Native Tribes Seek Clout on Nontribal Lands Proposals in Congress and States May Let Native Peoples Veto Developments Near ‘Sacred’ Sites
By Brad Knickerbocker, The Christian Science Monitor Staff Writer
September 4, 2002
ASHLAND, ORE. – They may be among the poorest in the United States, but native Americans are gaining political clout. Part of this has to do with campaign contributions drawn from casino revenues to influence lawmakers. But it’s also connected to a growing public and political consensus on the need to reverse a long history of government-sanctioned cultural, social, and economic losses.
Specifically, native Americans are pushing for new laws that would give them what could amount to veto power over certain development projects (mining, housing, shopping malls, etc.) impacting what are considered historically sacred sites. A bill is close to passage in California, and support is growing for a similar law in Congress.
“Most Americans understand a reverence for the great Sistine Chapel, or even for a white-washed church building with a steeple and a bell,” says US Rep. Nick Rahall (D) of West Virginia, author of a bill that would protect Indian sacred sites around the country. “But often non-Indians have difficulty giving that same reverence to a mountain, valley, stream, or rock formation.”
There is strong opposition to granting Indians power over economic development – especially since it could apply to nonreservation land.
The California Chamber of Commerce calls the proposal there a “job killer bill” that will prohibit “virtually all development projects … including road and highway expansions, hospitals, schools, low-income housing, and repair and renovation of existing infrastructure.”
Still, the bill made it through the California Assembly and Senate with relative ease. This may have something to do with the fact (as the Sacramento Bee newspaper reported recently) that legislative leaders of both parties, as well as Gov. Gray Davis (D), have received hundreds of thousands of dollars in contributions from California tribes. (Those tribes have been allowed to run Nevada-style casinos since 2000.) The bill now awaits Governor Davis’s signature.
Amid drilling, hope for legal change
Native Americans – as well as environmentalists – worry that the Bush administration’s push for domestic energy sources will mean more drilling and digging that could impact historic sites.
But the administration has said it will proceed cautiously, and – to the surprise of some – Interior Secretary Gale Norton has been praised by the Klamath Tribes for the way she’s handling the highly controversial water issue here in southern Oregon, which pits farmers and ranchers against Indians and wildlife.
Meanwhile, native Americans are taking sacred-site cases to court, and they may have good reason to be hopeful. The US Supreme Court recently upheld a lower-court ruling that prohibits logging of a site the Hoopa tribe in northern California considers sacred – even though a private, nonnative person owns the land.
“The government of the United States has slowly but surely begun to understand that these sacred places must be protected and preserved,” says Sen. Daniel Inouye (D) of Hawaii, chairman of the Committee on Indian Affairs.
Among such places: the Zuni Salt Lake in New Mexico (where a public utility coal-mining project is said to be reducing the aquifer that feeds the lake), sacred trails on what was once Quechan tribal land in Indian Pass, Calif. (threatened by a proposed open-pit gold mine), and the Ocmulgee National Monument in Georgia (which could be affected by a highway extension).
A history of claims and controversy
For 150 years or more, native American sites, artifacts, and human remains were collected – desecrated, Indians and their supporters say – by archaeologists, museum developers, university researchers, and private collectors.
Beginning in the 1880s, Indian religions – including the Sun Dance and other ceremonies and practices – were declared illegal under federal law. Up until the 1970s, US law and practice also sought to break up tribes through a policy of assimilation into the general society and economy. That policy of tribal “termination,” as it was called, was reversed during the Nixon administration. Tribes once again were recognized, but in many cases, great social and economic damage had already been done.
Meanwhile, the American Indian Religious Freedom Act was passed in 1978 “to protect and preserve for American Indians their inherent right of freedom to believe, express, and exercise the traditional religions … including but not limited to access to sites, use and possession of sacred objects, and the freedom to worship through ceremonials and traditional rites.” Twelve years later, the Native American Graves Protection and Repatriation Act was enacted, providing that remains and funerary objects be returned to those shown to be lineal descendants or those with close cultural affiliations.
But Indians and their supporters say such laws (and presidential executive orders meant to protect sacred sites) haven’t prevented large mining operations and other development that sometimes destroy such sites.
“Native people have been fighting for centuries to safeguard their sacred places, with little or no success,” says Tex Hall, president of the National Congress of American Indians and chairman of the Mandan, Hidatsa and Arikara Nation in North Dakota.
With new bill, a shifting context
The proposed “Native American Sacred Lands Protection Act,” scheduled for congressional hearings this month, would change that.
“Our bill gives Indian tribes the ability to petition the government to place federal lands off-limits to energy leasing or other incompatible developments when they believe those proposed actions would cause significant damage to their sacred lands,” says Representative Rahall, the bill’s author and senior Democrat on the House Resources Committee, overseeing federal land management and native American affairs.
“This is an extremely important provision,” says Mr. Rahall. “The tribes would no longer have to depend on the good graces of federal bureaucrats to protect these lands. Rather, the tribes … could initiate those protections.”
There may be a contemporary model for strengthening federal protection of Indian sacred sites.
The US House recently passed legislation transferring a portion of federal Bureau of Land Management land in Wyoming to the Mormon Church because Mormons consider the land to be sacred.
“Passing this legislation has set a precedent for considering comprehensive sacred land protection legislation,” says a congressional source.
In a related development last week, a federal magistrate ruled that scientists may examine the 9,300-year-old skeleton found along the Columbia River in Washington State in 1996.
Area tribes assert that “Kennewick Man” (named for a nearby town) falls under the federal law protecting Indian graves and thus must be turned over to them for burial.
The US Interior Department and the Army Corps of Engineers had agreed with the tribes. But the scientists who filed suit (eight top archaeologists and anthropologists) say preliminary investigation shows this ancient individual more likely descended from populations in Polynesia or from the Ainu people, a Caucasoid group in Japan.
“The secretary [of the Interior] erred in defining ‘Native American’ to automatically include all remains predating 1492 that are found in the United States,” wrote US Magistrate John Jelderks.
The ruling undoubtedly will be appealed, and the US Supreme Court could ultimately settle the case.
Review and Outlook
Bureau of Casino Affairs, The Wall Street Journal
September 3, 2002
If your summer vacation included a spot of gambling, chances are you found yourself in Indian country. Chances also are that you didn’t encounter many Indians, which is just one of the embarrassments about U.S. Indian affairs that Congress is finally noticing.
Take the $16 million casino that opened this summer on the Augustine Indian Reservation, 130 miles east of Los Angeles. The Augustine Band of Mission Indians has all of eight members. But its new casino, run by a Las Vegas company, has 349 slot machines and 10 card tables.
The Augustine “tribe,” if that’s the right word, is only one of many to take advantage of the 1988 Indian Gaming Regulatory Act to cash in on casino riches. That law made it easier for federal authorities to recognize tribes, which now means any group with the right combination of Indian blood and political connections to convince the federal Bureau of Indian Affairs. Congress is finally figuring out that this process has become a recipe for political abuse, and the Senate Select Committee on Indian Affairs will hold hearings on tribal recognition this month.
The immediate spur is several controversial BIA decisions this summer. In one case, the bureaucracy upheld a Clinton-era decision granting recognition to the Eastern Pequot and Paucatuck of Connecticut, even though BIA historians had shown they didn’t qualify. This no doubt pleases one Paucatuck backer, that noted defender of Native American values Donald Trump, who is waiting to build another gambling palace. Also glowing is GOP lobbyist Ronald Kaufman, who was paid $500,000 to lobby for the Eastern Pequot.
The BIA showed more backbone in a second case, stripping the Chinook and Duwamish Indians in Washington state of “tribal” status they’d been granted in Bill Clinton’s final days (the Indian version of Presidential pardons). The Chinook Indians own less than an acre of land today, and only a few hundred people now claim to be Duwamish.
