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Waiting for a quick fix

ARLINGTON, Va. – The final BIA tribal consultation involving the infamous Carcieri v. Salazar Supreme Court decision has been held. Tribal leaders are now waiting for quick and appropriate action from an agency that many have long had a difficult time trusting.

At the third of three planned consultation sessions held nationwide, officials with the Department of the Interior presented several options that the agency could pursue in response to the high court’s February decision. The controversial ruling says the BIA cannot put land into trust for any tribe that is not recognized by the Indian Reorganization Act of 1934.

George Skibine, the acting principal deputy assistant secretary of Indian affairs with the department, highlighted the options on the Interior’s table, which include asking Congress to amend the IRA in a way that would retroactively, prospectively, or both, change language in the law to protect lands acquired in trust by the BIA.

Skibine said beyond a legislative fix, the department could also consider amending its own regulations to better define what is meant by “under federal jurisdiction.”

Among the many tribal leaders who attended and spoke at the meeting, the most popular option was to request a fix from Congress that would both retrospectively and prospectively resolve the matter. Such a fix would make the language in the act clear that it is talking about all tribes – not just those that received special attention from the U.S. government in 1934.

Based on transcripts from the other consultations, held in Minnesota and California, that option also appeared to be the most popular.

Several times, tribal leaders who spoke at the Arlington meeting expressed concern that department officials would not say what option they are leaning to support.

Some tribal leaders had attended all three consultations and couldn’t believe officials hadn’t already begun to form an opinion.

Brian Patterson, president of the United South and Eastern Tribes, was one who said he believed the BIA may have already come to a decision.

“Before any decision is released, tribal leaders need dialogue,” Patterson cautioned.

Department officials seemed amenable, but noted that further consultation with the many tribes across the nation could slow down a process that many want to move quickly.

Some tribal officials said the new BIA chief Larry EchoHawk, of the Pawnee Nation of Oklahoma, has said he will make a recommendation to Interior Secretary Ken Salazar in short order, so they believe he must be leaning toward one option over another.

But Hilary Tompkins, the newly-confirmed solicitor of the department, said that was the wrong way to look at the situation. The Navajo lawyer said the department felt it was important to hold tribal consultations before forming any opinions.

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“I don’t believe we have a preference [on the options],” Tompkins said.

While officials wouldn’t say whether they were leaning toward one preference over another, they did make some of their policies clear:

• They are continuing to process fee-to-trust applications.

• They are not compiling a list of post-1934 federally-recognized tribes, although they had considered it.

• They are moving forward with pending trust applications.

Skibine also made a special comment when questioned by Earl J. Barbry, chairman of the Tunica-Biloxi Tribe of Louisiana, saying the department will defend all current tribal lands in trust, no matter what.

“We stand to defend the rights of the tribes to have those lands in trust,” Skibine said.

Tompkins added a clarification to what the department might do, saying at one point, “We would not endorse a policy that is discriminatory [toward any tribe].”

After hearing from several tribal leaders during the meeting, EchoHawk said the timeframe is “pressing” for this matter to move forward, but he said any BIA decision would not signify the end of tribal consultation.

EchoHawk reported that Salazar wants a quick fix, likely via a legislative route, especially given Salazar’s recent role as a U.S. senator.

“We feel the time pressure,” EchoHawk added.

Officials with the department and Senate officials in attendance said even given a smooth road after a route is chosen, and sans much disagreement between tribes, it would still likely take until fall for the Congress to move on a legislative fix.

And then it’s anticipated that states and localities will begin to weigh in on the matter with their various congressional allies.