Update on Tribal Supreme Court Project and Fee-To- Trust Regulations January 23, 2018 1
OCTOBER 2017 TERM First full term of Justice Neil Gorsuch Court already has many significant cases on its docket (voting rights, search and seizure, religious liberty) Numerous Indian law cases that present significant issues and/or areas of law
Coachella Valley Water District v. Agua Caliente (17-40) Whether the federal reserved right doctrine recognized in Winters v. United States applies to groundwater appurtenant to an Indian reservation.
Patchak v. Zinke (16-498) Gun Lake Trust Land Reaffirmation Act (P.L. 113-179) Does a statute directing the federal courts to promptly dismiss a pending lawsuit violate the Constitution s separation of powers principles?
Upper Skagit v. Lundgren (17-387) Whether a court's exercise of in rem jurisdiction overcomes the jurisdictional bar of tribal sovereign immunity when the tribe has not waived immunity and Congress has not unequivocally abrogated it. 5
Washington v. U.S. (17-269) Whether the treaty right of taking fish guaranteed that the number of fish would always be sufficient to provide a moderate living to the Tribes. Whether the State s equitable defenses against the federal government should have been dismissed given decades of federal input in culvert design. Whether requiring Washington to expend billions of dollars to replace hundreds of culverts violates principles of federalism and comity.
South Dakota v. Wayfair (17-494) Whether the State may apply its retail sales and use taxes to internet sales made an out-of-state retailer that has no physical presence in the state. Tribes not directly implicated, but see Central Machinery v. Arizona Tax Comm n. No state tax on delivery sales to an Indian in Indian country. Do South Dakota sales tax laws unduly burden interstate commerce? Do they unduly burden commerce with Indian tribes?
Washington v. Cougar Den (16-1498) 1855 treaty between the United States and the Yakama Indian Nation provides members of the tribe the right, in common with citizens of the United States, to travel upon all public highways. Whether the Yakama Treaty of 1855 creates a right for tribal members to avoid state taxes on off reservation commercial activities that make use of public highways.
Herrera v. Wyoming (17-532) Whether Wyoming's admission to the Union or the establishment of the Bighorn National Forest abrogated the Crow Tribe of Indians 1868 federal treaty right to hunt on the unoccupied lands of the United States, thereby permitting the present-day criminal conviction of a Crow member who engaged in subsistence hunting for his family. 9
OTHER PENDING LITIGATION Aqua Caliente v. Riverside County tax on lease interests Wyoming v. EPA reservation diminishment at Wind River Murphy v. Oklahoma 5 Tribes reservations not disestablished Hopi v. Trump Bears Ears National Monument Texas v. Zinke challenge to Indian Child Welfare Act 10
TRIBAL LANDS WORKGROUP Fee to Trust Regulations: Interior is currently holding consultations on amending the Part 151 process Infrastructure Permitting: Standing Rock brought national attention to tribal interests in the permitting process Trust Asset Management Plans: Implementation of the Indian Trust Asset Reform Act Restricted Fee Lands: Related to H.R. 215, the American Indian Empowerment Act. Research restricted land status with comparison to trust land status Meeting on February 12 at 1:30-5pm in DC 11
BACKGROUND ON INTERIOR FEE TO TRUST PROPOSAL April 2017 DOI transfers all off-reservation acquisitions to Central Office October 4, 2017 DTLL w/consultation Draft October 16, 2017 NCAI Listening Session on Land-into-Trust & NCAI Passes Res: MKE-17-059 BIA withdraws consultations until further notice December 7, 2017 DTLL issued without Consultation Draft, but with 5 additional questions (10 questions) 12
CURRENT REQUIRED CRITERIA Currently, tribes are required to submit: A legal description of the land to be acquired The legal name of the Indian tribe or individual Proof of an eligible Indian tribe or individual The specific reason the applicant is requesting the U.S. acquire the land A valid title commitment Information necessary for DOI to comply with NEPA & 601 DM 2 Hazardous Substances 13
CURRENT BIA CONSIDERATIONS OFF- RESERVATION Statutory Authority Need for the land Purpose for which land will be used Impact on state and political subdivisions on removal of the land from tax rolls Jurisdiction problems and potential conflicts of land use that may arise Whether the BIA is equipped to discharge additional responsibilities necessary once land is in trust NEPA & Hazardous Substance information 14
CURRENT BIA CONSIDERATIONS OFF- RESERVATION (CONTINUED) As distance between tribe s reservation and land to be acquired increases, tribal applicants will face increased scrutiny and state and local comments will be given additional weight If land is being acquired for business purposes, the tribe shall provide a business plan detailing economic benefits associated with proposed use When Interior receives request, it will notify state and local governments and give them an opportunity to comment on potential impacts on regulatory jurisdiction, real property taxes and special assessments 15
PROBLEMS WITH CONSULTATION DRAFT New 2-step review process Would include enhanced requirements for Tribes to address state & local interests, including the completion of an MOU and/or other agreements with state and local governments, and if not to explain why not The 2-step review process would add a land use approval process into the land into trust process allowing the federal government to withhold land acquisitions until the tribe proposes a use the federal government approves. 16
PROBLEMS WITH CONSULTATION DRAFT Would create two categories of off-reservation acquisitions: gaming & non-gaming The inclusion of gaming considerations in the land into trust process is prohibited by IGRA at Section 2719(c), which states Nothing in this section shall affect or diminish the authority and responsibility of the Secretary to take land into trust. 17
PROBLEMS WITH OCTOBER 4 CONSULTATION DRAFT (CONTINUED) Would reinstate Interior s 30 day self-stay policy for both on and off reservation acquisitions The reinstatement of the 30 day stay before taking land into trust would invite litigation, and keep the land out of trust until the litigation concludes Many are frivolous claims filed by anti-indian groups Subjects an otherwise approved application to years of delay and tax liability. 18
PROBLEMS WITH CONSULTATION DRAFT No consultation with tribes prior to drafting Policies should be developed with a confirmed Assistant Secretary-Indian Affairs & with the benefit of an appointed Deputy Solicitor-Indian Affairs Avoids the Senate s authority to advise and consent on the President s appointments and the policies they create 19
OFF-RESERVATION ACQUISITIONS Many tribes have trust parcels and no reservation boundary Small or diminished reservations Geographically land-locked Cultural resources, natural resources or population service areas located off-reservation Many reservations insufficient as a viable land base Creating a heavy presumption against off-reservation not intended in the IRA. Interior needs a fuller picture of tribal lands needs 20
GENERAL TALKING POINTS Focus on why land recovery is important to your tribe. Offreservation acquisitions are vital, but for a variety of reasons. Tell your story, bring your maps. The new regulations will increase regulatory burdens, and are contrary to the goals of the Trump Administration to decrease federal regulations. Any attempt to conflate gaming concerns with the broader land-into-trust process should be strongly opposed The two-step process is a faster way to deny applications before the tribe can provide justification 21
Consultation Locations & Dates 1.16 Sacramento, CA 1.18 Prior Lake, MN 1.23 Mashantucket, CT - Postponed 1.25 Portland, OR 2.20 Phoenix, AZ 2.22 Miami, FL NCAI has requested an additional session during the Executive Council Winter Session February 12-15 22
Thank You! National Congress of American Indians (202) 466-7767 23