[Congressional Record Volume 165, Number 81 (Wednesday, May 15, 2019)]
[House]
[Pages H3813-H3816]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
REAFFIRMING AUTHORITY OF SECRETARY OF INTERIOR TO TAKE LAND INTO TRUST
FOR INDIAN TRIBES
Mr. GRIJALVA. Madam Speaker, I move to suspend the rules and pass the
bill (H.R. 375) 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.
The Clerk read the title of the bill.
The text of the bill is as follows:
H.R. 375
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,
SECTION 1. AUTHORITY REAFFIRMED.
(a) Reaffirmation.--Section 19 of the Act of June 18, 1934
(commonly known as the ``Indian Reorganization Act''; 25
U.S.C. 5129), is amended--
(1) in the first sentence--
(A) by striking ``The term'' and inserting ``Effective
beginning on June 18, 1934, the term''; and
(B) by striking ``any recognized Indian tribe now under
Federal jurisdiction'' and inserting ``any federally
recognized Indian Tribe''; and
(2) by striking the third sentence and inserting the
following: ``In said sections, the term `Indian tribe' means
any Indian or Alaska Native tribe, band, nation, pueblo,
village, or community that the Secretary of the Interior
acknowledges to exist as an Indian tribe.''.
(b) Effective Date.--The amendments made by this section
shall take effect as if included in the Act of June 18, 1934
(commonly known as the ``Indian Reorganization Act''; 25
U.S.C. 5129), on the date of the enactment of that Act.
The SPEAKER pro tempore. Pursuant to the rule, the gentleman from
Arizona (Mr. Grijalva) and the gentleman from Utah (Mr. Bishop) each
will control 20 minutes.
The Chair recognizes the gentleman from Arizona.
General Leave
Mr. GRIJALVA. Madam Speaker, I ask unanimous consent that all Members
may have 5 legislative days in which to revise and extend their remarks
and include extraneous material on the measure under consideration.
The SPEAKER pro tempore. Is there objection to the request of the
gentleman from Arizona?
There was no objection.
Mr. GRIJALVA. Madam Speaker, I yield myself such time as I may
consume.
Madam Speaker, 10 years ago, the Supreme Court handed down what is
known as the Carcieri decision. In that decision, the Court determined
that trust land acquisition under the Indian Reorganization Act of 1934
only applies to Tribes that were under Federal jurisdiction in 1934.
Mr. Speaker, up until 2009, the Department of the Interior, under
both Republican and Democratic administrations, had consistently
construed that the IRA authorizes the placement of land into trust for
any Tribe so long as the Tribe is federally recognized at the time of
the trust application.
The decision overturned 75 years of agency practice, both Democratic
and Republican administrations, and created a two-tiered system for
trust land acquisition. This also opened up the Tribes to frivolous
lawsuits on land
[[Page H3814]]
that they had held in trust for years, sometimes decades.
While this has been great for lawyers and their firms, it is
detrimental to the health of a Tribe. The money to defend these
lawsuits could, instead, be used to provide and improve the lives of
their members.
We have had to pass standalone bills for individual Tribes on a
piecemeal basis to protect their lands, and we should, since these
Tribal lands are under direct assault right now. We must also address
this going forward so that other Tribes do not find themselves in the
same dire straits.
Passage of H.R. 375 will restore clarity and stability for all
federally recognized Tribes by ensuring they are all treated equally,
regardless of date of recognition.
Let's not forget history and the decimation of Tribes and their
homeland by the hand of the Federal Government. It has taken almost a
century for us to even attempt to undo the damage we inflicted upon the
indigenous peoples of this Nation.
This work is not complete. We are still federally acknowledging
Tribes to this day. We are still striving to return merely a portion of
the land back to Tribes. To say that Tribes that were recognized after
1934 are somehow inferior to Tribes that were recognized by 1934 is
dangerously ignorant of history.
H.R. 375, introduced by Representative Cole of Oklahoma, is short,
simple, and to the point. It will amend the IRA to ensure that all
federally recognized Tribes are treated equally, regardless of their
date of recognition.
