Law | National | Politics

Bureau of Indian Affairs in final push as Obama era nears its end

Tuesday, March 1, 2016

Former National Congress of American Indian President Joe Garcia, center left, shakes hands with Larry Roberts, the acting head of the Bureau of Indian Affairs, at NCAI's executive council winter session in Washington, D.C., on February 22, 2016. Photo by Indianz.Com

President Barack Obama isn't leaving office until January 2017 but time is running out for federal agencies to ensure his pro-tribal agenda continues regardless of the outcome of the upcoming election.

With that in mind, the Bureau of Indian Affairs will be busy this year pumping out a slew of changes. While none could be described as ground-breaking, the goal is to make simple tweaks to existing regulations and programs without triggering any lengthy public review processes.

"We are trying to move quickly to implement as much common sense approaches as we can during this administration," Larry Roberts, the acting head of the agency, said last Monday at the National Congress of American Indians 2016 executive council winter session in Washington, D.C.

Three changes have hit the Federal Register since Roberts addressed tribal leaders. They include a new Model Indian Juvenile Code, a minor change to the burial assistance program and a clarification to the land-into-trust process.

Tribes and the public will be able to comment on the juvenile code, which hasn't been updated since 1988. But it will become final soon after that process ends on May 27 because it does not involve any regulatory changes.

"Tribal leadership can adjust that code," Roberts said at NCAI. "They can take parts of it, they can take all of it, whatever they want." He said it encourages "less punitive" sanctions for juvenile offenders by promoting treatment and services.

The burial assistance program is being changed to allow individual Indians to seek assistance from the BIA within 180 days of a loved one's passing. Currently, the deadline is 30 days, something Roberts said could be interpreted as unreasonable.

"We know that those are very difficult times when folks are applying for those resources," Roberts said.

Although comments can be submitted by March 31, the BIA has designated the change as an "interim final rule." That means it will become effective on April 15 because the agency argues that it does not represent a major regulation, according to the notice that was published in the Federal Register on Tuesday.

The clarification to the land-into-trust process falls into the same "interim rule" category. The BIA will no longer require tribes to demonstrate that their property meets the Standards for the Preparation of Title Evidence in Land Acquisitions by the United States issued by the Department of Justice.

Those standards are not necessary for Indian lands, the BIA argues in a Federal Register notice published on Tuesday. Instead, tribes will be able to submit a more streamlined set of documents that ensure clear title.

"It's just a technical amendment," Roberts said at NCAI. "But as a practical matter it should make a huge difference for your realty departments and your resources. We're basically proposing common sense approaches to title."

The rule is open to comments until March 31 and will become effective on April 15, the BIA's notice states.

Another notice is being published on Wednesday though it doesn't involve a rule change. Instead, the BIA is making sure state and local child welfare agencies, along with adoption groups, know who to contact when they have questions about the Indian Child Welfare Act.

The 97-page document provides an extensive list of contacts for every federally-recognized tribe. While the notice itself does not appear significant, it's part of a larger effort to ensure compliance with the 1978 federal law, which was written to prevent Indian children from being taken away from their tribal communities.

Along those lines, Roberts hopes to finalize a more concrete ICWA rule before the end of the year. But that one is highly controversial -- the BIA has received more comments on it than any in the agency's history.

"We are moving full steam ahead on those regulations," Roberts said. The draft was published nearly a year ago.

Conservative organizations and private adoption groups have been fighting the effort, with some going so far as to question the constitutionality of ICWA itself. One lawsuit, which challenged some guidelines that preceded the rule, was dismissed but a potentially more damaging case remains alive in federal court in Arizona.

Federal Register Notices:
Financial Assistance and Social Services Programs; Burial Assistance (March 1, 2016)
Title Evidence for Trust Land Acquisitions (March 1, 2016)
Model Indian Juvenile Code (February 29, 2016)

Federal Register Notices for Indian Child Welfare Act:
Regulations for State Courts and Agencies in Indian Child Custody Proceedings (March 30, 2015)
Guidelines for State Courts and Agencies in Indian Child Custody Proceedings (February 25, 2015)