Fee-to-Trust: What To Expect in the Current Administration Tribal Summit Group September Summit Meeting September 20, 2017
Outline History of Fee to Trust Colonial and early US Indian Removal Act Indian Reorganization Act Definitions of status Why is this important? Fee-to-Trust Acquisition Process Application to BIA BIA Review Off-reservation acquisitions may occur Typical Uses Off-Reservation Gaming Controversy Trump Administration: What Has Changed Budget Cuts New Approval process 2-part determinations Cason s concern about trust issues Gaming versus non-gaming
History of Fee-to-Trust Treaty of Paris east of Mississippi John C. Calhoun Founded Office of Indian Affairs to solve land use conflicts Colonial and Early History Indian Appropriations Act: creation of Indian reservations in modern-day Oklahoma Dawes Act/General Allotment (Severalty) Act: ended policy of granting land parcels to tribes as whole by granting small parcels of land to individual tribe members 1783 1794 1824 1830 1851 1868 1887 1934 Plan for Future Management of Indian Affairs (settlement boundaries) Indian Removal Actforceful moving of native populations away from European populated areas Peace Policy forced assimiliation with Christianity, relocation from ancestral homes, reservations reduced in size, wars and massacres Indian Reorganization Act reversed some earlier privatizations, encouraged tribal sovereignty and land management
History Continued Recent History 1940 s to mid-1960 s: Indian termination with policies and laws with intent to assimilate Native Americans into mainstream American society House Concurrent Resolution 108: called for termination of several federally recognized tribes House Concurrent Resolution 108 formally was abandoned. Many terminated tribes regained federal recognition. 1940 s 1953 1956 1988 Public Law 280 gave State governments the power to assume jurisdiction over Indian reservations, which has previously been excluded from states. Indian Relocation Act of 1956 Federal law encouraging Native Americans, who lived on or near reservations to relocate to urban areas for greater employment opportunities.
Definitions Federally Recognized Tribe: American Indian or Alaska Native tribal entity that is recognized as having a government-togovernment relationship with the US, with the responsibilities, powers, limitations, and obligations attached to that designation, and is eligible for funding and services from the Bureau of Indian Affairs. Federal Indian Reservation: an area of land reserved for a tribe or tribes under treaty or other agreement with the US, executive order, or federal statute or administrative action as permanent tribal homelands, and where the federal government holds title to the land in trust on behalf of the tribe. Generally exempt from state
Definitions Allotted Lands: remnants of reservations broken up during the federal allotment period of the late 19 th and early 20 th centuries. Conveyed to members of affected tribes and held in trust by federal government Restricted Status: (also known as restricted fee ) title to the land is held by an individual Indian person or a tribe and which can only be sold by the owner with the approval of the Secretary of the Interior. State Indian Reservations: lands held in trust by a state for an Indian tribe. Private property (land owned in fee): American Indian and Alaska Native tribes, businesses, and individuals may also own land as private property. In such cases, they are subject to state and local laws, regulations, codes and taxation.
Fee-to-Trust Acquisition Process Land-Into-Trust: a process where Secretary of Department of the Interior acquires property and holds it for a Native American Tribe or individual tribal members. Land owned in fee or fee simple : landowner owns land completely (typical property ownership) Fee-to-Trust: An individual or tribe submits a written application to the Bureau of Indian Affairs requesting land owned in fee to be placed into trust status. The BIA reviews each application. (see process chart).
Why is this Important? Management and governance over tribal lands is linked to self-governance and tribal sovereignty. Of 90 million acres lost, only 8% regained in trust status through Indian Reformation Act Many tribes do not have enough land to support housing and self-government BIA is responsible for assuring land is protected for tribe s exclusive use. A tribe or individual who owns trust land must have permission from the BIA to develop, mortgage or sell the land. In addition because of past land allotments, leading to some sales to non- Native Americans, some reservations are severely fragmented, with each piece of tribal, individual, and privately held land being a separate enclave. This results in administrative, political and legal difficulties.
Trump Administration What Has Changed? Off-reservation gaming has a different standard than those acquisitions for general economic development. Secretary Ryan Zinke ordered all off-reservation gaming applications be approved by his office (April 2017) The official now in charge of off-reservation casinos is the Acting Deputy Secretary at the Interior (Jim Cason). He played an active role in putting an end to off-reservation projects during his tenure with the Bush Administration Casinos for restored and recognized tribes fall into a different category than those labeled as off-reservation. Through the Indian Gaming Regulatory Act, Congress accounted for the fact that these tribes either had their homelands taken by the federal government or were never given a change to acquire new lands. Off-reservation casinos, on the other hand, are envisioned in cases where a tribe has an existing reservation but chooses, for whatever reason, to seek a casino elsewhere. In recognition of the unusual circumstances, a tribe must secure approval from the BIA as well as from the state governor. Known as a two-part determination, approvals for these types of developments are rare. Between 1998 and 2000 when IGRA became law, only 3 tribes completed both steps of the process. Obama Administration approved 4 two-part determinations.
Trump Administration What Has Changed? While the BIA is still responsible for much of the review process for off-reservation applications, Zinke s directive requires the most significant parts to be handled by political officials in Washington, DC. Zinke also wants D.C. to take a closer look even when an off-reservation application doesn t involve gaming. There was a $15 million budget reduction for Tribal Land Acquisition under the Trump Administration. The existing BIA appropriates related to taking land into trust would be cut, including costs of managing the National Environmental Policy Act (NEPA) process and the staff on the federal side to manage the process. The Land Buy-Back program for tribal nations implements the land consolidation component of the Cobell Settlement, which provided $1.9 billion to purchase fractional interests in trust from willing sellers at fair market value. Trump is prepared to let the program die after a top official said it wasn t achieving results. Unless Congress steps in, the money will definitely run out in less than three years. There has been an unofficial moratorium on land-into-trust applications. Cason said that the department does not want to approve any new applications.
Fee to Trust Review Process
Questions What is the general feeling of the Trump Administration about Fee-to-Trust applications?
Questions Is the administration treating Fee-to Trust applications for off-reservation Economic development different that off-reservation gaming?
Questions How has the application process changed? Has the Administration filled all of the positions necessary to review and approve applications?
Questions