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Calendar No. 514
114th Congress } { Report
SENATE
2d Session } { 114-275
======================================================================
INTERIOR IMPROVEMENT ACT
_______
June 9, 2016.--Ordered to be printed
_______
Mr. Barrasso, from the Committee on Indian Affairs, submitted the
following
R E P O R T
together with
MINORITY VIEWS
[To accompany S. 1879]
The Committee on Indian Affairs, to which was referred the
bill (S. 1879) to improve processes in the Department of the
Interior, and for other purposes, having considered the same,
reports favorably thereon with an amendment, and recommends
that the bill, as amended, do pass.
Purpose
S. 1879 would restore the authority of the Secretary of the
Department of the Interior (Secretary) to take land into trust
for all federally recognized tribes, reaffirm the status of
Indian trust lands already held in trust, and improve existing
land into trust processes and procedures.
Background
On February 24, 2009, the U.S. Supreme Court ruled in
Carcieri v. Salazar that the Secretary of the Interior did not
have the authority to take land into trust for the Narragansett
Tribe under the Indian Reorganization Act of 1934\1\ (IRA)
because the Tribe was not ``under Federal jurisdiction'' when
the IRA was enacted in 1934.\2\ While the Court's holding
applied specifically to the Narraganset Tribe, the Carcieri
decision has had a far greater impact on tribes, states and
local jurisdictions across the country. The Court's decision in
Carcieri has given rise to many concerns, litigation and
uncertainty.
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\1\Indian Reorganization Act of 1934, 25 U.S.C. Sec. 465 (1934).
\2\Carcieri v. Salazar, 555 U.S. 379 (2009).
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The reach of Carcieri has extended far beyond the
Narragansett Tribe, as it rests on a limiting interpretation of
the primary statute under which the Secretary derives authority
to take land into trust for the benefit of Indian tribes. In
particular, ``[t]he decision appears to call into question the
ability of the [Secretary] to take land into trust for any
recently recognized tribe unless the trust acquisition has been
authorized by legislation other than the 1934 Indian
Reorganization Act (IRA) or the tribe can show that it was
``under Federal jurisdiction'' in 1934.''\3\
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\3\M. Maureen Murphy, Congressional Research Service, Carcieri v.
Salazar: The Secretary of the Interior May Not Acquire Trust Land for
the Narragansett Indian Tribe Under 25 U.S.C. Section 465 Because That
Statute Applies to Tribes ``Under Federal Jurisdiction'' in 1934, Apr.
22, 2015 (RL34521).
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The Carcieri decision opened the door to significant
litigation, creating further uncertainty around the status of
Indian trust lands.\4\ One such case is Match-E-Be-Nash-She
Wish Band of Pottawatomi Indians v. Patchak, which involved a
challenge to the Secretary's authority to acquire trust land
for tribes that were not federally recognized in 1934.\5\
Ultimately, the Supreme Court relied on the merits of a six-
year statute of limitations in the Federal Administrative
Procedure Act for challenges to final agency actions to rule
that the Federal government's sovereign immunity under the
Quiet Title Act did not bar challenges to any decision of the
Secretary to take land into trust once title passed to the
United States, and that challenges to such final agency action
may be brought within six years.\6\
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\4\See e.g., Id.; Jane M. Smith, Congressional Research Service,
Ninth Circuit Opinion Suggests Carcieri v. Salazar May Provide a Basis
for Challenging Indian Trust Land Status, Feb. 12, 2014 (Legal
Sidebar).
\5\Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians v. Patchak,
567 U.S.__(2012); 132 S. Ct. 2199 (2012).
\6\Id.
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In response to Patchak, the Bureau of Indian Affairs (BIA)
revised its Indian trust land acquisition regulations with
language that is often referred to as the ``Patchak Patch''.\7\
This language would limit a party's administrative appeal
period to provide greater certainty to Indian tribes when
developing on their lands.
---------------------------------------------------------------------------
\7\Land Acquisitions: Appeals of Land Acquisition Decisions, 78
Fed. Reg. 67,928 (Nov. 13, 2013) (codified at 25 C.F.R. pt. 151).
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Other action by the Department of the Interior
(Department), including taking land into trust pursuant to a
Department Solicitor's Opinion, has exacerbated legal issues
associated with Carcieri and caused related litigation. The
Carcieri Court construed the IRA in a manner that would limit
the means by which the Secretary may exercise the authority to
take land into trust. The Solicitor's Opinion arguably
conflicts with this limiting principle by applying a far more
expansive interpretation.
It is clear the Supreme Court did not define the meaning of
the phrase ``under federal jurisdiction'' in its Carcieri
decision.\8\ Instead, the Court left this question to Congress
to address through the creation of law, pursuant to Congress'
plenary authority over Indian tribes.\9\ Nonetheless, on March
12, 2014, the Department of the Interior Office of the
Solicitor issued a Solicitor's Opinion (M-37029) describing how
the Secretary would be able to determine whether an Indian
tribe was ``under federal jurisdiction'' in 1934.\10\ This
document, which includes a two-part Secretarial determination
for determining whether a tribe was ``under federal
jurisdiction'' in 1934 and is therefore eligible to have land
taken into trust by the Secretary on their behalf, has been
used by the Department as the legal justification or basis to
take land into trust for Indian tribes recognized after
1934.\11\ This two-part test created by the Department of
Interior has only provided a temporary fix and has been subject
to significant litigation.
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\8\Carcieri v. Salazar, 555 U.S. 379 (2009).
\9\U.S. v. Lara, 541 U.S. 193, 200-02 (2004); U.S. v. Jicarilla
Apache Nation, 564 U.S. 162, 175 (2011).
\10\Memorandum from Hilary C. Tompkins, Solicitor, U.S. Dep't of
the Interior, on the Meaning of ``Under Federal Jurisdiction'' for
Purposes of the Indian Reorganization Act (Mar. 12, 2014) (M-37029)
available at https://www.doi.gov/sites/doi.opengov.ibmcloud.com/files/
uploads/M-37029.pdf.
\11\Id.
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The existing administrative process for taking land into
trust is arduous and can take many years to complete.\12\ The
Department currently uses a sixteen-step process to evaluate
discretionary land into trust applications for Indian tribes
under the IRA.\13\ Some Indian tribes have been waiting years
for a decision because the Interior must conduct a Carcieri
analysis and determine if the Indian tribe is eligible to
request that the land be taken into trust.\14\ According to the
Department, the two-step analysis established by the
Solicitor's Opinion in 2014 has added yet another layer of
bureaucracy, resulting in further delays and costs for all
parties involved in the acquisition process.\15\
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\12\Addressing the Costly Administrative Burdens and Negative
Impacts of the Carcieri and Patchak Decisions: Oversight Hearing before
the S. Comm. on Indian Affairs, 112th Cong. (2012).
\13\25 C.F.R. pt. 151.
\14\U.S. Dep't of the Interior, Bureau of Indian Affairs, Office of
Trust Services, Acquisition of Title to Land Held in Fee or Restricted
Fee Status (Fee-to-Trust Handbook) at 15 (2014).
