WASHINGTON - In a move expected to bring both criticism and praise from Indian country, Assistant Secretary for Indian Affairs Neal McCaleb has delayed the effective date on land to trust regulations drafted during the last administration.
The new regulations, which enable tribes to acquire lands once lost to them, have been a controversial issue for years. McCaleb said the delay is being imposed to gather comments on whether the Department of Interior should withdraw or replace the new regulations, and gather further views from state and local governments.
"Secretary Norton and I recognize that the land-into-trust process is critically important to helping tribes regain lost lands, but that it also has a major impact on state and local governments," McCaleb said.
Work on the new regulations began nearly two years ago with the formation of a task force by the National Congress of American Indians and the BIA. The final version of the regulations was announced by the Clinton administration Jan. 16, just four days before the Bush administration took over.
However, in April the new administration delayed the effective date for the regulations until a decision was made on how to proceed.
Earlier this year the task force co-chairmen said Interior pushed forward with the regulations despite strong objections of tribal leadership and their serious concerns about the substance of the regulations and the failure of the government-to-government consultation process. However, Tex Hall, chairman of the Three Affiliated Tribes in North Dakota, and Robert Chicks, chairman of the Stockbridge-Munsee Tribe in Wisconsin, also said new rules have a number of improvements and should be supported.
NCAI also passed a resolution at its 2001 Midyear Session supporting the new rule and urging the secretary to make it effective. Despite this support, Interior decided to extend the process, citing comments already received on "a lack of standards" in the regulations and the availability of applications for review.
Interior said it is considering clarifying some standards and lengthening the time for application review by state and local communities by 30 days.
"Through this action, all tribes, as well as state and local governments and communities and individuals affected by the land-to-trust requests, will have an opportunity to improve the regulations in a way that makes the trust acquisition application process more efficient, open and fair for everyone," McCaleb said
While the Bush administration appears to be focusing on the concerns of state and local communities, NCAI cites improvements already in the regulations that include clearer standards and timelines in the process. The standards establish methods to determine whether or not land should be accepted into trust. NCAI says this serves as a balancing test of the benefit of the tribe verses the harm to the local community.
Under the prior regulations, those standards were unclear. New rules also establish a time frame for Interior to make a decision. Once an applicant is notified their application is complete, the BIA will issue a decision within 120 days.
The areas of concern to tribes include off-reservation acquisitions and exemption of lands in Alaska. While on-reservation acquisitions remain much the same, off-reservation acquisitions will be more burdensome, allowing greater opportunities for surrounding non-Indian communities to submit their views.
Under the old rules, lands contiguous to reservations were treated the same as on reservations lands, but under the new regulations that practice is ended. Alaskan lands are also excluded from the process.
Jackie Johnson, executive director of NCAI, said tribes had already compromised a lot in the original process of drafting proposed regulations, but were gracious enough to accept them since many of improvements would help move things forward. She said NCAI now is concerned with Interior starting all over again, without consulting with tribes.
"We encourage Secretary Norton to meet with tribes to discuss her areas of concern, so before they move forward with any changes they have properly consulted with tribal governments," Johnson said. "No matter which way she goes there are also many questions regarding implementation."
By placing land into trust, a tribe regains control over land once owned by the federal state or local governments. This has caused some tension because land is removed from tax rolls and state and local zoning laws and regulations no longer apply. The expansion of tribal gaming operations has also resulted in greater tensions, especially on lands that are not located next to current tribal boundaries.