Post by blackcrowheart on Dec 29, 2005 13:05:10 GMT -5
Trust status a last resort
By Amaris Elliott-Engel / The Citizen
Monday, December 26, 2005 10:03 AM EST
William Dorr is surprised the Cayuga Nation did not apply sooner for its land to be taken into trust by the federal government.
“If they were so desperate for land, they could have done it 50 years ago,” said Dorr, who has been Cayuga County's attorney for land claim matters for several years.
The Cayugas filed at the beginning of the month to have parcels they own in the towns of Seneca Falls and Springport placed into trust with the U.S. Department of Interior. The move followed the U.S Supreme Court's City of Sherrill v. Oneida Indian Nation ruling and the U.S. 2nd Circuit Court of Appeal's effective dismissal of the Cayuga Nation's and Seneca-Cayugas of Oklahoma's land claim.
But although the Supreme Court decision was a significant defeat for the tribes, the court did suggest the tribes may seek to gain sovereign territory through the land-in-trust process. It also said land purchases by tribes through the free market in their historic territories do not automatically revert to sovereign status.
The land-in-trust application process was authorized by Congress in 1934 following the loss of tribal lands because of federal government policies in the 1800s. According to the Department of Interior, only 8 percent of the lands lost to American Indians in the 1800s have been reacquired.
The reluctance of the Cayugas to pursue an application beforehand was because the process requires turning over the title of the land to the federal government, said Joseph Heath, an attorney that represents some of the traditional Cayugas. While trust land is on the face of it as good as reservation land for its exemption from regulation by localities and states, it is still the federal government which ultimately holds the title.
“Landowners in the land claim territory would feel very uncomfortable handing over the title to their house to the federal government,” Heath said.
An additional reluctance to the land-in-trust application process is reflected in the Cobell v. Norton class-action lawsuit that was filled in 1996. It asked the federal government to account for billions of dollars held in trust since the 1800s.
When individual American Indians were allotted ownership of parcels during a government policy to break up reservations in the late 1800s, the government took legal title to the parcels and took full responsibility for the maintenance of the land on behalf of Indians, including disbursing revenues generated by oil and gas extraction mining, timber operations or grazing to them.
The suit alleges that millions of dollars in revenue from those valuable economic activities was not kept track of and most of it was never disbursed to around 500,000 Indian beneficiaries.
“You have to have a lot of trust,” Heath said. “It's very hard to find given their record. It's not an act of a sovereign to rely on another government.”
Despite the problems with the process, the Cayugas are pursuing an option left open to them to reestablish a sovereign presence in their historic territory.
“It's the only alternative the Supreme Court left New York nations. Obviously, before the Sherrill decision there was no need to put lands into trust,” said Dan French, who represents Clint Halftown, the tribes' federally recognized representative.
No land has ever been taken into trust in New York before, but both the Cayugas and the Oneidas are seeking to be the first tribes to do so.
Seneca County has hired Harris Beach law firm associate Brian Laudadio to represent them. Laudadio has been Dorr's longtime assistant on the land claim case, and the two are working closely together to represent Cayuga and Seneca counties.
Local officials have also struck a tentative agreement for the state to pay for the retention of professional experts to help with the county's response to the application. Those professional services have not been retained yet, but a meeting has been set between local and state officials for Jan. 4. Separately, Cayuga County departments are gathering information on how the application might affect them. Cayuga and Seneca counties, as well as the state, have until Feb. 10 to file their response, instead of the original Jan. 5 due date.
Local opponents to the Cayugas' application say that the Sherrill decision's concern with checkerboarding should have bearing on the Department of Interior's Bureau of Indian Affairs decision over the Cayugas' application.
“What we believe is that those cases should be the guiding factor for the BIA,” said Steven Getman, the Seneca County attorney. “That even if the BIA is empowered to take this land into trust, they can't do it in a checkerboard or disruptive fashion. This case is very unique because the Cayugas are not simply asking for separate property within one town. They are asking for sovereign property in two counties more than a dozen miles apart. That's the textbook definition of a checkerboard reservation.”
A total of 56 million acres have been taken into trust on behalf of American Indians; 46 million are held on the behalf of tribes and 10 million are held on the behalf of individual Indians.
“Anyone who has taken the time to review a map of trust lands in the western part of the United States will recognize that checkerboarding is not a great concern to the Interior Department,” French said.
George Skibine, director of the Department of Interior's Office of Indian Gaming, said the Sherrill decision's concern with checkerboarding will have limited bearing on the Cayugas' land-in-trust application because it is not an area of review required under the regulation guiding the approval process.
