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NCAI CONFERENCE PATCHAK PATCH BREAKOUT SESSION

JUNE 24 , 2013

Reported by : BECKY VAN AUKEN, CCR No . 418 , RMR, CRR

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RENO, NEVADA, MONDAY, JUNE 24 , 2013, 4 : 00 P .M.

-O0OASSISTANT SECRETARY WASHBURN : Welcome to the Department of Interior ' s Tribal Consultation on Appeals of Land Acquisition Decisions , Part 151 , our proposed amendment to Part 151 .

I am glad that I see John Dossett here . There are several people in this room that actually

are responsible for this because they asked me to do this basically the day I walked in the door, and we ' ve been working on it ever since then . Larry Roberts , Deputy Assistant Secretary . And Liz Appel has been the person who really got it done, and she had to work with a lot of people to get this done .

It ' s complicated to get anything done in the Department of the Interior . I ' ll probably get immune to that eventually and I won ' t even notice . But I still kind of notice because we ' ve been working

on this for about nine months . It was early October when John Dossett and others came to me and said "We need to do this, " and we ' ve been working on it ever since with several people, including the Solicitor ' s Office at the Department of the Interior, and gotten a

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lot of support to do it . We ' re very grateful for all that, but we really think it might make a modest improvement .So what I ' m going to do is I ' m going to walk through what we ' ve done with the Patchak Patch . This is part of the President ' s We Can ' t Wait Agenda . We can ' t wait for Congress to fix things . We have to do it . We have to move forward in the Administration in the Executive Branch to try to fix things when Congress gets hung up . So that ' s what the idea here is . We ' re going to move forward with this .

I want to start with a little bit of background because I actually came to this

-- I worked

on this more than 10 years ago -- more than 15 years ago . I ' m getting old. Larry and I were young lawyers at the Justice Department in the mid ' 90s when a case arose out of the Eighth Circuit . The Lower Brule Tribe

-- we got land taken into trust for the Lower Brule Tribe, and the City of Oacoma brought an action . And they actually won in the Eighth Circuit and had the 151 regs basically declared unconstitutional . That ' s what the Eighth Circuit had ruled.

And so at that time there was a lot of angst about are we going to lose the power to take land into trust for Indian tribes .

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And we sought cert in the Supreme Court, or cert was sought in the case in the U . S . Supreme Court, and in conjunction with the Justice Department we came up with a strategy to try to keep this power constitutional .

And the thing that was bothering everybody

was that once the Department of the Interior took the land into trust, the Department of the Interior claimed that it was then immune from suit and no one could sue based on that, even if they disagreed strongly with the decision .

And so what we added in 1996

-- again, it

was in conjunction with the Justice Department . The Justice Department said we ' ve got to be able to defend ourselves here, and if you just say you ' re taking the land into trust and too bad, so sad, no one can ever challenge it, it ' s done forever, that ' s not going to fly with the Supreme Court, basically was what the Justice Department was telling us . Or that ' s what the Justice Department was telling Interior at the time .

So they came up with a strategy to add a 30

-day waiting period in to allow people to go to court once the land

-into

-trust decision was made . There was going to be this 30

-day waiting period. It

was if you have a problem, you ' ve got 30 days to go to

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court and try to get a preliminary injunction, or a TRO, because once the Interior takes the land into trust, it ' s immune

-- that action is immune from the suit . So the whole idea for adding this 30

-day waiting period in was sort of to protect the statute, protect this power . And it actually worked. The Supreme Court granted cert in the case, vacated the Eighth Circuit decision and then remanded it back to the lower courts for consideration

-- reconsideration of this in light of the new rule that Interior did.

And it worked, and it worked until about 2012 . And about one year ago, last June, the Supreme Court decided the Patchak case . And that ' s why we ' re here today, because the Patchak decision changed a lot . The Patchak decision essentially said that, at least in some cases , the Department of the Interior is liable to suit even after it ' s taken the land into trust . There ' s no sovereign immunity . We ' d always argued that the Quiet Title Act, QTA, was a bar to all challenges because of the language of it, but the Court said, "We ' re not buying that . "

And so that ' s when John Dossett and NCAI and several others entered the picture . Will Micklin and Ron Allen raised it too . But several people, a

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bunch of NCAI leaders, raised this issue that, well, then why do we need a 30

-day period anymore if it ' s okay to go to court? And so we decided to look at that . And that ' s what we ' re doing here today . And we ' ve got before you a proposed rule that would in part delete the 30

-day waiting period, but not entirely, for reasons I will talk about in just a few minutes . But basically we have deleted

-- the proposed rule

-- and, again, it ' s just a proposed rule . We ' re in the Tribal Consultation and Notice and Comment phase right now . So the rule is out for public comment . We will look to see what people say about the rule and then determine whether to go final with this rule when the time period runs in just a few weeks . But the proposal is to delete the 30

-day waiting period whenever the Assistant Secretary for Indian Affairs

-- me -- whenever I make a land

-into

-trust decision . So if I make a land

-into

-trust decision, I ' m not going to announce it and then wait 30 days and take the land into trust . If we adopt this new rule, I will announce the decision and take the land into trust pretty much

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simultaneously . And that ' s the way that will work .

Whenever the Bureau of Indian Affairs , however, takes land into trust -- and a lot of these decisions are made out in the regions at the regional office, or even in agencies

-- we will have a 30

-day period there . And we thought about trying to get rid of the 30

-day period in that context, but what we learned was if we do that, we ' re really at risk for that being determined a final agency action and

someone could go to court and sue us based on that action . And our proposal is that not be the approach for a decision by a regional director . People can go to court immediately, presumably, if the Assistant Secretary takes the land into trust . But if the BIA approves the trust acquisition, the ordinary

course would be an appeal to the IBIA. And the IBIA rules require a 30

-day period to file your appeal . You ' ve got 30 days from the action to file your appeal . Now, some people might say, well, why are you going to leave the 30

-day period in for BIA decisions? And the reason for that, distinguishing between these two results , is that BIA decisions ordinarily are subject to administrative appeals . And

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that ' s actually a good thing . It may be more attractive to have them subject to administrative appeals than to have them go straight to court . And let me tell you why .

What are there, something like 650 Federal District Court judges in the United States? That ' s a ballpark . I may be wrong, off by 50 or something . But there ' s a bunch of different District Court judges, and they ' ve been appointed by all kinds of presidents for last 30 or 40 years , honestly . And most of them have never seen a land

-into

-trust decision, honestly. And so if this goes to court, you don ' t know what you ' re going to get . You don ' t know what kind of judge you ' re going to get . You don ' t know if they ' re going to be

-- how they ' re going to feel about land into trust .

