Student Law Review Note Blasts BIA Pacific Region Agency Trust Acquisition Review Process as “Extreme Rubber-Stamping” Favoring Tribes

The paper is called Extreme Rubber-Stamping: The Fee-to-Trust Process of the Indian Reorganization Act of 1934 (PDF: Extreme Rubber-Stamping). The abstract:

In recognition of the massive loss of Indian territory since the European “discovery” of America, the Indian Reorganization Act of 1934 provides a process whereby Indian tribes can expand their reservations by applying to have additional land placed into trust for their benefit. This process, known as the fee-to-trust process, is the subject of fervent opposition by many affected communities because once taken into trust for a tribe, such land is no longer subject to state and local taxation or zoning, planning, and other regulatory controls. Accordingly, this Comment explores the efficacy of the fee-to-trust process by analyzing the Pacific Region Bureau of Indian Affairs decisions on proposed trust acquisitions from 2001 through 2011. Supported by this data, which shows a 100% acceptance rate, this Comment ultimately concludes that the process is shockingly biased and toothless—merely an exercise in extreme rubber-stamping. Thus, there is great need for comprehensive reform of the fee-to-trust process, including the creation of a meaningful role in the process for affected communities, establishment of clear and specific standards for acceptance of land into trust, and an emphasis on collaborative solutions.

Interesting , if not downright terrible, methodology — looking only at the notices of successful trust applications to conclude that 100 percent of applications are accepted. Wow! Without knowing, I would guess that the Bureau around the country generally doesn’t actually deny many trust acquisition applications, but they surely do not approve 100 percent. The government just sits on them until they become stale, or the tribe withdraws them when it becomes clear the application would never be approved.

Also, the conclusion that no one appeals or objects to trust acquisitions because the process is unfair is a little hysterical. Nearly all non-gaming related acquisitions are non-controversial, on-reservation acquisitions. Why would there be an appeal or objection? The number of pending federal court challenges to gaming-related trust acquisitions also tends to undermine these conclusions.

Even so, the critiques of the trust acquisition process from the point of view of state and local governments reproduced here are important to review.

6 thoughts on “Student Law Review Note Blasts BIA Pacific Region Agency Trust Acquisition Review Process as “Extreme Rubber-Stamping” Favoring Tribes

  1. Kevin January 17, 2013 / 1:23 pm

    An objectively flawed, anti-Indian law review note that resulted from assistance provided by Cheryl Schmit? You don’t say.

    “J.D. Candidate, 2013, Pepperdine University School of Law; B.A. in Marketing, 2007, Santa Clara University. … I would also like to thank Cheryl Schmit, Director of Stand Up for California, for conversations and resources that were extremely helpful in researching this issue.”

  2. Jay Daniels January 18, 2013 / 8:28 am

    Most of the problems with accepting land into trust by the BIA is that many applications are either incomplete or encounter federal review process changes such as environmental and opposition from interested parties. In those instances where interested parties are agreeable, usually because they stand to share in the benefit of the acquisition, applications are processed somewhat timely. When you have the Carchieri’s and the Patchak’s of the world, and now an increase in other tribal opposition due to conflicts with their interest, the process is slow going. As for rubber-stamping, that pretty much is the spirit of the IRA of 1934, to take land into trust on behalf of tribes to establish their reservations. Whatever way possible, it should be done. It is a statutory right of tribes.

  3. Trent January 22, 2013 / 8:00 pm

    If the student called me, I’d direct her to the Realty Officer at my employer-tribe. As your comments suggest, the common practice of the Pacific NW regional office is not to deny applications that have problems, but rather to simply not approve them until they are effectively withdrawn. This happens very regularly.

    Also, one of the local governments just appealed an approval of a fee-to-trust application coming from my employer-tribe, so that certainly happens too.

  4. Mary Street January 26, 2013 / 9:49 am

    Finally got through this, footnote 290 pretty much provides the reverse argument. Just because there isn’t a challenge, doesn’t mean it’s a rubber stamp because there were several appeals (according to footnote). But if you look at the case facts they were simply decided and it had nothing to do with automatic-ness. I’m guessing it’s hard to dig through all this kind of data in one semester as a student, but I probably wouldn’t have staked out this data so strongly as proving some other “fact.”

  5. Kevin II February 1, 2013 / 6:14 pm

    Also according to this article, “Congress” in 1980 implemented the Section 151 regulations in response to Indian gaming (which was authorized in 1988). I won’t continue to pick it apart, you get the idea.

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