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Senate Indian Affairs Committee delays action on land-into-trust

Thursday, July 30, 2015

Members of the Senate Indian Affairs Committee attend a business meeting and oversight hearing on July 29, 2015. Photo by Andrew Bahl for Indianz.Com

Another version of Carcieri fix on the table
By Andrew Bahl
Indianz.Com Staff Writer

The Senate Indian Affairs Committee took up two bills at a business meeting on Wednesday but only one of them made it out.

S.732, a bill to fix the U.S. Supreme Court decision in Carcieri v. Salazar, was the high-profile item on the agenda. Sen. Jon Tester (D-Montana), the vice chairman of the committee, introduced the measure in March to ensure that all tribes, regardless of the date of their federal recognition, can follow the land-into-trust process.

Despite bipartisan support, however, Tester withdrew his bill from consideration. He wants to give his colleagues and tribes more time to review a new land-into-trust fix introduced on Tuesday by Sen. John Barrasso (R-Wyoming), the chairman of the committee.

“I believe that tribes have always wanted two things in a Carcieri fix: a reaffirmation of the past land-into-trust decisions which will provide certainty to tribes for their existing lands and reaffirmation of the Secretary’s ability to take land-into-trust for all tribes -- with an emphasis on all -- without any greater limitations on that authority," Tester said at the business meeting.

Of Barrasso's bill, S.1879, the Interior Improvement Act, Tester said: "I think it maintains those two goals.”

"It's possible you've found a way to move forward on this bill," Tester told Barrasso.

Indianz.Com SoundCloud: Senate Indian Affairs Committee Business Meeting to Consider S. 383 and S. 732

The Supreme Court issued the Carcieri decision in February 2009. Even though Indian Country and the Obama administration have been pushing for a fix, Congress has failed to act, resulting in litigation and delays for the Bureau of Indian Affairs.

“Overall, it slows us down tremendously,” Assistant Secretary Kevin Washburn said at an oversight hearing earlier this month. “It’s been a horrible burden.”

Barraso's bill addresses the decision by affirming that the Secretary of the Department of the Interior can acquire land for all tribes and by reaffirming all prior decisions. It also makes some changes to the way land-into-trust applications are processed at the BIA.

“This bill clarifies existing law and streamlines outdated, cumbersome and costly land-into-trust processes,” Barrasso said Wednesday.

The second item on the agenda cleared the committee unanimously. S.383, the Indian Trust Asset Reform Act, gives tribes greater control of their trust assets.

“The bill would allow tribes to submit long term management plans for tribal assets held in trust to promote economic activity and Indian self-determination,” Sen. Mike Crapo (R-Idaho), the sponsor of the measure, said. “The bill would also provide for reforms within the Department of the Interior to reduce regulatory red tape tribes face when they try to utilize trust assets.”

The committee adopted a substitute amendment that Crapo said incorporated feedback from tribes and federal agencies. The changes allow tribes to opt out of submitting management plans and address self-governance issues.

“The amendment incorporates a number of technical and clarifying corrections," Crapo said.

While there hasn’t been a hearing on the bill, it has been endorsed by the National Congress of American Indians, the Affiliated Tribes of Northwest Indians, the United South and Eastern Tribes and the Intertribal Timber Council.

Ernie Stensgar, the vice chairman of the Couer d'Alene Tribe of of Idaho, said the bill represents a marked shift in trust asset management.

“This bill would be a step forward and would allow us to control how our trust assets are managed,” Stensgar told the committee at a July 9 hearing. "This would allow tribes to look at their own destiny."

Committee Notice:
Business Meeting to Consider S. 383 and S. 732 (July 29, 2015)

DOI Solicitor Opinion:
M-37029: The Meaning of "Under Federal Jurisdiction" for Purposes of the Indian Reorganization Act (March 12, 2014)

Government Accountability Office Report:
BIA's Efforts to Impose Time Frames and Collect Better Data Should Improve the Processing of Land in Trust Applications | Highlights