The IBIA, though, is a known quantity . It ' s the same judges . There ' s three judges with the IBIA. And until about a year ago there were only two judges . And people complained that they were deciding

cases way too slowly, and that probably is fair . But they ' ve added another judge just within the last 12 months, and we ' re expecting that to produce quicker appeals . Things should move along a little more quickly with the IBIA.

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But the IBIA provides the real sense of continuity . It ' s the same forum for every -- across the country . If it ' s got to go to the IBIA, it ' s the

same three judges that are going to hear the appeal . And they know what a land into trust -- they know what land into trust is all about and they will be able to hear that appeal .

Now, the other beauty of the IBIA as opposed to going to Federal District Court is this : In the Federal District Court you ' ve got up to six years , the statute of limitations, to bring an action . So if you don ' t bring your action right away, you can wait five and a half years and then bring the action . And that imposes great uncertainty on land into trust .

The beauty of the IBIA is if no one appeals , well, 30 days later you know that you ' ve got the land into trust . Because if you ' re required to go through the IBIA and you don ' t, then you have not exhausted your administrative remedies and you can ' t then go to court and say, "Oh, oh, I want to appeal . "

So basically this means instead of waiting six years to have certainty, you will have 30 days , at least if there ' s no appeal .

Now, if there is an appeal, you ' ve got to go through the IBIA. But, again, in some ways that

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may be a better forum, at least initially, than Federal District Court . And, by the way, the IBIA' s decision should be entitled to deference once it does get to a Federal District Court . So no matter what kind of judge you get, you ' ve got the record prepared by the IBIA that understands these issues .

Now, to get this exhaustion of administrative remedies , though, you ' ve got to make

sure you ' ve notified everybody. Because no one ' s -- in theory, people can ' t lose to something that they

never had notice of . They can ' t lose something unless they were notified that they had a right or an opportunity to appeal .

So we do have to notice everybody who is the opposition, including the opposition, about the land

-into

-trust decision . And there ' s sort of two kinds of parties out there . And I ' m going to sound like Donald Rumsfeld a little bit, but there are known parties who might be opposed and then there are unknown parties who might be opposed.

And the known objectors , well, we know them because they ' ve probably written in to us and told us they object in the land

-into

-trust process . So each of them will get notice, direct notice, a letter or something like that, under this rule that they have to

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object, if at all, within 30 days and file their appeal with the IBIA or lose that right forever .

And the unknown parties , we need to get notice to them too . And the way we will do that is by publication . By newspaper, basically . We will be providing some sort of notice to them so that they have

-- they will be on constructive notice .

So that ' s basically how we get to this argument that we have exhaustion of administrative remedies . If people

-- if they

-- after having received notice, either actually or constructively through the newspaper, they don ' t bring an action within 30 days , then they have to sort of speak now or forever hold their peace . And that ' s the real value of this rule .

Now, let ' s talk about the IBIA just briefly . I don ' t want to do all the talking up here because we desperately want to hear your feedback . And we ' ve got a court reporter over here who ' s taking notes so that we can get that feedback .

But I want to talk a little bit about the IBIA. We ' ve heard complaints over the years about the IBIA being a very, very slow process . They have a current caseload that includes 22 pending trust acquisition appeals . And some of those may involve

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more than one appeal of the same trust acquisition because maybe two or three or four different people appeal the same action, the same piece of land into trust . Others I happen to know are appeals all on one reservation . There ' s several of them that are all based on one reservation .

So there ' s a whole bunch of appeals involving the Village of Hobart challenging Oneida land

-into

-trust applications in Wisconsin . And the State of South Dakota has challenged a bunch of land

-into

-trust decisions for the Sioux tribes basically. So there is

-- a bunch of those probably

are taken up by those 22 .

Most land

-into

-trust decisions are never appealed. Since Obama took office and through the hard work of Darryl LaCounte and Mike Black, there ' s been over 1200 pieces of land into

-- well, pieces of land taken into trust . And we ' ve only got 22 pending appeals , so that means that less than 1 percent of those are appealed. Is that right? I 'm a lawyer, not

a mathematician . But less than 1 percent .

So the good news for 99 percent of the appeals

-- or the 99 percent of the land

-into

-trust decisions, those will get certainty within 30 days if they ' re not appealed . We ' ll know that they ' ll have

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certainty. It can ' t ever be challenged again after that . So there is some concern about the IBIA. I think the average length of an IBIA appeal

-- a pending case right now is about 13 months of all their

case, of all types . And that ' s a long time . And that ' s the average length of the

-- that ' s the average age of the case . So some of them are -- that doesn ' t

mean they ' re all decided in 13 months . That ' s the average age of the ones that are pending, so -- but generally they get cases decided within two years or so . There are some exceptions to that, but generally they get most of their cases decided within two years . And we think that that average will be falling since they got this third IBIA judge who ' s gotten started recently .

So we are now, again, in the Tribal Consultation and Notice and Comment period. The Comment period runs until the end of July, July 29, 2013 . And you can see here there are several different ways to send in your comments . We would like to have your comments because this may not be perfect, this may not -- I think that everybody in

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this room will probably agree that it ' s a good thing to do something like this , but we certainly are willing to consider other ways of doing it or other ways to tinker with it .

And Liz Appel and I have been going back and forth with the Solicitor ' s Office just to tinker with it for months and month and months . And she will take your comments and

-- as they come in, and we will work through them.

And the other thing I ' d like to get feedback from you on is

-- here I came to the home team for this . This is where this idea developed was at NCAI . I would like to have your feedback on whether this is adequate or whether we ought to be doing other tribal consultations elsewhere . And you all might have some ideas about that .

We don ' t want to do anything that ' s going to prolong this longer because, frankly, no tribe will get the benefit of this rule until it goes final . And

so we ' d like to get it moving and get it final as soon as possible so that we start getting these land

-into

-trust decisions protected and subject to this rule . But there you have it . That ' s less than 15 minutes . That ' s pretty good. That ' s a pretty good

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sense of why we did this and where we came from and where we think we ' re headed.

But we would love to hear your comments, so why don ' t we go ahead and start with your comments .

And, Chairman Smith, if you ' ll hold on just

a minute until we get a mic . And I would ask everybody to introduce themselves and say what tribe they ' re from or who they represent and speak very clearly so our court reporter can transcribe .

CHAIRMAN SMITH : Thank you, Mr . Washburn . My name is Dennis Smith . I ' m the chairman of the Shoshone

-Paiute Tribes of Duck Valley way up on the north end of the state of Nevada, and we ' re also into the state of Idaho .

First of all, I ' d like to thank you, Mr . Washburn, for stepping on board, stepping up, getting involved with this . I know it ' s a very hard task, but you seem to be doing a pretty good job .

I don ' t have a question . I ' m just wondering, do you have some handouts and stuff that we can get our hands on so we can follow this?

