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Tribes face uncertainty on land-into-trust as Obama era comes to a close

Wednesday, September 21, 2016

In January 2016, the Bureau of Indian Affairs placed nearly 90,000 acres in trust for Isleta Pueblo in New Mexico in what is the largest single trust land acquisition in history. Interior Secretary Sally Jewell and Isleta Pueblo Gov. Eddie Paul Torres Sr. are seen signing the documents for the acquisition. Photo by U.S. Department of the Interior

As the Obama era comes to a close, the Bureau of Indian Affairs has just four more months to reach its goal of placing 500,000 acres in trust.

The agency certainly appears to be within striking distance. As of the beginning of this week, 428,889 acres have been placed in trust since President Barack Obama came on board in January 2009.

"We've acted on more 2,000 applications during the course of this administration," Larry Roberts, the de factor leader of the BIA, told the Senate Committee on Indian Affairs last Wednesday.

That marks a dramatic turnaround from the Bush era, when the land-into-trust process all but ground to a halt amid controversy over gaming and conflicts with local governments. But as Roberts and tribal leaders have repeatedly noted, the overwhelming majority of applications aren't in any way connected to casinos.

"This administration has made it a priority to help tribes restore our homelands," said Ron Allen, the treasurer of the National Congress of American Indians, citing housing, law enforcement, education and economic development as top priorities for tribes.

But with a new president due in the White House on January 20, 2017, Indian Country is facing some big unknowns. While Hillary Clinton, the Democrat nominee, has vowed to maintain the gains seen during the Obama years, Republican Donald Trump has remained silent. His party's platform doesn't mention anything about restoring trust lands either.

Indianz.Com SoundCloud: Senate Committee on Indian Affairs Legislative Hearing September 14, 2016

The uncertainty has tribes pushing for passage of S.2636, the Reservation Land Consolidation Act. The bill requires the BIA to approve land-into-trust applications for property within or contiguous to the boundaries of an existing reservation. Such "mandatory acquisitions" would speed up the process considerably, regardless of who is in charge of the Department of the Interior.

"Currently, Interior has to go through 16 steps -- 16 steps -- just to take a parcel into trust," Sen. Jon Tester (D-Montana), the vice chairman of the committee and the sponsor of the bill, said at the hearing on his bill last week.

According to Roberts, the BIA has a land-into-trust backlog "just shy" of 1,200 applications. Of those, about 950 are for on-reservation parcels, he said, so enactment of S.2636 would streamline the process and help the agency to focus its limited resources on other priorities.

"With 1,200 hanging out there in the balance, you're looking at years to clear that," Roberts told the committee.

"Even the simplest application," Roberts added, "right now, under our current process, it takes about a year to get through."

Despite the seemingly laudable goals of the Reservation Land Consolidation Act, Republicans on the committee are against it. Sen. John Barrasso (R-Wyoming), the chairman of the panel, said the bill could lead to litigation, undermine public confidence and even pit tribes against each other.

President Barack Obama at the White House Tribal Nations Conference on November 5, 2015. Photo by U.S. Department of the Interior

"For example, in my home state of Wyoming, this bill could have a detrimental impact on the Wind River Indian Reservation, where two tribes share a land base," Barrasso said.

As the home of the Eastern Shoshone Tribe and the Northern Arapaho Tribe, Wind River is unique in Indian Country. Although the reservation was initially set aside for the Shoshones, the Arapahos share an "undivided" interest in the land and its assets, a situation that would not change if S.2636 became law.

Sen. James Lankford (R-Oklahoma), a first-term member of Congress, also opposes the bill. He described Oklahoma as a "non-reservation" state and said mandatory land-into-trust acquisitions could prove disruptive to local and state governments.

"In its current form, I couldn't support it," Lankford said last week.

Oklahoma is unique because some parcels of land are owned by more than one tribe, which has led to protracted disputes. But Roberts said the BIA would still be required to follow existing acts of Congress in those types of situations.

"I don't see your bill as changing that," Roberts told Tester.

A different dispute has arisen between the Cherokee Nation and the United Keetoowah Band of Cherokee Indians. The Cherokees assert they are the only government with an interest in the historic Cherokee Reservation and filed a lawsuit in 2012 to prevent the Keetoowahs from acquiring trust land within that former reservation.

Although attorneys for the tribes and the BIA submitted proposed findings of fact and conclusions of law two years ago this month, a decision has not been issued, according to a review of records from the federal court for the Northern District of Oklahoma.

The disagreement over S.2636 speaks to a larger debate about reforming the land-into-trust process in the wake of the U.S. Supreme Court decision in Carcieri v. Salazar. While tribes and the Obama administration argue for a simple or "clean" fix to clear up uncertainties created by the ruling, Republicans and some Democrats have insisted on addressing other issues, such as public participation, concerns of local governments and, yes, even casinos.

Gaming is the "elephant in the room," Rep. Rob Bishop (R-Utah), the chairman of the House Natural Resources Committee, said earlier this month when opposing the inclusion of a limited land-into-trust fix into an unrelated federal recognition bill.

Other partial Carcieri fixes have generated significant controversy as Congress has failed to ensure that all tribes, regardless of the date of federal recognition, can follow the land-into-trust process.

The lack of a Carcieri fix hangs over Indian County and the Obama administration as they prepare for the eighth and possibly final White House Tribal Nations Conference. The two-day event takes place in Washington, D.C., on Monday and Tuesday, with Obama expected to speak to tribal leaders on Monday.

"What I can tell you is, is that we have actually restored more rights among Native Americans to their ancestral lands, sacred sites, waters, hunting grounds. We have done a lot more work on that over the last eight years than we had in the previous 20, 30 years," Obama said earlier this month when he was asked about the #NoDAPL movement during a forum overseas.

"And this is something that I hope will continue as we go forward," Obama added.