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REAFFIRMING THE AUTHORITY OF THE SECRETARY OF THE INTERIOR TO TAKE LAND
INTO TRUST FOR INDIAN TRIBES
Ms. LEGER FERNANDEZ. Madam Speaker, I move to suspend the rules and pass the bill (H.R. 4352) to amend the Act of June 18, 1934, to reaffirm the authority of the Secretary of the Interior to take land into trust for Indian Tribes, and for other purposes.
The Clerk read the title of the bill.
The text of the bill is as follows:
H.R. 4352
Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,
SECTION 1. REAFFIRMATION OF AUTHORITY.
(a) Modification.--
(1) In general.--The first sentence of section 19 of the Act of June 18, 1934 (25 U.S.C. 5129), is amended--
(A) by striking ``The term'' and inserting ``Effective beginning June 18, 1934, the term''; and
(B) by striking ``any recognized Indian tribe now under Federal jurisdiction'' and inserting ``any federally recognized Indian Tribe''.
(2) Effective date.--The amendments made by paragraph (1) shall take effect as if included in the Act of June 18, 1934
(commonly known as the ``Indian Reorganization Act''; 25 U.S.C. 5101 et seq.), on the date of the enactment of that Act.
(b) Ratification and Confirmation of Actions.--Any action taken by the Secretary of the Interior pursuant to the Act of June 18, 1934 (25 U.S.C. 5101 et seq.), for any Indian Tribe that was federally recognized on the date of the action is ratified and confirmed, to the extent such action is subjected to challenge based on whether the Indian Tribe was federally recognized or under Federal jurisdiction on June 18, 1934, as if the action had, by prior Act of Congress, been specifically authorized and directed.
(c) Effect on Other Laws.--
(1) In general.--Nothing in this section or the amendments made by this section affects--
(A) the application or effect of any Federal law other than the Act of June 18, 1934 (25 U.S.C. 5101 et seq.), as amended by subsection (a); or
(B) any limitation on the authority of the Secretary of the Interior under any Federal law or regulation other than the Act of June 18, 1934 (25 U.S.C. 5101 et seq.), as amended by subsection (a).
(2) References in other laws.--An express reference to the Act of June 18, 1934 (25 U.S.C. 5101 et seq.), contained in any other Federal law shall be considered to be a reference to that Act as amended by subsection (a).
The SPEAKER pro tempore. Pursuant to the rule, the gentlewoman from New Mexico (Ms. Leger Fernandez) and the gentleman from Arkansas (Mr. Westerman) each will control 20 minutes.
The Chair recognizes the gentlewoman from New Mexico.
General Leave
Ms. LEGER FERNANDEZ. Madam Speaker, I ask unanimous consent that all Members may have 5 legislative days in which to revise and extend their remarks and include extraneous material on the measure under consideration.
The SPEAKER pro tempore. Is there objection to the request of the gentlewoman from New Mexico?
There was no objection.
Ms. LEGER FERNANDEZ. Madam Speaker, I yield myself such time as I may consume.
Madam Speaker, H.R. 4352 amends section 19 of the Indian Reorganization Act to allow the Secretary of the Interior to take land into trust for federally recognized Indian Tribes regardless of their date of recognition.
Over a decade ago, in the Carcieri v. Salazar case, the Supreme Court held that the Secretary of the Interior's authority under the Indian Reorganization Act to place land into trust for a Tribe applies only to Tribes that were under Federal jurisdiction in 1934.
Before the Carcieri decision, the Department of the Interior, under previous administrations, had consistently interpreted the Indian Reorganization Act as authorizing the Department to take land into trust for any Tribe as long as the Tribe was federally recognized at the time of its land-into-trust application.
Placing land into trust is vital for Tribal sovereignty and self-
determination. We must remember that most of the land sought to be placed in trust is actually historic land, aboriginal land of the Tribes themselves, and they are simply seeking to reacquire it and to have the same trust protections placed on that land as their other land.
Placing land into trust also confers important protections, benefits, and flexibility for Tribes, including protections essential for supporting Tribal cultural practices and well-being as well as their ability to exercise jurisdiction over that land.
