Bills
| 3.23.22

Should the Interior Secretary’s Authority to Take Land Into Trust for All Tribes Be Reaffirmed? (H.R. 375)

Do you support or oppose this bill?

What is H.R. 375?

(Updated September 2, 2019)

This bill would reaffirm the Interior Secretary’s authority to take land into trust on behalf of Indian tribes. This would confirm that all tribes, regardless of the date of their federal recognition, can restore their homelands through the land into trust process. This would serve as a “clean fix” to nullify the Supreme Court’s decision in a 2009 decision, , which set in place a precedent for making distinctions between tribes based on whether they were under federal jurisdiction when the Indian Rights Act (IRA) was signed in 1934. 

Argument in favor

The Supreme Court’s 2009 decision in Carcieri v. Salazar had severe repercussions for tribes’ abilities to make land into trust requests, as it rendered some tribes unable to make these requests due to not being under federal jurisdiction at the time of the Indian Rights Act’s passage in 1934. This is unfair, and creates a false distinction between tribes.

Argument opposed

Federal land into trust conversions can have serious consequences for states and thus should be managed carefully. The Carcieri decision rightfully creates appropriate definitions for the tribes that are — and aren’t — eligible to restore their homelands via the Dept. of the Interior’s land into trust process.

Impact

Native American tribes; tribal land into trust process; tribal reservations; Dept. of the Interior; Interior Secretary; and Carcieri v. Salazar.

Cost of H.R. 375

A CBO cost estimate is unavailable.

Additional Info

In-Depth: Rep. Tom Cole (R-OK) introduced this bill to support Indian Country by reaffirming Interior Secretary David Bernhardt’s authority to take land into trust on Indian tribes’ behalf.

Kevin K. Washburn, Dean and Professor of Law at the University of Iowa College of Law, testified in favor of this bill at a House Committee on Natural Resources Subcommittee for Indigenous Peoples of the United States hearing on April 3, 2019. He argued that this bill provides a “clean -fix:”

“H.R. 375 is an elegant way of addressing . It is a model of clarity and simplicity and would fully address the problems highlighted above. H.R. 375 has three important features that are crucial to clarifying the IRA and remediating the harm caused by . First, it strikes from the IRA the confusing term, ‘now under federal jurisdiction,’ making it more obvious that the land into trust provisions have broad application to all federally recognized Indian tribes, no matter when they achieved federal recognition. Second, it makes the amendment retroactive to the original date of enactment of the IRA in 1934. This insures proper authorization for all actions to take land into trust since that time and prevents unnecessary and fruitless litigation about whether authority existed at the time the land was taken into trust. Finally, H.R 375 amends the definitions section of the IRA to make it even more clear that the Secretary of the Interior has authority to take lands in trust for tribal nations in Alaska.”

While she didn’t state opposition to this specific bill in her testimony to the House Natural Resources Committee’s Subcommittee for Indigenous Peoples, Claire Richards, Executive Counsel to Rhode Island Governor Gina Raimondo, urged caution on land into trust conversions:

“Federal trust acquisitions can have serious consequences for states. They strip states of their jurisdiction over land, they encourage tax free and tax-advantaged sales on trust property and they give rise to complex jurisdictional “checkerboarding” problems. And, the acquisition of land in trust is often a necessary precondition to the establishment of a federal Indian casino… Because of their effect on surrounding jurisdictions, trust acquisitions should strictly conform to the plain language of, and limitations set forth in, the IRA. They should follow an orderly and established vetting process which includes consideration of the impact on neighboring states. They should not be based on a firmly discredited legal rationale to which even the current Secretary of the Interior does not adhere.”

This bill passed the House Natural Resources Committee Subcommittee for Indigenous Peoples of the United States by a 29-7 vote with the support of 27 bipartisan cosponsors, including 22 Democrats and five Republicans. It was originally scheduled for a full House vote in the first week of May under a fact-track process using special rules limiting debate and requiring a two-thirds majority to pass, but House Democratic leaders pulled it and the Mashpee Wampanoag Tribe Reservation Reaffirmation Act (H.R. 312) after President Trump tweeted criticism of the latter bill. In his May 8, 2019 tweet, Trump tweeted, “Republicans shouldn’t vote for H.R. 312, a special interest casino Bill, backed by Elizabeth (Pocahontas) Warren. It is unfair and doesn’t treat Native Americans equally!”

Democrats also accused Matthew Schlapp, the husband of Trump’s director of strategic communications, of influencing Trump’s tweet. Schlapp is a lobbyist representing a lobbying company that works for a management group that owns two casinos in Rhode Island, which opposes the Mashpee Wampanoag Tribe Reservation Reaffirmation Act because it’d grant land rights to the Mashpee to build a casino in Massachusetts that’d compete with Rhode Island casinos.

After both bills were pulled from the floor, Rep. Cole told the Washington Examiner in a written statement that he plans to support both bills’ passage in the full House. He said, “Both of the bills pulled from the floor of the House, H.R. 375 and H.R. 312, are important to Indian Country. I support both of the bills and look forward to working with my Republican and Democratic colleagues to pass them on the floor. I believe we will be successful in doing so." In an interview, House Majority Leader Steny Hoyer (D-MD) called Trump’s tweet “silly” and stated his plans to bring both bills up again under rules requiring a simple majority vote.

However, some GOP lawmakers, such as Western Caucus Chairman Rep. Paul Gosar (R-AZ), have said they won’t help either bill pass the House. A spokeswoman for Gosar told the Washington Examiner that her boss is “strongly opposed” to both bills and plans to vote against them “in their current form.”


Of Note: The Supreme Court’s 2009 decision in ruled the Secretary of the Interior’s effort to take 31 acres of land into trust for the Narragansett Tribe of Rhode Island into trust for a housing project unlawful. The decision laid the ground for making distinctions between tribes, making some tribes unable to petition to federal government to have land restored to them through the land into trust process.

In , the Court held that Section 5 of the Indian Rights Act (IRA), which allows the Secretary of the Interior to authorize new trust land for tribes’ benefit, is limited to “persons of Indian descent who are members of any recognized Indian tribe now under Federal jurisdiction.” It also said “now” is defined unambiguously as the year that the IRA was enacted (1934), rather than the moment when the Secretary decided to take land into trust for a particular tribe’s benefit.

Thus, following , any tribe seeking a land into trust conversion became required to establish that it was “under federal jurisdiction” in 1934. This means the decision disrupted 70 years of Dept. of the Interior practice in acquiring trust lands for tribes.


Media:

Summary by Lorelei Yang

(Photo Credit: iStockphoto.com / grandriver)