Protecting and Restoring Indian Homelands Federal policies throughout the 1800s and mid-1900s resulted in the takings of hundreds of millions of acres of tribal government homelands. The Indian Reorganization Act of 1934 sought to reverse the impacts of these failed policies by authorizing the Interior Department to restore Indian lands into trust. While the process is costly, and cumbersome, it has slowly worked to restore a small measure of Native homelands to tribal government control. (However, many acres of Indian lands continued to move out of protected trust status every year). On October 4, 2017, the Interior Department issued a proposed rule to alter the land to trust regulations that implement the IRA. The Interior Department’s initial Proposal would have made it harder to restore tribal homelands by shifting the burden on tribes to prove benefits of the acquisition and lack of adverse impacts on local governments. The proposal placed a focus on “off-reservation” and gaming land to trust applications. The initial proposal drew swift and sharp reactions from Indian Country for its focus on Indian gaming, the lack of consultation, and the increased weight that would be provided to county governments in trust land decisions. The Interior Department held seven consultations from January to April of 2018 and accepted comments on a revised list of questions through July 2, 2018. It is nearly a year since the comment period has closed, and it seems that the proposal may be shelved for the time being. In addition, on June 20, 2018, the Interior Department withdrew a January 13, 2017 M-Opinion that opened the door for Alaska Native tribes and villages to participate in the IRA land to trust process. Interior qualified the withdrawal as “pending further review and consultation because [the 2017] M-Opinion fails to fully discuss the possible implications of legislation enacted after ANCSA upon the Secretary’s authority to take land into trust in Alaska.” Interior scheduled a series of consultations on this matter and the issue is still pending. And finally, on September 7, 2018, the Interior Department, acting pursuant to a District Court’s remand, ruled that “the (Mashpee) Tribe does not satisfy the ‘under Federal jurisdiction’ requirement of the [IRA’s] first definition of ‘Indian,’ and does not satisfy such requirement with respect to the second definition. If upheld and implemented, the Interior Department’s decision would mark the first time since the Termination Era that either Congress or the Executive Branch has taken Indian lands out of trust. Direct Attacks on Tribal Sovereignty This past year also brought direct attacks on the status of Indian tribes as governments, and with it, the federal government’s treaty and trust obligations to Indian Country. These attacks came in the form of legal challenges to the Indian Child Welfare Act and the protection of Medicaid funding to Native Americans. In both cases, opponents to ICWA and exemptions to preserve Medicaid for Indian health care funding based their legal claims on the misguided and long-overruled theory that the federal law and potential federal exemption would be race- based and thus violate the Constitution’s equal protection clause. This legal argument ignores decades of Supreme Court precedent. In 1974, the Court in Morton v. Mancari held that federal policies and actions directed at Native Americans “is not directed towards a ‘racial’ group of ‘Indians’; instead it applies to members of ‘federally recognized tribes’…. In this sense, the preference is political, rather than racial in nature”—and thus does not violate the Constitution’s equal protection clause. With regard to the CMS issue, NIGA worked with tribal leaders in calling on Members of Congress to urge the Administration to rescind the misguided position and work to protect funding for Indian health care. Bipartisan letters were sent from champions of Indian Country from U.S. House and Senate to the Trump Administration, urging CMS to reverse its position. CMS has since revised its legal claims, but we continue to closely watch this
INDIAN GAMING - ANNUAL REPORT 2019 7
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