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House lawmakers introduce new version of land-into-trust fix

Friday, July 24, 2015

Rep. Betty McCollum (D-Minnesota) met with tribal leaders at the National Indian Gaming Association's legislative summit in Washington, D.C, on July 22, 2015. Photo from Twitter

A new version of a fix to the U.S. Supreme Court decision in Carcieri v. Salazar was introduced in the House this week.

Rep. Tom Cole (R-Oklahoma) and Rep. Betty McCollum (D-Minnesota), the co-chairs of the bipartisan Congressional Native American Caucus, introduced H.R.3137 on Tuesday. It ensures that all tribes, regardless of the date of their federal recognition, can follow the land-into-trust process.

The bill also reaffirms the legality of prior land-into-trust decisions made by the Bureau of Indian Affairs. It would effectively end lawsuits and administrative challenges that question whether a particular tribe was "under federal jurisdiction" as of 1934.

“I am pleased to introduce legislation that seeks to further repair what has historically been a battered relationship between Native Americans and the federal government,” Cole, a member of the Chickasaw Nation, said in a press release . “By reaffirming the trust status of lands acquired by tribes, this bill keeps the promises previously made and rightly provides peace of mind related to the ownership of tribal lands.”

Rep. Tom Cole (R-Oklahoma), a citizen of the Chickasaw Nation, is one of only two members of a federally-recognized tribe in Congress. The other is Rep. Markwayne Mullin (R-Oklahoma). Photo from Flickr

“The placement of land into trust for tribal nations is a binding commitment,” added McCollum. “This bipartisan bill makes clear that our government honors the commitments it has made, and that lands that have been restored and held for tribes under existing trust status are protected for future generations.”

In addition to Cole and McCollum, the bill counts 19 co-sponsors. Most are Democrats but five are Republicans, including Rep. Markwayne Mullin (R-Oklahoma), a member of the Cherokee Nation.

Indian Country has been asking for a Carcieri fix ever since the Supreme Court issued its disastrous ruling in February 2009. The decision upset decades of settled policy and practice by requiring the BIA to determine whether a particular tribe was "under federal jurisdiction" when the Indian Reorganization Act became law in 1934.

"Overall, what that means is that it just slows us down tremendously," Assistant Secretary Kevin Washburn told the Senate Indian Affairs Committee earlier this month. "It's been a horrible burden."

A view of the U.S. Supreme Court. Photo by Indianz.Com

The Obama administration supports a fix but lawmakers have been unable to enact one for the past six years. Concerns have risen about gaming even though the overwhelming majority of land-into-trust applications are for housing, economic development, public safety and non-casino projects.

Despite the obstacles, the BIA has continued to process land-into-trust applications More than 300,000 acres have been placed in trust since January 2009 and the Obama administration hopes to reach 500,000 acres by the end of 2016.

Washburn defended the pace of the acquisitions at the Senate hearing on July 9. But Republicans on the House Appropriations Committee questioned the BIA's agenda in an appropriations report for the Interior Department.

"The committee is concerned about the department’s goal of placing more than 500,000 acres of land into trust by the end of fiscal year 2016. Such a goal incentivizes haste," the report stated.

In response to the language, the White House Office of Management and Budget urged lawmakers to include a Carcieri fix in the appropriations measure.

Assistant Secretary Kevin Washburn, the head of the Bureau of Indian Affairs. Photo from Twitter

"A legislative solution would help achieve the goals of the IRA and tribal self-determination by clarifying that DOI’s authority under the law applies to all tribes, whether recognized in 1934 or after," the White House said in a statement of administration policy. "Such legislation would be consistent with the longstanding policy of assisting tribes in establishing and protecting a land base sufficient to allow them to provide for the health, welfare, and safety of tribal members, and in treating all tribes equally for purposes of setting aside lands for tribal communities."

H.R.2822, the Interior appropriations package, has since been pulled from consideration due to controversy over provisions affecting the display of the Confederate flag on federal lands.

H.R.3173 joins two other versions of a Carcieri fix in the House. It essentially combines the purposes of H.R.249, which was introduced by Cole on January 9, and H.R.407, which was introduced by McCollum on January 20.

Neither of those bills, however, have received a hearing in the 114th Congress.

Over in the Senate, Sen. Jon Tester (D-Montana) introduced S.732 on March 12. The bill is identical to H.R.407 but it hasn't received a hearing either.

Relevant Documents:
FY 2016 Interior and Environment Bill - Full Committee Draft | FY 2016 Interior and Environment Bill - Draft Committee Report