\15\A Path Forward: Trust Modernization & Reform for Indian Lands:
Oversight Hearing before the S. Comm. on Indian Affairs, 114th Cong.
(2015) (written testimony of Kevin Washburn, Assistant Secretary--
Indian Affairs).
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The Department's current trust acquisition process also
lacks transparency and lacks meaningful opportunities for
stakeholders to voice their concerns, share ideas or even
collaborate prior to the Department taking final action on an
application. This has left many stakeholders with few
alternatives to filing suit in court to voice their concerns or
protect their interests.
The Court's Carcieri decision has been devastating to all
parties involved, from both a financial and a community
perspective. This situation has strained local relationships
among tribes and between tribes and counties, and has
significantly increased uncertainty and litigation. Among the
many other costs associated with the status quo are innumerable
lost opportunities for economic development, job creation and
prosperity.
Another critical concern is that the Carcieri decision and
the Department's subsequent actions have had the practical
effect of undermining tribal sovereignty and, in essence,
creating two classes of tribes--tribes that are eligible for
discretionary acquisitions under the IRA and tribes that are
not.\16\
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\16\Addressing the Costly Administrative Burdens and Negative
Impacts of the Carcieri and Patchak Decisions: Oversight Hearing before
the S. Comm. on Indian Affairs, 112th Cong. (2012).
---------------------------------------------------------------------------
Only Congress can finally bring the clarity needed to stop
and reverse the fallout of Carcieri. S. 1879 would directly
resolve the legal questions at issue and incentivize local
cooperation between tribes and contiguous jurisdictions, which
is greatly needed.
Need for Legislation
Since the Court's Carcieri decision in 2009, Indian tribes
have been working with Congress to pass a ``legislative fix''
to restore the ability of the Secretary to take land into trust
for all federally recognized Indian tribes. This Committee has
held various hearings and meetings on the decision, impacts of
the decision on tribes, and proposals to address the
decision.\17\ Although numerous legislative proposals have been
introduced to ``fix'' the Carcieri decision, no bill has
successfully passed through both Chambers of Congress.\18\
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\17\The Carcieri Crisis: The Ripple Effect on Jobs, Economic
Development and Public Safety in Indian Country: Oversight Hearing
Before the S. Comm. on Indian Affairs, 112th Cong. (2011); Addressing
the Costly Administrative Burdens and Negative Impacts of the Carcieri
and Patchak Decisions: Oversight Hearing Before the S. Comm. on Indian
Affairs, 112th Cong. (2012); Carcieri: Bringing Certainty to Trust Land
Acquisitions: Oversight Hearing Before the S. Comm. on Indian Affairs,
113th Cong. (2013); The Carcieri v. Salazar Supreme Court Decision and
Exploring a Way Forward: Roundtable Discussion Before the S. Comm. on
Indian Affairs, 114th Cong. (2015).
\18\See LEGISLATIVE HISTORY section below.
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With the goal of finding a viable solution to finally
resolve the Carcieri problem, the Senate Indian Affairs
Committee took a fresh and inclusive approach to evaluating
pertinent issues and forming a legislative solution. Through
this process, the Committee learned that a ``clean fix'' in
isolation is not viable for many reasons. Instead, a workable
solution would include both ``clean fix'' language and language
to improve the Department's underlying land into trust process.
The Committee also identified language that could not be
included in legislation without losing support from key
stakeholders.\19\
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\19\For instance, S. 1879 does not amend the Indian Gaming
Regulatory Act of 1988 or include carve outs for any state, tribal or
special interest. It also does not include a ``county veto'' that would
enable counties or other stakeholders to indefinitely block an Indian
tribe's application to take land into trust. S. 1879 also does not
mandate contracting or reciprocal notice-and-comment procedures between
local jurisdictions and tribes, but does encourage local cooperation.
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S. 1879 is the product of the collaborative, solutions-
based approach described above, which involved substantial
discussion, deliberation, public feedback and negotiation by
diverse stakeholders. S. 1879 is unique in that it addresses
the longstanding problems associated with Carcieri and the
Department's Part 151 land acquisition process, and at the same
time avoids language that would frustrate cooperation.
Specifically, S. 1879 would solve problems flowing from the
Court's Carcieri decision by restoring the Secretary's
authority to take land into trust for all federally recognized
tribes and reaffirming the status of lands already held in
trust for Indian tribes. S. 1879 would also improve existing
Part 151 regulations by encouraging local cooperation for off-
reservation acquisitions\20\ and codifying key portions of the
Department's off-reservation land into trust regulations and
guidance.\21\ The bill does not include special carve-outs,
gaming prohibitions, county or state vetoes, or other poisonous
language that would undermine tribal sovereignty or otherwise
weaken the broad coalition of support for this bill.
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\20\For instance, S. 1879 promotes local cooperation by requiring
consultation with Indian tribes; recommending the use of cooperative
agreements and reciprocal notice and comment procedures; offering a
fast-track application process for tribes with cooperative agreements;
providing a good faith protection for tribes without cooperative
agreements; allowing stakeholders to voice and address concerns without
first resorting to the courts.
\21\See e.g., meaning of the words ``contiguous'' (see 25 C.F.R.
pt. 151); application components (see 25 C.F.R. pt. 151.09-.11); notice
and comment associated with applications and Notice of Decision (see 25
C.F.R. pt. 151.11(d) and 25 C.F.R. pt. 151.12); review of final agency
actions (see 25 C.F.R. pt. 151.12); exhausting administrative remedies
(see 25 C.F.R. pt. 151.12); encouraging mitigation and use of
cooperative agreements (see Fee-to-Trust Handbook at 23).
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Failure to pass S. 1879 will result in continued and
additional litigation and uncertainty, with substantial
financial and societal costs to tribes, counties and other
governments. While S. 1879 will not resolve all litigation and
uncertainty relating to Indian trust land acquisitions, it will
reduce it significantly. It will also lay the foundation for
improved local relations between tribes, and among tribes,
counties and other governmental entities. All parties involved
can benefit from the economic and other opportunities rooted in
such cooperation.
Legislative History
Sixteen bills have been introduced to address the Supreme
Court's Carcieri decision.\22\ Most of these bills can be
characterized as ``clean fix'' or ``Carcieri fix'' bills. These
terms are typically used to describe a stand-alone bill that
reaffirms (1) the Secretary's authority to take land into trust
for tribes that are federally recognized after 1934, and (2)
the trust status of land already taken into trust by the
Secretary on behalf of tribes recognized after 1934.\23\ No
such bill has successfully passed both Chambers of Congress.
For various reasons, other bills relating to the land into
trust acquisitions have also failed to garner support.
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\22\Carcieri v. Salazar, 555 U.S. 379 (2009).
\23\There is no formal definition of what constitutes a ``clean
fix'' or ``Carcieri fix'' bill, nor is there exact language that must
be included or excluded from a bill in order for it to fall into this
category.
---------------------------------------------------------------------------
Interior Improvement Act
Chairman Barrasso introduced the Interior Improvement Act,
S. 1879, on July 28, 2015. Unlike other bills, S. 1879 takes a
fresh and practical approach to addressing the Carcieri
decision. It maintains the core elements of a ``Carcieri fix''
and also improves the existing trust land acquisition process.
