Tribes Unsure Where They’ll Land With New DOI Trust Policy – Law 360 Article

By Andrew Westney

Law360 (March 25, 2020, 8:49 PM EDT) — The U.S. Department of the Interior’s new test to decide when tribes qualify to have their land taken into trust may simplify the process for some while creating hardship for those that lack obvious proof they meet the department’s new standards, experts say.

The new guidance issued March 10 by U.S. Solicitor of the Interior Daniel Jorjani says tribes can provide evidence in one of three categories to show they were both “recognized” and “under federal jurisdiction” when the Indian Reorganization Act was enacted in 1934, and therefore entitled to have their land taken into trust under the law.

While the guidance replaces a test that was largely seen as tribe-friendly, the DOI says its new approach will make meeting its standards less confusing and potentially cut down on the extensive paperwork tribes needed to provide to show their eligibility.

However, though the department’s new tack might make things easier for tribes that can satisfy one of the first three steps of the process, it may largely reward those that were already likely to succeed under the old test, attorneys say.

And tribes that lack such proof could have a more difficult time than before, as they would have to show they qualify under a fourth step evaluating “the totality of an applicant tribe’s evidence.”

“Streamlining doesn’t do the tribe any good if it just makes it easier for Interior to say no,” said Heather Sibbison, the chair of the Native American Law and Policy practice at Dentons who has worked with multiple tribes on land-into-trust applications.

The tribal land-into-trust process was thrown for a loop when the U.S. Supreme Court in its 2009 Carcieri v. Salazar  decision interpreted the IRA to mean that tribes had to have been “under federal jurisdiction” in 1934 — rather than at the time the law was applied to the tribe — to be eligible to have land taken into trust.

But the high court didn’t define exactly what that phrase meant, and the DOI has been wrestling ever since with how best to handle land-into-trust applications from tribes that were recognized since 1934.

University of Iowa College of Law Dean Kevin Washburn, who served as assistant secretary of Indian affairs at the DOI from 2012 to 2016, said “the basic problem with the Carcieri decision is that it makes an untenable distinction between tribes that Congress likely never intended” by dividing tribes into those under federal jurisdiction in 1934 and others “that had not yet been subjugated.”

In 2014, the Obama-era DOI issued an opinion by then-Solicitor Hilary Tompkins that set out a two-part test, requiring a tribe to show the federal government had responsibility for or authority over the tribe before 1934, and that it still had jurisdiction in that year — an approach that generally gave tribes a better chance to qualify to have land taken into trust.

But the Trump administration has now recalibrated what it means for a tribe to have been “under federal jurisdiction” and “recognized,” and established a new test allowing a tribe to qualify if it can meet any of the test’s first three hurdles: by pointing to a federal law passed after 1934 to make the IRA applicable to the tribe, evidence proving jurisdiction such as treaty rights, or ratified treaties or executive orders and legislation specific to the tribe.

A representative for the solicitor’s office at the DOI told Law360 the change in policy should not be seen as a negative for tribes, as the large majority applying should be able to qualify through one of the first three steps.

The new approach doesn’t disturb any earlier land-into-trust decisions, including those made under the 2014 opinion, and wouldn’t be expected to change any potential acceptance to a refusal, the representative said.

But attorneys who represent tribes in land issues said the department didn’t do enough to address tribes’ concerns in making the change.

“In my view, fully satisfying the trust responsibility would require, at a bare minimum, having consulted with tribes on this change of position before it was issued,” Maier Pfeffer Kim Geary & Cohen LLP senior associate Bethany Sullivan said. “The lack of consciousness about the role of the trust responsibility in this process is further reinforced by the fact that the Indian canon of construction was not once referenced in the underlying legal opinion.”

And the DOI didn’t show that the old process needed to be changed to withstand court challenges, as the department hadn’t lost such a case based on the reasoning in the 2014 opinion, according to Sibbison.

“Tribes weren’t banging on their door saying, ‘Please, streamline this process.’ They did this on their own,” she said.

