With All Deliberate Speed: Hearing Held on Deputy Interior Secretary Nominee

Despite high expectations, things have slowed down a little at the Interior Department. Interior Secretary Ken Salazar has been the only confirmed nominee, and not much is happening on Indian affairs. However, former Clinton Administration Deputy Interior Secretary David J. Hayes is set to assume the same position under President Obama.

Hayes, an attorney, has been a partner at the Washington office of Latham & Watkins, well known as one of the leading environmental, energy, and natural resource law firms in the world. At Latham & Watkins, Hayes’ practice focused on counseling, litigation, and transactions, and he was, in effect, a lobbyist.

With a promised focus on tribal economic development, Hayes told the Senate Entergy and Natural Resources Committee that he is looking forward to “working with Native American communities,” which “was one of the most rewarding aspects of the job” when he worked at Interior in the Clinton era.

Although after leaving office last time around, Hayes was accused of violating anti-“revolving door” policies designed to prevent too much cozying up between lobbyists and government, a bipartisan investigation did not evidence that to be the case. Still, the relationship did not sit too well with Senator John McCain. Hayes did not represent any tribal clients during his time at Latham and Watkins.

The Committee will vote on Wednesday.

For more, see here, and see the Committee hearing here.

Ken Salazar Tapped to Head Interior Department

President-elect Obama has tapped Senator Ken Salazar (D-CO) to head the Department of the Interior. Salazar is former director of the Colorado Department of Natural Resources and state attorney general. A first-term senator, he is a member of the Senate Energy and Natural Resources Committee.

Most of the attention given to the nomination will focus on Salazar’s moderate record on environmental, lands, and resources issues, which seems destined to please some and displease others. Virtually all commentators agree that Salazar is a reasonable and reasoned lawmaker, one who will be able to redeem Interior’s wild and wooly reputation as a lobbyists’ playground.

President-elect Obama sent an important signal, however, in introducing Salazar. In contrast to President Bush and his two nominees to head Interior (Gale Norton in 2000 and Dirk Kempthorne in 2006), both Obama and Salazar explicitly raised the subject of Indian Country.

This is significant because of the key role Interior plays in the federal government’s interactions with reservations and American Indian people. After all, the Interior Department oversees the Bureau of Indian Affairs and the Office of the Special Trustee for American Indians. Too, the Office of Indian Gaming Management is responsible for implementing gaming-related policy assigned to the BIA through IGRA and other federal laws.

Salazar has little experience working with tribes or on issues related to Indian Country. In accepting the nomination, however, he did state that he looks forward to addressing “challenges” facing American Indian communities.

Obama sent an additional, critically important signal in discussing how the federal government should approach tribes. “We need more than just a government-to-government relationship; we need a nation-to-nation relationship,” he said.

This tracks with Obama’s campaign-trail pronouncements affirming tribal sovereignty. If taken literally, it goes further than prior presidential statements recognizing a government-to-government relationship. Nations are cultural and social communities; Obama’s statement seems to recognize the specificity of tribal cultural and social identity.

Still to come are Obama’s choices for a new White House liaison on Indian Affairs (so new that it’s never been done before), a new Assistant Secretary for Indian Affairs, a new Special Trustee for American Indians, and so on. These choices may extend to new members of the National Indian Gaming Commission, as well.

For right now, Ken Salazar is the cabinet appointee to watch.

The Obama Transition Team’s special designee on Indian affairs, Keith Harper, along with Native American Rights Fund Executive Director John Echohawk, will continue to advise Obama and now, Salazar, on positions of importance to Indian Country. We’ll keep you posted.

For more on Salazar's nomination, see the New York Times' coverage or click here.

Who’s the Key to the Transition for Indian Country?

Keith Harper, a member of the Cherokee Nation of Oklahoma, is a Lead on Barack Obama’s Interior Department Review Team. This means he is in the process of shaping what the incoming administration’s Interior Department will look like in terms of personnel as well as ideological and political posture.

Harper is a partner and chairs the Native American Practice Group at a major D.C. law firm. He has been lead attorney on the never-ending Cobell trust land litigation, and was head of the D.C. office of the Native American Rights Fund (NARF). Before becoming a Review Team Lead, Harper advised Obama on Indian affairs throughout the campaign.

Those watching the transition expect an Interior Department whose posture toward federal Indian programs and federal Indian policy will change dramatically from that seen throughout Bush years. One might assume that American Indians will be more visible within the Department and in the Office of Indian Gaming Management, while the Department’s stance on key issues related to tribal gaming will change, as well. For instance, it is likely that the 2005 letter that changed the BIA’s policy on approving compacts for prospective gaming sites on land not yet held in trust will be up for review.