The code requires the BIA to evaluate how the tribe will use the property, why they need the property to be taken into trust, whether the trust land will have any impact on the tax base of the local communities, whether there are any land use conflicts and what the tribe hopes to use it for.
After consulting with localities and state governments, the BIA has to conduct an environmental impact review before determining a decision.
Following the Sherrill decision, Skibine said that the fact that the “land of tribes was the same as land owned by other people” has become an extra consideration for the Cayugas' land to be taken into trust.
The regional office of the BIA typically makes decisions about land-in-trust applications that do not involve a gaming component, but with gaming components, those applications must be forwarded to the central office of the Department of the Interior for a final decision.
The Cayugas' application includes parcels with their now-shuttered class II bingo halls. Gaming on tribal land involves more hurdles because of the Indian Gaming Regulatory Act. The tribe is not seeking Class III gaming, but will not rule it out entirely, French said.
Approximately 30 land-in-trust applications involving gaming-oriented purposes are pending, Skibine said. Many of these types of applications do not get granted, he said.
For opponents of the land-in-trust applications, concerns are as great, if not greater, as the land claim case in general.
The Upstate for Citizens for Equality Seneca-Cayuga chapter has recently sent out a flyer arguing that land-into-trust has the same danger as the land claim case.
Seneca County officials attribute a 3-percent tax increase to the $200,000 the county lost in sales taxes from the Cayuga Nation's enterprises.
Getman and Dorr also worry that the land-in-trust decision appeals process does not have the same checks and balances that the court system does.
“Many of the procedural safeguards that are built into a court case may not be present for the counties when appealed before a regulatory body,” Getman said.
If the BIA grants the Cayugas land-in-trust status, municipalities would be able to appeal to the Department of Interior and then could appeal to a court with the stipulation they would have to demonstrate the granting of the application was arbitrary and capricious.
“Normally, the case law sides with the BIA, which is the fact of life in any large, administrative hearing,” Dorr said.
“Courts give great deference to the administrative process, whether it's the BIA, the IRS or the DEC, whether it's state or federal.”
Federal help
The Cayuga Nation is preparing to appeal its land claim case to the U.S. Supreme Court.
The federal Solicitor General's office has agreed to join the Cayugas in their appeal. The federal officials received an extension of the time they have to file their papers until Jan. 6, but they may ask for another extension.
Staff writer Amaris Elliott-Engel can be reached at 253-5311 ext. 282 or at amaris.elliot-engel@lee.net
By Amaris Elliott-Engel / The Citizen
Monday, December 26, 2005 10:03 AM EST
William Dorr is surprised the Cayuga Nation did not apply sooner for its land to be taken into trust by the federal government.
“If they were so desperate for land, they could have done it 50 years ago,” said Dorr, who has been Cayuga County's attorney for land claim matters for several years.
The Cayugas filed at the beginning of the month to have parcels they own in the towns of Seneca Falls and Springport placed into trust with the U.S. Department of Interior. The move followed the U.S Supreme Court's City of Sherrill v. Oneida Indian Nation ruling and the U.S. 2nd Circuit Court of Appeal's effective dismissal of the Cayuga Nation's and Seneca-Cayugas of Oklahoma's land claim.
But although the Supreme Court decision was a significant defeat for the tribes, the court did suggest the tribes may seek to gain sovereign territory through the land-in-trust process. It also said land purchases by tribes through the free market in their historic territories do not automatically revert to sovereign status.
The land-in-trust application process was authorized by Congress in 1934 following the loss of tribal lands because of federal government policies in the 1800s. According to the Department of Interior, only 8 percent of the lands lost to American Indians in the 1800s have been reacquired.
The reluctance of the Cayugas to pursue an application beforehand was because the process requires turning over the title of the land to the federal government, said Joseph Heath, an attorney that represents some of the traditional Cayugas. While trust land is on the face of it as good as reservation land for its exemption from regulation by localities and states, it is still the federal government which ultimately holds the title.
“Landowners in the land claim territory would feel very uncomfortable handing over the title to their house to the federal government,” Heath said.
An additional reluctance to the land-in-trust application process is reflected in the Cobell v. Norton class-action lawsuit that was filled in 1996. It asked the federal government to account for billions of dollars held in trust since the 1800s.
When individual American Indians were allotted ownership of parcels during a government policy to break up reservations in the late 1800s, the government took legal title to the parcels and took full responsibility for the maintenance of the land on behalf of Indians, including disbursing revenues generated by oil and gas extraction mining, timber operations or grazing to them.
The suit alleges that millions of dollars in revenue from those valuable economic activities was not kept track of and most of it was never disbursed to around 500,000 Indian beneficiaries.
