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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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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