Mr. Speaker, I reserve the balance of my time.
Mr. BISHOP of Utah. Mr. Speaker, I yield 4 minutes to the gentleman
from Oklahoma (Mr. Cole), the sponsor of this bill.
Mr. COLE. Mr. Speaker, I thank my friend, the distinguished ranking
member, for yielding time.
I want to thank both my friends, the chairman and the ranking member,
for their help in bringing this legislation to the floor. It could not
have happened without both of their assistance.
Mr. Speaker, I rise today in support of H.R. 375, legislation that
would amend the Indian Reorganization Act of 1934 and reaffirm the
authority of the Secretary of the Interior to take land into trust for
Indian Tribes.
Between the passage of the Dawes Act in 1887 and the passage of the
Indian Reorganization Act in 1934, the Indian landmass in the United
States shrank by 86 million acres.
{time} 1400
Since the enactment of the Indian Reorganization Act, the Department
of the Interior has taken back approximately 9 million acres of land
into trust status. Tribes have used their trust lands to build
community facilities such as schools, health centers, and housing that
serve their Tribal members. This land is also used for Tribal
enterprises and promotes economic development in communities that are
often underserved and poverty-stricken.
In 2009, the Supreme Court of the United States overturned long-
existing precedent in its decision on the Carcieri v. Salazar case. The
Supreme Court ruled specifically that the Secretary's authority to hold
land in trust under the Indian Reorganization Act was limited only to
recognized Tribes ``now under Federal jurisdiction,'' with the word
``now'' meaning June 18, 1934, the date of the enactment of the Indian
Reorganization Act.
Previously, lower courts have viewed the word ``now'' as the instant
when the Secretary invoked trust acquisition authority. However, the
Supreme Court reversed the lower court ruling on the interpretation
that the term ``now under Federal jurisdiction'' in section 19 of the
Indian Reorganization Act was to be interpreted. It found that the
phrase refers only to those Tribes that were under Federal jurisdiction
of the United States when the Indian Reorganization Act was enacted in
1934.
As a result of the Carcieri decision, the Secretary of the Interior
may no longer use the Indian Reorganization Act to acquire trust land
for any post-1934 Tribe without specific authorization from Congress.
Because the Secretary has acquired lands in trust for dozens of Tribes
recognized after 1934, the Carcieri ruling calls into question the
validity of the trust status of such lands and jeopardizes their
immunity from State and local taxation and regulatory jurisdiction.
Many Tribes have been forced into court to defend the status of their
trust land, costing them millions of dollars and compromising their
investments and jurisdiction.
H.R. 375 would amend the Indian Reorganization Act and clarify the
language the Supreme Court ruled against by striking ``the term,''
which I have previously referenced, and inserting the words ``effective
beginning on June 18, 1934, the term.'' It would also amend the statute
language from ``any recognized Indian Tribe now under Federal
jurisdiction'' to ``any federally recognized Indian Tribe.''
The modest changes clarify that the Secretary does have authority to
take land into trust for any Tribe that the Federal Government has
recognized.
As a member of the Chickasaw Nation and co-chair of the Native
American Caucus, I commend the Natural Resources Committee for
favorably marking up this legislation and this body for moving forward
with the passage of this bill.
Mr. Speaker, I urge my colleagues to vote ``yes'' on H.R. 375.
Mr. GRIJALVA. Mr. Speaker, I reserve the balance of my time.
Mr. BISHOP of Utah. Mr. Speaker, may I inquire, first of all, if the
gentleman from Arizona has any speakers. I do have several.
Mr. GRIJALVA. Mr. Speaker, we have one speaker.
Mr. BISHOP of Utah. Mr. Speaker, I yield myself such time as I may
consume.
Mr. Speaker, I appreciate this opportunity to be here. I also
appreciate Mr. Cole for his work on this particular issue and the time
he has put in over the last decade in trying to find a Carcieri fix.
That 2009 Supreme Court made the decision, but it actually opened up
more questions than it provided solutions and answers in the process.
