In advance of the hearing, the Majority Staff circulated a memo calling the fee-to-trust provisions of the Indian Reorganization Act into question. Felix Cohen has described these provisions as the “capstone” of the IRA.

The Majority Staff Memo creates the perception that the BIA is an unfettered and unchecked bureaucracy that is gobbling up land for Indians at the expense of unsuspecting communities. It also gives credence to the notion that there is a need to curb “reservation shopping” to prevent some sort of massive proliferation of Indian gaming facilities.

The Majority Staff Memo ignores or omits some important context.

First, an overwhelming majority of tribal fee-to-trust applications are for lands that are located within or contiguous to an existing reservation. During my tenure with the Department of the Interior, this category comprised approximately 90 percent of all tribal fee-to-trust applications.

Of those applications, a large number of applications involve tribes seeking to consolidate their interest in parcels that are held in both fee and trust status. Congress encouraged these applications when it amended the Indian Land Consolidation Act in 2000 to address Emulsified Property.

Second, research by Professor Frank Pommersheim has shown that tens of thousands of acres of Indian lands continue to be taken out of trust status despite the IRA’s fee-to-trust language . The Majority Staff Memo does not mention this fact.