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Senate hearing to tackle land-into-trust process
Tuesday, May 10, 2005

The Senate Indian Affairs Committee will hold an oversight hearing next week on the taking of land into trust, a process that Sen. John McCain (R-Arizona) has identified as a "huge problem."

The hearing is the first in several years to directly address what has long been a controversial topic. During the mid-1990s, some members of Congress spearheaded what have been called anti-Indian proposals, such as threatening to take trust lands away from tribes if they didn't collect state taxes.

Those efforts ultimately failed but with off-reservation gaming proposals on the rise, McCain is using his position as chairman of the committee to focus new attention on the subject. At a hearing last month, he said tribes are acquiring trust lands under questionable circumstances.

"I think this is a huge problem," said McCain at the April 27 hearing.

The House Resources Committee, led by Rep. Richard Pombo (R-California), has been discussing a bill to limit off-reservation casinos. But next week's hearing promises to be more broad in nature.

McCain has already voiced opposition to a Congressional rider that allowed a California tribe to acquire trust lands for an off-reservation casino without obtaining state and federal approval. The language "was put into an appropriations bill -- a bizarre situation to say the least," he said.

The practice is relatively rare although not unheard of. Faced with delays at the Bureau of Indian Affairs, tribes often ask Congress to step in. In most instances, the land is not used for gaming -- either by the tribe's agreement or a stipulation in the law.

But some tribes have been able to get around the BIA's unwieldy process, which can take years and even decades to complete. In Oklahoma, the Chickasaw Nation has been able to avoid lengthy waits by not telling the agency that the land will be used for gaming. Once the land is in trust, the tribe opens up a casino.

This tactic was the subject of a recent investigation by Earl E. Devaney, the Interior Department's Inspector General. He told McCain last month that he has completed an audit that identifies potential failures in the way the BIA and National Indian Gaming Commission handle trust lands for gaming.

"Our recent evaluation of this process found 10 instances in which tribes have converted the use of lands taken into trust after 1988 from non-gaming purposes to gaming purposes without the approval of BIA or NIGC," Devaney said. "Surprisingly, we also learned that neither the BIA or NIGC even had a process for identifying these conversions."

However, the overwhelming majority of tribes and tribal members aren't as fortunate. In addition to the slow-moving BIA, they regularly encounter opposition from state and local governments and political pressure from members of Congress.

"My mother tried to put grazing land into trust," Kurt Luger, the executive director of the Great Plains Indian Gaming Association, recalled at a state governors' conference in March. "It took her 17 years."

Tribal leaders have complained that the land-into-trust process has been essentially put on hold since the start of the Bush administration four years ago. In one of her first actions in the spring of 2001, Interior Secretary Gale Norton delayed new regulations that would have imposed timeframes on the BIA.

Later that year, former assistant secretary Neal McCaleb outright rescinded the regulations. A year later, he pulled back another set of rules affecting state and local input into the land-into-trust process. He didn't consult with tribes prior to the decision and the administration has yet to restart government-to-government talks.

Litigation is also a big issue, with two cases currently proceeding in different parts of the nation. State officials in Rhode Island and South Dakota have launched separate challenges to the BIA's authority to acquire trust lands. Both cases are at the appeals court level.

All of this adds up to what some say is an increasingly negative atmosphere for tribal affairs. Cynthia J. Abrams, a member of the Seneca Nation of New York and a reverend of the United Methodist Church, said at a recent House hearing that the church has noticed an increase in anti-Indian sentiments and an "anti-sovereignty climate" throughout the nation.

"We have a hostile presidency and administration," Frank Ducheneaux, a member of the Cheyenne River Sioux Tribe of South Dakota who worked in the House for nearly 20 years, at an Indian law conference last month. "We have a hostile Congress."

The land-into-trust hearing takes place May 18 at 9:30am. The witness list has not been made public.

Relevant Links:
NIGC Indian Land Determinations - http://www.nigc.gov/nigc/nigcControl?option=LAND_DETERMINATIONS
Land into Trust, National Congress of American Indians - http://www.ncai.org/main/pages/issues/
governance/land_into_trust.asp