Both the Connecticut and Washington decisions were issued by top Clinton officials who now work as lawyers for firms representing Indian casino interests. Earlier this year the Interior Department’s Inspector General called the circumstances surrounding those decisions “highly unusual,” which is putting it mildly.
But the problem is much bigger than tribal recognition. Federal handling of Indian affairs has been a disgrace for generations, and casinos have been a perhaps understandable response. A group of Indian leaders recently explained to us that casinos have brought a degree of pride and economic self-sufficiency to some tribes, contributing to the building of roads, schools, museums and health-care clinics.
On the other hand, the benefits aren’t all that widespread. The latest Census figures show that most Native Americans remain mired in poverty, and other studies suggest little progress in raising education and health standards. The impact of gambling on the social fabric, including the dangers posed by organized crime, is another concern. Our own reporting has shown the powerful influence of politics and non-Indian developers on tribal recognition and casino deals. These concerns are shared by many Indian leaders, such as those in the Navajo Nation, the largest American Indian tribe, which has resisted the lure of gambling on its lands.
The irony is that the stronger casino interests become politically, spreading their dollars around Congress and statehouses, the more they’re able to stop any serious look at these broader Indian issues. Virginia Representative Frank Wolf recently proposed a study on the state of the American Indian in the 21st century, casinos included. His idea was killed by pro-casino Members who feared an anti-gambling motive. But gambling and tribal recognition were only part of a much larger inspection that Mr. Wolf wants undertaken, including health, economic and education standards in Indian country.
Federal policy toward the Indian community has long been a failed exercise in social engineering. Indian casinos don’t strike us a miracle solution, except for the gambling interests who’ll get rich. Mr. Wolf’s proposed survey would provide the basis for an informed national debate.
Indian Nicknames Don’t Bother Indians
March 14, 2002
“The campaign against Indian nicknames and mascots presumes that they offend Native Americans — but do they?” asked Sports Illustrated magazine in last week’s issue. “We took a poll, and you won’t believe the results.”
Oh yes, we would.
No surprise to us, but no doubt shocking to the nation’s politically correct sophisticates intent on imposing their dogma on the sports world, including Oklahoma, where teams have played under various Indian- related nicknames since before statehood.
But who exactly is offended by the use of Redskins, Chieftains, Redmen, Savages and Warriors? Well, it’s not who you think.
Sports Illustrated and the Peter Harris Research Group polled Indians on and off reservations and here’s what they found: “Asked if high school and college teams should stop using Indian nicknames, 81 percent of Native American respondents said no. As for pro sports, 83 percent of Native American respondents said teams should not stop using Indian nicknames, mascots, characters and symbols.”
The magazine reported — again, no surprise — that even those Indians who object to Indian team nicknames “wear Washington Redskins paraphernalia with pride.” Cited was the spectacle of two Indians who appeared at a conference on race relations in South Dakota in January, speaking against Indian nicknames — but wearing Redskins sweatshirts!
Even so, the drive, by a few Indian activists and sympathizers of other races, to remove all vestiges of Indian nicknames and mascots has been quite successful in the past three decades. Sports Illustrated estimated some 600 school teams and professional clubs have changed nicknames, and it more or less started when the University of Oklahoma dropped its Little Red mascot in 1969.
The magazine said activists downplay the poll’s results as misguided “or as evidence that Native Americans’ self-esteem has fallen so low that they don’t even know when they’re being insulted.” Now that sounds like racism.
Report Raps Process for Tribal Claims
By Peter Urban
March 10, 2002
WASHINGTON — A Department of Interior investigation of Clinton-era irregularities in the federal tribal recognition process has critics clamoring once again for reform.
Connecticut Attorney General Richard Blumenthal; Sen. Christopher J. Dodd, D-Conn.; Rep. Christopher Shays, R-4, and Rep. Rob Simmons, R-2, have renewed their calls to revamp the way tribal groups gain federal recognition.
“It’s stunning,” Shays said. “When I read the report, it makes me believe the professionals were overruled by political appointees [in exchange] for political contributions. That’s the bottom line.”
“For the recognition process to work, it needs to be above reproach, and frankly this report again calls into question the process by which decisions are made at the [Bureau of Indian Affairs],” Dodd said. “I would hope this report at least begins a thoughtful debate on how we can best improve public trust in this beleaguered agency.”
“The process is seriously flawed and needs to be changed so the abuses that took place during the Clinton Administration never happen again,” said Rep. Frank Wolf, R-Va., who requested the probe.
Golden Hill Paugussett Tribal Chief Quiet Hawk said he doubted the report would have an impact on his tribe’s petition for federal recognition.
“I don’t think it puts us under a bigger microscope,” Quiet Hawk said. “From what I read, it was an administrative problem and the report doesn’t really lend credence to anything Shays or Blumenthal are saying.”
The tribe is seeking federal recognition and, if it is received, hopes to build a casino in Bridgeport.
The 15-page DOI inspector general report, based on more than 50 interviews, described a caustic relationship between the technical staff of the Branch of Acknowledgement and Research and the Clinton appointees who oversaw them.
The internal clash surfaced in six controversial recognition decisions in which the political appointees rejected recommendations of the historians, anthropologists and genealogists to reject the tribal petitions.
The six decisions included favorable findings for the Eastern Pequots and Paucatuck Eastern Pequots of North Stonington and the Nipmucs of Massachusetts who have land claims in Connecticut.
Kevin Gover, who served as assistant secretary for Bureau of Indian Affairs from January 1997 to January 2001, reversed four BAR decisions between April 2000 and January 2001. Michael Anderson, who became the acting assistant secretary on January 3, 2001, just three weeks before President Clinton was to leave office, reversed two of BAR’s decisions.
The decisions on the Pequot tribes were made by Gover. At the time, Blumenthal said the reversals would have an impact on the Paugussett claim because it involved relaxing standards.
Anderson made the decision on the Nipmucs.
Prior to April 2000, “only one determination had ever been issued by an assistant secretary that was contrary to the recommendation of BAR,” the Inspector General report said.
Blumenthal said the report provides compelling reasons for BIA Assistant Secretary Neal McCaleb to reconsider the preliminary decisions to recognize the Eastern Pequot and Paucatuck Pequot tribes.
“The report should lead to further scrutiny and convincingly supports my call for complete, comprehensive reform of the current tribal recognition system,” Blumenthal said.
Gover, who is now a partner in the Washington, D.C. law office of Steptoe & Johnson, said in an interview that the report did not “undermine the rationale” for any of the decisions he or Anderson made regarding tribes in New England. He also downplayed the tensions that existed between him and the BAR staff.
“I always accepted the facts that BAR provided. Where I parted ways with them was in how they applied the facts to the law,” Gover, a member of the Pawnee Indian tribe, said. “In that respect, they are distinctly less qualified than I was to make those interpretations.”
Gover said that BAR’s anthropologists, historians and genealogists worked at a “glacial pace” as if their job was to produce a scholarly work rather than simply present a recommendation to him on whether a tribe met the criteria needed for federal recognition.
Moreover, Gover said that the staff insisted that tribal groups show proof “beyond a reasonable doubt” for each criterion — a standard that Gover felt was too high. Gover said the evidence needed should simply be that the tribes were “more likely than not” to meet the standards.
“They resisted every effort to speed up the process,” Gover said of the staff.
BIA spokeswoman Nedra Darling declined to comment on any aspect of the report.
Shays said that Gover’s standard for recognition was too low.
“When you are creating a sovereign nation, you can’t do that so casually,” Shays said. “Had these six decisions been perceived as valid it would have dummied down the standards where some tribes would qualify that should not. It basically would have lowered the bar.”
Meanwhile, the Nipmucs’ preliminary recognition has been rescinded. The remaining five decisions also are being reconsidered by the Bush administration.
More Clintonian Deeds Go Unpunished
March 6, 2002
Michelle Malkin, Creators Syndicate
Clinton-era sleaze is like a stubborn toe fungus. It just won’t go away. Fourteen months after the 42nd president of the United States left office, news is spreading of yet another unsightly scandal under his watch. And true to Clintonian form, it looks like those involved won’t ever have to pay a price for their creepy actions.
