September 20, 2001
A Communication From the States of:
Alabama, Alaska, Arizona, Colorado,  Connecticut, Florida, Idaho, Indiana, Kansas, Louisiana, Michigan, Mississippi, Missouri, Nevada, New Jersey, New Mexico, North Dakota, Ohio, Rhode Island, South Dakota, Utah, Vermont, Wisconsin, Wyoming

The Honorable Gale Norton
Secretary of the Interior
Department of the Interior
1849 C Street N.W., Rm. 6151
Washington, DC 20240

Attn: Mr. Terry Virden, Office of Trust Responsibilities

Re: Comments on Proposal to Withdraw Published Rule on Acquisition of Title to Land in Trust; Federal Register Notice, 66 Fed. Reg. 42,474 (August 13, 2001)

Dear Secretary Norton:

We, the undersigned State Attorneys General, strongly endorse the Department's most recent proposal to withdraw the rule governing the acquisition of title to land in trust for Indian tribes, published January 16, 2001, 66 Fed. Reg. 3452, but not yet effective. See Notice, 66 Fed.Reg. 42,474 (Aug. 13, 2001). This pending rule has generated significant opposition from state and local governments, as it fails to respect key state sovereign interests, while attempting to accommodate the legitimate interests of Indian tribes. 

As you know, more than twenty Attorneys General set out detailed comments with regard to the pending rule in two letters this year, dated June 15, 2001, and March 7, 2001, respectively, articulating our view that the rule is significantly flawed. Additionally, when the rule was first proposed, the National Association of Attorneys General forwarded comments, dated November 12, 1999. As before, the comments made in those letters are still highly germane and express the serious concerns of the state Attorneys General concerning this rule. 

Upon withdrawal of this pending rule, and in contemplation of the Department drafting a new rule, we urge you to convene several public sessions with those parties most seriously affected by the taking of land within a State and placing it in trust for Indian tribes. Such discussions should include interested State Attorneys General and allow for a thorough exploration of the interests of all the parties and an evaluation of the most appropriate federal process for such acquisitions. As we noted in our last letter, we urge the Department to facilitate a constructive dialogue between the federal, state and tribal governments, based on consultation, cooperation and communication, one that serves to accommodate the important interests of all the governments involved. 

The August 13, 2001 notice (of the proposed withdrawal of the published rule) also indicates that the Department is considering amending specific sections of the rule based on many comments it received. Although the comments previously submitted by the States address each of these areas, the undersigned are gravely concerned that the proposed amendments to these specific areas fail to adequately consider the States' concerns. These concerns are outlined briefly below. 

First, the undersigned have concerns regarding the "expedited" process for handling individual applications for lands into trust for housing or home site purposes. The Department suggests expediting these types of applications and identifies these applications as those containing five acres of land or less for the purpose of meeting individual housing needs. This proposed expedited process seems unwarranted for tribes that already possess sizable reservations or when the five acres may be in the middle of a highly urbanized or rapidly developing suburban area. At a minimum, limitations must be placed on any provision allowing for an "expedited" process for any application to take land into trust. 

Second, the Department addresses provisions regarding Tribal Land Acquisition Areas (TLAAs). The Notice states the Department is considering requiring that a tribe submit land use plans for the area to be acquired and that the Secretary approve the plan as part of her review of the application. However, as specifically set forth in our March 7, 2001 and June 15, 2001 letters, we strongly oppose the creation of TLAAs altogether and request that these provisions be completely removed from the new rule. No authority exists in the text of 25 U.S.C. § 465, nor in the Indian Land Consolidation Act, 25 U.S.C. § 2202, nor anywhere else, which supports the creation of a TLAA. 

We believe that the mere addition of a land use plan does not overcome the fundamental flaws inherent in the concept of a TLAA. Indeed, while the Secretary may have authority under 25 U.S.C. § 467 to create reservations, that authority is also limited by the definitions and legislative history of the Indian Reorganization Act of 1934 (IRA), which has been forgotten or ignored as the TLAA concept has evolved. As the rule was originally proposed in April 1999, a TLAA was to be created only for "reservationless" tribes. The final, expanded definition of a TLAA goes well beyond the original concept, allowing what is essentially an "on-reservation" process for an "off reservation" acquisition, including for tribes that already have a land base, but who desire greater economic self-sufficiency. The standards for approving a TLAA are broad and general, see rule sec. 151.21, and give little or no consideration to potential adverse impacts on state and local governments and communities. Given the lower standards for a subsequent acquisition of land within an approved TLAA, the process avoids altogether the higher standards expected for an off-reservation acquisition. Even if legal authority existed for the creation of a TLAA, any petition to take land into trust within a TLAA must be processed the same as any other petition for an off-reservation land acquisition.

