Today, the Department of the Interior (DOI) announced that it will be removing restrictions to the restoration of Tribal homelands imposed by the previous Administration and reinstating policies that promote this fundamental obligation to Tribal Nations.

This includes the withdrawal of M-37054 and M-37055, two Solicitor’s Opinions, issued last year without Tribal consultation, which replaced a 2-part process and interpretation of the meaning of “under federal jurisdiction” under the Indian Reorganization Act following the decision in Carcieri v. Salazar with a new, arduous 4-part process. USET SPF condemned this action by the Trump Administration, as its apparent purpose was to undermine the federal land-into-trust process and was ultimately utilized to justify its reprehensible efforts to disestablish the Mashpee Wampanoag Tribe’s reservation.

With the withdrawal of M-37074 and M-37055, the DOI Solicitor’s Office has reinstated M-37029, a 2014 opinion which provides a consistent and measured interpretation of “under federal jurisdiction” that has been upheld by multiple federal courts. In addition, Secretary of the Interior Debra Haaland issued Secretary’s Order 3400, redelegating the authority to review and approve non-gaming land-into-trust applications to Bureau of Indian Affairs regional directors.

“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

Under the Trump Administration, this authority was needlessly elevated to DOI Headquarters, causing avoidable and excessive delays in trust land acquisition. USET SPF hails the reinstatement of processes supporting the return of Tribal homelands as an example of the Biden Administration’s commitment to delivering upon its promises to Tribal Nations.

“Our homelands are essential to the exercise of Tribal sovereignty, cultural identity, and the foundations of our economies,” said USET SPF President Kirk Francis. “And placing land into trust on behalf of Tribal Nations is foundational to the federal government’s trust and treaty obligations. USET SPF has repeatedly called for the reinstatement of M-37029 in response to the Trump Administration’s attempts to destabilize the land-into-trust process and, by extension, Tribal governments.”

“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 Francis. “USET SPF applauds these efforts, along with this Administration’s renewed focus on empowering and rebuilding Tribal Nations. 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.”

USET SPF has been advocating for a fix to the Supreme Court decision in Carcieri v. Salazar since it was handed down in 2009. Carcieri has created a deeply inequitable 2-class system, in which some Tribal Nations have the ability to restore their homelands and others do not. This 2-class system serves to deny these Tribal Nations a critical component of the trust relationship, vital aspects of the exercise of inherent sovereignty, and the opportunity to qualify for several government programs.

USET SPF continues to call for the immediate passage of a fix that contains the two features necessary to restore parity to the land-into-trust process: (1) a reaffirmation of the status of current trust lands; and (2) confirmation that the Secretary has authority to take land into trust for all federally recognized Tribal Nations.

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Established in 1969, the United South and Eastern Tribes, Inc. (USET) is a non-profit, inter-Tribal organization promoting the interests of and advocating for thirty-three (33) federally recognized Tribal Nations, from the Northeastern Woodlands to the Everglades and across the Gulf of Mexico. USET is dedicated to enhancing the development of Tribal Nations, improving the capabilities of Tribal governments, and improving the quality of life for Indian people through a variety of technical and supportive programmatic services.

The USET Sovereignty Protection Fund (USET SPF) is a non-profit, inter-Tribal organization promoting the interests of and advocating for thirty-three (33) federally recognized Tribal Nations from the Northeastern Woodlands to the Everglades and across the Gulf of Mexico. USET SPF is dedicated to promoting, protecting, and advancing the inherent sovereign rights and authorities of Tribal Nations and in assisting its membership in dealing effectively with public policy issues and serving the broad needs of Indian people.

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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)