This case comes from the Bureau of Indian Affairs (BIA), which has been turned into a career slot machine for government officials who parlay their public positions into lucrative lobbying jobs and consulting gigs.
One of the chief functions of the agency is to approve federal recognition of Indian tribes — a highly sought-after status that brings a wealth of exemptions from many federal taxes and all state income, sales and excise taxes; state environmental and land use laws; workers’ compensation and occupational health and safety laws; and state laws governing personal injuries, sexual harassment and contracts. Oh, and one more thing: exemption from state laws restricting gambling.
It’s that last golden perk that has all sorts of Native American wannabes clamoring for tribal status, no matter how historically flimsy and legally dubious their claims. Across the country, cultural entrepreneurs are rediscovering their Indian roots — or creating them out of thin air — to cash in on monopolistic gambling opportunities. Some of these “Native American” claimants are tribes that have been out of existence for decades or have never lived together on a traditional reservation until after they formulated casino plans.
Not ones to let either law or history get in the way, some of the Clinton administration’s top BIA officials apparently engaged in a scheme to alter official documents and rush them past review in order to grant last-minute recognition to the Duwamish tribe in Washington state. The “tribe’s” recognition had been opposed vehemently by the BIA’s rank-and-file genealogists and anthropologists; its petition had been rejected once before because staff researchers doubted whether current tribal members had ancestral ties to the original Duwamish Indians.
Nevertheless, top officials pushed forward with that controversial recognition — and many others — in the administration’s final frenzy. In a new report, the Interior Department’s Office of the Inspector General (OIG) said that the bureau’s research staff, under intense pressure, “collectively described the last 17 days of the Clinton administration as pure hell.” (Just the last 17?)
As The Boston Globe, New York Times and others reported last week, the OIG also concluded that BIA administrators had illegally backdated recognition forms — three days after Clinton departed. Authorities said that on Jan. 22, 2001, then-acting BIA chief Michael Anderson waited outside his old office building in his car, where a former assistant delivered the Duwamish papers. Anderson signed them, the OIG report said, and a bureau official later stamped the document with the date Jan. 19, 2001.
The BIA’s deputy commissioner for Indian affairs, Sharon Blackwell, a Clinton holdover, authorized Anderson to sign the documents. According the Times, “she said backdating them was appropriate because he had intended to sign them.” Anderson, now a partner at Monteau and Peebles, a D.C.-based firm specializing in Indian law and gambling issues, denies any wrongdoing. The Duwamish group’s attorney has also pooh-poohed the action as a “technicality.” And Anderson’s former boss, Kevin Gover — now a partner at D.C.-based Steptoe and Johnson, another high-powered law firm representing Indian interests — dismissed the investigation of irregularities in BIA’s recognition process as “hoo-ha.”
It’s hardly surprising that these Clinton-era schemers are shrugging off official deception. But what really rankles is the Bush administration’s decision to turn its nose up as well. John Ashcroft and the Justice Department have refused to criminally prosecute Anderson for impersonating a federal official. The Interior Department allowed Blackwell, who sanctioned the shady signature, to retire last week without explanation.
The Era of No Consequences marches on.
No One Charged in Probe at Agency Indian Affairs Actions Questioned
By Peter Hardin, Times-Dispatch Washington Correspondent
March 2, 2002
WASHINGTON – An investigation of alleged wrongdoing at the Bureau of Indian Affairs in the Clinton administration, sought by a Virginia Republican, apparently will not lead to criminal prosecutions.
A senior agency official left office Jan. 19, 2001, and three days later signed papers granting federal recognition to a Washington state tribe when he was “without authority to do so,” according to a report by the Interior Department’s inspector general.
The Department of Justice declined to prosecute the official, Michael Anderson, the report added.
Anderson and former bureau head Kevin Gover went against recommendations of staff professionals in deciding to grant recognition to six tribes, the report said. Gover told investigators he chose to interpret criteria for recognition “with a more relaxed and accommodating standard” than staff professionals.
Federal recognition for a tribe, often called sovereignty, qualifies it to seek aid from certain federal programs aimed at helping American Indians. A number of recognized tribes also have set up lucrative casinos.
Rep. Frank R. Wolf, R-10th and a gambling foe, said the investigation showed the federal recognition process “is seriously flawed” and he found actions in the final months of the Clinton administration “appalling.”
Wolf has contended that gambling industry influence has eroded the credibility of the government’s process for granting recognition to tribes. A number of bills have been introduced in Congress to reform the process.
Yesterday, Gover disputed Wolf’s criticisms and contended the lawmaker doesn’t care about a fair process for recognition of Indian tribes. It’s fine for Wolf to pursue an anti-gambling agenda, Gover said, “but it shouldn’t have the effect of denying justice to tribes that have historically been denied justice.”
“This entire investigation, and all the hoo-ha about recognition, really is an attempt to intimidate and politicize the recognition process, far beyond anything we did while in office,” Gover added. Anderson could not be reached.
Six Indian tribes from Virginia are pursuing sovereignty through a bill in the House of Representatives. That’s a different route than the protracted administrative procedure that Wolf has questioned.
US: Documents on Indians Backdated No Prosecution of Former Official
By Sean P. Murphy, Globe Staff
March 1, 2002
A top federal official at the Bureau of Indian Affairs illegally backdated documents to give government recognition to an Indian tribe seeking to build a casino, according to a report compiled by federal investigators.
But Michael Anderson, the Clinton administration official who gave recognition for the Nipmuc Indian tribe of central Massachusetts and the Duwamish Tribe of Seattle, will not face prosecution.
The Justice Department declined to prosecute Anderson after receiving a referral from the Inspector General’s Office of the Interior Department, which oversees the Bureau of Indian Affairs. Justice officials were unavailable for comment late yesterday afternoon.
After leaving office on Jan. 19, 2001, Anderson returned to the Interior Department headquarters on Jan. 22 to sign and backdate documents giving the Duwamish the right to open a casino, a hugely lucrative business in areas near the population centers of the Northeast and Northwest.
Anderson had apparently neglected to sign the Duwamish papers in the frenzy of the last hours in office. On Jan. 22, 2001, he had a former assistant bring the documents to him while he waited outside the Interior building in his car, the report says. There, he signed and backdated the documents, and the assistant returned them to the files.
The Inspector General’s report was made public yesterday by US Representative Frank R. Wolf, Republican of Virginia, who contends the process for recognizing groups as official tribes is flawed and influenced by money and politics, particularly in recent years as tribes close to urban areas realize billions from casino operations.
Wolf yesterday urged Attorney General John Ashcroft to reconsider his decision to forgo prosecution of Anderson and M. Sharon Blackwell, a current ranking Bureau of Indian Affairs official who was aware of Anderson’s actions. Blackwell announced her retirement earlier this week. No reason was given.
The Inspector General’s Office had also referred to the Justice Department the case of Hilda Manual, who ran afoul of lobbying laws when representing the Mashpee Wampanoag Indian Tribe of Cape Cod after leaving the Bureau of Indian Affairs. The Justice Department declined to prosecute that case as well.
Wolf said he spoke with Ashcroft about reconsideration after Ashcroft appeared before the House subcommittee on appropriations for the Justice Department, which Wolf chairs.
”It’s highly unethical what they did,” Wolf said in an interview later. ”After these documented abuses, I don’t think there’s much chance these tribes can go on and get recognition and open casinos.”
In a letter to Ashcroft, Wolf wrote, ”I implore you to reevaluate this decision. The report confirms that the tribal recognition process has been compromised. And more specifically it documented the serious misconduct of Clinton administration appointees.”
Anderson, Blackwell and Manual did not return telephone calls yesterday. A spokeswoman for the Bureau of Indian Affairs said the report had not been made available to that office.
