Breakdown: A closer look at the Trump Administration’s proposed land into trust regulations

The Trump Administration has been signaling its intent to limit when, where, and how tribes can have land placed into trust status since the beginning. Those signals have been discussed at length here on TurtleTalk, including here, here, and here.

Earlier this month, the Department of the Interior released its proposed amendments to federal regulations governing how off-reservation lands are placed into trust status. Those proposed regulations are available here: Consultation Draft – Trust Acquisition Revisions. John Tahsuda, the Acting Assistant Secretary for Indian Affairs also issued a letter to tribal leaders announcing the Department’s schedule for consulting with tribes on these proposed regulations. That letter is available here: DTLL – Trust Acquisition Revisions. The Department also published a “Summary Sheet” for these proposed changes, and you can read that here:Summary Sheet – Trust Acquisition Revisions .

I have put together this document, which allows you to do a side-by-side comparison of the existing regulations and the regulations proposed by the Trump Administration:Side by Side 151 Regs.

Overview & Initial Thoughts

My intent is to provide a breakdown of the proposed changes, and their practical effect on tribes. So, I don’t want to editorialize…too much. But, here are my broad views and initial thoughts:

• These changes are being put forth before we even have a nominee for the Assistant Secretary – Indian Affairs. Given the length of time it takes to hatch and develop regulations, it is clear that these changes are being pushed by the leadership of the Department.  Indian country was not asking for these changes.
• The land into trust process is already time consuming and expensive. This process will make it more time consuming and more expensive for tribes to put land into trust. It will also further politicize this process – meaning that tribes without strong political connections to Department leadership will face more obstacles.
• These proposed changes make it easier for the Department to reject applications to place land into trust, and they give opponents of land into trust enormous leverage to delay and kill tribal applications.
• Most of these proposed changes have absolutely no basis in any law. In other words, this new policy was pulled out of thin air.
• In a similar vein, these proposed changes address problems that simply don’t exist. We’ve covered this ground before here. (Seriously, read our earlier post for context).
• The proposed changes will particularly hurt tribes with smaller land-bases – where many applications are for off-reservation lands – especially in the Great Lakes, California, and Pacific Northwest. It is unconscionable that the Department would institute these changes without even coming to the Great Lakes region to consult with affected tribes. (And no, a “listening session” at this week’s NCAI convention in Milwaukee doesn’t qualify as consulting with Great Lakes-area tribes).
• These proposed regulations hurt tribes and help almost nobody.

Breakdown

I’m going to try to go point-by-point through some of the major changes. Feel free to add your own thoughts in the comments, or to disagree or clarify. Here we go…

1. Splitting “gaming” applications from other land into trust applications

The proposed changes require tribes to meet different requirements based upon whether the application is for gaming purposes or non-gaming purposes. This is the new 25 CFR § 151.11(a)(1).

The decision to split these two types of applications has absolutely no basis in law whatsoever. In fact, creating an entirely separate land-into-trust process for tribal gaming applications is against the law.

When Congress enacted IGRA, it generally prohibited gaming on off-reservation lands acquired after 1988. It also created a number of exceptions to this prohibition (you may have heard about this). In creating this prohibition, along with the exceptions, Congress sent a pretty clear message that it did not want the Department of the Interior to change its land-into-trust process:

(c) Authority of Secretary not affected

Nothing in this section shall affect or diminish the authority and responsibility of the Secretary to take land into trust.

By creating a separate land into trust process for gaming applications, the Department is certainly “affecting” its authority and responsibility to put land into trust. This is a pretty blatant thumbing of the proverbial nose toward Congress.

Moreover, the creation of a separate process for gaming applications is an attempt to address a problem that simply doesn’t exist. Less than 5% of tribal requests to have land placed into trust are for gaming purposes. Worse yet, this proposal layers bureaucracy on top of bureaucracy. The Department already has regulations governing land into trust. You can read them for yourself here.

2. Gaming application requirements

I don’t want to spend too much time focusing on gaming. But, there are a few things worth mentioning. First, under the proposed changes, tribes must identify the unemployment rate on their reservation (if they have one), and explain how gaming will be used to create jobs on the reservation.

For many tribes, employment data can be very difficult to obtain. Second, the need to explain how gaming will be used to “create jobs” is another requirement that has no basis in any law. It’s simply made up.

Jobs are a very welcome byproduct of tribal gaming, for sure. But, the purpose of tribal gaming is to generate revenues for tribal governments. The same holds true for state lotteries, which are used to generate government revenues without any focus whatsoever on creating in-state jobs.

Even Congress acknowledged this fact in the very first of its “findings” when adopting IGRA: “numerous Indian tribes have become engaged in or have licensed gaming activities on Indian lands as a means of generating tribal governmental revenue[.]” (25 U.S.C. § 2701(1)).

This is a sly attempt to shift three decades of federal policy through administrative means.

3. New requirements for tribal applications

The Department’s proposal adds three new, and troubling requirements, for tribal applications to place off-reservation land into trust.

First, tribal applicants would be required to demonstrate both a historical and a modern connection to the land. I hate to keep using this refrain, but there is no basis in law for this requirement. None. It is made up.

It is true that the Department and the Courts have applied these requirements to determine whether tribes can conduct gaming on certain parcels of lands. But those requirements are traced to IGRA itself, and they apply in a limited number of instances.

The requirement to show a historical connection to a parcel of land for every off-reservation application has never been used before. How will this standard be applied to tribes that were removed from their aboriginal homelands? At what point does “history” begin? What about instances where tribes shared historic use of a territory? The proposed regulations doesn’t answer these questions – which means they will be answered as tribes sit and wait for decisions on their applications (and, later, as a court decides the answers to these questions).