However, the Carcieri decision overturned 75 years of Department of the Interior practice by holding that the Indian Reorganization Act provided the Interior Department with authorization to take land into trust only for Tribes that were federally recognized at the time of the enactment of the Indian Reorganization Act of 1934.
As a result, the Court's decision created a two-tier system of the haves and have nots among federally recognized Tribes applying for trust land acquisition.
Now, Tribes that have been recognized after 1934 cannot apply with the Interior Department to have land taken into trust. Instead, each of these Tribes must seek new legislation from Congress every single time they have a similar land request.
We have already seen the real-world consequences of the Carcieri decision, as year after year Congress has to pass stand-alone bills for individual Tribes on a piecemeal basis to protect their lands. In fact, in a few moments we will consider exactly such a bill.
The Carcieri decision also opened up Tribes to costly lawsuits regarding land that they have held in trust for years, sometimes decades. It has taken almost a century for us to begin undoing the damage we inflicted on our Nation's indigenous peoples upon colonial contact.
The 1934 Indian Reorganization Act was an important step in that healing process with the Tribes, but we now know that our work is not yet done. We are still federally acknowledging Tribes to this day. We passed a Tribal recognition bill here in the House on November 1.
To this day, Congress is still working to right many wrongs from the Federal Government. We are still striving to return a portion, just a small portion of the land back to the Tribes.
To say that Tribes federally recognized after 1934 are somehow inferior to Tribes federally recognized before is dangerously ignorant of the idea that we right now are on Indian land.
H.R. 4352, introduced by the gentlewoman from Minnesota (Ms. McCollum), will right this wrong and amend the Indian Reorganization Act to ensure that all federally recognized Tribes are treated equally, regardless of their date of recognition.
For more than a decade, the Carcieri decision has caused anxiety and confusion in Indian Country. It has created dangerous legal ambiguities related to Indian trust lands.
Passing this bill will remove the ambiguity and uncertainty surrounding land into trust and finally offer all 574 federally recognized Tribal nations peace of mind that their lands can be protected.
I urge the swift adoption of the bill, and I reserve the balance of my time.
Mr. WESTERMAN. Madam Speaker, I yield myself such time as I may consume.
Madam Speaker, as the gentlewoman described, this is a very complex issue with a long history behind it. H.R. 4352 would reverse a 2009 Supreme Court decision, Carcieri v. Salazar, which held that the Indian Reorganization Act does not authorize the Secretary of the Interior to acquire land in trust for Tribes that were not under Federal jurisdiction in 1934 when the act was passed.
The Carcieri decision created vast uncertainty over the fee-to-trust process for Tribes and impacted stakeholders. Since the decision was handed down, there has been no resolution in this incredibly complex issue.
Lands taken into trust are extremely important to Tribes. Tribes' desire to increase their Tribal land base and help their communities must be respected. There are certain benefits and advantages afforded to Tribes having lands that are held in trust.
But we should be clear that even prior to Carcieri, the fee-to-trust process was far from perfect. We should not ignore the larger need to improve the process.
Many have argued the current Bureau of Indian Affairs process provides very limited incentive for community stakeholders to be partners and places little requirement on the BIA to analyze the impacts of a fee-to-trust decision on nearby communities or Tribes, often resulting in unresolved conflicts and litigation at the local level.
For the last decade, county governments have been asking us to reform this process. Their concerns with the tax, zoning, and community impacts of trust land acquisition have been well documented.
While this bill addresses the immediate impacts of the Carcieri decision, if this bill becomes law, nothing will have changed to address the larger issues with the fee-to-trust process. Congress should address the impacts of the Carcieri decision and enact needed reforms to improve the fee-to-trust process. Tribes and all stakeholders deserve as much, and I look forward to working with them on this important issue.
Madam Speaker, I reserve the balance of my time.
Ms. LEGER FERNANDEZ. Madam Speaker, I would like to offer my gratitude to the next speaker for the hard work she has put into this bill so that we can resolve this issue now and into the future.
I yield 5 minutes to the gentlewoman from Minnesota (Ms. McCollum).
Ms. McCOLLUM. Madam Speaker, I thank the gentlewoman from New Mexico for the generosity of the time.
