Improving the Tribal Fee Land to Trust Process The U.S. Supreme Court’s Carcieri v. Salazar decision has plagued the Indian Reorganization Act’s (IRA) tribal land to trust process for more than a decade. The decision upended the 75 years of precedent, reinterpreting the IRA as limiting the Interior Secretary’s authority to place land into trust for only those Indian tribes that were “under federal jurisdiction” in 1934. The result has complicated the already cumbersome land to trust process. 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 (Interior) issued M-Opinion (M-37029) titled “the Meaning of ‘Under Federal Jurisdiction’ for Purposes of the IRA'' on March 12, 2014. While it offered a path forward to continue to process land to trust applications, the process requires detailed historic research and legal analysis, added attorneys, historians, and can take years to complete. Without a legislative fix to the Carcieri decision, the tribal fee land to trust process will be subject to conflicting interpretations of the executive branch as evinced in the competing interpretations of the past Obama and Trump Administrations. From 2009-2017, the Obama Administration placed more than 560,000 acres of tribal fee lands into trust, utilizing the 2014 M-Opinion and other rules. Former Interior Secretary Bernhardt rescinded the 2014 M-Opinion and replaced it with guidance that most tribes view as more restrictive to the tribal fee land to trust process. From 2017-2021, the Trump Administration reversed course, approving less than 75,000 acres of tribal fee lands into trust. As noted above, Interior conducted a series of consultations with Tribal leaders to “Protect and Restore Tribal Homelands”. The deadline for comments was November 5, 2021. The Department is now considering whether to improve upon the 2014 M-Opinion or promulgate proposed regulations to implement a more durable agency position regarding the IRA’s “under federal jurisdiction” requirement. 117 th Congress: Efforts to Achieve a Legislative Carcieri Fix The only way to fully restore Interior’s tribal fee land to trust process is to enact legislation to amend the IRA. Inter-tribal organizations throughout Indian Country remain united behind this goal. Companion bills have been introduced in the 117 th Congress to accomplish a clean Carcieri fix, which would 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 Indian tribes. Senator Jon Tester (D-MT) introduced S. 1901 with original co-sponsor Sen. Jerry Moran (R-KS). The bill has 12 other co-sponsors. On July 2, 2021, Rep. Betty McCollum (D-MN) introduced the House version of the Carcieri fix, which is identical to the proposal included in the Biden Administration’s FY’22 Budget proposal. The House bill, H.R. 4352, is co-sponsored by House Native American Caucus Co-Chairs Rep. Tom Cole (R-OK) and Rep. Sharice Davids (D-KS), as well as Caucus Vice Chair Rep. Markwayne Mullin (R-OK). In the U.S. House of Representatives, given the strong bipartisan vote (323 yeas, 93 nays) on Rep. Cole’s Carcieri fix in 2019, Indian Country will work with the House Natural Resources Committee to immediately bring the bill to markup without a hearing. The House Appropriations Committee approved its version of the FY’22 Interior funding bill, which includes the Carcieri fix proposal that was requested in the President’s Budget. Tribes are working with both chambers to retain this provision as Congress works to finalize its FY’22 funding bills.
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