S. 1879 also takes pieces and policy from past efforts to
reform the land into trust process.
S. 1879 was referred to the Senate Committee on Indian
Affairs and a committee business meeting was duly held on
December 2, 2015. The bill was ordered to be reported
favorably, as amended by an amendment in the nature of a
substitute offered by Chairman Barrasso.
Other legislative activity
111th Congress. On September 24, 2009, Senator Byron Dorgan
[D-ND] introduced S. 1703, A bill to amend the Act of June 18,
1934, to reaffirm the authority of the Secretary of the
Interior to take land into trust for Indian tribes. Senator
Daniel Akaka [D-HI], Senator Max Baucus [D-MT], Senator Jeff
Bingaman [D-NM], Senator Al Franken [D-MN], Senator Daniel
Inouye [D-HI], Senator Jon Tester [D-MT], and Senator Tom Udall
[D-NM] were the original co-sponsors. 5 additional Senators co-
sponsored S. 1703 at a later date. The bill was referred to the
Senate Committee on Indian Affairs and a business meeting was
duly held on December 17, 2009. The bill was ordered to be
reported favorably, as amended. On August 5, 2010, S. 1703 was
reported, as amended, by Senator Dorgan and placed on the
Senate Calendar. No further action was taken on S. 1703.
On October 1, 2009, Representative Tom Cole [R-OK-4]
introduced H.R. 3697, To amend the Act of June 18, 1934, to
reaffirm the authority of the Secretary of the Interior to take
land into trust for Indian tribes. There were 12 co-sponsors to
H.R. 3697. The bill was referred to the House Committee on
Natural Resources and a legislative hearing was held on
November 4,2009. H.R. 3697 is an identical companion bill to S.
1703. No further action was taken on H.R. 3697.
On October 7, 2009, Representative Dale E. Kildee [D-MI-5]
introduced H.R. 3742, To amend the Act of June 18, 1934, to
reaffirm the authority of the Secretary of the Interior to take
land into trust for Indian tribes. 44 Representatives co-
sponsored H.R. 3742. The bill was referred to the House
Committee on Natural Resources and a legislative hearing was
held on November 4, 2009. H.R. 3742 is identical to H.R. 3697
and S. 1703 except for the addition to include ``tribe'' with
``Indian tribe'' as a term to define who the Secretary can
acknowledge as an Indian tribe. No further action was taken on
H.R 3742.
112th Congress. On March 29, 2011, Representative Dale E.
Kildee [D-MI-5] introduced H.R. 1234, To amend the Act of June
18, 1934, to reaffirm the authority of the Secretary of the
Interior to take land into trust for Indian tribes. 30
Representatives co-sponsored H.R. 1234. The bill was referred
to the House Subcommittee on Indian and Alaska Native Affairs
and a hearing on the bill was a hearing held on July 12, 2011.
No further action was taken on H.R. 1234.
On March 30, 2011, Senator Daniel K. Akaka [D-HI]
introduced a companion bill S. 676, A bill to amend the Act of
June 18, 1934, to reaffirm the authority of the Secretary of
the Interior to take land into trust for Indian tribes. The
bill was originally co-sponsored by Senator Kent Conrad [D-ND],
Senator Al Franken [D-MN], Senator Daniel K. Inouye [D-HI],
Senator Tim Johnson [D-SD], Senator John Kerry [D-MA], Senator
Jon Tester [D-MT] and Senator Tom Udall [D-NM]. Senator Max
Baucus [D-MT] and Senator Debbie Stabenow [D-MI] were later
added as co-sponsors. The bill was referred to the Senate
Committee on Indian Affairs and a business meeting was duly
held on April 7, 2011. The bill was ordered to be reported with
amendments favorably. On May 17, 2012, S. 676 was reported by
Senator Akaka with an amendment and placed on the Senate
Calendar. No further action was taken on S. 676.
On March 31, 2011, Representative Tom Cole [R-OK-4]
introduced H.R. 1291, To amend the Act of June 18, 1934, to
reaffirm the authority of the Secretary of the Interior to take
land into trust for Indian tribes, and for other purposes. 10
Representatives co-sponsored H.R. 1291. The bill was referred
to the House Subcommittee on Indian and Alaska Native Affairs
and a hearing was held on July 12, 2011. H.R. 1291 and H.R. 279
(113th Cong.) are similar, H.R. 279 differs in that it removes
subsection ``(a)'' of Section 1 of the bill. No further action
was taken on H.R. 1291.
113th Congress. On January 15, 2013, Representative Tom
Cole [R-OK-4] introduced H.R. 279, To amend the Act of June 18,
1934, to reaffirm the authority of the Secretary of the
Interior to take land into trust for Indian tribes, and for
other purposes. There were 37 co-sponsors to H.R. 279. The bill
was referred to the House Subcommittee on Indian and Alaska
Native Affairs on January 31, 2013. H.R. 279 is identical to
H.R. 249 (114th Cong.) and differs from H.R. 1291 (112th Cong.)
in that subsection ``(a)'' of Section 1 (as found in H.R. 1291)
is omitted. No further action was taken on H.R. 279.
On February 13, 2013, Representative Edward J. Markey [D-
MA-5] introduced H.R. 666, To amend the Act of June 18, 1934,
to reaffirm the authority of the Secretary of the Interior to
take land into trust for Indian tribes. The bill had 10
original co-sponsors: Rep. Xavier Becerra [D-CA-34], Rep. Eni
Faleomavaega [D-AS], Rep. Raul Grijalva [D-AZ-3], Rep. Colleen
Hanabusa [D-HI-1], Rep. Daniel Kildee [D-MI-5], Rep. Ben Lujan
[D-NM-3], Rep. Betty McCollum [D-MN-4], Rep. Gwen Moore [D-WI-
4] Rep. Frank Pallone [D-NJ-6], and Rep. Niki Tsongas [D-MA-3].
23 Representatives were later added as co-sponsors to H.R. 666.
The bill was referred to the House Subcommittee on Indian and
Alaska Native Affairs on February 22, 2013. H.R. 666, H.R. 1234
(112th Cong.) and H.R. 407 (114th Cong.) are identical bills,
and only minor differences exist between these bills and S. 676
(112th Cong.). No further action was taken on H.R. 666.
On March 31, 2014, Senator Jon Tester [D-MT] introduced S.
2188, A bill to amend the Act of June 18, 1934, to reaffirm the
authority of the Secretary of the Interior to take land into
trust for Indian tribes. The 7 original co-sponsors included:
Senator Mark Begich [D-AK], Senator Martin Heinrich [D-NM],
Senator Heidi Heitkamp [D-ND], Senator Jerry Moran [R-KS],
Senator Patty Murray [D-WA], Senator Tom Udall [D-NM], and
Senator John Walsh [D-MT]. 6 Senators were later added as co-
sponsors to S. 2188. The bill was referred to the Senate
Committee on Indian Affairs. On May 7, 2014, the Committee held
a legislative hearing on S. 2188. On June 11, 2014, a business
meeting was duly held and the bill was ordered to be reported
with an amendment favorably. Senator Tester reported the bill
on August 26, 2014 and was placed on the Senate Calendar. No
further action was taken on S. 2188.
