John Tahsuda serves as Principal Deputy Assistant Secretary for Indian Affairs for the Trump administration. Photo: U.S. Department of the Interior

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Trump team discourages tribes from seeking land away from their reservations

Wednesday, October 4, 2017

The Trump administration is dropping a bomb on Indian Country by proposing dramatic changes to the land-into-trust process.

Tribes typically wait years, and sometimes more than a decade, for decisions on their land-into-trust applications. They must navigate tricky local and even national political minefields as they seek to acquire properties that were lost, in many cases, to negative federal policies.

Such hurdles are about to become even more difficult to clear if the Trump team gets its way. The new administration not only wants to make it harder to acquire land away from existing reservations, officials in Washington, D.C., will actively discourage tribes from going through the process altogether.

"For instance, in the case of off-reservation land-into-trust efforts, the commitment of time and resources required can be exorbitant, particularly if that proposal is denied," John Tahsuda, a citizen of the Kiowa Tribe who joined the Trump team barely a month ago, told the Senate Committee on Indian Affairs on Wednesday afternoon.

"Therefore, we believe it is important to be upfront about proposals that may not be acceptable," said Tahsuda, who was given the title of "acting" Assistant Secretary for Indian Affairs this week.

Additional details about what is "acceptable" are contained in a Dear Tribal Leader letter being sent to Indian Country. In the document, Tahsuda announced a seemingly-aggressive schedule for implementing the proposal -- the first listening session takes place on a Monday morning in Wisconsin less than two weeks from now. It will be followed by at least three consultations in November, amid the busy holiday season.

In response to queries from the top Democrat on the committee, Tahsuda said the new administration's efforts will be "guided by respect for tribal sovereignty." Yet the proposal being offered by the Trump team is the direct descendant of a reviled policy that was developed without tribal consultation during the Bush era.

Indianz.Com on SoundCloud: Senate Committee on Indian Affairs Oversight Hearing October 4, 2017

The so-called guidance memorandum was sprung on tribes in January 2008. Without prior warning, officials at the Department of the Interior used a murky "commutable distance" standard to reject a slew of off-reservation applications by essentially telling tribes that their citizens aren't fit to drive long distances for jobs and other opportunities.

Tahsuda acknowledged that the commutable distance standard will be among those considered in the new proposal. For example, tribes will need to submit maps that show how far their reservations are from their land-into-trust sites.

But the Trump administration is throwing even more factors into the mix, Tahsuda confirmed. Tribes, for example, will need to explain the "anticipated economic benefits" of a potential acquisition.

Tahsuda, whose official title is the Principal Deputy Assistant Secretary for Indian Affairs, made it clear that revenues from a lucrative casino alone won't satisfy the Trump team, even though tribes use those revenues to fund programs in their communities and diversify their economies.

"Things like employment opportunities, ability to host cultural activities, community activities in the facility, those should be part of the considerations that are impacted from the distance from a reservation," Tahsuda said, referring to instances where a tribe is attempting to open a casino on newly acquired land.

While Tahsuda attempted to draw a distinction between gaming and non-gaming applications, these kinds of requirements will apply to tribes in both situations, according to the Dear Tribal Leader letter and a description of the proposed changes. Tribes are also being asked to explain how proposed acquisitions will impact state and local governments, essentially forcing them to negotiate with occasionally hostile interests.

Sen. Tom Udall (D-New Mexico), the vice chairman of the committee, said the new proposal appears to run counter to the Trump administration's priority of easing regulatory burdens. The land-into-trust process already imposes 16 steps on tribes and more will be added if the changes are implemented.

"Interior owes Indian Country no less than to meet in and with communities that will be hardest hit by this administration's proposed changes," Udall said. He described the additional standards as "regulatory obstacles" to economic development in tribal communities.

A summary of some of the proposed changes to the Fee-to-Trust Regulations (25 CFR 151). Source: Bureau of Indian Affairs

Udall also noted that President Donald Trump frequently promotes the benefits of job creation. One of the witnesses at the hearing leads the tribe that opened the first off-reservation casino, a development that has had significant ramifications.

"We have a diverse set of business that allow us to create opportunities for our people and local communities, including two casinos," said Harold "Gus" Frank, the chairman of the Forest County Potawatomi Tribe.

The tribe's landmark Potawatomi Hotel and Casino was approved by the federal and state governments in 1990. It happens to be located in Milwaukee, Wisconsin, not far from the convention center where the Trump administration will hold its listening session on October 16, just as the National Congress of American Indians opens its 74th annual meeting.

"Where 30 years ago we relied on outsiders to serve as doctors, lawyers and other professionals, today we are educating our young leaders and they are returning to serve their communities," said Ernest L. Stevens, Jr., the longtime chairman of the National Indian Gaming Association.

Stevens, a leader from another successful Wisconsin tribe, the Oneida Nation, pointed out that tribal casinos were responsible for 310,000 jobs in 2016. When indirect jobs are added, the Indian gaming industry supports nearly 700,000 Americans, he said.

"I think the biggest investment that we make, not only in the jobs and investments in local businesses, but it's also intergovernmental cooperation," said Leonard Forsman, the chairman of the Suquamish Tribe and the new president of the Affiliated Tribes of Northwest Indians.

In addition to hosting the listening session and tribal consultations, the Bureau of Indian Affairs will accept written comments on the new proposal. They are due by December 15, according to a new webpage for the Fee-to-Trust Regulations (25 CFR 151).

Since March, when Secretary Ryan Zinke came on board at the Department of the Interior, the new administration has been sending strong signals to tribes about off-reservation applications. An April memo took power away from regional BIA offices by requiring decisions on these applications to be made by political appointees in D.C.

In June, the department quietly added a land-into-trust proposal to its regulatory agenda. The Dear Tribal Leader letter dated October 4 marks the first concrete step since that notice of proposed rulemaking.

According to the letter, the tribal consultations will take place November 14 in Seattle, Washington; November 16 in Sacramento, California; and November 29 in Phoenix, Arizona. The BIA has not said whether additional meetings in other regions of Indian Country will be held before the close of the comment period on December 15.

Senate Committee on Indian Affairs Notice:
Oversight Hearing on “Doubling Down on Indian Gaming: Examining New Issues and Opportunities for Success in the Next 30 Years” (October 4, 2017)