As the author of H.R. 4352, I rise to encourage all of my colleagues to join in this bipartisan effort to end discrimination against Tribal nations and to ensure that all 574 federally recognized Tribal nations have the equal ability to restore their homelands through the Department of the Interior's fee-to-trust process.
This bill would confirm Congress' intent that the Indian Reorganization Act authorizes the Secretary of the Interior to place land into trust for all federally recognized Tribal nations, regardless of their date of recognition.
Let's be clear, what is at the heart of this bipartisan legislation is equality. All 574 federally recognized Tribal nations deserve to have equal access to the Federal process for restoring their homelands.
The U.S. Supreme Court's 2009 Carcieri decision violated this equality principle by forcing a two-tier system for the Department of the Interior's fee-to-trust process: One process for Tribal nations federally recognized before 1934 and a different process for Tribal nations recognized after 1934.
Carcieri imposed on federally recognized Tribal nations an unfair, separate, and unequal process, a fundamentally discriminatory process for restoring their homelands. Now is the time for Congress to fix this blatant discrimination against Tribal nations. For over a decade now, Tribal governments and Native American organizations have prioritized a clean Carcieri fix.
The president of the National Congress of American Indians, Ms. Fawn Sharp, made the following statement, ``Carcieri has effectively created two classes of Tribal nations and has overburdened Tribal, Federal, and State resources by generating unnecessary conflict over the restoration and retention of Tribal homelands, and consequently impeded economic development.
``NCAI strongly encourages Congress to end this turmoil by enacting a congressional fix to the Indian Reorganization Act which reaffirms the Secretary of the Interior's authority to restore Tribal homelands for all federally recognized Tribal nations.''
Chief Kirk Francis of the Penobscot Nation and president of the United Southern and Eastern Tribes, USET, adds his support, saying,
``Homelands are essential to exercising Tribal Government authority, protecting our cultural identity, and foundational to growing our economies. After decades of Federal efforts to diminish our homelands, placing land into trust is a critical aspect of the Federal Government's trust and treaty obligations and righting these historical wrongs.''
For years elected Tribal Government leaders have told Congress repeatedly that the Carcieri decision has caused significant hardship and has created second-class status for Tribal nations when it comes to restoring their homelands. Tribal governments currently experience enormous time and scarce resources fighting Carcieri-based lawsuits.
For example, Chairman Tom Wooten of the Samish Indian Nation in Washington State supports this bill, saying, ``H.R. 4352 will help right past wrongs by the Department of the Interior and enable the Samish Indian Nation to move forward in reestablishing our homeland and rebuilding our community.
``In 2018, the Interior Department approved the Tribe's trust land application for 6.7 acres after an over 9-year process to complete a Carcieri analysis. The Department's decision is tied up in endless litigation based upon Carcieri.
``This bill would stop frivolous litigation to ensure that no other Tribe has to go through what we went through.''
Madam Speaker, this is why we need to take action today, to pass a clean Carcieri fix. Since the 2009 opinion, Members in both Chambers of Congress, both Republicans and Democrats, have introduced legislation to restore the original intent of the Indian Reorganization Act.
This is a completely bipartisan issue. In fact, I will say it is a nonpartisan issue. This bill restores a fair and equal land-into-trust process, which is a fundamental responsibility within our government-
to-government relationship with all federally recognized Tribal nations.
Last Congress, the House overwhelmingly supported Representative Tom Cole's legislation to fix this longstanding issue for Indian Country, which I proudly cosponsored. Today, I ask my colleagues to join us again in passing a clean Carcieri fix.
Madam Speaker, Tribal nations should not be discriminated against because of their date of Federal recognition. The date has no bearing on their existence as sovereign nations, so it should have no bearing on their right to reestablish their homelands.
I urge my colleagues to support the bill.
Mr. WESTERMAN. Madam Speaker, I yield 4 minutes to the gentleman from Arizona (Mr. Gosar).
Mr. GOSAR. Madam Speaker, I thank the ranking member for yielding such time.
I rise today in strong opposition to the current form of H.R. 4352.
In 1988, Congress enacted the Indian Gaming Regulatory Act, or IGRA, with the intent to restrict casinos to Tribes' original reservations.
