The generally nonpartisan Subcommittee on Indian, Insular and Alaska Native Affairs took a sharp turn to the right at its July 13 oversight hearing, entitled, Comparing 21st Century Trust Land Acquisition with the intent of the 73rd Congress in Section 5 of the Indian Reorganization Act.
The Secretary of the Interior holds "exceptionally broad authority to acquire land in trust for Indians" under the 83-year-old Indian Reorganization Act of 1934 (IRA), according to a memorandum distributed before the hearing by Subcommittee Chairman Doug LaMalfa (R-CA).
But Section 19 of the IRA, which states that only members of tribes "recognized and now under federal jurisdiction" could acquire trust land, created a legal quagmire in 2009 when the Supreme Court held to a literal and controversial interpretation of "now" in Carcieri v. Salazar.
Since then, according to LaMalfa in his memo, "...the Secretary may no longer use the IRA to acquire trust land for any post-1934 tribe without specific authorization from Congress."
LaMalfa’s interpretation is at odds with a 2014 legal opinion issued by the Obama administration that defined "'now under federal jurisdiction' in a manner that allows the Interior Department to indeed continue to place land into trust for tribes recognized after 1934.
Of note, post-Carcieri, federal courts have not reversed any land-into-trust acquisitions made by Interior for tribes recognized after 1934, despite several challenges from localities in multiple venues.
While tribes generally supported the Obama administration’s opinion, a majority of tribes have continued to call for Congress to fix Carcieri by ensuring through legislation that all tribes, regardless of recognition date, are treated equally.
The hearing sought input on how this policy fix might look.
Although ostensibly an information-gathering session to determine whether Congress should revise policy on Indian trust land acquisition, ranking member of the Natural Resources Committee Raúl Grijalva (D-AZ) characterized the hearing instead as an attempt to attack tribal sovereignty and self-determination by questioning the legitimacy of tribes that have received federal recognition since 1934, and by extension, their ability to acquire land to place into trust.
"This hearing isn't even an attempt to seek information – it's a forum for repeating anti-Native talking points," Grijalva said, adding that House Natural Resources] Chairman Rob Bishop (R-UT) “has a long history of opposing tribal sovereignty and attempting to weaken federal recognition for Native Americans."
Grijalva lamented the lack of Indians representing their positions on land acquisition at the hearing, with three of the four witnesses speaking on behalf of the federal or local governments and only one speaking on behalf of tribes. "We should have a higher standard for Native American policy hearings than a panel of non-Native witnesses with axes to grind," he said.
What were those "axes?" Largely state and local governments backed by the federal government seeking to limit or have a direct say in how tribes develop their trust land.
James Cason, associate deputy secretary of the Department of the Interior, testified, "Overall, land-into-trust acquisitions are uncontested transfers that often have local support,” but he also raised alarm, saying, “off-reservation lands that are acquired through the fee-to-trust process have the potential to raise jurisdictional uncertainties in local communities, as well as complicating [sic] land-use planning and the provision of services."
Also problematic for Cason were declines in tax revenues non-Indian governments might experience as assessable land is removed from their jurisdiction, or as tribes changed their economic development plans post acquisition that created additional competition or uncertainties for the surrounding communities.
"This possibility has prompted questions regarding what role the department could play in establishing land use restrictions to half certain lands from being used for gaming," Cason testified.
The lone tribal witness, Kirk Francis, president of the United South and Eastern Tribes (USET) and chief of the Penobscot Nation, reminded the subcommittee, "The IRA's main purpose was and is to facilitate tribal nation self-governance, self-determination, and self-sufficiency in order to improve the lives of Indian people....Regaining a land base is essential to the exercise of tribal self-government."
It is also a key component of national sovereignty, with all the rights and privileges as well as challenges that come with it. To get there, Francis proposed "a clean Carcieri fix," something USET has been lobbying for over the past eight years.
"We think that this reaffirms what we already know – that trust land acquisition and regaining homelands should apply to all tribes," he said.
Mayor Fred Allyn III, of Ledyard Connecticut, focused largely on the how harmful "the preemption of state and local taxation of non-Indian economic activities on Indian lands" have on state and local governments.
"The shortfall in the town's budget increases every time the federal government takes more land into trust," Allyn testified. He offered two fixes: objective standards to govern the trust acquisition decision and procedures that ensure genuine consideration of the impacts on surrounding communities. He also maintained, "the BIA refuses to consider the cumulative impact of trust acquisitions, and every new request is treated in isolation,..." Lastly, Allyn called for "the Secretary's authority to take land out of trust" to be confirmed, especially "if the proposed land use changes after trust acquisition to a land use that was not considered in the original decision, or to stop the new land use from occurring until a new review is conducted."
Left unsaid was whether Ledyard should return the favor when his town undertakes economic development or approves land-use development projects, as well as whether he believes that tribes near Ledyard – or any other non-Indian jurisdiction – should be able to nullify a land acquisition in a non-Indian community or to prevent a land-use project.
Pouring gas on the fire was Anchorage attorney Donald Mitchell who has appeared before Congressional committees and subcommittees a dozen times over the past 40 years. In a tone that took several subcommittee members aback, Mitchell made two highly controversial – and highly inflammatory – arguments predicated on the contentious assumption that Congress and Interior were "creating tribes.”
First, Mitchell contended, "the U.S. Constitution grants Congress – not the Secretary of the Interior, and certainly not [the BIA] – exclusive plenary power to decide the nation's Indian policies." For him, that brings into question "whether the members of tribes that Congress and the BIA created after the date of enactment of the IRA should be included within the purview of the first definition of the term "Indian in section 19 of the IRA so that the BIA can acquire land for those tribes...."
Second, Mitchell argued that "Section 5 of the IRA is an unconstitutional delegation of authority to an executive branch agency." Essentially, he would like to see Congress revisit the definition of the term "Indian" and redefine it if necessary. At the same time, he would like to see Congress reexamine the Secretary of the Interior’s "unfettered authority to take into trust the title to land located outside the boundaries of Indian reservations that were in existence on June 18, 1934." He'd prefer to see land acquisition in the hands of Congress.
While subcommittee members generally defended the status quo, they could see room for improvement in land acquisition policy, though mostly in facilitating it for tribes.
In Bishop's (R-UT) words, "what we'd really like to get are written recommendations on how to create coherent land acquisition policy.” Members also vigorously defended tribal sovereignty and refuted Mitchell's allegation that Congress was "suddenly and instantaneously creating Indian tribes."
Francis rejected not only Mitchell's notion of "[tying] federal acknowledgement to being under federal jurisdiction," but called out the "delegitimizing of tribes" as "insulting and dangerous."
LaMalfa concurred, reiterating that "the government doesn't create a tribe!"
But the government does approve tribal trust land acquisition policies. LaMalfa concluded, "Are we in balance after eighty years? How can we clean up the process, and how can we make it more timely?"