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[Senate Hearing 112-710]
[From the U.S. Government Publishing Office]

                                                        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

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                      COMMITTEE ON INDIAN AFFAIRS

                   DANIEL K. AKAKA, Hawaii, Chairman
                 JOHN BARRASSO, Wyoming, Vice Chairman
DANIEL K. INOUYE, Hawaii             JOHN McCAIN, Arizona
KENT CONRAD, North Dakota            LISA MURKOWSKI, Alaska
TIM JOHNSON, South Dakota            JOHN HOEVEN, North Dakota
MARIA CANTWELL, Washington           MIKE CRAPO, Idaho
JON TESTER, Montana                  MIKE JOHANNS, Nebraska
TOM UDALL, New Mexico
AL FRANKEN, Minnesota
      Loretta A. Tuell, Majority Staff Director and Chief Counsel
     David A. Mullon Jr., Minority Staff Director and Chief Counsel

                            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

 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 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. 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 
historical 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 conclude 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\
---------------------------------------------------------------------------
    \1\ 555 U.S. 379 (2009).
    \2\ 132 S. Ct. 2199 (2012).
---------------------------------------------------------------------------
    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 widely-held 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.
---------------------------------------------------------------------------
    \3\ See, 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).
---------------------------------------------------------------------------
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 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 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.
---------------------------------------------------------------------------
    \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.''
---------------------------------------------------------------------------
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 acquisition 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.
    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 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. 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.
    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.
    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 existing 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 non-treaty 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:]

    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-She-Wish 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 unwilling 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 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 acquisition. 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.
    (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 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 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 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.
    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 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.
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    \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.
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    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\
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    \4\ 25 U.S.C.  479.
    \5\ Carcieri, 555 U.S. at 382.
    \6\ The 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 
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.
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
    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.
---------------------------------------------------------------------------
    \10\ Id. at 94.
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \11\ The 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).
    \12\ See Snyder Act of 1913, codified at 25 U.S.C.  13.
---------------------------------------------------------------------------
    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 locations. 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.
---------------------------------------------------------------------------
    \13\ 132 S.Ct. 2199 (2012).
---------------------------------------------------------------------------
    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.
---------------------------------------------------------------------------
    \14\ 25 CFR 151.12(b).
---------------------------------------------------------------------------
    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.
---------------------------------------------------------------------------
    \15\ Patchak, 132 S.Ct. at 2217 (Sotomayor dissenting).
---------------------------------------------------------------------------
    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?
    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\
---------------------------------------------------------------------------
    \16\ Patchak Supreme Court Decision Has Mixed Credit Implications 
for Gaming Sector, Fitch Ratings (June 19, 2012).
    \17\ Id.
---------------------------------------------------------------------------
    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 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 six-year 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 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 interest-only 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 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.]

                            A P P E N D I X

    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 so-called 
``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

   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 neighboring 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.
    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 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. 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 off-reservation 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 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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