo of
Acoma, dated July 13, 2017.
--Written Statement of Estavio Elizondo, Chairman of the
Kickapoo Traditional Tribe of Texas, dated July 13,
2017.
--The Honorable Cedric Cromwell, Chairman of the Mashpee
Wampanoag Tribe, Letter to the Subcommittee on
Indian, Insular, and Alaska Native Affairs, dated
July 27, 2017.
--Testimony of the Port Gamble S'Klallam Tribe, dated July
17, 2017.
--Testimony of the Ute Indian Tribe of the Uintah and Ouray
Reservation, dated July 13, 2017.
Rep. Torres Submissions
--Pomo of Upper Lake Habematolel, Comments on the July 13,
2017 Oversight Hearing, dated July 21, 2017.
--Nisqually Indian Tribe, Comments on the July 13, 2017
Oversight Hearing, dated July 21, 2017.
--Letter from the Cherokee Nation, Office of the Attorney
General, addressed to Chairman Bishop, Chairman
LaMalfa and Ranking Members Grijalva and Torres,
regarding the July 13, 2017 Oversight Hearing,
dated July 26, 2017.