Turtle Talk

The Department of the Interior has announced that it will be amending its regulations governing how Indian tribes acquire lands outside of existing Indian reservations. There’s been a lot of speculation about these changes, but many assume that they will make it even more difficult for tribes to have lands placed into trust. Before commenting on current issues surrounding the land-into-trust process, it is important to understand how we got here.

The IRA and the BIA’s Response to Land-into-Trust Opponents

Congress enacted the Indian Reorganization Act in 1934, which brought an end to the shameful era of federal Indian policy we now call “The Allotment Era.” During the Allotment Era, Indian tribes across the United States saw their collective landholdings reduced by more than 90 million acres; between 1888 and 1934, Indian tribes collectively lost nearly twice as much land as they own today.

Congress gave the Secretary of the Interior the ability to place more lands in trust status for Indian tribes in straightforward language:

The Secretary of the Interior is hereby authorized, in his discretion, to acquire through purchase, relinquishment, gift, exchange, or assignment, any interest in lands, water rights or surface rights to lands, within or without existing reservations, including trust or otherwise restricted allotments whether the allottee be living or deceased, for the purpose of providing land for Indians. (emphasis added)

As you can see from the bolded language, Congress intended for the Secretary of the Interior (i.e. the BIA) to put off-reservation land into trust for Indian tribes – way back in 1934. This congressional policy has remained unchanged ever since.

From 1934 until 1980, there were no federal regulations to govern the process by which the BIA put land into trust for Indian tribes. Then, in 1980, the BIA adopted its original land-into-trust regulations at 25 C.F.R. Part 120.  (worth reading). The Preamble to the BIA’s original land-into-trust regulations highlights some of the criticism about off-reservation land going into trust. Here are two notable passages that continue to be relevant today:

The definition of a “tribal consolidation area” set out in proposed § 120a.2(i), now (h), was criticized because some tribes do not now have an Indian reservation and because the expression “in close proximity to” was not precise. To partially resolve these difficulties, the offending language has been deleted.

The passage above shows the BIA recognized back in 1980 – nearly 40 years ago – that many tribes seeking to have land placed into trust status did not have an existing reservation; and, that federal policy should not restrict the ability of tribes without an existing reservation to establish homelands.

In adopting its regulations, the BIA also addressed concerns submitted by local governments:

Many objections were received about the acquisition of fee lands in trust status. These comments primarily concerned the erosion of tax base and the serious jurisdictional problems that can arise when land outside of reservation is acquired in trust status. Many of the suggestions go beyond the scope of existing statutory authority and the proper purview of these regulations: e.g., the proposal that in-lieu taxes be paid for land transferred from fee to trust status.

As you can see, the BIA acknowledged that there is no legal authority to publish regulations requiring tribes to make tax payments to local governments in exchange for putting land into trust or to subject tribal trust lands to local control.

The BIA’s original land-into-trust regulations did not distinguish between on-reservation and off-reservation land acquisitions – owing to an understanding that the IRA does not make such a distinction.

Those regulations were amended in 1995 to their current form. The current regulations created separate processes for tribes to have land put into trust within and without existing reservations. Here are the 1995 amended land-into-trust regulations. A review of the Preamble to the 1995 rules shows that many of the changes were made to address concerns about off-reservation acquisitions. Here are some notable statements from the BIA at the time:

The BIA has instructed its field offices that proposed acquisitions of off-reservation contiguous lands for commercial purposes should be carefully scrutinized with consultation considered to avoid jurisdictional conflicts. The new [regulation] establishes a consultation process which may give rise to agreements which could result in resolution of the above types of regulatory issues.

Between 1980 and 1995, the BIA’s understanding of the land-into-trust process changed from a view that tribal-local jurisdictional agreements “go beyond the scope of existing statutory authority” to a view that encourages such agreements. In light of this change, many tribes actively sought to reach inter-governmental agreements with state and local governments before asking to have lands placed into trust.

The BIA also included these comments:

The new [regulation] allows landless tribes (i.e. those without any trust lands) to acquire land within their aboriginal homelands, subject to the other restrictions in 25 CFR 151.11 [the new regulation governing off-reservation trust acquisitions].

***

The blanket exception for landless tribes has been narrowed to require that any lands to be acquired on behalf of such tribe be located in a state in which the tribe’s aboriginal homelands are located.

In these passages, we can see a gap emerging between Indian tribes that have consistently maintained a land-base since 1888, and tribes that have not. Tribes that did not have a land-base were required to go through a more rigorous process to have lands placed into trust, and show aboriginal ties to newly acquired lands. This change did not reflect any change in Congressional policy.

The BIA also explained that the new regulations would impose a higher standard for tribes seeking to place off-reservation land into trust in urban communities:

[T]he new 25 CFR 151.11(b) will already require that tribes whose reservations are not located in urban communities provide a “greater justification” when lands in such communities are to be acquired.

The 1995 regulation amendments made the process of acquiring off-reservation land into trust more costly and time-consuming, and ensured that considerable weight would be given to local concerns.

Notwithstanding its efforts to placate the concerns of state and local governments about Indian tribes acquiring more land, the Department of the Interior defended lawsuits challenging the constitutionality of the IRA’s land-into-trust language. The federal courts consistently rejected those arguments in cases out of South Dakota, Michigan, and Rhode Island (Carcieri).