Expect more efforts to engage in government-to-government consultation with tribes, as well.

For now, there is little doubt that the man to watch is Harper.

More here and here.

U.S. Supreme Court to Hear Narragansett Case on November 3

On Monday, the U.S. Supreme Court will hear arguments in Carcieri v. Kempthorne, the case that is expected to settle, once and for all, the litigation between Rhode Island and the Narragansett Indian Tribe that began in 1975, when the Narragansett filed suit to recover tribal lands in Rhode Island.

The Court is expected to decide two key issues:

Can the Interior Secretary place in federal trust land that was privately purchased by Indian tribes recognized after the passage of the 1934 Indian Reorganization Act (IRA), thereby removing the land from state control?

If the Congress passes an Act that terminates previous Indian claims to land, is the Secretary of the Interior precluded from creating additional territory?

At bottom, the case should resolve a split in interpretation concerning whether the IRA applies only to the tribes that were recognized at the time of the Act's passage in 1934, or whether it extends to tribes recognized after that date, or who are recognized in the future. Rhode Island has argued that since the Narragansett were federally recognized in 1983, the Interior Secretary does not have authority to take land into trust for the tribe, because the federal government's authority to take land into trust comes from Section 5 of the IRA, which was written to apply to tribes "now within Federal Jurisdiction" at the time of the Act's passage in 1934. It may seem like a legal technicality, but the outcome will greatly impact the ability of tribes recognized after 1934 to acquire land, and in turn, to exercise governmental authority.

The case is relevant to Indian gaming, because that's the boogeyman to states: if a tribe can get land, then it can get a casino, and that casino might be another Foxwoods (never mind, of course, the economic benefits tribal gaming has brought to the state of Connecticut).

Read more here.

Intra-Agency Contestation in Interior Department (or, Interior Scolds NIGC)

A few weeks ago, we told you about the NIGC's May 19 Indian land opinion for the Poarch Band of Cree Indians in Alabama. State officials had challenged the legality of the tribe's Class II operation on a parcel of land near Montgomery. Five years passed. And then the NIGC concluded that the land in question met the "restored lands" exception.

As we noted then, it was interesting that the NIGC opinion was issued while the Interior Secretary continues to contemplate formal regulations governing newly acquired lands. As the acting general counsel noted at the start of her opinion letter, "I recognize that this decision, coming from me and at this time, is a bit unusual." Referencing the assistance provided by the Band and the delay in the issuance of the opinion, the letter states that it would be "significantly unfair" to require the Band to wait for new regulations.

Those new regulations were issued the very next day, May 20.

A few weeks later, David Bernhardt, the Interior Department Solicitor or chief legal officer (and the third ranking official in the Interior Department), wrote a lengthy letter to NIGC Chairman Phil Hogen, challenging the NIGC's Indian land opinion for the Poarch Band. The letter details the Solicitor's disagreement with the NIGC opinion. Bernhardt wrote,

"Given that the legal conclusions reached by [the NIGC's general counsel] are inconsistent with the legal views of the Office of the Solicitor, and that . . . NIGC has no statutory mandate to issue Indian lands opinions independently, the Secretary has directed me to inform you that he is invoking his authority . . . to review your decision . . . ."

The letter ends with the Solicitor's analysis of the NIGC's authority. Noting that decisions regarding whether land qualifies as "Indian lands" under IGRA may involve "whether a tribe is exercising jurisdiction and governmental authority over those lands; whether gaming is authorized under [IGRA's section] 2719; and a legal analysis of 25 C.F.R. Part 292," the letter concludes, "Resolution of these questions has not been delegated to the NIGC. Moreover, resolution of these issues relies on the particular expertise of the Solicitor's Office regarding overall Indian issues and not just Indian gaming concerns."

Oh, and by the way, Interior just announced that it was delaying the effective date for the new "Section 20" regulations until August 25, 2008.

New "Section 20" Regulations: The Best Interests Exception

So here we go with the “best interests” exception, otherwise known as the “two-part determination.” Follow this:

Under IGRA's section 2719, an exception is made to the general prohibition against gaming on newly acquired lands when gaming on the lands is "in the best interest of the tribe and its members, and would not be detrimental to the surrounding community." We call this the "best interests" exception; it also is referred to as the "Secretary's two-part determination." Specifically, IGRA requires that the Secretary of the Interior must first consult with the tribe, the state, local officials, and officials of nearby tribes, and then determine that gaming on the newly acquired lands would be in the best interest of the tribe and its members and would not be detrimental to the surrounding community. Importantly, the state's governor must concur in the Secretary's determination; as we've pointed out on numerous occasions, this is essentially veto power over tribal gaming under this exception. The consultation and governor's concurrence requirements create potential political obstacles to the likelihood that a tribe may conduct gaming on newly acquired lands under the "best interests" exception, as demonstrated by the fact that only three tribes currently operate gaming on newly acquired lands under this exception (the Keweenaw Bay Indian Community of the Lake Superior Bands of Chippewa Indians operate a casino in Choclay Township, outside of Marquette, Michigan; the Forest County Potawatomi operate a casino in Milwaukee, Wisconsin; and the Kalispell Tribe conducts gaming in Airway Heights, Washington).

