WASHINGTON, D.C — Secretary of the Interior Deb Haaland is moving quickly to roll back negative policies as the Biden administration seeks to restore the nation-to-nation relationship with tribes and uphold the federal government’s trust and treaty obligations.

In a series of actions on Tuesday, Haaland announced new steps to help tribes restore their homelands, one of the key tools for promoting sovereignty and spurring economic development in Indian Country. Her decisions will reverse policies that had been imposed during the Donald Trump administration without adequate consultation or consent.

“At Interior, we have an obligation to work with tribes to protect their lands and ensure that each tribe has a homeland where its citizens can live together and lead safe and fulfilling lives,” Haaland, who is the first Native person to serve in a presidential cabinet, said in a news release. “Our actions today will help us meet that obligation and will help empower tribes to determine how their lands are used – from conservation to economic development projects.”

“At @Interior, we have an obligation to work with Tribes to protect their lands & ensure that each Tribe has a homeland where its citizens can live together & lead safe & fulfilling lives”: @SecDebHaaland is taking new steps to restore tribal homelands.https://t.co/ct9kRNmng7

— indianz.com (@indianz) April 27, 2021

The first major step taken by the Department of the Interior places tribes in Alaska on equal footing with their counterparts in the lower 48 states. Following a new round of consultations over the next 90 days, tribal nations in Alaska will once again be able to restore their homelands through the fee-to-trust process at the Bureau of Indian Affairs.

The action reverses one taken on January 19, on the last full day of the Trump presidency. In going against a series of federal court decisions, the legal department at Interior pulled the rug out on tribal nations in Alaska at the very last minute of the prior administration, hindering their ability to exercise their inherent sovereignty in a place where local and state governments are often unable to provide basic services in Native communities.

The second announcement benefits tribes nationwide. The Biden administration is reinstating a legal opinion that helps address the impacts of a negative U.S. Supreme Court decision known as Carcieri v. Salazar.

The framework ensures that the BIA can continue approving land-into-trust applications for tribes whose nation-to-nation relationship may have been called into question as a result of the 2009 ruling in Carcieri. The Trump administration had revoked the guidance at the onset of the COVID-19 pandemic, without even consulting Indian Country in advance.

“Our homelands are essential to the exercise of Tribal sovereignty, cultural identity, and the foundations of our economies,” United South and Eastern Tribes President Kirk Francis said in welcoming @SecDebHaaland tribal homelands policies. @USETINC https://t.co/xVY122JmrY

— indianz.com (@indianz) April 27, 2021

Finally, Secretary Haaland addressed bureaucratic hurdles within the BIA that also had been imposed by Trump. Going forward, tribes will be able to gain approval for most of their fee-to-trust requests at the regional level of the BIA, instead of having to wait on political appointees in Washington, D.C.

“The patchwork of landholdings within existing reservation boundaries can make it difficult to develop coherent law enforcement and regulatory policies on reservations, restricting the ability to sustain community and economic development,” said Principal Deputy Assistant Secretary for Indian Affairs Bryan Newland, who led the Bay Mills Indian Community prior to joining the Biden administration. “These important actions are a step in the right direction to restore homelands that will strengthen tribal communities.”

During a conference call with reporters on Tuesday morning, Interior officials noted that restoring tribal homelands was a priority of the Barack Obama administration, when President Joe Biden served as vice president. Between January 2009 and January 2017, they said the BIA acquired more than 560,000 acres under the fee-to-trust process, in addition to transferring millions of acres of fractional land interests to tribal governments as part of a separate program that settled the Cobell trust fund lawsuit.

The situation changed dramatically under the prior president. According to Interior officials, only 75,000 acres was placed in trust during the Trump years.

“Placing lands in the trust has real-world consequences on the ground in tribal communities by simplifying questions about jurisdiction, by putting lands into trust so that tribal members can live together in a tribal community and by re-establishing a tribal land base within reservation boundaries, or for newly recognized tribes and tribes in Alaska establishing a land base at all, so that they can exercise governmental powers and live together as a community and provide for their tribal members,” said one Interior official on the call.

