QUESTIONS AND ANSWERS about the Disrespect of the Federal Trust Responsibility and System of Overwhelming Taxation without Representation.

Q. What is the process of placing land into the Federal Indian Trust?

A. Land into Trust is a real estate transaction which converts land from private or individual ownership to federal ownership. Once the process is complete, the land belongs to the Federal Government and is reserved for the exclusive use of federally-recognized tribes only and for 10,000 years of back taxes!

Q. Why don’t Tribes and individual Indians purchase and own land in the same way as any other private person or entity?

A. Technically, Tribes and individual members can and sometimes do own land outside the trust system, but it is much more beneficial for Tribes to place land in trust. For instance, Trust land is exempt from state and local taxes and local land use regulations. That’s how Indian Tribes have been able to locate casinos near neighborhoods where such use would not be allowed under local zoning laws. In most states, Trust land is also outside the jurisdiction of local law enforcement, even when it is located inside a municipality’s city limits, creating a confusing patchwork of privately-owned, state-owned and tribally-owned lands that can be a jurisdictional nightmare for law enforcement and child protective services. Those already muddy waters are even less clear as we begin to see the full impact of the U.S. Supreme Court decision in McGirt vs. Oklahoma. Avoiding the jurisdiction of local and state governments (and avoiding paying local and state taxes) are the primary reasons Indian Tribes apply to the Bureau of Indian Affairs to convert land into Trust. The BIA also has its own incentive to gobble as much private land as possible into the Federal Trust, because the more land it controls, the greater its bureaucratic power. Control of land also includes control of the water, minerals and other resources associated with the land.That’s why current Secretary of the Interior Deb Haaland stated that “taking land into trust is one of the most important functions Interior undertakes on behalf of Tribes.” Under the Biden Administration, the Department of the Interior has taken steps to ensure that more and more private land is pulled into the government-controlled Trust.

Q. Who controls the Land to Trust process?

A. Technically, there are no laws governing this process and no Congressional oversight. The process is set out and governed by federal regulations created and controlled by the Department of Interior. Unlike acts of Congress, which go through the House and Senate approval process and then are signed into law by the President, federal rules and regulations require no approval outside the agency that writes them.

Q. If Tribes and individual owners have to agree to placing land in trust, what’s the harm?

A. First of all, the Federal Government and Tribes are becoming more and more brazen about exploiting the Trust process to grab lands from unwilling and even non-Indian owners. One example was the Environmental Protection Agency’s unilateral decision under the Obama Administration to expand the Wind River Reservation in Wyoming by a million acres, taking in the city of Riverton and two smaller towns and confiscating the property of Indians and non-Indians alike, without their consent. An additional 500,000 acres were taken into Trust during the Obama presidency. Under the Trump Administration, rules were implemented that slowed down the Indian Trust land grab and only 75,000 acres were added during his term. But those protections largely have been rolled back as part of Biden’s promise to return to Obamaera policies on Indian affairs. Secondly, maintaining federal control of otherwise private lands hurts everyone. Federal regulations require local communities to provide fire protection, road maintenance and other services to Trust Lands, even though those properties are immune from property taxes, building codes and other local regulations. So the presence of Trust Land in a community always reduces the tax base while increasing the expense of providing essential services. Economic development also is impeded because navigating the BIA Trust process can add years to any land sale, discouraging businesses from purchasing Trust Land for relocation and expansion. For those located next door to Trust Lands, which can be used for virtually any purpose without being subject to zoning laws or other local regulations, the system is a nightmare. The fact that the BIA and other federal agencies can grab up land with no oversight from the other branches of government undermines our democracy and its intended systems of checks and balances. In conclusion, the Tribal solution is more cross-deputization of law enforcemen and more authority for tribal courts in the enforcement and expansion of the Federal Trust Responsibility.