In 1911, during the height of the allotment era, the U.S. Department of the Interior was promoting "Indian Land For Sale" under then-Secretary Walter L. Fisher and Robert G. Valentine, the Commissioner of Indian Affairs. The allotment policy was repudiated by Congress in 1934 through the Indian Reorganization Act. Fisher coincidentally died the following year.
Law | National | Politics | Trust

Indian Country outnumbered at hearing on Indian Reorganization Act

It was another day for another troubling hearing on Indian issues on Capitol Hill.

Accusations flew as the House Committee on Natural Resources took a second look at the land-into-trust process on Thursday morning. The biggest reveal was that Republican leaders once again failed to invite an actual tribal leader to talk about one of the most important issues in Indian Country.

Democrats on the committee were only allowed to pick one witness. And that's how Kirk Francis, the president of the United South and Eastern Tribes and the chief of the Penobscot Nation, ended up being outnumbered on the panel.

"Some of the testimony here today not only lacks facts but is also dangerous," Francis said, surprising almost no one who was watching.

The "dangerous" part was aimed largely at an attorney whose work has earned him comparisons to the Ku Klux Klan by Native leaders in Alaska. Although Donald Mitchell repeatedly said he wasn't offering "policy views" about land, sovereignty and other matters, he managed to irk Democrats and Republicans alike by suggesting that some tribes lack legitimacy because they were "created" by the federal government.

"Government doesn't create a tribe," offered Rep. Doug LaMalfa (R-California), who chairs the House Subcommittee on Indian, Insular and Alaska Native Affairs. "God, our Creator, creates things. We shuffle paper."

Indianz.Com on SoundCloud: Oversight Hearing "Comparing 21st Century Trust Land Acquisition with the Intent of the 73rd Congress in Section 5 of the Indian Reorganization Act"

And "facts" also seemed to go out of the window as a mayor from a small town in Connecticut that has vehemently fought tribes on land, federal recognition and sovereignty said states and local governments are ignored during the land-into-trust process. A top official from the Department of the Interior easily refuted that claim.

"States and local communities have a say in establishing new tribal jurisdiction within their communities," said Jim Cason, who serves as the Associate Deputy Secretary at the department. Federal regulations in fact require the Bureau of Indian Affairs to weigh impacts on other governments before taking land into trust.

Before the hearing had even started, Rep. Raúl M. Grijalva (D-Arizona), the panel's top Democrat, called it a "waste of this committee’s time." He also said it was an "insult" to tribal interests, who aren't seeing much progress on their agenda, at least in the House side of Capitol Hill.

Although the House managed to pass three Indian bills on Tuesday -- all of them ironically addressing land-into-trust issues for tribes in Arizona, California and Oregon -- the House Committee on Natural Resources itself has only held one markup on Indian legislation since the state of the 115th Congress in January. And the Subcommittee on Indian, Insular and Alaska Native Affairs has only met five times to discuss tribal issues during that time.

In comparison, the Senate Committee on Indian Affairs, which is also controlled by Republicans but tends to operate in a more bipartisan fashion, has held a slew of hearings, listening sessions and business meetings. The panel has advanced nearly two dozen bills since January.

House Natural Resources Committee Democrats on YouTube: GOP Witness Says Indian Law Purpose is Assimilation, Claims Congress "Creates" Tribes

The reason for the inaction on the House side can be traced in part to Rep. Rob Bishop (R-Utah), who chairs the House Committee on Natural Resources. He again repeated a promise to address the U.S. Supreme Court decision in Carcieri v. Salazar.

"We're going to try and do something, hopefully, as we move forward," Bishop said, echoing remarks he has made in 2016 and in 2015 even as he has opposed efforts to fix the decision.

Land-into-trust acquisitions have long been controversial but Carcieri opened the door to protracted litigation. It also placed more burdens on the BIA because it requires the agency to ensure that a tribe was "under federal jurisdiction" in 1934. That criteria was not considered prior to the court's February 2009 ruling.

And though the Trump administration has not officially endorsed a fix, Cason said passing one will "simplify matters actually" at the department, where resources remain scarce and could shrink even more in coming years.

"That would be simpler to do rather than have us actually evaluate the Carcieri standard," Cason told Bishop.

Bishop, though, remains non-committal. He said he didn't know what a Carcieri fix might look like even though numerous versions have been floating around since 2009.

"This is one of the situations where I don't know what the right answer is," he said.

House Committee on Natural Resources on YouTube: Oversight Hearing "Comparing 21st Century Trust Land Acquisition with the Intent of the 73rd Congress in Section 5 of the Indian Reorganization Act"

In January, Rep. Tom Cole (R-Oklahoma), who is a citizen of the Chickasaw Nation, introduced two versions of a Carcieri fix. Even though Democrats and Republicans spoke of Cole's efforts favorably on Thursday morning, neither H.R.130 nor H.R.131 have been granted a hearing in Bishop's committee.

The Indian Reorganization Act became law in 1934, during the 73rd Congress. Section 5 of the IRA authorized the land-into-trust process as a means to restore lands that tribes lost during the disastrous allotment era.

Between 1887 and 1934, tribes lost ownership of 90 million acres as a result of the policy. Since 1934, only about 7 million acres has been restored through the land-into-trust process and other initiatives like the Land Buy-Back Program for Tribal Nations.

But Francis pointed out that tribes once controlled a lot more territory. Those lands were lost through land cessions in treaties, fraudulent sales and outright theft and force.

"In 1491, all 2.3 billion acres of what would become the United States was Indian Country," Francis said.

Even though allotment was repudiated by the IRA, Bishop's committee in 2015 described the General Allotment Act as a "humane" law that was designed to help Indian people break out of poverty.

"The Dawes Commission was an egregious violation of every treaty that the United States had signed," Cole said at the time, referring to the federal body that stripped tribes of their land. "The Indian Reorganization Act was an effort to reverse that awful and tragic mistake."

In contrast to the General Allotment Act, the Indian Reorganization Act was described in less than charitable terms in a memo prepared by Republican staff for Thursday's hearing. According to the document, the IRA "contains no limits, standards, or even non-binding guidelines" on the acquisition of trust lands.

The memo does not mention that the BIA has established regulatory standards to assess impacts of land-into-trust decisions on local communities. The process now takes at least 16 steps to complete, with some tribes waiting years and even decades for answers.

House Subcommittee on Indian, Insular and Alaska Native Affairs Notice:
Oversight Hearing "Comparing 21st Century Trust Land Acquisition with the Intent of the 73rd Congress in Section 5 of the Indian Reorganization Act" (July 13, 2017)

Related Stories:
Hearing on Indian Reorganization Act stacked with anti-Indian interests (July 11, 2013)
House committee schedules another hearing on land-into-trust process (July 6, 2017)
House committee again leaves out Indian Country in hearing on Interior Department (June 26, 2017)
Key House committee under fire for moving slowly on tribal agenda (June 21, 2017)
Hearing takes a swipe at tribal rights with no tribal leaders present (May 30, 2017)