I ' m like you . I ' m a tribal leader, rather than trying to be a secretary, like you ' re not a mathematician .

ASSISTANT SECRETARY WASHBURN : Chairman

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Smith, absolutely . They ' re in the back of the room. I thought there were some up on this table, but . . .

MR. SMITH : Thank you . ASSISTANT SECRETARY WASHBURN : Thank you, Chairman Smith .

CHAIRMAN ALLEN : Okay. So comments got to be in July 29, and I 'm sure you ' ll get a fair share of comments and concerns . So really how much longer

-- how long do you think you ' re going to need to absorb the comments, kind of filter through the recommendations, the concern that, okay, these are good, we ' ll make a final determination, so that final rule would come out?

So are you thinking another 30 days or are you thinking 60 days? Give us a rough idea of what you were thinking in terms of processing the review of the comments and getting the final determination out .

Because we agree with you that this is an opportunity . It isn ' t the best, but it ' s a good one . It moves things along for the majority of our tribes .

And one other thing I would

-- and I don ' t know if the Bureau knows more, but the issue to me is

more and more of us are starting to consolidate land, you know, parcels . So we got -- instead of just one at a time, we ' re packaging them. And so often what

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the Bureau wants to know is, is what are we going to

use the land for, what ' s our target intent .

And sometimes we know, sometimes we don ' t know . Sometimes we think it ' s going to be housing, sometimes we think it ' s going to be economic development, but we don ' t actually know .

I ' m not sure if that is going to be a big issue or not or if NEPA or EIS becomes a factor here in terms of processing these applications .

So it ' s kind of a little bit of a twofold question . ASSISTANT SECRETARY WASHBURN : Sure . And actually those two questions are related, because the second part of that question we ' re not really going to address in this, because, if we did, it would probably take a lot longer to get this to a final form.

As you know, the thing that differentiates whether this goes to the Assistant Secretary for a decision or gets handled out in the field, in the region or in the agencies , revolves around

-- partially around the use of the land.

And one thing that ' s usually true is that all the gaming applications end up coming to the Assistant Secretary hallway. And that, frankly, is not that many . But that ' s one of the things that

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differentiates between what ' s going on at the regional level and what ' s going on in the AS-IA hallway .

So we aren ' t proposing to make any changes at this point to the purpose requirements for land into trust . We would like to move as quickly as everybody feels comfortable doing so . I ' m not a good judge of time or estimates , because, Ron, when you brought me this rule change several months ago, I didn ' t think it would take me nine months before I was standing before you with a proposed rule .

So I ' m not good at estimating time, but I will tell you we would like to get it done this year . We ' d like to get it moved along .

And partially

-- I will tell you Liz won ' t slow down the process because she ' s amazingly fast and has really turned things around really quickly every time we ' ve needed her to . It will be a question of how many different ideas we get and how much they need to be vetted.

We ' ve done a fairly modest change, and so we hope that it doesn ' t require going out with another proposed rule . If we dramatically change from what

we ' ve noticed up here for this proposed rule, we might have to go to Notice and Comment again . I don ' t anticipate that happening, but we ' ve got to keep an

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open mind because we don ' t know what the comments are .

But our full intention is to keep moving this forward quickly, as quickly as it ' s prudent to do

so . Thank you, Ron, and thanks for helping to bring this to fruition .

CHAIRMAN CROMWELL : Good afternoon, Assistant Secretary Kevin Washburn . Thank you for the opportunity to comment on the proposed changes to create more certainty around land into trust, so I really appreciate it . I ' m sure many do .

First of all, my name is Cedric Cromwell . I ' m Chairman of the Mashpee Wampanoag Tribe, Massachusetts , Cape Cod. Beautiful place .

My Tribe has hundreds of years of experience trying to protect and preserve its homelands . We can document our first treaty in 1621 with the King of England and the deeds created by our 17th Century Sachems to our people intending to protect at least a portion of our homelands , Maseepee, now known as Mashpee, against the voracious land appetites of the early settlers .

For centuries those deeds worked their magic, more or less , and were repeatedly enforced by the Colonial and State legislatures according to their

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terms , that the land of the Mashpee people belonged forever to those people and could not be alienated from them. We lived on those lands and raised our children there and sent our men off on whaling ships and to war in support of our non-native neighbors . Many of those men didn ' t come back, but their widows stayed and their descendants stayed on the land until status quo was no longer within our power to preserve .

In the late 19th century, and against our express wishes , the Commonwealth of Massachusetts undertook to detribalize us . No longer respected as tribal citizens and as the proprietors of Mashpee Plantation, our people were forced to be citizens of Massachusetts . And, worse, our lands were subject to taxation 1and like elsewhere in the country to loss when taxes were too burdensome . The Allotment policy hit Mashpee among the first in the country, and it hit

us hard. Obviously the attempts to eliminate the Mashpee Tribe didn ' t work, but the delay in federal acknowledgment until 2007 1eft us at the mercy of local designs on our resources .

Soon after the change of status , many of

our people lost title to their land but, nevertheless , stayed put, raised children, hunted the land, fished the waters , and exercised .

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Exclusive governmental control by being the sole government in place at a time when the only year-round population of Mashpee remained nearly exclusively tribal . By the late 20th century, the economic pressures of development on Cape Cod became too much and colonization began a new phase . We became a minority in our own homeland and had to start

a new chapter of tribal preservation that continues to this day . We are struggling to provide housing to our people in their own homeland. We now own a parcel of land that is awaiting trust status . We are beginning to provide a range of governmental services to our people, and, with help from a USDA loan, we are building a government center on land that is awaiting trust status . We still use the old Indian Meeting House and tribal burying grounds as spiritual support for our people on land that is awaiting trust status . And, yes , we are working and planning to build a destination resort outside of Mashpee on land within the historic territory of our Wampanoag ancestors and within the range of our modern community on land that is awaiting trust status . That wait is painful, as is knowing that there are well

-funded entities that will seek to challenge and delay our ability to get land in trust .

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For this reason, I strongly support your proposal to change the final decision and appeal process in light of the Supreme Court ' s Patchak decision . We understand that, before Patchak, the Department had determined that it must leave a 30

-day window to permit legal challenges to its land trust decisions, allowing meaningful opportunity for a court ' s review before the trust acquisition was forever protected through the Quiet Title Act . For many years , though, this has meant that opponents to tribal trust land could indefinitely delay any decision by filing an appeal in federal court, and that any such appeal, even with limited merit, could cost years of delay . We all know that any party can interrupt trust transfers merely by hinting at a Carcieri problem. The Patchak case further meant that such challenges could be brought long beyond the present rule ' s 30

-day window, and that a newly invigorated opponent could pop up anytime within six years of a final decision . That 30

-day delay in acting on a positive decision is clearly no longer necessary to provide an opportunity to challenge, and I applaud the Department ' s determination to eliminate it and to permit action on trust title promptly after

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a final decision is in place .

