County Gets Support in Land Trust Position

Schumer Implores Administration to Not Institute ‘Carcieri Fix’

Martha E. Conway

(Wampsville – March 8, 2010) While attending a conference hosted by the National Association of Counties (NACo) in Washington, D.C., this week, Madison County officials received word that U.S. Sen. Charles E. Schumer wrote Secretary of the Interior Ken Salazar about his position on the land-into-trust issue.

In the letter, Schumer urges Salazar to hold off on administrative action that would change current U.S. law that governs the land-into-trust process as it relates to the Supreme Court’s Carcieri v. Salazar decision. The decision held that the Secretary of the Interior did not have the authority under the Indian Reorganization Act to take land into trust for tribes not “under federal jurisdiction” in 1934, Schumer said.

“Recently, it has been reported that the administration was considering moving unilaterally, through the rule-making process, to try to circumvent this ruling,” Schumer wrote in a press release March 8.

The proposed action, according to county officials, would allow any tribe of any size and established at any time in history, to take land off the tax rolls and put into permanent trust.

Schumer says that the administration should not take such actions, as the Supreme Court clearly stated that action would need to be taken by the legislative branch.

“This is an issue that has important impacts and must be handled with careful deliberation and adequate input from all parties involved, and Congress, not the federal bureaucracy, is the appropriate place for that to happen,” Schumer said. “The Supreme Court clearly stated that any change in the law needed to be enacted by Congress, so today I am calling on the Interior Department not to try to circumvent the judicial and legislative branches through unilateral action.”

According to Schumer, the Supreme Court held in Carcieri v. Salazar that the Secretary of the Interior did not have the authority under the Indian Reorganization Act to take land into trust for tribes not “under federal jurisdiction” in 1934. According to this decision, the plain language of the statute prohibited the Department of the Interior from taking land into trust for the Narragansett Tribe in Rhode Island because it was not federally recognized until 1983. The Court’s opinion held that, if Congress wanted to give the Secretary the authority to take lands into trust for tribes recognized after 1934, it could have done so.

According to County Attorney S. John Campanie, who chairs the NACo County and Tribal Government Relations Subcommittee, Schumer’s letter comes on the heels of the introduction at NACo of a resolution on land-into-trust passed unanimously in his subcommittee, the full committee and finally by the NACo Board of Directors.

Campanie said the United States Supreme Court decided the case of Carcieri v. Salazar Feb. 24, 2009. The Court ruled that the Secretary of the Department of the Interior lacks authority to take land into trust for tribes that were not “under federal jurisdiction” upon enactment of the Indian Reorganization Act (IRA) in 1934, he said.

The resolution introduced at NACo explains that:

“…the case has called into question practices of the DOI in recognizing tribes and placing land into trust without clear Congressional authorization. The decision has created uncertainty among some tribes regarding their status and land holdings and has led to introduction of legislation (S.1703, H.R.3697, and H.R.3742) calling for a ‘quick fix’ to overturn the Supreme Court’s action without addressing serious problems in the fee to trust process itself.”

“NACo opposes S.1703, H.R.3697, and H.R. 3742, and any other interim related action, and calls on Congress to address the Carcieri issues as part of a comprehensive examination and congressionally enacted reform of the fee to trust process.”

“NACo policy has recognized the serious shortfalls in the fee to trust process with respect to the failure to seriously take into consideration community interests. This is particularly problematic for counties, who generally exercise land use jurisdiction over lands that tribes seek to place into trust, thus removing them from local regulatory and jurisdictional control. NACo’s Policy Platform calls for reform of the fee to trust process to insure: 1) meaningful notice to counties of trust applications; 2) good faith consultation with counties regarding fee to trust issues; and 3) agreements with counties to insure that the off reservation impacts of tribal development projects are mitigated … NACo policies further support legislative changes to the trust process which include full compensation to counties for lost tax revenue resulting from taking lands into federal jurisdiction.”

“This builds on the policy positions established last year, and NACo is treating these issues as a priority,” Campanie said of the land-trust situation that is erupting around the country.

Campanie said as has been discussed exhaustively in Madison County Board of Supervisors Native American Affairs Committee meetings, the proposed Carcieri “fix” is inappropriate and potentially harmful.

“Given that the issues surrounding the land-trust process are challenging, and affect different parts of the country differently, Congress is the best place to mete out these issues,” Schumer said. “The bottom line is that, following a Supreme Court decision like this, Congress is the only appropriate forum for any reconsideration of the Indian Reorganization Act.”

“I hope and trust that the Department of the Interior will not reach beyond its appropriate role and attempt to undercut the decision of the Supreme Court and the authority of Congress with respect to the land trust process,” Schumer wrote in the letter to Salazar. “The specific words chosen by Congress demonstrate that it was the will of legislature to limit the authority of the Secretary with respect to taking land into trust. This limitation can be changed only be another act of Congress, not unilaterally by the executive branch. Decisions like these that profoundly impact many New Yorkers and many Americans need to be done through the normal legislative process – not by the federal bureaucracy.”

“The trust system is broken and should not be extended but fundamentally reformed,” Campanie said. “Sen. Schumer understands this and also understands the preeminent role of Congress as opposed to the Department of the Interior bureaucracy in addressing any shortcomings.”

“Sen. Schumer’s letter makes it clear to the administration that any action to address the so-called ‘Carcieri Fix’ must consider all sides of the issue and the interests of all New Yorkers,” said Madison County Board of Supervisors Chairman John M. Becker (R,C,I – Sullivan). “I commend the senator’s leadership on this matter and look forward to working with Sen. Schumer and his staff to insure a fair process on this initiative and the land into trust issue.”

Campanie and Becker were joined at the NACo conference by Supervisor Dan Degear (R – DeRuyter), Supervisor Rocco J. “Rocky” DiVeronica (R,C,I – Lenox) and County Administrator Paul Miller.

Becker, chairman of the county’s Native American Affairs Committee, and Campanie are voting members of NACo’s Finance and Intergovernmental Affairs Steering Committee.

DiVeronica, vice chairman of NAA, was appointed last year to NACo’s full board of directors, which is populated by more than 100 county officials from across the United States.

“For years, my own position on the land-into-trust process has been clear,” Schumer wrote to Salazar. “Because any decision to take land into trust is profound and permanent and will have both positive and negative effects on all parties involved it is critical that congress remain integral to any efforts to expand or restrain these powers. I am skeptical of any efforts to broaden the land-trust process beyond what is already legislatively approved. To summarize, I hope and trust that the Department of the Interior will not reach beyond its appropriate role and attempt to undercut the decision of the Supreme Court and the authority of Congress with respect to the land trust process.”

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County Gets Support in Land Trust Position

Schumer Implores Administration to Not Institute ‘Carcieri Fix’

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