[Congressional Record Volume 167, Number 207 (Wednesday, December 1, 2021)]
[House]
[Pages H6732-H6735]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                              {time}  1245
REAFFIRMING THE AUTHORITY OF THE SECRETARY OF THE INTERIOR TO TAKE LAND 
                      INTO TRUST FOR INDIAN TRIBES

  Ms. LEGER FERNANDEZ. Madam Speaker, I move to suspend the rules and 
pass the bill (H.R. 4352) to amend the Act of June 18, 1934, to 
reaffirm the authority of the Secretary of the Interior to take land 
into trust for Indian Tribes, and for other purposes.
  The Clerk read the title of the bill.
  The text of the bill is as follows:

                               H.R. 4352

       Be it enacted by the Senate and House of Representatives of 
     the United States of America in Congress assembled,

     SECTION 1. REAFFIRMATION OF AUTHORITY.

       (a) Modification.--
       (1) In general.--The first sentence of section 19 of the 
     Act of June 18, 1934 (25 U.S.C. 5129), is amended--
       (A) by striking ``The term'' and inserting ``Effective 
     beginning June 18, 1934, the term''; and
       (B) by striking ``any recognized Indian tribe now under 
     Federal jurisdiction'' and inserting ``any federally 
     recognized Indian Tribe''.
       (2) Effective date.--The amendments made by paragraph (1) 
     shall take effect as if included in the Act of June 18, 1934 
     (commonly known as the ``Indian Reorganization Act''; 25 
     U.S.C. 5101 et seq.), on the date of the enactment of that 
     Act.
       (b) Ratification and Confirmation of Actions.--Any action 
     taken by the Secretary of the Interior pursuant to the Act of 
     June 18, 1934 (25 U.S.C. 5101 et seq.), for any Indian Tribe 
     that was federally recognized on the date of the action is 
     ratified and confirmed, to the extent such action is 
     subjected to challenge based on whether the Indian Tribe was 
     federally recognized or under Federal jurisdiction on June 
     18, 1934, as if the action had, by prior Act of Congress, 
     been specifically authorized and directed.
       (c) Effect on Other Laws.--
       (1) In general.--Nothing in this section or the amendments 
     made by this section affects--
       (A) the application or effect of any Federal law other than 
     the Act of June 18, 1934 (25 U.S.C. 5101 et seq.), as amended 
     by subsection (a); or
       (B) any limitation on the authority of the Secretary of the 
     Interior under any Federal law or regulation other than the 
     Act of June 18, 1934 (25 U.S.C. 5101 et seq.), as amended by 
     subsection (a).
       (2) References in other laws.--An express reference to the 
     Act of June 18, 1934 (25 U.S.C. 5101 et seq.), contained in 
     any other Federal law shall be considered to be a reference 
     to that Act as amended by subsection (a).

  The SPEAKER pro tempore. Pursuant to the rule, the gentlewoman from 
New Mexico (Ms. Leger Fernandez) and the gentleman from Arkansas (Mr. 
Westerman) each will control 20 minutes.
  The Chair recognizes the gentlewoman from New Mexico.


