The Interior Improvement Act -Land in Trust Legislation

On July 29, 2015, Senator John Barrasso (R-WY) introduced S. 1879, the Interior Improvement Act. The bill is essentially a legislative fix to the U.S. Supreme Court’s decision in Carcieri v. Salazar, 555 U.S. 379 (2009). Carcieri held that the term “now under federal jurisdiction” in the Indian Reorganization Act (“IRA”) constrained the ability of the Secretary of the Interior to take land into trust for tribes that were federally recognized after 1934 (when the IRA was originally enacted).

The Carcieri problem was amplified even further when the Supreme Court decided Match-E-Be-Nash-She-Wish Band of Potawatomi Indians v. Patchak, 132 S. Ct. 2199 (2011). Patchak held that private citizens can challenge trust land acquisitions under the Administrative Procedure Act on the theory that the acquisition runs afoul of Carcieri. In short, Patchak opened the door for lawsuits challenging already-completed trust land acquisitions, subject only to the Administrative Procedure Act’s six-year statute of limitations.

Senator Barrasso’s proposed legislation fixes this problem by clarifying that, for the purposes of taking land into trust, it does not matter when a tribe was federally recognized. The bill also ratifies all prior trust acquisitions, thereby barring claims such as the one brought in Patchak. It is a “clean” fix in that it does not propose to treat land-into-trust applications differently just because the land will be used for gaming.

The bill also includes a number of changes to the trust land acquisition process. It expressly requires the Secretary of the Interior to enhance local cooperation by promoting the use of “cooperative agreements.” These cooperative agreements would be between the Tribe and the neighboring county, and they may address issues such as mitigation, changes in land use, dispute resolution, etc. A land-into-trust application that is accompanied by an executed cooperative agreement is given special weight and priority by the Secretary. Unless environmental review is required, a land-into-trust application that is accompanied by a cooperative agreement must be acted on within 30 days.

The National Congress of American Indians (“NCAI”) held a conference call on July 29 to discuss the proposed legislation. NCAI encouraged tribal leaders to support the bill, especially during Impact Days, a tribal conference in mid-September. There were multiple comments regarding some vague language in the bill. For instance, it was unclear whether certain sections of the bill pertain only to “off-reservation” trust land acquisitions; it was unclear whether the Secretary would have the authority to consider the tax impact to the county; and it was also unclear whether cooperative agreements could be struck between tribes and local municipalities, or whether such agreements had to be with the county). NCAI committed to follow up with the Senate Committee on Indian Affairs to find out how these aspects of the bill are intended to work.