House Subcommittee on Indian Affairs Memo on Fee-to-Trust and Important Context

Today, the House Subcommittee on Indian, Insular, and Alaska Native Affairs is conducting a hearing entitled:

“Inadequate Standards for Trust Land Acquisition in the Indian Reorganization Act of 1934.”

In advance of the hearing, the Majority Staff circulated a memo calling the fee-to-trust provisions of the Indian Reorganization Act into question. Felix Cohen has described these provisions as the “capstone” of the IRA.

The Majority Staff Memo creates the perception that the BIA is an unfettered and unchecked bureaucracy that is gobbling up land for Indians at the expense of unsuspecting communities. It also gives credence to the notion that there is a need to curb “reservation shopping” to prevent some sort of massive proliferation of Indian gaming facilities.

The Majority Staff Memo ignores or omits some important context.

First, an overwhelming majority of tribal fee-to-trust applications are for lands that are located within or contiguous to an existing reservation. During my tenure with the Department of the Interior, this category comprised approximately 90 percent of all tribal fee-to-trust applications.

Of those applications, a large number of applications involve tribes seeking to consolidate their interest in parcels that are held in both fee and trust status. Congress encouraged these applications when it amended the Indian Land Consolidation Act in 2000 to address Emulsified Property.

Second, research by Professor Frank Pommersheim has shown that tens of thousands of acres of Indian lands continue to be taken out of trust status despite the IRA’s fee-to-trust language . The Majority Staff Memo does not mention this fact.

Third, the Majority Staff Memo promotes the canard that “reservation shopping” for casinos is a real problem in need of a remedy. The fact is that, since 2001, the BIA has approved a total of 27 fee-to-trust applications for gaming under IGRA’s exceptions) – 17 of which were approved during the Bush Administration. (this does not include two-part determination approvals). Tribal gaming applications have made up a very small fraction of the thousands of requests to have the Secretary acquire land in trust under the IRA. There is no reservation shopping “problem.”

Below, I’ve pulled some quotes from the Majority Staff’s ominous memo that warrant additional context:

CLAIM: “The only serious limit on the Secretary’s power, however, has been defined by the Supreme Court. In Carcieri v. Salazar, the Court held that the trust land provisions of the IRA may benefit only tribes that were ‘under federal jurisdiction’ on the date of enactment of the [IRA]. These are generally tribes with reservations subjected to 19^th century allotment laws.”

CONTEXT: The Majority Staff Memo also describes the IRA as a “remedy” for allotment. Taken together, the Majority Staff Memo suggests that there are two classes of tribes under federal Indian policy: one class of “real” Indian tribes, which can establish a homeland, and another “lesser” class of Indian tribes that cannot have land acquired in trust.

Congress expressly rejected this notion in 1994, when it amended the IRA to prevent the BIA and other federal agencies from making this very distinction. Moreover, Justice Breyer’s concurring opinion in the Carcieri case itself explains that it is possible for tribes to have been “under federal jurisdiction” when the IRA was enacted, despite the fact that they were not recognized until later.

CLAIM: There has been one major challenge to the constitutionality of Section 5 of the IRA.

CONTEXT: The Majority Staff Memo makes a really big deal out of the 8^th Circuit Court of Appeals’ 1995 opinion on this issue – calling it the “one major challenge”. The Majority Staff Memo somehow downplays the fact that the Supreme Court vacated that opinion.

The Majority Staff Memo either missed or ignored the much more recent case of MichGO v. Kempthorne, in which the Plaintiffs argued that the IRA’s fee to trust provisions were unconstitutional. The D.C. Circuit Court of Appeals upheld the Secretary’s authority under the U.S. Constitution.

Despite the Majority Staff’s claims about the lack of Supreme Court review of this issue, the Plaintiffs in MichGO petitioned the Supreme Court to examine this exact question. The Supreme Court denied their request, leaving the D.C. Circuit’s opinion as the most recent precedent on this issue.

CLAIM: “The [Allotment] Act failed because many Indians did not adjust or were not taught to adjust to the radical shift in their culture, economy, and lifestyle. Upon patenting the lands after a 25-year grace period when the allotments were retained in trust, many Indians sold or mortgaged their lands.”

CONTEXT: The Federal Government’s Allotment Policy failed because it resulted in the illegal sale of millions of acres of Indian lands to non-Indians, not because Indians were incapable of adjusting our culture.

This (mis)understanding of the shift from the Allotment Policy to the IRA may shed light on why the Majority Staff is concerned with the Secretary’s authority to acquire land into trust for Indians and Indian tribes in the first place.

The lesson to be learned from Allotment and Reoroganization (and Termination) is that Indians prosper when we have a homeland where we can determine how to organize our communities and economies, and that we suffer greatly when we don’t.

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There is no doubt that some states, local governments, and communities have legitimate concerns over how to manage sharing jurisdiction with Indian tribes.  But, there is little evidence to suggest that the IRA has been an impediment to resolving those concerns.

Hopefully, this context shows that the IRA’s fee-to-trust authority has been enormously successful in the preservation of tribal communities and growth of tribal economies.