Trump Official Provides Insight Into the Administration's Stance on Land-Into-Trust Acquisitions and Its Interpretation of the IRA

by Faegre Baker Daniels

Faegre Baker Daniels

The Subcommittee on Indian, Insular and Alaska Native Affairs held a July 13 hearing to compare 21st century trust land acquisition practices with the intent of the 73rd Congress in Section 5 of the Indian Reorganization Act (IRA), which is now codified at 25 U.S.C. § 5108. The hearing encompassed a number of topics regarding land-into-trust decisions, including on-reservation and off-reservation tribal land acquisition, state and local government’s role in such decisions, and the Department of Interior’s (DOI) current — but potentially evolving — interpretation of “under federal jurisdiction” as written in the IRA.

The Subcommittee invited four people to testify at the hearing, including Acting Deputy Secretary of the Interior Jim Cason. Cason’s role as associate deputy secretary of the DOI during the Bush administration became a topic of interest in the hearing, as Rep. Norma Torres, D-CA, said that tribes felt there was a de facto moratorium on all land-into-trust acquisitions in Cason’s previous tenure with the DOI.

In an April 6, 2017 memorandum, the DOI announced that “delegated authority for off-reservation land-into-trust decisions for gaming will lie with the Acting Deputy Secretary for the Department of Interior”—once again giving Cason the power to potentially blockade tribal land acquisitions. When the Subcommittee expressed tribal concern about delegating Cason so much power given his track record, Cason said that his prior policy was merely a response to Cobell v. Salazar, a massive lawsuit against the United States concerning mismanagement of tribal trust assets. He said it “didn’t make a whole lot of sense to say, ‘yes, I want to take more land,’ when all of you are suing me for how I didn’t take care of the land I have.” Cason assured the Subcomittee that, because Cobell has been settled and is no longer a major issue, the DOI “will take a look at land-into-trust applications.”

Cason showed some support for on-reservation tribal land acquisition, but limited support for off-reservation tribal land acquisition. He told the Subcommittee that while on-reservation trust acquisitions are important for tribes, “taking off-reservation lands into trust may pose complications for [the DOI]” and for state and local governments. He “encouraged” the Subcommittee to examine how the DOI implements its off-reservation land acquisition regulations and let the DOI know the Subcommittee’s thoughts.

After Cason mentioned state and local governments, Rep. Raúl Grijalva, D-AZ, asked Cason if he thinks state and local governments should have veto power over tribal land-into-trust applications — to which Cason responded in the affirmative. Under current regulations, state and local governments may only submit comments for the DOI to consider when determining whether to approve a land-into-trust application. A veto power would substantially increase the amount of leverage, power, and control state and local governments have over the land-into-trust process — a process and relationship that many of the pro-tribal voices at the hearing insisted should involve only the tribes and the federal government.

The Subcommittee also sought Cason’s view on M-37029 — the Solicitor opinion authored by former DOI Solicitor Hilary Tompkins that interpreted the phrase “under federal jurisdiction” as used in Section 5 of the IRA. The opinion currently governs the DOI's analysis of whether a tribe was under federal jurisdiction in 1934. Courts have accepted the opinion’s analysis and given the DOI's analysis, which it used to decide whether the Cowlitz Indian Tribe could have land taken into trust for its benefit under Section 5 of the IRA, Chevron deference. Cason said the DOI has concerns about the opinion, because its criteria are “loose” and “wide,” and the opinion “doesn’t respond very particularly to the [Carcieri] decision.” Although he said that the opinion will remain the official position of the DOI for now, he said the DOI is “taking a look at firming [the opinion] up a little bit differently to be more clear.”

The Subcommittee also discussed a “clean” Carcieri fix throughout the hearing, which would change “any recognized Indian tribe now under federal jurisdiction” in Section 5 of the IRA to “any federally recognized Indian tribe.” This fix would remove the need to determine whether a tribe was under federal jurisdiction in 1934 and open up the benefits of Section 5 to all federally recognized tribes. Rep. Tom Cole, R-OK, has proposed a bill, H.R. 130, to implement such a fix. Cason refused to take a stance on whether Congress should pass the bill even when asked directly. He admitted only that a clean fix would make his job easier and told the Subcommittee that he does not “have a specific ask for Congress” right now.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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