Michael J. Anderson and Elizabeth L. Homer

The time has come
A fact’s a fact
It belongs to them
Let’s give it back
- “Beds are Burning” (1987) by Midnight Oil

The international hit “Beds are Burning” by the Australian band Midnight Oil recognizes that at a certain time in a country’s history, a realization must occur that Indigenous lands stolen by colonizers should be restored to its First Peoples.

President Roosevelt’s New Deal acknowledged this in the 1934 Indian Reorganization Act, which continues as the foundation of the current land restoration process. The promise of the Indian Reorganization Act, however, has never been fully realized. The primary impediment for decades has been the cost of the land itself since the Indian Reorganization Act did not provide for a land restoration fund or even a loan program for cash-strapped Indian tribes.

As tribal economies have improved in recent years, the ability of tribal governments to purchase lands also improved. Ironically, however, over the last four years, the Department of the Interior under the Trump Administration enacted, even more, bureaucratic and legal barriers to homeland capacity building, slowing an already slow process even more and dramatically increasing the cost.

This opinion-editorial recommends five things the Biden Administration’s Department of Interior could do to reverse these barriers and foster land restoration.

The process for placing land into trust for American Indian tribes is set forth in Title 25 of the United States Code and the regulations at 25 C.F.R. Part 151. Acceptance of title by the United States for Indian tribes ensures legal protection of the trust title by rendering the land inalienable and, most importantly, subject to the governmental jurisdiction and authority of the tribal government.

Other benefits include tribal eligibility for certain federal grants, sacred sites protection, federal environmental and economic development aid, eligibility for gaming activities under certain circumstances, and establishment of a developable land base for a broad array of purposes from housing to agriculture to commercial development to cultural resources preservation and more.

Recognizing the urgent need for tribal land acquisition to address social, economic, and cultural needs in Indian Country, the Obama Administration was explicit in announcing a goal of accepting 500,000 acres of land in trust during its Administration; a goal that was achieved.

In contrast, the Trump Administration actively put the brakes on the fee-to-trust process by introducing five barriers that urgently need reversal.

We offer the following recommendations for removing these unfair barriers to a sustainable land base for American Indian and Alaska Native tribal governments:

Authorize and initiate placing land in trust for Alaska Native tribal governments

On January 17, 2017, in the waning days of the Obama Administration, the Solicitor issued an Opinion (M-37043) authorizing the acceptance of land in trust in Alaska. Land in trust was generally not an accepted process in Alaska at that time and the Opinion followed the DC Circuit court decision in Akiachak Native Cmty. v. Jewell, 827 F.3d 100 (D.C. Cir. 2016), which authorized land in trust under Interior’s regulations, thereby voiding the so-called “Alaska exception” to the regulations.

On June 29, 2018, the Trump Solicitor’s office withdrew the Obama opinion on the grounds that it was flawed and that a regulatory notice and comment process should be initiated. Cleverly, or more likely maliciously, the Trump Administration never completed its notice and comment process and left this issue hanging until the bitter end of the Administration when, on January 19, 2021, the day before President Biden’s inauguration, the Trump Administration through the Interior Solicitor, issued an eleventh-hour opinion (M-37064), permanently withdrawing the Obama Era M opinion.

We urge the Biden Administration’s Interior Department team to reissue the 2017 opinion and initiate the placement of land in trust for Alaska Native tribal governments. The time has long passed since Alaska Native tribes achieved status as federally-recognized tribal governments in 1993 during the Clinton Administration. Justice delayed is justice denied and Alaska Native tribal governments have been denied their sovereign right to a homeland for far too long.

A final rule explicitly extending the same right to seek land in trust as all other tribal governments should be given high priority early in the Administration.

Withdraw National Policy Memorandum Trus-36-A1

On May 31, 2018, the Assistant Secretary for Indian Affairs issued a National Policy Memorandum that directed all BIA Regional Directors to send all approved land in trust applications – even for non-gaming acquisitions – to Interior headquarters in Washington,

D.C. for clearance. This NPRM was renewed in 2019 and was not withdrawn in 2020. Predictably, and likely, purposely, the flooding of approved fee-to-trust applications in D.C. created a log jam resulting in 2-3-year delays for simple, routine, and noncontroversial applications which have been “already approved” at the Bureau’s regional level. Now is the time to withdraw this needless bureaucratic hurdle.

Reinstate Solicitor Opinion M-37029, the “Carcieri” opinion

In 2014, the Interior Solicitor in the Obama Administration issued an opinion interpreting the United States Supreme Court decision in Carcieri v. Salazar, 555 U.S. 379 (2009), giving guidance to the Court’s requirement that a tribe be “under federal jurisdiction” in 1935 when the IRA was passed for the Interior Secretary to have authority to take land in trust for a tribe.

The analysis in this opinion was later upheld by several federal district and circuit courts. In another example of the Trump Administration’s unwillingness to take yes for an answer when it came to Indian tribes, the opinion was withdrawn in 2020 by Trump’s Interior Solicitor in opinion M-37055.

That opinion narrowed the scope of permissible activities and events that would indicate a tribe was “under federal jurisdiction” in 1935. It is an opinion that should be revoked and the Obama opinion restored.

Continue funding the Fractionated Heirship Land Buy-Back Program

The Secretary of Interior established the Land Buy-Back Program as part of the Cobell settlement to provide $ 1.9 billion to purchase fractionated interests in trust or restricted fee land from willing sellers. It ends in November 2022. At the start of the Program in 2012, there were approximately 150 reservations with 2.9 million purchasable fractional interests owned by approximately 243,000 individuals. While the Program has been successful in many locations, its work cannot possibly be completed by 2022 given the Trump Administration’s lethargic implementation of the program. Now is the time for the Department to recommit its efforts in fulfilling this commitment to Indian Country by extending this critically important effort.

Create a fund to purchase land for Indian tribes without a land base

Shockingly, in 2021, there are dozens of Indian tribes from Virginia to California with no land base or a very limited land base. No tribal nation can develop and prosper without a homeland.

President Biden has talked about reparations for Indian tribes particularly for the loss of land. One place to start would be to make it a priority to assist landless tribes who have been left with no land base due to deliberate U.S. policy, forced removal, or tragic accidents of history. Landless people are endangered people. We respectfully urge the Biden Administration to begin here in righting historical wrongs.

ICT Phone Logo

Michael J. Anderson, a member of the Muscogee Creek Nation and former Acting Assistant Secretary for Indian Affairs during the Clinton Administration now serves clients of Anderson Indian Law, a DC-based law firm. He can be reached at manderson@andersonindianlaw.com.

Elizabeth L. Homer, a member of the Osage Nation and former Vice-Chair of the National Indian Gaming Commission, now serves clients of Homer Law Chartered, a DC-based law firm. She can be reached at ehomer@homerlaw.com