for only those Indian tribes that were “under federal jurisdiction” in 1934. The Carcieri decision has stalled the administrative land into trust process, adding the significant burden on tribes applying to have fee lands placed into trust to first obtain a positive legal determination from the Interior Solicitor that the tribe was “under federal jurisdiction” in 1934. This process requires detailed historic research and legal analysis. This relatively new process demands added attorneys, historians, and takes years to complete. Nothing in the congressional debate on the IRA or legislative history helps define the term “under federal jurisdiction”. To help maintain the tribal land to trust process in light of the Carcieri decision, the Obama Administration’s Interior Department issued M-Opinion (M-37029) titled “the Meaning of ‘Under Federal Jurisdiction’ for Purposes of the IRA” on March 12, 2014 116 th Congress: Efforts to Achieve a Legislative Carcieri Fix Inter-tribal organizations from throughout Indian Country remain united behind the goal of restoring the intent and purpose of the IRA’s Indian land to trust process. Companion bills were introduced in the 116 th Congress to accomplish a clean Carcieri fix, which would simply delete the term “under federal jurisdiction” and amend the IRA to clarify that the Interior Secretary has authority to place land into trust for all federally recognized tribes. Rep. Tom Cole (R-OK) introduced the House bill, which passed the bill by a wide bipartisan vote of 323 – 96 on May 15, 2019. Senators Jon Tester (D-MT) and Jerry Moran (R-KS) introduced the Senate companion bill on November 7, 2019. The bill has 11 co-sponsors and has been referred to the Senate Committee on Indian Affairs. However, the SCIA held no hearings and failed to advance the bill in the 116 th Congress. Indian Country will look to restart the process in the 117 th Congress to achieve this longstanding legislative priority. Tribes will call upon leaders of the Senate Committee on Indian Affairs and House Natural Resources Committee to schedule oversight and legislative hearings on the need to improve the tribal land to trust process, and advance legislation to address the ongoing concerns of the Court’s 2009 Carcieri decision. Improving the Administrative Land to Trust Process On March 9, 2020, at the beginning of the COVID-19 pandemic, the Trump Administration Interior Solicitor withdrew the Obama Interior Department’s 2014 M-Opinion that helped facilitate tribal land to trust applications in light of the Carcieri decision. The 2014 M-Opinion lays out requirements for a tribe submitting a land to trust application pursuant to the IRA to prove that it was under federal jurisdiction in 1934. The Trump Administration withdrew the M-Opinion and replaced it with guidance that most tribes view as more restrictive to achieving a positive “under federal jurisdiction” determination. A top tribal policy priority for 2021 will be working with the Biden Administration to improve upon the 2014 M-Opinion and to reissue a new M-Opinion that will better enable all federally recognized Indian tribes to comply with the Indian Reorganization Act to restore ancestral tribal government homelands.
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