Trump administration changes course with withdrawal of pro-tribal homelands policy

Tuesday, March 10, 2020  

Key Documents:
• Withdrawal of Solicitor's Opinion M-37029. "The Meaning of 'Under Federal Jurisdiction' for Purposes of the Indian Reorganization Act"
• Determining Eligibility for Land-into-Trust in Section 19 of the Indian Reorganization Act
• Procedure for Determining Eligibility for Land-Into-Trust under the First Definition of "lndian" in Section l9 of the Indian Reorganization Act
• Determining Eligibility for Land-Into-Trust under the First Definition of "lndian" in Section 19 of the Indian Reorganization Act of 1934 [PDF 14.6MB]

Indian Country is once again falling victim to the Trump administration's disastrous tribal homelands agenda with the withdrawal of a legal opinion that was meant to overcome hurdles in the fee-to-trust process.

With no formal announcement, the top legal official at the Department of the Interior withdrew the opinion on Monday. The move confirmed fears voiced by tribal leaders barely a month ago about the Trump administration's failure to consult Indian nations on decisions affecting one of their biggest issues -- their homelands.

"It appears there is something going on underneath our noses, behind closed doors, that could undermine our sovereignty and our ability to have our tribal lands protected by the United States, which we paid for in advance through the blood and life of our ancestors, our natural resources and our lands," Cheryl Andrews-Maltais, the chairwoman of the Aquinnah Wampanoag Tribe told Assistant Secretary for Indian Affairs Tara Sweeney in Washington, D.C., on February 11.

After hearing the complaints at the National Congress of American Indians winter session, Sweeney -- who has served in her political position within the Trump administration for more than 18 months -- promised tribes she would "advocate" for their interests within the department. But she acknowledged that the real power was out of her hands.

"I have to tell you that the Solicitor's Office sets the position for the department," Sweeney told tribal leaders, who had urged her to stop the department from withdrawing the opinion. "My role is one of advocacy, and advocacy for clarity and decision-making."

Well they did it. The Trump administration withdrew a legal opinion that was meant to help tribes restore their homelands in the wake of a disastrous Supreme Court decision. #Carcieri #TribalHomelands https://t.co/DAZvUFdrgl pic.twitter.com/4v6GatwZoN

— indianz.com (@indianz) March 10, 2020

The official document withdrawing the opinion confirms that Sweeney is the one being told what to do when it comes to tribal homelands. It was delivered to her by another official with more authority -- Solicitor Daniel Jorjani.

Jorjani was only confirmed to his legal position last September. Sweeney arrived at Interior a year prior.

But Jorjani's memo makes it clear that he is indeed the one who "sets the position for the department" -- and that includes the Bureau of Indian Affairs. To replace the opinion he has withdrawn, he has developed "procedures" to help government attorneys determine when a tribe can restore its homelands under the provisions of the Indian Reorganization Act.

"This guidance derives from an interpretation of [the IRA] that better reflects Congress' and the department's understanding in 1934 of the phrase 'recognized Indian tribe now under federal jurisdiction,'" Jorjani told Sweeney in the two-page memo.

According to Jorjani, the opinion he withdrew did not fully address the uncertainties that arose in Indian Country following the U.S. Supreme Court decision in Carcieri v. Salazar. The 11-year-old ruling concluded that only those tribes that were "under federal jurisdiction" in 1934 could benefit from the IRA's land provisions.

"Considerable uncertainty remains, however, over what evidence may be submitted to demonstrate federal jurisdictional status in and before 1934," Jorjani wrote in his memo. "Because of this, many applicant tribes spend considerable time and resources researching and collecting any and all evidence that might be relevant to this inquiry, in some cases prompting submissions totaling thousands of pages."

Jorjani further asserts that the Solicitor's Office began reviewing the prior legal opinion back in 2018 in order to "remove such uncertainties and to assist tribes in assessing eligibility" under the IRA. But tribal leaders have made it clear that they never asked for such a review -- which was initiated without consultation or public notice, except for some off-hand comments made by another political official during the first year of Donald Trump's presidency.

Tribal leaders also have said they stand by the earlier opinion, known internally as M Opinion 37029. which was written by Hilary Tompkins, who was the first Native American and the first Native woman to serve as Solicitor of the Interior.

"Don't let them pressure you into doing the wrong thing," Jessie "Little Doe" Baird, the vice chairwoman of the Mashpee Wampanoag Tribe, told Sweeney during NCAI's meeting last month. "Don't let them pressure you into doing the wrong thing,"

"You decide what's appropriate and inappropriate for Indian Country," Baird said, appealing to Sweeney's senses as a fellow Native woman and mother.