114th Congress. On January 9, 2015, Representative Tom Cole
[R-OK-4] introduced H.R. 249, To amend the Act of June 18,
1934, to reaffirm the authority of the Secretary of the
Interior to take land into trust for Indian tribes, and for
other purposes. 37 Representatives were later added as co-
sponsors to H.R. 249. The bill was referred to the House
Subcommittee on Indian, Insular, and Alaska Native Affairs on
March 2, 2015. This bill is Identical to H.R. 279 (113th Cong.)
but differs from H.R. 1291 (112th Cong.) in that subsection
``(a)'' of Section 1 (as found in H.R. 1291) is omitted.
On January 20, 2015, Representative Betty McCollum [D-MN-4]
introduced H.R. 407, To amend the Act of June 18, 1934, to
reaffirm the authority of the Secretary of the Interior to take
land into trust for Indian tribes. The bill was originally co-
sponsored by Representative Tom Cole [R-OK-4] and 8
Representatives being added as co-sponsors at a later date. The
bill was referred to the House Subcommittee on Indian, Insular,
and Alaska Native Affairs on March 2, 2015. This bill is
identical to H.R. 1234 (112th Cong.) and H.R. 666 (113th
Cong.), and similar to S. 676 (112th Cong.).
On March 12, 2015, Senator Jon Tester [D-MT] with 7 co-
sponsors introduced S. 732, A bill to amend the Act of June 18,
1934, to reaffirm the authority of the Secretary of the
Interior to take land into trust for Indian tribes. The bill
was referred to the Senate Committee on Indian Affairs on March
12, 2015. This bill is similar to other legislation that has
previously been introduced.
On March 24, 2015, the Senate Committee on Indian Affairs
held a round table discussion on The Carcieri v. Salazar
Supreme Court Decision and Exploring a Way Forward with key
stakeholders. The Senate Committee on Indian Affairs also held
an oversight hearing on A Path Forward: Trust Modernization &
Reform for Indian lands on July 8, 2015, where S. 1879 was
discussed in concept by the witnesses and Committee members.
On July 21, 2015, Representative Tom Cole [R-OK-4] and 41
co-sponsors introduced H.R. 3137, To reaffirm the trust status
of land taken into trust by the United States pursuant to the
Act of June 18, 1934, for the benefit of an Indian tribe that
was federally recognized on the date that the land was taken
into trust, and for other purposes. There were 17 original co-
sponsors: Rep. Dan Benishek [R-MI-1], Rep. Bradley Byrne [R-AL-
1], Rep. Tony Cardenas [D-CA-29], Rep. Ruben Gallego [D-AZ-7],
Rep. Raul Grijalva [D-AZ-3], Rep. Derek Kilmer [D-WA-6], Rep.
Michelle Lujan Grisham [D-NM-1], Rep. Ben Lujan [D-NM-3], Rep.
Betty McCollum [D-MN-4], Rep. Gwen Moore [D-WI-4], Rep.
Markwayne Mullin [R-OK-2], Rep. Patrick Murphy [D-FL-18], Rep.
Raul Ruiz [D-CA-36], Rep. Pete Sessions [R-TX-32], Rep. Michael
Simpson [R-ID-2], Rep. Mark Takai [D-HI-1], and Rep. Debbie
Wasserman Schultz [D-FL-23]. The bill was subsequently
sponsored by 29 others. The bill was referred to the House
Subcommittee on Indian, Insular, and Alaska Native Affairs on
August 4, 2015.
On August 4, 2015, Senator Jerry Moran [R-KS] introduced S.
1931, A bill to reaffirm that certain land has been taken into
trust for the benefit of certain Indian tribes. Senator Jon
Tester [D-MN] originally co-sponsored the bill and Senator Al
Franken [D-MN] co-sponsored it at a later date. The bill was
referred to the Senate Committee on Indian Affairs on August 4,
2015. This bill is unique in that it would omit part one of the
``Carcieri fix,'' and reaffirm the trust status of land taken
into trust on behalf of certain tribes. While this approach
might benefit some tribes, it would not resolve the fundamental
questions, concerns, and litigation surrounding the authority
of the Secretary to take land into trust for tribes recognized
after 1934.
On March 3, 2016, Senator Jon Tester [D-MT] introduced S.
2636, the Reservation Land Consolidation Act of 2016. There are
no co-sponsors to the bill. There is no House companion bill.
S. 2636 was referred to the Senate Committee on Indian Affairs
on March 3, 2016 where no further action has taken place on the
bill.
Section-By-Section Analysis
Section 1--Short title
Section 1 cites this Act as the ``Interior Improvement
Act.''
Section 2--Definitions
Subsection 2(a) clarifies that the Secretary of the
Interior may take land into trust for all federally recognized
tribes by amending section 19 of the Act of June 18, 1934
(commonly known as the Indian Reorganization Act or the IRA)
(25 U.S.C. 479).
Subsection 2(b) ratifies and confirms existing trust
acquisitions made pursuant to the IRA, thereby eliminating the
potential for legal challenges based on whether an Indian tribe
was federally recognized or under Federal jurisdiction on June
18, 1934.
Section 3--Land acquisition applications
Section 3 amends the IRA by inserting section 5A after
section 5 of the IRA. The title of section 5A is ``Land
Acquisition Applications.''
Section 5A improves the application process for
discretionary off-reservation acquisitions.
Subsection 5(a) defines the following terms for the
purposes of this section: (1) applicant; (2) application; (3)
contiguous; (4) contiguous jurisdiction; (5) cooperative
agreement; (6) county and county equivalent; (7) Department;
(8) determination of mitigation; (9) explanation of final
decision; (10) final decision; (11) impacts; (12) Indian tribe;
(13) mitigate; (14) notice of final decision; and (15)
Secretary.
Subsection 5(b) addresses the submission of applications
for discretionary off-reservation acquisitions.
Subsection 5(b)(1) limits the scope of this section to
applications for discretionary acquisitions of off-reservation
fee land or restricted land. It also allows Indian tribes and
individual Indians with a pending application to opt into the
expedited process established under this section, provided that
the pending application is supplemented as necessary to comply
with the application requirements of this section.
Subsection 5(b)(2) codifies application submission and
content requirements for discretionary off-reservation
acquisitions. Listed requirements track current regulations and
guidance of the Department of the Interior (Department).
Subsection 5(c) specifies statutory notice and comment
requirements.
Subsection 5(c)(1) requires the Secretary to make all
initial applications available to the public on the
Department's website within 30 days of receipt of an initial
application, subject to Federal privacy laws. The Secretary
must also provide notice by certified mail to contiguous
jurisdictions that an initial application has been received
within 30 days of the Secretary's receipt of an initial
application. Contiguous jurisdictions have no less than 60 days
from the date they receive such notice to comment on an initial
application. Applicants have no less than 60 days from the date
comments are submitted by a contiguous jurisdiction to respond
to the comments.
