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78–573 PDF 2013

S. HRG. 112–710

ADDRESSING THE COSTLY ADMINISTRATIVE

BURDENS AND NEGATIVE IMPACTS OF THE

CARCIERI AND PATCHAK DECISIONS

HEARING

BEFORE THE

COMMITTEE ON INDIAN AFFAIRS 

UNITED STATES SENATE

ONE HUNDRED TWELFTH CONGRESS

SECOND SESSION

SEPTEMBER 13, 2012

Printed for the use of the Committee on Indian Affairs

(

(II)

COMMITTEE ON INDIAN AFFAIRS 

DANIEL K. AKAKA, Hawaii, Chairman 

JOHN BARRASSO, Wyoming, Vice Chairman 

DANIEL K. INOUYE, Hawaii 

KENT CONRAD, North Dakota 

TIM JOHNSON, South Dakota 

MARIA CANTWELL, Washington 

JON TESTER, Montana 

TOM UDALL, New Mexico 

AL FRANKEN, Minnesota 

JOHN MCCAIN, Arizona 

LISA MURKOWSKI, Alaska 

JOHN HOEVEN, North Dakota 

MIKE CRAPO, Idaho 

MIKE JOHANNS, Nebraska 

LORETTA A. TUELL, Majority Staff Director and Chief Counsel 

DAVID A. MULLON JR., Minority Staff Director and Chief Counsel 

(III)

C O N T E N T S 

Page 

Hearing held on September 13, 2012 ..................................................................... 1

Statement of Senator Akaka ................................................................................... 1 

Statement of Senator Barrasso ............................................................................... 2

Statement of Senator Udall .................................................................................... 2

WITNESSES

Echohawk, John, Executive Director, Native American Rights Fund ................. 13

Prepared statement .......................................................................................... 15

Keel, Hon. Jefferson, President, National Congress of American Indians .......... 10

Prepared statement .......................................................................................... 11

Laverdure, Donald ‘‘Del’‘, Acting Assistant Secretary, Indian Affairs, U.S. 

Department of the Interior .................................................................................. 3

Prepared statement .......................................................................................... 5

Routel, Colette, Associate Professor, William Mitchell College of Law ............... 22

Prepared statement .......................................................................................... 24

APPENDIX

McGowan, Mike, President, California State Association of Counties (CSAC), 

prepared statement .............................................................................................. 31

(1)

ADDRESSING THE COSTLY ADMINISTRATIVE 

BURDENS AND NEGATIVE IMPACTS OF THE 

CARCIERI AND PATCHAK DECISIONS 

THURSDAY, SEPTEMBER 13, 2012

U.S. SENATE, 

COMMITTEE ON INDIAN AFFAIRS, 

Washington, DC. 

The Committee met, pursuant to notice, at 2:55 p.m. in room 

628, Dirksen Senate Office Building, Hon. Daniel K. Akaka,

Chairman of the Committee, presiding. 

OPENING STATEMENT OF HON. DANIEL K. AKAKA,

U.S. SENATOR FROM HAWAII 

The CHAIRMAN. Thank you very much for being so patient. We 

will move on here. 

The Committee will come to order. Aloha again, and welcome to 

this Committee and the Committee’s oversight hearing on Addressing the Costly Administrative Burdens and Negative Impacts of the 

Carcieri and Patchak Decisions. 

Throughout my term as Chairman of this Committee, I made it 

clear that one of my top priorities is passing a clean, a clean 

Carcieri fix this session. The Committee has held numerous hearings on the impact the Carcieri decision has had on Tribes, local 

communities and the Federal Government since the Supreme Court 

issued its decision in February of 2009. 

As you know, immediately after following the Carcieri decision, 

Tribes across the Country expressed concerns that the decision 

would have a ripple effect on Tribal governments. Sadly, these predictions are coming true. The Carcieri decision has not only impacted a Tribe’s ability to take land into trust, but it has also impacted many other areas of Tribal life. 

In almost every hearing, we have heard about the negative impacts of the Carcieri decision and how I feel, it has been staggering. The land into trust applications now take longer and face 

additional scrutiny, diverting personnel and monetary resources 

from the Federal Government. We have great concerns regarding 

public safety, threats to law and order, loss of job opportunities for 

Tribal members and members of the local community as well, and 

long administrative delays in basic services such as housing, education, and elder centers. 

All of these impacts have now been compounded by the Supreme 

Court’s recent decision in the Patchak case. Although we have 

2

every reason to believe the Tribe will ultimately prevail on the 

merits at the lower court, the Supreme Court has once again 

turned settled Indian law on its head. Now individual citizens can 

bring suit on parcels of land that have already been taken into 

trust by the Secretary of Interior. 

I appreciate the witnesses today who have agreed to be with us. 

I also encourage any interested parties to submit written testimony 

for the record. The hearing record will remain open for two weeks 

from today. 

Now I would like to turn to my colleagues for any opening remarks and ask our Vice Chairman, Senator Barrasso. 

STATEMENT OF HON. JOHN BARRASSO,

U.S. SENATOR FROM WYOMING 

Senator BARRASSO. Thank you, Mr. Chairman. Thank you so 

very much for holding this important hearing on the impacts of the 

Supreme Court decisions in Carcieri and Patchak. 

I want to thank you, Mr. Chairman, for your continued leadership and hard work on this important as well as urgent issue. We 

have two panels of witnesses today, so I will keep this brief. 

I realize the impacts of the Carcieri decision in Indian Country, 

I know it very well, we have discussed it many times in past Committee hearings. We have heard how the Carcieri case has affected 

Indian Country. Since that time, the Supreme Court issued the 

Patchak decision, which may complicate matters even further. 

So I look forward to hearing from our witnesses about what these 

two decisions mean for Indian Country. I welcome them and thank 

them for their testimony. 

Thank you, Mr. Chairman. 

The CHAIRMAN. Thank you very much, Senator Barrasso. 

Senator Udall. 

STATEMENT OF HON. TOM UDALL,

U.S. SENATOR FROM NEW MEXICO 

Senator UDALL. Thank you, Chairman Akaka. I will be very brief 

also. 

I want to first thank you for this oversight. This is a continuing 

series, I think, of oversight hearings on this subject, which are very 

important. As we all know, the Carcieri and Patchak decisions have 

disrupted the plans and efforts of Tribal governments across the 

Nation and have great potential for limiting economic development 

and preservation of historic lands throughout Indian Country. 

Justifiably, these decisions have raised serious concerns in both 

Native communities and Congress as questions of litigation and 

limits to Federal recognition have reverberated in almost every Native American community. Senator Akaka has taken the lead to 

push forward a legislative fix to the Carcieri decision. 

I applaud Chairman Akaka on his quick action in this Congress 

to introduce a bill to make a simple, yet vital, fix to the Indian Reorganization Act that would reverse the Carcieri v. Salazar decision. I am a strong supporter of this bill, and I am committed to 

working with Senator Akaka to get a legislative fix through the 

Senate. It is time to chart a course for passage of this bill. It is 

time to engage and educate our colleagues not on this Committee. 

3

And it is time to dispel the continued uncertainty and litigation resulting from the Carcieri decision. 

Thank you, and I look forward to hearing from the witnesses. I 

may not be able to hear all of them, but look forward to hearing 

from them. Thank you. 

The CHAIRMAN. Thank you very much, Senator Udall. 

I would like to now invite our first panel to the witness table. 

Serving on our first panel is Mr. Donald ‘‘Del’‘ Laverdure, Acting 

Assistant Secretary, Indian Affairs, U.S. Department of the Interior in Washington, D.C. Mr. Laverdure, please proceed with your 

testimony. 

STATEMENT OF DONALD ‘‘DEL’‘ LAVERDURE, ACTING

ASSISTANT SECRETARY, INDIAN AFFAIRS, U.S. DEPARTMENT 

OF THE INTERIOR 

Mr. LAVERDURE. Good afternoon, everyone, Mr. Chairman, Mr. 

Vice Chair, Senator Udall, for the opportunity today to testify. My 

name is Del Laverdure, and I am the Acting Assistant Secretary 

for Indian Affairs at the Department of Interior. 

I am here to address and testify today about the heavy burden 

and negative impact of two recent U.S. Supreme Court decisions on 

Indian Country, the Carcieri and Patchak decisions. First, a brief 

backdrop is necessary to place these negative decisions in context. 

In 1887, Congress passed the General Allotment Act, which resulted in massive losses of Tribal homelands. As a result, Indian 

homelands were diminished from 130 million acres in 1887 to 49 

million acres in 1933. 

In 1934, a substantial policy shift occurred. Congress enacted the 

Indian Reorganization Act to accomplish three objectives: stop the 

devastating policy of allotment and assimilation; reverse the negative impact of allotment policies; and finally, to secure for all Indian Tribes a land base in which to engage in economic development and self-determination. 

Almost four decades later, in 1972, Congress enacted the Quiet 

Title Act, in part, to ensure that Federal title to Indian trust lands 

was protected from uncertainty. This Administration has worked to 

implement the policy goals Congress has advanced for eight decades by protecting and restoring Tribal homelands and advancing 

the full spectrum of Tribal self-determination. 

Acquisition of Indian trust for the benefit of Indian Tribes is absolutely essential to self-determination and has been consistently 

reaffirmed by Congress for 80 years, including, for example, the Indian Self-Determination and Education Assistance Act, the Indian 

Economic Development Act, the Claims Settlement Act and most 

recently the HEARTH Act. Both the Carcieri and Patchak decisions 

undermine the primary goals of Congress in enacting the IRA and 

the subsequent Federal statutes. These court decisions cast a dark 

cloud of uncertainty on the Secretary’s authority to acquire land in 

trust for Tribes, and ultimately discourage the productive use and 

investment in Tribal trust land itself. 

The Carcieri decision has led to a more burdensome and uncertain fee to trust process. The Department must now examine 

whether a Tribe seeking to have land acquired in trust under the 

IRA was under Federal jurisdiction in 1934. Because of the historVerDate 0ct 09 2002 10:10 Feb 06, 2013 Jkt 078573 PO 00000 Frm 00007 Fmt 6633 Sfmt 6633 S:\DOCS\78573.TXT JACK
4

ical and fact-intensive nature of this inquiry, it is time-consuming 

and costly for both Tribes and the Department. The Carcieri analysis requires the Department to examine two additional questions, 

beyond the fee to trust regulations and beyond the fee to trust 

checklist, which is very onerous. First, whether there was departmental action or a series of actions before 1934 that established or 

reflected Federal obligations, duties or authority with respect to the 

applicant Tribe. 

Second, whether the Tribe’s jurisdictional status remained intact 

in 1934. Overall, it has made the Department’s consideration of fee 

to trust applications more complex, costly, time-consuming and uncertain. The Department is currently engaged in litigation regarding how it interprets Carcieri. Both the Department and Tribes 

must expend considerable resources to show that a Tribe’s history 

is consistent with the IRA and the Carcieri decision. Then, they 

must defend that analysis in costly litigation that takes years to 

complete. 

Now, the scope of the challenge has been increased by the U.S. 

Supreme Court. The recent Patchak decision invites more lawsuits 

to undermine trust acquisitions for up to six years after the land 

has already been taken into trust by the Federal Government on 

behalf of Tribal nations. 

Before the Patchak decision, the Secretary’s decision to place 

land into trust only could be challenged prior to the completion of 

the trust acquisition. The Department adopted regulations governing the trust acquisition process, which ensured that interested 

parties had an opportunity to seek traditional review and created 

finality once the trust acquisition was complete. 

Following the Patchak decision, the Tribes, neighboring communities and investors and the Department will be forced to wait for 

six years or more to achieve that same finality. Certainty of title 

is necessary to meet the goals of Congress on promoting self-determination and economic development on Tribal homelands. Without 

that certainty, Tribes will face greater difficulty in providing housing and basic services for their citizens, as well as economic development. It also creates confusion regarding public safety over the 

land in question, among many other jurisdictional issues. 

Once a trust acquisition is finalized, Tribes in the United States 

should be able to depend on the trust status of that land. Tribes 

must have confidence that their lands will not, like the allotment 

era, be taken out of trust. The Secretary’s authority to restore 

homelands for all Indian Tribes, and certainty concerning the status of those lands, touch the core of our trust responsibility. A system where some Tribes cannot enjoy the same rights and privileges 

available to others is simply unacceptable. 

A sponsor of the IRA, Congressman Howard, once stated ‘‘When 

the government of the United States set up a land policy which in 

effect became a form of legalized misappropriations of the Indian 

state. The government became morally responsible for the damage 

that has resulted to the Indians from its faithless guardianship.’‘

Accordingly, this Administration strongly supports legislation to 

clarify and reaffirm the Secretary’s authority to fulfill his obligations under the IRA for all federally-recognized Tribes. This conVerDate 0ct 09 2002 10:10 Feb 06, 2013 Jkt 078573 PO 00000 Frm 00008 Fmt 6633 Sfmt 6633 S:\DOCS\78573.TXT JACK
5

1 555 U.S. 379 (2009). 

2 132 S. Ct. 2199 (2012). 

3See, e.g., Metro. Water Dist. of S. Cal. v. United States, 830 F.2d 139 (9th Cir. 1987) (Indian 

lands exception to Quiet Title Act’s waiver of sovereign immunity operated to bar municipality’s 

claim challenging increase of tribal reservation and related water rights); Neighbors for Rational 

Dev., Inc. v. Norton, 379 F.3d 956 (10th Cir. 2004) (challenge to Secretary’s land into trust decision barred by Indian lands exception to Quiet Title Act’s waiver of sovereign immunity); Florida Dep’t of Bus. Regulation v. Dep’t of Interior, 768 F.2d 1248 (11th Cir. 1985) (same). 

clude my statement, and I would be happy to answer any questions. 

[The prepared statement of Mr. Laverdure follows:]

PREPARED STATEMENT OF DONALD ‘‘DEL’‘ LAVERDURE, ACTING ASSISTANT

SECRETARY, INDIAN AFFAIRS, U.S. DEPARTMENT OF THE INTERIOR

I. Introduction 

Chairman Akaka, Vice-Chairman Barrasso, and Members of the Committee, my 

name is Del Laverdure and I am the Acting Assistant Secretary—Indian Affairs at 

the Department of the Interior (Department). Thank you for the opportunity to testify about the heavy burden and negative impact of two recent United States Supreme Court decisions on the Department and on Indian country. These decisions 

are Carcieri v. Salazar 1 and Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians v. Patchak. 2

As you know, in Carcieri, the Supreme Court held that land could not be taken 

into trust for the Narragansett Tribe of Rhode Island under Section 5 of the Indian 

Reorganization Act of 1934 because the Tribe was not under Federal jurisdiction in 

1934. This decision prevented the tribe from completing its low-income housing 

project. In the wake of that decision, both the Department and many tribes have 

been forced to spend an inordinate amount of time analyzing whether the tribes 

were under Federal jurisdiction in 1934 and thus entitled to have land taken into 

trust on their behalf in light of the Carcieri holding. This is not only time-consuming but also costly. Once this analysis is completed, if the Department decides 

to take land into trust and provides notice of its intent, this decision makes it likely 

that we will face costly and complex litigation over whether applicant tribes were 

under federal jurisdiction in 1934. 

This decision was wholly inconsistent with the longstanding policies of the United 

States under the Indian Reorganization Act of 1934 of assisting federally recognized 

tribes in establishing and protecting a land base sufficient to allow them to provide 

for the health, welfare, and safety of tribal members, and of treating tribes alike 

regardless of their date of federal acknowledgment. 

In June of this year, the Court issued the Patchak decision, in which it held that 

the decisions of the Secretary of the Interior to acquire land in trust under the Indian Reorganization Act could be challenged on the ground that the United States 

lacked authority to take land into trust even if the land at issue was already held 

in trust by the United States. This decision was also inconsistent with the widelyheld understanding that once land was held in trust by the United States for the 

benefit of a tribe, the Quiet Title Act prevented a litigant from seeking to divest 

the United States of such trust title. 3 In Patchak, the Court held that the Secretary’s decisions were subject to review under the Administrative Procedure Act 

even if the land was held in trust and expanded the scope of prudential standing 

under the Indian Reorganization Act to include private citizens who oppose the trust 

acquisition. This testimony addresses the joint implications of Patchak and Carcieri

for acquisitions of land in trust under only the Indian Reorganization Act and does 

not address whether or how the Patchak decision might affect acquisitions of land 

into trust under other authorities. Together, the Carcieri and Patchak decisions seriously undermine the goals of the Indian Reorganization Act. This Administration 

continues to support a legislative solution to the negative impacts and increased 

burdens on the Department and on Indian Country as a whole resulting from these 

decisions. 