The Inspector General’s report portrays the Bureau of Indian Affairs as being in a frenzy to conclude recognition of the two tribes before the Bush administration took over on Jan. 20, 2001, and riven by distrust between Anderson and other officials who opposed the recognition – to the point of threatened physical violence.
”Staff collectively described the last 17 days of the Clinton administration as pure hell,” the report says. Anderson, who took over as acting head of the Bureau of Indian Affairs on Jan. 3, 2001, and an assistant, Loretta Tuell, pushed the staff to reverse the staff findings on the Nipmuc and Duwamish recognition applications.
The staff, made up of historians, anthropologists and genealogists and known as the Bureau of Acknowledgment and Research, had concluded neither tribe met the criteria for federal recognition. Besides the right to open a casino, federal recognition makes tribes eligible for federal assistance in housing, health, education and other programs.
”Tuell had pressed the (researchers) for a positive outcome on the Nipmuc and Duwamish tribes,” the report says. And when the staff complained and suggested they put their concerns in a memo, Blackwell ”told them not to put their concerns on paper.”
Blackwell told the investigators that in those tense hours she ”considered physical confrontations a realistic possibility, expecting someone to `get slapped,”’ inside the Interior Building, the report says.
Sean P. Murphy’s e-mail address is email@example.com.
This story ran on page B2 of the Boston Globe on 3/1/2002.
© Copyright 2002 Globe Newspaper Company.
Norton Orders Overhaul of Indian Trust
By Robert Gehrke, Associated Press Writer
November 15, 2001
WASHINGTON (AP) – Interior Secretary Gale Norton stripped the Bureau of Indian Affairs of its oversight of billions of dollars of royalties from Indian land on Thursday. A new division was created to fix more than a century of trust mismanagement.
The change should help different elements of the effort to reform the trust work together, Norton said.
“The main question that people have been struggling with is, ‘Who is in charge of trust reform?”’ she said.
U.S. District Judge Royce Lamberth last month asked that question of department lawyers when he threatened to hold Norton and others in contempt for failing to comply with his order to correct the trust fund management.
Elouise Cobell, the Browning, Mont., banker and member of the Blackfeet Nation who sued the Interior Department in 1996 for mismanaging the funds, said Norton’s action was a “last-minute, backs-to-the-wall effort to stave off” court action.
“The trust is a shambles and in need of top-to-bottom reconstruction,” she said.
Norton said the Interior Department began reviewing the trust fund management in April and is basing the changes on a report completed this week by Electronic Data Services Inc.
Ron Allen, vice president of the National Congress of American Indians (news – web sites), expressed concern that Indian tribes were not consulted before Norton announced the changes and that the new Bureau of Trust Assets Management will not be as responsive to tribes as the BIA was.
The new bureau will report directly to Norton.
Norton said tribes will have a say in shaping the new system, and that her action with let the bureau focus on Indian education, law enforcement, social services and economic development.
Attorneys for the plaintiffs have asked Lamberth to strip the department of the trust fund management altogether and assign an outside party to manage the money.
In 1994, Congress ordered the department to clean up more than a century of mismanagement of mining, grazing, oil drilling and timber harvesting royalties from Indian land.
Nearly two years ago, Lamberth ordered the department to determine how much it owes the Indians – the plaintiffs say it is at least $10 billion – and to improve its system of accounting.
Neither has happened, despite $614 million spent by department, according to reports by a court-appointed watchdog. Moreover, Interior officials have misled the court about the status of reform efforts, the reports say.
The Indians’ attorneys want nearly 50 government officials, including Norton, held in contempt and possibly jailed on grounds they have obstructed the reform and misled the court.
In 1999, Lamberth held Interior Secretary Bruce Babbitt and Treasury Secretary Robert Rubin in contempt and fined them $600,000 for failing to turn over documents related to the case.
Indian Sovereignty Process Has Flaws, GAO Reports
By Peter Hardin, Times-Dispatch Washington Correspondent
November 10, 2001
WASHINGTON – The federal government’s regulatory process for bestowing sovereignty on Indian tribes is hampered by flaws and needs to be strengthened, a new report by the watchdog arm of Congress said this week.
The General Accounting Office study stopped short of matching the criticisms leveled by one of the leading lawmakers who requested the review, Republican Rep. Frank R. Wolf of Virginia, a staunch gambling foe.
Wolf contended in March, “It appears that the influence of the gambling industry has seriously eroded the credibility of the [Bureau of Indian Affairs] and the tribal recognition process,” in which sovereignty for Indian tribes is considered.
The GAO report was more measured. It said there isn’t clear guidance on how officials ought to interpret the formal criteria for recognition; and there is inadequate staff and funding to handle the process promptly.
Neal A. McCaleb, head of the Bureau of Indian Affairs, said in a letter that his agency agreed with the GAO’s top recommendations and was taking steps to address them.
Wolf, R-10th, said the report “validates my long-standing concerns that there is a problem with the [BIA] process. . . . It needs to be fixed.”
Critics of the BIA process have been legion in recent years. Numerous bills have been introduced in Congress to reform the process.
The GAO warned in its report that the regulatory process could be undermined if more tribes turn to Congress or the courts.
The outcomes could have less to do with merits “and more to do with the resources that petitioners and third parties can marshal to develop a successful political and legal strategy,” the GAO cautioned.
Six Indian tribes from Virginia are pursuing sovereignty, a nation-to-nation relationship with the United States, through a bill in Congress.
“There is simply no reason why Virginia’s Indians should forgo benefits enjoyed by Native Americans in other states throughout the nation,” Rep. James P. Moran Jr., D-8th, said in introducing the bill.
In 2000, about $4 billion was appropriated for tribes that have gained federal recognition, according to the GAO. A total of 561 tribes have sovereign status.
Wolf spotlighted in March a published report that high-level BIA officials, shortly before leaving office, went against advice of professional staff in deciding in favor of federal recognition of several tribes and then departed government to work with firms representing “gaming tribes.”
Some federally recognized tribes have set up lucrative casinos.
Republicans Appointees at BIA Overturn Revised Land-Trust Regulations McCaleb says Rules Did Not Balance Needs of Tribes, Governments
By Eileen McNamara
November 10, 2001
Republicans at the federal Bureau of Indian Affairs have withdrawn new land-trust regulations that were adopted by former agency administrators and aimed at helping Indian tribes reclaim lost lands. New appointees of President Bush on Friday revoked the rules, saying they were not responsive enough to the concerns of state and local governments.
Neal A. McCaleb, undersecretary of the Department of the Interior, announced Thursday he is overturning the rules, drafted by his Democratic predecessor, Kevin Gover. McCaleb said he wants to draft his own land-trust proposals to make sure they balance concerns raised by states and towns with the needs of tribes.
The move has further angered Indian tribes nationally that have already criticized McCaleb’s decision to withdraw several tribal recognition decisions Gover and his former assistant approved, including the preliminary recognition of the Nipmuc Nation in Massachusetts.
Tribes spent months helping Gover’s staff draft the land-trust regulations and waited months more for the new Republican administration to take final action on them, said John Dossett, a lawyer for the National Congress of American Indians.
Dossett also questioned why McCaleb withdrew the new rules since they gave leaders at the Interior Department broad powers to decide tribal land trust requests.
“That’s why it was so frustrating to invest all that time just to have them say ‘No, it doesn’t go far enough,’ ” he said.
State and local officials, however, applauded McCaleb’s decision, saying revisions to land-trust laws are needed to address the needs of towns and states that lose zoning authority, policing controls and tax revenues when the federal government expands tribal land bases.
Connecticut Attorney General Richard Blumenthal said Friday he was pleased with McCaleb’s decision. Blumenthal, along with several other attorneys general from across the country, had questioned the new land-trust rules and their potential impact on local towns.
“The ramifications of placing land into trust for Indian tribes … absolutely require the BIA to weigh tribal needs with the concerns of local governments and individuals,” Blumenthal said.
In a prepared statement this week, McCaleb agreed.
