Bill Seeks Overhaul of Fee-to-Trust Process
CSAC Takes Lead on Reforms Advocated by CA Counties
U.S. Senate Committee on Indian Affairs Chairman John Barrasso (R-WY) Tuesday introduced legislation that would overhaul the Department of the Interior’s fee-to-trust process. The bill, which includes a series of reforms spearheaded by CSAC, is expected to be discussed during a committee Business Meeting on Wednesday, July 29. No formal action on the bill is expected until the fall.
The legislation, entitled the Interior Improvement Act (S. 1879) would transform the process whereby the Interior Department, acting through the Bureau of Indian Affairs (BIA), takes land into trust on behalf of Indian tribes. Counties in California have long advocated for reforms in the federal government’s trust land system, which has led to unnecessary conflict, controversy, and litigation.
Under current practices – which are governed not by federal statute but by regulations that have been promulgated by the BIA – counties are afforded limited, and often late, notice of a pending trust land application. Additionally, the BIA does not accord local concerns adequate weight in the land-into-trust process, as counties are only invited to provide comments on two narrow issues – potential jurisdictional conflicts and the loss of tax revenues. Moreover, current law does not provide any incentive for Indian tribes to enter into enforceable mitigation agreements with counties to address the often significant off-reservation impacts associated with tribal development projects, including casinos.
Under the Barrasso legislation, the BIA would be required to provide adequate, up-front notice to counties whenever the agency receives a complete or partial application from a tribe seeking to have off-reservation fee or restricted land taken into trust. In turn, counties would be afforded an opportunity to review and comment on the application.
Furthermore, the legislation would encourage tribes that are seeking trust land to enter into cooperative agreements with counties, the terms of which could relate to mitigation, changes in land use, dispute resolution, fees, etc. In cases in which tribes and counties have not entered into mitigation agreements, the bill would require the Secretary of the Interior to consider whether off-reservation impacts have been mitigated. Many of the provisions of S. 1879 closely mirror CSAC’s comprehensive fee-to-trust reform proposal.
While California’s counties have long advocated for statutory reforms in the BIA’s fee-to-trust process, the Supreme Court’s 2009 decision in Carcieri v. Salazar created an avenue for potential legislative action. In Carcieri, the Court ruled that Secretary of the Interior’s trust acquisition authority was limited to those tribes that were “under federal jurisdiction” at the time of the enactment of the Indian Reorganization Act of 1934.
Since the Carcieri decision, many tribes have called upon Congress to reverse the Court’s action by passing legislation that would put all federally recognized Indian tribes on equal footing relative to the opportunity to have land taken into trust. CSAC, while in agreement that Congress should address the inequity caused by the Supreme Court’s decision, has remained steadfast that any legislation restoring the secretary’s trust acquisition authority must be coupled with long-overdue reforms in the BIA’s flawed fee-to-trust process.
As previously indicated, the Senate Committee on Indian Affairs will likely hold a brief discussion on the Interior Improvement Act during an upcoming Business Meeting. The panel may hold a formal hearing on the bill this fall, with expected legislative action to follow soon thereafter.