The new regulations detail the process for approval of a "best interests" exception application. (Much of the process tracks what the BIA had followed under the "Checklist for Gaming Acquisitions and Two-Part Determinations Under Section 20 of IGRA" and the January 2008 "Guidance on Taking Off-Reservation Land Into Trust for Gaming Purposes.") A few things worth noting:

"Surrounding community" is defined in section 292.2 as including "local governments and nearby Indian tribes located within a 25-mile radius of the proposed gaming establishment." A local government or tribe further away may be included in the consultation process if the tribe shows that "its governmental functions, infrastructure or services will be directly, immediately and significantly impacted" by the gaming.

The tribe's application must describe the benefits and impacts of the gaming on the tribe and its members. Specifically, the regulations require information about projected gaming income, projected tribal employment, tourism, proposed uses of income, possible adverse impacts and plans to address the same, distance between the land and the tribe's core governmental functions, historical connections to the land, and "any other information" relevant to the Secretary's determination on this point.

Similarly, the tribe's application must include information about the detrimental impacts of the gaming on the surrounding community, such as environmental impacts; impacts on the social structure, infrastructure, services, housing, community character, and land use patterns; impacts on economic development, income, and employment; treatment of compulsive gambling; impacts on other tribes' traditional cultural connections to the land; the costs of the anticipated impacts; and "any other information" relevant to the Secretary's determination on this point.

Assuming the Secretary determines that gaming on the land would be in the best interest of the tribe and its members, and would not be detrimental to the surrounding community, then the Secretary will notify the state's governor and request her concurrence. If the governor concurs, then the tribe's application will be approved. The governor's written "non-concurrence" will prevent the tribe from using the land for gaming purposes, though the tribe may pursue a land-into-trust application for non-gaming purposes. Under the new regulations, the governor may also do nothing. If the governor issues neither a concurrence or a "non-concurrence" within a year (which may be extended by an additional 180 days) of the Secretary's notification and request for concurrence, then the Secretary's determination essentially will expire, requiring the tribe to start over.

Next time, some commentary on this exception from an article or two in which Kathryn is quoted.

New "Section 20" Regulations: Restored Lands Exception

Still more in our series on the National Indian Gaming Commission’s new “Section 20” regulations concerning gaming on newly acquired lands:

In section 2719(b), IGRA creates an exception for "lands are taken into trust as part of . . . (iii) the restoration of lands for an Indian tribe that is restored to Federal recognition." The new regulations, in 25 C.F.R. sections 292.7 to 292.12, set out the requirements for the restored lands exception.

The tribe must show that it was federally recognized, that its recognition was terminated or otherwise lost, and that it then subsequently was "restored" to federal recognition. Importantly, the tribe must also show that the land in question was part of a "restoration of lands" connected to the tribe's restored federal recognition. Each of these requirements is detailed in the new regulations.

The tribe's original federal recognition may be evidenced by U.S.-tribal treaty negotiations, organization under the Indian Reorganization Act (or the Oklahoma Indian Welfare Act), federal legislation, land acquired by the U.S. for the tribe's benefit, or other demonstration of the existence of a government-to-government relationship between the tribe and the U.S.

Termination of the tribe's recognition may be through federal termination legislation, federal restoration legislation that acknowledges prior recognition, or consistent federal records indicating termination of the government-to-government relationship with the tribe.

Restoration of the tribe's federal recognition may be by federal statute, the federal administrative acknowledgment process, or a federal court decision (in which the U.S. is a party) or a court-approved settlement agreement (entered into by the U.S.).

The status of lands as part of the "restoration of lands" varies with the mechanism of restoration of federal recognition. If restored via statute, then the statute must direct or authorize the Interior Secretary to take land into trust, and the land in question must be within the geographic area referenced by the statute. If no geographic area is specified in the restoration legislation, or if the tribe's federal recognition is restored via administrative acknowledgment or court decision, then the land in question must meet the requirements of section 292.12: the land must be located in the state (or states) where the tribe currently is located (as with the initial reservation exception, the tribe's current location is determined by the presence of tribal government and population centers); the tribe must have a "significant historical connection" to the land; and the tribe must have at least one "modern connection" to the land. For restored lands, modern connections include: within a "reasonable commuting distance" of the tribe's existing reservation, "near" the residences of a "significant number" of tribal members, within 25 miles of the tribe's headquarters or other government facilities, or "other factors [that] demonstrate the tribe's current connection to the land." Additionally, the tribe must show a "temporal connection" between the acquisition of the land and the restoration of the tribe's federal recognition, in the form of evidence that either the land was included in the tribe's first land-into-trust request following its restoration or the tribe requested that the land be taken into trust within 25 years of its restoration (this latter temporal connection also requires that the tribe is not operating gaming on other lands).