Subsection 5(c)(2) requires the Secretary to make any
application updates, modifications, or withdrawals available to
the public on the Department's website, subject to Federal
privacy laws.
Subsection 5(c)(3) requires the Secretary to make all
completed applications available to the public on the
Department's website within 30 days of receipt of a completed
application, subject to Federal privacy laws. The Secretary
must also provide notice by certified mail to contiguous
jurisdictions that a final application has been received within
30 days of receipt of a completed application. Contiguous
jurisdictions have no less than 60 days from the date they
receive such notice to comment on a completed application.
Applicants have no less than 60 days from the date comments are
submitted by a contiguous jurisdiction to respond to the
comments. Completed applications must be published in the
Federal Register within 10 days of receipt by the Secretary,
subject to Federal privacy laws.
Subsection 5(d) encourages local cooperation by
incentivizing the use of cooperative agreements between the
applicant and contiguous jurisdictions.
Subsection 5(d)(1) directs the Secretary to encourage, but
not require, applicants to enter into cooperative agreements
with contiguous jurisdictions.
Subsection 5(d)(2) directs the Secretary to evaluate
applications accompanied by cooperative agreements with
contiguous jurisdictions on an expedited basis. This subsection
also identifies terms that may, at the discretion of the
parties, be included in a cooperative agreement.
Subsection 5(d)(2)(C) provides for applications accompanied
by cooperative agreements with contiguous jurisdictions. Under
the expedited process established by this subsection, the
Secretary must issue a final decision within 120 days of
receiving a completed application. If the Secretary fails to
act within this timeframe, the application is deemed approved
and treated as a final decision of the Department, provided
that (1) free and clear title to the land under consideration
is verified; and (2) all applicable requirements under Federal
law and regulation are satisfied.
Subsection 5(d)(2)(D) provides for applications that are
not accompanied by cooperative agreements with contiguous
jurisdictions. In this case, the Secretary is required to make
a determination of mitigation within 180 days of receiving a
completed application. In making a determination of mitigation,
the Secretary must consider (1) anticipated impacts of
approving or not approving an application; (2) relevant
comments and responses to comments; and (3) whether the absence
of a cooperative agreement is attributable to the failure of
any contiguous jurisdiction to work in good faith to reach an
agreement. The Secretary must provide notice of a determination
of mitigation to an applicant and contiguous jurisdictions
within 10 days of making a determination.
Subsection 5(d)(2)(D) also provides specific protections
for applicants that do not have cooperative agreements with
contiguous jurisdictions. This subsection specifically
prohibits the Secretary from prejudicing such applicants when
the absence of a cooperative agreement is attributable to a
contiguous jurisdiction's failure to work in good faith towards
an agreement. The Secretary is also prohibited from unduly
delaying the regular processing of an application.
Subsection 5(d)(3) directs the Secretary to enhance local
cooperation by encouraging the use of reciprocal notice and
comment procedures.
Subsection 5(e) lists conditions, considerations and notice
requirements associated with the Secretary's final decision to
approve or deny an application.
Subsection 5(e)(1) directs the Secretary to issue a final
decision on an application after (1) free and clear title to
the land under consideration is verified; (2) all applicable
requirements under Federal law and regulation are satisfied;
and (3) consideration of application materials; comments and
responses to comments; the determination of mitigation, if
applicable; cooperative agreements with contiguous and non-
contiguous jurisdictions; and any other information the
Secretary identifies as relevant and material.
Subsection 5(e)(2) directs the Secretary to provide several
types of notice within 10 days of issuing a final decision on
an application. Specifically, the Secretary must (1) send the
applicant and contiguous jurisdictions a notice of final
decision by certified mail; (2) publish a notice of final
decision and an explanation of final decision on the
Department's website and in the Federal Register; and (3)
publish a notice of final decision in a newspaper of general
circulation serving the affected area of the decision.
Subsection 5(f) states that nothing in this Act requires
the publication or release of proprietary information submitted
by an applicant.
Subsection 5(g) requires the Secretary to implement this
Act within one year, after consultation with tribes and through
notice and comment rulemaking.
Subsection 5(g)(1) requires the Secretary to initiate
consultation with Indian tribes within 90 days of enactment.
Subsection 5(g)(2) requires the Secretary to publish a
summary of the consultation in the Federal Register within 180
days of initiating consultation.
Subsection 5(g)(3) requires the Secretary to modify
existing regulations, guidance, rules and policy statements, as
necessary to carry out this section, within 90 days of
publishing a summary under subsection (g)(2).
Subsection 5(h) states that interested parties may seek
review of a final decision in a United States district court
after exhausting all administrative remedies available under
chapters 5 and 7 of the Administrative Procedures Act.
Section 4--Effect
Subsection 4(a) states that nothing in this Act impacts any
other Federal Indian land determination.
Subsection 4(b) states that nothing in this Act impacts (1)
the application or effect of any Federal law other than the
IRA; or (2) any limitation on the authority of the Secretary
under any Federal law or regulation other than the IRA.
Cost and Budgetary Considerations
The following cost estimate, as provided by the
Congressional Budget Office, dated May 31, 2016, was prepared
for S. 1879:
May 31, 2016.
Hon. John Barrasso,
Chairman, Committee on Indian Affairs,
U.S. Senate, Washington, DC.
Dear Mr. Chairman: The Congressional Budget Office has
prepared the enclosed cost estimate for S. 1879, the Interior
Improvement Act.
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contact is Megan
Carroll.
Sincerely,
Keith Hall.
Enclosure.
S. 1879--The Interior Improvement Act
Summary: S. 1879 would modify the Secretary of the
Interior's authority to take certain land into trust on behalf
of Indian tribes under the Indian Reorganization Act. Under
current law, as established by the Supreme Court's decision in
Carcieri v. Salazar (2009), the Secretary's authority to take
land into trust is limited to tribes that were federally
recognized prior to the enactment of that act in 1934. S. 1879
would amend that act to allow the Secretary to take land into
trust for all federally recognized Indian tribes. The bill also
would specify a process--including new requirements and
deadlines--for the Secretary to follow in considering
applications from tribes or individual Indians to have certain
types of land taken into trust on their behalf.
CBO estimates that implementing S. 1879 would increase
administrative costs for the Department of the Interior (DOI)
by $30 million over the next five years, assuming appropriation
of the necessary amounts. Pay-as-you-go procedures do not apply
to this legislation because enacting it would not affect direct
spending or revenues.
CBO estimates that enacting S. 1879 would not increase net
direct spending or on-budget deficits in any of the four
consecutive 10-year periods beginning in 2027.
S. 1879 would impose both intergovernmental and private-
sector mandates as defined in the Unfunded Mandates Reform Act
(UMRA). CBO estimates that the aggregate costs of mandates in
the bill on public and private entities would fall below the
annual thresholds established in UMRA for intergovernmental and
private-sector mandates ($77 million and $154 million in 2016,
respectively, adjusted annually for inflation).
Estimated cost to the Federal Government: The estimated
budgetary effect of S. 1879 is shown in the following table.