II. Purposes of the Indian Reorganization Act 

In 1887, Congress passed the General Allotment Act with the intent of breaking 

up tribal reservations by dividing tribal land into 80- and 160-acre parcels for individual tribal members. The allotments to individuals were to be held in trust for 

the Indian owners for no more than 25 years, after which the owner would hold fee 

title to the land. Surplus lands, lands taken out of tribal ownership but not given 

6

to individual members, were conveyed to non-Indians. Moreover, many of the allotments provided to Indian owners fell out of Indian ownership through tax foreclosures. 

The General Allotment Act resulted in huge losses of tribally owned lands, and 

is responsible for the current ‘‘checkerboard’’ pattern of ownership on many Indian 

reservations. Approximately two-thirds of tribal lands were lost as a result of the 

allotment process. The impact of the allotment process was compounded by the fact 

that many tribes had already faced a steady erosion of their land base during the 

removal period, prior to the passage of the General Allotment Act. 

The Secretary of the Interior’s Annual Report for the fiscal year ending June 30, 

1938, reported that Indian-owned lands decreased from 130 million acres in 1887, 

to only 49 million acres by 1933. According to then-Commissioner of Indian Affairs 

John Collier in 1934, tribes lost 80 percent of the value of their land during this 

period, and individual Indians realized a loss of 85 percent of their land value. 

Congress enacted the Indian Reorganization Act in 1934 to remedy the devastating effects of prior policies. Congress’s intent in enacting the Indian Reorganization Act was three-fold: to halt the federal policy of allotment and assimilation; 

to reverse the negative impact of allotment policies; and to secure for all Indian 

tribes a land base on which to engage in economic development and self-determination. 

The first section of the Indian Reorganization Act expressly discontinued the allotment of Indian lands, while the next section preserved the trust status of Indian 

lands. In section 3, Congress authorized the Secretary to restore tribal ownership 

of the remaining ‘‘surplus’’ lands on Indian reservations. Most importantly, Congress 

authorized the Secretary to secure homelands for Indian tribes by acquiring land 

to be held in trust for Indian tribes under section 5. That section has been called 

‘‘the capstone of the land-related provisions of the [Indian Reorganization Act].’’ 

Cohen’s Handbook of Federal Indian Law § 15.07[1][a] (2005). The Act also authorized the Secretary to designate new reservations. Thus, Congress recognized that 

one of the key factors for tribes in developing and maintaining their economic and 

political strength lay in the protection of each tribe’s land base. The United States 

Supreme Court has similarly recognized that the Indian Reorganization Act’s ‘‘overriding purpose’’ was ‘‘to establish machinery whereby Indian tribes would be able 

to assume a greater degree of self-government, both politically and economically.’’ 

Morton v. Mancari, 417 U.S. 535, 542 (1974). 

This Administration has earnestly sought to advance the policy goals Congress established eight decades ago of protecting and restoring tribal homelands, and advancing tribal self-determination. Acquisition of land in trust for the benefit of Indian tribes is essential to tribal self-determination, and has been consistently reaffirmed by Congress in legislation enacted since the Indian Reorganization Act, including through the Indian Self-Determination and Education Assistance Act, the 

Claims Settlement Act, and the recently enacted Helping Expedite and Advance Responsible Tribal Homeownership Act (HEARTH Act). 

Even today, most tribes lack an adequate tax base to generate government revenues, and others have few opportunities for economic development. Trust acquisition 

of land provides a number of economic development opportunities for tribes and 

helps generate revenues for public purposes. 

For example, trust acquisitions provide tribes the ability to enhance housing opportunities for their citizens. This is particularly necessary where many reservation 

economies require support from the tribal government to bolster local housing markets and offset high unemployment rates. Trust acquisitions are necessary for tribes 

to realize the tremendous energy development capacity that exists on their lands. 

Trust acquisitions allow tribes to grant certain rights of way and enter into leases 

that are necessary for tribes to negotiate the use and sale of their natural resources. 

Uncertainty regarding the trust status of land may create confusion regarding law 

enforcement services and interfere with the security of Indian communities. Additionally, trust lands provide the greatest protections for many communities who rely 

on subsistence hunting and agriculture that are important elements of tribal culture 

and ways of life. 

III. Consequences of the Carcieri and Patchak Decisions 

Both the Carcieri and Patchak decisions undermine the primary goal of Congress 

in enacting the Indian Reorganization Act: the acquisition of land in trust for tribes 

to secure a land base on which to live and engage in economic development. These 

decisions impose additional administrative burdens on the Department’s long-standing approach to trust acquisitions and the Court’s decisions may ultimately destabilize tribal economies and their surrounding communities. The Carcieri and 

Patchak decisions cast a cloud of uncertainty on the Secretary’s authority to acquire 

7

4 28 U.S.C. § 2401(a) provides that ‘‘every civil action commenced against the United States 

shall be barred unless the complaint is filed within six years after the right of action first accrues.’’

land in trust for tribes under the Indian Reorganization Act, and ultimately inhibit 

and discourage the productive use of tribal trust land itself. 

Economic development, and the resulting job opportunities, that a tribe could pursue may well be lost or indefinitely stalled out of concern that an individual will 

challenge the trust acquisition up to six years after that decision is made. 4 In other 

words, both tribes and the Department may be forced to wait for six years—or more, 

if a lawsuit is filed—for affirmation that a trust acquisition will be allowed to stand. 

This new reading of the Quiet Title Act and the Administrative Procedure Act will 

frustrate the lives of homeowners and small business owners on Indian reservations 

throughout the United States, as well as the intent of the United States government 

in promoting growing communities and economies in Indian country. 

A. The Carcieri Decision has led to a More Burdensome and Uncertain Fee-to-Trust 

Process 

Following the Carcieri decision, the Department must examine whether a tribe 

seeking to have land acquired in trust under the Indian Reorganization Act was 

‘‘under federal jurisdiction’’ in 1934. This is a fact-specific analysis that is conducted 

on a tribe-by-tribe basis. The Department must conduct this analysis for every tribe, 

including those tribes whose jurisdictional status is unquestioned. Because of the 

historical and fact-intensive nature of this inquiry, it can be time-consuming and 

costly for tribes and for the Department. 

The Carcieri analysis ordinarily involves the Department’s examining two general 

issues: (1) whether there was departmental action or series of actions before 1934 

that established or reflected federal obligations, duties, or authority over the tribe; 

and (2) whether the tribe’s jurisdictional status remained intact in 1934. This analysis typically includes extensive legal and historical research. It also has engendered 

new litigation about tribal status and Secretarial authority. Overall, it has made the 

Department’s consideration of fee-to-trust applications more complex, contributed to 

significant administrative costs and burdens during the application process, and 

subjected the United States to costly litigation. 

The Department is currently engaged in both federal court and administrative 

litigation regarding how it interprets and applies Carcieri in the context of trust acquisitions under the Indian Reorganization Act. Since the Supreme Court’s decision 

three years ago, we have found that plaintiffs routinely claim Carcieri-based impediments to trust acquisitions, often without offering any factual or legal basis for such 

claim, in an attempt to prevent the Secretary from exercising his statutory authority to acquire land in trust for the tribe. As a result, the Department and the tribes 

must expend considerable resources preparing a thorough analysis that shows a 

tribe’s history is consistent not only with the Indian Reorganization Act, but also 

with Carcieri, and then defend that analysis in costly litigation that generally extends over a number of years. 

B. The Patchak Decision Encourages Litigation to Unsettle Settled Expectations 

In the Patchak decision, the Supreme Court held that a litigant may file suit challenging the Secretary’s authority to acquire land in trust for a tribe under the Administrative Procedure Act, even after the land is held in trust. The Court reached 

this decision, notwithstanding the widely-held view that Congress had prohibited 

these types of lawsuits through the Quiet Title Act, where it stated:

(a) The United States may be named as a party defendant in a civil action 

under this section to adjudicate a disputed title to real property in which the 

United States claims an interest, other than a security interest or water rights. 

This section does not apply to trust or restricted Indian lands...

28 U.S.C. § 2409a (emphasis added).

As a result, these types of lawsuits could potentially reverse trust acquisitions 

many years after the fact, and divest the United States of its title to the property. 

The majority in Patchak failed to even consider the extreme result that its opinion 

made possible. Divesting the United States of trust title not only frustrates tribal 

economic development efforts on the land at issue, more critically, it creates the 

specter of uncertainty as to the applicable criminal and civil jurisdiction on the land 

and the operation of tribal and federal programs there. 

Before the Patchak decision, the Secretary’s decision to place a parcel of land into 

trust only could be challenged prior to the finalization of the trust acquisition. The 

Department had adopted provisions in its regulations governing the trust acquisiVerDate 0ct 09 2002 10:10 Feb 06, 2013 Jkt 078573 PO 00000 Frm 00011 Fmt 6633 Sfmt 6621 S:\DOCS\78573.TXT JACK
8

tion process which ensured that interested parties had an opportunity to seek judicial review. It was the Department’s general practice to wait to complete a trust acquisition until the resolution of all legal challenges brought in compliance with the 

process contemplated by the Department’s regulations. This allowed all interested 

parties, including those who wished to challenge a particular acquisition, to move 

forward with a sense of certainty and finality once a trust acquisition was completed. Following the Patchak decision, tribes, Indian homeowners, neighboring communities, and the Department will be forced to wait for six years or more to achieve 

that finality. 

Certainty of title provides tribes, the United States and state and local governments with the clarity needed to carry out each sovereign’s respective obligations, 

such as law enforcement. Moreover, such certainty is pivotal to a tribe’s ability to 

provide essential government services to its citizens, such as housing, education, 

health care, to foster business relationships, to attract investors, and to promote 

tribal economies. 

Once a trust acquisition is finalized and title transferred in the name of the 

United States, tribes and the United States should be able to depend on the status 

of the land and the scope of the authority over the land. Tribes must have confidence that their land can never be forcibly taken out of trust. 

IV. Conclusion 

The Secretary’s authority to acquire lands in trust for all Indian tribes, and certainty concerning the status of and jurisdiction over Indian lands, touch the core 

of the federal trust responsibility. The power to acquire lands in trust is an essential 

tool for the United States to effectuate its longstanding policy of fostering tribal-self 

determination. A system where some federally recognized tribes cannot enjoy the 

same rights and privileges available to other federally recognized tribes is unacceptable. The President’s Fiscal Year 2013 Budget includes Carcieri fix language in Sec. 

116 of Interior’s General Provisions, signaling the Administration’s strong support 

for a legislative solution to resolve this issue. We would like to work with the Committee on a solution to these issues. 

As sponsor of the Indian Reorganization Act, then-Congressman Howard, stated: 

‘‘[w]hether or not the original area of the Indian lands was excessive, the land was 

theirs, under titles guaranteed by treaties and law; and when the Government of 

the United States set up a land policy which, in effect, became a forum of legalized 

misappropriations of the Indian estate, the Government became morally responsible 

for the damage that has resulted to the Indians from its faithless guardianship.’’ Accordingly, this Administration supports legislative solutions that make clear the 

Secretary’s authority to fulfill his obligations under the Indian Reorganization Act 

for all federally recognized tribes. 

This concludes my statement. I would be happy to answer questions.

The CHAIRMAN. Thank you very much, Assistant Secretary. 

In 1994, Congress passed two amendments to the IRA. These 

amendments guaranteed that all federally-recognized Tribes would 

receive equal treatment by the Federal Government and its agencies. My question to you on that is, do the Carcieri and Patchak

decisions create two classes of Tribes? 

Mr. LAVERDURE. Yes, Mr. Chairman. They do. 

The CHAIRMAN. Well, President Obama and Secretary Salazar 

and also your prior Assistant Secretary, Larry Echohawk, have all 

made it clear to me that fixing Carcieri is a top priority for the Administration. If Congress does not enact a Carcieri fix this year, my 

question is, will the core of the Federal trust responsibility be undermined by future cases that are a direct result of Carcieri, as we 

have seen in Patchak? 

Mr. LAVERDURE. Yes, Mr. Chairman. I think the decisions increase the burden for a number of Tribal nations. They have to go 

through this expensive and timely process that has a lot of uncertainty on the back end as a result of these decisions. And that does 

carve into the core trust responsibility of acquiring land in trust to 

restore the Tribal homelands that they lost historically. 

The CHAIRMAN. Thank you for your responses. 

9

Let me call on Senator Barrasso for any questions he may have. 

Senator BARRASSO. Yes, Mr. Chairman. Just two questions as a 

follow-up to some of the things you have already gotten into a little 

bit in your testimony. 

Last October, former Assistant Secretary Larry Echohawk testified regarding the effects of the Carcieri decision. As our Chairman 

has mentioned, he indicated that the purpose and intent of the 

Tribal Law and Order Act would be frustrated if there were no fix. 

Could you talk about what types of public safety problems are 

you seeing because of the Carcieri decision? 

Mr. LAVERDURE. Thank you, Mr. Vice Chairman. 

What we see across the Country, especially with the ongoing litigation and dozens of cases that we have seen, and pending applications that we have, is the status of the land is not entirely clear. 

And now the subtle expectations around the trust status are 

thrown into question. 

As a result, there is an open question on who has authority over 

that particular parcel, those parcels or those homelands and who 

is going to provide the law enforcement necessary in order to have 

a safe community. With this uncertainty and the six-year additional window to provide finality, all of those still remain open 

questions on exactly the status of that land and who is going to 

provide that service, that important service. 

Senator BARRASSO. And if I could just follow up on that word you 

just used, uncertainty, I want to ask a little bit about energy development, keying in on that word. Because you visited with us in October last year regarding an increase in uncertainty and risk in financing from energy development that is created by the Carcieri

decision. You noted that these risks were essentially stopping the 

project from going forward. 

Has anything changed since then? Is there less uncertainty and 

risk to these projects, or is it still continuing to be a major stumbling block? 

Mr. LAVERDURE. Thank you, Mr. Vice Chair. I would submit that 

as a result of the Patchak decision, the uncertainty has increased 

substantially. Because the number of challenges has increased, the 

time period for that finality, this additional six-year window statute of limitations, all that makes it even worse than it was before 

this decision. 

Senator BARRASSO. Thank you very much. Thank you, Mr. Chairman. 

The CHAIRMAN. Thank you very much, Senator Barrasso. 

What impact do you think the Patchak decision will have on the 

Department’s ability to ensure that lands previously taken into 

trust for Tribes are secure? 

Mr. LAVERDURE. Well, ordinarily I don’t think we fully understand all the impacts, although we do know that is very negative. 

Much more uncertainty is now provided, and the Patchak decision 

itself, the remedy is unclear on the very litigant who for aesthetic 

and environmental zone of interest challenge that was successful, 

we don’t know what the relief is. We also don’t know the scope of 

the number of people who could challenge lands already in trust. 

And that of course leads to a whole multitude of problems that I 

am not sure we fully understand at this date. But we began looking 

10

into that, and we have our legal team basically trying to figure out 

the scope of the problem that we now have. 

The CHAIRMAN. Well, thank you for your efforts. I think it is 

clear, what do we need to do on this. I thank you for your responses, and it will certainly helps us in our efforts here as well. 

So unless there are further questions, I want to thank you very 

much for being here today with us. 

Mr. LAVERDURE. Thank you, Mr. Chairman, Mr. Vice Chairman. 

The CHAIRMAN. I would like to now invite the second panel to the 

witness table. Serving on our second panel is the Honorable Jefferson Keel, President of the National Congress of American Indians 

in Washington, D.C.; Mr. John E. Echohawk, Executive Director of 

the Native American Rights Fund, in Boulder, Colorado; and 

Colette Routel, Associate Professor of Law at the William Mitchell 

College of Law in St. Paul, Minnesota. 

President Keel, will you please proceed with your testimony? 

STATEMENT OF HON. JEFFERSON KEEL, PRESIDENT, 

NATIONAL CONGRESS OF AMERICAN INDIANS 

Mr. KEEL. Good afternoon, or I should say aloha. 

The CHAIRMAN. Aloha. 

Mr. KEEL. On behalf of the National Congress of American Indians, I want to thank you for the opportunity to provide our views 

regarding this critical topic. 

Three years ago, the Supreme Court decision in Carcieri v. 

Salazar overturned a longstanding interpretation of the Indian Reorganization Act of 1934 and held that the phrase ‘‘Indian Tribe 

now under Federal jurisdiction’‘ limits the Department of Interior’s 

authority to acquire land in trust for Indian Tribes. Three years 

later, at least 14 pending cases where Tribes and the Secretary of 

Interior are under challenge for placing land in trust for an Indian 

Tribe. 

Much of this is harassment litigation against Indian Tribes that 

were living on treaty reservations in 1934 and all of it is in conflict 

with broad Federal constitutional jurisdiction over Indian affairs. 

