October 19, 2015 GENERAL MEMORANDUM Compromise Carcieri-Fix Bill: The Interior Improvement Act

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1 2120 L Street, NW, Suite 700 T HOBBSSTRAUS.COM Washington, DC F October 19, 2015 GENERAL MEMORANDUM Compromise Carcieri-Fix Bill: The Interior Improvement Act Senate Committee on Indian Affairs Chairman Barrasso (R-WY) introduced S 1879, the Interior Improvement Act, on July 28, S 1879 is a compromise bill that includes the two main objectives of Indian Country for a Carcieri-fix: (1) making clear that the Secretary of the Interior has the authority under the Indian Reorganization Act (IRA) to take land into trust for any federally recognized tribe; and (2) ratifying and confirming prior land-into-trust decisions. S 1879 also includes certain provisions pushed for by county and local governments. These provisions would apply to applications to take off-reservation land into trust and focus on notice to and comment opportunity by local governments, encouraging the use of cooperative agreements, and timing for decisions on applications. S 1879 would instill timelines for providing notice of applications to contiguous jurisdictions and the public, and for comment on the applications from same. "Contiguous jurisdiction" is defined by the bill as "any county, county equivalent, or Indian tribe with authority and control over the land contiguous to the land under consideration in an application." S 1879 would also require the Secretary to publish her decision on an application in the FEDERAL REGISTER and post it on Interior's website not later than five days after such final decision is made. S 1879 would encourage, but not require, applicants to enter into cooperative agreements with contiguous jurisdictions, which, per the bill, may include terms for mitigation, changes in land use, dispute resolution, and other terms the parties deem appropriate. Per S 1879, if the applicant submits a cooperative agreement, the Secretary shall move forward with a decision on the application on an expedited basis. S 1879 states that the Secretary is to issue a final decision on a complete application not later than (1) 60 days after the completion of the National Environmental Policy Act (NEPA) review process or (2) if such process is not applicable, 30 days after the Secretary receives a complete application. If the Secretary fails to issue a final decision by these timelines, S 1879 states that the application shall be deemed approved and treated as a final decision. Under the bill, if the applicant does not submit a cooperative agreement, the Secretary shall issue a written determination of mitigation not later than 30 days after receiving a complete application. Such determination shall describe whether any economic impacts on the contiguous jurisdiction have been mitigated and, per S 1879, the Secretary shall consider the determination of mitigation when making a final decision to approve or deny an application. HOBBS STRAUS DEAN & WALKER, LLP WASHINGTON, DC PORTLAND, OR OKLAHOMA CITY, OK SACRAMENTO, CA

2 General Memorandum October 19, 2015 Page 2 S 1879 states that the lack of a cooperative agreement shall not prejudice an application if the Secretary determines that there is no agreement due to the failure of a contiguous jurisdiction to work in good faith to reach an agreement. Under S 1879, an applicant or contiguous jurisdiction may seek review of a final decision and may seek review in a United States district court only after exhausting all available administrative remedies. The bill also sets forth a process for the Secretary to consult with tribes to implement these new provisions of the IRA and would require the Secretary to modify existing regulations, guidance, rules and policy through rule-making to carry out the provisions. Conference Call with SCIA and ASIA Washburn The National Congress of American Indians (NCAI) facilitated a conference call on October 1, 2015, for tribal leaders with Assistant Secretary for Indian Affairs (ASIA) Washburn and Senate Committee on Indian Affairs Majority Staff Director Andrews to discuss S 1879, the Interior Improvement Act. NCAI had circulated the attached FAQs document about S 1879 and arranged the call as an opportunity for tribal leaders to ask additional questions about the legislation. Staff Director Andrews conveyed that the Committee has received lots of feedback on the legislation from tribes, counties and directly from Senators, and that S 1879 is a top priority for the Committee. He said a manager's amendment to the bill is being developed, which is expected to be considered at an upcoming mark-up of the bill. Such mark-up has not yet been scheduled. ASIA Washburn conveyed that the Department of Interior has no official position on the bill, but it is working with the Committee to address certain technical issues. A central issue raised by tribal leaders and representatives was the bill's encouragement of cooperative agreements between tribes and counties and the expedited processing of trust applications that have such accompanying agreements. ASIA Washburn noted that currently, as a practical matter, applications from tribes with agreements with the counties move faster in the land-into-trust process. He added that the Obama Administration will continue to try to move all applications. Mr. Andrews underscored that S 1879 does not confer veto power to the counties. Applications without cooperative agreements would still be processed but without the expedited review provided by S 1879 for applications with cooperative agreements. Letter from Senators Feinstein and Roberts to the SCIA Senator Feinstein (D-CA) and Senator Roberts (R-KS) sent a letter dated October 1, 2015, to Committee Chairman Barrasso and Vice-Chairman Tester (D-MT) (attached) stating that while the Committee is considering legislative "fixes" to the Carcieri decision, it can and should consider a comprehensive overhaul that not only remedies Carcieri, but also reforms how Interior regulates off-reservation gaming. HOBBS STRAUS DEAN & WALKER, LLP WASHINGTON, DC PORTLAND, OR OKLAHOMA CITY, OK SACRAMENTO, CA