I do have some concerns with implementation of the rule . The proposal is for two paths to final decision : The Assistant Secretary ' s decision is immediately final for the Department, with any challenge to be filed in Federal District Court . If, however, the decision is made by a BIA official, then the decision is not yet final and is subject to a 30

-day period to permit an administrative appeal to the Interior Board of Indian Appeals, the IBIA. If the IBIA upholds the decision, it becomes final, and court review may follow . If no appeal is filed with the IBIA before the 30

-day period expires , then no judicial review is possible thereafter because any opponent will not have exhausted mandatory administrative remedies .

In the majority of cases in which no immediate opposition exists, this path could provide certainty and finality that the Patchak case removed from completed trust acquisitions . I wish to support

our tribal brothers who might be able to benefit from that certainty, but we almost surely will not .

The only viable path for Mashpee is a decision that is immediately final for the department . We already have opponents ready and willing to mount

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all challenges to a favorable decision . We cannot afford the delay of an additional administrative appeal, and ask that in our case, and for others like

us , a positive determination to take into trust be immediately final and effective . For Mashpee, it would mean that the Tribe could move forward on its long

-dreamed plans to re-establish housing for tribal citizens within Maseepee . We have the land. We have the plan . We require trust status to move forward with our ability to act on fundamental needs that have been unsatisfied for many long years .

My Tribe thanks you for your proposal, which turns the bitter decision in Patchak into an opportunity to speed the establishment of a trust land base . I carry the thanks of the People of the First Light, who wish, as far as possible, to restore their ability to preserve and protect their lands , their

resources, and the future of the community.

I appreciate the chance to participate in this process1 , and expect that the Mashpee Wampanoag Tribe will submit detailed written comments .

My tribe thanks you for this opportunity . I think your proposal is great . That certainty level is very important for us . And, you know, the fast action by your team and what you ' re doing is very

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important in the country.

And, you know, it ' s unfortunate with Patchak it ' s in place, so that 30

-day window should go away . We believe that should go . So we appreciate your support on this .

ASSISTANT SECRETARY WASHBURN : Thank you, Chairman . MR. NOKA: Hello . Randy Noka, Narragansett Tribe . I appreciate this opportunity, Assistant Secretary, and I applaud the effort of your office . I realize this might not be the proper forum for this point, but nonetheless I will take advantage of it . I know it was a consultation on this proposal; however, my concerns are more directed towards the Carcieri Fix . And I like how you coined the

-- started off by saying the

-- part of the President ' s Can ' t Wait Agenda, but with all due respect, sir, that fix can ' t wait either . And with all due respect to the tribes that may benefit from this , there are tribes that arguably can ' t get lands into trust . Without that Carcieri Fix, we won ' t be able to benefit from this proposal exchange .

So, for the record, I ' m glad for this opportunity . We need that just as much, if not more, than this proposal . My tribe is a direct result of

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that disastrous Supreme Court decision, but nonetheless it hangs a heavy cloud of uncertainty over a lot of tribes . And I know the Department is moving forward with land

-into

-trust proposals or requests , and I think that is certainly the right thing to do . However, that needs to be fixed.

And if the opportunity comes of future consultation scheduling on that more specifically, then I know we would welcome the opportunity, the Narragansett, as well as I 'm sure a lot of tribes in this audience today .

I don ' t know if you can comment on that, but we need that opportunity . We need that fixed. We needed that yesterday.

ASSISTANT SECRETARY WASHBURN : Thank you for that . And I will comment on that briefly, because Carcieri is something that the Administration desperately wants fixed because what it did is it limited our power to take land into trust . The Carcieri decision was a disaster for the Interior as much as it was for tribes because it took away our power to take land into trust for some tribes .

And so we are strongly in favor, the Administration is strongly in favor, of a clean Carcieri Fix . And the Secretary knows about this

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issue, Secretary Jewell, and we are doing everything

we can and trying to figure out how to get it through this Congress . Thank you for that comment .

MS . COMMANDER: Hello . My name is Delia Commander, and I ' m here representing the Skagway Village . I 'm little nervous . I don ' t speak in front of a lot of people very often .

We ' re a small tribe located at the upper north end of the Lynn Canal in Alaska, and we have about 108 tribal members . I ' m here today getting information about land into trust, but right now I 'm just going to submit a letter asking the Assistant Secretary to help us with an issue that we have .

When the Mission school was there, and Father Gallant started a Mission school in 1931 , the Department of the Interior allotted 160 acres to the Catholic Archdiocese for that Mission school . And one of the reasons that I know that this is an issue with

us is that Chilkoot Indian Association and the Presbyterian Church was allotted the same amount of land for the Presbyterian Church and the school there . And the Chilkoot Indian Association was instrumental in retrieving 73 acres of their property in that it has been filed with the Interior for that land to go into trust . And that has been an ongoing case for a

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long time . So what I would like to do is I would like to find out : There ' s only five city blocks left of that 160 acres . And it ' s on the market right now . It ' s for sale . The tribe wants it, and we want part of our heritage back . And this is the letter asking for that help today .

One of the other questions that I have for the Secretary of the Interior as well as the Assistant Secretary is that under the Alaskan Native Claims Settlement Act, villages were appropriated acreage . And somewhere our paperwork was lost, our historical records were lost . I can ' t get information as to what claim the Skagway Village has . We ' ve been federally recognized for a very long time . We should have 62 , 000 acres of property somewhere, nobody knows where, and I can ' t get the information . I ' d like that information . If I had that, I ' d be here getting the information to put land into trust . We just don ' t have that documentation .

I appreciate you listening . ASSISTANT SECRETARY WASHBURN : Thank you, President Commander, and you can hand that microphone to Mike . President Commander, let me just say that

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there ' s sort of interesting issues afloat with land into trust in Alaska, and we ' re very involved in those . So we hear you loud and clear . Thank you .

MR. ANDERSON : Good afternoon, Mr . Secretary . My name is Michael Anderson, Anderson Indian Law . These comments are on behalf of the Soboba Band of Luiseno Indians in California .

One of your slides talked about the window that plaintiffs have a right to appeal from for the Pacific region, or whatever region their tribe is at, to file their appeal . And then it says that if they don ' t exercise that window, then a lawsuit may be precluded. The slide said that the challenge may be precluded. Since the Administrative Procedure Act is a six

-year statute and this is not a statutory provision, I was wondering what kind of support you had for lawsuits being precluded, which I think is a terrific idea, and perhaps comments could also support that idea . But are there other cases where if the agency does provide a reasonable window of time, the six

-year statute of limitations is then shortened somehow when plaintiffs do not take advantage of a procedural option that they failed to take advantage of? That ' s the question .