Recently, in the Match-E-Be-Nash-She-Wish Band of Pottawatomi 

Indians v. Patchak, the Supreme Court disregarded decades of interpretation of the Quiet Title Act to permit retroactive challenges 

to the status of Federal Indian trust land years after it has been 

placed in trust. 

The Patchak decision demonstrates how destructive the Carcieri

decision could become and highlights the need for Congressional action to correct the definition of Indian within the IRA. NCAI 

strongly urges Congress to prevent further harm to Tribal lands 

and the many Indian people, Tribal cultures and Tribal jobs that 

depend on Tribal lands. 

The Indian Reorganization Act of 1934 created a comprehensive 

plan for the future of Indian nations. Turning away from the destructive practices of the past, Congress found that Indian lands 

should be protected and restored as places where Tribal cultures 

and traditions are maintained. The plan also includes democratic 

and accountable Tribal governments, economic development and 

jobs, respect for relationships with neighboring governments and 

Tribal institutions for education, health care and public safety. 

11

With the IRA, Congress renewed its trust responsibility to protect 

and restore Tribal homelands and the Indian way of life. 

Today, 78 years later, the IRA is just as necessary today as it 

was in 1934. The purpose of the IRA were frustrated, first by 

World War II, then by the termination era. Work did not begin 

again until the 1970s, with the self-determination policy. Since 

then, Indian Tribes are building economies from the ground up. 

They must earn every penny to buy back their own land. 

Still, today, many Tribes have no land base, and many Tribes 

have insufficient lands to support housing, self-government and 

culture. NCAI urges Congress to support legislation clarifying the 

benefits of the IRA available to all federally-recognized Tribes. 

Every time an Indian Tribe acquires land, the Tribe uses the land 

to build housing or a health clinic, to protect natural or cultural resources or to pursue economic development that creates jobs for Indian people and their neighborhoods. 

Most importantly, restoring Tribal lands helps to reverse centuries of Federal policies that have prevented Indian nations from 

reaching their potential. I want to thank you for your support on 

the land restoration. 

On another topic, Senator, if I may, NCAI urges the Senate to 

move on the confirmation of Kevin Washburn as Assistant Secretary for Indian Affairs. It is critical that Mr. Washburn be confirmed as soon as possible, so that there is no unnecessary delays 

occurring in the status and governing of Indian Tribal governments. I want to thank you for that. 

And thank you for holding this important hearing. Thank you. 

[The prepared statement of Mr. Keel follows:]

PREPARED STATEMENT OF HON. JEFFERSON KEEL, PRESIDENT, NATIONAL CONGRESS

OF AMERICAN INDIANS

On behalf of the National Congress of American Indians (NCAI), thank you for 

the opportunity to provide our views regarding this critical topic. Three years ago 

the Supreme Court decision in Carcieri v. Salazar overturned a longstanding interpretation of the Indian Reorganization Act of 1934 and held that the phrase ‘‘Indian 

tribe now under Federal jurisdiction’’ limits Interior’s authority to acquire land in 

trust for Indian tribes. Three years have passed since the Carcieri decision, and 

there are at least fourteen pending cases where tribes and the Secretary of Interior 

are under challenge for placing land in trust for an Indian tribe. Much of this is 

harassment litigation against Indian tribes that were living on treaty reservations 

in 1934, and all of it is in conflict with broad federal constitutional jurisdiction over 

Indian affairs. 

Recently, in Match-E-Be-Nash-She-Wish Band of Potowatami v. Patchak, the Supreme Court disregarded decades of interpretation of the Quiet Title Act (QTA) to 

permit retroactive challenges to the status of federal Indian trust land years after 

it has been place in trust. The Patchak decision demonstrates how destructive this 

Carcieri decision could become, and highlights the need for Congressional action to 

correct the definition of ‘‘Indian’’ within the IRA. NCAI strongly urges Congress to 

take action swiftly to prevent further harm to tribal lands and the many Indian people, tribal cultures, and tribal jobs that depend on tribal lands. 

Background 

The Indian Reorganization Act of 1934 created a comprehensive plan for the future of Indian Nations. Turning away from the destructive practices of the past, 

Congress found that Indian lands should be protected and restored as places where 

tribal cultures and traditions are maintained. This plan also includes modern life: 

democratic and accountable tribal governments; economic development and jobs; respectful relationships with neighboring governments; and tribal institutions for education, healthcare and public safety. With the IRA, Congress renewed its trust responsibility to protect and restore tribal homelands and the Indian way of life. 

12

Today, 78 years later—the IRA is just as necessary as it was in 1934. The purposes of the IRA were frustrated, first by WWII and then by the Termination Era. 

The work did not begin again until the 1970’s with the Self-Determination Policy, 

and since then Indian tribes are building economies from the ground up and must 

earn every penny to buy back their own land. Still today, many tribes have no land 

base and many tribes have insufficient lands to support housing, self-government 

and culture. 

Tribal Land Restoration Is Under Attack

• In Carcieri v. Salazar (2009), the Supreme Court overturned a longstanding interpretation of the Indian Reorganization Act of 1934 (IRA) and held that the 

phrase ‘‘now under Federal jurisdiction’’ limits the Department of Interior’s 

(DOI) authority to provide benefits under the IRA to only those tribes ‘‘under 

Federal jurisdiction’’ on June 8, 1934.

• Three years have passed since the Carcieri decision, and there are at least thirteen pending cases where tribes and the Secretary of Interior are under challenge. There is harassment litigation against tribes who were on treaty reservations in 1934. These legal challenges are pushing a restrictive interpretation in 

conflict with broad federal constitutional jurisdiction over Indian affairs. Land 

acquisitions are delayed. Tribal jurisdiction and law enforcement are threatened. Jobs are lost or never created.

• Recently, in Match-E-Be-Nash-She-Wish Band of Potowatami v. Patchak (2012), 

the Supreme Court disregarded decades of interpretation of the Quiet Title Act 

(QTA) to permit retroactive challenges to the status of federal Indian trust land 

many years after it has been place in trust. The Supreme Court also broadened 

the scope of persons eligible to challenge land into trust decisions under the 

IRA. This decision opens the door to broad challenges to tribal trust land status 

by any party asserting a general interest.

Tribal Priorities For Protecting The Future of Land Into Trust 

The authority of DOI to take land into trust for Indian tribes is one of the pillars 

of the United States’ trust responsibility towards Indian tribes. Without the ability 

to take land into trust, tribes are denied the opportunity to protect and develop 

their cultures and economies. Indian Nations urge Congress to support legislation 

that will fully restore Interior’s authority to take land into trust for Indian tribes.

• S. 676 amends the IRA, replacing the language ‘‘any recognized Indian tribe 

now under federal jurisdiction’’ with ‘‘any federally recognized Indian tribe.’’ It 

also ratifies and confirms prior land into trust decisions, while clarifying that 

it will not affect existing federal laws or regulations relating to Indian tribes. 

S. 676 has been unanimously approved by the Senate Committee on Indian Affairs.

• H.R. 1291 was introduced by Rep. Cole and amends the IRA, similarly confirming that the IRA applies to ‘‘any federally recognized Indian tribe.’’ This bill 

also includes an Alaska-specific limitation, which is opposed by Indian Nations. 

This bill does not include language protecting or confirming prior land into trust 

decisions.

• H.R. 1234 was introduced by Rep. Kildee and also amends the IRA to apply to 

‘‘any federally recognized Indian tribe.’’ This bill does not include an Alaska-specific provision. It also ratifies and confirms prior land into trust decisions, while 

clarifying that it will not affect existing federal laws or regulations relating to 

Indian tribes. H.R. 1234 has 30 co-sponsors.

Conclusion 

NCAI urges Congress to support legislation clarifying that the benefits of the IRA 

are available to all federally recognized tribes. Every time an Indian tribe acquires 

land, the tribe uses the land to build housing or a health clinic, to protect natural 

or cultural resources, or to pursue economic development that creates jobs for Indian people and their neighbors. Mostly importantly, restoring tribal lands helps to 

reverse centuries of federal policies that have prevented Indian Nations from reaching their potential. Thank you for your support on tribal land restoration.

The CHAIRMAN. Thank you very much, President Keel. 

I just want to inform you that we will be having a hearing tomorrow on Mr. Washburn. 

Mr. KEEL. Thank you again. 

13

The CHAIRMAN. Now I would like to call on Mr. Echohawk for 

your testimony, please. 

STATEMENT OF JOHN ECHOHAWK, EXECUTIVE DIRECTOR, 

NATIVE AMERICAN RIGHTS FUND 

Mr. ECHOHAWK. Aloha, Mr. Chairman. 

The CHAIRMAN. Aloha. 

Mr. ECHOHAWK. Once again, the Native American Rights Fund 

is honored to respond to your invitation to testify before this Committee. Everyone here is well aware of the negative impacts that 

the decisions of the U.S. Supreme Court are having throughout Indian Country, decisions which continue to undermine the inherent 

sovereignty of Indian Tribes and impede the ability of the United 

States to fulfill the sacred trust obligations to Indian people. 

Last year, the Native American Rights Fund came before this 

Committee on two separate occasions to discuss the Carcieri crisis, 

a judicially-create crisis, precipitated by the Court’s 2009 decision 

in Carcieri v. Salazar. Today, we are here because of the Court’s more recent decision 

in Match-e-be-nash-she-wish Band of Pottawatomi Indians, the 

Gun Lake Tribe, against Patchak. But make no mistake, the 

Patchak decision is direct evidence of the judicially-created Carcieri

crisis. In other words, Patchak is but a symptom of the larger 

Carcieri problem, a problem which can only be solved by the Congress. 

The single claim brought by Mr. Patchak in his litigation against 

the United States and the Gun Lake Tribe is a Carcieri claim, a 

claim that the Secretary of Interior cannot take land into trust for 

the Tribe unless the United States can prove to the satisfaction of 

the Federal courts, all the way to the Supreme Court, that the 

Tribe was ‘‘under Federal jurisdiction in 1934.’‘

Through our prior testimony, we warned this Committee and this 

Congress that Patchak and a significant number of other cases 

were moving through the Federal courts and the Administrative 

process where Carcieri is being used to harass Indian Tribes and 

delay trust land acquisitions. In several cases, the claims are being 

expanded beyond the question of whether a Tribe was under Federal jurisdiction in 1934. For example, there are now challenges as 

to whether a Tribe also has to be ‘‘federally-recognized’‘ in 1934, 

whether a Tribe even existed as an Indian Tribe in 1934, or whether a Tribe today is even Indian and should have ever been federally-recognized. 

For the record, I have attached to my testimony a detailed summary of the Carcieri-related litigation. It must be noted that all of 

this litigation is having major negative impacts undermining what 

were once well-settled positive principles of Federal Indian law. 

With the delay in enacting a Carcieri fix, Mr. Patchak has led 

the charge with his Carcieri claim which has now resulted in two 

distinct adverse holdings which will have long-term negative impacts for all Tribes. First, Patchak trampled over the sovereign immunity of the United States and eviscerated the once wide protections for Indian lands under the Quiet Title Act. Thus the Court 

has created even more uncertainty for Indian Tribes in relation to 

possible challenges against lands already taken into trust for existVerDate 0ct 09 2002 10:10 Feb 06, 2013 Jkt 078573 PO 00000 Frm 00017 Fmt 6633 Sfmt 6601 S:\DOCS\78573.TXT JACK
14

ing Tribal businesses, Tribal homes and Tribal governmental offices. 

Second, through its finding of prudential standing, Patchak has 

barreled open the courtroom doors to almost any Administrative 

Procedure Act challenge by anyone who may feel ‘‘harmed’‘ by a decision of the Secretary which may benefit Indian Tribes. And remember, the acquisition of trust lands is but one of a myriad benefits that should flow to the Tribes under the IRA. 

Unfortunately, Mr. Chairman, more damage is waiting to be 

done. Carcieri demonstrates that the Court does not appear to respect Congress’ primary role in Indian affairs, and the Court is unwilling to take into account Congress’ directive that the United 

States Government must treat all federally-recognized Indian 

Tribes the same. Congress has determined there are no classes of 

Tribes, no historical versus created Tribes, no treaty versus nontreaty or executive order Tribes, no legislative recognized versus 

administratively recognized Tribes. In 1994, Congress made clear 

that all federally-recognized Tribes are equal. 

To quote one of your esteemed colleagues, ‘‘The recognition of an 

Indian Tribe by the Federal Government is just that, the recognition that there is a sovereign entity with governmental authority 

which predates the U.S. Constitution, and with which the Federal 

Government has established formal relations. Over the years, the 

Federal Government has extended recognition to Indian Tribes 

through treaties, executive orders, a course of dealing, decisions at 

the Federal courts, acts of Congress and Administrative action. Regardless of the methods by which recognition was extended, all Indian Tribe enjoy the same relationship with the United States and 

exercise the same inherent authority.’‘ 

These words were spoken by Senator John McCain in support of 

the 1994 legislation adding the privileges and immunities provision 

to the Indian Reorganization Act. Thus, even though Congress has 

spoken, the Supreme Court has now said otherwise. 

In closing, Mr. Chairman, I would just like to say to the Committee that the true scope of the negative impacts to all Indian 

Tribes as a result of the Court’s decisions in Carcieri and Patchak

cannot yet be determined. If Congress allows more Carcieri-related 

litigation to wind its way through the Federal courts, at some point 

in the not so distant future, the Court will be substantially redefining the legal and political standing of Indian Tribes in this 

Country. 

To avert this catastrophic crisis in Indian affairs, Congress must 

act now. Indian Country needs Congress to step up and tell the 

Court in no uncertain terms that it got Carcieri wrong. If Congress 

remains silent, the Court will continue to fill the void with its current prevailing view that there is nothing exceptional about Indian 

law and that there is nothing special to protect in the relationship 

between the U.S. and its Indian people. 

Thank you, Mr. Chairman. 

[The prepared statement of Mr. Echohawk follows:]

15

PREPARED STATEMENT OF JOHN ECHOHAWK, EXECUTIVE DIRECTOR, NATIVE

AMERICAN RIGHTS FUND

I. Introduction 

Chairman Akaka and Distinguished Members of the Committee: 

My name is John Echohawk. I am the Executive Director of the Native American 

Rights Fund (NARF) in Boulder, CO. NARF is a national, non-profit legal organization dedicated to securing justice on behalf of Native American tribes, organizations, 

and individuals. Since 1970, NARF has undertaken the most important and pressing issues facing Native Americans in courtrooms across the country, as well as here 

within the hall Congress. 

I am honored to be invited here to provide testimony again to the Senate Committee on Indian Affairs. Last year, NARF came before this Committee on two separate occasions to discuss the Carcieri crisis—a judicially-created crisis precipitated 

by the U.S. Supreme Court’s 2009 decision in Carcieri v. Salazar. Today, we are 

here because of the Supreme Court’s more recent decision in Match-E-Be-Nash-SheWish Band of Pottawatomi Indians (Gun Lake Tribe) v. Patchak. But make no mistake: the Patchak decision is direct evidence of the judicially-created Carcieri crisis. 

In other words, Patchak is but a symptom of the larger Carcieri problem-a problem 

which can only be solved by Congress. 

We warned this Committee, and this Congress, that a significant number of cases 

are moving through the federal courts and the administrative process using Carcieri

to harass Indian tribes and delay trust land acquisitions—many times in situations 

where there should be no question whether an Indian tribe was under Federal jurisdiction in 1934. In several cases, claims are not limited to this question alone, but 

are becoming even more insidious. For example, in addition to the question of 

whether a tribe was ‘‘under Federal jurisdiction’’ in 1934, there are now challenges 

as to whether a tribe also had to be ‘‘federally recognized’’ in 1934; whether the tribe 

even existed as an Indian tribe in 1934; or whether the tribe today is even ‘‘Indian’’ 

and should have ever been federally recognized. 

For the record, I have attached to my testimony a detailed summary of litigation 

in the courts and at the administrative level in the wake of the Carcieri decision. 

II. The Carcieri Crisis Amplified 

In our testimony before the Committee in October 2011, we outlined the concerns 

in Indian Country and the possible ramifications of Carcieri on tribal self-determination and economic self-sufficiency. Leading the charge, the single claim brought 

by Mr. Patchak in his litigation against the United States and the Gun Lake Tribe 

is a Carcieri claim—a claim that the Secretary of the Interior cannot take land in 

trust for the Tribe unless the United States can prove, to the satisfaction of the 

lower federal courts (and ultimately to the Supreme Court), that the Tribe was 

‘‘under Federal jurisdiction’’ in 1934. 