The costs of this legislation fall within budget function 450
(community and regional development).
----------------------------------------------------------------------------------------------------------------
By Fiscal year, in millions of dollars--
--------------------------------------------------
2017 2018 2019 2020 2021 2017-2021
----------------------------------------------------------------------------------------------------------------
INCREASES IN SPENDING SUBJECT TO APPROPRIATION
Estimated Authorization Level................................ 2 5 6 8 9 30
Estimated Outlays............................................ 2 5 6 8 9 30
----------------------------------------------------------------------------------------------------------------
Basis of estimate: CBO assumes S. 1879 will be enacted near
the end of fiscal year 2016 and that the necessary amounts will
be appropriated each year. The bill would specify a process for
taking certain ``off-reservation'' lands that lie outside of
the boundaries of existing Indian reservations into trust for
Indian tribes or individual Indians. That process would
establish new requirements for both applicants and DOI, expand
opportunities for entities that own contiguous lands or other
community stakeholders to comment on proposed transactions, and
specify timeframes within which DOI must complete certain
administrative actions or render decisions on applications.
Under certain circumstances, if DOI failed to approve an
application within the specified timeframe, it would be deemed
approved.
Information from DOI and the Congressional Research Service
indicates that the length of time required to process
applications to take off-reservation lands into trust under
current law varies, but can often take several years. S. 1879
would specify rigorous deadlines that would require the
department to complete its review of such applications--
including additional materials required under the bill--on an
expedited basis. CBO expects those deadlines would require DOI
to complete necessary reviews much sooner than under current
law. In addition, the bill would impose new administrative
requirements related to posting applications and related
materials online and expanding efforts to communicate with
local communities that could be affected by proposed trust
acquisitions. As a result, CBO expects that implementing that
new process would increase DOI's administrative costs.
According to DOI, funding for administrative costs related
to acquisitions of trust lands in 2016 totals about $13 million
and covers the costs of roughly 70 full-time equivalent staff
with expertise in realty and environmental issues. CBO expects
that meeting the bill's expedited timeframes would require DOI
to increase the number of staff devoted to reviewing trust
applications and that the department would gradually hire those
additional personnel over four years starting in 2018. In
total, based on information from DOI about existing costs for
personnel and related expenses, CBO estimates that implementing
S. 1879 would cost $30 million over the 2012-2021 period. That
amount includes $2 million in upfront administrative costs to
complete necessary rulemakings; remaining amounts reflect
increased costs to hire additional realty and environmental
specialists to review trust applications within the accelerated
timeframes specified by the bill.
CBO also expects that amending current law to allow DOI to
take land into trust for all Indian tribes would simplify the
analysis that DOI must currently perform, pursuant to Carcieri
v. Salazar, and could reduce the workload of DOI staff.
Although CBO expects that any reductions on workload would be
small those savings are incorporated in the estimated net costs
of the bill.
Pay-As-You-Go considerations: None.
Increase in long term direct spending and deficits: CBO
estimates that enacting S. 1879 would not increase net direct
spending or on-budget deficits in any of the four consecutive
10-year periods beginning in 2027.
Intergovernmental and private-sector impact: S. 1879 would
impose both intergovernmental and private-sector mandates as
defined in UMRA, but CBO estimates that the aggregate
compliance costs on public and private entities would fall
below the annual thresholds established in UMRA for
intergovernmental and private-sector mandates ($77 million and
$154 million in 2016, respectively, adjusted annually for
inflation).
S. 1879 could expand an existing intergovernmental mandate
that exempts land taken into trust from state and local taxes.
State and local governments may have the ability to collect
taxes on some lands as a result of the Carcieri v. Salazar
decision because those lands might no longer be considered
Indian lands under current law. Subsequent application of that
ruling by DOI appears to limit its scope, however, making fewer
lands potentially subject to such taxation. Also, very few
state or local governments have asserted taxing authority on
those lands. Because any attempt to assert such taxing
authority would likely result in litigation, it is unlikely
that such governments would collect taxes on those lands in the
next five years. Therefore, CBO estimates that enacting S. 1879
would not result in a significant loss of revenue for state or
local governments.
S. 1879 also would limit the ability of public and private
entities or individuals to file certain claims in court related
to land ownership and actions of the Secretary of Interior.
Those limits would impose both intergovernmental and private-
sector mandates by restricting the rights of plaintiffs. The
costs of the mandates would be the forgone value of
compensation and settlements associated with such claims if
they would have been successful under current law. Information
from the Bureau of Indian Affairs indicates that fewer than 20
such court claims are currently pending. The possibility of a
monetary award or settlement under current law would depend on
the type of claim. In many cases, particularly those related to
administrative procedures and decisions by the federal
government, no monetary award is available; in others the
amount of such an award or settlement is limited to the value
of the land in question. Because of the small number of
existing claims and the limited scope of potential awards, CBO
expects that the annual number of claims involving such land
and the value of the awards and settlements in those claims
(and consequently the mandates costs) would be small.
Estimate prepared by: Federal costs: Megan Carroll; Impact
on state, local, and tribal governments: Rachel Austin; Impact
on the Private Sector: Amy Petz.
Estimate approved by: H. Samuel Papenfuss, Deputy Assistant
Director for Budget Analysis.
Regulatory and Paperwork Impact Statement
Paragraph 11(b) of rule XXVI of the Standing Rules of the
Senate requires each report accompanying a bill to evaluate the
regulatory and paperwork impact that would be incurred in
carrying out the bill. The Committee believes that S. 1879
would have a minimal impact on regulatory or paperwork
requirements.
Executive Communications
The Committee has received no communications from the
Executive Branch regarding S. 1879.
MINORITY VIEW
I share these views only in response to the majority's
characterization of actions taken by the Department of the
Interior since the Supreme Court's decision in Carcieri v.
Salazar. With respect to the bill, I will continue to hear from
Tribes to ensure that in correcting the problem created by the
Carcieri decision, we do not create additional obstacles or
delays in restoring tribal homelands.
Congress enacted the Indian Reorganization Act (IRA or Act)
to revitalize tribal governments throughout the United States.
In doing so, Congress charged the Secretary of the Interior
(Secretary) with implementing the Act. Although time has passed
since passage of the IRA, the Secretary remains responsible for
upholding the Federal Government's trust responsibility and
carrying out Congress's intent under the Act.
Congress gave the Secretary the tools necessary to fulfill
the mission of the IRA and a key aspect of that mission is to
restore the land bases of tribal governments. Section 5, which
authorizes the Secretary to take land into trust, was included
to achieve this objective. In 2009, the Supreme Court issued
its opinion in the case Carcieri v. Salazar.\24\ The Supreme
Court narrowly construed the language ``now under federal
jurisdiction'' to mean that the Secretary could only take land
into trust for tribes under federal jurisdiction in 1934.\25\
However, no decision for what constitutes ``under federal
jurisdiction'' was reached by the Supreme Court.
---------------------------------------------------------------------------
\24\ Carcieri v. Salazar, 555 U.S. 379 (2009).
\25\ Id. at 396.