In the years since that decision, the Democrats, when they controlled
the House, the Senate, and the White House, did not find a solution.
Republicans, when we were in the same situation, didn't find a solution
either, probably because there is even a bigger question than what was
decided in this particular case. That bigger question is one that is
extremely complex and grave, and it indicates the complexity of this
particular issue.
Lands taken into trust by Tribes definitely have a benefit and an
advantage to the Tribe, but it also has an impact on the counties and
local governments where this trust issue is taking place.
Let's be clear that, prior to Carcieri, the fee-to-trust process was
broken and fraught with conflicts. In fact, many will still argue that
even today, the current Bureau of Indian Affairs process provides very
limited incentives for any community or stakeholder to be partners in
this process. As a result, we are often left with conflict and
political turmoil and accusations and recriminations on the local
level.
Some areas of local government, especially the California State
Association of Counties, have been repeatedly asking us to try to come
up with a reform to the overall process because the process impacts
taxes and zoning in communities where these trust lands are acquired.
Local governments, States, and stakeholders who have some kind of
role to play in this area, should they have a seat at the table? Should
they be consulted? Should they have some kind of input? Yes, obviously.
Should they have a veto in the process? I don't think so.
Where we draw that line to ensure that there is consultation, so you
ensure that people have a voice in the process, that is the underlying
question. That is the complex question.
During markup of this bill, Mr. Huffman from California and Mr. Gosar
from Arizona entered into a colloquy. They actually had a discussion,
one of the few times a committee did what a committee is supposed to
do, talking about the need to come up with some kind of variance to
this underlying issue that is not necessarily the crux of the 2009
decision. But how do we come up with this process?
If this bill is going to go all the way to the Senate and ultimately
become law, we need some help in finding a solution to the bigger issue
of how much
[[Page H3815]]
consultation should take place and who should have their voices heard
in the overall process, a process that does not happen right now.
There is a pathway to solve these problems. We can address Carcieri
or we can move forward to prevent future litigation that has plagued
the land-in-trust process. The Tribes and every stakeholder in this
process deserve as much.
Mr. Speaker, I reserve the balance of my time.
Mr. GRIJALVA. Mr. Speaker, I yield as much time as he may consume to
the gentleman from Arizona (Mr. Gallego), my colleague and chair of the
Subcommittee for Indigenous Peoples of the United States.
Mr. GALLEGO. Mr. Speaker, I rise today in support of H.R. 375
introduced by my friend Representative Cole from Oklahoma.
H.R. 375 is a simple, straightforward fix to a problem that has
caused chaos and uncertainty in Indian Country for a decade.
Ten years ago, the Supreme Court handed down what is now known as the
Carcieri decision. In that decision, the Court determined that
eligibility for trust land acquisition under the Indian Reorganization
Act of 1934 only applies to Tribes that were federally recognized as of
1934.
The acquisition of trust land for the benefit of Indian Tribes is
absolutely essential to Tribal self-determination, economic
development, and protection of Tribal homelands. The Carcieri decision
created an unfair, impractical, two-tiered system for Tribes that
wanted to engage in this essential function of Tribal sovereignty.
H.R. 375 simply amends the IRA to ensure that all federally
recognized Tribes are treated equally, regardless of the date of
recognition.
The Carcieri decision and its consequences harken back to the Federal
Government's shameful history of oppression in Native communities. The
decimation of Tribes and their homeland by the Federal Government is
well documented. For centuries, we ignored their treaties and
systematically stripped them of their land. It has taken almost a
century for us to even begin to undo the damage we have inflicted on
indigenous peoples.
Mr. Speaker, that work is nowhere near done. To this day, we are
still federally recognizing tribes that the government tried to
destroy. We are still striving to return merely a small portion of
ancestral land back to Tribes so they can have homelands to call their
own.
In order to continue to undo the harm we have done, we must end this
system of haves and have-nots for trust land acquisition. We must level
the playing field and alleviate the catastrophic consequences this
decision has had in Indian Country.
