Ernie Stevens Jr., left, the chairman of the National Indian Gaming Association, speaks at a tribal leaders' meeting in Washington, D.C., on December 5, 2016, as John Tahsuda, the Principal Deputy Assistant Secretary for Indian Affairs, looks on. Photo: U.S. Indian Affairs

Trump team reinstates delay for land-into-trust applications without consulting tribes

The Trump administration has quietly reinstated a waiting period for land-into-trust applications, reversing an Obama-era policy without consulting tribes about the change.

In a notice published in a Massachusetts newspaper last week, the Bureau of Indian Affairs said it will once again wait 30 days before placing land into trust. The announcement affects an application submitted by the Aquinnah Wampanoag Tribe, whose leader has objected to the addition of more hurdles in the process.

"We need to be able to chart our own course and land is one of the major components of who we are," Chairwoman Cheryl Andrews-Maltais told a senior Trump official at the National Congress of American Indians annual convention in October.

Andrews-Maltais and other tribal leaders also told the new administration that it was moving too quickly with controversial changes to the land-into-trust process. At the time, only three consultations -- all in Western states -- had been scheduled and public comments were only being accepted through December 15. A listening session took place in Wisconsin on October 16.

After the uproar, the BIA said it would delay the roll-out of the proposal. John Tahsuda, the "acting" leader of the agency, announced a new schedule on December 6 and extended the comment period through February 28, 2018.

"In response to your requests and in light of other scheduling conflicts, I am announcing a new, revised consultation to begin in January 2018," Tahsuda, a citizen of the Kiowa Tribe whose official title is Principal Deputy Assistant Secretary for Indian Affairs, wrote in the Dear Tribal Leader letter. "The previously scheduled sessions in November will be held in January and February instead."

But before the new effort got underway, the BIA barely a day later went ahead and adopted the critical change. The December 7 notice in Massachusetts gives opponents 30 days to file an appeal before the 15 acres are officially acquired for the Aquinnah Wampanoag Tribe.

"The decision to accept the above lands into trust may be appealed to the Interior Board of Indian Appeals," the notice reads.

The 30-day waiting period had been raised as a topic for the consultation sessions. Documents sent to tribal leaders said the delay might be added to the new regulations for land-into-trust applications. Tahsuda, during the listening session in Milwaukee, also said the change was under consideration.

But the BIA was able to reinstate the delay anyway without holding any of the consultations with tribes.

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The waiting period had been eliminated by the Obama administration after the U.S. Supreme Court issued its decision in Salazar v. Patchak in 2012. By a near unanimous vote, the justices said opponents could appeal land-into-trust applications even after the land was placed in trust.

The BIA responded by developing a new regulation that eliminated the waiting period, calling the delay unnecessary because opponents now have up to six years to file appeals. The rule was finalized in November 2013 -- after consultation with tribes.

In the notice announcing that rule, the BIA said the "threat of potential litigation during the six years following the issuance of a final decision creates uncertainty in the trust status of the property, discourages financial institutions from investment, and thereby frustrates tribes’ ability to develop their trust lands in a productive, efficient manner for housing, economic development, or other purposes."

Patchak remains the poster child for such threats. Litigation has continued long after the BIA placed land into trust for the Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians, also known as the Gun Lake Tribe.

The uncertainty prompted Congress to pass a special law confirming that the tribe's land in Michigan is actually in trust. Yet the Supreme Court just heard arguments in Patchak v. Zinke last month because the non-Indian opponent has refused to drop the case.

"So where is the real beef here?" Justice Neil Gorsuch said during the one-hour hearing on November 7. He was among those who appeared to cast doubt on the protracted litigation.

The Aquinnah Wampanoag Tribe is dealing with similar litigation delays -- on land placed in trust 30 years ago as part of a land claim settlement. Opponents at the local and state level claim the tribe must comply with their laws and have asked the Supreme Court to resolve the dispute.

A lower court had sided with the tribe, acknowledging its sovereign right to chart its own course on its homelands.

An answer on the petitions in Massachusetts v. Wampanoag Tribe of Gay Head and Town of Aquinnah v. Wampanoag Tribe of Gay Head was expected this week but the Supreme Court instead "rescheduled" it. A new date for consideration has not yet been made public.

A summary of some of the proposed changes to the Fee-to-Trust Regulations (25 CFR 151). Source: Bureau of Indian Affairs

The BIA, meanwhile, will be restarting the consultations for the proposed Fee-to-Trust Regulations (25 CFR 151) on January 16. A total of six sessions -- in different regions of Indian Country -- have been scheduled.

In contrast to the earlier schedule, tribes in the Northeast and the Southeast will now get a chance to share their views without traveling thousands of miles away.

"I don't know if you've forgotten that there are tribes east of the Mississippi," Lance Gumbs, a citizen of the Shinnecock Nation, said during the listening session in October.

Tribes say the Trump administration's changes will only add more hurdles to an already cumbersome process. They will be required to submit additional information about their applications - including a discussion of impacts on local communities, which are often the instigators of litigation -- and they will be discouraged from completing the process altogether as part of a "two-phased" system.

The full schedule for the consultations follows:
Date Time (Local) Location
Tuesday, January 16, 2018 9:00 a.m. - 1:00 p.m.
Sacramento Convention Center Complex
1030 15th Street
Sacramento, CA 95814
Thursday, January 18, 2018 9:00 a.m. - 1:00 p.m.
Mystic Lake Casino Hotel
2400 Mystic Lake Boulevard
Prior Lake, MN 55372
Tuesday, January 23, 2018 9:00 a.m. - 1:00 p.m.
Foxwoods Resort Casino
350 Trolley Line Boulevard
Mashantucket, CT 06338
Thursday, January 25, 2018 9:00 a.m. - 1:00 p.m.
DoubleTree by Hilton Portland
1000 N.E. Multnomah
Portland, OR 97232
Tuesday, February 20, 2018 9:00 a.m. - 1:00 p.m.
Heard Museum
2301 N. Central Avenue
Phoenix, AZ 85004
Thursday, February 22, 2018 9:00 a.m. - 1:00 p.m.
Miccosukee Resort & Casino
500 S.W. 177th Avenue
Miami, FL 33194

Federal Register Notice:
Land Acquisitions: Appeals of Land Acquisition Decisions (November 13, 2013)

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