                             General Leave

  Ms. LEGER FERNANDEZ. Madam Speaker, I ask unanimous consent that all 
Members may have 5 legislative days in which to revise and extend their 
remarks and include extraneous material on the measure under 
consideration.
  The SPEAKER pro tempore. Is there objection to the request of the 
gentlewoman from New Mexico?
  There was no objection.
  Ms. LEGER FERNANDEZ. Madam Speaker, I yield myself such time as I may 
consume.
  Madam Speaker, H.R. 4352 amends section 19 of the Indian 
Reorganization Act to allow the Secretary of the Interior to take land 
into trust for federally recognized Indian Tribes regardless of their 
date of recognition.
  Over a decade ago, in the Carcieri v. Salazar case, the Supreme Court 
held that the Secretary of the Interior's authority under the Indian 
Reorganization Act to place land into trust for a Tribe applies only to 
Tribes that were under Federal jurisdiction in 1934.
  Before the Carcieri decision, the Department of the Interior, under 
previous administrations, had consistently interpreted the Indian 
Reorganization Act as authorizing the Department to take land into 
trust for any Tribe as long as the Tribe was federally recognized at 
the time of its land-into-trust application.
  Placing land into trust is vital for Tribal sovereignty and self-
determination. We must remember that most of the land sought to be 
placed in trust is actually historic land, aboriginal land of the 
Tribes themselves, and they are simply seeking to reacquire it and to 
have the same trust protections placed on that land as their other 
land.
  Placing land into trust also confers important protections, benefits, 
and flexibility for Tribes, including protections essential for 
supporting Tribal cultural practices and well-being as well as their 
ability to exercise jurisdiction over that land.
  However, the Carcieri decision overturned 75 years of Department of 
the Interior practice by holding that the Indian Reorganization Act 
provided the Interior Department with authorization to take land into 
trust only for Tribes that were federally recognized at the time of the 
enactment of the Indian Reorganization Act of 1934.
  As a result, the Court's decision created a two-tier system of the 
haves and have nots among federally recognized Tribes applying for 
trust land acquisition.
  Now, Tribes that have been recognized after 1934 cannot apply with 
the Interior Department to have land taken into trust. Instead, each of 
these Tribes must seek new legislation from Congress every single time 
they have a similar land request.
  We have already seen the real-world consequences of the Carcieri 
decision, as year after year Congress has to pass stand-alone bills for 
individual Tribes on a piecemeal basis to protect their lands. In fact, 
in a few moments we will consider exactly such a bill.
  The Carcieri decision also opened up Tribes to costly lawsuits 
regarding land that they have held in trust for years, sometimes 
decades. It has taken almost a century for us to begin undoing the 
damage we inflicted on our Nation's indigenous peoples upon colonial 
contact.
  The 1934 Indian Reorganization Act was an important step in that 
healing process with the Tribes, but we now know that our work is not 
yet done. We are still federally acknowledging Tribes to this day. We 
passed a Tribal recognition bill here in the House on November 1.
  To this day, Congress is still working to right many wrongs from the 
Federal Government. We are still striving to return a portion, just a 
small portion of the land back to the Tribes.
  To say that Tribes federally recognized after 1934 are somehow 
inferior to Tribes federally recognized before is dangerously ignorant 
of the idea that we right now are on Indian land.
  H.R. 4352, introduced by the gentlewoman from Minnesota (Ms. 
McCollum), will right this wrong and amend the Indian Reorganization 
Act to ensure that all federally recognized Tribes are treated equally, 
regardless of their date of recognition.
  For more than a decade, the Carcieri decision has caused anxiety and 
confusion in Indian Country. It has created dangerous legal ambiguities 
related to Indian trust lands.
  Passing this bill will remove the ambiguity and uncertainty 
surrounding land into trust and finally offer all 574 federally 
recognized Tribal nations peace of mind that their lands can be 
protected.
  I urge the swift adoption of the bill, and I reserve the balance of 
my time.
  Mr. WESTERMAN. Madam Speaker, I yield myself such time as I may 
consume.
  Madam Speaker, as the gentlewoman described, this is a very complex 
issue with a long history behind it. H.R. 4352 would reverse a 2009 
Supreme Court decision, Carcieri v. Salazar, which held that the Indian 
Reorganization Act does not authorize the Secretary of the Interior to 
acquire land in trust for Tribes that were not under Federal 
jurisdiction in 1934 when the act was passed.
  The Carcieri decision created vast uncertainty over the fee-to-trust 
process for Tribes and impacted stakeholders. Since the decision was 
handed down, there has been no resolution in this incredibly complex 
issue.
  Lands taken into trust are extremely important to Tribes. Tribes' 
desire to increase their Tribal land base and help

[[Page H6733]]

their communities must be respected. There are certain benefits and 
advantages afforded to Tribes having lands that are held in trust.
  But we should be clear that even prior to Carcieri, the fee-to-trust 
process was far from perfect. We should not ignore the larger need to 
improve the process.
  Many have argued the current Bureau of Indian Affairs process 
provides very limited incentive for community stakeholders to be 
partners and places little requirement on the BIA to analyze the 
impacts of a fee-to-trust decision on nearby communities or Tribes, 
often resulting in unresolved conflicts and litigation at the local 
level.