H.R. 4352 reverses a major 2009 Supreme Court decision, and the bill would lead to future abuses of IGRA. The bill gives unelected bureaucrats a blank check to take any land anywhere in America into trust without respect for impacted communities, including other Tribes.
More importantly, H.R. 4352 allows reservation shopping and for lands to be taken into trust for off-reservation casinos in places where States, local governments, and other Tribes oppose such action.
H.R. 4352 will result in a flood of new off-reservation casinos that cause harm to States and local communities. Many of these casino locations are nowhere near Tribes' historic reservations and will be handpicked by gambling investors and Washington bureaucrats.
If H.R. 4352 passes, all Tribes would have to do in order to get land taken into trust and open off-reservation casinos is to show that they are federally recognized by the Department of the Interior.
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The reality is that this bill could be fixed.
Last Congress, in committee, we talked about the importance of finding common ground on which to address community concerns about off-
reservation casino abuse and the valid concerns brought to the committee by State and county governments.
H.R. 4352 should be considered under an open rule and amended prior to being brought to the floor to address these real bipartisan concerns about the real-world impacts of the bill.
Taking land into trust divests the affected State and local governments of jurisdiction. When land is taken into trust, for example, the Tribe will pay no applicable taxes on the land, but the county or city in which the land is located might nonetheless be required to supply the Tribe with county and city services, and non-
Tribal residents will pay for it.
At least consultation should be a minimum. Tribes demand this in reverse.
The bill as currently drafted, therefore, increases the power of an unelected bureaucracy to divest nonconsenting State and local governments of jurisdiction over their land. This, by itself, is a great cause of concern.
Let's be clear about H.R. 4352. A bill of this scope and magnitude deserves more careful consideration than is being given here today.
Currently, there are almost 600 recognized Tribes in the United States. About 240 of them have gaming operations.
H.R. 4352 removes the dam that provides some restraint on the number of Tribal casinos and would be a dramatic departure from the existing Federal law that has been in place for almost a century.
Before voting on a bill of this magnitude, I hope Members all understand that H.R. 4352 will open the floodgates to off-reservation Tribal casinos all over the United States.
If H.R. 4352 passes, all federally recognized Tribes will be eligible to receive land in trust and potentially open off-reservation casinos. This includes any Tribe recognized by the Department of the Interior that was ineligible to receive land in trust and/or was denied land in trust prior to H.R. 4352.
According to the National Indian Gaming Commission fact sheet, as of 2016, approximately 329, or 58 percent, of the recognized Tribes have no gaming operations.
There is a responsible way for Congress to address these issues. Just 1 month ago, the House passed H.R. 4881, the Old Pascua Community Land Acquisition Act. The broad bipartisan bill was done exactly the way it should have been done, with community input, broad bipartisan support, and, most importantly, congressional oversight.
But H.R. 4352 ignores all of that and more. It lets an unelected bureaucracy give whatever land it wants to all recognized Tribes. Thus, the important process that made H.R. 4881 a success would be ignored if H.R. 4352 passes.
Let's be clear. Passage of H.R. 4352 will allow for new off-
reservation casinos to be opened in your States, in your communities, and in your backyard, and for land to be ripped away from local jurisdictions without recourse.
As I have constantly said, good process equals good policy equals good politics. This wasn't done.
I urge all Members to vote ``no'' on H.R. 4352.
Ms. LEGER FERNANDEZ. Madam Speaker, I reserve the balance of my time.
Mr. WESTERMAN. Madam Speaker, I yield 4 minutes to the gentleman from Oklahoma (Mr. Cole).
Mr. COLE. Madam Speaker, I thank my good friend from Arkansas for yielding and being so generous with the time.
Madam Speaker, I rise in strong support of H.R. 4352. Along with my good friend, Representative McCollum of Minnesota, I am proud to cosponsor this legislation.
The legislation amends the Indian Reorganization Act of 1934 and reaffirms the right of the Secretary of the Interior to place land into trust for federally recognized Indian Tribes.
Madam Speaker, as I am sure most people in this House know, the history and relationship between the United States and Indian Tribes isn't something to always be proud of. Frankly, with the passage of the Dawes Act in 1887, Tribes all over the country, but particularly in my State of Oklahoma, were systematically stripped of their lands, and individual Tribal members were as well. I know this because my Tribe was one of the victims. My family was one of the losers in the process.