3 General Memorandum October 19, 2015 Page 3 The Senators assert that "reservation shopping" causes conflicts with and burdens local communities. They call for amendments to the Indian Gaming Regulatory Act (IGRA) concerning off-reservation gaming to be included in S 1879 that: (1) requires a tribe to demonstrate, and the Secretary to confirm, a substantial and direct aboriginal connection; (2) requires a tribe to demonstrate that it maintains a modern connection with the proposed land to be acquired; (3) limits changes in use of the land; (4) provides for meaningful notice and comment beyond just bordering counties; and (5) requires the tribe to agree to enforceable mitigation agreements. NYSAC Resolution Opposing S 1879 The New York State Association of Counties (NYSAC) passed a resolution opposing S 1879 (attached). It calls upon the New York Congressional delegation to strongly oppose the bill. The resolution sets forth the NYSAC policy that any "Carcieri fix" must include a provision requiring local municipal consent for land to be taken into trust from the State of New York. Please let us know if we may provide additional information regarding S 1879, the Interior Improvement Act. # # # Inquiries may be directed to: Jennifer Hughes Geoff Strommer Greg Smith HOBBS STRAUS DEAN & WALKER, LLP WASHINGTON, DC PORTLAND, OR OKLAHOMA CITY, OK SACRAMENTO, CA

4 Commonly Asked Questions Regarding S. 1879, the Interior Improvement Act September 25, 2015 In July, Senator Barrasso, Chairman of the Senate Committee on Indian Affairs, introduced S. 1879, the Interior Improvement Act. This bill addresses the land-in-trust issues faced by Tribes following the Supreme Court s decision in Carcieri v. Salazar in Since that time, Tribes have been calling on Congress to amend the Indian Reorganization Act to reaffirm the Secretary of the Interior s authority to take lands into trust for all tribes, and to reaffirm the status of current lands held in trust for Tribes. (NCAI Resolutions #MSP ; #RAP ; #RAP C.) With legislative action expected this fall, NCAI is seeking tribal comment on this legislation. The following are some questions we have received from tribal representatives. 1) Why is it called the Interior Improvement Act? The legislation is more than a Carcieri Fix, although that is its primary feature. The bill addresses additional concerns with the land-in-trust process under the Indian Reorganization Act. The most common complaint regarding tribal land restoration has been delays and inaction at Interior. The legislation addresses these concerns by establishing timelines for Interior action, including a deemed approved provision, intended to expedite applications. The legislation also: codifies parts of the existing regulations for land-in-trust; encourages cooperative agreements between tribes and counties by incentivizing cooperative agreements, but does not penalize Tribes if cooperative agreements cannot be reached; requires good faith dealing on cooperative agreements; requires publication of land-in-trust applications on the Department of Interior website for increased transparency; and requires notice within 30 days of receipt of application to local governments, as well as tribes. 2) If applications with cooperative agreements receive preference, does this disadvantage land-in-trust applications where the local county will not agree? No. The legislation is specific that the Secretary is to consider whether the lack of an agreement is a result of bad faith and if an agreement is even needed. Cooperative agreements are encouraged, but not required. Applications with cooperative agreements may move a little more quickly, but this is also true under the current process, where applications that are unopposed

5 move more readily. Moreover, the timelines and deemed approved provision will likely speed up all applications. 3) What about timelines for on-reservation applications? The legislation as currently drafted only addresses off-reservation acquisitions because onreservation acquisitions are much less controversial, and the process for on-reservation acquisitions has generally been less burdensome for Tribes. 4) Why are there two different definition of Indian tribe? The major purpose of the legislation is to amend the original definition of Indian tribe from Section 19 if the Indian Reorganization Act of The bill does this, but also includes another more modern definition from the Indian Self-Determination Act. This is likely a technical drafting issue. NCAI is considering a recommendation to delete the secondary definition. 5) Do neighboring tribes have a voice in this proposed land to trust process? Yes. Under the current process, the Department considers the views of any party who submits comments on a proposed acquisition. The legislation also allows for comment, but amplifies the voice of contiguous jurisdictions, including those of Tribes with contiguous lands. Additionally, the legislation would require the Secretary to consult with Tribes about implementing regulations. 6) Many county and tribal governments have cooperative relationships, while others are not as cooperative. Does the legislation give a bigger role to the counties than under the current regulations? The legislation would give counties slightly more time to respond to a notice of a land-to-trust application (the clock wouldn t run until receipt of notice), and the counties would have better access to application materials on the internet. That is about it. The legislation would encourage local cooperation with all contiguous jurisdictions (Tribe, county, or otherwise) by giving a preference to cooperative agreements, but the current process also favors unopposed applications that come with local agreements. S may improve the opportunities for all Tribes because it requires the Secretary to consider whether the absence of a cooperative agreement is the result of a failure of a contiguous jurisdiction to work in good faith to reach an agreement. 7) What is "good faith"? Good faith is an abstract and comprehensive term that encompasses a sincere motive and fair dealing, without discrimination or with no deliberate intent to defraud the other party.

