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Senate committee approves bill to reform land-into-trust process

Wednesday, December 2, 2015

Indianz.Com SoundCloud: Senate Indian Affairs Committee Business Meeting to Consider S. 1879

The normally bipartisan Senate Indian Affairs Committee fractured along party lines on Wednesday as lawmakers considered a long-awaited fix to the U.S. Supreme Court decision in Carcieri v. Salazar.

S.1879, the Interior Improvement Act, ensures that all tribes, regardless of the date of federal recognition, can follow the land-into-trust process at the Bureau of Indian Affairs. But Democrats refused to support the bill due to concerns that it does not represent the wishes of Indian Country. Some provisions, for example, give state and local governments a greater stake in the process.

"Right now, I am not convinced that this approach will reduce litigation," Sen. Jon Tester (D-Montana), the vice chairman of the committee, said at a business meeting this afternoon. "In fact, it may even increase litigation."

With those concerns in mind, Tester offered an amendment that represents the "clean" fix that tribes have been supporting. He also proposed another amendment would have required the BIA to approve all on-reservation land-into-trust acquisitions, eliminating the agency's discretion for these types of applications.

Both amendments, though, were rejected after Sen. John Barrasso (R-Wyoming), the chairman of the committee, spoke out against them. However, he had to go through the process twice after some confusion arose about the way he handled the voice vote.

Sen. John Barrasso (R-Wyoming), left, and Sen. Jon Tester (D-Montana). Photo from SCIA

Despite the confusion, Tester did not ask for a written vote. That would have put all members -- Republican and Democrat -- on the record, something that almost never happens because the committee usually approves amendments without much controversy.

The committee also almost always approves bills without dissent but that didn't happen either. When Barrasso called for a voice vote on S.1879 itself, Democrats loudly objected.

"I definitely want to be recorded as a no," said Sen. Maria Cantwell (D-Washington).

Still, no one requested a written vote, something that's rare for the committee because members usually act in a bipartisan fashion. The last recorded vote appears to have occurred in June 2005, during the 109th Congress, when a controversial Indian gaming bill was approved over the objections of Democrats.

Incidentally, the 109th Congress also appears to be the last time the committee took a recorded vote on an amendment. Again, it occurred in connection with a controversial Indian gaming bill and again, Democrats were rebuffed by Republicans like they were today.

Despite the lack of unity at the business meeting, Barrasso defended his approach to Carcieri, noting that a "clean" fix lacks support on Capitol Hill. Indeed, some tribes and some lawmakers have called for restrictions on new land acquisitions, citing concerns about gaming.

Barrasso also said he was willing to consider Tester's second amendment -- making on-reservation land-into-trust acquisitions mandatory -- in the future.

“The committee passed a bill today to reform Washington’s process for taking land into trust for Indian tribes,” Barrasso said in a press release after the meeting. “It will encourage cooperation at the local level and more transparency from Washington. It is time we give sovereign tribes the ability to use their land for the betterment of their people. I will work to see this bill pass the full Senate soon.”

Committee Notice:
Business Meeting to Consider S. 1879 (December 2, 2015)

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