In 1934, the Federal Government wisely saw that it had made a bad mistake and intervened with the Indian Reorganization Act to protect the remaining Indian lands and to allow modest additions and reacquisitions of that land.
For 75 years, it worked pretty much the way it was supposed to work, whether it was a Democratic or a Republican administration. Land was protected and modestly brought back into trust--only 9 million acres so far since 1934, so it is not as if we have had a large transfer of land back. But we have protected what was there and added back to Tribal patrimony where it made sense.
All that was upset by the Carcieri v. Salazar decision in 2009. That was a really bad decision, quite frankly. It did, as my friends from New Mexico and Minnesota both pointed out, upset the balance. It created a two-tiered system and penalized Tribes that had not been federally recognized in 1934. That, by the way, wasn't just ``new Tribes.'' A lot of them--the case was based on the Narragansetts in Rhode Island--actually had been around for a long time.
The Narragansetts are in the same place they always were. They were recognized by the State of Rhode Island but for some reason weren't in the 1934 bill.
So a lot of people have been victimized by this, and frankly, a lot of interests have tried to exploit it.
We have had an opportunity on a couple of occasions to fix it. Actually, this House should be proud. In December 2010, my amendment to an appropriations bill, supported by my good friend Ms. McCollum, we got it out of the House, but it died in the Senate that same December.
As my friend from Minnesota alluded, we passed legislation in the last Congress to deal with this issue on an overwhelmingly bipartisan vote.
I would just say, for the record, I have introduced legislation on this every year since 2009. My friend, Ms. McCollum, has done pretty much the same, and we have always cosponsored one another's legislation. So I am very proud to be here and support this bill.
I urge passage of this bill. It is a matter of justice for the Tribes, but it is also a matter of equity and a matter of, frankly, legislative convenience.
Madam Speaker, I strongly support my friend's bill, H.R. 4352, and urge its passage.
Ms. LEGER FERNANDEZ. Madam Speaker, I yield myself such time as I may consume.
I truly appreciate Representative Cole bringing into the discussion about this bill the fact of how it has impacted his own Tribe and their ability to take land into trust and not be subject to these unnecessary, frivolous, and time-consuming, as well as expensive, lawsuits that just create confusion out there.
I think the fact that Mr. Cole has worked on this every year since we had the Carcieri decision tells you so much about how, on both sides of the aisle, in the House and Senate, we are looking for a fix, and this is indeed the Carcieri fix.
Madam Speaker, I have no further requests for time and would inquire whether my colleague has any remaining speakers on their side.
Mr. WESTERMAN. Madam Speaker, I have no further speakers, and I yield back the balance of my time.
Ms. LEGER FERNANDEZ. Madam Speaker, I yield myself the balance of my time.
Once again, I urge my colleagues to support this bill. We must remember that all we are doing is making sure that all Tribes have the same access to the existing statutory law that allows Tribes to take land into trust. We are not changing any of the other laws that would apply to that trust process.
I myself have engaged in numerous land into trust transactions when I was an attorney, and I can tell you they are not easy. You must show that you have a connection to the land; what you will be doing with the land; how you communicated and discussed the issue of taking land into trust with the nearby communities, with the local governments, with the State government; is this aboriginal land; what will you be doing with the land; let's go through the NEPA process.
It is not an easy process, but now every Tribe will be able to have the same access to the same statutory process when we pass this law.
Madam Speaker, I urge my colleagues to support the legislation, and I yield back the balance of my time.
The SPEAKER pro tempore. The question is on the motion offered by the gentlewoman from New Mexico (Ms. Leger Fernandez) that the House suspend the rules and pass the bill, H.R. 4352.
The question was taken.
The SPEAKER pro tempore. In the opinion of the Chair, two-thirds being in the affirmative, the ayes have it.
Mr. GOSAR. Madam Speaker, on that I demand the yeas and nays.
The SPEAKER pro tempore. Pursuant to section 3(s) of House Resolution 8, the yeas and nays are ordered.
Pursuant to clause 8 of rule XX, further proceedings on this motion are postponed.
____________________
SOURCE: Congressional Record Vol. 167, No. 207
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