[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

                              ----------                              
                                                                   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

                              ----------                              

    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.
---------------------------------------------------------------------------
    \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).
---------------------------------------------------------------------------
    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.
---------------------------------------------------------------------------
    \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.'').
---------------------------------------------------------------------------
    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.
---------------------------------------------------------------------------
    \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).
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \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).
---------------------------------------------------------------------------
    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.
---------------------------------------------------------------------------
    \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).
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \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)).
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \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).
---------------------------------------------------------------------------
    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.
---------------------------------------------------------------------------
    \17\ See 18 U.S.C. Sec. 1151 (defining ``Indian Country'').
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \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).
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \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 
---------------------------------------------------------------------------
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.
---------------------------------------------------------------------------
    \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).

---------------------------------------------------------------------------
        . . .

        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\
---------------------------------------------------------------------------
    \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 
---------------------------------------------------------------------------
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:
---------------------------------------------------------------------------
    \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 
---------------------------------------------------------------------------
        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\
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
    \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).
---------------------------------------------------------------------------
    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.
---------------------------------------------------------------------------
    \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).
---------------------------------------------------------------------------
    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.
---------------------------------------------------------------------------
    \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).
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \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 
---------------------------------------------------------------------------
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.
---------------------------------------------------------------------------
    \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).
---------------------------------------------------------------------------
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.
---------------------------------------------------------------------------
    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.
---------------------------------------------------------------------------
    \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 
---------------------------------------------------------------------------
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\
---------------------------------------------------------------------------
    \42\ Id. at Sec. 151.10.

    If the land is located off-reservation, the criteria demand even 
---------------------------------------------------------------------------
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\
---------------------------------------------------------------------------
    \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).
---------------------------------------------------------------------------
    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.
---------------------------------------------------------------------------
    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.
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \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\
---------------------------------------------------------------------------
    \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).
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \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\
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------

   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\
---------------------------------------------------------------------------
    \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\
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
    \1\ https://www.doi.gov/pressreleases/obama-administration-exceeds-
ambitious-goal-restore-500000-acres-tribal-homelands.
---------------------------------------------------------------------------
    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).
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \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.