Since the guidance appeared, the DOI has put out three decisions to demonstrate how the new process can yield positive results for tribes, with each showing how a tribe succeeded at each of the first three steps.

The DOI’s Bureau of Indian Affairs on March 11 approved the Cahto Tribe of the Laytonville Rancheria’s request to have off-reservation land in California taken into trust under step two of the new test, based on a 1935 election by the tribe that rejected the IRA.

The following day, the BIA said a 1993 federal law recognizing the Catawba Indian Nation allowed the tribe to have land for its planned North Carolina casino taken into trust under step one of the new test. And on March 18, the BIA found that the Snoqualmie Indian Tribe qualified under step three to have land next to its Washington reservation taken into trust based on the 1855 Treaty of Point Elliott.

Sullivan said “there are certain aspects of the process that theoretically do make things easier,” and the decisions under the new guidance “show to some degree how it’ll actually be implemented.”

Still, they are “easier cases, so they don’t get into the thornier concerns of what recognition previous to or in 1934 really means,” she added.

And the fourth step of the test, calling for a more holistic assessment of a tribe’s evidence, could potentially make it harder for tribes to qualify, particularly with respect to the interplay between being “recognized” and being “under federal jurisdiction” in 1934, attorneys say.

“If you have evidence in steps one through three, you seem to be sitting pretty,” Faegre Drinker Biddle & Reath LLP associate Josh Peterson said. “But those for the most part would be tribes that I’d say didn’t have Carcieri problems.”

It may be “a little clearer what’s a slam dunk” under the new rules, “but there’s still going to be some guessing until we get a more straightforward decision about what’s going to count” for step four, he added.

The legal opinion underlying the new guidance discusses the possibility that tribes could lose their status as being “under federal jurisdiction” in 1934 due to federal allotment of their lands or assimilation, Sullivan noted.

“That implies this could have a much broader impact, because it provides a mechanism for the department or opponents to say the tribe lost its jurisdictional status in 1934 because of these broad policies,” she said.

And the March 5 legal opinion also talks about “negative forms of evidence” that could show tribes lost federal jurisdiction, including “actions by tribes themselves,” she added.

“It essentially says that unilateral tribal actions could sever federal jurisdiction, which is just illogical and counter to the law,” Sullivan said. “Congress has plenary authority over tribes; therefore, something a tribe does, on its own, cannot alter the federal government’s legal authority or jurisdiction.”

While the DOI’s former approach considered tribes that established federal jurisdiction sometime before 1934 to have retained it, unless Congress took it away, with the new approach “they’re backing away from requiring a congressional action, which I think could have real ramifications,” Peterson said.

“That suggests the action of the agency could affect whether a tribe was ‘recognized,’ as that term is being used by the department,” he said.

“This new memo suggests that if someone in a random administration says they don’t think a tribe is recognized, that action by individuals could affect the Carcieri analysis,” Peterson said.

For tribes that do have to go to step four, “it’s going to be expensive … because they’re still going to have to throw all their evidence out there and hope for the best,” he added.

“And the way I’m reading this memo, your odds are lower,” he said.

While tribes look to get more clarity through further BIA decisions, particularly dealing with step four, they may also pin even more hopes on obtaining a legislative “Carcieri fix” that would allow any federally recognized tribe to have its land taken into trust.

How to apply the IRA’s land-into-trust provisions is “probably better addressed through Congress than the Supreme Court,” as “the Supreme Court’s errant policymaking is what landed us in this difficult spot,” Washburn said.

The U.S. House of Representatives handily approved a bill to provide a Carcieri fix last May, but it has yet to be acted on since being referred to the Senate Committee on Indian Affairs.

“The House has taken an admirable, bipartisan stand to ensure that all Native American governments are treated equally under the Indian Reorganization Act,” Sibbison said. “It would be a great and courageous thing if the Senate could find its way to that same place.”

–Editing by Philip Shea and Alanna Weissman.

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