GM 15-074

Compromise Carcieri-Fix Bill: The Interior Improvement Act

Senate Committee on Indian Affairs Chairman Barrasso (R-WY) introduced S 1879, the Interior Improvement Act, on July 28, 2015. S 1879 is a compromise bill that includes the two main objectives of Indian Country for a Carcieri-fix: (1) making clear that the Secretary of the Interior has the authority under the Indian Reorganization Act (IRA) to take land into trust for any federally recognized tribe; and (2) ratifying and confirming prior land-into-trust decisions. S 1879 also includes certain provisions pushed for by county and local governments. These provisions would apply to applications to take off-reservation land into trust and focus on notice to and comment opportunity by local governments, encouraging the use of cooperative agreements, and timing for decisions on applications.

S 1879 would instill timelines for providing notice of applications to contiguous jurisdictions and the public, and for comment on the applications from same. “Contiguous jurisdiction” is defined by the bill as “any county, county equivalent, or Indian tribe with authority and control over the land contiguous to the land under consideration in an application.” S 1879 would also require the Secretary to publish her decision on an application in the FEDERAL REGISTER and post it on Interior’s website not later than five days after such final decision is made.

S 1879 would encourage, but not require, applicants to enter into cooperative agreements with contiguous jurisdictions, which, per the bill, may include terms for mitigation, changes in land use, dispute resolution, and other terms the parties deem appropriate. Per S 1879, if the applicant submits a cooperative agreement, the Secretary shall move forward with a decision on the application on an expedited basis. S 1879 states that the Secretary is to issue a final decision on a complete application not later than (1) 60 days after the completion of the National Environmental Policy Act (NEPA) review process or (2) if such process is not applicable, 30 days after the Secretary receives a complete application. If the Secretary fails to issue a final decision by these timelines, S 1879 states that the application shall be deemed approved and treated as a final decision.

Under the bill, if the applicant does not submit a cooperative agreement, the Secretary shall issue a written determination of mitigation not later than 30 days after receiving a complete application. Such determination shall describe whether any economic impacts on the contiguous jurisdiction have been mitigated and, per S 1879, the Secretary shall consider the determination of mitigation when making a final decision to approve or deny an application.

S 1879 states that the lack of a cooperative agreement shall not prejudice an application if the Secretary determines that there is no agreement due to the failure of a contiguous jurisdiction to work in good faith to reach an agreement.

Under S 1879, an applicant or contiguous jurisdiction may seek review of a final decision and may seek review in a United States district court only after exhausting all available administrative remedies. The bill also sets forth a process for the Secretary to consult with tribes to implement these new provisions of the IRA and would require the Secretary to modify existing regulations, guidance, rules and policy through rule-making to carry out the provisions.

Conference Call with SCIA and ASIA Washburn

The National Congress of American Indians (NCAI) facilitated a conference call on October 1, 2015, for tribal leaders with Assistant Secretary for Indian Affairs (ASIA) Washburn and Senate Committee on Indian Affairs Majority Staff Director Andrews to discuss S 1879, the Interior Improvement Act. NCAI had circulated the attached FAQs document about S 1879 and arranged the call as an opportunity for tribal leaders to ask additional questions about the legislation.

Staff Director Andrews conveyed that the Committee has received lots of feedback on the legislation from tribes, counties and directly from Senators, and that S 1879 is a top priority for the Committee. He said a manager’s amendment to the bill is being developed, which is expected to be considered at an upcoming mark-up of the bill. Such mark-up has not yet been scheduled.

ASIA Washburn conveyed that the Department of Interior has no official position on the bill, but it is working with the Committee to address certain technical issues.

A central issue raised by tribal leaders and representatives was the bill’s encouragement of cooperative agreements between tribes and counties and the expedited processing of trust applications that have such accompanying agreements. ASIA Washburn noted that currently, as a practical matter, applications from tribes with agreements with the counties move faster in the land-into-trust process. He added that the Obama Administration will continue to try to move all applications. Mr. Andrews underscored that S 1879 does not confer veto power to the counties. Applications without cooperative agreements would still be processed but without the expedited review provided by S 1879 for applications with cooperative agreements.

Letter from Senators Feinstein and Roberts to the SCIA

Senator Feinstein (D-CA) and Senator Roberts (R-KS) sent a letter dated October 1, 2015, to Committee Chairman Barrasso and Vice-Chairman Tester (D-MT) (attached) stating that while the Committee is considering legislative “fixes” to the Carcieri decision, it can and should consider a comprehensive overhaul that not only remedies Carcieri, but also reforms how Interior regulates off-reservation gaming.

The Senators assert that “reservation shopping” causes conflicts with and burdens local communities. They call for amendments to the Indian Gaming Regulatory Act (IGRA) concerning off-reservation gaming to be included in S 1879 that: (1) requires a tribe to demonstrate, and the Secretary to confirm, a substantial and direct aboriginal connection; (2) requires a tribe to demonstrate that it maintains a modern connection with the proposed land to be acquired; (3) limits changes in use of the land; (4) provides for meaningful notice and comment beyond just bordering counties; and (5) requires the tribe to agree to enforceable mitigation agreements.

NYSAC Resolution Opposing S 1879

The New York State Association of Counties (NYSAC) passed a resolution opposing S 1879 (attached). It calls upon the New York Congressional delegation to strongly oppose the bill. The resolution sets forth the NYSAC policy that any “Carcieri fix” must include a provision requiring local municipal consent for land to be taken into trust from the State of New York.

Please let us know if we may provide additional information regarding S 1879, the Interior Improvement Act.