As a result of the delay by Congress in enacting legislation in response to 

Carcieri, Mr. Patchak’s Carcieri claim—a claim not yet decided on the merits but 

before the district court on remand—has already resulted in two adverse holdings 

which will have long term negative impacts for all Indian tribes and the United 

States until separately addressed by Congress. First, Patchak has trampled over the 

sovereign immunity of the United States and eviscerated the once-broad protections 

for Indian lands under the Quiet Title Act. This holding creates even more uncertainty for Indian tribes in relation to potential challenges by non-Indians against 

lands already taken into trust with existing tribal businesses, tribal homes, and tribal governmental offices. Second, by finding prudential standing for a non-Indian 

landowner located miles away from the trust parcel, Patchak has barreled-open the 

court room doors to most any APA challenge by a non-Indian who may feel 

‘‘harmed’’ by a decision of the Secretary which may benefit Indian tribes under the 

Indian Reorganization Act (IRA). Remember, the acquisition of trust lands is but 

one of a myriad of benefits that should flow to Indians and Indian tribes under the 

IRA. 

The Supreme Court’s decision in 2009 has now been ‘‘on the books’’ for over three 

years and has called into question whether certain federally-recognized Indian 

tribes were ‘‘under Federal jurisdiction’’ in 1934 and entitled to all the benefits of 

the IRA. This has put many Indian tribes squarely in danger of losing opportunities 

for economic development projects, increasing on-reservation housing for tribal 

members, including the elderly, and many other tribal governmental initiatives. 

III. The Carcieri Crisis Averted? 

Unfortunately Mr. Chairman, as confirmed by the Court’s decision in Patchak, 

more damage is waiting to be done. Carcieri demonstrates that the Court is unwillVerDate 0ct 09 2002 10:10 Feb 06, 2013 Jkt 078573 PO 00000 Frm 00019 Fmt 6633 Sfmt 6621 S:\DOCS\78573.TXT JACK
16

ing to take into account Congress’s directive that the United States government 

must treat all federally recognized Indian tribes the same. There are no classes of 

tribes: no historical-versus-created tribes; no treaty-versus-nontreaty-versus-executive order tribes; no Congressionally-recognized-versus-administratively-recognized 

tribes. All tribes are equal in the eyes of the law. 

In 1994, Congress passed Public Law 103–236 which contained a ‘‘Privileges and 

Immunities’’ amendment to the IRA:

Departments or agencies of the United States shall not promulgate any regulation or make any decision or determination pursuant to the Act of June 18, 

1934 (25 U.S.C. 461 et seq., 48 Stat. 984) as amended, or any other Act of Congress, with respect to a federally recognized Indian tribe that classifies, enhances, or diminishes the privileges and immunities available to the Indian 

tribe relative to other federally recognized tribes by virtue of their status as Indian tribes.

25 U.S.C. § 476(f).

As you are well aware, this amendment was in response to concerns that certain 

officials within the Department of the Interior were categorizing Indian tribes in to 

separate classes, such as ‘‘historic’’ versus ‘‘created’’ tribes. Based on these artificial 

classifications, the Department would determine whether a particular tribe was entitled to various governmental privileges and immunities, including whether a tribe 

could exercise its inherent sovereign authority. Congress was appalled at the caste 

system for Indians created by the Department and acted decisively to address the 

unequal treatment of the tribes. 

On the House side, the issue was addressed by the House Subcommittee on Native American Affairs in a hearing regarding the Department’s determination that 

the Pascua Yaqui Indian Tribe was a ‘‘created’’ rather than ‘‘historic’’ Tribe and ‘‘did 

not have the inherent authority to regulate law and order on their reservation.’’ The 

issue quickly became identified as a concern for all Indian tribes. Representative 

Bill Richardson, in support of the legislation, stated the clear purpose of the 1994 

IRA Amendment:

The amendment is intended to prohibit the Secretary or any other Federal official from distinguishing between Indian tribes or classifying them not only on 

the basis of the IRA but also on the basis of any other Federal law. Other agencies of the Federal Government may have developed distinctions or classifications between federally recognized Indian tribes based on information provided 

to those agencies by the Department of the Interior. The amendment to section 

16 of the IRA is intended to address all instances where such categories or classifications of Indian tribes have been applied and any statutory basis which 

may have been used to establish, ratify or implement the categories or classifications.

The amendment will correct any instance where any federally recognized Indian 

tribe has been classified as created and that it will prohibit such classifications 

from being imposed or used in the future. The amendment makes it clear that 

it is and has always been Federal law and policy that Indian tribes recognized 

by the Federal Government stand on an equal footing to each others and to the 

Federal Government, and that each federally recognized Indian tribe is entitled 

to the same privileges and immunities as other federally recognized tribes.

The amendment will also remove what appears to be a substantial barrier to 

the full implementation of the policies of self-determination and self-governance. 

The committee fully expects that the Department will act as promptly as possible after enactment of this amendment to seek out and notify every Indian 

tribe which has been classified or categorized as created that the classification 

no longer applies and to take any other steps which are necessary to implement 

the amendment.

Statement of Rep. Bill Richardson regarding consideration of S. 1654, 140 Cong. 

Rec. 11,376 (May 23, 1994).

On the Senate side, Senator John McCain addressed the necessity of clarifying 

this confusion regarding ‘‘created’’ versus ‘‘historic’’ tribes:

After careful review, I can find no basis in law or policy for the manner in 

which section 16 has been interpreted by the Department of the Interior. One 

of the reasons stated by the Department for distinguishing between created and 

historic tribes is that the created tribes are new in the sense that they did not 

exist before they organized under the IRA. At the same time, the Department 

17

insists that it cannot tell us which tribes are created and which are historic because this is determined through a case-by-case review.

All of this ignores a few fundamental principles of Federal Indian law and policy. Indian tribes exercise powers of self-governance by reason of their inherent 

sovereignty and not by virtue of a delegation of authority from the Federal Government. In addition, neither the Congress nor the Secretary can create an Indian tribe where none previously existed. Congress itself cannot create Indian 

tribes, so there is no authority for the Congress to delegate to the Secretary in 

this regard. Not only is this simple common sense, it is also the law as enunciated by the Federal courts.

The recognition of an Indian tribe by the Federal Government is just that-the 

recognition that there is a sovereign entity with governmental authority which 

predates the U.S. Constitution and with which the Federal Government has established formal relations. Over the years, the Federal Government has extended recognition to Indian tribes through treaties, executive orders, a course 

of dealing, decisions of the Federal courts, acts of Congress and administrative 

action. Regardless of the method by which recognition was extended, all Indian 

tribes enjoy the same relationship with the United States and exercise the same 

inherent authority. All that section 16 was intended to do was to provide a 

mechanism for the tribes to interact with other governments in our Federal system in a form familiar to those governments through tribal adoption and Secretarial approval of tribal constitutions for those Indian tribes that choose to employ its provisions.

Statement of Senator John McCain regarding the consideration of S. 1654, 140 

Cong. Rec. S6146, May 19, 1994 (Emphasis added).

The statements of Senator McCain and Representative Richardson clearly articulate the intent of Congress. All federally-recognized Indian tribes are to be treated 

the same by the Federal Government under the IRA. No distinctions are to be 

drawn based on the date of federal recognition or the manner of federal recognition. 

Nor are any benefits to be denied to tribes on this basis. 

The true negative impacts to all of Indian country as a result of Carcieri, and now 

Patchak, are still pending in the courts and in administrative proceedings. At some 

point in the not too distant future, the Court—not Congress—may be making decisions based on Carcieri as to: who is really an Indian entitled to special benefits 

under federal law?; or whether a certain federally-recognized Indian tribe really existed in 1934, or should exist today?

To avert such a catastrophic crisis, Congress must act now! Indian country needs 

Congress to tell the Court in no uncertain terms that it got it wrong in Carcieri. 

If Congress remains silent, the Court will fill the void with its prevailing view that 

there is nothing exceptional about Indian law, and nothing special to protect in the 

relationship between the United States and its Indian people. 

IV. Conclusion 

In summary, Patchak, and the cases like it, are Carcieri problems. Without a 

clear fix to language in the IRA reaffirming Congress’s intent for all Indian tribes 

to be on equal footing, federal courts and plaintiffs opposed in tribal interests will 

continue to litigate tribal land acquisitions, which in turn hurt economic development projects that benefit local, state, and tribal economies. Further, it will invite 

federal courts to re-reevaluate federal recognition determinations that, in many 

cases, took decades to decide and are clearly political questions which should remain 

with the political branches. The Congress needs to act in the remaining days to pass 

a Carcieri fix to ensure the stability and survival of tribal sovereign interests. 

Attachment

SEPTEMBER 2012 UPDATE OF LITIGATION IN THE WAKE OF THE U.S. SUPREME

COURT’S DECISION IN Carcieri v. Salazar

U.S. Supreme Court

Match-E-Be-Nash-She-Wish Band of Potawatomi Indians v. Patchak (Nos. 11–246 

and 11–247)—On June 18, 2012, the Court announced its decision and held: (1) Mr. 

Patchak’s Carcieri challenge is a claim brought pursuant to the Administrative Procedures Act (APA), not a case asserting a claim to title under the Quiet Title Act 

(QTA), and is therefore not barred by the Indian lands exception to the waiver of 

immunity under the QTA; and (2) Mr. Patchak, an individual non-Indian landowner, is within the ‘‘zone of interests’’ protected by the Indian Reorganization Act 

and thus has prudential standing to bring a Carcieri challenge to a land-in-trust acVerDate 0ct 09 2002 10:10 Feb 06, 2013 Jkt 078573 PO 00000 Frm 00021 Fmt 6633 Sfmt 6621 S:\DOCS\78573.TXT JACK
18

quisition. In an opinion authored by Justice Kagan, the Court (8–1) found that the 

APA generally waives the immunity of the United States from any suit ‘‘seeking relief other than money damages and stating a claim that an agency or an officer or 

employee thereof acted or failed to act in an official capacity or under the color of 

legal authority.’’ 5 U.S.C. § 702. According to the Court, Patchak’s Carcieri claim fits 

within this waiver of immunity. 

The Court rejected the arguments of the United States and the Tribe that 

Patchak seeks to divest the United States of title to land held in trust for the Tribe 

and should be barred under the Indian lands exception to the waiver of immunity 

within the Quiet Title Act (QTA). The Court relied heavily on a letter written by 

former Assistant Attorney General (now Justice) Scalia to Congress about the APA’s 

waiver of immunity for the principle that ‘‘when a statute ‘is not addressed to the 

type of grievance which the plaintiff seeks to assert,’ then the statute cannot prevent an APA suit.’’ According to the Court, the QTA only applies to actions seeking 

quiet title by a party with a competing ownership interest in the land and therefore 

‘‘addresses a kind of grievance different from the one Patchak advances.’’ Although 

the Court concedes that Patchak is contesting the United States’ title to the land, 

since he is not claiming any competing ownership interest in the land, the QTA and 

the Indian lands exception to the QTA are not applicable to this litigation. 

The Court also rejected the arguments of the United States and the Tribe that 

Patchak cannot bring a Carcieri challenge because he lacks prudential standing (e.g.

within the ‘‘zone of interests’’) under the Indian Reorganization Act (IRA). The 

Court found that although Section 5 of the IRA only specifically addresses land acquisition, decisions made by the Secretary under Section 5 ‘‘are closely enough and 

often enough entwined with considerations of land use’’ to allow neighboring landowners to bring ‘‘economic, environmental or aesthetic’’ challenges to the those decisions. 

In her dissent, Justice Sotomayor states: ‘‘After today, any person may sue under 

the APA to divest the Federal Government of title to and possession of land held 

in trust for Indian tribes—relief expressly forbidden by the QTA—so long as the 

complaint does not assert a personal interest in the land.’’ Justice Sotomayor points 

out that the Court’s decision works against the one of the primary goals of the 

IRA—new economic development and financial investment in Indian country. Now, 

trust land acquisitions for the benefit of Indian tribes will be subject to judicial challenge under the APA’s six-year statute of limitations—not the 30-day period provided for under the regulations—substantially constraining the ability of all Indian 

tribes to acquire and develop lands. 

U.S. Courts of Appeals 

Big Lagoon Rancheria v. State of California (9th Cir. No. 10–17803): On February 

10, 2012, the State of California filed its opening brief seeking reversal of the ruling 

by the district court that granted summary judgment to the Tribe and held that the 

State acted in bad faith during negotiations for a tribal-state gaming compact pursuant to the Indian Gaming Regulatory Act (IGRA). On appeal, the State of California raises two issues:

Whether, when presented with credible, undisputed evidence that a tribe may 

lack standing to obtain any relief under IGRA, either because the United States 

unlawfully considers the tribe to be federally recognized, or the United States 

unlawfully acquired in trust the land where the tribe proposes to build a casino, 

a district court must first determine whether the tribe has been lawfully recognized and whether the land on which it proposes to build its class III gaming 

facility is lawfully eligible for that purpose.

At the district court, the State attempted to demonstrate good faith by arguing 

Carcieri—its need to preserve the public interest by keeping a gaming facility from 

being located on lands unlawfully acquired by the Secretary for the Tribe under the 

Supreme Court’s decision in Carcieri. The district court characterized the argument 

as a post hoc rationalization by the State of its actions which were concluded four 

months prior to the Court’s decision in Carcieri. Principal briefing before the Ninth 

Circuit was completed on May 10, 2012. 

Butte County v. Hogen, (DC Cir. No. 09–5179): On July 13, 2010, the U.S. Court 

of Appeals for the D.C. Circuit issued its opinion setting aside the Secretary’s decision to take land in trust for the benefit of the Mechoopda Tribe of Chico Rancheria. 

The D.C. Circuit remanded the case which is still pending before the Department 

of the Interior to address the ‘‘new’’ information provided by Butte County in relation to the Department’s restored tribe/restored lands determination. The D.C. Circuit did not address the Carcieri issue raised within the appeal. 

19

(Note: On appeal, Butte County raised the issue of whether the Secretary has authority to take land in trust for the benefit of the Mechoopda Tribe under the IRA. 

The United States argued that ‘‘Carcieri is clearly distinguishable.’’ The United 

States characterized the holding in Carcieri as follows: ‘‘None of the parties contended that the Narragansett tribe was under federal jurisdiction in 1934, and the 

Federal Government had repeatedly declined to help the tribe between 1927 and 

1937 because the tribe ‘was and always had been, under the jurisdiction of the New 

England States, rather than the Federal Government.’ There is no suggestion that 

the relationship between the United States and the Mechoopda Tribe is at all analogous to that. If Butte County believed Carcieri to be controlling despite several distinctions, Butte County should have provided some argument for that position.’’) 

U.S. District Courts 

Cherokee Nation v. Salazar (N.D. Okla No. 12–493): On August 29, 2012, the 

Cherokee Nation filed suit challenging the Department of the Interior’s July 30, 

2012 decision to acquire 2.03 acres of land in trust for the United Keetoowah Band 

of Cherokee Indians of Oklahoma (UKB). The Cherokee Nation asserts that because 

‘‘UKB was not federally recognized until 1946, the Secretary cannot... accept the 

[land] into trust under Carcieri.’’

County of Amador v. Salazar (EDCA No. 2:12-at-00900) and No Casino in Plymouth and Citizens Equal Rights Alliance v. Salazar (ED–CA No. 2:12-at-00919): On 

June 27, 2012, the County of Amador filed a suit for declaratory and injunctive relief in the U.S. District Court for the Eastern District of California against the Department of the Interior challenging the May 24, 2012 Record of Decision (ROD) 

taking 228 acres of land in to trust for the benefit of the Ione Band of Miwok Indians. On June 29, 2012, No Casino in Plymouth and Citizens Equal Rights Alliance 

filed a suit against the Department challenging the May 24, 2012 ROD. Based on 

Carcieri, the plaintiffs contend that the Secretary is without authority to take land 

in trust for the Ione Band of Miwok Indians since the tribe did not exist as a ‘‘recognized Indian tribe’’ in 1934 and were not ‘‘under federal jurisdiction’’ in 1934. 