---------------------------------------------------------------------------
The Carcieri case effectively created two classes of
tribes--those that can have land taken into trust and those
that cannot. The case did not, however, affect the Secretary's
duty to revitalize tribal governments or restore tribal land
bases provided for under the IRA. Additionally, it did not
affect the Secretary's responsibility to ensure that,
regardless of when or how a Tribe received formal recognition
by the Federal government, all federally recognized tribes are
treated equally, as directed by Congress in the 1994 Amendments
to the IRA.\26\ Therefore, the Secretary remains responsible
for implementing the IRA in a manner that avoids--to the extent
possible--creating different classes of tribes.
---------------------------------------------------------------------------
\26\ Pub. L. No. 103-263, 108 Stat. 707 (1994).
---------------------------------------------------------------------------
Despite the Majority's characterizations, the Department of
the Interior's handling of land into trust after the Carcieri
case was an exercise of its authority under the IRA and
intended to uphold the will of Congress. In issuing the
Solicitor's Opinion examining the meaning of ``now under
federal jurisdiction'', the Department sought to fill the gap
created by the absence of clarity in the Carcieri decision and
exercise its authority under the IRA to restore tribal land
bases in a manner that minimizes inequitable treatment of
tribes.
Jon Tester.
Changes in Existing Law
In accordance with subsection 12 of rule XXVI of the
Standing Rules of the Senate, changes in existing law made by
S. 1879, as ordered reported, are shown as follows (existing
law proposed to be omitted is enclosed in black brackets, new
matter is printed in italic):
25 U.S.C. 465 (INDIAN REORGANIZATION ACT (48 STAT. 985))
Sec. 465. Acquisition of lands, water rights or surface rights;
appropriations; title to lands; tax exemption
SEC. 5.
The Secretary of the Interior is authorized, in his
discretion, to acquire, through purchase, relinquishment, gift,
exchange, or assignment, any interest in lands, water rights,
or surface rights to lands, within or without existing
reservations, including trust or otherwise restricted
allotments, whether the allottee be living or deceased, for the
purpose of providing land for Indians.
For the acquisition of such lands, interests in lands,
water rights, and surface rights, and for expenses incident to
such acquisition, there is authorized to be appropriated, out
of any funds in the Treasury not otherwise appropriated, a sum
not to exceed $2,000,000 in any one fiscal year: Provided, That
no part of such funds shall be used to acquire additional land
outside of the exterior boundaries of Navajo Indian Reservation
for the Navajo Indians in Arizona, nor in New Mexico, in the
event that legislation to define the exterior boundaries of the
Navajo Indian Reservation in New Mexico, and for other
purposes, or similar legislation, becomes law.
The unexpended balances of any appropriations made pursuant
to this section shall remain available until expended.
Title to any lands or rights acquired pursuant to this Act
or the Act of July 28, 1955 (69 Stat. 392), as amended (25
U.S.C. 608 et seq.) shall be taken in the name of the United
States in trust for the Indian tribe or individual Indian for
which the land is acquired, and such lands or rights shall be
exempt from State and local taxation.
SEC. 5A. LAND ACQUISITION APPLICATIONS.
(a) Definitions.--In section:
(1) Applicant.--The term `applicant' means an Indian
tribe or individual Indian (as defined in section 4 of
the Indian Self-Determination and Education Assistance
Act (25 U.S.C. 450b)) who submits an application under
subsection (b).
(2) Application.--The term `application' means an
application submitted to the Department by an Indian
tribe or individual Indian under subsection (b).
(3) Contiguous.--The term contiguous--
(A) means 2 parcels of land having a common
boundary, notwithstanding the existence of non-
navigable waters or a public road or right-of-
way; and
(B) includes parcels that touch at a point.
(4) Contiguous jurisdiction.--The term `contiguous
jurisdiction' means any county, county equivalent, or
Indian tribe with authority and control over the land
contiguous to the land under consideration in an
application.
(5) County and county equivalent.--The terms `county'
and `county equivalent' mean the largest territorial
division for local government within a State with the
authority to enter into enforceable cooperative
agreements with Indian tribes or individual Indians, as
appropriate.
(6) Department.--The term `Department' means the
Department of the Interior.
(7) Economic impact.--The term `economic impact'
means any anticipated costs associated with the
development of or activity on the land under
consideration in an application, including associated
costs to a contiguous jurisdiction for utilities,
public works, public safety, roads, maintenance, and
other public service costs.
(8) Final decision.--The term `final decision' means
a decision that is final for the Department, as
determined or defined by the Secretary.
(9) Indian tribe.--The term `Indian tribe' has the
meaning given the term in section 4 of the Indian Self-
Determination and Education Assistance Act (25 U.S.C.
450b).
(10) Secretary.--The term `Secretary' means the
Secretary of the Interior.
(b) Applications.--
(1) In general.--An Indian tribe or individual Indian
seeking to have off-reservation fee or restricted land
taken into trust for the benefit of that Indian tribe
or individual Indian shall submit an application to the
Secretary at such time, in such manner, and containing
such information as this section and the Secretary
require.
(2) Requirements.--The Secretary may approve complete
applications described in paragraph (1) on a
discretionary basis, subject to the condition that the
application includes--
(A) a written request for approval of a trust
acquisition by the United States for the
benefit of the applicant;
(B) the legal name of the applicant,
including, in the case of an applicant that is
an Indian tribe, the tribal name of the
applicant as the name appears in the list of
recognized Indian tribes published by the
Secretary in the Federal Register pursuant to
section 104 of the Federally Recognized Indian
Tribe List Act of 1994 (25 U.I. 479a-1);
(C) a legal description of the land to be
acquired;
(D) a description of the need for the
proposed acquisition of the property;
(E) a description of the purpose for which
the property is to be used;
(F) a legal instrument to verify current
ownership, such as a deed;
(G) statutory authority for the proposed
acquisition of the property;
(H) a business plan for management of the
land to be acquired, if the application is for
buss purposes;
(I) the location of the land to be acquired
relative to State and reservation boundaries;
and
(J) a copy of any cooperative agreement
between the applicant and a contiguous
jurisdiction.
(3) Final decision.--After considering an application
described in this subsection and in accordance with
subsection (c) and any other applicable Federal law or
regulation, a final decision to approve or deny the
completed application shall be issued.
(c) Statutory Notice and Comment Requirements.--
(1) Notice and comment requirements for initial
applications.--
(A) Notice.--
(i) In general.--Not later than 30
days after the date on which the
Secretary receives an initial
application, the Secretary shall make
that application, whether complete or
incomplete, available to the public on
the website of the Department, subject
to applicable Federal privacy laws.
(ii) Additional notice requirement.--
Not later than 30 days after the date
on which the Secretary receives an
initial application, the Secretary
shall provide by certified mail notice
of the application to contiguous
jurisdictions.
(B) Comment.--Each contiguous jurisdiction
notified under subparagraph (A)(ii) shall have
not fewer than 30 days, beginning on the date
that the contiguous jurisdiction receives the
notice, to comment on that initial application.