“You have to have a lot of trust,” Heath said. “It's very hard to find given their record. It's not an act of a sovereign to rely on another government.”
Despite the problems with the process, the Cayugas are pursuing an option left open to them to reestablish a sovereign presence in their historic territory.
“It's the only alternative the Supreme Court left New York nations. Obviously, before the Sherrill decision there was no need to put lands into trust,” said Dan French, who represents Clint Halftown, the tribes' federally recognized representative.
No land has ever been taken into trust in New York before, but both the Cayugas and the Oneidas are seeking to be the first tribes to do so.
Seneca County has hired Harris Beach law firm associate Brian Laudadio to represent them. Laudadio has been Dorr's longtime assistant on the land claim case, and the two are working closely together to represent Cayuga and Seneca counties.
Local officials have also struck a tentative agreement for the state to pay for the retention of professional experts to help with the county's response to the application. Those professional services have not been retained yet, but a meeting has been set between local and state officials for Jan. 4. Separately, Cayuga County departments are gathering information on how the application might affect them. Cayuga and Seneca counties, as well as the state, have until Feb. 10 to file their response, instead of the original Jan. 5 due date.
Local opponents to the Cayugas' application say that the Sherrill decision's concern with checkerboarding should have bearing on the Department of Interior's Bureau of Indian Affairs decision over the Cayugas' application.
“What we believe is that those cases should be the guiding factor for the BIA,” said Steven Getman, the Seneca County attorney. “That even if the BIA is empowered to take this land into trust, they can't do it in a checkerboard or disruptive fashion. This case is very unique because the Cayugas are not simply asking for separate property within one town. They are asking for sovereign property in two counties more than a dozen miles apart. That's the textbook definition of a checkerboard reservation.”
A total of 56 million acres have been taken into trust on behalf of American Indians; 46 million are held on the behalf of tribes and 10 million are held on the behalf of individual Indians.
“Anyone who has taken the time to review a map of trust lands in the western part of the United States will recognize that checkerboarding is not a great concern to the Interior Department,” French said.
George Skibine, director of the Department of Interior's Office of Indian Gaming, said the Sherrill decision's concern with checkerboarding will have limited bearing on the Cayugas' land-in-trust application because it is not an area of review required under the regulation guiding the approval process.
The code requires the BIA to evaluate how the tribe will use the property, why they need the property to be taken into trust, whether the trust land will have any impact on the tax base of the local communities, whether there are any land use conflicts and what the tribe hopes to use it for.
After consulting with localities and state governments, the BIA has to conduct an environmental impact review before determining a decision.
Following the Sherrill decision, Skibine said that the fact that the “land of tribes was the same as land owned by other people” has become an extra consideration for the Cayugas' land to be taken into trust.
The regional office of the BIA typically makes decisions about land-in-trust applications that do not involve a gaming component, but with gaming components, those applications must be forwarded to the central office of the Department of the Interior for a final decision.
The Cayugas' application includes parcels with their now-shuttered class II bingo halls. Gaming on tribal land involves more hurdles because of the Indian Gaming Regulatory Act. The tribe is not seeking Class III gaming, but will not rule it out entirely, French said.
Approximately 30 land-in-trust applications involving gaming-oriented purposes are pending, Skibine said. Many of these types of applications do not get granted, he said.
For opponents of the land-in-trust applications, concerns are as great, if not greater, as the land claim case in general.
The Upstate for Citizens for Equality Seneca-Cayuga chapter has recently sent out a flyer arguing that land-into-trust has the same danger as the land claim case.
Seneca County officials attribute a 3-percent tax increase to the $200,000 the county lost in sales taxes from the Cayuga Nation's enterprises.
Getman and Dorr also worry that the land-in-trust decision appeals process does not have the same checks and balances that the court system does.
“Many of the procedural safeguards that are built into a court case may not be present for the counties when appealed before a regulatory body,” Getman said.
If the BIA grants the Cayugas land-in-trust status, municipalities would be able to appeal to the Department of Interior and then could appeal to a court with the stipulation they would have to demonstrate the granting of the application was arbitrary and capricious.
“Normally, the case law sides with the BIA, which is the fact of life in any large, administrative hearing,” Dorr said.
“Courts give great deference to the administrative process, whether it's the BIA, the IRS or the DEC, whether it's state or federal.”
Federal help
The Cayuga Nation is preparing to appeal its land claim case to the U.S. Supreme Court.
The federal Solicitor General's office has agreed to join the Cayugas in their appeal. The federal officials received an extension of the time they have to file their papers until Jan. 6, but they may ask for another extension.
Staff writer Amaris Elliott-Engel can be reached at 253-5311 ext. 282 or at amaris.elliot-engel@lee.net