WASHINGTON ? After nearly a year of hinting that it would withdraw land into trust regulations developed under the Clinton administration, the Interior Department announced it is scrapping that new rule.
The new regulations, which enable tribes to acquire lands once lost to them, have been an issue of controversy ever since the Bush administration took over in January. Assistant Secretary for Indian Affairs Neal McCaleb said the new regulations were withdrawn because there was a need for clear direction and processing standards for land into trust applications.
‘This action is consistent with the action we took 60 days ago when we asked for comment on the proposed withdrawal of the final rule,’ McCaleb said. ‘Following consultation with tribes, we will publish new regulations.’
Work on the regulations began nearly two years ago with formation of a task force by the National Congress of American Indians (NCAI) and the BIA. The final version of the regulations was announced by the Clinton administration Jan. 16, just four days before the Bush administration took over.
However, in April the new administration delayed effective date for the regulations until a decision was made on how to proceed. In August, Interior issued a notice seeking comments on specific areas of concern and whether the regulations should be withdrawn and a new rule drafted.
It received 139 submissions, 93 from tribes, 18 from state and local governments and federally elected officials and 28 from other interested groups and individuals. The department said comments focused on specific areas including individual applications for housing, land use plans for off-reservation acquisitions, clearer standards, and state and local government review of applications.
Interior said that since the comments contained opposing views about identified issues of concern, repealing only part of the final rule would be ‘impractical and inefficient,’ therefore, it is withdrawing the final rule in its entirety.
McCaleb also said that Interior took this action to examine more fully the public’s continued concern with the trust acquisition procedures, emphasizing a need to consider local non-Indian concerns.
‘All along we have recognized that a balance must be struck between the needs of the tribes to acquire land in accordance with the intent of Section 5 of the Indian Reorganization Act and the concerns of those governments, communities and individuals who are affected by land into trust requests.’
By placing land into trust, a tribe regains control over land once owned by the federal government or state and local governments. This has caused some tension between tribes and local governments because land is removed from tax rolls and state and local zoning laws and regulations no longer apply. The expansion of tribal gaming operations resulted in greater tensions, especially on lands adjacent to current tribal boundaries.
While the Bush administration appears to be focusing on concerns of state and local communities, NCAI, an organization which represents more than 200 tribes, cites improvements already in the regulations that include clearer standards and timelines in the process.
It says standards in the regulations establish methods to determine whether land should be accepted into trust and balance the interests of tribes and state and local governments.
Under the prior regulations, those standards were unclear. The new rule also established a time frame for the Department of Interior to make a decision.
NCAI passed a resolution at its 2001 Midyear Session supporting the new rule and urging the secretary to make it effective. Despite this support, Interior decided to withdraw the regulations, effective immediately.
Interior says it plans to begin a new rulemaking process in consultation with tribes, but only over listed areas of concern. Current rules remain in effect during the new rulemaking process.
‘This action by the department is a disappointment, though not an unexpected one’, said Jackie Johnson, NCAI executive director. ‘We were hoping they would move ahead. Now, if they’re going to withdraw the rule, NCAI urges that they move forward with consultation so this rule can be enacted as soon as possible.’