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ASSISTANT SECRETARY WASHBURN : Thank you . And I had to check my bar license at the door when I got this job, so I ' m not supposed to do lawyer work, but generally I would say that the doctrine of exhaustion of administrative remedies is a doctrine that ' s founded throughout administrative law and that

we believe that there ' s a strong argument that remedies would be precluded if that opportunity is not taken . I probably ought to leave the rest of it to

our Solicitors to address that comment . But we ' re adopting this rule in a public Notice and Comment process , so everybody is on notice that we believe this to be true . And so if we follow proper procedure in adopting this and everybody ' s on notice that we believe exhaustion tribal remedies applies in this

case, we believe that is further support for that ultimately being the case .

MR. ANDERSON : As someone that still does have a law license, I think it probably behooves tribes that would support such a closing of the window to provide judicial support in case there is a challenge . And, of course, the scenario where someone files 30 days out of time and then this is viewed as a bar, is the court going to say there still should be a

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due process right to waive that or will they actually hold firm to the window? And support I think is needed in the rule

-making process . Thank you .

ASSISTANT SECRETARY WASHBURN : Thank you, Mr . Anderson . And one of the other things to keep in mind is that ' s one of the reasons we ' ve got the notice provisions in there very strongly and, you know, making clear, because that ' s an important part of due process . But we ' d love to have your thoughts and your legal analysis on this . Thank you .

COUNCIL MEMBER METCALF : Good afternoon, Assistant Secretary Washburn . Thank you for coming and giving an opportunity to speak about proposed changes . My name is Eric Metcalf and I serve on the Tribal Council of the Coquille Indian Tribe, which is located in Southern Oregon . As you may be aware, re-establishing a land base, both as a restored homeland for our people and to support stable and diversified economic development initiatives , is a priority for our tribal government . Our history makes this need particularly urgent . The present day Coquille people are descendants of the signers of the 1851 and 1855 Treaties , two of the many treaties that the United States Government failed to ratify. Our

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people were subject to the horrors of extermination, relocation and brutalization that followed the discovery of gold in our native lands . We lacked the brute power to protect against outside exploitation of

our rich natural resources . The Coquille were supposed to disappear, to be merged with other tribal people in the coastal reservation established to concentrate Indian people in one place and to free up their lands for others . Many Coquille people were rounded up and shipped out to that camp . Others hid out, and some few escaped and made their way back . Many of them joined other tribal communities , but those of us who retained our separate identity clustered in a portion of our traditional area, maintaining a meager presence through allotments insofar as possible and traditional lifeways .

In 1954 , Congress terminated my Tribe, along with the other Oregon Tribes . But again we stayed. The Coquille Tribe was the last Oregon tribe to be restored, in 1989, through an Act of Congress that formally re-established the federal trust relationship and authorized the restoration of a land base for our now-dispersed people . The Act authorized the Secretary to acquire land in trust for

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the Tribe within a designated five

-county geographic

area, including a mandatory 1000 acres in Coos and Curry Counties . We have that land base already, and

some more land as authorized by the Act, which provides that all such trust lands shall be part of the Tribe ' s Reservation .

But we have not yet done enough to provide stability for our growing tribal population . We hope to expand our very successful forestry program by acquiring additional land that we believe we could bring back into profitability through our highly regarded forest management program. We have applied for trust status for a small parcel of land within our five

-county geographic area near our second

-largest population base for a modest class II gaming facility and a focus of tribal services for our community otherwise too far removed to benefit from many of our governmental programs .

But, as you know, trust acquisitions are anything but routine . Like some of other tribes, we have already been informed that our proposed acquisition will face many years of well

-funded opposition dedicated to blocking our development . And such opposition, in recent years , has been increasingly successful in using the courts , not to

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win a bone fide dispute of law or fact, but to cause legitimate projects to die on the vine . That is why

we strongly support your proposed changes to the regulations , but with a caveat .

We applaud your proposal that a trust determination made by the Assistant Secretary be final for the Department, with prompt action to acquire the land and any challenges to proceed while the land is in trust status . After the Supreme Court ' s decision in Patchak, there is no longer any need for delay to provide opportunity for judicial review . The proposed change will squarely put the burden of undoing a trust acquisition on a challenging party and end the current regime that essentially provides years of injunctive relief merely by filing a complaint .

So, yes , take the land in trust, and then allow us to defend the attacks together, after the full decision can take effect, not after an eternal wait beforehand.

But we are concerned with the second part of your proposal, which provides that a decision made by a lesser official is not final until after an opportunity for IBIA review . It sounds to us as if such IBIA appeal could effectively reinstate the eternal preliminary injunction or self

-stay now in

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place given that IBIA review is seldom swift . And then the same decision would be subject to years of judicial review, although likely after the trust status is established. There are no time limits on IBIA action . Challenges have increased exponentially, and the IBIA' s caseload could ensure years of delay just as is the case today . Any such provision would need to be coupled with some controls on time periods for such review with a presumption of a final period if a fixed time period has expired, depriving the IBIA of jurisdiction and deeming the decision final for the Department, with judicial review still available for a lingering challenge .

We know that we will face well

-funded opposition, but we would not like to undergo the process for more years than necessary, given that we are confident that our Restoration Act more than adequately supports the Secretary ' s authority and duty to acquire these trust lands on our behalf .

The other basis for our concern is the uncertainty of the decision process itself . At present, we expect that our gaming acquisition will be evaluated and determined in the office of the Assistant Secretary, but there is no guarantee . Although we are confident that such decisions by this

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Administration will be made at the national office, future Administrations could void the rule ' s effectiveness by delegating the decision to regional offices subject to the "self

-stay" during an IBIA appeal . If the decision is delegated back to the Regional Office, then we will not have a final decision for some years , and the benefit of the proposal is lost to us . We have no expectation that

our sophisticated opponents, many already identified, will fail to exhaust administrative remedies , and leaving our application to languish an additional round within the Department can only cause more delay . We ask that you take steps to protect the remedial intention of the rule from worsening a difficult situation . By all means, please eliminate the 30

-day waiting period for finality of trust decisions . Do not let frivolous litigation continue to control the trust relationship . But also do not create yet another opportunity for delay to frustrate that relationship .

I am providing a written copy of my remarks today for the record. The Coquille Tribe will file a more exhaustive set of comments before the close of the formal comment period.

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-3534 37 My tribe thanks you for this opportunity . I think your proposal is great . That certainty level is very important for us . And, you know, the fast action by your team and what you ' re doing is very important in the country.

And, you know, it ' s unfortunate with Patchak it ' s in place, so that 30

-day window should go away . We believe that should go . So we appreciate your support on this .

