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

A 'partial' land-into-trust fix added to Interior appropriations bill

A long overdue fix to the U.S. Supreme Court decision in Carcieri v. Salazar re-emerged on Capitol Hill on Wednesday.

But the language in the bill that funds the Interior Department is not the complete solution that Indian Country has been seeking. Tribes have been asking Congress since February 2009 to confirm that everyone can follow the land-into-trust process, regardless of the date of federal recognition.

The amendment instead ensures that tribal land-into-trust acquisitions between June 18, 1934, and February 24, 2009, cannot be challenged in court. It does not address any applications going forward or any approvals since the Supreme Court issued its disastrous ruling more than seven years ago.

Rep. Tom Cole (R-Oklahoma), a member of the Chickasaw Nation, acknowledged that his amendment represents only a "partial" response to the decision. But he said it represented a compromise that has the support of key Republicans.

"If I had my way, we would fix this all the way to the current date," said Cole, who is one of just two enrolled members of a federally recognized tribe in Congress.

Indianz.Com SoundCloud: House Appropriations Committee Markup June 15, 2016

The limiting language drew opposition from Rep. Betty McCollum (D-Minnesota). She happens to co-chair the Congressional Native American Caucus with Cole and is co-sponsoring a bill with Cole that would protect all tribes and their homelands.

"By only going up to those lands prior to February 24, 2009, we -- with the best of intentions -- would be creating further division that declares trust lands before a certain date are to be respected and others are left to be questioned," said McCollum, who is the top Democrat on the subcommittee that handles the Interior appropriations bill.

No one else spoke against the amendment and the full House Appropriations Committee agreed to include it in the fiscal year 2017 Interior appropriations bill by a voice vote. No one could be heard objecting and no one asked for a recorded vote during the markup on Wednesday.

YouTube: House Appropriations Committee Markup of FY17 Interior & Environment Bill & Revised Suballocations

Cole's amendment effectively prevents litigation for decades of prior land-into-trust acquisitions. The reaffirmation approach was embraced by Congress with the passage of S.1603, the Gun Lake Trust Land Reaffirmation Act, in 2014. The new law ended a lawsuit that kept the Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians from Michigan and the federal government in court for years.

But the language does not fix the underlying issue in the Carcieri case. By a 6-3 vote, the justices held that the Bureau of Indian Affairs can only place land into trust for tribes that were "under federal jurisdiction" as of 1934. Newly recognized tribes or tribes whose status was unclear at the time are now required to overcome more hurdles in order to restore or expand their homelands.

If Congress approves the Interior bill as written, it would not help the Cowlitz Tribe of Washington, whose fast-rising casino remains mired in litigation. Nor would it benefit the Mashpee Wampanoag Tribe of Massachusetts, whose land-into-trust application is also being challenged.

Rep. Don Young (R-Alaska), at podium, listens to a tribal leader at the National Congress of American Indians executive council winter session in Washington, D.C., on February 23, 2016. Photo by Indianz.Com (CC BY-NC-SA 4.0)

Cole said he came up with the amendment after working with Rep. Rob Bishop (R-Utah), the chairman of the House Natural Resources Committee, and Rep. Don Young (R-Alaska), the chairman of the House Subcommittee on Indian and Alaska Native Affairs. The panels have jurisdiction over Indian legislation but have not convened any hearings or markups on H.R.249, H.R.3137 and H.R.407, three different versions of a Carcieri fix.

Young actually supports a fix but, more than once, he has publicly blamed Republican leaders for not letting his committee move forward with the legislation. He brought up the issue again with the National Congress of American Indians earlier this year.

"When I first came here, the chairmen ran their committees," Young, who has served in Congress since 1973, told tribal leaders in February.

"Now we have Republicans and Democrats coming to the [House] Speaker's office" to ask for permission to move forward with legislation, he said. He blamed both parties for maintaining a policy that he said was contrary to the public interest.

"There has to be a meeting with minds to solve a problem," Young said.

The Senate has not had much success with a Carcieri fix either. There are three different Carcieri fixes in that chamber but only S.1879, the Interior Improvement Act, has taken a step forward.

S.1879 remains controversial in Indian Country because it addresses state and local government participation in the land-into-trust process. Two more straightforward fixes -- S.1931 and S.732 -- have not advanced to the Senate floor.

The amendment that was added to the fiscal year 2017 Interior appropriations bill follows:
SEC. ll. All land taken into trust by the United States under or pursuant to the Act of June 18, 1934
(25 U.S.C. 465) before February 24, 2009, for the benefit
of an Indian tribe that was federally recognized on the
date that the land was taken into trust is hereby re-
affirmed as trust land.

House Appropriations Committee Documents:
Press Release | Summary | Bill Text | Bill Report

Supreme Court Decision in Carcieri v. Salazar:
Syllabus | Opinion [Thomas] | Concurrence [Breyer] | Dissent [Stevens] | Concurrence/Dissent [Souter]

Supreme Court Documents:
Oral Argument Transcript | Briefs

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

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