The American Indian Empowerment Act is going nowhere in Congress, but its sponsor, Rep. Don Young (R-Alaska), is still fighting for a plan that would upend the current federal-tribal trust status quo, and put tribes in control.
Young’s legislation would allow tribal nations to request from the Secretary of the U.S. Department of the Interior that tribal land be taken out of trust status and conveyed directly to them. Interior currently holds approximately 56 million acres of lands in trust for tribes and Indians, and in many circumstances the department gets to decide if a tribe’s plans for how to use that land are appropriate.
Young’s bill would convert federal trust lands to what’s known as a “restricted fee tribal land status.” This means the land would be protected against alienation and taxation. And the legislation would still ensure that lands retain their Indian country status, including the ability of Native nations to pass tribal laws on the land and conduct other related business.
It’s a bold proposal, one that would fulfill some major tenets of the U.N. Declaration on the Rights of Indigenous Peoples that call for Native empowerment on land and resource ownership. Problem is, few members of Congress support the bill, and Interior Department officials are lining up against it. Even some tribal leaders are worried about the possible ramifications.
In early February,the Subcommittee on Indian and Alaska Native Affairs chaired by Young held a legislative hearing on the bill. In his opening statement, Young said, “One often thinks of a ‘trust’ as a sacred duty to do what’s in the best interest of the beneficiary. But the term ‘trust’ means something different in the context of federal Indian land. When Indian land is held in trust by the Department of the Interior, legal title to the land is effectively owned by the federal government. Nothing can occur on trust lands without the permission of Washington, D.C. In practice, on some reservations nothing does occur… [the] detailed, sprawling rules for the use of trust lands are designed not for maximum benefit to a tribe, but for minimum risk to the taxpayer.”
Young said he wants to move federal policy “in a completely new direction” by allowing a tribe, at its sole discretion, to take its lands out of federal trust, and to pass tribal laws governing them.
In his written testimony to the subcommittee, Donald Laverdure, principal deputy assistant secretary for Indian affairs at the U.S. Department of the Interior, warned that the legislation could lead to “confusion” for tribes. “There are critical ambiguities that must be addressed... ”
One of the ambiguities Laverdure highlighted was that the bill does not clarify that once land is converted from trust to restricted fee whether there would be a mechanism to convert the land back into trust status if the tribe so desires.
Laverdure pointed to H.R. 205, the Helping Expedite and Advance Responsible Tribal Homeownership Act (HEARTH Act) as a model for Young to consider. Currently being considered in Congress, that legislation would restore tribal authority to govern leasing on tribal lands and to modify regulations for the governance of those leases, while making it possible for the Secretary of the Interior to carry out the trust responsibility to tribes. “This model ensures that tribal regulations provide a mechanism for environmental review and public comment, exempting the Secretary for liability from claims by parties to the lease, and authorizing the Secretary to cancel a lease that is not in accordance with approved tribal regulations,” he said. In a nutshell: the bill allows Interior to maintain quite a bit of control.
Robert Odawi Porter, president of the Seneca Nation of Indians, presented a more favorable view of the legislation, saying that it would provide Indian tribal governments with greater control and flexibility over some or all of their lands. “It would do this by enabling Indian nations and tribes to voluntarily convert some or all their existing tribal lands from tribal trust lands held by the United States to tribal restricted fee status held by the tribal government and thereby enjoy the enhanced flexibility that attaches to restricted fee land holdings,” Porter testified. “That flexibility should produce great savings in time and cost that otherwise would burden development on tribal trust land.”
Porter said the bill would eliminate the cumbersome and expensive federal review and approval process, and it would clarify that land use law adopted by the Indian tribe preempts all law, including federal, with respect to development and use of the lands. “In other words, if an Indian nation chooses to enact its own laws governing its own lands it holds in restricted fee, those are the only laws that apply,” he testified, adding that the legislation would remove the obstacles to economic development that are inherent in the federal trusteeship.
Robert Coulter, executive director of the Indian Law Resource Center, testified that the legislation would make it possible for Indian nations to have greater legal certainty about the status of their lands and resources, would remove a number of unfair and obsolete barriers to Indian nations’ management and use of their lands, and would provide explicit legal protections against taxation by state and local governments and against alienation without approval of the federal government.
Not all tribal leaders are totally supportive of Young’s bill. W. Ron Allen, chairman of the Jamestown S’kallum Tribe and treasurer of the National Congress of American Indians, said in written testimony that he is concerned about potential legal challenges and court interpretations “to this broadened scope of tribal jurisdiction that might end up impeding rather than helping expand tribal self-governance and lead to more federal oversight.”
Allen noted that past court decisions have tied the scope and nature of the United States’ trust responsibility to how much management, regulatory and other control federal agencies have over tribal trust assets. “We are concerned that any legislation of this nature be drafted carefully so that it does not undermine the duty of the federal government to protect tribal assets and defend tribes’ sovereignty and jurisdiction.”
He urged Young “to reach out more broadly to tribal leadership throughout the country so that the bill can be discussed fully.”
In response, Young said he views this bill as a starting point and wants tribes to analyze and discuss it with him and his staff. “If there is any confusion on this bill or what the effect of this legislation would be, Congressman Young looks forward to clearing up any such confusion during future hearings and through tribal consultation,” his spokesman, Luke Miller says. “Congressman Young’s goal with this legislation is to return power back to the tribes and allow them to have more discretion over their lands. Regardless of what the Department of Interior says, Congressman Young will not change this part of the legislation, because for far too long the federal government has stood in the way of tribal empowerment.”