Third, the Department states that it is considering clarifying the standards that will be used to determine whether to approve a trust application. The States support clarifying these standards. However, the Department's newly suggested standards raise additional concerns and fail to equalize the burdens of proof discussed in our June 15, 2001 letter. The proposed "substantial evidence" burden of proof for applicants is a lesser standard than the "clear evidence" standard placed on opponents of the land acquisition. It appears to us that the burden on the tribe wishing to have taken off-reservation land into trust is too light and the burden on opponents of the acquisition is inequitably heavy, including a showing of "severe negative impact" or "severe harm." The August 13 Notice, then, heavily favors tribal land acquisition both on- and off-reservation and places unreasonable standards upon State and local governments in opposing any such acquisition. As trust land is carved out of state lands, particularly for use in significant tribal economic development projects, the State Attorneys General have legitimate concerns about the impact upon existing land use patterns, the environment, clean water, clean air, species and habitat protection, traffic and transportation congestion, the local tax base, public safety and the general welfare of both the Indian and non-Indian citizens involved. Given the unique, sovereign interests of state and local governments on the one hand, and tribal governments on the other hand, the undersigned urge the Department to establish more equitable standards consistent with comments already submitted, particularly those of June 15, 2001. 

Fourth, we wish to re-state some of our earlier recommendations. The new rules should provide that any objection to an on- or off-reservation acquisition from a State or local government would trigger an automatic consultation between the Department, the tribe, and the opponents and seek to negotiate a cooperative agreement. Additionally, the new rule should refer all such disputes to a neutral hearing officer in the event a cooperative agreement cannot be reached. Finally, the new rules must clarify who shall hear appeals of a decision to take land into trust and clarify the appeal process. As discussed in our comments submitted March 7, 2001, such language in the new rule would restore public confidence in the process and ensure that all applications are considered in an unbiased manner. 

Finally, the Department states it is considering whether to extend the length of time that States and local communities have to comment on trust applications. We support the Department's considering of extending from 30 days to 60 days from the time of notice that States and local governments may comment on proposed on-reservation acquisitions, and extending the time from 60 days to 90 days in the case of off-reservations acquisitions. As discussed in our June 15 letter, the current 30 and 60 day limits are simply inadequate for States to investigate the application and respond properly. However, of equal significance are the notice concerns raised in our November 12, 1999 letter. We reiterate the States' and local governments' need to receive adequate information in a convenient and timely manner. The rule should require that all information submitted by applicants be sent to the State and local political subdivisions for all discretionary as well as "mandatory" acquisitions; religious and sacred site information can be redacted. We suggested various alternative methods of notifying State and local governments in the November 12, 1999 letter. The Department has not yet incorporated language into the rules to address these suggestions.

In short, the undersigned State Attorneys General support withdrawal of the final rule so that the Department may further consider the best interests of all parties affected by the rule. Before a new rule concerning acquisition of title to land in trust is promulgated, we urge the Secretary to open a dialogue between the States' Attorneys General and the Department. Reopening the comment period and opening a dialogue with the States, local governments, and others should ensure that all views are considered and that issues are fully developed. We further recommend that, before promulgating any future rule, the Department review the comments filed in the November 12, 1999 letter from the National Association of Attorneys General and our letters dated March 7, 2001 and June 15, 2001. 

The Attorneys General appreciate the opportunity to comment on the proposed withdrawal of the rule and look forward to working with the Department to craft a rule that equitably addresses all of these important issues.

Sincerely,


Attorney General Bill Pryor
Attorney General of Alabama

Attorney General Bruce Botelho
Attorney General of Alaska

Attorney General Janet Napolitano
Attorney General of Arizona

Attorney General Ken Salazar
Attorney General of Colorado

Attorney General Richard Blumenthal
Attorney General of Connecticut

Attorney General Robert A. Butterworth
Attorney General of Florida

Attorney General Alan Lance
Attorney General of Idaho

Attorney General Steve Carter
Attorney General of Indiana

Attorney General Carla Stovall
Attorney General of Kansas

Attorney General Richard P. Ieyoub
Attorney General of Louisiana

Attorney General Jennifer Granholm
Attorney General of Michigan

Attorney General Mike Moore
Attorney General of Mississippi

Attorney General Jeremiah W. Nixon
Attorney General of Missouri 

Attorney General Frankie Sue Del Papa
Attorney General of Nevada

Attorney General John Farmer
Attorney General of New Jersey

Attorney General Patricia Madrid
Attorney General of New Mexico

Attorney General Wayne Stenehjem
Attorney General of North Dakota

Attorney General Betty D. Montgomery
Attorney General of Ohio

Attorney General Sheldon Whitehouse
Attorney General of Rhode Island

Attorney General Mark Barnett
Attorney General of South Dakota

Attorney General Mark Shurtleff
Attorney General of Utah

Attorney General William H. Sorrell
Attorney General of Vermont

Attorney General James E. Doyle
Attorney General of Wisconsin

Attorney General Hoke MacMillan
Attorney General of Wyoming