Second, the proposed regulations add a requirement for tribes to explain “whether the acquisition will facilitate the consolidation of the Tribe’s land holdings and reduce checkerboard patterns of jurisdiction[.]”

This requirement is absurd on its face for one simple reason: off-reservation applications, by their very nature, will neither consolidate lands nor reduce checkerboard jurisdiction. There is no requirement in the Indian Reorganization Act to make this showing.

Third, a tribe must explain “whether the Tribal government can effectively exercise its governmental and regulatory powers at the proposed site.”

Once again, there is no statutory basis for this requirement. More troubling is the fact that political decision-makers in the Department’s Washington, D.C. headquarters will be responsible for evaluating effective tribal government. What constitutes an “effective exercise of governmental and regulatory power”? Will tribes be penalized for not having a lot of money to spend to exercise jurisdiction? Will tribes be penalized for their past sins? What standard do we have to meet?

Together, these new requirements present considerable obstacles for tribes that are simply trying to acquire more land. They add to the regulatory burden tribes must bear.

The practical purpose of these requirements is to provide more reasons for Department officials to disapprove tribal applications. They do little to advance the federal trust responsibility.

4. A new “two-step” process – two hurdles to clear

In another dramatic departure from longstanding policy, the Department is proposing to create a “two-step” process for tribes to acquire off-reservation lands into trust. The proposed changes create an “initial review” where the Secretary of the Interior in Washington, D.C. has an opportunity to disapprove tribal applications before the completion of environmental and legal review (more on that in a moment).

If the Secretary determines during an initial review “that the application fails to address, or does not adequately address, the information required [above] the Secretary will deny the application and promptly inform the applicant in accordance with section 151.12.”

This added step creates a political screening process for the Department to use to weed-out tribal applications that are controversial or face opposition from well-connected parties. In short, it will further politicize the process by which tribes place land into trust – moving beyond the initial screening stage of applications will become a political battle. Tribes that are too poor to marshal political resources will fare much worse than those that can afford to go toe-to-toe with wealthy and coordinated opponents.

(I will admit to speculating on this point. But, I don’t believe it requires a leap of logic to reach these conclusions).

If a tribe is able to clear the first step in this process, it must then complete the second step – where its application undergoes environmental and legal review. The proposed regulations add a curious, and redundant, requirement to this phase.

The Department’s existing regulations require a tribe to show “the existence of statutory authority” for land to be placed into trust. Where there are concerns or questions that a tribe may not be able to have land placed into trust as a result of the Supreme Court’s opinion in Carcieri, the Department conducts a legal review to determine whether the tribe was “under federal jurisdiction” in 1934 (which is a requirement of the Indian Reorganization Act).

The Department’s proposed regulations keep this requirement – a tribe would still be required to show “the existence of statutory authority” for land to be placed into trust. But, in step two of this new process, a tribe must also submit “any information in support of the Tribal applicant being ‘under federal jurisdiction’ in 1934.”

I don’t know what to make of this knew requirement. It appears to be redundant. It is likely to cause confusion. And, I am unsure of how this will be used to alter the Department’s interpretation of the Carcieri decision.

5. Getting rid of the “Patchak Patch” – aka reinstituting the 30-day wait to have land placed into trust.

The last major change that I wanted to address is the Department’s proposal to reinstitute the old policy of waiting for 30 days to place land into trust status after a tribal application has been approved.

Prior to the Supreme Court’s 2012 decision in the Patchak case, there was a belief that the Department of the Interior was immune from lawsuits challenging decisions to place land into trust for tribes once the land was actually placed into trust status. To allow for people to challenge those decisions (and to stave-off a Supreme Court decision finding the entire land-into-trust process to be unconstitutional), the Department had a policy of waiting 30 days to place land into trust after it had approved a tribe’s request. Interested parties were given 30 days to file a lawsuit. Once they filed that lawsuit, the Department waited for the lawsuit to finish to actually put that land into trust.

The Supreme Court ruled in the Patchak case that the Department was not immune from lawsuits filed after land was actually placed into trust. In response, the Department changed its regulations to “patch” the harm caused to tribes by the Patchak case. Under those changes, the Department would not wait to put land into trust after it approved an application, and opponents could file an administrative appeal (if applicable) or file a lawsuit in federal court within 6 years – the federal statute of limitations. The changes were designed to speed-up the process after a decision was already made, and to try to move most legal challenges into the Department’s administrative appeals board – the Interior Board of Indian Appeals.

Short simple version: After the Patchak case, tribes generally wouldn’t be made to wait for years to have land placed into trust status after they had already won approval.

The Department’s proposed changes get rid of these changes and go back to the old policy of waiting 30 days to place land into trust (or, potentially, longer if a lawsuit is actually filed).

There is simply no rational legal or policy basis to go back to that practice. The Supreme Court has ruled that interested parties can challenge the decision to place land into trust status for tribes even if the land was already placed in trust.

The only conceivable reason for going back to the old approach is to make tribes wait longer to have land placed into trust. This would apply even in instances where opponents have filed the most baseless and frivolous challenges.  And, while tribes bear the cost of litigating those challenges, they must also continue to pay property taxes on the parcel.  Again these requirements would apply even after the Department decided that the land should be placed into trust status.

Conclusion

I know there is a lot to take in, but these proposed changes are dramatic. And, if you are a tribe that doesn’t have a large consolidated land base, these proposed changes will make it harder to have lands placed into trust. They will also put more of a financial burden on tribes seeking to place land into trust, and further politicize this process.

The Department’s consultation period ends on December 15th (without any consultation sessions east of the Mississippi River). Tribes should submit their comments to consultation@bia.gov.