Fee-to-Trust Rule Finalized

By: Gabriela Rios | Attorney | gabriela.rios@procopio.com
Theodore J. Griswold | Partner | ted.griswold@procopio.com

Earlier this week, the Bureau of Indian Affairs (BIA) announced its Final Rule regarding title evidence for trust land acquisitions. Although it was originally intended to go into effect on April 15, 2016, as described in Trust Lands an Easier Target for Tribes, it extended the postponed the effective date to May 16, 2016 to review comments and make technical revisions.

The final rule, available here, clarifies the text of the proposed rule and eliminates unnecessary redundancies. Most commentators supported the rule, but some felt that the current Department of Justice Standards (DOJ) are necessary to protect the public and protect against conflicts of interest. The BIA ultimately found the final rule to provide “sufficient standards to protect the United States.”

The final rule clarifies that written evidence of title includes the applicant’s deed or, if the applicant does not have title, the transferors’ deed and a written statement that it will transfer title to the United States on behalf of the applicant. It also deletes the requirements from the proposed rule regarding the need to provide written evidence of how the applicant or the current owner acquired title, determining that this requirement was redundant of other requirements. The BIA has also updated the Fee-to-Trust Handbook, available here, to reflect the new changes.

Only time will tell if the new rule has a significant positive impact on the fee-to-trust review process, but for now we will remain cautiously optimistic.

Gabriela is an attorney with the Native American Law Practice Group and citizen of the Cahuilla Band of Indians. She graduated from the James E. Rogers College of Law at the University of Arizona in 2015 and was recently admitted to the State Bar of California.

Ted is head of the Native American Law practice group and primary editor for the Blogging Circle. Connect with Ted at ted.griswold@procopio.com and 619.515.3277.

 

Trust Doesn’t Mean Never Having to Say You’re Sorry

By: Anna Hohag | Intern | anna.hohag@procopio.com
Theodore J. Griswold | Partner | ted.griswold@procopio.com

The first step to healing is to identify the problem of the injury. This is a simple, common sense idea that has been around since, well, forever. Some countries around the world are doing just that when it comes to implementing Indigenous policies.

Every year on May 26, Australia observes National Sorry Day, a day dedicated to reconciliation efforts between the Government and the indigenous people in Australia. Sorry Day gives people the chance to come together and move together towards healing for the Stolen Generations, their families and communities. Stolen Generations refer to Indigenous Australians who were forcibly removed from their families and communities as recently as today. Events include reconciliation walks and street marches, flag raising events (the aboriginal flag is a national symbol of Sorry Day), and speeches from community leaders, including indigenous Australian elders and educators. The Government publicly acknowledges the injury, the first step towards healing.

Similarly, Canada is in the midst of a public reconciliation movement and implementing policies reflecting that movement. Truth and reconciliation commissions are tasked with discovering and revealing past wrongdoing by a government in the hope of resolving conflict left over from the past. First Nations are being acknowledged and recognized.

Reconciliation movements in the US? None so far…

The United States has a long, tragic history of failed Indian policies since the time of contact with the indigenous peoples of this continent. Generations after Indian removal and assimilation policies—like the widely infamous “Trail of Tears” and the forceful removal of Indian children from their families and communities to Indian boarding schools—the General Allotment Act, and Termination policies, the United States has never implemented a public reconciliation policy. This type of public admission of generations of wrongdoings to Native Americans would provide absolutely essential education and awareness to the rest of the U.S. population. This would not only debunk the myriad negative misconceptions of Native people and tribes today, but would positively affect the ways in which laws and policies are made by creating a collective conscience regarding the potential effects on Indian Country. It might even correct the myriad of misleading lessons in our education system.

While there is no formal reconciliation movement, there are alternative ways that the U.S. government, using law, has recognized injustices done to Tribes by past failed policies. One example, is through the Indian Reorganization Act (IRA) of 1934.

