WASHINGTON – Despite disagreements at a Feb. 27 House of Representatives hearing on whether a set of Interior Department guidelines for considering land-into-trust applications amounts to rules and regulations or simply ”guidance,” the consensus of testimony at the hearing couldn’t have been clearer – if this is guidance, it leads straight back to the days of federal paternalism, of the BIA deciding what’s best for tribes without consultation, of making sure that Indians stay put on reservations.

Judging from the weight given it in testimony, one of the guidance’s most controversial measures is a ”commutable distance” standard. Under it, land-into-trust applications are to be considered in light of a tribe’s distance from the reservation. The greater the distance of the land in question from the existing reservation – regardless of whether it is within the tribe’s historical territories – the more doubtful its translation by Interior into trust status. (In trust, land comes under the jurisdiction of tribal governments; because government revenues are not taxable, trust status is de rigueur for land that will host casino operations, as well as most other large-scale economic development purposes.)

Distance isn’t mentioned in the Indian Gaming Regulatory Act of 1988, which governs Indian gaming. Interior derived its commutable distance standard from a passage in the Indian Reorganization Act, as amended following its 1934 enactment.

”We would hope that the Secretary [of Interior] would work with us to re-establish the former aboriginal territories of our tribe,” as intended by the Indian Reorganization Act, said Vincent Armenta, chairman of the Santa Ynez Band of Chumash Indians, in written testimony. ”Instead, the secretary is concerned with how far our tribal members can drive to work. … aboriginal territory analysis is completely absent from the so-called commutable distance test [of the guidance] – which is mere pretext to keep tribes on their existing reservations.”

Another chairman at the hearing, David Burnette of the Confederated Tribes of the Chehalis Reservation, was unusual in that he wasn’t on hand to argue for a development plan that had been delivered a setback by the new guidelines. In fact, through Interior’s then-Associate Deputy Secretary James Cason and its then-Acting Director for Trust Services Arch Wells, Interior took project land into trust for the tribes in 2006.

But Burnette emphasized that despite the guidance’s focus on evaluating land-into-trust applications for gaming purposes, ”the memorandum is much broader and applies to all off-reservation … projects like ours. … The recently released guidance erodes the sovereignty of tribes. … The idea of commutability is not universally applicable, and the standard should remain relative to historic ties to usual and accustomed areas of living. The idea that the BIA [Interior’s delegate bureau for Indian affairs] is trying to make sure that the reservation lifestyle and communities are protected is paternalistic and offensive to me.

”What this policy means to me is that there are non-Indian people who have no problem with Indians being successful as long as they are not too successful. When they start getting off the reservation, we begin [to] round them up and keep them on the reservation.”

Others, including professors Kevin K. Washburn of Harvard Law and Alex Skibine of the University of Utah, expressed numerous other misgivings about the guidance. Washburn dismantled Interior’s positions on several key points given as reasons for the guidance. ”The guidance memorandum’s central claim about jobs – that off-reservation casinos fail to provide jobs on the reservation – is patently ridiculous. Revenues from off-reservation gaming operations pay for tribal jobs on the reservation in a variety of areas, including health care, elderly services, social services, education, law enforcement, and numerous other areas of public service, many of which provide direct services to reservation residents. …

”The closest analogues to Indian gaming operations are state lotteries. Like tribal casinos, state lotteries are not valued so much for the jobs they create. Rather, they are valued for the revenues that they provide, which, in turn, serve other governmental functions. … Tribal gaming operations work in much the same way. The Guidance Memorandum is flawed in failing to understand this very basic point. …

”The Guidance Memo claims that taking off-reservation land into trust for a casino can ‘defeat or hinder’ the Indian Reorganization Act purpose to restore the tribal land base. This assertion is just as ridiculous as the claim that off-reservation Indian gaming produces no jobs on the reservation. The chief obstacle to restoration of the tribal land base over the past seven decades has been the Department of Interior’s failure to ask for – and Congress’s failure to appropriate – sufficient funds for tribal land acquisition. Off-reservation gaming operations can give tribes the revenues to overcome this obstacle to land restoration.”

Washburn also questioned whether any federal interest was served when Interior relied on the guidance to reject projects supported by local communities and state governors – the very sort of projects IGRA encourages; and whether the Secretary of Interior is justified in relying on IGRA-prescribed ”discretion” without first consulting tribes and state and local officials – something the BIA did not do while developing the guidance, said BIA Assistant Secretary Carl Artman, arguing that the guidance is neither a rule nor a regulation and so exempt from notice-and-commentary procedures.

Skibine walked the House Resources Committee through some of the technical definitions at issue in the guidance, concluding with ”four reasons why decisions based on the guidance document could be considered arbitrary and capricious or otherwise an abuse of discretion under the [Administrative Procedures Act].”

Rep. Nick Rahall, D-W.Va., and chairman of the committee, stated a strong interest in the department’s lack of consultation with tribes prior to issuing the guidance, adding that he will introduce legislation mandating adequate consultation.

The National Congress of American Indians joined other witnesses in suspecting that the Interior ”guidance” is an attempt to establish new limitations on land-into-trust acquisitions without consulting tribes or considering non-gaming impacts.

Executive Director Jacqueline Johnson urged Interior to withdraw the guidance document. But she allowed that with a new presidential administration 11 months away and the guidelines allowing for re-submission of a denied application, ”perhaps it is best that these issues wait” until then.