Chairman Bill Iyall of the Cowlitz Tribe, center right, with Secretary of the Interior Ryan Zinke. Photo by Indianz.Com (CC BY-NC-SA 4.0)

Law | National | Politics | Trust

Trump administration backs away from yet another pro-tribal legal opinion

Tuesday, July 25, 2017

Another pro-tribal legal opinion is on the chopping block as the Trump administration struggles with the land-into-trust process.

The opinion, which was written by the first Native woman to ever hold the top legal post at the Department of the Interior, responds to a U.S. Supreme Court decision that threw a wrench into the land-into-trust process. It formalizes a two-step analysis that has withstood a major court challenge yet a key Trump official backed away from it in testimony to Congress this month.

Jim Cason, the Associate Deputy Secretary at Interior, described the M-37029 opinion as "pretty loose." He said it was written so broadly that it could be used to justify the approval of just about any land-into-trust application.

"I would be surprised if any tribe was denied a gaming application based on that, during the Obama administration," Cason told the House Subcommittee on Indian, Insular and Alaska Native Affairs on July 13.

"For us, since January 20, we have not made a gaming determination that's final," Cason quickly added.

Cason didn't outright say whether the opinion, which addresses the much-reviled Carcieri v. Salazar decision, was going to be withdrawn. But he confirmed that the department is struggling with it and is considering some changes.

"My concern about the Solicitor's opinion is that the criteria is very wide and it doesn't respond very particularly to the Supreme Court decision," Cason said later during the hearing. "So we have concerns about the current advice in the Solicitor's opinion, about being specific enough to actually distinguish between applications."

Chairman Cedric Cromwell of the Mashpee Wampanoag Tribe, left, with Secretary of the Interior Ryan Zinke. "I am all about Tribal Sovereignty!" Cromwell said he was told by Zinke. Photo: Cedric Cromwell

Eager to offer a specific example of the Trump team's inner conflict, Cason brought up the Mashpee Wampanoag Tribe, whose land-into-trust acquisition is the subject of an ongoing Carcieri challenge. Just last month, he was prepared to reject the application because he believed the M-37029 opinion did not offer a path forward.

But Cason did not implement his draft decision in hopes of giving the tribe -- as well as non-Indian opponents in Massachusetts -- more time to address the Supreme Court decision. The explanation seems to run counter to his characterization of M-37029 as so "wide" and "loose" that it could be used to help just about "any" tribe.

Cason's reasoning also flies in the face of another significant legal development. In a unanimous decision last summer, the D.C. Circuit Court of Appeals gave great weight, or deference, to the so-called "two-part framework" embodied in the opinion when it affirmed a land-into-trust acquisition for the Cowlitz Tribe.

Similar to the Mashpee case, opponents were hoping Carcieri would derail the Cowlitz Tribe's casino project in Washington but the D.C. Circuit, as well as a federal judge, easily sided with the BIA. The Supreme Court refused to hear further challenges in April, seemingly solidifying the criteria laid out in M-37029.

But Cason's comments are yet another clear indication of the new administration's intent on charting a different course when it comes to the restoration of tribal homelands. Since January, the Trump team has taken a series of actions that threaten to roll back the gains seen during the Obama era, when more than 500,000 acres was acquired through the land-into-trust process and another 1.87 million acres was acquired through the Land Buy-Back Program for Tribal Nations.

Hillary Tompkins, the former Solicitor at the Department of the Interior, is seen during a visit to the Navajo Nation in August 2009. Photo: Tami A. Heilemann / DOI

"Based on recent statements by Department of the Interior officials, we can expect the off-reservation land-into-trust process to be made even more difficult for tribes," attorney Bryan Newland, a citizen of the Bay Mills Indian Community who worked for the Bureau of Indian Affairs during the Obama administration, wrote on the influential Turtle Talk blog. "This will severely impact those tribes without an existing or consolidated land base."

The Trump team also appears eager to dismantle the legacy of Hillary Tompkins, a citizen of the Navajo Nation who made history as the first Native woman to serve as Solicitor at the Department of the Interior. Earlier this month, the department rescinded her legal opinion which that supported tribes in their battle against the Dakota Access Pipeline. A withdrawal of the Carcieri opinion would mark another setback.

"Oh yeah, sure, I've met her," Cason said when asked about Tompkins during the hearing this month.

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

D.C. Circuit Court of Appeals Decision:
Confederated Tribes of the Grand Ronde Community of Oregon v. Jewell (July 29, 2016)