Thank you very much . ASSISTANT SECRETARY WASHBURN : Thank you, Council Member . We appreciate it . Can I take those

comments? Thank you . Thank you so much .

UNIDENTIFIED SPEAKER: Good afternoon, Kevin . I ' m here today on behalf of the Rincon Band. I have three clients submitting testimony largely in support today and others that intend to submit comments that are largely in support, but I don ' t want to spend my time

-- first let me say: Bravo . This is

a great development . But since I only have a few minutes , let me talk about the things that I think could be tweaked .

I ' m glad that you mentioned Will Micklin when you were talking about

-- brought these to your comments . And I was doing my own math up there and

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I ' m looking at 22 cases and a 13

-month average, and I ' m thinking, you know, that we apply IBIA appeal and I ' m thinking, boy, all those other appeals must be going really quick because Ewiiaapaayp has been in front of the IBIA for a long time .

I ' m here on behalf of Bo Mazzetti . He couldn ' t make it today . We ' ll submit his testimony.

San Diego County opposes every single fee

-to-trust application brought by every single tribe in the county . There are more tribes in San Diego County than any county in the United States .

And that goes to one of my concerns . When I look at proposed rules like this and I look at

someone like you sitting in the driver ' s seat, I get a lot of comfort on that . I think we ' re going to see a lot of great results come out of this rule going into effect . And then I think what happens with an administration that ' s down the road that ' s hostile to tribal interests , that has a hostile Secretary of the Interior, a hostile Assistant Secretary.

And if I 'm looking at this rule and I ' m thinking, well, what am I going to do with this , I 'm thinking, well, the first thing I can do is take all those cases that are currently at the ISIA, the gaming

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cases , the complicated cases , and push them back to the regional office, no exemption from the 30

-day rule, and they can simply do that .

And then I ' m looking at the IBIA, and I think it ' s great that we have a third judge coming on board, but there ' s too much potential, I believe, that you could get stuck in the muck . It ' s true, these lawsuits that are filed are mostly designed to kill projects on the vine, are not based on the merit, they ' re not based upon a legitimate dispute; they ' re based on increasing the costs and increasing the delay such that these projects die .

And so opponents are going to be looking at this rule, they ' re going to be reading the tea leaves , and they ' re going to say: Better get that 30

-day notice in and get that IBIA appeal done .

And once they ' ve done that IBIA appeal, they ' re actually better off because now they let

-- they ' re going to wait through the time of the IBIA appeal and then once it ' s not until the IBIA acts , you have (inaudible) agency action, and then they can wait another almost six years .

A suggestion . I agree that we want to be able to argue exhaustion . I agree that we want to be able to argue deference to IBIA decisions . But we

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don ' t want to be at the

-- the advantage of that dwindles as time at the IBIA goes on .

So if you put into the rules something along the lines of if the IBIA doesn ' t act in 120 , 180 days , at that point the land will be taken into trust, it moots the IBIA appeal that triggers the six years . And maybe it ' s something that ' s done at the request of the tribe, still have the 30

-day period that people need to exhaust, but you don ' t put tribes in the position to where they ' re stuck just waiting forever for the IBIA to do so .

I don ' t know if Will is here today, but Ewiiaapaayp has been waiting forever for the IBIA to act . They are the poster child of why this tweak needs to be done . Thank you .

ASSISTANT SECRETARY WASHBURN : Thank you for that comment . That ' s very thoughtful and that ' s an interesting question . If there is a silver bullet

on how do we get this so that the rule gives opponents their fair day in court but doesn ' t give them an opportunity to create delay, I think that that would be the perfect result; that they get their chance, but they don ' t get to create delay.

I ' m not sure if we can accomplish that, but I would love to hear ideas about how we might be able

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to accomplish it . Thank you .

MR. HAMPSON : Colin Hampson with Sonosky Chambers on behalf of a number of tribes . Just a couple of quick thoughts on the proposed rule which we think overall is a reasonable approach to and should be effective, but we should recognize it has a limited effect, and we hope that the Administration won ' t give up on legislative effects which is what is really necessary for the more controversial source of land

-- trust land acquisition projects .

The other thing is the approach of channelling opposition, of inviting and channelling opposition to the administrative process makes sense from the exhaustion standpoint, but it highlights the need to make sure that process is quick .

I appreciate the Administration is making great strides , but it ' s still a pretty slow process . And there are certainly steps along the way in order to get faster, and we encourage the Bureau to continue to look for ways to accomplish that .

ASSISTANT SECRETARY WASHBURN : Thank you very much . And let me note, by the way, that the Office of Hearing and Appeals which runs the IBIA is

an independent body of us , and it must be because it ' s adjudicating actions out of the IBIA. So we have only

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limited control over -- well, we have really no control over the IBIA.

We did consult with them about this rule because potentially it ' s got more -- it creates more business coming their way and we wanted them to know what we were doing . But we don ' t in theory have control over the IBIA, but we can ask them to change their rules , presumably, or something like that . That would be a possibility . So thank you .

MR. REY-BEAR: Dan Rey-Bear, Nordhaus Law Firm. Like other folks , we definitely support the proposal . It certainly would be helpful . Regarding the comment that was made about issues regarding the IBIA in terms of delays , there is a provision, and I believe it ' s 25 CFR Part 2 , that provides that

-- I think it ' s 20 days after an IBIA appeal is filed that

someone can petition the Assistant Secretary to take the case . So I don ' t know whether that ' s better or worse in some cases , but a tribe that ' s in that situation might consider it .

For our clients, on the slide that you had regarding the known and the unknown notice, our comment is rather specific . The problem that we ' ve encountered is simply an extra 30

- or 40

-day waiting period because the Department of the Interior and the

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IBIA does the notice of decision, the letter, the state and local governments, and then the newspaper notice consecutively, and it would be nice if they could be done concurrently . And it would just be nice to save an extra 30 days off of the process . Thanks .

ASSISTANT SECRETARY WASHBURN : Thank you very much . And that ' s an extremely useful comment . That ' s really helpful when someone explains those kinds of things that we can do that might be more helpful . Let me also say, too, you might think of solutions that are outside the box of this rule . So, for example, if there ' s -- if you ' d rather we use our resources to hire another

-- yet another judge for the IBIA and get their decisions out quicker, comments like that would be welcome .

In other words , any other comments that you think could help speed things up -- I ' m not sure we could do it, but, again, think broadly about different ideas . Thank you .

MS . ECHO-HAWK : Good afternoon . My name is Lael Echo

-Hawk, and I ' m one of the attorneys representing the Wampanoag Tribe of Gay Head Aquinnah . Tribal Chairwoman Cheryl Andrews

-Maltais couldn ' t be here today . She sends her greetings and appreciation

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for you guys holding this consultation on this very important issue .