We must pass H.R. 375, the clean Carcieri fix. If we do not, this
administration will continue to strip trust land from Tribes like the
Mashpee Wampanoag Tribe, which is the subject of another bill on the
floor today. Tribes will continue to suffer needlessly, once again at
the hands of the Federal Government.
Indian Country has been clamoring for this clean, simple fix for a
decade, and we cannot make them wait any longer.
Mr. Speaker, I urge all my colleagues to support this bill.
Mr. BISHOP of Utah. Mr. Speaker, I yield 6 minutes to the gentleman
from Arizona (Mr. Gosar).
Mr. GOSAR. Mr. Speaker, I thank Ranking Member Bishop for yielding.
Mr. Speaker, I rise today in strong opposition to the current form of
H.R. 375.
In 1988, Congress enacted the Indian Gaming Regulatory Act, or IGRA,
with the intent to restrict casinos to Tribes' original reservations.
H.R. 375 reverses a major 2009 Supreme Court decision, and the bill
would lead to future abuses of IGRA.
The bill gives unelected bureaucrats a blank check to take any land
in trust without respect for impacted communities, including other
Tribes. More importantly, H.R. 375 allows reservation shopping and for
lands to be taken into trust for off-reservation casinos in places
where States, local governments, and other Tribes oppose such action.
H.R. 375 will result in a flood of new off-reservation casinos that
cause harm to States and local communities. Many of these casino
locations that are nowhere near Tribes' historic reservations will be
handpicked by gambling investors and Washington bureaucrats.
If H.R. 375 passes, all Tribes would have to do in order to get land
taken into trust and open off-reservation casinos is to show that they
are federally recognized by the Department of the Interior.
In the Natural Resources Committee markup of this bill, the gentleman
from the Second District of California, Mr. Huffman, and I engaged in a
productive debate on this bill. We both agreed to try to find common
ground on which to respond to my concerns about off-reservation casino
abuse and the valid concerns brought to the committee by State and
county governments. Bringing H.R. 375 up via suspension this week and
not allowing any amendments prohibits us from making good on that
agreement.
H.R. 375 should have been amended prior to being brought to the floor
to address these bipartisan concerns.
Taking land into trust divests the affected State and local
governments of jurisdiction. When land is taken into trust, for
example, the Tribe will not pay any applicable taxes on the land, but
the county or city in which the land is located might nonetheless be
required to supply the Tribe with county and city services, and non-
Tribal residents will pay for it. At least consultation should be a
minimum.
The bill as currently drafted therefore increases the power of an
unelected bureaucracy to divest nonconsenting State and local
governments of jurisdiction over their land. This, by itself, is a
great cause of concern.
Let's be clear about H.R. 375 and how a bill of this scope and
magnitude deserves more careful consideration than is being given here
today.
Currently, there are almost 600 recognized Tribes in the United
States, about 240 of which have gaming operations. H.R. 375 removes the
dam that provided some restraint on the number of Tribal casinos and
would be a dramatic departure from existing Federal law that has been
in place for almost a century.
Before voting on this bill, I hope Members all understand that H.R.
375 will open the floodgates to off-reservation Tribal casinos all over
the United States. If H.R. 375 passes, all federally recognized Tribes
will be eligible to receive land in trust and potentially open off-
reservation casinos. This includes any Tribe recognized by the
Department of the Interior that was ineligible to receive land in trust
and/or was denied land in trust prior to H.R. 375.
According to the National Indian Gaming Commission fact sheet, as of
2016, approximately 329, or 58 percent, of the recognized Tribes had no
gaming operations.
President Trump opposes H.R. 312 and with good reason. That bill
gives land in trust and a casino to a single Tribe that is otherwise
ineligible to receive those benefits, as well as reverses Federal court
and Interior decisions. But H.R. 375 does all that and more.
Instead of giving land in trust to only one Tribe, it lets an
unelected bureaucracy give whatever land it wants to all recognized
Tribes. Thus, the same concerns that exist with respect to H.R. 312,
which we will be talking later about, exist at an even greater level
with respect to H.R. 375.
