Cason explains misgivings on land-into-trust

Friday, April 20, 2007  

For the past few years, tribal leaders have complained of an unofficial moratorium on land-into-trust applications.

Interior Department officials have repeatedly denied it. They point to at least a dozen requests that have been approved since the start of the Bush administration.

And with new leader in office, the Bureau of Indian Affairs appears to be changing course. Assistant secretary Carl Artman, a member of the Oneida Nation of Wisconsin, said he wants to reduce the "unacceptable" backlog of applications, some of which date back several years.

But then every now and then, Indian Country hears a conflicting view. Another one came yesterday at the Federal Bar Association's annual Indian law conference in Albuquerque, New Mexico.

Before a crowd of several hundred attorneys, law students and tribal representatives, Jim Cason, the associate deputy secretary at Interior, flatly said the department doesn't want to approve any new applications.

Why? Because Indian Country is sending the wrong "message" to Interior, he said. Through litigation and public criticism, the department is being told that it isn't living up to its trust obligations.

"We have this message issue," Cason said during a panel on trust reform, "that what I have in my care right now I'm doing a bad job, but at the same time you want me to take more to manage."

"Why do I want to do that until I fix the underlying problems that cause you to sue me and say I'm doing a bad job?" he asked.

Beyond that policy concern, the department faces an issue of resources. The BIA doesn't have enough staff to reduce the land-into-trust backlog -- which Cason put at 2,000 applications -- because he said litigation has shifted the focus to issues like historical accounting and probate.

The comments, along with the overall tenor of the speech, drew a heated response from Steve Emery, a member of the Cheyenne River Sioux Tribe of South Dakota. He blasted Cason, a non-Indian political appointee who ran the BIA for nearly two years, for blaming the government's failures on Indian people.

"We'd like to know why the victims have to pay for their own remedy," said Emery, an attorney.

Sally Willett, a former probate judge for the department, also took issue with Cason's tone. She said the Bush administration has failed at trust reform, and that a recent offer to dramatically alter the government's trust relationship for $7 billion was an insult.

"You deliver the termination message with such smooth and elegant [language] that one could almost believe what you say," said Willett, a member of the Cherokee Nation of Oklahoma who advocates for individual landowners through the Indian Land Working Group. "But the problem is, we on the Indian side don't believe what you believe."

Richard Monette, a law professor at the University of Wisconsin and former chairman of the Turtle Mountain Band of Chippewa Indians in North Dakota, agreed with some of the complaints. "They are miserably mismanaging a private property system," he said. "They have shown no indications that they are going to get any better at it."

But he said the department has some valid points in seeking some form of change the trust relationship. "Do we really think that if the BIA turns over the management of private property in Indian Country to tribes, that somehow is termination?" he asked.

This isn't the first time Cason has raised eyebrows for his comments about land-into-trust. At the recent National Congress of American Indians winter session in Washington, he seemed to suggest there were no standards to judge off-reservation gaming applications.

"Depending on how you feel that morning, you could say yes to all of them or no to all of them," he said.

When asked about those remarks in an interview last week, Artman said Cason was only pointing out that the department, under federal law, retains broad discretion on land-into-trust. Artman also put the backlog at 1,300 applications, far fewer than Cason's figure, but high nonetheless.

In December, Cason wrote a letter to the St. Regis Mohawk Tribe of New York that urged its leaders to weigh the political, legal and financial risks associated with off-reservation casinos. Artman discounted the notion that the department was trying to tell tribes to drop their applications.

"I'm not going to interpret that letter," Artman said in the interview. "It was a clear statement of fact, nothing more."

Of the thousand-plus pending applications, only a handful -- less than 60 -- involve gaming or are related to gaming. The overwhelming majority are for economic development, government, cultural, agriculture and other purposes.

"It's the tribe helping itself in those areas. It's the tribe expanding into those areas with greater assurance because it knows its land is being protected under the trust rubric," said Artman, who was unable to attend the law conference due to his public swearing-in ceremony on Wednesday.

The Federal Bar conference concludes today.

Relevant Links:
Interior Department - http://www.doi.gov
Federal Bar Association - http://www.fedbar.org
Indian Land Working Group - http://www.ilwg.org