  For the last decade, county governments have been asking us to reform 
this process. Their concerns with the tax, zoning, and community 
impacts of trust land acquisition have been well documented.
  While this bill addresses the immediate impacts of the Carcieri 
decision, if this bill becomes law, nothing will have changed to 
address the larger issues with the fee-to-trust process. Congress 
should address the impacts of the Carcieri decision and enact needed 
reforms to improve the fee-to-trust process. Tribes and all 
stakeholders deserve as much, and I look forward to working with them 
on this important issue.
  Madam Speaker, I reserve the balance of my time.
  Ms. LEGER FERNANDEZ. Madam Speaker, I would like to offer my 
gratitude to the next speaker for the hard work she has put into this 
bill so that we can resolve this issue now and into the future.
  I yield 5 minutes to the gentlewoman from Minnesota (Ms. McCollum).
  Ms. McCOLLUM. Madam Speaker, I thank the gentlewoman from New Mexico 
for the generosity of the time.
  As the author of H.R. 4352, I rise to encourage all of my colleagues 
to join in this bipartisan effort to end discrimination against Tribal 
nations and to ensure that all 574 federally recognized Tribal nations 
have the equal ability to restore their homelands through the 
Department of the Interior's fee-to-trust process.
  This bill would confirm Congress' intent that the Indian 
Reorganization Act authorizes the Secretary of the Interior to place 
land into trust for all federally recognized Tribal nations, regardless 
of their date of recognition.
  Let's be clear, what is at the heart of this bipartisan legislation 
is equality. All 574 federally recognized Tribal nations deserve to 
have equal access to the Federal process for restoring their homelands.
  The U.S. Supreme Court's 2009 Carcieri decision violated this 
equality principle by forcing a two-tier system for the Department of 
the Interior's fee-to-trust process: One process for Tribal nations 
federally recognized before 1934 and a different process for Tribal 
nations recognized after 1934.
  Carcieri imposed on federally recognized Tribal nations an unfair, 
separate, and unequal process, a fundamentally discriminatory process 
for restoring their homelands. Now is the time for Congress to fix this 
blatant discrimination against Tribal nations. For over a decade now, 
Tribal governments and Native American organizations have prioritized a 
clean Carcieri fix.
  The president of the National Congress of American Indians, Ms. Fawn 
Sharp, made the following statement, ``Carcieri has effectively created 
two classes of Tribal nations and has overburdened Tribal, Federal, and 
State resources by generating unnecessary conflict over the restoration 
and retention of Tribal homelands, and consequently impeded economic 
development.
  ``NCAI strongly encourages Congress to end this turmoil by enacting a 
congressional fix to the Indian Reorganization Act which reaffirms the 
Secretary of the Interior's authority to restore Tribal homelands for 
all federally recognized Tribal nations.''
  Chief Kirk Francis of the Penobscot Nation and president of the 
United Southern and Eastern Tribes, USET, adds his support, saying, 
``Homelands are essential to exercising Tribal Government authority, 
protecting our cultural identity, and foundational to growing our 
economies. After decades of Federal efforts to diminish our homelands, 
placing land into trust is a critical aspect of the Federal 
Government's trust and treaty obligations and righting these historical 
wrongs.''
  For years elected Tribal Government leaders have told Congress 
repeatedly that the Carcieri decision has caused significant hardship 
and has created second-class status for Tribal nations when it comes to 
restoring their homelands. Tribal governments currently experience 
enormous time and scarce resources fighting Carcieri-based lawsuits.
  For example, Chairman Tom Wooten of the Samish Indian Nation in 
Washington State supports this bill, saying, ``H.R. 4352 will help 
right past wrongs by the Department of the Interior and enable the 
Samish Indian Nation to move forward in reestablishing our homeland and 
rebuilding our community.
  ``In 2018, the Interior Department approved the Tribe's trust land 
application for 6.7 acres after an over 9-year process to complete a 
Carcieri analysis. The Department's decision is tied up in endless 
litigation based upon Carcieri.
  ``This bill would stop frivolous litigation to ensure that no other 
Tribe has to go through what we went through.''
  Madam Speaker, this is why we need to take action today, to pass a 
clean Carcieri fix. Since the 2009 opinion, Members in both Chambers of 
Congress, both Republicans and Democrats, have introduced legislation 
to restore the original intent of the Indian Reorganization Act.
  This is a completely bipartisan issue. In fact, I will say it is a 
nonpartisan issue. This bill restores a fair and equal land-into-trust 
process, which is a fundamental responsibility within our government-
to-government relationship with all federally recognized Tribal 
nations.
  Last Congress, the House overwhelmingly supported Representative   
Tom Cole's legislation to fix this longstanding issue for Indian 
Country, which I proudly cosponsored. Today, I ask my colleagues to 
join us again in passing a clean Carcieri fix.
  Madam Speaker, Tribal nations should not be discriminated against 
because of their date of Federal recognition. The date has no bearing 
on their existence as sovereign nations, so it should have no bearing 
on their right to reestablish their homelands.
  I urge my colleagues to support the bill.
  Mr. WESTERMAN. Madam Speaker, I yield 4 minutes to the gentleman from 
Arizona (Mr. Gosar).
  Mr. GOSAR. Madam Speaker, I thank the ranking member for yielding 
such time.
  I rise today in strong opposition to the current form of H.R. 4352.
  In 1988, Congress enacted the Indian Gaming Regulatory Act, or IGRA, 
with the intent to restrict casinos to Tribes' original reservations.
  H.R. 4352 reverses a major 2009 Supreme Court decision, and the bill 
would lead to future abuses of IGRA. The bill gives unelected 
bureaucrats a blank check to take any land anywhere in America into 
trust without respect for impacted communities, including other Tribes.
  More importantly, H.R. 4352 allows reservation shopping and for lands 
to be taken into trust for off-reservation casinos in places where 
States, local governments, and other Tribes oppose such action.
  H.R. 4352 will result in a flood of new off-reservation casinos that 
cause harm to States and local communities. Many of these casino 
locations are nowhere near Tribes' historic reservations and will be 
handpicked by gambling investors and Washington bureaucrats.
  If H.R. 4352 passes, all Tribes would have to do in order to get land 
taken into trust and open off-reservation casinos is to show that they 
are federally recognized by the Department of the Interior.

