POLO/POSY vs. United States Department of the Interior - Feb 2008
The Chumash applied in 2002 to place a 6.9-acre parcel into federal trust for a museum, cultural center and commercial space. In 2005 the BIA approved it and POLO, among other groups, appealed the decision. In Feb 2006, the federal government denied the appeal stating that the groups had no legal standing to appeal an annexation by a federal agency.
POLO / POSY then filed an appeal against the U.S. Department of the Interior in an attempt to reverse that decision.
P.O.L.O. and POSY vs. the United States Department of the Interior should be heard in Federal Court sometime in February of next year.
This from POLO:
“Amazingly, Indian tribes, many of them of questionable tribal and land legitimacy, can aggressively expand their land and gambling and the federal government (i.e. the taxpayer...i.e. us) provides them legal representation. Yet the federal government provides no representation for the non-tribal community. This means communities like ours who are fighting for a say must fund their lawsuits privately.”
Without the typical hype and half-truths provided by these groups, here are some facts about Tribal Land into Trust:
In 1980, the Department of the Interior (Interior) established regulations to provide a uniform approach for taking land in trust. Trust status means the government holds title to the land in trust for tribes and individual Indians. Trust land is exempt from state and local taxes. The Secretary of the Interior has delegated primary responsibility for processing, reviewing, and deciding on applications to take land in trust to the Bureau of Indian Affairs (BIA). As part of this process, BIA must seek comments from affected state and local governments.
Why are tribes allowed to put land into trust?
Tribal Trusts are a result of The Indian Reorganization Act of 1934 (IRA), which was enacted to remedy the devastating loss of tribal land to Indians. Between the years of 1887 and 1934, the U.S. Government took over 90 million acres, nearly 2/3 of reservation lands, from the tribes without compensation and gave it to settlers. In addition, the termination era of the 1940's and 50's resulted in similarly unjust losses of huge amounts of reservation land. The IRA of 1934 authorizes the Secretary of the Interior to hold land for Indian Tribes and individual Indians in trust, thereby securing Indian lands for economic development, housing, and related purposes. It also allows the tribe to benefit from the housing and other federal programs which can only be used on land which has been placed in trust.
According to the regulations (5 CFR 151.10) when applying to take land into trust, a tribe must provide the following information to the BIA:
· Official citations of federal statutes under which the transaction is to take place and a tribal government resolution authorizing the acceptance of the transfer.
· A legal description of the property, and a tribal request for trust status.
· Discussion of whether third parties will be using the land.
Discussion of the need to take the land into trust, and justification why the present status of the land will not serve that need. Avoiding taxation may not be used as a reason.
· Description of the purposes of the transfer. The tribe must specifically explain the intended use of the acquired land (eg. housing, economic development) and how the acquisition will enhance that use.
· Assessment of impact on local government. The tribe, after consulting with local government, must describe any existing conflicts over taxation and services such as: policing, utilities, zoning and fire protection.
· Indication of resolution of problems and conflicts. Where conflicts exist, tribes must also describe how they intend to resolve conflicts over tax funded activities.
· Proof of compliance with the National Environmental Policy Act and federal hazardous waste laws.
There are much greater limitations on land into trust if land is to be used by a tribal government for gaming purposes. The Indian Gaming Regulatory Act of 1988, 25 U.S.C. §2719, prohibits gaming on off-reservation lands acquired in trust after 1988, unless the Governor of the state concurs and the Secretary determines that gaming would not be detrimental to the surrounding community.
Tribes and individual Indians have submitted about 1,300 applications to have their land placed in trust. Not all of these will allow tribes to build casinos. The average processing time is about 18 months. That would mean that it would take the BIA decades to resolve the backlog.
Out of that 1,300 only 217 applications are fully complete and ready for a decision.
The BIA has been looking at the applications on a regional basis to get a better handle on the backlog. So far, the analysis has revealed a wide range of practices and policies.
In order to standardize and expedite the process the BIA back in November said that they would release a new land-into-trust handbook within the next four to six weeks. I don’t know if that book has been released yet.
Sources:
http://www.trustandconsequences.com/print_this_story.asp?smenu=89&sdetail=526
http://www.citizensalliance.org/Major%20Issues/Land%20Into%20Trust/bia_fee_to_trust_policy.htm
http://www.ncai.org/Land-Into-Trust.57.0.html
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1 comments:
As a non-Indian land owner near two Indian reservations, I must respectfully disagree with your article that the fee to trust process is an open an fair process.
First, the process is administered through the BIA who's sole purpose is to serve tribal interests. The BIA employs Indian preference in hiring staff. Having worked on several appeals to fee to trust decisions, I can attest to the fact that BIA is often less than cooperative to non-Indian seeking information or documents on a fee to trust conversion.
The BIA often claims their government-to-government relationship with tribal governments prevents them from disclosing any internal governmental communications but every letter a non-Indian sends to the BIA is shared with the affected tribal government.
Non-Indian individuals are usually excluded from the appeals process do to "lack of standing". The IBIA assumes non-Indian interests are fully represented by local or state governments. However, local and state governments are often poorly prepared to face fee to trust conversions because the process is so obscure.
For the process to be fully balanced, the BIA should hold public hearings in an area where a fee to trust application is being evaluated. The BIA should fully open all fee to trust applications to public review and legislation should be passed in Congress to reimburse local governments for their costs to oppose or appeal fee to trust applications.
Having experienced this process first hand, what I’ve written here only scratches the surface of my objections to the fee to trust process. I could many pages about how I found it corrupt and unfair. I would urge all land-owners, both tribal and non-Indian who have been negatively impacted by this policy to contact your federal senators and congressmen and ask them to pass legislation to end the fee to trust process or amend it to make it balanced.
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