“All along we have recognized that a balance must be struck between the needs of the tribes to acquire land in accordance with (federal law) and the concerns of those governments, communities and individuals who are affected by land-into-trust requests,” McCaleb said. He also said the rules adopted by Gover did not provide clear direction and standards for processing tribal land-trust requests.
Nicholas H. Mullane II, North Stonington’s first selectman, said he also backs McCaleb’s decision because the federal land-trust regulations could have a significant impact on his town and neighboring communities.
“It’s encouraging because there were a lot of problems under the old system,” Mullane said.
Mullane said the rules proposed by Gover, and the existing regulations, did not give towns and states enough voice in the land trust process.
North Stonington, along with Ledyard and Preston, is suing to block the expansion of the Mashantucket Pequot reservation. The Interior Department several years ago approved the tribe’s request to add 165 acres on Route 2 to the reservation against the towns’ objections. The land straddles North Stonington and Ledyard.
Like other communities across the country, local towns have complained that tribes that have achieved economic self-sufficiency through gaming don’t need additional reservation lands.
A Mashantucket spokesman said the tribe is gratified that McCaleb intends to consult with tribes when he develops his own land trust regulation changes.
“The tribal nation has maintained that any land-into-trust regulations should be developed with the input of tribes,” said Cedric Woods, a tribal spokesman. “Regulations that are clearly written and understood benefits everyone involved.”
Gover’s proposed land-trust rules were intended to help tribes reclaim some 90 million acres of reservation lands they lost through the Allotment Act of 1887. His proposed rules would have made it easier for tribes to seek land located near their reservations, and would have made it more difficult for tribes to seek parcels far away. The new rules were intended to encourage tribes to focus on reclaiming ancestral reservation lands instead of gaming properties.
Gover approved the regulations in January, but incoming Bush administrators at the Interior Department put them on hold. Later, they reopened the comment period on the regulations.
Dossett said the zeal with which state and local officials pursued overturning the land-trust proposals ignores the long and tortured history of tribes that have sought to keep or reclaim their lands. The 90 million acres of reservation lands the government sold under the Allotment Act represented two-thirds of tribes’ land base.
To address that injustice, the government in 1934 passed the Indian Reorganization Act. It allowed the government to take land into trust for tribes, but it took decades before the federal government adopted regulations that cleared the way for land acquisitions. So far, tribes nationally have reclaimed 8 million acres.
McCaleb’s decision to rescind the proposed regulation changes, Dossett said, “is a continuation of one of the most unfair things that ever happened in American history.”
Changes Sought in Land-Trust Tegulations Federal Officials Feel States, Towns Should Have More Say
By Eileen McNamara
August 14, 2001
Federal officials want to abandon proposed tribal land-trust regulations drafted by appointees of former President Clinton and replace them with rules that would give states and towns more say in how Indian tribes acquire trust lands.
Gale Norton, secretary of the U.S. Department of the Interior, and her assistant, Neal A. McCaleb, announced Friday they have formally proposed withdrawing the proposed rules because of concerns that were raised, in part, by states and local communities about reservation expansion efforts. As of Monday, the department has begun a 30-day public comment period on whether to abandon the proposed rules and draft new ones.
National Indian leaders are “extremely disappointed” by the department’s action and view it as harmful to tribes, said Ron Allen, vice president of the National Congress of American Indians. Norton and McCaleb, he said, appear to be heeding the calls of states and municipalities, including Connecticut and some of its towns, that have vigorously lobbied against the new rules because they fear gaming-rich tribes that now can afford to purchase land.
That fear is misplaced, he said, because federal gaming laws have rules governing reservation expansion for casino development. But the proposed rules, he added, would actually have made it more difficult for tribes to seek trust lands off their reservations for gaming purposes.
“We think the issue here is that (Interior officials) are experiencing a lot of political pressure from states and attorneys general who want to completely change the rules on land into trust,” Allen said. “A whole lot of those folks don’t understand what the process is about.”
The NCAI, he said, worked closely with Interior officials on the proposed regulation changes and believes that lobbyists for convenience stores and gas station operators also opposed the changes because they fear competition from tribes.
Connecticut Attorney General Richard Blumenthal, who opposed the regulatory changes, said Monday he was pleased to hear of the Interior department’s plans to abandon them and draft new ones that would be sympathetic to local communities and states.
“The decision is a very positive and potentially significant step in the right direction,” Blumenthal said.
Blumenthal had complained the proposed rules contained too few protections for state and local governments and inadequate standards for trust acquisitions.
The attorney general, along with Preston, Ledyard and North Stonington, is suing the Interior Department to overturn its 1995 decision to give the Mashantucket Pequots another 165 acres on Route 2 for the tribe’s reservation.
The three towns, which border the Mashantucket reservation, have alleged in their lawsuit that the BIA’s decision to place the land into trust was unfair to the towns because the agency did not follow its own rules. The lawsuit is currently pending in U.S. District Court in Hartford while the towns and tribe negotiate a possible settlement.
The proposed land trust regulation changes, Allen said, would give states, towns and other “interested parties” ample opportunity to comment on trust acquisition applications. They also would streamline the land trust process, require the BIA to make decisions on trust applications within 120 days and make it easier for tribes that are seeking to place small parcels into trust for housing purposes. The rule changes are meant to discourage tribes from seeking off-reservation trust acquisitions and encourage them to seek trust status for lands within the bounds of their reservation borders, he said. Once land is taken into trust for tribes it is removed from local and state taxing and zoning laws.
The regulatory changes overall, Allen said, are intended to allow tribes to regain ancestral lands that were sold by the federal government in the late 1800s as part of a misguided and unsuccessful allotment program to help tribes become economically self-sufficient. The rules were initially proposed last year, but have been on hold by Bush appointees at Interior who now feel the rules may not adequately address the concerns of states and towns.
“Secretary Norton and I recognize that the land-into-trust process is critically important to helping tribes regain lost lands, but that it also has a major impact on state and local governments,” McCaleb said in a prepared statement. Reviewing the rules further now, he added, would assure the trust process is “more efficient, open and fair to everyone.”
Bush’s Interior appointees have taken a significantly different approach to certain tribal matters than their predecessors. While Norton and McCaleb want land trust rules that are more sympathetic to non-Indians, McCaleb last week indicated he does not agree with the former BIA director’s stand on tribal recognition matters. McCaleb said in a radio interview that he would follow the recommendations of his research staff on tribal acknowledgment petitions. Kevin Gover, the BIA’s former leader, has come under fire for rejecting the advice of his researchers and granting preliminary recognition to two North Stonington tribes that failed two of the government’s seven mandatory acknowledgment criteria.
Trust Benefits ex-BIA Official
By Sean P. Murphy, Globe Staff
ALLON, Nevada – Five months after overruling staff genealogists to grant the Chinook Indians status as a gambling tribe, Kevin Gover, former head of the Bureau of Indian Affairs, became the co-beneficiary of a $50,000 trust with the help of the husband of one of the Chinook’s earliest casino advocates.
The exact purpose of the trust, established by a different tribe, the Fallon Paiute Shoshone of Nevada, was unclear. Gover said he was unaware of it, but his legal associates said it was a reserve for future work they and Gover may do.
Gover is a subject of congressional inquiries into decisions in the last weeks of the Clinton administration that expanded the number of tribes with the power to open casinos. Now a lawyer-lobbyist for tribes, Gover has steadfastly maintained that he received nothing from tribes that benefitted from his official decisions. Indeed, Gover has received no legal fees or other payments from the Chinooks.
But he and Dennis G. Chappabitty, a longtime friend and law school classmate, are listed in Nevada as co-beneficiaries of the $50,000 Paiute trust. Chappabitty’s wife, Linda C. Amelia, is a Chinook who was a leader in the tribe’s fight for federal recognition.
The fund, according to Chappabitty, is tied to work he and Gover are doing on behalf of the Fallon Paiute Shoshone.