The same official cited an example affecting one Indian nation in the Midwest. Due to bureaucratic snafus, this tribe has been unable to have its own law enforcement facility placed in trust

“The delays in that process have meant that this particular tribe’s law enforcement agency can’t even exercise criminal jurisdiction within its own building,” the official told reporters.

“So if there were a criminal act that occurred within their law enforcement facility, they would actually have to call, a state law enforcement agency to come in and handle that criminal activity,” the official said.

Typically, it takes tribes months — and sometimes even years — for their land-into-trust requests to be approved by the BIA. The process got even more arduous when the Trump administration required all off-reservation applications to be handled by political appointees in the nation’s capital.

SO-3400

With Secretarial Order 3400, the regional offices of the BIA can go back to approving most applications for tribes in their respective areas. That means the BIA officials who actually work in Indian Country and better understand the needs of the communities they serve are the ones in charge.

“The Secretarial order will make sure that the big field offices who work closely with tribes and local communities and have the expertise and the capacity to make these decisions are actually making these decisions,” an Interior official said on the media call. “So they’re not bottlenecked by the limited number of staff in Washington, D.C., headquarters.”

The order however, does not apply to off-reservation applications for gaming purposes. These decisions will continue to be handled by the BIA’s central office in D.C., a practice that dates back several presidential administrations.

The announcements come ahead of a key, if artificial, milestone for Biden, who ordered all federal agencies to improve their tribal consultation policies in one of his first actions following his inauguration on January 20. On Friday, the president will have served 100 days in office, during which Haaland made history in becoming the first Native person to lead the Department of the Interior.

“Today’s actions by the Department of the Interior restore certainty to the restoration of tribal homelands in the post-Carcieri era and deliver upon one of President Biden’s central promises to Indian Country,” said President Kirk Francis of the United South and Eastern Tribes, citing the Supreme Court ruling that still poses challenges for many.

“USET SPF applauds these efforts, along with this administration’s renewed focus on empowering and rebuilding tribal nations,” said Francis, who also lead USET’s Sovereignty Protection Fund. “We look forward to working together on policies that will further improve and streamline trust land acquisition, as well as achieving a fix to the disastrous decision in Carcieri once and for all.”

M-37070

The Mashpee Wampanoag Tribe, one of USET’s members, is among those impacted by Carcieri, and by the prior presidents actions. In March 2020, right after the organization canceled its meeting in the nation’s capital due to COVID-19, Interior’s legal department withdrew the legal opinion that addressed the “disastrous decision” cited by Francis.

Not long after that, the Trump team informed the Mashpee Wampanoag Tribe that its reservation in Massachusetts would be taken out of trust, marking the first time such a step had been taken since the termination era of Indian policy. A federal judge later put a halt to the effort and the Biden administration declined to appeal, ensuing the land can be used for education, cultural and other purposes under a framework restored by Interior on Tuesday.

“This makes the process easier for tribal communities looking to expand their economies, increase their land base and control their own futures,” said Rep. Raúl Grijalva (D-Arizona), a key member of Congress who chairs the House Committee on Natural Resources, where Haaland served as vice chair before joining the new administration.

“Indian Country needs land-intro-trust decisions to be based on genuine consultation, which the Trump administration routinely ignored,” Grijalva added. “Tribal communities around the country just want the same transparency and legal equity many of us so often take for granted, and today’s steps are a big part of granting those reasonable requests.”

Another key member of Congress also reacted positively to the news. Senator Brian Schatz (D-Hawaii), the chairman of the Senate Committee on Indian Affairs, said tribes “need certainty” to be to be able to exercise their inherent rights amid obstacles like Carcieri.

“Secretary Haaland’s actions to reduce undue burdens imposed by the prior administration and honor tribal consultation in the land into trust process is a good start,” said Schatz.

“Rebuilding and consolidating tribal homelands supports not only Native cultures, languages, and communities, but also tribal businesses that help make economies for both tribes and surrounding communities thrive,” he added. “But tribes need certainty, so I support legislative efforts to restore tribal homelands and strengthen tribal communities.”