Clark County v. Salazar (DCDC No. 1:11-cv-00278) and Grande Ronde v. Salazar 

(DC No. 1:11-cv-00284): On January 31, 2011, Clark County, City of Vancouver, 

Citizens Against Reservation Shopping, various non-Indian gaming enterprises and 

a number of individual landowners filed suit in the U.S. District Court for the District of Colombia against the Department of the Interior and the National Indian 

Gaming Commission challenging the Record of Decision (‘‘ROD’’) issued by the Department of the Interior to acquire land in trust for the benefit of the Cowlitz Indian 

Tribe. On February 1, 2011, the Confederated Tribes of the Grande Ronde Community of Oregon filed suit against the Department of the Interior also challenging the 

ROD. The Clark County complaint states that ‘‘the Cowlitz Tribe was neither federally recognized nor under federal jurisdiction in June 1934.’’ Therefore, under the 

Supreme Court’s holding in Carcieri, the Secretary does not have authority to take 

lands in trust for the Tribe and does not have the authority to proclaim such land 

as the Tribe’s reservation. Grande Ronde challenges the trust land acquisition alleging that the Cowlitz Tribe was neither ‘‘recognized’’ nor ‘‘under federal jurisdiction’’ 

in 1934 as required by the IRA. The Cowlitz Tribe successfully intervened in both 

cases. On June 20, 2012, Clark County, et al, and Grande Ronde each filed their 

motion for summary judgment. On July 19, 2012, the United States filed a motion 

to stay and a motion to remand the case back to the Department for reconsideration 

of the ROD in light of information provided by the plaintiffs in connection with their 

summary judgment motions. On August 29, 2012, the court denied the motions of 

the United States finding that ‘‘[n]either a remand nor a stay . . . is necessary to 

enable the federal defendants to review and reconsider the [ROD].’’ Instead, the 

court simply extended the deadline for the Department and the Tribe to file their 

responses to the summary judgment motions which are now due on October 5, 2012. 

The court directed, ‘‘Should the federal defendants decide in the interim to rescind 

or otherwise alter their determination, they shall file promptly a notice of such action.’’

Central New York Fair Business Assoc., et al. v. Salazar (NDNY No. 6:08-cv-660):

On March 1, 2010, the U.S. District Court for the Northern District of New York 

issued an order granting the United States’ motion for partial dismissal of the complaint/amended complaint in a case which involves the May 2008 decision of the Department of the Interior to take approximately 13,000 acres of land in trust for the 

Oneida Indian Nation of New York. The motion to dismiss certain claims did not 

include the claim within the plaintiffs’ amended complaint regarding the holding in 

Carcieri:

‘‘Plaintiffs assert that according to the administrative record the Oneida Indian 

Nation of New York was not a recognized Indian tribe in June 1934 ‘now under 

20

federal jurisdiction’ as required by 25 U.S.C. § 479 of the [IRA]. The OIN is 

therefore not eligible for the benefits of the IRA that includes allowing the Secretary to take lands into trust under 25 U.S.C. § 465.

On March 15, 2010, the plaintiffs filed a motion for reconsideration which the 

court denied on December 6, 2010. Plaintiffs requested discovery on their Carcieri

related claims which were denied. Additional plaintiffs challenging the May 2008 

trust acquisition decision in State of New York et al v. Salazar, No.08–644, and 

Town of Verona et al v. Salazar, No. 06–647, have also argued that the Oneidas 

were not under federal jurisdiction. On November 15, 2011, parties, including the 

United States, filed their motions for summary judgment. Briefs in opposition to 

summary judgment were filed on January 30, 2012. Reply briefs were filed on 

March 15, 2012. A motions hearing with no oral argument was scheduled for April 

4, 2012. No action has been docketed since March 23, 2012. 

State Courts 

Jamulians Against the Casino et al v. Randell Iwasaki, Director of California Department of Transportation, et al. (Superior Court for the State of California in and 

for the County of Sacramento No. 34–2010–80000428) In July 2010, a state court 

dismissed a lawsuit against various officials with the California Department of 

Transportation in which the Jamul Indian Village was identified as a real party in 

interest. Plaintiffs, a watchdog group formed for the sole purpose of opposing the 

Jamul Village’s efforts to build a casino on its Reservation, sought to void a settlement agreement entered into between the Tribe and CalTrans relating to a dispute 

involving an encroachment permit issue. While the Complaint is largely focused on 

Plaintiffs’ attempts to void the settlement agreement, Plaintiffs also make Carcieri- related allegations. Specifically, they alleged that the Tribe was not recognized in 

1934 and that the Tribe’s contention that its Reservation is held in trust by the 

United States for the benefit of the Tribe ‘‘conflicts with the Supreme Court’s ruling 

in Carcieri v. Salazar, 555 U.S. 379 (2009), that the Secretary of the Interior’s authority under IRA to take land into trust for Indians was limited to Indian tribes 

that were under federal jurisdiction when IRA was enacted in 1934.’’

Interior Board of Indian Appeals 

State of New York, Franklin County, New York, and Town of Fort Covington, New 

York v. Acting Eastern Regional Director (IBIA Nos. 12–006, 12–010): The State of 

New York and County and Town of Fort Covington filed an administrative appeal 

of the Notice of Decision issued by the Acting Eastern Regional Director for the Bureau of Indian Affairs to take 39 acres of land into trust for the benefit of the St. 

Regis Mohawk Tribe of New York. The 39-acre parcel is currently being used for 

a solid waste transfer station, and the application states that the property would 

continue to be used for this purpose. Although the St. Regis Mohawk Tribe is on 

the 1947 Haas list as a Tribe that voted to ‘‘opt out’’ of the provisions of the IRA, 

the Appellants argue that the Tribe was under State rather than Federal jurisdiction in 1934 and that the Supreme Court’s decision in Carcieri therefore deprives 

the Secretary of authority to take land into trust for the Tribe under the authority 

of the IRA. The Appellant Town and County filed their revised opening brief on 

April 13, 2012. The BIA and Tribe filed their response briefs on June 15, 2012. The 

Appellant Town and County filed their response brief on July 13, 2012. No further 

briefing is expected on this matter before the IBIA. 

Village of Hobart v. Bureau of Indian Affairs (IBIA Nos. 10–091, 10–092, 10–107, 

10–131, 11–002, 11058, 11–083): On April 16, 2010, the Village of Hobart, Wisconsin, filed an administrative appeal of the Notice of Decision issued by the Regional Office of the Bureau of Indian Affairs of its intent to take several parcels of 

land into trust for the benefit of the Oneida Tribe of Indians of Wisconsin. In spite 

of the fact that the Oneida Tribe is on the 1947 Haas list, the Village of Hobart 

argues that the Tribe was not ‘‘under federal jurisdiction’’ because their reservation 

was disestablished. 

Thurston County v. Great Plains Regional Director (IBIA Nos. 11–031, 11–084, 11–

085, 11–086, 11–087, 11–095, 11–096): Thurston County, Nebraska, has filed an administrative appeal of the Notice of Decision filed by the Regional Director of the 

Bureau of Indian Affairs of its intent to take several parcels of land in trust for the 

benefit of the Winnebago Tribe of Nebraska. In spite of the fact that the Winnebago 

Tribe is on the 1947 Haas List and the fact that the Tribe has been located at all 

times since 1865 on reservation lands purchased by the United States, Thurston 

County argues that the Tribe was not ‘‘under federal jurisdiction’’ in 1934. 

Preservation of Los Olivos v. Department of the Interior, (IBIA No. 05–050–1) (CA–

CD No. 06–1502): On July 9, 2008, the U.S. District Court for the Central District 

of California remanded this case to the Interior Board of Indian Appeals. This case 

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involves a challenge brought by two citizen groups from the Santa Ynez Valley to 

the IBIA’s decision that the groups lacked standing to challenge the Department’s 

decision to take land in trust for the benefit of the Santa Ynez Band of Chumash 

Mission Indians. In short, the district court vacated the IBIA order and remanded 

the case to the IBIA, requiring the IBIA to specifically ‘‘articulate its reasons (functional, statutory, or otherwise) for its determination of standing, taking into account 

the distinction between administrative and judicial standing and the regulations 

governing administrative appeals.’’

On February 8, 2010, the citizen groups filed their opening brief before the IBIA, 

not only addressing the issue of standing, but arguing on the merits that the Secretary does not have authority to take land in trust for the Tribe. The groups argue 

that the Supreme Court’s decision in Carcieri ‘‘dramatically changed the legal landscape with respect to the power and the authority of the Secretary of the Interior 

and the BIA to take land into federal trust for Indian tribes.’’ The groups provided 

exhibits—including a 1937 list which references ‘‘Santa Ynez’’ as having a reservation/Rancheria, but does not reference a particular ‘‘tribe’’—all of which they allege 

lead ‘‘to the conclusion that the Santa Ynez Band was not a tribe under federal jurisdiction in 1934.’’ On May 17, 2010, the IBIA partially remanded back to the BIA 

for the purpose of answering the Carcieri question. 

On May 23, 2012, the Associate Solicitor for the Division of Indian Affairs signed 

an opinion confirming that neither Carcieri nor Office of Hawaiian Affairs limits the 

Secretary’s authority to acquire land in trust for Santa Ynez. Under Federal jurisdiction was demonstrated by establishment of the Reservation in 1906, IRA vote in 

1934, and BIA Census in 1934. On June 13, 2012, the Regional Director affirmed 

the original 2005 trust acquisition decision on the basis that Carcieri did not limit 

the Secretary’s authority to acquire land in trust. 

Several parties have filed Notices of Appeal with the IBIA challenging the Regional Director’s June 13, 2012 Notice of Decision. On July 30, 2012, the IBIA received copies of Notices of Appeal from ‘‘No More Slots’’ and ‘‘Santa Ynez Valley 

Concerned Citizens.’’ On August 8, 2012, the IBIA issued an order directing these 

parties to show cause, on or before September 10, 2012, why their appeals should 

not be dismissed as untimely. On August 16, 2012, the IBIA received a Notice of 

Appeal from ‘‘Preservation of Los Olivos’’ and ‘‘Preservation of Santa Ynez’’ (‘‘POLO/

POSY’’). On August 21, 2012, the IBIA also ordered POLO/POSY to show cause, on 

or before September 20, 2012, why their appeal should not be dismissed as untimely. 

California Coastal Commission and Governor Arnold Schwarzenegger v. Pacific 

Regional Director, Bureau of Indian Affairs (IBIA Nos. 10–023, 10–024): The Coastal 

Commission and Governor (‘‘Appellants’’) filed an appeal to the October 2, 2009 decision of the Pacific Regional Director to take a 5-acre parcel in Humboldt County in 

trust for the Big Lagoon Rancheria. In their appeal, the Appellants refer to the U.S. 

Supreme Court’s decision in Carcieri and allege that the Big Lagoon Rancheria was 

not under federal jurisdiction in 1934 and, therefore, the Secretary lacks authority 

to take lands in trust for the Tribe. 

On January 28, 2010, the Assistant Regional Solicitor filed a Motion For Remand 

of Decision to BIA Regional Director, based on the January 27, 2010 memorandum 

of the Assistant Secretary of Indian Affairs. The Assistant Secretary directed the 

Regional Director to request a remand ‘‘from the IBIA for the purpose of applying 

the holding of Carcieri v. Salazar to your decision and to determine whether Big 

Lagoon was under Federal Jurisdiction in 1934.’’ On February 19, 2010, the IBIA 

reversed the Regional Director’s decision and remanded the whole decision back to 

the BIA. 

Objections to Pending Applications Before the Department of the Interior 

Lytton Rancheria 92 Acre Fee to Trust Application: Letter dated October 8, 2009 

(with attachments) from Andra Lynn Hoch, Legal Affairs Secretary, Office of the 

Governor, to Dale Morris, Regional Director, Bureau of Indian Affairs, opposing application based on Supreme Court’s holding in Carcieri. Specifically, the letter states 

that based on the facts available to the Governor’s office, ‘‘it appears that the Secretary lacks authority to take any land in trust under the provisions of 25 U.S.C. 

§ 465. First, no claim has or could be made that Lytton existed as a tribe prior to 

European contact, or that Lytton is a successor-in-interest to a previously extant 

tribe... Second, under the definition of a tribe set forth in 25 U.S.C. § 479 (‘‘Indians residing on one reservation’’), the United States could not have recognized the 

Indians living on the fifty acres near Lytton Road as a tribe, or asserted jurisdiction 

over them in 1934 because no Indians resided on the land in 1934.’’

United Keetoowah Band of Cherokee Indians v. Bureau of Indian Affairs: On September 10, 2010, Assistant-Secretary for Indian Affairs Larry Echohawk issued a 

22

decision in a case involving a free-to-trust application for 76-acres of land filed by 

the United Keetoowah Band of Cherokee Indians. In June 2009, the Assistant Secretary issued a decision taking jurisdiction from the IBIA over the Tribe’s appeal 

from the Regional Director’s denial of the application and stated:

The UKB application raises an issue that was not presented to or addressed by 

the Carcieri Court. The Carcieri Court had to decide whether the Secretary 

could take land into trust today for members of a tribe that was in existence 

in 1934, and still is, but that was not under federal jurisdiction in 1934. The 

UKB application raises the question whether the Secretary can take land into 

trust today for members of a tribe that was not in existence in 1934 if that tribe 

is a successor in interest to a tribe that was in existence and under federal jurisdiction in 1934. This question requires further consideration.

In the September 10, 2010, decision, the Assistant Secretary directs the Regional 

Director to allow the Tribe ‘‘to amend its application in one of the following ways: 

(1) continue to invoke my authority under Section 5 of the Indian Reorganization 

Act but seek to have the land taken in trust for one or more half-blood members 

who could later transfer their interest of the UKB; (2) invoke my authority under 

Section 3 of the Oklahoma Indian Welfare Act (OIWA) and seek to have the land 

held in trust for the UKB Corporation; (3) invoke my authority under Section 1 of 

the OIWA and supplement the record with evidence to show that the parcel satisfies 

the conditions of Section 1 [e.g. agricultural lands].’’

The CHAIRMAN. Thank you very much, Mr. Echohawk. 

And now Ms. Routel, will you proceed with your statement? 

STATEMENT OF COLETTE ROUTEL, ASSOCIATE PROFESSOR, 

WILLIAM MITCHELL COLLEGE OF LAW 

Ms. ROUTEL. Good afternoon, Chairman Akaka. Thank you for 

inviting me here today. 

This is my third time testifying about the impacts of the U.S. Supreme Court’s decision Carcieri v. Salazar. Each time I had advocated for a quick and clean legislative fix, acknowledging that all 

Tribes should receive the benefit of the Indian Reorganization Act. 

Each time, speakers have detailed the potential impacts of that decision. And some of those impacts may have been dismissed as 

doomsday prophecies. But nearly all of them have come to pass. 

The one-two punch delivered by the U.S. Supreme Court in 

Carcieri and Patchak threatens the very foundation of the Indian 

Reorganization Act, which was meant to be a new deal for Indian 

Tribes. As this Committee’s report already makes clear, from 1880 

to 1933, over 100 million acres of land left Indian hands. Two of 

the main purposes behind the IRA were to help Tribes reacquire 

this land and to halt further land loss. The Carcieri decision has 

impeded the purpose of the IRA by making land acquisition much 

more difficult. 

Over the past three years, it seems as though nearly every trust 

acquisition has been challenged by a party claiming that the particular Tribe was not under Federal jurisdiction when the IRA was 

adopted. 

BIA policy grants a voluntary stay if a lawsuit is brought within 

30 days of the decision to take land into trust. This policy was 

meant to provide States and local governments with an opportunity 

to have their legitimate concerns heard by a Federal court. But it 

is now being misused to fuel frivolous litigation. Litigants realize 

that for the duration of their lawsuit, the land will remain in fee 

status, which means that State property taxes or local property 

taxes must continue to be paid. 

23

If the land is outside of Indian Country, that means that all of 

their State laws will continue to be complied with, including land 

use requirements. This gives them the incentive they need to pursue litigation, even though there might be no possibility of success. 

As a result, Tribes will face Carcieri challenges, even if they voted 

to accept the IRA in 1934, which should be conclusive proof that 

they were under Federal jurisdiction on that date. 

More serious challenges occur when an Indian Tribe did not vote 

to accept the IRA during the first few years of its implementation. 

Indian Tribes that did not have a land base in 1934 were typically 

precluded from voting on the Act. Other Tribes were forgotten or 

prevented from voting due to the Department’s mistakes. So just 

making that State jurisdiction over a Tribe precluded Federal jurisdiction. This is exactly why Justice Breyer wrote in his concurring 

opinion in Carcieri that a Tribe could be under Federal jurisdiction 

in 1934 even if the Department didn’t know it at the time. 

For these Tribes, Carcieri is more difficult. Before I came out 

here to testify, I spoke with Bruce White, who is a good friend of 

mine, and he is also an ethnohistorian who is an expert in Ojibwe 

and Dakota history. He walked me through the research process 

that Tribes are going to have to go through to establish that they 

were under Federal jurisdiction in 1934. I tried to detail that in my 

written testimony, but suffice it to say, it requires you going to 

multiple locations, National Archives here in Washington, D.C., potentially sites in Chicago and Kansas City, and sifting through documents that are in chronological order, not in the order of particular Tribes. That is expensive, it is time-consuming and to have 

to engage in that process and then the years of litigation that will 

follow serves no current policy purposes. 

