Two members of Congress, Sen. Dianne Feinstein (D-Calif.) and Rep. Don Young (R-Alaska) are questioning a policy the U.S. Department of Interior has proceeded with in recent weeks involving its tribal land acquisition policies.
For years, Interior has operated under a “self-stay policy,” which prevented the Department from putting land into trust for tribes while another party was suing over that decision. The idea behind the policy was that if the land was already taken into trust, any court case against the decision would be mooted, and therefore a litigant would be denied his or her day in court.
But the game changed in 2012, when the U.S. Supreme Court ruled in Salazar v. Patchak that a litigant could sue for up to six years after Interior takes lands into trust for tribes. In response, Interior officials decided this year that they would end their “self-stay policy” and put lands into trust, regardless of litigation, since litigation can happen for up to six years anyway.
“Interior is in effect saying that because there can be a suit anyway at any point, even after land is conveyed, then why not convey it right away,” said Michael Anderson, owner of Anderson Indian Law. “It makes a lot of sense for the Department and for tribes.”
And there are more possible changes to come. Kevin Washburn, assistant secretary for Indian Affairs at Interior, suggested another proposed policy modification at a January gathering of the National Congress of American Indians, saying that the Department was considering ending a 30-day period meant to notify the general public of land-into-trust decisions. Post Patchak, some Interior officials no longer believe the announcement period is necessary.
These policy shifts are an attempt by Interior to put a Band-Aid on the controversial U.S. Supreme Court Carcieri decision of 2009 and its piggybacking Patchak decision of 2012. Carcieri limited Interior’s ability to take land into trust for tribes not “under federal jurisdiction” in 1934; Patchak allowed a lawsuit to go forward challenging a tribal casino in Michigan from opening based on the Carcieri decision. The Patchak lawsuit – filed three years after Interior took land into trust, which the Supreme court affirmed was okay – argued in part that the tribe in that case, the Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians, was federally recognized after 1934, so the same Carcieri rule should apply to it.
Interior has not officially announced any of the Patchak-centric changes, but their existence came to be known during recent proceedings involving the North Fork Rancheria of Mono Indians, a California tribe that has long been proposing an off-reservation casino. Interior officials told the North Fork Rancheria in January that the Department did not plan to wait for a lawsuit to play out before taking the land into trust for the tribe. As a result, U.S. District Judge Beryl A. Howell recently denied a challenge by the Picayune Rancheria of the Chukchansi Indians’ to stop the land from going into trust. He noted in his ruling that if the North Fork Rancheria ends up losing the suit to the other tribe, “the government may have to contend with legal claims against it.”
“Interior has defended the policy’s application to the North Fork Rancheria on the grounds that the tribe knows what it is doing, so there is little federal liability,” Anderson said, further estimating that “dozens and dozens” of tribes could find the change beneficial, since it is not solely intended for gaming land acquisitions, but all Indian trust lands, such as ones that have come under litigation for housing, health, cultural, and other non-gaming developments.
For a true Patchak fix to occur, and not just a patch, Anderson said that Congress would need to pass a law that would limit all post-land acquisition lawsuits.
Greg Smith, a lawyer focused on Indian affairs with Hobbs, Straus, Dean, & Walker, said that Interior's decision to proceed with taking land into trust, even in the middle of lawsuit challenging that decision, has sound legal underpinnings, as the Department had voluntarily imposed upon itself the restriction to not take land into trust during litigation in the first place.
“They weren't prohibited from taking the land into trust by the law, so they are free to change their ‘self-stay policy’ and now start taking that land into trust during litigation,” Smith said.
Still, Feinstein has many concerns. In a letter sent to Interior on January 31, she asked outgoing Interior Secretary Ken Salazar “to clarify several points of concern and allow stakeholders an opportunity for comment before this policy change is implemented.” She called it an “abrupt change in policy has caught many who follow this issue, including many within the Native American community, by surprise.” And she raised several questions, asking if there is a potential for federal liability, if the Department is ready to protect federal liability, if the Department has a procedure for removing lands from trust, and whether the change is necessary at all.
“Have you consulted with tribes and other stakeholders to determine if it is feasible to maintain your voluntary stay policy, with additional conditions?” Feinstein asked in the letter. “Given the significant unanswered questions and the lack of consultation as recommended by Executive Order 13175 which calls for ‘meaningful consultation and collaboration with tribal officials in the development of Federal policies that have tribal implications,’ I urge you to open a formal rulemaking process to resolve these outstanding issues prior to implementing this new policy.”
Brian Weiss, a spokesman for Feinstein, said his boss has yet to receive the answers she is looking for. “The policy change is significant and was done without consultation,” he said. “The purpose of the letter was to ask some questions."
