THE TRUMP ADMINISTRATION NOW PREPARING TO GUTTING THE INDIANS

IS THE TRUMP ADMINISTRATION PREPARING TO GUT THE INDIAN REORGANIZATION ACT?

Department of the Interior’s land-into-trust regulations.

I received a number of messages in response to that post, including one from a friend and colleague who asked this question: What if the purpose of these changes is to limit the Indian Reorganization Act’s land-into-trust provisions to the tribes that were allotted under the Dawes Act?

In my own mind, I’ve chalked-up the Trump Administration’s proposal to an attempt to slow or stop lands from going into trust, and to claim more authority to reject tribal applications. But, my colleague raised a question that merits a clear answer from the Administration.

There is a legal theory advanced in some circles that the Indian Reorganization Act’s land-into-trust language was merely intended as a remedy for those tribes that had their lands allotted and taken under the Dawes Act. The Trump Administration’s proposed requirements would be consistent with this legal theory (although, reading the IRA in this manner is absurd in its own right, as discussed below).

The House Natural Resources Committee cited this theory in a memorandum it published in 2015:

In Carcieri v. Salazar, the Court held that the trust land provisions of the IRA may benefit only tribes that were “under federal jurisdiction” on the date of enactment of the Act, or June 18, 1934. These are generally tribes with reservations subjected to 19th century allotment laws.

The Natural Resources Committee published another memo on July 11, 2017 repeating its attempt to narrow the Indian Reorganization Act:

Though enacted to remedy a loss of lands by Indians through the operations of allotment laws including the General Allotment Act, the authority for the Secretary to acquire lands for Indians under Section 5 [of the Indian Reorganization Act] has not been amended by Congress in the last 83 years.

***

Seeking to redress Indians’ loss of land, Congress enacted the IRA in 1934. The IRA prohibited further allotment, put remaining allotments still owned by Indians back in federal trust, and authorized the Secretary to acquire lands in trust for individuals and tribes to restore their property.

This view of the Indian Reorganization Act amounts to revisionist history. Federal courts, including the Supreme Court, have consistently disagreed with this narrow reading.

The express language of the IRA contemplates that off-reservation land would be placed into trust, and that the Secretary of the Interior would acquire land for landless tribes and “proclaim new Indian reservations.” President George W. Bush’s Solicitor General – Paul Clement – argued to the Supreme Court in a 2006 brief that the IRA was intended to “expand tribal lands” and to promote tribal economic development and self-governance.

Nevertheless, my colleague raises legitimate (and concerning) questions about whether the Trump Administration subscribes to this revisionist understanding of the IRA.

Some of the language in the Department’s proposed regulations lend support to the idea that the Trump Administration wants to limit the Indian Reorganization Act to those tribes whose reservations were allotted; or, at a minimum, to those tribes that were federally recognized in 1934. This would be consistent with a desire to take an “off ramp” from the United States’ trust responsibility to Indian tribes, as it dramatically scales back a major part of the Department’s fiduciary obligations.

In last week’s entry, I noted that the Trump Administration was adding more hurdles to the land-into-trust process, including a requirement that tribes show a “historical connection” to any off-reservation parcel of land they want placed into trust. The proposal would also require tribes to show whether off-reservation lands consolidate existing tribal lands and reduce checkerboard jurisdiction. Here is what I had to say about this requirement:

This requirement is absurd on its face for one simple reason: off-reservation applications, by their very nature, will neither consolidate lands nor reduce checkerboard jurisdiction. There is no requirement in the Indian Reorganization Act to make this showing.

But, this requirement would be consistent with a view that the IRA applies to tribes that had their reservations allotted and diminished between 1888 and 1934: off-reservation parcels within former reservation boundaries could be understood to consolidate former landholdings. This could also explain the “historic connection” requirement that the Trump Administration has advanced.

In my post last week, I also acknowledged that “I don’t know what to make of [the] new requirement” that tribes explain the legal authority to have lands placed into trust, in addition to whether the tribe was “under federal jurisdiction in 1934.” I explained that this requirement is redundant, because a tribe relying on the IRA as the legal authority to have lands placed into trust must necessarily demonstrate that it was under federal jurisdiction in 1934 – that is a requirement of the IRA.

But, again, if you view the IRA’s land-into-trust provisions solely as a remedy for tribes that had their reservations allotted, it might make some bureaucratic sense to split these questions apart.

A revisionist view of the IRA may also explain why the Trump Administration is only consulting with western tribes regarding these proposed changes.

The Trump Administration has yet to provide any policy justification for changing the land-into-trust process. The proposed changes were not something Indian country has been demanding. Quite the opposite.

At last week’s meeting of the National Congress of American Indians, some Administration officials tried to sell these changes to tribal leaders as a helpful “streamlining” of the regulatory process. (Only in a George Orwell novel can increasing the number of bureaucratic hurdles be described as “streamlining,” but I digress).

But, earlier this year, Associate Deputy Secretary of the Interior James Cason described the need to do more to help local communities that oppose placing lands into trust for Indian tribes.

Before these regulations are officially proposed, the Trump Administration must explain its own understanding of the Indian Reorganization Act, and why these changes are necessary to advance its purpose. Tribal consultation is pointless if tribes don’t first understand the purpose behind this effort.

Does the Trump Administration believe that the Indian Reorganization Act’s land-into-trust language is limited to tribes that had their reservations allotted? Does the Trump Administration believe that the Indian Reorganization Act applies only to those tribes that were federally recognized in 1934? Does the President’s nominee for Assistant Secretary – Indian Affairs hold these views?

If the Trump Administration answers yes to any of these questions, it will be turning nearly a century of federal Indian policy on its head. Worse, it will amount to a “gutting” of the IRA for a majority of tribes across the United States.