M-37069

Notably, the decisions announced on Tuesday were made by Biden administration officials who are enrolled in their tribal nations and have strong experience in Indian Country issues. Besides the Secretarial order issued by Haaland, who is a citizen of the Pueblo of Laguna, the legal opinions were signed by Bob Anderson, a citizen of the Bois Forte Band of Chippewa, who is now serving as Principal Deputy Solicitor at Interior.

Since joining the Biden team, Anderson has been nominated to serve as Solicitor at the department. Should he be confirmed by the U.S. Senate, he would be the second Native person to be in charge of Interior’s legal arm.

The first was Hilary Tompkins, a citizen of the Navajo Nation who served during all eight years of the Obama administration. Her legal opinions were the ones dismantled by the Trump administration.

Additionally, Newland has been tapped as the Assistant Secretary for Indian Affairs, a position also subject to further confirmation. The White House sent his nomination to the Senate on Tuesday.

“We are very proud of Bryan and his service to Indian Country,” said Whitney Gravelle, who succeeded Newland as chair of the Bay Mills Indian Community. “During his time as BMIC chairman, Bryan worked hard to represent and serve the interests of our community and our people. I believe he would be a valuable asset to the Department of Interior in this new role.”

“A great leader is not just someone who just makes decisions, but someone who believes in the potential of others, nurtures their ability, and helps them reach their own goals. Great leaders nurture other leaders,” Gravelle added. “Bryan nurtured all of Bay Mills, and I have no doubt now in his new role he will nurture all of Indian Country.”

Confirmation hearings have not yet been announced for Anderson or Newland, who have been active members of Interior’s leadership team before Haaland came on board last month. Haaland is the only Senate-approved nominee at Interior.

Tommy Beaudreau, who is non-Native, will go before the Senate Committee on Energy and Natural Resources on Thursday for his hearing to be Deputy Solicitor at Interior. The same committee handled Haaland’s nomination.

Anderson would also go before the same committee for his confirmation. Newland’s nomination would be handled by the Senate Committee on Indian Affairs.

In contrast to the current situation in the Biden administration, former Assistant Secretary for Indian Affairs Tara Sweeney, who was the first Alaska Native person in the post, was often cut out of decision-making during the Trump years. She confirmed repeatedly to tribal leaders that the Office of the Solicitor at Interior was calling the shots on Indian policy matters. She also said she was directed to sign the decision document that led the Mashpee Wampanoag Tribe’s reservation being targeted for termination less than two months after joining the team.

M-37069: Withdrawal of M-37064 and Announcement of Consultation on the Department’s Interpretation of the Indian Reorganization Act and the Alaska Native Claims Settlement Act in Connection with the Secretary’s Land into Trust Authority (April 27, 2021)
M-37070: Withdrawal of Certain Solicitor M-Opinions, Reinstatement of Sol. Op. M-37029 The Meaning of ‘Under Federal Jurisdiction’ for Purposes of the Indian Reorganization Act, and Announcement Regarding Consultation on “Under Federal Jurisdiction” Determinations (April 27, 2021)
Secretarial Order: Delegation of Authority for Non-Gaming Off-Reservation Fee-to-Trust Acquisitions (April 27, 2021)

M-37054: Interpreting the Second Definition of “Indian” in Section 19 of the Indian Reorganization Act of 1934 (March 9, 2020)
M-37055: Withdrawal of Solicitor’s Opinion M-37029. “The Meaning of ‘Under Federal Jurisdiction’ for Purposes of the Indian Reorganization Act” (March 9, 2020)
M-37064: Permanent Withdrawal of Solicitor Opinion M-37043, “Authority to Acquire Land into Trust in Alaska” (January 19, 2021)

Interior: Secretary Deb Haaland takes action for tribal homelands (April 27, 2021)
Chair of Senate Committee on Indian Affairs praises actions for tribal homelands (April 27, 2021)
United South and Eastern Tribes welcome Biden administration homelands policy (April 27, 2021)
Key leader in Congress hails Secretary Haaland’s actions for tribal homelands (April 27, 2021)