Gover, in an interview, said he knew nothing about it. ”I have not asked for a $50,000 fee and would not accept one,” said Gover. ”My bill is not close to that.”
Chappabitty said in an interview that he arranged to have Gover hired by the Fallon tribe. He said that he assumed the trust account, which was established by the tribe’s lawyer, is intended to cover his and Gover’s future fees, but that he did not know any more details.
The lawyer, Todd Plimpton, said the trust account he controls is ”primarily” for Gover and Chappabitty, but he later added that his own fees could also be paid with those funds. The $50,000 was turned over to Plimpton to hold in trust for Gover and Chappabitty by vote of the Fallon tribe’s council, he said.
”This $50,000 is nothing more than a retainer, and it will be drawn down only upon work performed,” Plimpton said. ”We will review the bills and make sure everything is copacetic.”
The roughly 2,000 Chinooks of Washington state have long contemplated construction of a casino near their ancestral lands along the Columbia River, but investigators for the Bureau of Indian Affairs determined that they ceased to function as an organized tribe in the 1880s, and therefore did not merit federal recognition.
Gover, on Jan. 3, his last day as head of the bureau, personally rewrote the findings of his research staff to grant the Chinooks the recognition they sought.
The Boston Globe first raised questions about that decision in March, noting that Gover’s top deputy, Michael J. Anderson, then waited until his last day in office, Jan. 19, to give preliminary recognition to two other tribes whose authenticity had been firmly rejected by the Bureau of Indian Affairs’ staff historians, anthropologists, and genealogists.
One of those tribes is the Nipmucs, who are based in Central Massachusetts and who have plans to open a casino and resort similar to the behemoth Indian-owned Mohegan Sun and Foxwood casinos in Connecticut. The other is the Duwarmish of Washington state.
In the Chinook case, the chief of research took the extraordinary step of filing an angry memo after learning Gover intended to recognize the tribe despite the staff’s repeated and strenuous opposition.
Gover’s ”edits to [our] recommendation made changes in the evaluation of the evidence,” wrote Lee Fleming. ”In our view, the finding is not consistent with the requirements of the acknowledgment regulations.”
At a Senate hearing on the rapidly growing $10 billion Indian gaming industry on July 25, Senator John McCain, Republican of Arizona, angrily denounced the last-minute Gover and Anderson recognition decisions.
”A lot of interesting things happened in the last days of the Clinton administration,” said McCain, apparently also referring to Clinton’s controversial pardons to financier Marc Rich and others. ”And we intend to get some answers on this.”
The inspector general’s office of the Department of Interior, which oversees the Bureau of Indian Affairs, is also investigating Gover, a Pawnee Indian, and Anderson, a Muskogee (Creek).
Since leaving the agency, Gover has been a lawyer and lobbyist on Indian issues for the firm of Steptoe & Johnson.
The Fallon Paiute Shoshone is a small and poor tribe, situated on a dusty reservation in the desert about 60 miles east of Reno. What little money the tribe has comes from interest on a $43 million settlement fund established for the tribe by Congress in 1991 as payment for diverting water away from the tribe by damming the Truckee River.
Chappabitty, a Comanche Indian, became involved with the tribe in 1997, first as a board member and later as chief officer of the tribal economic development corporation. He sought and gained Gover’s official help when the tribe had a dispute with the Fallon city government.
Recently, two rival factions of the tribe have fought bitterly over control of the governing council and its treasury.
Chappabitty, based in Sacramento, allied himself with the faction that took control of the Fallon tribal government in August 2000.
Both factions, however, continued to proclaim themselves to be the rightful government.
Gover said he was hired when the Bureau of Indian Affairs, worried that the dispute might turn violent, moved to take over the heavily armed police force on the reservation.
Gover declined to detail his fee arrangement, but Plimpton said he asked for and received $10,000. A check for that amount was written to Plimpton and marked for Gover on June 6, according to records. Chappabitty received a check for $3,400 on that same day. Chappabitty had also received $5,000 on May 31.
But an additional $50,000 check was dated June 8 and used to set up the trust account. Plimpton said he asked the tribal council to vote that amount in anticipation of additional fees that might be owed to Gover and Chappabitty. He said he told Gover about the trust account only after it was authorized.
Plimpton himself received $42,757 in legal fees from the tribe for May and June. In all, the tribe spent $111,157 for Plimpton, Gover, and Chappabitty in May and June.
Gover, who appeared in Reno for a three-day hearing on the Bureau of Indian Affairs’ takeover of the police, said he did not expect to do any further work for the tribe.
Plimpton was unable to supply minutes from the council meeting detailing the reason for the $50,000 trust account for Gover and Chappabitty. One council member also declined to provide minutes but said the money was intended as a legal retainer.
In recent years, Chappabitty and Amelia, a paralegal, have attempted to broker deals between tribes and non-Indian casino investors, according to court documents. In 1996, they took steps to bring a casino investor to the Chinook, according to documents.
Amelia is one of about 2,000 Chinook members, each of whom would stand to reap considerable profits were a sizable casino to be built on tribal land near the large population center of Portland, Ore.
Publicly, tribal members have said little about their casino plans. But in a 1997 letter, Amelia confided to investor Al Salazar of Spirit Gaming Inc. that ”we are definitely looking at Oregon for gaming.”
This story ran on page A1 of the Boston Globe on 8/13/2001.
Ex-U.S. Lawyer in Land Claim Aids Senecas as Lobbyist
By Jerry Zremski, News Washington Bureau
August 12, 2001
WASHINGTON – The federal government lawyer who tried to negotiate a $90 million settlement last year in the Seneca Nation of Indians, claim to Grand Island later signed on as a registered lobbyist for the tribe.
V. Heather Sibbison, the Justice Department’s lead land claims negotiator until joining a top District of Columbia law firm early this year, filed on May 15 as a lobbyist representing the Senecas in their tiny land claim involving Cuba Lake in Allegany County, government documents show.
In most circumstances, federal employees are barred – sometimes permanently – from lobbying the government, out of concern about possible conflict of interest. Such “revolving door” switches sometimes are punishable by fines or up to a year in prison.
But Sibbison’s move is not illegal for one simple reason: an exception in federal ethics law permits former federal officials to do lobbying work for Indian tribes.
Sibbison said she lobbied for the Senecas only briefly. She argued that the exception that allowed her to do so rests on good reasons: a shortage of lawyers who specialize in Indian law and the narrow, specialized nature of the topic.
Noting that government lawyers whose duties involve Indian matters routinely go to work for tribes, she said that without the exception, “you’d be precluded from making a living.”
Her quick move, nevertheless, raised the eyebrows of those fighting to end the Senecas’ long-standing legal battle for Grand Island.
“That’s interesting,” said Rep. John J. LaFalce, D-Town of Tonawanda. “She was the one who talked about a settlement. She was the one talking big bucks.”
Grand Island Supervisor Peter McMahon said Sibbison’s move could outrage residents of the town, who already were angry at the federal government for siding with the Senecas.
“Oh, wow,” McMahon said. “I’d like to have their attorney on our side. . . . In negotiations, it certainly puts the advantage on their (the Senecas’) side. She certainly understands the workings of this stuff.”
Sibbison stressed, though, that she worked for the Senecas only when a legal deadline was approaching in the Cuba Lake case and when her law partner – Arlinda Locklear, a longtime Seneca lawyer – needed some help. She said her lobbying help entailed a conversation with a congressional staffer, whose name she could not recall, and little else.
She said she didn’t even bill the Senecas for that work and that she no longer is doing anything for the tribe. Sibbison, however, would not rule out doing further work for the Senecas.
Under the exemption that allowed Sibbison to work for the Senecas, former federal officials can act “as agents or attorneys” for tribes in dealings with the U.S. government – even if the United States has “a direct and substantial interest” in the issue.
The Ethics in Government Act is much tougher on other former federal employees, who are permanently banned from lobbying on matters in which they participated as federal officials. They also must wait at least two years before lobbying former colleagues on decisions that were pending when they left.