Up next: the Big One. We’ll explain the new regs concerning the “best interests” exception, otherwise known as the “two-part determination.”

New "Section 20" Regulations: Initial Reservation Exception

More on the National Indian Gaming Commission’s new “Section 20” regulations concerning gaming on newly acquired lands:

In section 2719(b), IGRA creates an exception for "lands are taken into trust as part of . . . (ii) the initial reservation of an Indian tribe acknowledged by the Secretary under the Federal acknowledgment process." In 25 C.F.R. section 292.6, the new regulations set forth four conditions for meeting the initial reservation exception.

First, as the statutory language indicates, the tribe must be federally recognized through the federal administrative tribal acknowledgment process (see 25 C.F.R. pt. 83). Second, the tribe must not already operate a gaming facility under IGRA's restored land exception. Third, the land must be proclaimed as a reservation under 25 U.S.C. section 467, and must be the first proclaimed reservation of the tribe following its federal recognition.

The fourth requirement applies to tribes without a proclaimed reservation on the effective date of the new regulations (June 19, 2008). For those tribes, in order for the land to be a proclaimed initial reservation, the land must be located in the state (or states) where the tribe currently is located. The tribe's current location is determined by the presence of tribal government and population centers. Additionally, the land must be "within an area" where the tribe has "significant historical connections," and at least one "modern connection," to the land. Modern connections include: "near" the residences of a "significant number" of tribal members; within 25 miles of the tribe's headquarters or other government facilities; or "other factors that establish the tribe's current connection to the land."

In the definitions section, section 292.2, "significant historical connection" is defined as either within the boundaries of the tribe's last treaty reservation, or documentation of the existence of tribal villages, burial grounds, occupancy, or subsistence use in the vicinity of the land.

Up tomorrow: the “restored lands” exception.

New "Section 20" Regulations: Settlement of a Land Claim Exception

The Interior Department's new "Section 20" regulations clarify when settlement lands will meet the exception to IGRA's general prohibition against gaming on newly acquired lands. In section 2719(b), IGRA creates an exception for "lands are taken into trust as part of . . . (i) a settlement of a land claim."

Under 25 C.F.R. section 292.5, the land must be either acquired through resolution of the claim via federal statute, a settlement agreement executed by the parties (including the U.S.), or a final court order or judicially enforceable settlement agreement. The last settlement mechanism, a court order or judicially enforceable settlement, must predate IGRA's enactment (October 17, 1988).

In section 292.2, the new regulations also limit "land claim" to claims arising under federal law ("United States Constitution, Federal common law, Federal statute or treaty"). Additionally, the claim must have accrued on or before IGRA's date of enactment or involve lands placed in trust or restricted status on or before the same date.

Not too much here that rocks the boat. Up tomorrow: the “initial reservation” exception.

Interior Issues New "Section 20" Regulations: Big News, Big Implications

In section 2719 (or, as it's often called, "Section 20," in reference to the numbering of the statutory sections in bill form), the federal Indian Gaming Regulatory Act (IGRA) sets forth a general prohibition against tribal gaming on trust lands acquired after IGRA's date of enactment:

Except as provided in subsection (b) of this section, gaming regulated by this chapter shall not be conducted on lands acquired by the Secretary in trust for the benefit of an Indian tribe after October 17, 1988 . . . .

Such lands are commonly referred to as "newly acquired" or "after acquired" lands. There are, however, a number of general and state- and tribe-specific exceptions.

These exceptions, though relatively rarely applied, are political lightning rods, giving rise to charges of "reservation shopping." For more than eight years, the Interior Department has been working on regulations interpreting section 2719. (Since 1994, the BIA's application of the section 2719 exceptions has been guided by a "Checklist for Gaming Acquisitions and Two-Part Determinations Under Section 20 of IGRA" issued by the BIA's Office of Indian Gaming Management. A checklist, of course, doesn’t carry the force of law or even of formal policy.)

In late May, Interior published its new "Section 20" regulations in the Federal Register. This is big news for a whole bunch of tribes. In the next few posts, we'll walk you through the new regulations (25 C.F.R pt. 292), so stay tuned.