House Subcommittee Considers Bills to Expand Tribal Land Trust Authority

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By Elyse Wild

June 28, 2024

The House Subcommittee on Indian and Insular Affairs held a hearing yesterday on two bills that would expand tribal authority to acquire land, potentially reversing a 2009 Supreme Court ruling that restricts the designation of trust lands.

One of the bills discussed at the hearing was HR 1208, a bi-partisan bill introduced by Representative Tom Cole (R-Okla.) that would amend the Indian Reorganization Act (IRA) of 1934 by authorizing the Department of the Interior to take land into trust for all 574 federally recognized Indian tribes. As it stands, a 2009 Supreme Court decision (Carcieri v. Salazar) ruled that the Secretary of the Interior is only authorized to place land into trust for federally recognized tribes that can demonstrate that they were “under federal jurisdiction” when the IRA became law in 1934.

During the hearing, Cole, who is not a member of the committee, was recognized by Chairperson Harriet Hegeman (R-Wyo.) to speak on his legislation. He used some of the time to address opponents of the legislation who claim the proposed bill is “all about gaming.” He noted that 26 of the 961 pending fee-to-trust applications currently under review are gaming applications. Of the 4,349 applications submitted from 2009 to 2023, 48 were for gaming purposes. 

“Let me be clear, this is false,” Cole said.

Also on the issue was the bipartisan HR 6180, introduced by Rep. Jerry Carl (R-Ala.) with support from both sides of the aisle. The proposed Poarch Band of Creek Indians Land Act would treat the Poarch Band of Creek Indians as covered by the IRA and reaffirm any lands previously taken into trust for their benefit by the Secretary. The Tribe gained federal recognition in 1984 and is the only Tribe in the state of Alabama with recognized status. 

Many of the Poarch Band’s 230 acres were placed in trust before the 2009 ruling. The land holds much of the Tribe’s infrastructure, including buildings, businesses, and three casinos. Due to the Poarch Band being recognized after 1934, a court could determine the lands were not lawfully held in trust, effectively exposing the Tribe to state taxation and civil regulation and the potential dissolution of its infrastructure. As well, the Tribe’s casinos would become subject to Alabama law, leaving one of the Tribe’s largest employers and revenue generators vulnerable to modification or closure. 

 A court affirmed the Poarch Band’s trust status in 2011, but the ruling doesn’t protect it from future litigation. Stephanie Bryan, the chair and CEO of the Poarch Band, testified that the subsequent legal battles have cost the tribe nearly $10 million over the years.  

"These lawsuits have a real toll,” Bryan told the subcommittee. “Please pass this bill this year.”

 Bryan also testified to the difficulties of providing essential resources and infrastructure to tribal members without acquiring additional trust land. She pointed to 2018, when the Tribe needed to expand its Boys and Girls Club. 

“There was no more buildable trust land,” Bryan said. “We were forced to fill ponds around the community center on existing trust lands, which added $1 million to our construction cost.” 

Carcieri effects discussed

Yesterday’s hearing, led by subcommittee chair Hageman, was standing room only due to the observing crowd. Following Hageman’s opening remarks briefing the two bills, Congresswoman Teresa Leger Fernández (D-NM), a co-sponsor of HR 6180, spoke about the implications of the Carcieri v. Salazar decision.

“That decision was harmful,” Fernández said. “It was disrespectful to tribes that essentially said that if you were not recognized federally, it didn’t matter how long you existed, but if we hadn’t done our homework, then you don’t get to reestablish your homelands.”

Fernández said the ability to take land into trust is essential for Tribes to provide housing, economic development opportunities, governmental services, and to protect cultural resources.

“The Carcieri decision up-ended 75 years of federal Indian policy and administrative practices,” Fernández said. “It created uncertainty. Because of Carcieri, tribes have had to defend themselves in court.” 

Representative Bruce Westerman (R-Ark.) addressed the varied outcomes between tribes taking land into trust and the surrounding non-tribal communities.

"We’ve seen many examples of local communities benefiting from tribal development of trust lands, diversifying economies, and often providing jobs. We’ve also seen instances where tribes and local stakeholders are not on the same page, resulting in costly and lengthy litigation,” Westerman said. “Consensus cannot always be reached; it’s vitally important that we attempt to find the best way forward for everyone.”

Testimony from Kathryn Isom-Clause (Taos Pueblo), deputy assistant secretary for policy and economic development at the Bureau of Indian Affairs, noted that the department must conduct an analysis for each Tribe applying to acquire land through trust, even if the Tribe's status is uncontested.

Isom-Clause called the consequent analyses “time consuming and costly,” resulting in near-constant litigation around what should otherwise be simple land-into-trust acquisitions. 

“The Carcieri decision makes it likely that the department will face costly and complex litigation over whether applicant tribes were under federal jurisdiction in 1934,” Isom-Clause said. “Overall, it made the department’s consideration of fee-to-trust applications more complex and created additional burdens.”

Marshall Pierite, chairman and CEO of the Tunica-Biloxi Tribe of Louisiana, testified that the 2009 decision had put tribes in the position of having to utilize their own resources to purchase back land stolen from them. Limiting the ability to acquire trust land, he said, diminishes the significant benefits brought by strong tribal governments to Native communities and surrounding non-Native communities.

“The Supreme Court decision in Carcieri was a major step backward in the walk towards justice as well as healing,” Pierite testified. “The ruling confused both tribal governments and non-Indians, slowed economic growth and job creation, and continued to spawn legal challenges to the recovery of our ancestral homelands.”  

 He described how the Tunica-Biloxi tribal enterprises purchase more than $10 million annually from non-tribal vendors and supply more than $26 million in wages annually to mostly non-tribal employees. Marshall noted that this payroll generates state and federal employment taxes. The Tribe also donated $7 million to local charities. It contributed more than $30 million to help the local parish government cover the costs associated with the additional demands placed on the community from the increased economic activity spurred by the Tribe’s casino.

Tribal Business News staff reporter Chez Oxendine contributed reporting on this story.

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