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Would That It Be True: Bureau Of Indian Affairs’ Extreme Rubber Stamping For Land Into Trust Applications

Mark Trahant was recently asked to conduct an independent review on a Pepperdine Law Review article on the fee-to-trust process. This is his review.

A couple of years ago Pepperdine Law Review published a student research piece that called the fee-to-trust process found in the Indian Reorganization Act “extreme rubber stamping,” citing a 100 percent approval rate by the Bureau of Indian Affairs.

Anyone who has ever dealt with the complicated maze of trust land knows two things about the article’s premise: First, it’s nonsense. And, second, would that it be true. The BIA has been notoriously slow to process lands into trust status. A decision usually takes years of back and forth documentation between a tribe and the BIA and formal denials are rare because instead the BIA simply returns an application for more information. It’s only during the past six years that the process has speeded up with more than 280,400 acres added as trust lands. The Obama Administration has set a goal of increasing Indian country’s land base by 500,000 acres before it leaves office in January 2017.

The Pepperdine article is an example of how an obscure, anti-Indian thesis influences public policy — even as the premise reflects a serious attack on tribal governments using errors of omission and faulty logic.

“Legally it doesn’t change a thing,” said Matthew L.M. Fletcher, Professor of Law & Director of the Indigenous Law & Policy Center at Michigan State University. “If this article were cited into court, it would get laughed out.” The legal arguments are about the merit of a fee-into-trust application because the law itself is clear. But the article does have political impact.

On May 14, 2015, the U.S. House of Representatives Subcommittee on Indian, Insular and Alaska Native Affairs held a hearing on land into trust and the Republican majority staff memo alluded to the Pepperdine Law Review’s conclusion: “To the Committee’s knowledge, Interior has not declined any application to acquire trust land on the grounds that the tribal applicant was not under federal jurisdiction in 1934.”

RELATED: Rep. Don Young is Leading an Assault on Native Rights

RELATED: Congress: Keep Hands Off IRA Fee-to-Trust Provision!

So the idea of a 100-percent-BIA-approval of land into trust applications is now the story told by critics. Even if it’s not true. In July 2013, for example, the California Association of Counties commented on a proposed rule for decision-making and appeals of trust land acquisitions by citing a “quantitative analysis of 111 fee-to-trust decisions by the Pacific Region BIA Office between 2001 and 2011. The analysis found the BIA granted 100 percent of the proposed acquisition requests … the result is a broken process in which the community concerns are ignored or downplayed, applications are rubber-stamped at a 100 percent acceptance rate, and tribes and local governments are forced into unnecessary and unproductive conflict. The problem appears likely to worsen in the future, given recent statements by the Department (of Interior) trumpeting its desire to ‘keep the freight train moving’ and ‘keep restoring lands for tribes.’”

Let’s be clear about the freight train idea. Congress clearly intended the 1934 Indian Reorganization Act to make it easier for tribes to reacquire land and place that land into trust. The bias is supposed to be in favor of tribes wanting to restore traditional boundaries or use land for economic development. But that’s not the way the law has worked. The BIA and the Interior Department have pending applications that await years, even decades, for resolution. “No one ever says ‘no.’ They just never get to it,” says Professor Fletcher.

In November 2000, California’s Santa Ynez Band of Chumash Indians petitioned the BIA to take 6.9 acres of land adjacent to the reservation and place it in trust. This should have been an easy call. The purpose of the land was a cultural museum, park and retail center. After five years the BIA approved the application. A month later two citizen groups appealed the decision saying that the tribe had no need to add to its land base and the project ought to go forward under state law. The Interior Board of Indian Appeals dismissed the challenge in 2006 ruling that the citizens group did not have legal standing in the matter. So the groups went to U.S. District Court and Judge A. Howard Matz sent the case back to the Interior Board of Indian Appeals for further consideration. In 2009 the case became even more complicated because the Supreme Court ruled that the Interior Department had to prove tribes were under federal jurisdiction at the time of the Indian Reorganization Act’s passage in 1934 in the Carcieri ruling. By 2012 that review was completed in the tribe’s favor and two years later the appeals board finally issued a decision in favor of the tribe on all issues on June 3, 2014. The result is a 14-year, convoluted process that is still on appeal to federal court.

Chumash Territory once stretched over much of Central and Southern California, some 7,000 square miles. Today the reservation totals 137 acres. So expanding the tribe’s permanent homeland for a cultural center is exactly the intent of Congress when it passed the Indian Reorganization Act.

But the opposition has another proposition: Reshape the land into trust process so that states and counties have more of a say, essentially the right to say no forever. What’s lost in that shift is a notion of fairness that incorporates an opportunity for tribes to reacquire and control some of the 90 million acres lost through theft and other shenanigans in the past. This is an important point: If you ask people if Native Americans should be able to buy and control their original homelands an overwhelming majority say absolutely. It’s only politicians who object to that much tribal “power.”

Indeed at the House hearing in Washington, Assistant Secretary – Indian Affairs Kevin K. Washburn thanked Subcommittee Chairman Don Young for his outright hostility to the current land into trust rules and acknowledged a difference of opinion about the goal. “You’ve made plain your concerns about tribal governments,” Washburn said. “And you’ve not hidden your prejudices, and I respect that because although I disagree with you, I’m glad you’re not running from your convictions.”

Young countered that he only wants a clear process. But the hearing memo asks if “the Secretary should have blank check power under a 1934 law to develop all rules and policies for the acquisition of trust land.”

A blank check? Would that it be true. That would mean a lot more land that is returned to tribes — just as Congress once intended.

Mark Trahant recently completed two terms as the Atwood Chair of Journalism at the University of Alaska Anchorage. He was asked by California’s Santa Ynez Band of Chumash Indians to conduct an independent review of the Pepperdine Law Review article, Kelsey J. Waples, Extreme Rubber-Stamping: The Fee-to-Trust Process of the Indian Reorganization Act of 1934, 40 Pepp. L. Rev. Iss. 1 (2013).

This is his first report.