Trump administration rolls out first rule under historic trust reform law

Monday, June 26, 2017  

Indian Country is entering a new era in trust reform amid major changes at the Department of the Interior.

Tribes cheered when then-president Barack Obama signed H.R.812, the Indian Trust Asset Reform Act, into law last June. It was the first comprehensive trust reform bill to clear Congress in more than two decades.

Now it's up to President Donald Trump to implement the historic measure -- that's if he chooses. His record so far on Indian issues has been shaky: he's seeking massive budget cuts for tribal programs at Interior and he has been slow to fill top positions at the department, including officials who are responsible for carrying out the mandates in H.R.812, or ITARA, as it's being called.

Still, tribal leaders are sensing some opportunities as the department, which falls under the leadership of Secretary Ryan Zinke, starts to shift from a period of transition to one of action. Many brought up ITARA when the new Cabinet official and his senior staff attended the National Congress of American Indians mid-year session earlier this month.

"We need focus like never before," NCAI President Brian Cladoosby, who will be stepping down from his post later this year due to the organization's rules on term limits, said during the meeting. "It's an understatement to say it's a turbulent time."

The focus on the Trump team has paid off in at least one area. The department finalized its first ITARA rule on Monday, one that's meant to streamline appraisals and valuations of Indian lands.

The rule, which was developed during the Obama administration, should make it easier for tribes and individual Indians to manage their trust assets without waiting on Interior, the Bureau of Indian Affairs or the Office of the Special Trustee for American Indians. So long as an appraiser meets the minimum qualifications in the new regulation, landowners won't need to seek federal approval before moving forward with leases, rights-of-way or other agreements.

But with flexibility comes some sacrifice. If a tribe or individual Indian chooses to follow the rule, the federal government can't be held liable for "inaccurate" appraisals or valuations, according to a notice published in the Federal Register.

"This rule allows the department to carry out Congress's specific direction in ITARA that the department should not review or approve appraisals submitted by qualified appraisers," the notice, which was signed by Associate Deputy Secretary Jim Cason on June 20, states. The publication of the rule met a one-year deadline imposed by Congress to finalize the minimum standards.

With the first ITARA rule, which becomes effective on July 26, out of the way, tribes are pushing Interior to implement other provisions of the new law. The most controversial is the possible elimination, or "sunset," of the OST.

During the George W. Bush administration, OST's budget rapidly grew at the expense of the BIA's. Most tribes would like to see OST's resources transferred to the BIA, whose funding levels have remained stagnant in recent years.

Two days before Trump took office, outgoing Secretary Sally Jewell said she was keeping OST intact. In a January 18 letter to Congress, she said getting rid of the agency would be "very difficult."

It's possible that the new administration could take a different view. Another provision in ITARA requires Interior to submit a plan to Congress by June 2018 regarding the status of the OST.

And Jewell's letter was silent on yet another provision in ITARA that allows Interior to create an "Under Secretary for Indian Affairs" position. Tribes and their advocates believe the post could lead to better coordination throughout the entire department, where the BIA is forced to compete for attention and authority among other agencies.

"For tribes that deal with a lot of federal agencies within Interior, they don't always talk with each other regularly," attorney Brian Gunn, a citizen of the Colville Tribes, said at NCAI's meeting. "We've seen it in cases where an agency outside of BIA comes up with a regulation ... that negatively affects tribes or affects tribes in unintended ways."

"By the time that the regulation has gotten up to the Secretary's office, many of the the decisions have already been made," Gunn added. He said the position would ensure the BIA gets a "fair shake" in these kinds of situations.

Others echoed those thoughts and said the Under Secretary job could fit in with the Trump administration's ongoing reorganization at Interior.

"We made some gains, and we want to continue those gains," said Gary Hayes, a former chairman of the Ute Mountain Ute Tribe.

The department has not said whether it will take a different course on the status of OST or whether it will establish the Under Secretary position. An initial report on the restructuring is expected in September, according to officials at Interior.

President Trump has yet to nominate someone to serve as Assistant Secretary for Indian Affairs, which oversees the BIA. Secretary Zinke, during testimony on Capitol Hill on Thursday, promised it would be someone Indian Country likes.

"I think the tribes are going to be thrilled," Zinke told the House Committee on Natural Resources.

Aides in the Senate, where the nominee for Assistant Secretary must be sent, have been told by the White House to expect an announcement this summer. An announcement on a director for the Indian Health Service is also expected this summer, possibly before the BIA position.

Federal Register Notices:
Waiving Departmental Review of Appraisals and Valuations of Indian Property (June 26, 2017)
Appraisals and Valuations of Indian Property (September 22, 2016)

Office of Special Trustee pitches President Trump’s lower budget request as 'taxpayer' savings (May 23, 2017)
Interior Department updates information about trust reform talks (August 3, 2016)
Interior Department consults tribes about new trust reform law (July 22, 2016)
Jay Daniels: New law takes us backward in serving Indian Country (July 18, 2016)
Major trust reform bill supported by Indian Country signed into law (June 22, 2016)
Tribes pressure President Obama to sign trust reform legislation (June 15, 2016)
Congress passes first comprehensive Indian trust bill in decades (June 10, 2016)