BOSTON - Call it "reservation shopping" or "land into trust," but the
arcane process by which the federal government establishes "Indian country"
has suddenly emerged as one of the hottest tribal issues of the year.
The authority of the Secretary of the Interior to place land into trust for
a tribe has just survived a major legal challenge but the controversy over
the process will continue, inflamed by rivalries over casino markets and
struggles internal and external over tribal sovereignty. Congressional
committees are planning hearings and possibly legislation on the placement
of tribal casinos.
A bitter fight is almost inevitable over Congressional legislation
necessary to settle New York state land claims, which would pit in-state
tribes against cousins who emigrated during the 19th century Indian
removals. One issue is the right of governments from the diaspora to
reassert jurisdiction over ancestral land basically next door to those
tribal governments that never left. Another is an economic struggle for a
piece of the expanding New York casino market. The intricate interplay,
mainly among the tribes of the Haudenosaunee (or Iroquois Confederacy),
also involves state and local attempts to tax sales on Indian territory.
Vastly raising the stakes is a pending U.S. Supreme Court decision that
could limit or greatly expand the definition of "Indian country." The City
of Sherrill v. Oneida Indian Nation case was argued before the Court Jan.
11. If the associate justices uphold lower court rulings, New York tribes
could automatically re-establish sovereignty when they repurchase land that
was illegally sold from their treaty territory.
(The Oneida Indian Nation, defendant in the Sherrill case and a central
player in the New York land claims and casino compact struggle, owns Four
Directions Media, which publishes Indian Country Today.)
The "land into trust" or "fee to trust" controversy revolves around "Indian
country" as defined in federal law, which is far more limited than its
historic or spiritual meaning. The process dates to the 1934 Indian
Reorganization Act. According to the Interior Department's own explanation,
it was meant to reverse the "disastrous" impact of the 1887 Allotment Act,
which took 90 million acres out of tribal hands and caused a "precipitous
decline in the economic, cultural, governmental and social wellbeing of
The process was at first so little used, however, that Interior didn't even
draft regulations for it until 1980. Until the advent of gaming, tribes
simply didn't have the money to reacquire land; even now, according to
Interior, reacquisitions amount to only 8 percent of the land lost through
allotment. Old trust land continues to be lost even as new land is
The growth of tribal casinos and their cash flows gave "fee-to-trust" a
whole new urgency. Interior started redrafting the rules in 1999, but the
Bush administration suspended the work to give states and localities more
say. And some states decided to attack the whole process.
When BIA Eastern Area Director Franklin Keel approved putting 31 acres into
trust for a Narragansett Indian housing project in 1998, the state of Rhode
Island started an appeal that wound up as a federal suit challenging the
Interior Secretary's fundamental authority to do so. The attorneys general
of 10 states filed a brief saying the 1934 Act was an unlawful delegation
of Congressional authority, in violation of the Enclaves Clause, the
Admissions Clause and the 10th Amendment of the U.S. Constitution.
The suit pitted Rhode Island Gov. Donald Carcieri against Interior
Secretary Gale Norton without naming any tribes. But the issues - some
coming up for the first time - affected all of Indian country. The Supreme
Court Project of the National Congress of American Indians and the Native
American Rights Fund orchestrated two briefs in reply.
On Feb. 9, the tribal interest carried the day. A three-judge court of
appeals panel dismissed all the constitutional issues and affirmed a
summary judgment for Secretary Norton.
Although the process survived that challenge, the controversy quickly grew
hotter than ever. A loophole in the Indian Gaming Regulatory Act allows
Interior to take land into trust for a tribal casino, even at some distance
from the reservation, if it advances the economic interest of the tribe.
Initially, many reservations were too remote from population centers to
sustain a profitable casino, a problem solved by making casino sites near
cities part of the reservation.
But that created another problem: what if a trust taken for one tribe
intrudes on the traditional land, and market, of another tribe? The problem
is full-blown now in California, where the rapid growth of casinos has set
off a spate of site shopping by fragmented tribal remnants. East of the
Mississippi, the legacy of the early 19th century Indian removals compounds
the problem. The Iroquois Nations' diaspora has spread from Canada to
Wisconsin to Oklahoma, sometimes far outnumbering the tribes on ancestral
To further complicate the New York picture, the new frontier for tribal
casinos is the former resort belt of the southern Catskills, a day trip
from the New York City metropolitan area and equally removed from historic
Iroquois territory. Gov. Pataki has introduced state legislation for five
tribal casinos, up from the three authorized three years ago, to settle
long-standing land claims suits. He has made deals with three out-of-state
tribes. One instate tribe, the Oneida, refused to settle the suit and has
been frozen out; another, the Cayuga, has fallen into a leadership dispute
over whether to settle.
The problem for Pataki is that the decision to take land into trust lies
with Washington, not Albany. Interior has already made it clear that it
grows more reluctant to approve an application the further the site lies
from the reservation. Secretary Norton refused to sign the approval for the
Seneca casino in Niagara Falls, letting it go through by default as a
signal of Interior's uneasiness. Congress shares this unease, and it now
seems that it might come to a head.
Published reports say a bill is in the works modeled on resolutions by the
United South and Eastern Tribes (USET) that oppose casino trust approvals
for out-of-state tribes. USET, a lobbying organization for 24 tribes mainly
east of the Mississippi, adopted a resolution last fall opposing trust land
in New York for the Seneca-Cayuga Tribe of Oklahoma and deals in California
for Alaska Native villages. In its recent Impact Week in Washington, D.C.,
the bill found receptive ears in Congress.
Committee hearings and possible legislation will run directly against the
Congressional bill that Gov. Pataki needs to seal his land claims deals.
The collision could make "land-into-trust" a term everyone will remember.