Rep. Rob Bishop (R-Utah) serves as chairman of the House Natural Resources Committee. The committee has jurisdiction over Indian issues. Photo from Facebook

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Battle erupts over partial land-into-trust fix in appropriations bill

Monday, July 11, 2016

Republicans are leading efforts to kill what might be Indian Country's best hope at fixing the U.S. Supreme Court decision in Carcieri v. Salazar.

The fiscal year 2017 Interior appropriations bill includes a provision that would help tribes whose land-into-trust applications were approved prior to the high court's February 24, 2009, decision. Rep. Tom Cole (R-Oklahoma), a member of the Chickasaw Nation, said he developed the partial solution after working with key Republican colleagues.

Yet one of those colleagues claims he was broadsided by the effort. Rep. Rob Bishop (R-Utah), the chairman of the House Natural Resources Committee, said he was "dismayed" by the amendment's appearance in the bill, which is scheduled to move forward in the House this week.

In a letter to the House Rules Committee, Bishop is seeking special consideration to strike the language from the bill. His request -- which he acknowledged was unusual -- came after another Republican lawmaker's bid to do the same was deemed late by the powerful panel.

"I appreciate that this is a drastic measure and regret very much that I need to resort to this process," Bishop told the Rules Committee on Friday.

Rep. Raúl M. Grijalva (D-Arizona), the top Democrat on the Natural Resources Committee, pushed back on the effort that same day. He said the language, even though it would not fully address the Supreme Court's ruling, was necessary due to Congressional inaction.

"As noted, Carcieri was decided in 2009," Grijalva wrote on Friday. "The Natural Resources Committee has had 7 years to address this problem, including the last 18 months during which Mr. Bishop has been our chairman, and has failed to act."

Key Republicans do support a Carcieri fix. But Rep. Don Young (R-Alaska) has told tribal leaders on more than one occasion that his party's leaders have prevented him from considering such legislation even though he serves as the chairman of the House Subcommittee on Indian and Alaska Native Affairs.

"There has to be a meeting with minds to solve a problem," Young told the National Congress of American Indians in February.

Members of the Rules Committee are meeting on Monday afternoon to consider H.R.5538, the funding package that includes the partial Carcieri fix. Their work is necessary before the bill can be brought to the House floor, something that could begin as early as Tuesday, according to the Majority Leader's schedule.

The Tunica-Biloxi Tribe hosted Rep. Charles Boustany (R-Louisiana) at the Paragon Casino Resort in March 2016. Clockwise, from left: council member Harold Pierite, Sr., Congressman Boustany, Chairman Joey P. Barbry and Vice Chairman Marshall R. Sampson, Sr. Photo courtesy Tunica-Biloxi Tribe

The committee had set a deadline of July 7 for all amendments to the bill. Rep. Charles Boustany (R-Louisiana) submitted one to strike the Carcieri provision but it was deemed too late for consideration.

Boustany, who is running for an open seat in the Senate, does not have much of a record on Indian issues. But he is a co-sponsor of H.R.249, one of three versions of a more complete Carcieri fix.

"Dr. Boustany has been a good friend to the Tunica-Biloxi Tribe of Louisiana and Native America in general," Chairman Joey P. Barbry of the Tunica-Biloxi Tribe said after he and other leaders hosted the lawmaker on their reservation in March.

H.R.249 happens to be sponsored by Cole, who is one of only two members of a federally-recognized tribe in Congress. Since his bill hasn't been brought up for hearing, he turned to the House Appropriations Committee for assistance.

"If I had my way, we would fix this all the way to the current date," Cole said last month before the committee agreed to include his partial fix in the funding bill.

Congress embraced a similar approach with the passage of S.1603, the Gun Lake Trust Land Reaffirmation Act, in 2014. The new law ended a lawsuit that kept the Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians from Michigan and the federal government in court for years.

The reafirmation angle is far less controversial than a "clean" or simple fix. But it does not resolve the underlying issue in the Carcieri case -- whether the Bureau of Indian Affairs can place land into trust for all tribes, regardless of the date of federal recognition.

The partial fix also does not help tribes whose land-into-trust applications were approved after the Supreme Court's February 2009 decision. So it would not protect the Cowlitz Tribe of Washington and the Mashpee Wampanoag Tribe of Massachusetts from ongoing litigation if it becomes law.

"By only going up to those lands prior to February 24, 2009, we -- with the best of intentions -- would be creating further division that declares trust lands before a certain date are to be respected and others are left to be questioned," Rep. Betty McCollum (D-Minnesota), who co-chairs the Congressional Native American Caucus with Cole, said last month.

McCollum is a co-sponsor of H.R.249 and of H.R.3137, another fix that was introduced by Cole. She's also introduced H.R.407, yet another version, but none have been given a hearing in the House.

There hasn't been much success in the other chamber either. The Senate Committee on Indian Affairs has approved S.1879, the Interior Improvement Act, but the bill remains controversial because it addresses state and local government participation in the land-into-trust process.

Two more straightforward fixes -- S.1931 and S.732 -- have not advanced to the Senate floor.

The partial Carcieri fix is found in Section 128 of H.R.5538. It reads:

Trust Land.—All land taken into trust by the United States under or pursuant to the Act of June 18, 1934 (25 U.S.C. 465) before February 24, 2009, for the benefit of an Indian tribe that was federally recognized on the date that the land was taken into trust is hereby reaffirmed as trust land.

Department of the Interior, Environment, and Related Agencies Appropriations Act, 2017, Documents:
H.R.5538 on Congress.gov | H. Rept. 114-632

House Appropriations Committee Documents:
Press Release | PDF: Full Draft