The Indian lobbying exemption has been in effect for decades, said T.J. Sullivan, deputy agency ethics officer at the Interior Department.
Sullivan’s office, along with the Justice Department, gave Sibbison clearance for lobbying for the Senecas. Sibbison had worked for Interior Secretary Bruce Babbitt before joining the Justice Department in 1999.
Steven Tullberg, head of the Indian Law Resource Center, said the exemption makes sense. “The United States is supposed to be upholding the legal rights of its Native American citizens,” and, therefore, often is on the same side of legal issues, he said.
Indeed, that’s just what has happened in this case. The Justice Department has sided with the Senecas in its land claims since 1997, so by no means is Sibbison totally switching sides by lobbying for the Senecas.
While working for the Justice Department, Sibbison tried to reach cash settlements on several outstanding land claims involving Indian tribes and New York State, including the Senecas’ claim to 50 acres on Cuba Lake.
Federal officials proposed a $90 million settlement of the Grand Island lawsuit, to be paid by the state and federal governments. But all sides – and most notably, the state – objected to details of the proposal.
Letter from California Senator Diane Fienstein on Federal Indian Policy Matters
July 5, 2001
The Honorable Gale Norton
Secretary of the Interior
Department of the Interior
1849 C Street N.W., Rm. 6151
Washington, DC 20240
RE: Off Reservation Tribal Gaming Expansion
Dear Secretary Norton:
We write today to share with you our growing concerns about the effects of
the Indian Gaming Regulatory Act on overall federal policy for Native
Americans, particularly the effects of off reservation tribal gaming
expansion in the State of California. Lands acquired after October 17, 1988
are presenting unique issues of controversy between tribes and local
communities. The complexity of Indian laws relating to land settlements,
federal tribal restoration, and the status of land used for tribal gaming,
as well as the confusion concerning exceptions found in section 20 of IGRA
(25 USC section 2719(b)(1)(B)(iii), demonstrates the need for fair and
impartial determinations from the Department of the Interior, but more
importantly a clear national policy concerning tribal land acquisition.
During the last administration, several tribes and their gaming investors
began bypassing Department of the Interior processes and achieving success
in acquiring land through lobbying Congress for statutory language, which
overrides the scrutiny of the Bureau of Acknowledgment and Recognition (BAR)
or the Fee to Trust process in CFR 25 section 151. This action circumvents
the implementation of established federal Indian policies, deprives
Governors of their political power to protect the sovereignty of their
state, and evades the concerns of local jurisdictions facing the
establishment of gaming facilities beyond the jurisdictional reach of state
and local governments.
California has witnessed this first hand through Congressman George Miller’s
amendment in the Indian Omnibus Bill of 2000, which permitted the Lytton
Band’s acquisition of the card club in the City of San Pablo. That action
also added over 4000 acres of land through settlements or acquisitions.
Additional acts of Congress have authorized the Paskenta Restoration Act,
the United Auburn Indian Community Act, the Graton Rancheria Restoration
Act, and the reaffirmation for the Lower Lake Band in Sonoma County by
former Secretary of the BIA Kevin Gover.
This makes clear the need for your Administration to re-evaluate the
current federal approach to assisting Native Americans. Not all of
California’s 109 tribes are able to establish successful casinos or share in
the newfound wealth. California’s Urban Native American population totals
over 300,000 men, women and children but only 32,500 of these are native
Californian Indians and only 10,000 live on the federally recognized
reservations and less than half of these share in casino wealth. The nature
of tribal sovereignty can and has a significant negative impact on
non-Indian governments and regulatory jurisdictions. Lobbying efforts, often
funded by out-of-state casino interests, to achieve statutory language that
circumvents federal processes are increasing exponentially as tribal casinos
proliferate We ask that you review the following issues:
Impacts on local government when the federal process for tribal recognition
is circumvented; Impacts on local government when the fee to trust process
for taking of land into trust is circumvented, whether it be for gaming, housing
or commercial developments; Establishing a focused federal policy which
consults with local jurisdictions over a variety of conflicts and grievances
surrounding public health and safety, interacts with all levels of government
concerned, and exercises caution in establishing and implementing national
Circumvention of the federal processes for federal recognition of tribal
governments, and fee to trust land acquisitions presents a variety of
serious and critical multi-jurisdictional issues, often negatively affecting
the lives of ordinary citizens and depriving local government of their
political power to protect those whom they govern.
Federal policy for Native Americans needs your focused attention. We thank
you for your consideration and look forward to working with your new
U. S. Senator Feinstein Member of Congress
CC: Intergovernmental Affairs the White House
Intergovernmental Affairs the Dept. of Justice
Indians Can Set Tough Air Standards
By Anne Gearan, Associated Press Writer
April 16, 2001
WASHINGTON (AP) – The Supreme Court let a lower court decision stand Monday that allowed air pollution standards for Indian land that are tougher than the rules for adjacent state land.
The state of Michigan and a long list of business groups and utilities claimed that applying the strictest standards on Indian lands threatens all manner of environmental, development and energy policies on land outside Indian jurisdiction.
They claimed last year’s decision by the U.S. Court of Appeals for the District of Columbia Circuit “has fundamentally rearranged the balance of state and tribal jurisdiction.”
The coalition asked the Supreme Court to roll back 1998 Environmental Protection Agency rules giving tribes air quality jurisdiction over lands held in trust for Indians but not actually part of a reservation.
Trust lands “can include territory within a state that has always previously been within the state’s sovereign jurisdiction,” lawyer for the coalition wrote.
The Michigan coalition also challenged the EPA’s decision to define a reservation by its exterior borders. That ignores the fact that many reservations are checkerboards of control, with non-Indians owning land surrounded by a reservation, the lawyers said.
“The (appeals court) decision … has thereby exacerbated the tensions that have long existed between states protective of their sovereign authority and tribes anxious to expand the scope of the territory within their control,” the coalition lawyers wrote.
The dispute concerns areas with air cleaner than required by national standards first passed with the 1970 Clean Air Act. These areas are regulated to try to prevent significant deterioration in air quality.
States and Indian tribes may choose among three classifications for such areas, depending on how much deterioration of air quality the state or tribe will tolerate.
The business-utility coalition claimed that protecting a “class 1” area can end or disrupt business activity some 60 miles away if that activity would harm air quality.
States managing their own air quality classifications would thus be dealt a wild card if a tribe reclassified a less-protected trust area as “class 1,” the coalition said.
Acting Solicitor General Barbara Underwood, arguing for the EPA, urged the high court to stay out of the case. The appeals court was correct to approve the way the EPA applied clean air rules to Indian lands, the government attorney wrote.
“Reservation” is an ambiguous term, and the EPA rules apply it in the way that makes the most sense, the government said.
The government also noted that Congress gave both states and tribes the power to reclassify under the Clean Air Act.
To the extent that Michigan and the others quarrel with that tribal power, “their quarrel is not with the EPA but with Congress,” the government wrote.
The case is Michigan v. Environmental Protection Agency, 00-746
Comments on Final Rule Regarding Acquisition of Title to Land in Trust
April 9, 2001
To: The Honorable Gale Norton Secretary of the Interior Department of the Interior 1849 C Street N.W., Room 6151 Washington, D.C. 20240
RE: Comments on Final Rule Regarding Acquisition of Title to Land in Trust 25 CFR Part 151, Vol. 66 Federal Register No. 10, pp. 3452-3466 (January 16, 2001).
Dear Secretary Norton:
Thank you for providing the National Governors Association (NGA) an opportunity to comment on the final rule governing procedures for the taking of land into trust, 25 CFR Part 151, Vol. 66 Federal Register No. 10, pp.
3452-3466 (January 16, 2001). As you know, the final rule was published in the closing days of the Clinton Administration with an effective date of February 16, 2001. However, following President Bush’s order postponing for 60 days the effective date of published rules which were not yet effective, the effective date of the final rule was delayed to April 16, 2001. We hope these comments will prove beneficial to the department as it reviews this
rule and considers further action in this matter.