6 8) Does the preference for cooperative agreements with contiguous jurisdictions only apply to counties, or does it also apply to cities, townships, municipalities, and other local governments? As currently drafted, it would apply to counties, county equivalents, and Tribes with lands that are contiguous to the land under consideration in an application. (A county equivalent is the largest territorial division for local government within a State with the authority to enter into enforceable cooperative agreements with Indian tribes.) The Secretary may also give preference to other cooperative agreements, but would not be required to do so by statute. 9) If a Tribe seeks an off-reservation casino outside their contiguous lands, and has a county agreement, would the application be expedited in the new process? Also, many of these gaming applications have serious legal questions, would they be minimized by the new legislation? Furthermore, if a casino is built in another Tribe's ancestral or aboriginal lands, would those Tribes have an ability to challenge the application? If the legislation were enacted, a Tribe seeking off-reservation gaming would still be required to comply with the Indian Gaming Regulatory Act, which places limits on off-reservation gaming. Because the processes in Section 20 of IGRA and its regulations would remain in effect and are very time consuming, there would be no expedited review. Provisions in those regulations at 25 CFR and also require both historical and modern geographic connections to the land. These requirements would remain in effect as well. The proposed legislation does not disturb any other portion of the IRA or any portion of IGRA. 10) Some tribes have very small land bases. These tribes are actively seeking to add contiguous parcels, but they are not always available. So the tribe will seek nearby parcels or land groupings and place those in trust. These parcels are considered offreservation for purposes of 25 CFR Part 151, but the proximity to the existing Indian lands weighs heavily in favor of the tribe the closer the parcel is to the existing lands. Will this weighting will be lost with the enactment of the legislation? The 25 CFR 151 regulations, including the off-reservation provisions at , may need to be revised if the legislation is enacted. It seems likely that the proximity factor (distance from current lands at (b)) would be retained in some form because the distance of the land acquisition to the current tribal land base is relevant for all parties. However, the status of this provision would be uncertain until regulations are published. If desired by tribal leaders, the legislation might be modified to include a reference to proximity and the factors at (b).

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11 From NYSAC New York State Association of Counties 2015 Fall Seminar Resolutions 2015 NYSAC Fall Seminar Standing Committee on Native American Affairs and Gaming Resolution #2 WHEREAS, United States Senate bill S-1879 was introduced on July 29, 2015 as the Interior Improvement Act ; and WHEREAS, this bill amends the 1934 Indian Reorganization Act and purports to fix perceived inequities in the United States Supreme Court decision in Carcieri v. Salazar, 555 U.S. 379; and WHEREAS, the Supreme Court in Carcieri correctly applied the spirit and intent of the 1934 Act by limiting its effects to tribes whose lands were previously subject to alienation under prior Congressional Acts, permitting restoration of lands to control by those tribes; and WHEREAS, in eliminating the term any recognized tribe now under Federal Jurisdiction from the 1934 Act and replacing it with any federally recognized tribe, the proposed bill permits the Secretary of the Interior to grant trust acquisitions anywhere and for the benefit of any Indian or Indian tribe by the Federal Administration controlling the Department of the Interior at the time of the application, all without Congressional oversight at the Secretary s discretion; and WHEREAS, the proposed bill fails to provide meaningful local input to the land to trust process, permitting the Secretary to disregard local municipal comment and ignore an Indian tribe s failure to obtain cooperative agreements with local municipal governments that might minimize the disruptive impact of trust acquisition or even worse, to determine that a local municipality s failure to agree to tribal demands in connection with such application constitutes a failure to bargain in good faith; and

12 WHEREAS, empowering the Secretary with such discretion would in effect, create a virtual administrative veto over local objections to tribal trust acquisitions and would permit the Secretary, based on political or other considerations to authorize Federal, Indian controlled enclaves into heavily populated areas resulting inevitably in administrative disruption and local economic instability; and WHEREAS, it is the stated policy of the New York State Association of Counties and the National Association of Counties, that any so-called Carcieri fix must include a provision requiring local municipal consent for land to be taken into trust from the State of New York. NOW, THEREFORE, BE IT RESOLVED, that the New York State Association of Counties opposes Senate bill S-1879 and respectfully urges the strongest opposition to this bill from New York s Congressional delegation and from the United States Senate as a whole; and BE IT FURTHER RESOLVED, that the New York State Association of Counties requests that our State legislators affirm and convey to our Congressional delegation, their opposition to this bill; and BE IT FURTHER RESOLVED, that copies of this resolution be sent to the sixty-two counties of New York State encouraging member counties to enact similar resolutions; and BE IT FURTHER RESOLVED, that the New York State Association of Counties shall forward copies of this resolution to Governor Andrew M. Cuomo, the New York State Legislature and all others deemed necessary and proper.

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