Rep. Tom Cole (R-Oklahoma) is a member of the Chickasaw Nation. Photo: TomColeOK04

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Rep. Tom Cole suffers defeat as land-into-trust fix goes down in House

Wednesday, July 13, 2016

Rep. Tom Cole (R-Oklahoma) suffered an embarrassing defeat on the floor of the House on Tuesday as his attempt to fix the U.S. Supreme Court decision in Carcieri v. Salazar went down in flames.

The provision in H.R.5538, the fiscal year 2017 Interior appropriations bill, was not entirely what Indian Country wanted. It merely confirmed that land-into-trust acquisitions prior to February 2009 are valid yet it would have saved tribes and the federal government from costly legal challenges.

"The possibility of litigation chills economic and infrastructure development on trust lands," said Cole, a citizen of the Chickasaw Nation and one of just two members of a federally recognized tribe in Congress.

Despite the limited nature of the fix, Cole thought Section 128 was well on the road to success. Just a month ago, he convinced the House Appropriations Committee to add his language to the bill, touting support from key Republican colleagues.

"We believed an agreement had been reached between the authorizers and appropriators," Cole recounted on Tuesday. He said the agreement had been reached "well in advance" of the appropriations markup on June 15.

Indianz.Com SoundCloud: Rep. Tom Cole (R-Oklahoma) announces demise of Carcieri fix

But everything changed last Friday. That's when Rep. Rob Bishop (R-Utah), the chairman of the House Natural Resources Committee, said he was "dismayed" by the appearance of Section 128 in the bill and made an extraordinary request to have it removed.

Fellow Republicans did little to stop the effort and the writing was on the wall when the House Rules Committee -- of which Cole is a member -- on Monday unveiled a rule that allowed Section 128 to be removed through a point of order. The speech on Tuesday confirmed its quick demise.

"Further staff discussions revealed the differences still remain," Cole said. "For that reason, we've decided to table this matter for the time being and continue working together on a solution amenable to all parties involved."

What happens next is anyone's guess. In a letter on Friday, Bishop said he was working on legislation that would "fairly address the legal issues raised by the Carcieri decision through the committee process under regular order."

But in the 18th months during which Bishop has served as chairman of Natural Resources, none of the other Carcieri fixes that have been introduced under regular order -- H.R.249, H.R.407, or H.R.3137 -- have been granted a hearing.

And the Republican lawmaker, despite leading the panel with jurisdiction over Indian issues, does not maintain a strong rapport with those he is charged with representing. Late last year, tribes walked away from talks with his Bishop and his allies after they said their efforts to protect 1.9 million acres of sacred and ancestral sites in Utah were being ignored.

Bishop has repeatedly vowed to introduce legislation to address the matter but the Bears Ears Inter-Tribal Coalition pointed out last month that he has failed to do so as the clock winds down on the 114th Congress during a busy and heated election year.

Cole, however, remains hopeful even though none of his Carcieri bills have been taken up by the House Subcommittee on Indian and Alaska Native Affairs.

"Despite the fact that the so-called Cole provision was stricken from the the Interior appropriations bill, I'm encouraged with the progress we've made thus far," he said.

Rep. Raúl M. Grijalva (D-Arizona), the top Democrat on Natural Resources, isn't as optimistic. He was the only lawmaker who publicly spoke out against the effort to remove Section 128 from the appropriations bill, which contains numerous other policy riders, none of which were allowed to be stricken through a point of order.

"The rules don’t apply until it comes to the tribes," Grijalva said in a press release. "Then, all of a sudden, we need to be careful not to make policy on an appropriations bill."

"Never mind that we make policy on appropriations bills all the time," Grijalva added. "Apparently we have to draw the line somewhere, and Republicans have decided again that Native Americans get the short straw."

Lawmakers in the House are indeed debating dozens of additional policy riders to the bill. Debate on H.R.5538 stretched well into the night on Tuesday and they have yet to get through all of the proposed amendments.

Republican leaders expect to complete consideration of the bill by the end of the week, according to the Majority Leader's schedule.

The Supreme Court's decision in Carcieri v. Salazar was handed down on February 24, 2009. By a 6-3 vote, the justices said the Bureau of Indian Affairs can only place land into trust for tribes that were "under federal jurisdiction" in 1934.

The court did not define the meaning of the phrase "under federal jurisdiction" and the Obama administration has taken steps to provide certainty for tribes whose federal status may not have been clear in 1934. Despite those efforts, litigation continues to slow down housing, economic development, gaming and other projects across Indian Country.

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

U.S. Supreme Court Documents:
Oral Argument Transcript | Briefs and More

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