When this rule was first proposed in 1999, NGA delivered comments to the U.S. Department of Interior objecting to the proposed rule. The nation’s Governors continue to strongly object to the final rule. As stated in our original comments and outlined below, the Governors question the statutory authority cited for issuance of the regulations, the failure of the proposed rule to provide affected states and localities an effective role in the process, the standards imposed on states opposing the acquisition of trust lands, and the ability of the department to act as an impartial arbiter in the acquisition process. Moreover, the Governors remain concerned by the department’s failure to comply with Executive Order 13132 on federalism when considering the rule’s impact on state and local governments. For these reasons, we ask that the department delay further the rule’s effective date or, if possible, withdraw the rule and reconsider the procedures for trust land acquisition.
1. The rule fails to provide evidence of Congress’ intent under the Indian Reorganization Act to grant the secretary such discretion to take lands into trust.
The legislative history of the Indian Reorganization Act (IRA) is not demonstrated in the final rule. Although the act grants to the secretary the discretion to acquire land in trust for Indians and tribes, serious questions can be raised over Congress’ intent when enacting IRA. While the Governors support economic advancement and independence for Indian tribes, the awarding of trust land status to property can have serious consequences on state and local governments in the areas of tax collection, environmental policies, and zoning and land use policies. Federal action directly affecting the rights and interests of state and local governments must be firmly rooted in clear congressional intent. The rule, nevertheless, fails to provide evidence of Congress’ intent to grant the secretary broad discretion to take lands into trust. In fact, as noted in comments by individual Governors and attorneys general, an examination of the legislative history reveals Congress’ intent to limit land in trust acquisitions to acquisitions for landless and virtually landless Indians and tribes. The Governors ask the department to establish its clear and unequivocal authority for the taking of land into trust before enacting this or a similar rule.
2. The rule fails to provide an effective role for states or localities affected by the acquisition of trust lands.
As stated in our previous comments, materials submitted by the tribes to the department in the application for trust land acquisition are not automatically shared with state and local governments. Rather, state and local governments must ask to “review” the application at a local BIA agency or area office and may only review these documents subject to restrictions imposed by the Freedom of Information Act, the Privacy Act, and the Trade Secrets Act. In contrast, comments from state and local governments are supplied as a matter of course to Indians and tribes. Moreover, there is apparently no requirement that the department consider the comments of states. These comments include such important issues as zoning, public safety, environmental and natural resource protection, and tax collection. Consideration of these materials should be mandatory and explicitly provided for in the rule.
3. The standards imposed by the rule for the taking of land into trust provide Indians and tribes with an unfair advantage over state and local governments.
§ 151.10 provides that land inside a reservation will be taken into trust if the Bureau of Indian Affairs (BIA) determines that the application facilitates tribal self-determination, economic development, Indian housing,
land consolidation, or natural resources protection. The rule places no evidentiary standard upon an applicant and this determination is apparently made in BIA’s discretion and without the imposition of an evidentiary standard.
If BIA determines that the application fulfills one of the above requirements, the land will, nevertheless, not be taken into trust “if the acquisition will result in severe negative impact to the environment or severe harm to the local government.” Evidence of harm must be “clear and demonstrable and supported in the record.”
While the rule fails to include any standard for a determination to take land into trust, evidence defeating the acquisition must be “clear and demonstrable and supported in the record.” The evidentiary standard imposed
on those opposing land acquisition, and the lack of an evidentiary standard for Indians and tribes, clearly favors a determination to take land into trust.
Similarly, in § 151.14 governing the acquisition of trust lands outside a reservation, BIA will approve the acquisition if a determination is made that the “acquisition provides meaningful benefits to the tribe that outweigh any demonstrable harm to the community (emphasis added).” Once again, those opposing land into trust acquisition must show “demonstrable harm,” while Indians and tribes are not subjected to the same standard.
4. The proposed rule relies on the department to act as the impartial arbiter of whether or not lands should be taken into trust, clearly a conflict of interest.
In addition to the more difficult standards required of state and local governments, the rule further harms states by permitting the final decision on land acquisition to be made by the department. The department’s inherent authority includes a responsibility to protect the interests of tribes, making it impossible for the department to avoid a conflict of interest or to exercise objective judgment in balancing the needs of tribes with the impact of land acquisition on states and local governments. Providing for a non-biased mediator or outside hearing officer would ensure a fair and
judicious process and benefit all of the parties.
5. The rule fails to analyze significant impacts on state and local governments, as required by Executive Order 13123 on federalism, and should be withdrawn.
In issuing this rule, the department has failed to comply with Executive Order 13132 on federalism. The rule simply provides that federalism implications do not “warrant” the preparation of a federalism assessment and continues by noting that the “loss of revenue overall is likely to be minimal.” No mention is made of the significant impact on the tax base of a given local government should property be removed from its tax rolls. Moreover, the rule fails to examine significant state and local impacts in zoning, land use, the environment and public safety.
On behalf of the nation’s Governors, I appreciate the opportunity to comment on these regulations. If I can be of assistance in your review of this matter, please do not hesitate to ask.
Raymond C. Scheppach Executive Director
National Governor’s Association
HUD Officials Accused in Report
By Matt Kelley, Associated Press Writer
April 13, 2001
WASHINGTON (AP) – Federal auditors contend that Clinton administration housing officials bowed to political pressure and approved a $9.5 million college dormitory for Alaska Natives that wasn’t necessary.
Department of Housing and Urban Development officials tried to block release of the report from the HUD inspector general last winter, but it was resubmitted to the Bush administration and made public March 30.
“It’s the first time I’ve ever run across where they’ve requested us not to release a report,” Frank Baca, head of the Seattle audit office that investigated the case, said Wednesday.
The audit said HUD officials approved the dorm at Alaska Pacific University “without any evidence that there was a need for the project.” Local HUD officials calculated that the 40-student dorm should cost no more than $2.3 million – less than a quarter of the amount approved.
Construction on the dorm has not started, and Baca said the project is on hold.
Investigators said political pressure, not evidence of need, helped the project win approval. Those who weighed in to support the dormitory included Sen. Ted Stevens, R-Alaska, chairman of the Senate Appropriations Committee.
Neither Stevens nor former Housing Secretary Andrew Cuomo responded to repeated requests for comment.
Last December, Deputy Housing Secretary Saul Ramirez wrote auditors asking that the report not be issued.
“We conclude that all findings are wrong,” Ramirez wrote. He said auditors misinterpreted federal regulations. His letter did not mention political pressure.
The dormitory is the latest in a series of problems that HUD’s inspector general has found in the agency’s housing programs for American Indians. Auditors have criticized HUD for building luxury homes for well-connected tribal members while thousands of other Indians live crammed into reservation shacks.
Last fall, auditors found that Washington state’s Lummi tribe had misspent up to $1.3 million of $12.4 million in HUD money it got from 1993 to 1999. A 1998 audit of Indian housing programs found that $14 million had been wasted or misspent.
In the March 30 audit criticizing the dormitory, auditors said HUD officials gave no reason for approving the $9.5 million project, even though agency memos “appear to argue against” it.
“We believe these improper actions occurred because HUD officials made decisions based primarily on political considerations,” auditors wrote.
In addition to Stevens, auditors said Carl Marrs, head of Cook Inlet Regional Inc., the Alaska Native corporation backing the dormitory, also met with Cuomo to lobby for the project, seeking it under programs for housing low income Indians.
Cook Inlet is one of 13 regional corporations created to manage Alaska Natives’ land and resources under a 1971 law Stevens wrote. The government money for the project is funneled through a nonprofit subsidiary, the Cook Inlet Housing Authority.
A CIRI official defended the project.
“The way to reduce the need for low-income housing is to educate Alaska Natives effectively so they don’t need it,” said Keith Sanders, CIRI’s general counsel. “I think that’s the message that was conveyed to the secretary and the senator.”