The U.S. Supreme Court’s decision in Patchak has exasperated 

these problems. Now litigants can bring challenges against land already held in trust, even if that land was acquired before the 

Carcieri decision. That is contrary to the purposes of the IRA. The 

IRA was designed to ensure that Tribes would never again face the 

divestment of Tribal lands. That is what Patchak seems to allow 

to happen. 

Patchak’s reach is unclear at this point, but it will likely have 

a profound impact on all Tribes. Shortly after the Patchak decision 

was released, Fitz Ratings issued a press release stating that raise 

in capital for Indian economic development projects would become 

more difficult and expensive. 

In closing, when you think about this fix, I want to leave you 

with one example, and that is the Mashpee Wampanoag Tribe. 

This is the Tribe that our children celebrate every fall for their 

help of the pilgrims who arrived completely unprepared for the 

harsh winters here in the new world. This is the Tribe that endured misguided assimilation attempts and lost virtually their entire land base due to an allotment program. This is a program that 

was administered by the State of Massachusetts when Henry 

Dawes was a State legislator, before he went on to this Congress 

and helped draft the General Allotment Act. This is the Tribe that 

asked to be recognized in 1975, and when no action was taken on 

that petition, was forded to bring a Federal court lawsuit in 2000. 

This is the Tribe that was finally recognized in 2007, after proving 

24

1 555 U.S. 379 (2009). 

2 Instead, the Carcieri decision creates two classes of tribes: those that were ‘‘under federal 

jurisdiction’’ in 1934, and those that were not. The benefits of the IRA, which are not limited 

to land acquisition, are now unavailable to the latter group. 3 Nearly all of the tribes recognized directly Congress have express provisions in their recognition bills that make the IRA applicable to both the tribe and its members. Tribes who waded 

through the decades-long OFA process have no such insulation. 4 25 U.S.C. § 479. 5 Carcieri, 555 U.S. at 382. 6The Bureau of Indian Affairs had not considered whether the Narragansett Tribe was under 

federal jurisdiction in 1934, because it believed that the IRA applied equally to all federally recognized tribes. Although this was not part of the agency’s decision, and even though the merits 

of the issue had not been briefed or argued in the Supreme Court, the majority opinion resolved 

this issue against the Tribe. The State of Rhode Island made a bare assertion in its petition 

that despite everything, it continued to exist from the 1600s to the 

present. 

Today this Tribe still has no trust lands and nearly half of its 

members are living below the poverty line. This is a Tribe that 

should not have to wait any longer. It should not have to wait for 

the BIA to determine that they were under Federal jurisdiction in 

1934, or for the frivolous lawsuit that will challenge that determination. This is a Tribe that has elders that are passing away 

year after year, that struggled for decades to win recognition and 

just want to see their reservation, their homeland. 

Do not make the Mashpee or any other Tribe wait any longer. 

You can make a profound difference by passing a Carcieri fix now. 

Thank you. 

[The prepared statement of Ms. Routel follows:]

PREPARED STATEMENT OF COLETTE ROUTEL, ASSOCIATE PROFESSOR, WILLIAM

MITCHELL COLLEGE OF LAW

Good afternoon Chairman Akaka and distinguished members of the Committee. 

Thank you for inviting me here today. 

This is my third time testifying before Congress about the U.S. Supreme Court’s 

decision in Carcieri v. Salazar. 1 In 2009, when I testified before the U.S. House 

Committee on Natural Resources, I focused my attention on the decision itself, explaining why Carcieri was contrary to the legislative history of the Indian Reorganization Act (IRA), the circumstances surrounding the Act’s passage, and 75 years 

of Executive Branch practice. Last year, I testified before this Committee on the impacts of the Carcieri decision, and I advocated for a clean fix. I began by explaining 

how the decision was contrary to Congressional policy that requires all federally recognized Indian tribes to be treated equally. 2 I also discussed how Congress has encouraged unrecognized tribes to pursue recognition through the Office of Federal Acknowledgement’s administrative process, yet Carcieri disadvantages tribes that have 

followed this direction. 3 Finally, I emphasized that the impact of Carcieri was being 

felt by all tribes. Even Indian tribes that voted on acceptance of the IRA just 

months after its passage have faced frivolous litigation by states and local governments. While these trust acquisitions are delayed for years, new jobs are not created, and tribal economic development is stymied. 

In this hearing, while I am willing to answer any questions you might have about 

my prior testimony, I will focus my attention on new developments that have occurred over the past year and matters that have not otherwise been covered by this 

Committee’s very thorough May 17, 2012 report. 

I. Current Interpretations of the IRA’s Definition of Indian 

The Indian Reorganization Act defines the term ‘‘Indian’’ to include ‘‘all persons 

of Indian descent who are members of any recognized Indian tribe now under Federal jurisdiction.’’ 4 In Carcieri, the Court decided that the word ‘‘now’’ referred to 

the time of the statute’s enactment. 5 Therefore, to take advantage of the benefits 

of the IRA, an Indian tribe must prove it was ‘‘under federal jurisdiction’’ in June 

1934. But Carcieri did not offer any guidance regarding how the phrases ‘‘recognized 

Indian tribe’’ or ‘‘under federal jurisdiction’’ should be interpreted. Instead, the majority opinion used a technical procedural rule to conclude that the Narragansett 

Tribe did not satisfy these restrictions. 6

25

for certiorari that the Tribe ‘‘was neither federally recognized nor under the jurisdiction of the 

Federal Government’’ in 1934. The respondent’s opposition brief did not contradict this assertion, so it was considered waived. Id. at 395-96 (citing U.S. Supreme Court Rule 15.2). Justices 

Souter and Ginsburg dissented on this point, indicating that they would have remanded the 

issue to the agency to determine whether the Narragansett were under federal jurisdiction in 

1934. Id. at 400-01. 7 U.S. Dep’t of the Interior, Record of Decision, Trust Acquisition of, and Reservation Proclamation for the 151.87-acre Cowlitz Parcel in Clark County, Washington, for the Cowlitz Indian 

Tribe (Dec. 2010) (hereinafter, Cowlitz ROD). The Department has applied the framework it articulated in the Cowlitz ROD to other Indian tribes. See, e.g., Letter from Acting Director of the 

Department of the Interior’s Eastern Region to Tunica-Biloxi Tribal Chairman Earl Barbry 

(Aug. 11, 2011). 8 Cowlitz ROD at 87-89. See also William Quinn, Federal Acknowledgment of American Indian 

Tribes: The Historical Development of a Legal Concept, 34 AM. J. LEGAL HIST. 331, 333 (1990). 9 Cowlitz ROD at 89. 10 Id. at 94. 11The Indian Contracting Act provided that all contracts between Indian tribes (or tribal 

members) and non-Indians were void unless approved by the Secretary of the Interior. 16 Stat. 

544, 570-71 (1871). 12See Snyder Act of 1913, codified at 25 U.S.C. § 13. 

Now that more than three years have passed since the Court’s decision, we are 

only just beginning to see how these phrases might be interpreted. The Department 

of the Interior’s interpretation and reasoning can be found in the Record of Decision 

(ROD) it issued in conjunction with its decision to acquire land in trust for the benefit of the Cowlitz Indian Tribe. 7 In that ROD, the Department concluded that the 

term ‘‘recognized Indian tribe’’ referred to recognition in the cognitive sense (e.g., federal officials or anthropologists knew that an Indian tribe existed) rather than 

in the more formal, jurisdictional sense that it is commonly used today (e.g., the 

U.S. acknowledges a government-to-government relationship with the tribe), although proof of the latter would necessarily include proof of the former. 8 The Department also concluded that because the phrase ‘‘recognized Indian tribe’’ was not 

modified by the word ‘‘now,’’ a tribe could satisfy this criterion by showing that the 

tribe was recognized as of the time the Department acquired the land for its benefit. 9

Interpreting the phrase ‘‘under federal jurisdiction,’’ proved to be more complicated. The Department now requires a two-part inquiry. First, at or prior to 1934, 

it must be shown that the Federal Government has taken action ‘‘for or on behalf 

of the tribe or in some instance tribal members... that generally reflect federal 

obligations, duties, responsibility for or authority over the tribe by the Federal Government.’’ 10 Second, once the tribe has established that it was once under federal 

jurisdiction, it must demonstrate that this was still true in 1934. Still, the failure 

of the Federal Government to take any actions on behalf of a tribe during a particular time period does not reflect a loss of the tribe’s jurisdictional status. Rather, 

there must be affirmative evidence that a tribe’s jurisdictional status was terminated. 

Finding and assembling the information necessary to satisfy this two-part inquiry 

is enormously time consuming and may require the tribe to review documentation 

over a 140-year period (from 1790, when the Trade & Intercourse Acts were enacted, 

until June 1934). It includes assembling documents demonstrating any federal actions taken to (1) enforce the Trade & Intercourse Acts within the tribe’s territory, 

(2) approve contracts between a tribe (or tribal members) and non-Indians, 11 (3) 

prosecute a crime committed by an Indian under the Major Crimes Act, (4) educate 

tribal children at BIA schools, and (5) provide health care or other social services 

to tribal members. 12

Federal records and correspondence needed to demonstrate these actions are scattered throughout the country in public archives and private collections. If, for example, you were looking for information on Michigan Indian tribes, at a minimum you 

would need to search the National Archives in Chicago, Illinois and Washington, 

D.C., as well as local historical societies within the State of Michigan. Historical correspondence from or to Indian agents’ or superintendents’ are usually filed in these 

locations in chronological order, without divisions for differing subject matter. Thus, 

a researcher would be compelled to search through decades of federal correspondence regarding all of the tribes in the region in the hopes of finding references to 

the tribe they are in fact researching. Particular record types may be even more 

challenging. BIA school records for Indian children are typically organized by the 

child’s last name, not his or her tribal affiliation. Therefore, genealogies or periodic 

historic lists of tribal members may be needed to identify potentially relevant 

records. And since Indian children were sent to boarding schools throughout the 

country, this may require a researcher to visit document collections in additional loVerDate 0ct 09 2002 10:10 Feb 06, 2013 Jkt 078573 PO 00000 Frm 00029 Fmt 6633 Sfmt 6621 S:\DOCS\78573.TXT JACK
26

13 132 S.Ct. 2199 (2012). 14 25 CFR 151.12(b). 15Patchak, 132 S.Ct. at 2217 (Sotomayor dissenting). 

cations. These brief examples demonstrate why it is neither easy nor straightforward to determine whether an Indian tribe was truly ‘‘under federal jurisdiction’’ 

in 1934. 

Worse still, it is far too early to tell whether the Department’s interpretation will 

be upheld by federal courts. While dozens of cases are pending, it will take at least 

another decade before the various federal circuits have developed a body of jurisprudence analyzing what ‘‘under federal jurisdiction’’ means in the IRA. Without a Congressional fix, Indian tribes and the Federal Government will waste needed resources assembling this information and fighting litigation that serves no current 

federal Indian policy. 

II. The U.S. Supreme Court’s Recent Decision in Salazar v. Patchak 

This summer, the United States Supreme Court magnified the problem created 

by Carcieri with its decision in Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians v. Patchak. 13 Patchak, a private landowner, brought suit in 2008, arguing 

that the Secretary of the Interior had improperly decided to acquire land in trust 

for the Match-E-Be-Nash-She-Wish Band (also known as the Gun Lake Tribe). According to Patchak, the Tribe was not under federal jurisdiction in 1934, and therefore, the Secretary did not have the authority to take land into trust under the IRA. 

He sought a stay in the District Court to prevent the United States from acquiring 

the property in trust. But his motion was denied, and he did not appeal this decision. Instead, when his case was later dismissed on standing grounds, Patchak appealed to the U.S. Court of Appeals for the District of Columbia, and ultimately, 

the U.S. Supreme Court. 

The U.S. Supreme Court held that Patchak satisfied the requirements of prudential standing by alleging that he was a nearby landowner and the Tribe’s economic 

development plans for the parcel would cause him environmental, economic, and 

aesthetic harm. The respondents had argued that he was not within the statute’s 

zone of interests because Section 5 of the IRA provides for land acquisition, and 

Patchak’s injuries would be caused, if at all, by land use. The Court rejected this 

distinction, however, finding that the prudential standing test ‘‘is not meant to be 

especially demanding,’’ and Patchak had demonstrated that he was arguably within 

the statute’s zone of interests. 

Additionally, the Court concluded that Patchak’s case was not moot even though 

the land had already been taken into trust. Overturning 30 years of lower court decisions to the contrary, the Supreme Court held that if successful, Patchak’s lawsuit 

could divest the Federal Government of title to the land. Because he was not claiming an ownership interest in the land himself, the Quiet Title Act’s prohibition on 

such lawsuits did not apply. 

Prior to Patchak, States and local governments seeking to challenge trust land acquisitions were required to file their lawsuits within 30 days. 14 If they did so, as 

a matter of policy, the Department routinely agreed to a voluntary stay, and the 

land would not be taken into trust until after the lawsuit had been fully resolved. 

If litigants missed this 30-day deadline, however, the land was taken into trust and 

all challenges to the acquisition were barred. 

Following Patchak, the Department faces lawsuits from a broader array of interested persons—not simply States and local governments. Additionally, now a 6-year 

statute of limitations most likely applies to trust acquisitions. 15 Even if a parcel of 

land has been held by the United States in trust for the tribe for years, litigants 

can bring suit to challenge that decision and seek relief that includes taking the 

land out of trust. Before Patchak, the Carcieri decision brought new trust acquisitions to a halt. After Patchak, tribes will be faced with a new wave of lawsuits seeking to take their land out of trust. 

This decision will have profound impacts on Indian tribes. Projects financed and 

developed before the Carcieri decision was even issued are now at risk. If litigation 

is filed challenging the Secretary’s decision to take land into trust, and that litigation proves successful, a tribe’s business or housing project may now be outside of 

Indian country and subject to state law that could prohibit its continued operation 

or require the payment of property, sales, and other state and local taxes. The 

Patchak decision will also have a significant impact on new economic development. 

Will land lie fallow for six years after its acquisition? Or will tribes risk building 

a business on trust property that they could later be compelled to shut down if a 

lawsuit is filed years later? Will financial institutions finance through this risk? 

27

16Patchak Supreme Court Decision Has Mixed Credit Implications for Gaming Sector, Fitch 

Ratings (June 19, 2012). 17 Id.

Shortly after the Patchak decision was released, Fitch Ratings (one of the big 

three credit ratings agencies) noted that raising capital for Indian economic development projects ‘‘could become more difficult/expensive, as investors are likely to have 

heightened concern about potential challenges regarding land-into-trust decisions.’’ 16 The ratings agency went on to state that the decision may ‘‘embolden additional parties to step forward to challenge land-into-trust decisions that took place 

within the last six years,’’ and that there was ‘‘a fair amount of uncertainty’’ regarding when the six-year statute of limitations would be held to start running in such 

cases. 17

In the past, Indian tribes were forced to access non-traditional sources of financing (e.g., private investor, developer) and pay extraordinarily high interest rates to 

acquire land, develop their business plans, and work through the administrative 

process of having that land taken into trust by the United States. Once the land 

was taken into trust, however, tribes were able to access the bond market to obtain 

the capital needed to construct and open their business. Then, after the business 

had been operating for a period of time, tribes could seek to refinance their debt 

through conventional bank loans. At each stage of this process, the interest rates 

offered to Indian tribes are lowered, because the legal and business risks continue 

to diminish. Patchak threatens to disrupt this process, because it allows the largest 

risk (land status and jurisdiction) to linger for years following the Secretary’s decision. 

For these reasons, it remains my hope that Congress will pass a clean fix that 

overturns Carcieri v. Salazar and reiterates its long-standing policy that all federally recognized Indian tribes should be treated equally, regardless of when or how 

they gained recognition.

The CHAIRMAN. Thank you very much, Ms. Routel. 

President Keel, the Carcieri and Patchak decisions run contrary 

to Congress’ declaration in 1994 that all federally-recognized Tribes 

will be treated the same, regardless of date they receive Federal 

recognition. 

My question to you is, how are these decisions, which once again 

create two classes of Tribes, how is it impacting Indian Country? 

Mr. KEEL. Thank you, Mr. Chairman, for the question. Tribes are 

now forced, many Tribes, to expend precious resources in combating and overcome these types of actions. There are, in the 

Patchak decision case, there are communities who challenge the 

very structure by which the Tribes placed land into trust, or the 

Interior placed land into trust for the benefit of Tribes. So Tribes 

are now having to go back and defend their right to have those 

lands in trust. 

And again, it takes both resources, it is expensive, as you have 

heard. It is time-consuming and totally unnecessary. 

