WASHINGTON - New regulations which enable tribes to acquire lands once lost to them is sparking some debate between tribes about how far they actually go in addressing tribal concerns.
The Bush administration issued a memorandum to all agency heads, ordering them to delay the effective date of all pending regulations. While the administration reviews the new regulations, some voiced concern that new rules are limited.
Other tribal leaders say they are the result of a compromise between a tribal task force and the BIA and should be considered.
"It doesn't have everything we wanted, but it is a vast improvement over what we used to have," said Tex Hall, chairman of the Three Affiliated Tribes in North Dakota and co-chairman of the task force that worked on the new rules.
Work began nearly two years ago with formation of a task force by the National Congress of American Indians and the BIA. The final version was announced by the Clinton administration Jan. 16, just four days before the Bush administration took over.
Hall and co-chairman Robert Chicks, the chairman of the Stockbridge Munsee tribe in Wisconsin, say 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, they also say the new rules have a number of improvements.
Those improvements include clearer standards and timelines in the process. The new standards establish definite methods for determining whether or not land should be accepted into trust. They say this serves as a balancing test of the benefit of the tribe versus the harm to the local community. Those standards previously were unclear.
The new rules establish a time frame for Interior to make a decision. The BIA will issue a decision within 120 days of notifying a tribe its application is complete.
Areas of concern include off-reservation acquisitions and the 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 reservation lands. The new regulations end that practice. Alaskan lands are excluded from the process because tribes and villages there are treated differently than tribes in the rest of the country because of the Alaska Native Claims Settlement Act.
Indian lands in Alaska do not have the same trust status and fall under the authority of regional and village corporations.
"These are serious concerns that must be looked at," Chicks said. "Without proper consideration, problems will continue."
By placing land into trust a tribe regains control over land once owned by the federal government or state and local governments. This 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 boosted tensions, especially on lands not located next to current tribal boundaries.
The effective date of the regulations was delayed by the Bush administration "to ensure that the president's appointees have the opportunity to review any new or pending regulations."
James McDivitt, deputy commissioner of Indian Affairs, indicated the BIA will encourage the new administration to allow the regulations to become effective as published. They will go into effect March 17 unless Interior decides to make changes or get rid of them altogether.