In 2008, the George W. Bush Administration further restricted the ability of Indian tribes to place land into trust outside of existing reservations through an unspoken moratorium on acquiring land in trust, a a notorious “Guidance Memorandum” that effectively stated that Indian tribes could only acquire lands in trust if those lands were within a “reasonable commuting distance” from their existing reservations. You can read that Guidance here.

The Obama Administration rescinded the Guidance Memorandum in 2011, explaining that there was no basis in the law for such a requirement.

The Facts About the Land-Into-Trust Process

I realize that this post is already long, but the history of this process is important. In 1934, Congress authorized the Secretary to place land into trust for tribes on the reservation and off the reservation. There were no caveats or restrictions on the purpose of this authority – it was intended to ensure that tribes could establish or restore their homelands.

This policy has steadily grown more restrictive through bureaucratic action. And still…the same old criticism has persisted.

You can see from the BIA’s fee-to-trust regulations in 1980 that the basic arguments against putting land into trust have remain largely unchanged over 40 years: Indian tribes are taking land out of local jurisdiction, undermining local zoning regulations, and taking local tax revenues. Since IGRA’s passage in 1988, gaming has also been thrown into the mix.

This criticism has consistently come from the same places – States like South Dakota (which challenges many tribal applications to place land into trust as a matter of course); a few local governments in California, Connecticut, and Wisconsin; and groups like the Citizens Equal Rights Alliance and Stand Up! California.

The notion that the Federal Government is putting too much land into trust without regard to local interests is #fakenews. The facts show this to be true.

In the past 8 years, the BIA has approved approximately 2,200 requests to place land into trust for tribes. Of those decisions:

• 80 to 90 percent were for lands within, or contiguous to, existing reservations;
• 90 percent did not face legal challenge;
• 817 of the acquisitions were for “Agriculture”;
• 615 of the acquisitions were for “Infrastructure”;
• 411 acquisitions were for “Economic Development”;
• 334 acquisitions were for “Housing”; and,
• A mere 21 (less than 1%) were for “Gaming”.

The IRA worked to stop more lands from being taken away from Indian tribes; but, it has hardly made a dent in allowing tribes to restore parts of their original landholdings. The process to place a single parcel of land into trust can take years, and can cost tens or even hundreds of thousands of dollars (even without gaming involved).

Despite all this, the same criticism hurled at the BIA in 1980 is still used today.

One recent law review article often cited by opponents of placing land into trust called this process “extreme rubber stamping.” It highlighted the fact that, between 2001 and 2011, the BIA approved 111 applications to place land into trust in California. Only 14 of the trust acquisitions cited in the article were for off-reservation lands.

There are currently 110 federally recognized Indian tribes in California. This means that, over an entire decade, the BIA approved one solitary acquisition of land for each tribe in California – including just 14 for off-reservation lands.

And this is labeled as a crisis!

Proposed Changes to the BIA Regulations

Based on recent statements by Department of the Interior officials, we can expect the off-reservation land-into-trust process to be made even more difficult for tribes. This will severely impact those tribes without an existing or consolidated land base.

In nine decades, Congress has never passed a law stating that off-reservation land acquisitions should be harder than on-reservation acquisitions. Congress has never required that tribes have “aboriginal ties” to trust lands, or that those lands be within a “reasonable commuting distance.” The federal courts have never held these restrictions should be added.

The BIA has added those restrictions.

Nevertheless, the nature of the criticism about the land-into-trust process has never changed, and efforts to address that criticism have never gone far enough. They never will.

That is because most of this criticism isn’t aimed at improving the land-into-trust process; it is aimed at preventing Indian tribes from having land placed into trust in the first place, taking land out of trust, or placing tribal lands under the control of local governments. Just see the Testimony of Ledyard, CT Mayor Fred Allyn III earlier this month (echoing the criticism from 1980):

Second, all other lands should only be taken into trust when clear, objective standards have been met, and the concerns of local governments have been satisfied. In particular, tribes should be required to seek solutions to trust land requests before seeking BIA approval; local governments should be consulted early in the process; and no acquisition should be approved unless impacts to the local community have been addressed and mitigated, either through binding agreements with the tribe, or enforceable federal decisions. Meaningful requirements should be established for Tribes to prove the need for trust land, as envisioned by Congress in 1934. And no change in use or purpose should be allowed without a new decision.

In addition, the Secretary’s authority to take land out of trust should be confirmed.

We should stop pretending that this criticism is about improving the land-into-trust process.

Only Congress can make those changes (not that they should).

In the meantime, the BIA’s existing regulations provide ample authority to seriously consider how a tribal land acquisition will affect neighboring communities. The facts set forth above show that this process accounts for state and local interests – 9 out of 10 tribal land acquisitions go unchallenged. Moreover, the numbers simply do not show off-reservation lands being placed into trust on a large scale.

Changing the BIA’s regulations to make it even harder for tribes to put land into trust would not advance the policy set forth in the Indian Reorganization Act. Instead, it would simply grant the opponents of the land-into-trust process what they’ve been after for decades.