Rep. Tom Cole (R-Oklahoma) is a member of the Chickasaw Nation. Photo: TomColeOK04

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Controversial land-into-trust fix removed from appropriations bill

Tuesday, July 12, 2016

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UPDATE:
At around 5:30pm on Tuesday, Rep. Tom Cole (R-Oklahoma) came to the floor of the House to announce the death of his partial Carcieri fix. After discussions with Republican colleagues, he said he agreed to table the matter. Section 128 has officially been removed from H.R.5538, the fiscal year 2017 Interior appropriations bill.

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ORIGINAL POST:
Indian Country's best shot at fixing the U.S. Supreme Court decision in Carcieri v. Salazar is in danger as debate over a controversial land-into-trust provision moves to the floor of the House.

The powerful House Rules Committee on Monday cleared the path for consideration of H.R.5538, the fiscal year 2017 Interior appropriations bill. Section 128 of the funding measure includes language that would protect land-into-trust applications prior to February 24, 2009.

But the rule that was adopted by the committee allows for a "point of order" to be raised against Section 128. So any lawmaker could seek to have the provision stricken from the bill on the House floor.

That's exactly what Rep. Rob Bishop (R-Utah), the chairman of the House Natural Resources Committee, has signaled he will do. He opposes Section 128 because he says he is drafting legislation that would "fairly address the legal issues raised by the Carcieri decision through the committee process under regular order."

YouTube: Rules Committee Hearing H.R. 4992, 5119, 5631, 5538, 5620

Indian Country hasn't seen such a bill and Bishop has not said when he unveil it. But in the 18 months during which he has served as chairman of Natural Resources, none of the other Carcieri fixes that have been introduced under regular order -- H.R.249, H.R.407, or H.R.3137 -- have been granted a hearing, something that hasn't gone unnoticed.

"To argue that Section 128 should be removed from H.R.5538 on a technicality because the authorizing chairman is, at this late date in the Congress, now drafting secret legislation to fix the problem is simply not good enough," Rep. Raúl M. Grijalva (D-Arizona), the top Democrat on Natural Resources, wrote in a letter on Friday.

Section 128 represents a partial fix to the Carcieri decision. It merely affirms prior land-into-trust decisions, an approach that Congress has embraced in the past in order to protect the status of lands that were never at issue prior to the Supreme Court's February 24, 2009, ruling.

"If I had my way, we would fix this all the way to the current date," Rep. Tom Cole (R-Oklahoma), a member of the Chickasaw Nation who developed the partial fix, said last month.

Section 128 of H.R.5538, the Department of the Interior, Environment, and Related Agencies Appropriations Act, 2017, includes a partial fix to the U.S. Supreme Court's decision in Carcieri v. Salazar.

Cole sits on the Rules Committee but he did not bring up the fix during the lengthy meeting that ran into Monday evening. No one else talked about it or discussed the potential attempts to remove it from the bill either.

H.R.5538 is due for consideration on the House floor as early as Tuesday, according to the Majority Leader's schedule. A final vote could come by the end of the week.

The bill will be considered pursuant to H.Res.820. The resolution and the rule that was approved on Monday allows for a point of order to be raised against the language found on "page 71, line 19, through page 71, line 25" of H.R.5538.

The rule that will be used to consider H.R.5538 allows for a point of order to be raised against the partial Carcieri fix in Section 1128 of the bill.

That language happens to be Section 128, the partial Carcieri fix. 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