The IRA established among many other things, an avenue for restoring a small percentage of lost tribal lands. As a result of disastrous policies like as the General Allotment Act (Dawes Act of 1887), tribal lands across the country were surveyed and divided into individual allotments for individual Indians, with the remaining tribal lands – the “surplus land”—opened up for non-Indian settlement. The result was devastating to American Indians. The General Allotment Act caused Indian land holdings to plunge from 138 million acres in 1887 to 48 million acres by 1934 when allotment ended. That’s a loss of about 90 million acres of Indian land simply at the hands of one allotment policy. Not only did the enactment of the IRA put an end to allotment, but it also provided an avenue for restoring tribal lands through the Fee-to-Trust process. Having fee simple lands transferred into federal trust status is a powerful tool for making reservations whole and protecting Indian lands for future generations. When fee lands are returned to trust, Indian nations and people begin to eliminate the checkerboard pattern of trust and fee lands and regain control of lands on the reservation.

Still Tribal governments face opposition to fee to trust transfers, with municipalities claiming that they “lose” in the transaction, by admonished tax base. But is it a loss? No, it should be considered a return to Native hands. This type of more correct understanding may be another result if the federal Government took that simple step that other countries have taken – saying it is sorry.

Anna is a citizen of the Bishop Paiute Tribe and born and raised in the Eastern Sierras in Bishop, CA. She is entering her second year of law school at the James E. Rogers College of Law at The University of Arizona. She is a Board Member on the California Indian Law Association and the 2015-2016 National NALSA Area 1 Representative. Before attending law school she worked for the Pala Band of Mission Indians as the Tribal Liaison. Anna is a recipient of the 2015 Procopio Native American Internship.

Ted is head of the Native American Law practice group and primary editor for the Blogging Circle. Connect with Ted at ted.griswold@procopio.com and 619.515.3277.

Carcieri Clarification: BIA Allowed to Limit Consideration to Whether Tribal Government is “Under Federal Jurisdiction” in 1934 for Fee to Trust Decisions

By: Rachel Giubilato | Law Clerk
Theodore J. Griswold | Partner | ted.griswold@procopio.com

The DC Circuit Court in The Confederated Tribes of the Grand Ronde Community of Oregon, et al., v. Sally Jewell, et. al., (Civil Action No. 13-849 (BJR) December 12, 2014) undertook clarifying the ambiguity of Native fee-to-trust determinations left in the wake of Carcieri. In Carcieri v. Salazar, 555 U.S. 379 (2009), the Supreme Court held the definition of “Indian” under the Indian Reorganization Act of 1934 (IRA) applied to a tribal government “under federal jurisdiction” as of the date of enactment, 1934. However, the Carcieri Court remained silent as to whether a tribal government also had to be federally “recognized” as of 1934 to qualify.

Two schools of thought subsequently developed: the first believing a tribal government must be “under federal jurisdiction” and “recognized” as of 1934 for qualification under the IRA, and the second believing “under federal jurisdiction” and “recognized” to be separate concepts with only “under federal jurisdiction” subject to the 1934 cut-off. Since Carcieri, the Department of the Interior (DOI) has adopted the latter interpretation, continuing to accept land into trust for tribes who were deemed “recognized” post-1934.

The dispute in The Confederated Tribes of Grand Ronde arose from the DOI’s acceptance into trust of 152 acres of fee land owned by the Cowlitz Indian Tribe. The Confederated Tribes of Grand Ronde (Grand Ronde), together with Clark County, disputed the DOI determination, arguing that Cowlitz does not qualify under the IRA definition of “Indian” because they did not attain federal recognition until 2002 (consistent with the first school of thought explained above). Grand Ronde and Clark County sought reversal of the DOI determination on the basis that DOI made an unreasonable interpretation that only the “under federal jurisdiction” requirement of IRA was required for fee-to-trust decision.

The DOI countered that its interpretation was reasonable, and pursuant to Chevron U.S.A. Inc. v. Natural Resources Defense Council Inc., 467 U.S. 837 (1984), judicial deference must be provided to an agency’s determination when a statute is ambiguous and the agency has provided a reasonable interpretation. The court agreed and upheld the DOI determination as dispositive of Cowlitz’s status under the IRA.

Keeping the concepts of “under federal jurisdiction” and “recognized” separate is pertinent for tribal governments seeking federal recognition as the scope of tribal governments that were considered “under federal jurisdiction” is much broader than the tribal governments “recognized” through the federal government in 1934.

For now, tribal governments and those relying on this determination for a fee-to-trust decision can continue to rely on the DOI interpretation that only “under federal jurisdiction” is required while they await the legislative clarification for the Carcieri case.

Ted is head of the Native American Law practice group and primary editor for the Blogging Circle. Connect with Ted at ted.griswold@procopio.com and 619.515.3277.