Two weeks ago (Wednesday, Nov. 20), I testified before the U.S. Senate Committee on Indian Affairs, where I advocated for a comprehensive reform package on the U.S. Department of Interior process for taking land into trust for Indian tribes. I pushed for an inclusive process where tribes, the federal government, and local governments work together during the land into trust process.
The land-into-trust process must be inclusive and decisions must be made with all stakeholders at the table. Too often, counties and other local governments are omitted from important decisions as tribes seek new lands in established communities for the purpose of building casinos. The current process is broken and needs to be fixed so that everyone has a voice in the decisions that are made.
The hearing focused on the U.S. Supreme Court’s decision in Carcieri v. Salazar (2009), in which the Court ruled that the Secretary of the Interior can take land into trust only for tribes that were federally recognized as of April 22, 1934. By taking the land into trust, the federal government creates a sovereign land for the Indian tribes.
Since the Carcieri decision, many tribes have asked Congress to authorize the Bureau of Indian Affairs (BIA) to take lands into trust for tribes recognized after April 22, 1934. However, under most proposals under consideration, the BIA would not have to consult local governments or other essential stakeholders.
I testified on behalf of the California State Association of Counties (CSAC) and advocated for a more balanced and fair approach, where tribes would enter into local agreements with counties, and additional standards would be enacted to ensure all parties are consulted.
A full copy of my testimony is below.
“Chairwoman Cantwell and Members of the Committee: thank you for the opportunity to address you today. My name is Diane Dillon, and I serve on the Napa County Board of Supervisors. The testimony that I am delivering is on behalf of the California State Association of Counties (CSAC), of which I am an active member. CSAC is 58 counties – the entirety of California – representing 10% of the U.S. population.
“I am also submitting for the record a statement from the National Association of Counties (NACo). CSAC works closely with NACo on a number of important issues, including several key Indian Affairs matters.
“In the brief time that I have before you today, I will describe what CSAC believes are major deficiencies in the Department of the Interior’s fee-to-trust process and provide the Committee with our recommendations for addressing these flaws.
“County governments have long been frustrated with the process by which lands are taken into trust. The fee-to-trust system is broken – and it is broken for all parties. A so called “simple Carcieri fix,” as advocated by some stakeholders, would do nothing to repair the underlying problems in the trust land process and would serve only to perpetuate the conflict inherent in the current system.
“County governments and the people we serve are heavily impacted by fee-to-trust decisions. In California alone, there are currently 113 federally recognized tribes, with 70 tribal casinos. Apart from the removal of trust lands from the local tax base and land use jurisdiction, trust acquisitions often increase demands for law enforcement, fire protection, health and social services, transportation, water and other resources provided by counties—without providing any mitigation for the burdens created. The challenges I’ve just described are of particular concern because newly sought-after tribal lands are targeted in well-established communities that are closer to large urban populations than existing casinos, and these newly sought tribal land applications are aimed at creating new gamblers as well as drawing business from existing casinos.
“Although trust acquisitions can result in these significant off-reservation impacts, the Department of the Interior does not provide impacted local governments and communities with sufficient notice regarding fee-to-trust applications. Further, the Department does not accord county concerns adequate weight in the land-into-trust process.
“Many of these deficiencies in the trust land process were recently documented in a Pepperdine Law Review quantitative analysis of all 111 fee-to-trust decisions by the Pacific Region BIA Office between 2001 and 2011. The analysis found that BIA granted 100 percent of the proposed acquisition requests and in no case did any Section 151 factor weigh against approval of an application. The analysis further revealed that because of the lack of clear guidance and objective criteria for analyzing trust land requests, Pacific Region BIA decisions did not give due consideration to the issues at stake. The analysis shows that the process is broken: community concerns are ignored or downplayed, and applications are rubber-stamped at a 100 percent acceptance rate, resulting in tribes and local governments being forced into unnecessary and unproductive conflict. The problem appears likely to worsen in the future, given recent statements by the Department trumpeting its desire to “keep that freight train moving” and “keep restoring lands for tribes.”