Feinstein’s letter came at an interesting time, being sent very soon after Interior announced its decisions to take land into trust for the North Fork Rancheria of Mono Indians, as well as the Enterprise Rancheria of Maidu Indians—both California tribes that she has been scrutinizing. The senator is well known for opposing Indian gaming interests in her state, and she has received criticism for offering legislation in 2011 that would amend Section 20 of the Indian Gaming Regulatory Act (IGRA) to make it very difficult for some tribes to open casinos. She has also been called out for attempting to secure a compromised Carcieri fix to a controversial 2009 Supreme Court ruling that called into question Interior’s ability to take land into trust for tribes recognized by the federal government after 1934.
Young, chairman of the House Subcommittee on Indian and Alaska Native Affairs, is also requesting clarity on the policy change. In response to an inquiry from Indian Country Today Media Network about Feinstein’s letter, Young’s office said that he is concerned that Interior has not shared the change with him or his office. His spokesman said that Interior has not consulted with, nor informed, the congressman of the changes, and that Young would like to see a response from Washburn on this matter.
Nedra Darling, a spokeswoman for Interior, said that she could not comment on the letter: “We are reviewing the letter, but the Department does not comment on matters of litigation.”
Sen. Maria Cantwell, D-Wash., chair of the Senate Committee on Indian Affairs, has yet to respond with her thoughts on her Democratic colleague’s concerns; her staff has been studying the letter for many days without comment.
Several Indian affairs lobbyists and lawyers in Washington believe the shift in Interior’s policy is good for Indian country as a whole, and they fear that Feinstein, at least, is attempting to once again negatively tie Indian gaming to Interior’s ability to take land into trust for tribes.
“Interior is being fairly proactive about allowing land to be conveyed, and Sen. Feinstein has been on the record – probably at the behest of D.C. lobbyists and those who have opposed the North Fork and Enterprise projects – against Indian gaming interests,” said Anderson. “She’s opposed to gaming, period.”
Anderson said the issue goes far beyond gaming, however, adding, “There are tribal advantages to having land into trust immediately, including tax advantages, grant opportunities, and all the other opportunities of having a land base. It would be nice to see the senator support these outcomes.”
Joe Valandra, a tribal consultant, said he finds the substance of Feinstein’s letter to be “at best disingenuous” with an underlying motive of “dividing and conquering” Indian country on Patchak and other trust and gaming issues.
“This letter continues the point of view that land should almost never be taken into trust and when it is, it should be subject to every political whim and pressure available,” Valandra said, adding that Feinstein implies that the change in policy is a negative for tribes, but what he thinks she really means is that it is negative for some gaming tribes that wish to limit competition from other tribes on this front.
Valandra said that if she had real concerns in this area for all tribes, “she would be advocating for legislative fixes to remedy the effects of the Carcieri and Patchak decisions. She would also be supportive of the change in policy at BIA that is attempting to bring certainty to land in to trust decisions at an earlier time.”
Valandra said that Feinstein’s federal liability concerns are “spectacularly disingenuous,” adding, “the cost to tribes because of uncertainty about future landholdings and the ability to engage in economic development is the real cost.”
Other lobbyists, including those from firms representing some wealthy California tribes, are less alarmed by Feinstein’s letter because they see her as a person who needs to be worked with if important Indian country legislation is to pass the Senate, and they view her as a friend on issues they are passionate about.
Belonging to that camp is Larry Rosenthal, owner of the Ietan tribal lobbying firm, who said his firm consulted with Feinstein before her letter was sent. "She tends to see these issues through the prism of gaming because she has had a lot of issues with gaming in her state over the years," Rosenthal said. "She has never liked gaming, and she has always been anti-gaming.
"At the same time, she is not anti-Indian. We have worked well with her on a variety of issues, like the tribal components of [the Violence Against Women Act] and Internet poker."
To those who think he is befriending an enemy of Indian country, Rosenthal said, "It's important to note the distinction between being a realist versus being a defender. I am not defending Sen. Feinstein; I'm just being a realist about who you have to work with to get things done.”
But Valandra cautioned that those who help Feinstein in her efforts are not looking out for the good of Indian country as a whole. “I am not inclined to pigeon hole, but the tribes that generally would benefit from the fruits of this letter are those that have a perceived economic interest to protect,” Valandra said.
“They are doing their job,” Anderson said of lobbyists who have supported Feinstein’s Carcieri and Patchak tinkering. “They are trying to achieve an ends for their clients, which is to stop competitive projects. Their goals are narrow.”
Valandra added that tribal policy at the federal level is based on consultation and consensus, but he believes that this idealistic ideology is hampered when it involves the divergent interests of the 566 federally recognized tribes today.
“Not all tribes agree, and most will never,” Valandra said. “This not for lack of incentive or trying, rather it is the same reason not all states and cities agree—diversity of ideas, geography, history and economic conditions. The policy dilemma is that when Feinstein (and others) use the divide and conquer strategy, it works. When consensus is not achievable, policy making/implementation almost always grinds to a halt, or is left to the loudest or most politically persuasive voice.”