                              {time}  1300

  The reality is that this bill could be fixed.
  Last Congress, in committee, we talked about the importance of 
finding common ground on which to address community concerns about off-
reservation casino abuse and the valid concerns brought to the 
committee by State and county governments.
  H.R. 4352 should be considered under an open rule and amended prior 
to being brought to the floor to address these real bipartisan concerns 
about the real-world impacts of the bill.

[[Page H6734]]

  Taking land into trust divests the affected State and local 
governments of jurisdiction. When land is taken into trust, for 
example, the Tribe will pay no applicable taxes on the land, but the 
county or city in which the land is located might nonetheless be 
required to supply the Tribe with county and city services, and non-
Tribal residents will pay for it.
  At least consultation should be a minimum. Tribes demand this in 
reverse.
  The bill as currently drafted, therefore, increases the power of an 
unelected bureaucracy to divest nonconsenting State and local 
governments of jurisdiction over their land. This, by itself, is a 
great cause of concern.
  Let's be clear about H.R. 4352. A bill of this scope and magnitude 
deserves more careful consideration than is being given here today.
  Currently, there are almost 600 recognized Tribes in the United 
States. About 240 of them have gaming operations.
  H.R. 4352 removes the dam that provides some restraint on the number 
of Tribal casinos and would be a dramatic departure from the existing 
Federal law that has been in place for almost a century.
  Before voting on a bill of this magnitude, I hope Members all 
understand that H.R. 4352 will open the floodgates to off-reservation 
Tribal casinos all over the United States.
  If H.R. 4352 passes, all federally recognized Tribes will be eligible 
to receive land in trust and potentially open off-reservation casinos. 
This includes any Tribe recognized by the Department of the Interior 
that was ineligible to receive land in trust and/or was denied land in 
trust prior to H.R. 4352.
  According to the National Indian Gaming Commission fact sheet, as of 
2016, approximately 329, or 58 percent, of the recognized Tribes have 
no gaming operations.
  There is a responsible way for Congress to address these issues. Just 
1 month ago, the House passed H.R. 4881, the Old Pascua Community Land 
Acquisition Act. The broad bipartisan bill was done exactly the way it 
should have been done, with community input, broad bipartisan support, 
and, most importantly, congressional oversight.
  But H.R. 4352 ignores all of that and more. It lets an unelected 
bureaucracy give whatever land it wants to all recognized Tribes. Thus, 
the important process that made H.R. 4881 a success would be ignored if 
H.R. 4352 passes.
  Let's be clear. Passage of H.R. 4352 will allow for new off-
reservation casinos to be opened in your States, in your communities, 
and in your backyard, and for land to be ripped away from local 
jurisdictions without recourse.
  As I have constantly said, good process equals good policy equals 
good politics. This wasn't done.
  I urge all Members to vote ``no'' on H.R. 4352.
  Ms. LEGER FERNANDEZ. Madam Speaker, I reserve the balance of my time.
  Mr. WESTERMAN. Madam Speaker, I yield 4 minutes to the gentleman from 
Oklahoma (Mr. Cole).
  Mr. COLE. Madam Speaker, I thank my good friend from Arkansas for 
yielding and being so generous with the time.
  Madam Speaker, I rise in strong support of H.R. 4352. Along with my 
good friend, Representative McCollum of Minnesota, I am proud to 
cosponsor this legislation.
  The legislation amends the Indian Reorganization Act of 1934 and 
reaffirms the right of the Secretary of the Interior to place land into 
trust for federally recognized Indian Tribes.
  Madam Speaker, as I am sure most people in this House know, the 
history and relationship between the United States and Indian Tribes 
isn't something to always be proud of. Frankly, with the passage of the 
Dawes Act in 1887, Tribes all over the country, but particularly in my 
State of Oklahoma, were systematically stripped of their lands, and 
individual Tribal members were as well. I know this because my Tribe 
was one of the victims. My family was one of the losers in the process.
  In 1934, the Federal Government wisely saw that it had made a bad 
mistake and intervened with the Indian Reorganization Act to protect 
the remaining Indian lands and to allow modest additions and 
reacquisitions of that land.
  For 75 years, it worked pretty much the way it was supposed to work, 
whether it was a Democratic or a Republican administration. Land was 
protected and modestly brought back into trust--only 9 million acres so 
far since 1934, so it is not as if we have had a large transfer of land 
back. But we have protected what was there and added back to Tribal 
patrimony where it made sense.
  All that was upset by the Carcieri v. Salazar decision in 2009. That 
was a really bad decision, quite frankly. It did, as my friends from 
New Mexico and Minnesota both pointed out, upset the balance. It 
created a two-tiered system and penalized Tribes that had not been 
federally recognized in 1934. That, by the way, wasn't just ``new 
Tribes.'' A lot of them--the case was based on the Narragansetts in 
Rhode Island--actually had been around for a long time.
  The Narragansetts are in the same place they always were. They were 
recognized by the State of Rhode Island but for some reason weren't in 
the 1934 bill.
  So a lot of people have been victimized by this, and frankly, a lot 
of interests have tried to exploit it.
  We have had an opportunity on a couple of occasions to fix it. 
Actually, this House should be proud. In December 2010, my amendment to 
an appropriations bill, supported by my good friend Ms. McCollum, we 
got it out of the House, but it died in the Senate that same December.

