The House of Representatives Subcommittee on Indian and Insular Affairs held a hearing yesterday on two bills that would expand tribes’ authority to acquire land, potentially overturning a 2009 Supreme Court ruling limiting the designation of trust lands.
One of the bills discussed during the hearing was H.R. 1208, a bipartisan bill introduced by Rep. Tom Cole (R-Okla.) that would amend the Indian Reorganization Act (IRA) of 1934 by authorizing the Department of the Interior to seize lands held in trust for all 574 federally recognized Indian tribes. As it stands, a 2009 Supreme Court ruling (Carcieri vs Salazar) ruled that the Secretary of the Interior only has the authority to place land in trust for federally recognized tribes who can demonstrate that they were “under federal jurisdiction” when the IRA became law in 1934.
During the hearing, Cole, who is not a member of the committee, was recognized by Chairwoman Harriet Hegeman (R-Wyo.) to speak about his legislation. He used some of the time to address opponents of the legislation who claim the proposed bill is “all about gaming.” He noted that 26 of the 961 pending fee-to-trust applications currently under review are gaming applications. Of the 4,349 applications filed between 2009 and 2023, 48 were gambling-related.
“Let me be clear, this is incorrect,” Cole said.
Also on the agenda was the bipartisan H.R. 6180, introduced by Rep. Jerry Carl (R-Ala.) with bipartisan support. The proposed Poarch Band of Creek Indians Land Act would treat the Poarch Band of Creek Indians as covered by the IRA and reaffirm all lands previously held in trust for their benefit by the Secretary. The tribe received federal recognition in 1984 and is the only tribe in the state of Alabama with recognized status.
Much of the Poarch Band’s 230 acres were placed in trust prior to the 2009 ruling. The land contains much of the Tribe’s infrastructure, including buildings, businesses, and three casinos. Because the Poarch Band was recognized after 1934, a court could determine that the lands were not lawfully held in trust, effectively exposing the Tribe to state taxes and civil regulation and the potential dissolution of its infrastructure. Additionally, the Tribe’s casinos would become subject to Alabama law, leaving one of the Tribe’s largest employers and sources of revenue vulnerable to alteration or closure.
A court upheld the Poarch Band’s trust status in 2011, but the ruling does not protect the band from future lawsuits. Stephanie Bryan, president and CEO of the Poarch Band, testified that the ensuing legal battles have cost the tribe nearly $10 million over the years.
“These lawsuits are taking a real toll,” Bryan told the subcommittee. “Pass this bill this year.”
Bryan also testified about the difficulties of providing essential resources and infrastructure to tribal members without acquiring additional trust lands. She pointed to 2018, when the tribe had to expand its Boys and Girls Club.
“There was no more buildable trust land,” Bryan said. “We were forced to fill ponds around the community center on existing trust land, which added $1 million to our construction costs.”
Carriers effects discussed
At yesterday’s hearing, led by subcommittee chairman Hageman, there was only room because of the watching crowd. Following Hageman’s opening statement briefing the two bills, Congresswoman Teresa Leger Fernández (D-NM), co-sponsor of HR 6180, spoke about the implications of the Carcieri vs Salazar decision.
“That decision was damaging,” Fernández said. “It was disrespectful to tribes who were essentially saying if you weren’t federally recognized, it didn’t matter how long you existed, but if we hadn’t done our homework, you weren’t allowed to restore your homeland.”
Fernández said it is essential for tribes to be able to take land into trust so they can provide housing, economic development opportunities and government services, and protect cultural resources.
“The Carriers This decision ended 75 years of federal Indian policy and administrative practices,” Fernández said. “It created uncertainty. Because Carrierstribes have had to defend themselves in court.”
Rep. Bruce Westerman (R-Ark.) discussed the disparate outcomes between land trust tribes and surrounding non-tribal communities.
“We have seen many examples of local communities benefiting from tribal development of trust lands, diversifying economies and often job creation. We have also seen cases where tribes and local stakeholders are not on the same page, resulting in costly and lengthy litigation, Westerman said. “Consensus cannot always be achieved; it is vital that we try to find the best way forward for everyone.”
Testimony from Kathryn Isom-Clause (Taos Pueblo), deputy assistant secretary for policy and economic development at the Bureau of Indian Affairs, indicated that the department must conduct an analysis for each tribe that applies to acquire land through trust, even if the status of the tribe is undisputed.
Isom-Clause called the subsequent analyses “time-consuming and costly,” resulting in near-continuous litigation over what otherwise should have been simple acquisitions of land in trust.
“The Carriers decision makes it likely that the department will face costly and complex litigation over whether the applicant tribes were under federal jurisdiction in 1934,” Isom-Clause said. “Overall, it made the assessment of the application for fee- to trust by the department became more complex and created additional burdens.”
Marshall Pierite, president and CEO of the Tunica-Biloxi Tribe of Louisiana, testified that the 2009 decision left tribes in the position of having to use their own resources to buy back land stolen from them. Restricting the ability to acquire trust lands, he said, diminishes the significant benefits that strong tribal governments provide to Native communities and surrounding non-Native communities.
“The Supreme Court’s decision in Carcieri was a major step backwards on the path to justice and healing,” Pierite testified. “The ruling has left tribal governments and non-Indians confused, slowed economic growth and job creation, and continued to pose legal challenges to the restoration of our ancestral homelands.”
He described how the Tunica-Biloxi tribal enterprises purchase more than $10 million annually from non-tribal suppliers and provide more than $26 million annually in wages to mostly non-tribal employees. Marshall noted that this payroll generates state and federal employment taxes. The tribe also donated $7 million to local charities. It contributed more than $30 million to help the local parish government cover costs associated with the additional demands placed on the community as a result of increased economic activity stimulated by the tribe’s casino.
Chez Oxendine, a Tribal Business News reporter, contributed to the reporting of this story.
About the Author: “Elyse Wild is a senior editor for Native News Online and Tribal Business News.”
Contact: ewild@indiancountrymedia.com