The Aquinnah tribe applauds the development of the proposed rule and its narrowing of the self

-stay policy regarding any challenge to fee

-to-trust decisions made by the Department . In the wake of the Patchak decision, many groups opposing fee

-to-trust decisions have begun filing lawsuits , whether or not those lawsuits have any merit or not, simply as a tactic to delay the process .

The self

-stay policy that remains in the wake of Patchak enables and almost promotes opposition lawsuits despite their merit, or lack of merit, simply because the stay policy essentially grants a request for a preliminary injunction without providing the tribe their own day in court to defeat such efforts on the merits . These opposition groups challenging the fee

-to-trust decisions clearly have their day in court

even if the land is already taken into trust . The Federal Rules of Civil Procedure and two centuries of

case law provide an avenue wherein a plaintiff can seek preliminary injunctive relief to stop an imminent governmental action including the taking of land into trust .

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The proposed rule simply requires those opposition groups to secure a preliminary injunction first . Rule 65 of the Federal Rules of Civil Procedure allow for such relief . Although there are nuances from circuit to circuit, the general process remains that the party seeking preliminary injunction, injunctive relief, must establish the substantial likelihood that it will prevail on the merits of its claim. Courts then take into account or balance the hardships on the parties if injunctive relief is granted or denied and then take into account other policy considerations . The weight given to these factors depends on the Court ' s position regarding the likelihood of success on the merits .

Beyond the grim reality of this approach will be an early decision on the merits . Tribes will have the opportunity to intervene or specially appear to make their voice heard. Early decision of the substantial likelihood to prevail on the merits of these claims allow both the opposition groups and the tribes to have better information to make important decisions about the future of these lands . Opposition groups can decide whether to proceed with the litigation, and early ruling against them could discourage or even eliminate further long, drawn

-out

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litigation . Tribes can also decide whether to proceed with capital investment . And an early decision against a tribe could discourage, downsize, or phase any investment that look too -- or downsize or phase any investments that look too risky . If either party disagrees, appeals are available . The whole process could be further expedited if a judge exercised his discretion pursuant to Rule 65 (a) (2 ) to use a preliminary injunction hearing to advance the trial on the merits . The bottom line is we support -- the tribe supports these rules

-- the proposed rule . It allows the tribe to control their own destiny and make their

own decision regarding use of their property .

Finalizing this proposed rule will result in a significant decline in the meritless lawsuits we see currently filed against the fee

-to-trust decisions, and the courts will no longer be an avenue for such opposition groups to impose so much additional costs and delays that viable projects fail to be considered or die on the vine .

We do have two concerns with the proposed rule, however, that we think could be avoided with sound judgement . One is the issue with the delay of

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the IBIA. If it ' s supportive and if it would expedite issues, then I think this tribe would support -- I ' ll have to go back and talk to the chairwoman

-- but support adding additional judges or perhaps dedicating

a judge to resolving these issues . And some tribes have proposed amendments that would set a time certain by which the IBIA takes

-- must issue a decision and provide the land to be taken into trust if that time period has expired. And the tribe supports those proposals . Second, there ' s no guarantee that the gaming

-related acquisitions and other complicated acquisitions would be made by the Assistant Secretary . Although this Administration is committed to that protocol, future administrations may delegate the decisions back to the regions where the self

-stay rule is still in effect until an IBIA appeal runs course . Again, this could be corrected by many of the proposed rules to keep those decisions at the Assistant Secretary ' s Office .

We will provide written comments of the comments we gave today and formal comments .

Again, the tribe and the chairwoman thank you for the opportunity to comment on this rule and for your proactive approach to resolving this

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important issue for tribes .

ASSISTANT SECRETARY WASHBURN : Thank you, Ms . Echo

-Hawk .

MR. LOCUST : Assistant Secretary, my name is Charles Locust . I ' m Assistant Chief of the United Keetoowah Band of Cherokee Indians . I think I ' ve been listening to everybody, and I don ' t have an attorney with me, but we ' re a part of everybody ' s questions and

concerns . And this thing fits us very uniquely. We ' re a unique tribe . And I think this will take care of some situations with us . And we applaud your courage to take this upon yourself to address it .

And we ' re not out to harm any other tribes

or do any damage to anybody else, but we just feel like our tribe deserves just as equal chance as any other tribe deserves . Because if we don ' t get ours done very quickly, then there ' s a chance of our little, small casino in Tahlequah, Oklahoma, closing down . Then we won ' t have any kind of resources to continue to fight .

And we ' ve been a constituted tribe approved by Congress since 1950 with the federal charter which gives the Assistant Secretary the approval to take land to trust for us .

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And so Mr . Echo

-Hawk, when he did this for

us , it ' s been challenged in court now, through the District Court and through the IBIA, but it ' s still being appealed. And we just don ' t want that to run out, because we don ' t have any other resources to keep the fight going .

And so we ' re continuously trying to keep

our casino open so we can continue to provide services to our people because

-- not only affecting our resources, but it affects all of our tribal programs and everything else that is provided under those

resources . We have an Elder program. We provide scholarships to our people and our kids . All those things will be gone if we don ' t have these resources to provide for our tribe .

We ' re the fifth largest tribe in Oklahoma, yet we don ' t have any land in trust . And we ' ve been approved by Congress since 1950 . We were the first Cherokee tribe in Oklahoma to have a constitution, but yet we don ' t have land in trust .

We just ask that the IBIA and the BIA and yourself look at our issues individually and address them on what the merits are . And we approve this change and what it ' s going to do for the tribes , and

we think that it ' s going to be a great move forward

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for us . And we ' re looking forward to moving forward and so our tribe can grow and so we can continue to provide services to our members .

Thank you for letting me speak . ASSISTANT SECRETARY WASHBURN : Thank you, Vice Chairman Locust .

MR. DOSSETT : Hi, Kevin . John Dossett with NCAI . Thank you so much for coming here and doing this . I did want to note that it was last year at the NCAI midyear in Nebraska that the Patchak decision

came out . We were all watching this go to lawsuits, so it ' s sort of timely that it comes around yearly

--

ASSISTANT SECRETARY WASHBURN : Wait . Are you saying that we have bad luck at this conference? Because we have another decision or two up there .

MR. DOSSETT : Good luck tomorrow . But I thought it was very good last year when the decision

came out -- there ' s so many smart attorneys in this

room, and a lot of them were there as well, and the ideas came from, collectively, everybody talking about the Patchak decision and what can we do about it . It

wasn ' t any one person; it was a whole group of lawyers , kind of a collective response to at least have some way administratively to deal with it . Seems like a very good step forward .

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The other thing I was going to say is it ' s kind of a -- this issue can be explained pretty simply: 30 days or six years . Which do you want? 30 days sounds better as far as an appeal period. Or you can also make this issue like head

-spinningly complex as far as legal matters here against this administrative appeal process .