(2) Notice requirement for any application update,
modification, or withdrawal.--
(A) In general.--If at any time an
application is updated, modified, or withdrawn,
not later than 5 days after the date on which
the Secretary receives notice of that update,
modification, or withdrawal, the Secretary
shall make that information available to the
public on the website of the Department,
subject to any applicable Federal privacy laws.
(B) Inclusion.--If an application has been
updated or modified in any way, the notice
described in subparagraph (A) shall include a
description of the changes made and the updated
or modified application, whether complete or
incomplete, available on the website of the
Department, subject to any applicable Federal
privacy laws.
(3) Notice and comment requirements for completed
applications.--
(A) Notice.--
(i) In general.--Not later than 30
days after the date on which the
Secretary receives a completed
application, the Secretary shall make
that application available to the
public on the website of the
Department, subject to any applicable
Federal privacy laws.
(ii) Additional notice
requirements.--Not later than 30 days
after the date on which the Secretary
receives a completed application, the
Secretary shall provide by certified
mail notice of the application to
contiguous jurisdictions.
(iii) Publication in federal
register.--Not later than 5 days after
the date on which the Secretary
receives a completed application, the
Secretary shall publish in the Federal
Register notice of the completed
application.
(B) Comment.--Contiguous jurisdictions shall
have not fewer than 30 days, beginning on the
date on which the contiguous jurisdiction
receives notice under subparagraph (A)(ii), to
comment on that completed application.
(4) Notice of decision.--
(A) In general.--Not later than 5 days after
a final decision to approve or deny an
application is issued, the Secretary shall
issue a notice of decision and make the notice
of decision available to the public on the
website of the Department.
(B) Publication in federal register.--Not
later than 5 days after a final decision to
approve or deny an application is issued, the
Secretary shall publish in the Federal Register
the notice of decision described in
subparagraph (A).
(d) Encouraging Local Cooperation.--
(1) In general.--The Secretary shall encourage, but
may not require, applicants to enter into cooperative
agreements with contiguous jurisdictions.
(2) Cooperative agreements.--
(A) In general.--The Secretary shall give
weight and preference to an application with a
cooperative agreement described in paragraph
(1).
(B) Terms of agreement.--A cooperative
agreement described in paragraph (1) may
include terms relating to mitigation, changes
in land use, dispute resolution, fees, and
other terms determined by the parties to be
appropriate.
(C) Submission of cooperative agreement.--
(i) In general.--If an applicant
submits to the Secretary a cooperative
agreement or multiple cooperative
agreements executed between the
applicant and contiguous jurisdictions,
the Secretary shall issue a final
decision to approve or deny a complete
application not later than--
(I) 60 days after the date of
completion of the review
process under the National
Environmental Policy Act of
1969 (42 U.S.C. 4321 et seq.)
described in clause (ii); or
(II) if that review process
is not applicable, 30 days
after the date on which a
complete application is
received by the Secretary.
(ii) Timeline.--Completion of the
review process under the National
Environmental Policy Act of 1969 (42
U.S.C. 4321 et seq.) described in
clause (i) may refer to--
(I) the issuance of a
categorical exclusion
determination in accordance
with section 6.204 of title 40,
Code of Federal Regulations (or
successor regulations);
(II) an environmental
assessment finding of no
significant impact in
accordance with section 6.206
of title 40, Code of Federal
Regulations (or successor
regulations); or
(III) the issuance of a
record of decision in
accordance with section 6.208
of title 40, Code of Federal
Regulations (or successor
regulations).
(iii) Effect of failure to issue
timely final decision.--If the
Secretary fails to issue a final
decision by the date described in
clause (i) the application shall be--
(I) deemed approved on an
automatic basis; and
(II) treated as a final
decision.
(D) Cooperative agreement not submitted.--
(i) In general.--If an applicant does
not submit to the Secretary a
cooperative agreement executed between
the applicant and contiguous
jurisdictions, the Secretary shall
issue a written determination of
mitigation by the date that is not
later than 30 days after a complete
application is received by the
Secretary, which shall--
(I) describe whether any
economic impacts on contiguous
jurisdictions have been
mitigated to the extent
practicable; and
(II) explain the basis of
that determination.
(ii) Determination of mitigation.--
The Secretary shall consider a
determination of mitigation in making a
final decision to approve or deny an
application, but that determination
shall not halt or unduly delay the
regular processing of an application.
(iii) Considerations.--In making a
determination of mitigation described
in clause (i), the Secretary shall take
into consideration--
(I) the anticipated economic
impact of approving an
application on contiguous
jurisdictions; and
(II) whether the absence of a
cooperative agreement is
attributable to the failure of
any contiguous jurisdiction to
work in good faith to reach an
agreement with the applicant.
(iv) Notice.--The Secretary shall
provide by certified mail a copy of the
determination of mitigation described
in clause (i) to the applicant and
contiguous jurisdictions not less than
5 days after a determination of
mitigation is issued.
(v) Good faith protection.--Failure
to submit a cooperative agreement shall
not prejudice an application if the
Secretary determines that the failure
to submit is attributable to the
failure of any contiguous jurisdiction
to work in good faith to reach an
agreement.
(3) Reciprocal notice and comment.--The Secretary
shall also encourage contiguous jurisdictions to engage
in local cooperation through reciprocal notice and
comment procedures, particularly with regard to changes
in land.
(e) Implementation.--
(1) Consultation.--Not later than 60 days after the
date of enactment of this section, the Secretary shall
initiate consultation with Indian tribes regarding the
implementation of this section.
(2) Summary.--Not later than 180 days after the date
on which the consultation described in paragraph (1) is
initiated, the Secretary shall issue a summary of the
consultation and the summary shall be published in the
Federal Register.
(3) Rulemaking.--Not later than 60 days after the
date on which the summary described in paragraph (2) is
published in the Federal Register, the Secretary shall,
through a rulemaking under section 553 of title 5,
United States Code, modify existing regulations,
guidance, rules, and policy statements, as necessary to
carry out this section.
(f) Judicial Review.--
(1) In general.--An applicant or contiguous
jurisdiction may seek review of a final decision.
(2) Administrative review.--An applicant or
contiguous jurisdiction may seek review in a United
States district court only after exhausting all
available administrative remedies.
25 U.S.C. 479 (INDIAN REORGANIZATION ACT OF 1934 (48 Stat. 988))
Sec. 479. Definitions
SEC. 19.
[The term]Effective beginning on June 18, 1934, the term
``Indian'' as used in this Act shall include all persons of
Indian descent who are members of [any recognized Indian tribe
now under Federal jurisdiction]any federally recognized Indian
tribe, and all persons who are descendants of such members who
were, on June 1, 1934, residing within the present boundaries
of any Indian reservation, and shall further include all other
persons of one-half or more Indian blood. For the purposes of
this Act, Eskimos and other aboriginal peoples of Alaska shall
be considered Indians. The term ``tribe'' wherever used in this
Act shall be construed to refer to any Indian tribe, organized
band, pueblo, or the Indians residing on one reservation. The
words ``adult Indians'' wherever used in this Act shall be
construed to refer to Indians who have attained the age of
twenty-one years.
[all]
