Conference panel addresses land-into-trust

MONDAY, NOVEMBER 4, 2002

A senior Bureau of Indian Affairs official brought good news and more good news to attendees of an Indian law conference in Washington, D.C., last week.

The good news was that the Department of Interior has withstood recent legal challenges to its decisions to take land into trust for tribes. "We are batting 100 percent on lawsuits," said George Skibine, director of the Office of Indian Gaming Management.

The better news was aimed at those involved in the always controversial and occasionally high stakes disputes. "Every acquisition that we have authorized, we have been sued on," he said. "It's a fertile area for lawyers to argue."

Skibine spoke Friday at the 4th annual Federal Bar Association's Indian law conference. The event, sponsored by the National Native American Bar Association and the Native American Bar Association of Washington, D.C., brought together practitioners for discussions on federal recognition, litigation and other topics.

The land-into-trust panel focused on what has become a testy area of Indian law. After 90 million acres of Indian land was lost from 1887 to 1934 due to the failed allotment and assimilation policies, Congress directed the federal government to preserve and protect the estate.

But the process has been slow-moving for tribes that want to restore, initiate or expand their holdings. Since 1934, the Interior has taken only eight million acres of land into trust. A total of 54 million acres, 45 million of it held on behalf of tribes, is currently in trust.

The reason, panel participants acknowledged, was due in part to Indian gaming that is often associated with the acquisitions. Interior solicitor Maria Wiseman, who provides legal advice to the department, and former deputy assistant secretary Michael Anderson, a Clinton appointee now in private practice, recounted their experiences on the subject in hopes of ensuring success.

The key factor appeared to be following procedure. When gaming is involved, that means tribes must submit environmental reviews and the BIA must consult with local communities.

After recommendations are made at the regional level, Assistant Secretary Neal McCaleb, or a delegate in the BIA's central Washington, D.C., office, makes the decision. This applies only to gaming related acquisitions -- McCaleb imposed the requirement after he joined the Bush administration in July 2001.

Skibine, however, pointed out nuances in the procedures. For example, if a tribe's land application doesn't involve gaming, but impacts a casino operation, it is considered a gaming acquisition.

The BIA has to follow its own guidelines, which are found in the Code of Federal Regulations, 25 CFR Part 151, and the departmental manual. But there are also "Section 20" exceptions under the Indian Gaming Regulatory Act (IGRA). The well known example is known as a two-part determination: after the Interior approves an acquisition, the governor of the state involved must concur.

There are exceptions for Oklahoma tribes and their "former reservations," newly recognized tribes, settlement lands or Congresionally-mandated acquisitions. The BIA's analysis under the final is merely "ministerial," according to Skibine.

The Clinton administration developed detailed standards for almost all land-into-trust applications. But McCaleb revoked them in late 2001.

Tribal leaders are hoping department officials will work them with them to develop new regulations. At next week's National Congress of American Indians conference, the issue will be on the agenda.

Relevant Documents:
Land-into-trust Policy (PDF 14k)

Relevant Links:
Title 25 CFR Part 151 - http://www.access.gpo.gov/nara/cfr/waisidx_01/25cfr151_01.html
Section 20, IGRA - http://www.nigc.gov/acquiredlands1.htm
Land into Trust, National Congress of American Indians - http://www.ncai.org/main/pages/issues/
governance/land_into_trust.asp