“Perhaps most egregious is that, as determinations are made regarding whether property qualifies as “Indian lands” under the Indian Gaming Regulatory Act– which is critical to a gaming application – counties are not notified of such determination requests, are not consulted, and are not invited to participate in the process. We believe that local government participation is essential in order to ensure that there is a complete factual basis upon which objective decisions can be made.
“The Federal process also is flawed in that it does not require tribes to engage in good-faith discussions regarding mitigation of environmental impacts of tribal development, nor is there any requirement or sufficient incentive for tribes to enter into enforceable mitigation agreements with local governments. Indeed, the Bureau of Indian Affairs will not even facilitate such discussions – as it believes that its trust responsibility to tribes prevents it from engaging with local governments.
“An approach that encourages intergovernmental agreements between tribes and local governments affected by fee-to-trust applications decisions is required under recent California State gaming compacts. Such an approach offers the opportunity to streamline the application process, and can also help to ensure the success of the tribal project within the local community. The establishment of a trust land system that incentivizes intergovernmental agreements between tribes and local governments is at the heart of CSAC’s fee-to-trust reform recommendations, which has been submitted to this Committee.
“If Congress only adopts a “quick fix,” it will be retreating from its Constitutional role under the Indian Commerce Clause, and be delegating this critical function — without adequate direction — to the Executive Branch. A “quick fix” will perpetuate the problems that have resulted in years of expensive and unproductive conflict between tribes and local governments.
“We want a real and lasting fix to the entire land-into-trust process. In our view, an amendment to the 1934 Indian Reorganization Act that extends tribal trust land acquisition authority to the Secretary of Interior also must include clear direction to: one, provide adequate notice to local governments; two, ensure that local governments are consulted throughout the fee-to-trust process; three, provide incentives for tribes and local governments to work together; and four, provide for cooperating agreements that are enforceable.
“Legislation that simply restores the Secretary’s authority to take land into trust without providing for real reforms will do nothing to address the uncertainty, delay, and conflict in the underlying trust process that has emerged in the last 75 years. If you only do a quick fix, you will authorize the Department to continue business as usual. This Committee should advance legislation that balances the legitimate interests of both tribal and county governments.
“I also would like to take this opportunity to mention our concern regarding a recent regulatory action that eliminates the ability of local governments to file a challenge to a trust acquisition decision. On November 13, 2013, the Department finalized a rule that repeals Interior’s “self-stay” policy, which required the Secretary to publish a notice of a trust decision 30 days before actually transferring title. That waiting period, which has now been eliminated, provided parties with the opportunity to seek judicial review under the Administrative Procedure Act before the Secretary acquired title to land in trust. We recommend that this Committee address the inequities caused by this decision as part of any legislation on fee-to-trust reform.
“In closing, I ask you to note that CSAC has submitted formal written testimony for the record that includes additional details on our proposed trust land reforms. We, of course, welcome the opportunity to continue to discuss these matters more fully with your staff. 1/5 of the nation’s currently federally recognized tribes are located in California. There are 352 applications for federal recognition pending nationwide, of which 1/4th are from California. If Carcieri reform occurs without addressing fee-to-trust reform, it will have a disproportionate impact on California compared to the rest of the nation because of the large numbers of tribes that could be positioned for trust land acquisition. This is why I personally believe that Senator Feinstein cares so much about this issue.
“Counties stand ready to work with this Committee, as well as the Administration, to develop a new process that is founded on mutual respect, and encourages local governments and tribes to work together on a government-to-government basis in a manner that will benefit all parties. The fee-to-trust process must be part of a Carcieri fix. You will ‘fix’ only part of what needs fixing, and not the underlying problem. We need to look at this comprehensively. We urge you to work with counties to ensure that this historic opportunity is not missed.”