Restoring Indian land, one acre at a time

WEDNESDAY, APRIL 23, 2003

From 1887 to 1934, tribes lost 90 million acres of their land base. Through the allotment of land to individual Indians under various federal laws, much of it fell into non-Indian hands by unscrupulous deals, outright thefts and other actions.

So it's no surprise that tribal leaders place an incredible priority on preserving the lands left and restoring some of the rest. It's been slow going: only about 9 million acres has been returned to Indian ownership since Congress halted the policy of allotment.

But just how does land get taken into trust? Here's an overview of how it happens.

Get Congress to Do It
The quickest route, not surprisingly, is federal law. Congress can direct the Department of Interior to take land into trust for a tribe and the department has to comply.

The executive branch typically frowns on such proposals. Whether Republican or Democrat, Interior officials say they are precluded from conducting an environmental assessment on the land and consulting with tribal and local governments.

Last year, Aurene Martin, then the deputy assistant secretary for Indian affairs, offered up those reasons to oppose a land-into-trust law for the Bay Mills Indian Community of Michigan. "The mandatory nature of this trust acquisition, as well as the short time frame provided in the bill, precludes us from consulting with interested parties in this regard," she told the Senate Indian Affairs Committee. (See http://indian.senate.gov/2002hrgs/101002hrg/martin.PDF)

Get DOI to Do It
Lawmakers don't want tribes to come to them with every single request either. That's why they passed the Indian Reorganization Act of 1934: along with repudiating allotment, it authorizes the Interior to take land into trust.

The Bureau of Indian Affairs is in charge of the process, which starts at the local level. A tribe asks its agency, or regional office in some instances, to approve a land acquisition.

The BIA has a checklist of sorts when considering the application. This includes an environmental review, a title check and consultation with tribal and local governments. Also, the field solicitor from DOI's Office of Solicitor generally consults with the BIA to determine whether or not the land should be taken into trust on behalf of the tribe.

Depending on the proposed use of the land, the process can end here, although some tribes have waited 10 years just to get to this point. If the land is for non-gaming purposes -- such as housing, a new tribal office, or the like -- the regional office can approve the request. A notice in the local newspaper or the Federal Register is enough to trigger a public comment period. After it closes and there are no objections, then the decision is final.

But if the land is slated for a casino, there is a lot more work ahead. Since the Indian Gaming Regulatory Act of 1988 prohibits gaming on land taken into trust after 1988, there are two ways a tribe can clear this hurdle: a) satisfy a "Section 20" exemption; or b) survive a "two-part determination" that involves the state governor and plenty more headaches.

The two-part determination is difficult: only three tribes have been able to do it. First, the tribe must convince the BIA that the casino is in its best interests.

Even if the BIA agrees, the tribe has to convince the state and surrounding communities. In May 2001, then-Wisconsin Gov. Scott McCallum (R) was able to kill an off-reservation casino for three Ojibwe tribes when he refused to concur with the BIA's approval.

The Section 20 route (http://www.nigc.gov/nigc/laws/igra/usc25-2719.jsp) is equally rare but not uncommon. Since 1988, less than two dozen have cleared the Department of Interior. (See http://indian.senate.gov/2001hrgs/igra072501/blackwell.PDF)

Through a memorandum of understanding, the National Indian Gaming Commission (NIGC) and DOI consider the tribe's Section 20 case. NIGC attorneys write up these "Indian land determinations" (http://www.nigc.gov/nigc/nigcControl?option=LAND_DETERMINATIONS) to analyze whether IGRA's blanket prohibition can be defeated.

Last month, NIGC acting general counsel Penny Coleman did just that for land that was taken into trust for the Mechoopda Indian Tribe of the Chico Rancheria in California post-1988. In her memorandum (http://www.nigc.gov/nigc/documents/land/mechoopdamemo.jsp), she determined that the land could be used for gaming because it fell under the Section 20 exemption for "restored lands." The tribe had been terminated but restored through a federal court case.

A tribe doesn't necessarily need an official DOI/NIGC writeup to open a casino on post-1988 land. If the land is within the boundaries of the existing reservation or contiguous to it, there isn't much to argue about.

Yet there are some tricky situations to consider, most of them arising in Oklahoma, where there exist what are known as "former reservations." NIGC and DOI have to take in to account history as far back as a century.

"The eastern Oklahoma tribes are claming some separate exemption and there is a special rule about the Oklahoma tribes," observed former assistant secretary Kevin Gover.

But, he added, "they still need the approval. Unless they are operating on Indian lands, then gaming on that property is illegal. If it came into the tribe's possession after 1998, then it will be illegal."

Relevant Links:
National Indian Gaming Commission - http://www.nigc.gov