  As my friend from Minnesota alluded, we passed legislation in the 
last Congress to deal with this issue on an overwhelmingly bipartisan 
vote.
  I would just say, for the record, I have introduced legislation on 
this every year since 2009. My friend, Ms. McCollum, has done pretty 
much the same, and we have always cosponsored one another's 
legislation. So I am very proud to be here and support this bill.
  I urge passage of this bill. It is a matter of justice for the 
Tribes, but it is also a matter of equity and a matter of, frankly, 
legislative convenience.
  Madam Speaker, I strongly support my friend's bill, H.R. 4352, and 
urge its passage.
  Ms. LEGER FERNANDEZ. Madam Speaker, I yield myself such time as I may 
consume.
  I truly appreciate Representative Cole bringing into the discussion 
about this bill the fact of how it has impacted his own Tribe and their 
ability to take land into trust and not be subject to these 
unnecessary, frivolous, and time-consuming, as well as expensive, 
lawsuits that just create confusion out there.
  I think the fact that Mr. Cole has worked on this every year since we 
had the Carcieri decision tells you so much about how, on both sides of 
the aisle, in the House and Senate, we are looking for a fix, and this 
is indeed the Carcieri fix.
  Madam Speaker, I have no further requests for time and would inquire 
whether my colleague has any remaining speakers on their side.
  Mr. WESTERMAN. Madam Speaker, I have no further speakers, and I yield 
back the balance of my time.
  Ms. LEGER FERNANDEZ. Madam Speaker, I yield myself the balance of my 
time.
  Once again, I urge my colleagues to support this bill. We must 
remember that all we are doing is making sure that all Tribes have the 
same access to the existing statutory law that allows Tribes to take 
land into trust. We are not changing any of the other laws that would 
apply to that trust process.
  I myself have engaged in numerous land into trust transactions when I 
was an attorney, and I can tell you they are not easy. You must show 
that you have a connection to the land; what you will be doing with the 
land; how you communicated and discussed the issue of taking land into 
trust with the nearby communities, with the local governments, with the 
State government; is this aboriginal land; what will you be doing with 
the land; let's go through the NEPA process.
  It is not an easy process, but now every Tribe will be able to have 
the same access to the same statutory process when we pass this law.
  Madam Speaker, I urge my colleagues to support the legislation, and I 
yield back the balance of my time.
  The SPEAKER pro tempore. The question is on the motion offered by

[[Page H6735]]

the gentlewoman from New Mexico (Ms. Leger Fernandez) that the House 
suspend the rules and pass the bill, H.R. 4352.
  The question was taken.
  The SPEAKER pro tempore. In the opinion of the Chair, two-thirds 
being in the affirmative, the ayes have it.
  Mr. GOSAR. Madam Speaker, on that I demand the yeas and nays.
  The SPEAKER pro tempore. Pursuant to section 3(s) of House Resolution 
8, the yeas and nays are ordered.
  Pursuant to clause 8 of rule XX, further proceedings on this motion 
are postponed.

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