And there may be some room within the 60

-day time period to have kind of a lawyers group get together with Liz Appel and just kind of grind through

some the complexities of this one, because there ' s -- it ' s fairly deep waters when you get into the administrative procedures .

But I wanted to note a couple things that might be talked about just in that time period. One is that when we made the original recommendation, it

was to simply point to Part 2 instead of

-- this almost mirrors Part 2 a little bit within 151 . 12 , and the reason we suggest that it ' s a Part 2 already and distinguishes between a decision by the Assistant Secretary and a decision by the regional director is Part 2 already requires notice; Part 2 already requires administrative appeals within 30 days . So we thought the simpler approach would just be to direct them that you have to appeal . That ' s required by the

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Supreme Court decision at Darby vs . Cisneros . It requires administrative exhaustion if appeal is required. And if you require it in Part 2 , which is already a part of Part 2

-- there ' s smart lawyers in the Interior who figured that out a long time ago and put it into Part 2

-- then that would cover that base .

You guys decided to go in a little bit different direction and sort of put some of that right into 151 . 12 , and maybe at some point you can explain why you decided to do it that way. We don ' t have to do that today .

The second thought or comment, and maybe this is following up on some of the comments from Wampanoag, there are tons of frivolous appeals that

are -- and you mentioned the Village of Hobart appeals , but it ' s just the same one over and over again . And some of the other Interior regulations found in 43 CFR have

-- they ' ve put in that TRO standard the likelihood of success on the merits, that the opposing party would have to file basically a TRO at the same time that shows why they ' re likely to win and why there ' s immediate harm, and the judge can make

a finding within 60 days that you have no likelihood

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of success on the merits ; you ' ve already lost this

same decision before .

And we thought it possible, and this would be more work for Liz in the future, that we may want to amend Part 2 sometime down the road and put that kind of TRO standard in . And you could basically (inaudible) 43 CFR is saying the same thing, and that might shorten the administrative appeal process for these kinds of repetitive, frivolous appeals that you guys sometimes face .

Anyway, those types of comments -- we thought that maybe there ' s some point where we could get together with Liz and just kind of grind through

some more detail, administrative

-wide discussion . That ' s it . ASSISTANT SECRETARY WASHBURN : Thank you . We ' d be grateful for that kind of guidance and advice, and some lawyers getting together in their shirtsleeves I think might be useful . We always want to give tribal leaders plenty of chances to weigh in, but I think we might be able to get some solutions if

we just roll up our sleeves and work together on this small group . Thank you .

Chairman? MR. SMITH : Chairman Smith from Duck

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Valley. Mr . Washburn, did I hear you a little while ago make a comment about maybe we can help change their rules? When you say if we can help change their rules , does that mean you or does that mean jointly between the tribal leaders and you? And if that ' s so, maybe it would be very proper for us to draft up a resolution here at NCAI . Maybe I heard you wrong when you made that comment that maybe we can help change their rules .ASSISTANT SECRETARY WASHBURN : Thank you, Chairman . Thanks for following up on the comment . You know, my basic message is just think broadly about possible changes , because

-- and sort of what John was talking about . He was talking about Part 2 . And

we ' re focused right here just on Part 151 , but if there are solutions that are outside this proposal, I want everybody to think of what those are and

-- and, sure, if the tribes have ideas of what rules need to be changed. One of the things we did, when you draft resolutions at NCAI , we look at them. We look to say how can we -- is this something we can deliver? Is this something we can change? They ' ve always forced

some thinking on our end. So feel free to do that .

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And I 'm grateful for that, Chairman . Thank you .

MR. SMITH : Excuse me . The boss , Mr . Ron, said you ' ll be drafting that up tonight and we ' ll introduce it tomorrow .

Thank you . UNIDENTIFIED SPEAKER: I ' ve already got it done . ASSISTANT SECRETARY WASHBURN : Well, we ' ve got to pay the court reporter for two hours . Might as well use it .Well, let me do this . While you guys think if you have any more questions, let me let you know that my chief of staff, Sarah Harris, is here; my deputy chief of staff, Sequoyah Simermeyer, is here; we ' ve got Maria Wiseman and Nancy Pierskalla from the Gaming Office that are here; and, of course, the Deputy Assistant Secretary, Larry Roberts . And I don ' t think we mentioned Vanessa earlier from the Solicitor ' s Office, but she ' s here as well . And, of

course, Michael Black and Darryl LaCounte .

So if you want to have a conversation with any of us about this , feel free to do that as well .

This is just a proposal . It ' s up to you all to tell us whether you want it or -- these changes that have been suggested. We are all ears, and we ' re

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open to any kind of suggestions like that . We will have to take those back and figure out if they work and run them through our lawyers and all that .

And that ' s part of the answer to John . Lawyers got ahold of this proposal, but we will

-- we ' re happy to have all your suggestions , and they really will help us to make a better rule .

So any more suggestions , any more comments? Ron Allen . CHAIRMAN ALLEN : Well, I want to follow up with John ' s recommendation . Is there any reason that prohibits us either before or after the final date to put together a small informal workgroup to sit down with you and your key staff players to discuss some of these issues and identify some good recommendations to make sure that the final ruling is really the best ruling to help the tribes?

ASSISTANT SECRETARY WASHBURN : Yes . Thank you . There may be some legal prohibitions to doing it after that day . There ' s the Federal Advisory Committee Act, FACA, which we always have to not run afoul of, because it requires open meetings and open processes and such, and so it may be that we need to do that exercise during the Comment period. So we can look into that .

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But I do think it would be very useful to have a conversation like that as long as we can do so within the law . I think we can . We just may need to do it sooner rather than later . But we ' ll look into that . Thanks for raising that .

All right . All these lawyers , all these tribal leaders , and all these mics . What ' s going on here? Okay .Well, thank you . This was the first consultation that I ' ve actually run myself, so thank you all for being kind to me . It ' s good to see you all, and thanks so much for bringing this proposal to

us . Thank you . So we ' ll call it . Time of death, 5 : 30 . (Session concluded)

-oOo-

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STATE OF NEVADA ) ) ss . COUNTY OF WASHOE )

I , BECKY VAN AUKEN, a Certified Court Reporter in and for the County of Washoe, State of Nevada, do hereby certify :

That on Monday, June 24 , 2013, at the Atlantis Hotel Casino, Reno, Nevada, I was present and took verbatim stenotype notes of the Patchak Patch Breakout Session and thereafter transcribed the same into typewriting as herein appears ;

That the foregoing transcript is a full, true and correct transcription of my stenotype notes of said session to the best of my ability .

Dated at Reno, Nevada, this 8th day of July, 2013 .

_______________________ BECKY VAN AUKEN, CCR 418