The fact of the matter is, when Tribes place, or when land is 

placed into trust for Tribes, the benefit is not only for Tribal citizens, primarily, but in the economic development sense, all the 

communities, all those people who are neighboring communities 

benefit from that in the way of jobs, the types of development that 

allows families to support themselves. 

So these types of actions are unnecessary and it causes the 

Tribes great cost in resources, time and efforts. 

The CHAIRMAN. Thank you. 

Mr. Echohawk, NARF testified at the Committee’s October hearing and wondered if Congress does not fix Carcieri, legal challenges 

to lands in trust would expand. Now that the Supreme Court has 

28

decided the Patchak case, what do you think, and what do you predict the impact will be, if legislation is not enacted? 

Mr. ECHOHAWK. Mr. Chairman, we think the litigation, because 

of the Patchak decision, will expand as more and more people are 

allowed to challenge the acquisition of lands already taken into 

trust for Tribes under the Court’s interpretation of the Administrative Procedures Act and the Quiet Title Act. Anyone who is unhappy with the acquisition of land by a Tribe in trust has up to 

six years after the land has been acquired to bring a lawsuit for 

any reason whatsoever, a Carcieri reason or any other reason . We 

anticipate that as word gets around, there will be more and more 

of that litigation filed. 

The CHAIRMAN. Thank you very much. 

Professor Routel, the Committee has heard testimony of the negative impacts the Carcieri decision has had on economic development in Indian Country. Can you give, or can you describe the additional impacts the Patchak decision will have? 

Ms. ROUTEL. Sure, thank you, Mr. Chairman. I think what has 

been mentioned before is that certainty is very important when we 

are talking about financing development in Indian Country. It is 

already, before these decisions it was hard to get financing. If you 

look at the way it works as a practical matter, Tribes had to go to 

high risk individuals, developers, to get the initial capital that was 

need to acquire the land and to create business plans. It was only 

after the land was taken into trust that they could access things 

like the bond market, which is still a very high interest rate. Then 

once they have the business up and running, then they can go to 

a bank and get more conventional financing. 

So the idea is that your interest rate lowers at each step of the 

process, because the risk is being lowered each step. And the real 

key is when the land goes into trust. That was the key, because 

no one ever thought that land that was in trust could go out of 

trust. That is the potential harm that Patchak could create. 

It is hard for me to imagine how a bank is going to finance 

through or how underwriters are going to finance through a threat 

like that, a threat that you have lent money to build and operate 

a business, and now all of a sudden you can’t continue to operate 

that business because the land isn’t held in trust any more. Attorneys evaluate the risks of litigation all the time, so you can say 

maybe attorneys can look at this and evaluate it for their clients. 

But the problem is, Patchak, now they are so long, there is a sixyear period within which you can file a lawsuits, and if the financing happens any time before then, you will need to have litigation 

documents to try to figure out what the lawsuit is about, to what 

the claims are from the other side. 

So I think the important thing here is that this creates a lot of 

uncertainty for financial institutions and financial institutions 

don’t want uncertainty. At a minimum it will raise interest rates 

for Tribes. But it could actually prevent them from getting financing. 

The CHAIRMAN. Thank you, Professor. 

President Keel, NCAI is holding a Tribal unity impact week next 

week in the hopes of raising awareness of the need for a Carcieri

29

fix. What do your member Tribes hope to accomplish at that event 

related to Carcieri and Patchak? 

Mr. KEEL. Thank you, Mr. Chairman. I think the fact is, Tribal 

leaders across the Country understand that Congress has it within 

their power to enforce these laws and that the Supreme Court has 

simply turned this legislation on its head. And Congress, we hope 

that Congress will move quickly to enact a clean fix to the Carcieri

decision and remove the gray area from the law. 

The CHAIRMAN. Thank you very much. 

Mr. Echohawk, NARF’s Supreme Court project identifies legal 

cases that are in the lower courts, and at the Supreme Court, that 

could have significant impacts on Federal Indian law. Have the 

Carcieri and Patchak decisions led to increased legal challenges 

that could have significant impacts on the Tribes? 

Mr. ECHOHAWK. Yes, Mr. Chairman, those issues have increased 

the litigation surrounding the acquisitions of land into trust. With 

my testimony, I submitted the comprehensive list of those cases. 

They continue to move forward, and we expect that those challenges, that number of cases, will proliferate as more and more 

people, who are for whatever reason dissatisfied with the acquisition of lands into trust by Tribes, whether for a Carcieri-related 

reason or other reason, will bring litigation and we will have more 

cases that we need to monitor. 

We worked very close on the Supreme Court project with the National Congress of American Indians and the Tribal leaders and 

other Tribal attorneys. Across the board, there is great concern 

about this increase in the number of cases. It is more and more 

work for the project to follow these cases and get the information 

out and keep an eye out for more cases that we think will be filed. 

The CHAIRMAN. Thank you. 

Professor Routel, if Patchak wins on the merits in the lower 

courts, what do you think the ripple effect will be on Tribe throughout the Country? 

Ms. ROUTEL. It is tough to say what the impact would be, but 

it would be catastrophic if the ruling is that the land could be 

taken out of trust. I guess maybe I would liken it to what happened with the housing market. A number of people, including myself, actually, had interest-only mortgages. And when the interestonly term is up, you have to make a balloon payment, which no one 

can make, so they expect to be able to refinance. 

Well, that same thing that happens with Indian Tribes, they 

have bond deals, the Gun Lake Tribe had a bond financing to get 

its casino up and running. At some point, the bonds become due 

and at that point you need to refinance and do a conventional bank 

loan. And if you can’t refinance because the land is no longer in 

trust and the likelihood of you being able to continue your casino 

operation is in doubt, I am not sure what the answer is for Indian 

Tribes. 

So it would be catastrophic if they actually win on the merits of 

it. And I don’t think they will. The Gun Lake Tribe had a long treaty relationship with the United States, and the United States had 

obligations to them under those treaties, even in 1934. But surely, 

the Tribe has expended an enormous amount of time and money 

30

defending these lawsuits that have been going on for years. So a 

quick fix, hopefully from Congress, could alleviate these concerns. 

The CHAIRMAN. Well, I want to express my mahalo and thank 

you to the panels and witnesses at today’s hearing. As we have 

heard today, the negative impacts of the Carcieri and Patchak decisions continues to multiply. Administrative burdens imposed on the 

Federal Government grow, and more and more Tribal and governmental resources are siphoned away from basic human services 

and also trust responsibilities. 

As I have said before, I believe that it is the responsibility of 

Congress to set this right. We must act this Congress. 

This Committee has established an extensive record over the 

past 18 months which demonstrates the negative impacts. Now is 

the time for Indian Country, the Administration, and Congress to 

stand up for what is right and pass a Carcieri fix. 

We are uncertain about our schedule for the rest of the year. So 

we wanted to hear from you on this and we need, of course, to look 

for options of time to try to get these considered by the U.S. Senate. 

But we are not going to give up. We are going to keep trying 

here. Hopefully things will work out. But it is great to hear from 

you and to know what has been happening out there now and how 

the problem is growing here and the need to fix it. So there is no 

question, our support is great. But we have to do it right and try 

to pass a clean, clean bill. 

So again, I want to thank you so much for helping out and responding to our questions. We just want to look forward to still trying to get it passed this year. So I just wanted to mention that to 

you and again to say mahalo, thank you to all of you for your efforts as well. 

This hearing is adjourned. 

[Whereupon, at 3:50 p.m., the Committee was adjourned.] 

(31)

APPENDIX

PREPARED STATEMENT OF MIKE MCGOWAN, PRESIDENT, CALIFORNIA STATE

ASSOCIATION OF COUNTIES (CSAC) 

Dear Chairman Akaka and Members of the Committee: 

On behalf of the California State Association of Counties (CSAC), which is the 

unified voice on behalf of all 58 counties in California, I am writing to provide you 

with our perspective on the significance of the U.S. Supreme Court’s decision in 

Carcieri v. Salazar. As the Committee continues to weigh the implications of this 

decision, I urge you to take into consideration the views of local governments. 

On February 24, 2009, the Supreme Court held that the Secretary of the Interior 

lacked the authority to take land into trust on behalf of Indian tribes that were not 

under federal jurisdiction upon enactment of the Indian Reorganization Act (IRA) 

in 1934. In the wake of this decision, various legislative proposals have been introduced seeking to restore the Secretary’s authority to take land into trust for all 

tribes. 

CSAC supports the rights of Indian tribes to self-governance and recognizes the 

need for tribes to preserve their heritage and to pursue economic self-reliance. We 

do not believe, however, that the Secretary should have unbridled authority to take 

land into trust for tribes under a broken fee-to-trust system. Unfortunately, the socalled ‘‘quick fix’’ approach as embodied in various pending legislative proposals fails 

to consider the larger problems associated with the fee-to-trust process and would 

only perpetuate the problems that have resulted in years of expensive and unproductive conflict between tribes and local governments. 

Congress should instead address the impacts of the Carcieri decision as part of 

broader trust reform legislation. Rather than a ‘‘quick fix,’’ Congress should work 

toward a real and lasting solution that is consistent with the original intent of the 

IRA and provides clear and enforceable standards. 

In addition to standards, the current process lacks sufficient notification requirements. In many instances, local governments are afforded limited, and often late, 

notice of pending trust land applications. Accordingly, changes need to be made to 

ensure that affected governments receive timely notice of fee-to-trust applications 

for tribal development projects and have adequate opportunity to provide meaningful input. 

CSAC also believes that intergovernmental agreements should be required between tribes and local governments to provide mitigation for adverse impacts of development projects, including environmental and economic impacts from the transfer of the land into trust. When land is placed into trust, the property no longer 

falls under the auspices of local land use jurisdiction and the land is no longer subject to local taxing authority; however, local governments are still required to provide essential services, such as road construction, law enforcement, and welfare 

services. In these difficult economic times, local governments are struggling financially to continue to provide these critical services. Intergovernmental agreements 

to mitigate these costs would be beneficial for both tribal and local governments. 

In our view, a balanced trust reform proposal would extend tribal trust land acquisition authority to the Secretary and would also include clear direction to: (1) 

provide adequate notice to local governments, (2) consult with local governments, (3) 

provide incentives for tribes and local governments to work together, and (4) provide 

for cooperating agreements that are enforceable. 

Thank you for considering our views regarding this very important matter. CSAC 

remains committed to continuing to work with Congress to develop a fee-to-trust 

process that balances the needs of both tribal and local governments. For more information on our position, please see the attached document, which includes joint 

testimony from CSAC and the National Association of Counties (NACo) that was delivered last year at a House Natural Resources Committee hearing on Carcieri v. 

Salazar. 

Attachment

32

PREPARED STATEMENT OF HON. SUSAN ADAMS, SUPERVISOR, MARIN COUNTY,

CALIFORNIA BEFORE THE UNITED STATES HOUSE OF REPRESENTATIVES, HOUSE

NATURAL RESOURCES COMMITTEE, SUBCOMMITTEE ON INDIAN AND ALASKA NATIVE

AFFAIRS; ON BEHALF OF THE NATIONAL ASSOCIATION OF COUNTIES AND THE

CALIFORNIA STATE ASSOCIATION OF COUNTIES

H.R. 1291 (COLE), TO AMEND THE ACT OF JUNE 18, 1934, TO REAFFIRM THE AUTHORITY

OF THE SECRETARY OF THE INTERIOR TO TAKE LAND INTO TRUST FOR INDIAN TRIBES, 

AND FOR OTHER PURPOSES; AND H.R. 1234 (KILDEE), TO AMEND THE ACT OF JUNE 18, 

1934, TO REAFFIRM THE AUTHORITY OF THE SECRETARY OF THE INTERIOR TO TAKE

LAND INTO TRUST FOR INDIAN TRIBES—JULY 12, 2011

Thank you Chairman Young, Ranking Member Boren and Members of the Subcommittee for the opportunity to testify today on H.R. 1291 and H.R. 1234. I also 

want to take this opportunity to thank Chairman Hastings and his staff for their 

continued accessibility and efforts to include county governments in the ongoing discussions involving the far-reaching implications of the Supreme Court’s Carcieri v. 

Salazar decision. 

My name is Susan Adams and I am a County Supervisor in Marin County, California and currently sit on the Board of Directors for the California State Association of Counties (CSAC). This testimony is submitted on behalf of the National Association of Counties (NACo) and CSAC, both of which have been actively involved in 

pursuing federal laws and regulations that provide the framework for constructive 

government-to-government relationships between counties and tribes. 

Established in 1935, NACo is the only national organization representing county 

governments in Washington, DC. Over 2,000 of the 3,068 counties in the United 

States are members of NACo, representing over 80 percent of the nation’s population. NACo provides an extensive line of services including legislative, research, 

technical and public affairs assistance, as well as enterprise services to its members. 

CSAC, which was founded in 1895, is the unified voice on behalf of all 58 of California’s counties. The primary purpose of CSAC is to represent county government 

before the California Legislature, administrative agencies and the Federal Government. CSAC places a strong emphasis on educating the public about the value and 

need for county programs and services. 

For perspective on NACo’s and CSAC’s activities and approach to Indian Affairs 

matters, attached to this testimony is the pertinent NACo policy on the Carcieri v. 

Salazar decision and CSAC’s Congressional Position Paper on Indian Affairs. 

The intent of this testimony is to provide a perspective from counties regarding 

the significance of the Supreme Court’s decision in Carcieri and to recommend 

measures for the Subcommittee to consider as it seeks to address the implications 

of this decision in legislation. We believe that the experience of county governments 

is similar throughout the nation where trust land issues have created significant 

and, in many cases, unnecessary conflict and distrust of the federal decisionmaking 

system for trust lands. The views presented herein also reflect policy positions of 

many State Attorneys General who are committed to the creation of a fee to trust 

process where legitimate tribal interests can be met, and legitimate state and local 

interests properly considered (see attached policies). 

It is from this local government experience and concern about the fee to trust 

process that we address the implications of the Carcieri decision. On February 24, 

2009, the U.S. Supreme Court issued its landmark decision on Indian trust lands 

in Carcieri v. Salazar. The Court held that the Secretary of the Interior lacks authority to take land into trust on behalf of Indian tribes that were not under the 

jurisdiction of the Federal Government upon enactment of the Indian Reorganization Act (IRA) in 1934. 

In the wake of this significant court decision, varied proposals for reversing the 

Carcieri decision have been generated, some proposing administrative action and 

others favoring a congressional approach. Today’s hearing is recognition of the significance of the Carcieri decision and the need to consider legislative action. We are 

in full agreement that administrative or regulatory action to avoid the decision in 

Carcieri is not appropriate, but we urge the Subcommittee that addressing the Supreme Court decision in isolation of the larger problems of the fee to trust system 

misses an historic opportunity. 

A legislative resolution that hastily returns the trust land system to its status before Carcieri will be regarded as unsatisfactory to counties, local governments, and 

the people we serve. Rather than a ‘‘fix,’’ such a result would only perpetuate a broken system, where the non-tribal entities most affected by the fee to trust process 

are without a meaningful role. Ultimately, this would undermine the respectful government-to-government relationship that is necessary for both tribes and neighVerDate 0ct 09 2002 10:10 Feb 06, 2013 Jkt 078573 PO 00000 Frm 00036 Fmt 6601 Sfmt 6621 S:\DOCS\78573.TXT JACK
33

boring governments to fully develop, thrive, and serve the people dependent upon 

them for their well being. 

Recommendation 

Our primary recommendation to this Subcommittee and to Congress is this: Do 

not advance a congressional response to Carcieri that allows the Secretary of the 

Interior to return to the flawed fee to trust process. Rather, carefully examine, with 

input from tribal, state and local governments, what reforms are necessary to ‘‘fix’’ 

the fee to trust process and refine the definition of Indian lands under the Indian 

Gaming Regulatory Act (IGRA). A framework for such reforms is outlined below. 

Concurrently, NACo and CSAC join in the request of Members of Congress that the 

Secretary of the Interior determine the impacts of Carcieri, as to the specific tribes 

affected and nature and urgency of their need, so that a more focused and effective 

legislative remedy can be undertaken. 

What the Carcieri decision presents, more than anything else, is an opportunity 

for Congress to carefully exercise its constitutional authority for trust land acquisitions, to define the respective roles of Congress and the executive branch in trust 

land decisions, and to establish clear and specific congressional standards and processes to guide trust land decisions in the future. A clear definition of roles is acutely 

needed regardless of whether trust and recognition decisions are ultimately made 

by Congress, as provided in the Constitution, or the executive branch under a congressional grant of authority. It should be noted that Congress has power not to provide new standardless authority to the executive branch for trust land decisions and 

instead retain its own authority to make these decisions on a case-by-case basis as 

it has done in the past, although decreasingly in recent years. Whether or not Congress chooses to retain its authority or to delegate it in some way, it owes it to tribes 

and to states, counties, local governments and communities, to provide clear direction to the Secretary of the Interior to make trust land decisions according to specific congressional standards and to eliminate much of the conflict inherent in such 

decisions under present practice. The reforms suggested by NACo and CSAC are an 

important step in that direction. 

