Chairperson Aaron Payment of the Sault Ste. Marie Tribe of Chippewa Indians, center right, with Secretary of the Interior Ryan Zinke. Photo by Indianz.Com (CC BY-NC-SA 4.0)

National | Politics | Trust

Sault Tribe vows fight after Trump team rejects land-into-trust applications

Thursday, July 27, 2017

The Trump administration has made its first major land-into-trust decision and the news doesn't look good for Indian Country.

After sending weeks of warnings about off-reservation acquisitions, a top official at the Department of the Interior rejected two such applications submitted by the Sault Ste. Marie Tribe of Chippewa Indians. A letter written by Jim Cason, the Associate Deputy Secretary at the agency, cited the long distances between the tribe's headquarters in the Upper Peninsula of Michigan and the parcels under consideration in Lansing and in Sibley, in the Lower Peninsula.

"Here, the distances are even greater - the tribe's headquarters is approximately 260 miles (287 miles by road) from the Lansing parcels, and approximately 305 miles (356 miles by road) from the Sibley parcel," Cason wrote in a letter on Monday.

More significantly, Cason said the tribe failed to show how acquiring the parcels would "enhance" its self-sufficiency. The criteria is crucial because the tribe invoked a provision in the Michigan Indian Land Claims Settlement Act which would have otherwise required the Bureau of Indian Affairs to place the sites into trust.

"Moreover, in arguing that its acquisitions of the parcels would enhance its Upper Peninsula lands, the tribe relies on the attenuated reasoning that 1) the acquisitions allow for economic ·development, then 2) that economic development might generate revenue, then 3) that the revenue might be used to enhance lands in the Upper Peninsula," Cason wrote, throwing cold water on the tribe's plans to open gaming facilities on the parcels.

The decision drew a fiery response from Aaron A. Payment, the tribe's chairperson. He vowed to consider all avenues -- including going to Congress -- to secure the acquisition of the parcels.

"We have no intention of giving up, and we will soon determine which option — legal, administrative or legislative — we will pursue to continue our fight for our legal rights," Payment said in a press release on Wednesday.

Provisions in the Michigan Indian Land Claim Settlement Act authorize the Sault Ste. Marie Tribe of Chippewa Indians to acquire lands using a "self-sufficiency fund." The law dictates that such lands "shall" be held in trust. Source: Public Law 105–143

Still, Cason's denial comes as little surprise. In appearances before Congress and in conversations with tribal leaders at the mid-year session of the National Congress of American Indians -- Payment serves as secretary of the organization -- he repeatedly warned that off-reservation applications will be subjected to greater scrutiny.

"Interior believes the process of trust land acquisition for on-reservation parcels is an important and routine matter that creates economic drivers for tribes," Cason said in testimony to the House Subcommittee on Indian, Insular and Alaska Native Affairs.

"However, taking off-reservation lands into trust may pose complications for the department, as well as some members of the public, particularly when fee-to-trust applications are for gaming purposes," added Cason, who is a political appointee for President Donald Trump.

At the July 13 hearing, Cason noted that the new administration had yet to make a "gaming determination that's final." That changed with the decision on the Sault Tribe's applications, which had been under review at the BIA for more than three years.

Yet Cason appeared eager to link his action to the Obama administration, even as he has sought, on other occasions, to distance himself from that era, during which more than 2 million acres was acquired in trust or restored to tribal ownership. In his letter, he said the prior Solicitor of the Interior came up with the "enhancement" criteria because she had mentioned it in a situation involving another Michigan tribe.

Cason also said the prior Deputy Assistant Secretary for Policy and Economic Development at the BIA told the tribe that its applications were in danger of being rejected on January 19, the last full day of the Obama administration. The tribe "submitted no new evidence" in the last six months that would have made him go in another direction, he wrote.

Indianz.Com on SoundCloud: Oversight Hearing "Comparing 21st Century Trust Land Acquisition with the Intent of the 73rd Congress in Section 5 of the Indian Reorganization Act"

The reliance on a 2010 document written by former Solicitor Hillary Tompkins, who was the first Native woman to serve as the top legal officer at Interior, comes after Cason said the Trump team has problems with an opinion she drafted to address uncertainties in the land-into-trust process. The new administration already rescinded one of her pro-tribal opinions because it stood in the way of a controversial oil pipeline supported by the president.

According to the Department of the Interior's manual, a Solicitor's M-Opinion is considered binding on the department. But Cason, during the hearing this month, said the one written by Tompkins isn't helpful in reviewing certain land-into-trust applications.

On the other hand, a letter like the one Tompkins sent to the Bay Mills Indian Community almost seven years ago, is generally not considered a final decision or one that can stand up to scrutiny in the federal courts. But Cason referenced it anyway in rejecting the Sault Tribe's applications.

Trump has yet to nominate someone to serve as Solicitor, something both of his predecessors had accomplished by this time in their first terms in office. He also has not nominated someone to serve as Assistant Secretary for Indian Affairs, the position which oversees the BIA.

The new administration has filled the Deputy Assistant Secretary for Policy and Economic Development post with Gavin Clarkson, who is a citizen of the Choctaw Nation. His portfolio includes Indian gaming, according to an July 6 announcement from Secretary Ryan Zinke.

But Clarkson's presence doesn't matter. Before he even came on board, Cason was given authority over all off-reservation land-into-trust applications -- even those for non-gaming purposes -- back in April. The decision was made without consulting tribes.

The department has since updated its regulatory agenda to include a rule that would impose "new" requirements for off-reservation applications. The proposed regulation could be released as soon as this fall.

Relevant Documents:
Notice of Proposed Rulemaking: Off-Reservation Trust Acquisitions and Action on Trust Acquisition Requests (Department of the Interior Unified Agenda for 2017)