The purpose of considering bills under suspension is to dispose of
noncontroversial measures expeditiously, but H.R. 375 has controversy
written all over it.
H.R. 375 has ridden alongside H.R. 312 largely unnoticed, and no one
has pointed out two crucial facts: one, that it exists as a contingency
plan in case its sister bill, H.R. 312, fails; and two, that its effect
would be national rather than local.
H.R. 375 and H.R. 312 are two heads of the same snake, one large, one
small. Senator Warren, regardless, will get her casino if either bill
passes.
{time} 1415
Further, passage of H.R. 375 will allow for new off-reservation
casinos to be opened in your States and communities and for land to be
ripped away from local jurisdictions without recourse.
Mr. Speaker, I thank Ranking Member Bishop for the opportunity to
[[Page H3816]]
speak on this important issue. I urge all Members to vote ``no'' on
H.R. 375. Send it back to get consultation, at least, put in.
Mr. GRIJALVA. Mr. Speaker, I yield such time as he may consume to the
gentleman from Massachusetts (Mr. Kennedy).
Mr. KENNEDY. Mr. Speaker, I thank the chairman for his assistance,
for his leadership on this important issue, and for the time.
Mr. Speaker, this debate has been 10 years in the making for Indian
Country. A decade ago, a Supreme Court ruling created unnecessary
confusion in the interpretation and application of the Indian
Reorganization Act of 1934.
This bill, H.R. 375, would clarify the ensuing confusion. Among other
things, it would ensure the IRA applies to all Native American Tribes
recognized by the Federal Government, regardless of their date of
recognition.
For the last 10 years, the unnecessary confusion has caused
uncertainty for Tribes seeking recognition and recognized lands, has
halted economic development projects on Tribal lands, and has resulted
in costly and protracted litigation.
Members and staff on both sides of the aisle deserve significant
recognition for getting us to where we are today. But, in particular,
Chairman Grijalva, Representative McCollum, and Representative Cole
have been extraordinary. I thank them for their incredible leadership
on Tribal issues, and their perseverance in pursuing a clean Carcieri
fix.
I am honored to have the opportunity to speak on this. I urge my
colleagues to support this important legislation.
Mr. BISHOP of Utah. Mr. Speaker, I yield myself such time as I may
consume to engage in a colloquy with the gentleman from Arizona (Mr.
Grijalva).
If we, indeed, are going to be serious about a legislative solution
to Carcieri, then we need to work out some kind of compromise that
could pass both Houses of Congress and be signed by the President.
I have been encouraged by the debate not only on the floor here, but
also in our committee, regarding the need to consult with affected
parties before land is taken into trust.
Mr. Speaker, I ask Mr. Grijalva whether he will commit to work with
us on this type of legislation to solve this underlying problem as this
bill moves forward?
Mr. GRIJALVA. Will the gentleman yield?
Mr. BISHOP of Utah. I yield to the gentleman from Arizona.
Mr. GRIJALVA. Mr. Speaker, when a Tribe applies to have land taken
into trust through the Department of the Interior, local concerns are
already strongly considered, even more so when the land is located away
from existing reservation lands.
However, I do recognize there is a desire from some Members on both
sides of the aisle to work on stand-alone legislation that would codify
some of the process.
I agree with the gentleman's statement about veto abilities. Any
provision which would give counties or local governments veto power
over trust land decisions is, frankly, a nonstarter. Local input is
vital to these decisions and should be taken into account. However,
Tribal consultation is solely the responsibility of the Federal
Government, as is any final decision on transferring land into trust.
And I think because of the national implications of the question of
trust land and the role that communities, i.e., counties and
municipalities, would play, I think there is a need to somehow
accommodate a level of Tribal consultation, because they are going to
be the most affected party by any decision that is made.
With that said, I do commit, Mr. Speaker, to looking at any proposal
on the issue and to work moving forward if it is to the betterment of
all the stakeholders and I would assist the legislation in its final
passage.
