The BIA Behaving Badly

So here I was having a perfectly glorious summer when I hear something that brought my lazy summer days to a screeching halt. Apparently there is this rumor floating around the area that the Mashpee Wampanoag Land In Trust Application will be approved this summer. Now I am not one to take any rumor too seriously but I must admit, I was a bit taken aback by this one. So of course, I looked into it….or, more accurately, several of us looked into it.

Come to find out by doing a bit of research, the BIA has this nasty little habit of approving LIT applications for Tribes before an Environmental Impact Statement (EIS) has been completed for the land in question. This news is a bit distressing, especially when you consider the fact that Land in Trust regulations requires compliance with NEPA (National Environmental Policy Act) Regulations. As stated on their home page, NEPA requires federal agencies to integrate environmental values into their decision making processes by considering the environmental impacts of their proposed actions and reasonable alternatives to those actions. To meet NEPA requirements federal agencies must prepare a detailed statement known as an Environmental Impact Statement (EIS).

Basically, NEPA requires an environmental scoping session and a completed Environmental Impact Statement for all Land in Trust Application decisions. It would seem however, that in some instances, the BIA has approved Land in Trust applications without a completed EIS, such as what happened recently in Rohnert Park, California. Here is what the Attorney who filed the suit has to say:

The Bureau of Indian Affairs jumped the gun by attempting to transfer title to this poorly planned site even before completing the environmental impact statement,” Volker said. “Operating a casino at this site poses huge environmental impacts, including massive traffic congestion on Highway 101 and over-pumping of local wells."

“The BIA has thumbed its nose at the public by attempting to end-run the laws that protect the public from needless environmental harm,” Volker said. - the press democrat

This bad habit is causing some major waves throughout several States. Throughout this Country, individual communities and States are standing up for their inalienable sovereign rights granted to them in the United States Constitution. They are questioning the BIA's decision making process and in some instances, the SOI’s right to take land off the tax rolls regardless of a State’s or community's position on the matter.

Consider the Buffalo, New York case that my friend Gladys Kravitz recently blogged about….or how about the Columbia River Gorge case in Oregon. These are but a few examples of the BIA behaving badly.

So what about us?

Please allow me clarify the Mashpee Wampanoag Tribe's position with regards to their Land in Trust application.

The application is specific in that it asks approval for three things:

1. Land(s) into Trust
2. Reservation status for said land(s)
3. Permission to game under the initial reservation exception of IGRA.

This is an all or nothing situation for the Mashpee Tribe. They can't get just one of these things....the application has to be approved for all three requests or the application will be denied. Since we already know the land in Middleboro does not meet the requirements for an initial reservation, this application should be, and most certainly will be denied.

Furthermore, neither office of the BIA in Tennessee or Washington DC has the authority to approve the application because of the initial reservation proclamation request. This request leaves the authority squarely on the shoulders of the Secretary of the Interior. In the Mashpee Tribe's case, the BIA does not have the authority to make the decision on thier application. If they do, they are essentially violating federal statutes.

The question being raised in the Carcieri v Kempthorne case is whether or not it is unconstitutional even for the Secretary of the Interior to take land into Trust in certain circumstances. I had blogged about this several months ago. Recently, I received the following comment on that particular blog.

Adam B has left a new comment on your post "Don't Tread on Me":

CONGRESS delegated the authority to take lands into trust for Indians to the Secretary of Interior in the Indian Reorganization Act of 1934. CONGRESS has plenary power regarding Indians and Indian tribes, leaving the States out of the mix (with the exception of the ability to appeal decision by the BIA). Since Congress has delegated the authority to the Secretary to do what the 1934 act proscribed there is left no claim that the BIA/Secretary is acting beyond their authority. - Posted by Adam B to carverchick at July 14, 2008 11:12 PM

This is an excellent, albeit misleading comment. First of all, States are not kept out of the mix in regards to LIT decisions. In fact, the regulations clearly state that once an application is received, the affected State, community and interested parties will be notified and allowed to comment. As far as Congress having plenary power regarding Indians and Indian tribes, this is the very argument that the Amicus Brief for the Carcieri v Kempthorne case is tackling, and which will be heard by the Supreme Court this fall or early next year.

This case is essentially questioning whether or not a Tribe recognized after the enactment of the Indian Reorganization Act of 1934 is actually covered under the Act. Several States, including Massachusetts have signed on to this case.

The Indian Reorganization Act (IRA) was enacted by the U.S. Congress on June 18, 1934 and its purpose was to decrease federal control of American Indians and to increase tribal self-government. The act sought to strengthen tribal structure by encouraging written constitutions and to undo the damage caused by the Dawes General Allotment Act by returning surplus lands to the tribes. The IRA says:

The term "Indian" in this Act shall include all person of Indian decent who are members of any recognized Indian tribe now under Federal jurisdiction, and all persons who are descendants of such members who were, on June 1, 1934, residing within the present boundaries of any reservation, and shall further include all other persons of one-half or more Indian blood.

It also says:

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.

It goes on to say that the Act shall not apply to any reservation which votes against its application. The elections were to be held within one year of the passage of the Act, and it was the responsibility of the SOI to conduct the elections.

Sec. 18. This Act shall not apply to any reservation wherein a majority of the adult Indians, voting at a special election duly called by the Secretary of the Interior, shall vote against it application. It shall be the duty of the Secretary of the Interior, within one year after the passage and approval of this Act, to call such an election, which election shall be held by secret ballot upon thirty days' notice.

The way I read this is a majority of the Indians (identified in the first paragraph) in all tribes (identified in the second paragraph) had to vote to accept or reject the application of the IRA within one year of it's passage. Since the Act says that it covers all of the tribes that are recognized now and it requires all recognized tribes to vote on the Act, then it stands to reason if they didn't exist to vote on whether or not to reject the IRA, how are they one of the tribes covered under the Act? This is in essence, one of the arguments in the Amicus Brief.

So if the tribe is not recognized under the Act, then the only other way for the Mashpee tribe to acquire land is through an act Congress, as I tried to explain in Lucky Thirteen, and unless Adam B or anyone can provide me with irrefutable evidence and not some sentence that is cherry picked to make his argument, then I stand by what I say, and I stand by 25 CFR 151.3.

§ 151.3 Land acquisition policy.
Land not held in trust or restricted status may only be acquired for an individual Indian or a tribe in trust status when such acquisition is authorized by an act of Congress.

So the question is, does an Act passed by Congress (in this case the IRA) have authority over a States constitutional rights covered under the tenth amendment? I don't think it does, and apparently neither do the individual States. I guess that is for the US Supreme Court to decide.

Additional clarification on the Carcieri v Kempthorne case arguement: The Carcieri v Kempthorne case before the Supreme Court in November is not challenging the Constitutionality of the Indian Reorganization Act. The Act is constitutional as passed by Congress but it does not apply in the eastern states. It only applies to Federal reservations which already existed in the West.

So back to this rumor about the Mashpee Tribe’s application…..I find it highly unlikely that the BIA will behave badly with this application. In fact, given the testimony they heard at the March 25th EIS scoping session, the complications surrounding the Mashpee Tribe’s application asking for two parcels of land that are 39 miles apart as an initial reservation – one parcel specifically slated for a mega-casino resort, and the already pending legal battles from other States, I think the BIA will be on it’s best behavior in regards to the Middleboro land decision. But if they chose to try and circumvent Federal laws, we will be there to call them out on it. In a court of Law.

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the pursuit of Happiness. That to secure these rights, Governments are instituted among Men, ... That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it. - The Declaration of Independence

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