Yet Sweeney, as the first Alaska Native and only the second Native woman in history to serve as the Assistant Secretary for Indian Affairs, appears completely powerless to stop policy decisions that appear to have been set in course before she even set foot in the door. While Jorjani was only recently confirmed as Solicitor, he was already asserting his influence well before Sweeney had a chance to weigh in.

While serving as the "Principal Deputy Solicitor Exercising the Authority of the Solicitor Pursuant to Secretary's Order 3345. Amendment No. 18," Jorjani in June 2018 put a halt to all fee-to-trust applications in Alaska -- Sweeney's home state. As with the withdrawl of the legal opinion, the decision was made without tribal consultation or public notice.

Nearly two years later, tribes in Alaska remain in the dark about the status of Jorjani's review. And so is Sweeney, as she admitted last month at NCAI.

"The land-into-trust issue with respect to Alaska is still under review," Sweeney told a tribal leader from Alaska -- another fellow Native woman -- on February 11. "I don't have any other information to provide you at this time."

WOW. A day after hailing the "historic" addition of an Alaska Native to the team, the Trump administration has withdrawn -- pending "further review" -- an Obama-era legal opinion that affirmed the rights of tribes in Alaska to restore their homelands https://t.co/q89IVhGRpi pic.twitter.com/1i4KrcDMRo

— indianz.com (@indianz) June 29, 2018

Congress enacted the IRA, in part, to correct for the failures of the allotment era of federal Indian policy, during which tribal nations lost 90 million acres between 1887 and 1934. Much of the land was lost to fraudulent dealings and takings by state and local governments, who were allowed to impose taxes on individual Indian allotments.

Through the fee-to-trust process, tribes and Individual Indians can start to restore the lands they lost. But it's been slow-moving: since 1934, less than 10 million acres has been acquired in trust by the BIA, with most opposition coming from states and local governments.

The Carcieri decision was a direct outcome of hostile government litigation. In February 2009, the governor of Rhode Island got the Supreme Court to stop the Narrangansett Tribe from acquiring 31 acres for a housing project, based on the grounds that the tribe was not "under federal jurisdiction" in 1934.

Despite the tribe's long history of dealings with colonial and other governments, the United States did not formally acknowledge its relationship until 1983, long after the passage of the IRA.

“We were the last to come into this federal system," Hiawatha Brown, a Narragansett council member, later said at a D.C. rally in support of the Mashpee Wampanoag Tribe, whose reservation in neighboring Massachusetts could be taken out of trust as a result of a Caricieri challenge.

"We are going to be the first to be removed," Brown said of his fellow Indian nations who are in the same situation. "It’s apparent.”

Carcieri, however, did not explain what "under federal jurisdiction" meant, essentially leaving it up to the executive branch to decide. In response, the Obama administration developed a two-part test to determine whether a tribe meets the standard. M Opinion 37043, which was issued in 2014, formalized the two-part test.

"If the M Opinion is going to be vacated, my understanding," Baird said last month, "is that it is going to be replaced with regulations that will make it impossible -- nearly impossible -- for tribes to place its land in trust if they were recognized after 1934."

Jorjani's memo on Monday does not make reference to potential regulations. But his office notably did not attach the guidance he has drafted to the copy that was posted on the Solicitor's website. One tribal advocate who works closely with the department was told that the guidance consists of an even lengthier analysis of the "under federal jurisdiction" test, the result being that it will indeed be harder for recently-recognized tribes to acquire lands.

Another advocate was more blunt about the latest action coming from the nation's capital. Chris Stearns, a citizen of the Navajo Nation, worked on Indian policy as a Congressional staffer. He was the first Native person to chair the Washington State Gambling Commission and recently became the first Native person to win a seat on the city council in Auburn, Washington.

Stearns called the withdrawal of the legal opinion "a terrible decision that makes it clearer than ever that the #Trump Administration stands against tribal self-determination, self-sufficiency, economic opportunity, and basic rights for tribal citizens."

a terrible decision that makes it clearer than ever that the #Trump Administration stands against tribal self-determination, self-sufficiency, economic opportunity, and basic rights for tribal citizens. https://t.co/vtkElrKO5j

— Chris Stearns (@stearnsseattle) March 11, 2020

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'Do your job': Tribes slam Trump administration on sovereignty and homelands (February 12, 2020)