Mr. BISHOP of Utah. Mr. Speaker, reclaiming my time, I appreciate the
gentleman's commitment and I appreciate the comments that he will be
there.
There is this bigger question that needs to be answered. Where we
draw the line is a matter that still needs some kind of discussion, I
recognize that.
Mr. Speaker, I include in the Record a brilliant letter from me to
Chairman Grijalva on this particular issue'
House of Representatives,
Committee on Natural Resources,
Washington, DC, May 6, 2019.
Hon. Raul Grijalva,
Chairman, Committee on Natural Resources,
Washington, DC.
Dear Mr. Chairman: It is frustrating that the Democrat
Leadership has scheduled H.R. 375, legislation to reverse
Carcieri v. Salazar, under suspension one week after the
committee markup of the bill. It disregards what I believe
was a bipartisan agreement to work on an amendment to the
bill to improve consultation between the Bureau of Indian
Affairs (BIA) and states and counties to mitigate the impacts
of taking land in trust in their jurisdictions. The Carcieri
decision created vast uncertainty over the fee-to-trust
process for tribes and impacted stakeholders. I voted for
H.R. 375 in committee as a display of my support for
resolving Carcieri. My support for the bill's advancement is
contingent upon the inclusion of reasonable safeguards on
BIA's powers.
During markup on H.R. 375, Messrs. Huffman and Gosar
discussed a mutual, bipartisan desire to respond to long-
standing state and local concerns. The California State
Association of Counties (CSAC), in a letter submitted for the
markup record, reiterated the counties' ``longstanding, valid
concerns'' they have with a fee-to-trust process conducted
under a ``fundamentally flawed regulatory framework'' and
they also submitted proposals to resolve these problems. I
can attest that many counties in Utah share these same
concerns.
Mr. Huffman explained that he found himself in partial
agreement with CSAC's position, and that there should be
``meaningful good faith consultation'' with local
governments. While saying the Gosar amendment went too far,
Mr. Huffman expressed a willingness to ``continue
collaborating on this issue'' to ``come up with something
that would at least codify that good faith consultation part
of a better process.''
Bringing the bill to the Floor this Wednesday is not a sign
that such collaboration is being taken seriously by Democrat
Leadership nor is it a pragmatic approach to resolving
Carcieri for the benefit of Indian Country.
The fee-to-trust system is broken because of a provision of
a 1934 law that has not been updated since that law's
enactment. Realistically, H.R. 375 offers an opportunity
through which to fix it. Moving forward without reasonable
consultation safeguards on BIA's authority will undermine
successful resolution of Carcieri.
It was our hope that after debate on the bill during markup
you'd allow Messrs. Huffman and Gosar, and other interested
Members (on and off the Committee), an opportunity to explore
solutions with H.R. 375's sponsor, Mr. Tom Cole. We need to
work on a compromise bill that solves the underlying issues
and can become law.
Sincerely,
Rob Bishop,
Ranking Member.
Mr. BISHOP of Utah. Mr. Speaker, I yield back the balance of my time.
Mr. GRIJALVA. Mr. Speaker, for 10 years, the Carcieri decision has
caused anxiety and confusion in Indian Country, creating dangerous
legal ambiguities related to Indian trust lands.
Today, we can finally end all that. We can remove the ambiguity and
uncertainty, and finally offer Tribal nations peace of mind that their
lands are protected.
Mr. Speaker, I urge swift passage of H.R. 375, and I yield back the
balance of my time.
The SPEAKER pro tempore (Mr. Ruiz). The question is on the motion
offered by the gentleman from Arizona (Mr. Grijalva) that the House
suspend the rules and pass the bill, H.R. 375.
The question was taken.
The SPEAKER pro tempore. In the opinion of the Chair, two-thirds
being in the affirmative, the ayes have it.
Mr. GOSAR. Mr. Speaker, on that I demand the yeas and nays.
The yeas and nays were ordered.
The SPEAKER pro tempore. Pursuant to clause 8 of rule XX, further
proceedings on this motion will be postponed.
____________________