We respectfully urge Members of this Subcommittee to consider both sides of the 

problem in any legislation seeking to address the trust land process post-Carcieri, 

namely: (1) the absence of authority to acquire trust lands, which affects post-1934 

tribes, and (2) the lack of meaningful standards and a fair and open process, which 

affects states, local governments, businesses and non-tribal communities. As Congress considers the trust land issue, it should undertake reform that is in the interests of all affected parties. The remainder of our testimony addresses the trust land 

process, the need for its reform, and the principal reforms to be considered. 

Legislative Background 

In 1934, Congress passed the Indian Reorganization Act (IRA) to address the 

needs of impoverished and largely landless Indians. The poverty of Indians was 

well-documented in 1934 and attributed in substantial part to the loss of Indian 

landholdings through the General Allotment Act of 1887 and federal allotment policy. Congress sought to reverse the effects of allotment by enacting the IRA, which 

authorizes the Secretary of the Interior to acquire land in trust for tribes through 

section 5. Acquiring land in trust removes land from state and local jurisdiction and 

exempts such land from state and local taxation. 

As envisioned by its authors, the land acquisition authority in the IRA allowed 

the Secretary to fill in checker-boarded reservations that had been opened to settlement through allotment, and create small farming communities outside existing reservations, to allow impoverished and landless Indians to be self-supporting by using 

the land for agriculture, grazing, and forestry. Western interests in Congress resisted even that modest land acquisition policy, because they did not want new reservations and did not want existing reservations, where non-Indians already owned 

much of the allotted land, to be filled in and closed. As a result, the IRA bill was 

substantially rewritten and stripped of any stated land acquisition policy, leaving 

the Secretary’s authority to take land into trust unsupported by any statutory context. In fact, Western interests took the further step, after enactment, of restricting 

funding for the land acquisitions called for by the IRA. Even with full funding, the 

annual appropriations called for under the IRA would have allowed the Secretary 

to purchase only 200 160-acre farms per year. Funding for land acquisitions was 

eliminated during World War II. Following World War II, federal Indian policy 

moved back toward assimilation and away from creating separate Indian communities. These developments caused land acquisitions under the IRA to be infrequent 

and small in scope, producing relatively small impacts on state and local governments and rarely generating significant opposition. 

34

In recent years, the acquisition of land in trust on behalf of tribes, however, has 

substantially expanded and become increasingly controversial. The passage of the 

Indian Gaming Regulatory Act (IGRA) in 1988, in particular, substantially increased both tribal and non-tribal investor interest in having lands acquired in trust 

so that economic development projects otherwise prohibited under state law could 

be built. The opportunities under IGRA were also a factor in causing many tribal 

groups which were not recognized as tribes in 1934 to seek federal recognition and 

trust land in the past 20 years. Further, tribes have more aggressively sought lands 

that are of substantially greater value to state and local governments, even when 

distant from the tribe’s existing reservation, because such locations are far more 

marketable for various economic purposes. The result has been increasing conflict 

between, on the one hand, the Federal Government and Indian tribes represented 

by the government in trust acquisition proceedings, and on the other hand, state 

and local governments. 

Congressional Action Must Address the Broken System 

A central concern with the current trust acquisition process is the severely limited 

role that state and local governments play. The implications of losing jurisdiction 

over local lands are very significant, including the loss of tax base, loss of planning 

and zoning authority, and the loss of environmental and other regulatory power. Yet 

state, county and local governments are afforded limited, and often late, notice of 

a pending trust land application, and, under the current regulations, are asked to 

provide comments on two narrow issues only: (1) potential jurisdictional conflicts; 

and (2) loss of tax revenues. The notice local governments receive typically does not 

include the actual fee-to-trust application and often does not indicate how the applicant tribe intends to use the land. Further, in some cases, tribes have proposed a 

trust acquisition without identifying a use for the land, or identifying a non-intensive, mundane use for the land, only to change the use to heavy economic development, such as gaming or energy projects soon after the land is acquired in trust. 

As a result, state and local governments have become increasingly vocal about the 

inadequacy of the role provided to them in the trust process and the problems with 

the trust process. 

While the Department of the Interior understands the increased impacts and conflicts inherent in recent trust land decisions, it has not crafted regulations that 

strike a reasonable balance between tribes seeking new trust lands and the states 

and local governments experiencing unacceptable impacts. A legislative response is 

now not only appropriate and timely but critical to meeting the fundamental interests of both tribes and local governments. 

The following legislative proposal addresses many of the concerns of state and 

local government over the trust process and is designed to establish objective standards, increase transparency and more fairly balance the interests of state and local 

government in the trust acquisition process. It is offered with the understanding 

that a so-called Carcieri ‘‘fix’’ which leaves the fee to trust system broken is ultimately counterproductive to the interests of tribes as well as local and state governments. 

The Problem with the Current Trust Land Process 

The fundamental problem with the trust acquisition process is that Congress has 

not set standards under which any delegated trust land authority would be applied 

by the Bureau of Indian Affairs (BIA). Section 5 of the IRA, which was the subject 

of the Carcieri decision, reads as follows: ‘‘The Secretary of the Interior is hereby 

authorized in his discretion, to acquire [by various means] any interest in lands, 

water rights, or surface rights to lands, within or without reservations... for the 

purpose of providing land to Indians.’’ 25 U.S.C. § 465. This general and undefined 

Congressional guidance, as implemented by the executive branch, and specifically 

the Secretary of Interior, has resulted in a trust land process that fails to meaningfully include legitimate interests, to provide adequate transparency to the public, or 

to demonstrate fundamental balance in trust land decisions. The unsatisfactory 

process, the lack of transparency and the lack of balance in trust land decisionmaking have all combined to create significant controversy, serious conflicts between tribes and states, counties and local governments, including litigation costly 

to all parties, and broad distrust of the fairness of the system. 

All of these effects can and should be avoided. Because the Carcieri decision has 

definitively confirmed the Secretary’s lack of authority to take lands into trusts for 

post-1934 tribes, Congress now has the opportunity not just to address the issue of 

the Secretary’s authority under the current failed system, but to reassert its primary authority for these decisions by setting specific standards for taking land into 

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trust that address the main shortcomings of the current trust land process. Some 

of the more important new standards are described below. 

Legislative Reform Framework 

Notice and Transparency 

1) Require Full Disclosure From The Tribes On Trust Land Applications and 

Other Indian Land Decisions, and Fair Notice and Transparency From The BIA.

The Part 151 regulations, which implement the trust land acquisition authority 

given to the Secretary of Interior by the IRA, are not specific and do not require 

sufficient information about tribal plans to use the land proposed for trust status. 

As a result, it is very difficult for affected parties (local and state governments, and 

the affected public) to determine the nature of the tribal proposal, evaluate the impacts and provide meaningful comments. BIA should be directed to require tribes 

to provide reasonably detailed information to state and affected local governments, 

as well as the public, about the proposed uses of the land early on, not unlike the 

public information required for planning, zoning and permitting on the local level. 

This assumes even greater importance since local planning, zoning and permitting 

are being preempted by the trust land decision, and therefore information about intended uses is reasonable and fair to require. 

Legislative and regulatory changes need to be made to ensure that affected governments receive timely notice of fee-to-trust applications and petitions for Indian 

Land Determinations in their jurisdiction and have adequate time to provide meaningful input. 

For example, Indian lands determinations, a critical step for a tribe to take land 

into trust for gaming purposes, is conducted in secret without notice to affected 

counties or any real opportunity for input. Incredibly, counties are often forced to 

file a Freedom of Information Act (FOIA) request to even determine if an application 

was filed and the basis for the petition. 

New paradigm required for collaboration between BIA, Tribes and local government. Notice for trust and other land actions for tribes that go to counties and other 

governments is very limited in coverage and opportunity to comment is minimal; 

this must change. A new paradigm is needed where counties are considered meaningful and constructive stakeholders in Indian land-related determinations. For too 

long counties have been excluded from providing input in critical Department of Interior decisions and policy formation that directly affects their communities. This remains true today as evidenced by new policies being announced by the Administration without input from local government organizations. 

The corollary is that consultation with counties and local governments must be 

real, with all affected communities and public comment. Under Part 151, BIA does 

not invite comment by third parties even though they may experience major negative impacts, although it will accept and review such comments. BIA accepts comments only from the affected state and the local government with legal jurisdiction 

over the land and, from those parties, only on the narrow question of tax revenue 

loss and zoning conflicts. As a result, under current BIA practice, trust acquisition 

requests are reviewed under a very one-sided and incomplete record that does not 

provide real consultation or an adequate representation of the consequences of the 

decision. Broad notice of trust applications should be required with at least 90 days 

to respond. 

2) The BIA Should Define ‘‘Tribal Need’’ and Require Specific Information about 

Need from the Tribes. The BIA regulations provide inadequate guidance as to what 

constitutes legitimate tribal need for trust land acquisition. There are no standards 

other than that the land is necessary to facilitate tribal self-determination, economic 

development or Indian housing. These standards can be met by virtually any trust 

land request, regardless of how successful the tribe is or how much land it already 

owns. As a result, there are numerous examples of BIA taking additional land into 

trust for economically and governmentally self-sufficient tribes already having 

wealth and large land bases. 

‘‘Need’’ is not without limits. Congress should consider explicit limits on tribal 

need for more trust land so that the trust land acquisition process does not continue 

to be a ‘‘blank check’’ for removing land from state and local jurisdiction. Our associations do not oppose a lower ‘‘need’’ threshold for governmental and housing 

projects rather than large commercial developments and further support the use by 

a tribe of non-tribal land for development provided the tribe fully complies with 

state and local government laws and regulations applicable to other development. 

3) Applications should Require Specific Representations of Intended Uses. Changes 

in use should not be permitted without further reviews, including environmental impacts, and application of relevant procedures and limitations. Such further review 

should have the same notice, comment, and consultation as the initial application. 

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The law also should be changed to specifically allow restrictions and conditions to 

be placed on land going into trust that further the interests of both affected tribes 

and other affected governments. 

There needs to be opportunity for redress when the system has not worked. BIA 

argues that once title to land acquired in trust transfers to the United States, lawsuits challenging that action are barred under the Quiet Title Act because federal 

sovereign immunity has not been waived. This is one of the very few areas of federal 

law where the United States has not allowed itself to be sued. The rationale for sovereign immunity should not be extended to trust land decisions where tribes have 

changed, or proposed to change the use of trust property from what was submitted 

in the original request. These types of actions, which can serve to circumvent laws, 

such as IGRA, and the standard fee to trust review processes, should be subject to 

challenge by affected third parties. 

4) Tribes that Reach Local Intergovernmental Agreements to Address Jurisdiction 

and Environmental Impacts should have Streamlined Processes. The legal framework should encourage tribes to reach intergovernmental agreements to address offreservation project impacts by reducing the threshold for demonstrating need when 

such agreements are in place. Tribes, states, and counties need a process that is less 

costly and more efficient. The virtually unfettered discretion contained in the current process, due to the lack of clear standards, almost inevitably creates conflict 

and burdens the system. A process that encourages cooperation and communication 

provides a basis to expedite decisions and reduce costs and frustration for all involved. 

5) Establish Clear Objective Standards for Agency Exercise of Discretion in making 

Fee to Trust Decisions. The lack of meaningful standards or any objective criteria 

in fee to trust decisions made by the BIA have been long criticized by the U.S. Government Accountability Office and local governments. The executive branch should 

be given clear direction from Congress regarding considerations of need and mitigation of impacts to approve a fee to trust decision. BIA requests only minimal information about the impacts of such acquisitions on local communities and BIA trust 

land decisions are not governed by a requirement to balance the benefit to the tribe 

against the impact to the local community. As a result, there are well-known and 

significant impacts of trust land decisions on communities and states, with consequent controversy and delay and distrust of the process. It should be noted that 

the BIA has the specific mission to serve Indians and tribes and is granted broad 

discretion to decide in favor of tribes. However the delegation of authority is resolved, Congress must specifically direct clear and balanced standards that ensure 

that trust land requests cannot be approved where the negative impacts to other 

parties outweigh the benefit to the tribe. 

Intergovernmental Agreements and Tribal-County Partnerships 

NACo and CSAC believe that Intergovernmental Agreements should be encouraged between a tribe and local government affected by fee-to-trust applications to 

require mitigation for all adverse impacts, including environmental and economic 

impacts from the transfer of the land into trust. Such an approach is required and 

working well, for example, under recent California State gaming compacts. As stated above, if any legislative modifications are made, we strongly support amendments to IGRA that facilitate a tribe, as a potential component of trust application 

approval, to negotiate and sign an enforceable Intergovernmental Agreement with 

the local county government to address mitigation of the significant impacts of gaming or other commercial activities on local infrastructure and services. Such an approach can help to streamline the application process while also helping to insure 

the success of the tribal project within the local community. 

California’s Situation and the Need for a Suspension of Fee-To-Trust

Application Processing 

California’s unique cultural history and geography, and the fact that there are 

over 100 federally-recognized tribes in the state, contributes to the fact that no two 

fee-to-trust applications are alike. The diversity of applications and circumstances 

in California reinforce the need for both clear objective standards in the fee to trust 

process and the importance of local intergovernmental agreements to address particular concerns. 

The Supreme Court’s decision in Carcieri further complicates this picture. As previously discussed, the Court held that the authority of the Secretary of the Interior 

to take land into trust for tribes extends only to those tribes under federal jurisdiction in 1934. However, the phrase ‘‘under federal jurisdiction’’ is not defined. 

Notably, many California tribes are located on ‘‘Rancherias,’’ which were originally federal property on which homeless Indians were placed. No ‘‘recognition’’ was 

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extended to most of these tribes at that time. If legislation to change the result in 

Carcieri is considered, it is essential that changes be made to the fee-to-trust processes to ensure improved notice to counties and to better define standards to remove 

property from local jurisdiction. Requirements must be established to ensure that 

the significant off-reservation impacts of tribal projects are fully mitigated. In particular, any new legislation should address the significant issues raised in states 

like California, which did not generally have a ‘‘reservation’’ system, and that are 

now faced with small Bands of tribal people who are recognized by the Federal Government as tribes and who are anxious to establish large commercial casinos. 

In the meantime, NACo and CSAC strongly urge the Department of the Interior 

to suspend further fee-to-trust land acquisitions until Carcieri’s implications are better understood and legislation is passed to better define when and which tribes may 

acquire land, particularly for gaming purposes. 

Pending Legislation 

As stated above, while our associations support legislation, it must address the 

critical repairs needed in the fee to trust process. Unfortunately, the legislation 

pending in the House (H.R. 1291, Rep. Tom Cole and H.R. 1234, Rep. Dale Kildee) 

fails to set clear standards for taking land into trust, to properly balance the roles 

and interests of tribes, state, local and federal governments in these decisions, and 

to clearly address the apparent usurpation of authority by the Executive Branch 

over Congress’ constitutional authority over tribal recognition. H.R. 1291, in particular, serves to expand the undelegated power of the Department of the Interior 

by expanding the definition of an Indian tribe under the IRA to any community the 

Secretary ‘‘acknowledges to exist as an Indian Tribe.’’ In doing so, the effect of the 

bill is to facilitate off-reservation activities by tribes and perpetuate the inconsistent 

standards that have been used to create tribal entities. Such a ‘‘solution’’ causes controversy and conflict rather than an open process which, particularly in states such 

as California, is needed to address the varied circumstances of local governments 

and tribes. 

Conclusion 

We ask Members of the Subcommittee to incorporate the aforementioned requests 

into any Congressional actions that may emerge regarding the Carcieri decision. 

Congress must take the lead in any legal repair for inequities caused by the Supreme Court’s action, but absolutely should not do so without addressing these reforms. NACo’s and CSAC’s proposals are common-sense reforms, based upon a broad 

national base of experience on these issues that, if enacted, will eliminate some of 

the most controversial and problematic elements of the current trust land acquisition process. The result would help states, local governments and non-tribal stakeholders. It also would assist trust land applicants by guiding their requests towards 

a collaborative process and, in doing so, reduce the delay and controversy that now 

routinely accompany acquisition requests. 

We also urge Members to reject any ‘‘one size fits all’’ solution to these issues. 

In our view, IGRA itself has often represented such an approach, and as a result 

has caused many problems throughout the nation where the sheer number of tribal 

entities and the great disparity among them requires a thoughtful case-by-case 

analysis of each tribal land acquisition decision. 

Thank you for considering these views.

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