Indian Law & Policy Update, November 10, 2020
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Indian Law & Policy Update, November 10, 2020

Brownstein Client Alert, November 10, 2020

With former Vice President Joe Biden winning the 2020 presidential election and Republicans poised to maintain control of the Senate, the American Indian Law & Policy Group looks ahead to 2021 and beyond to see how this election will impact Indian country. Below, our team provides a forecast of the priorities that a Biden-Harris administration and the 117th Congress may have with regard to Indian country.

Biden-Harris Will Look to Overhaul Trump Administration Policies on Fee-to-Trust

We anticipate that a central feature of the Biden administration will be overhauling the process for federal acquisition of land on behalf of tribes. One of the most important functions served by the Department of the Interior (“Department”) on behalf of tribes is the acquisition of land into trust. Between 1887 and 1934 the General Allotment Act and other federal policies resulted in the loss to tribes of 90 million acres. Tribes continue to suffer harmful effects from the division and public sale of their land. Tribal sovereignty and the acquisition of trust land are deeply intertwined, as tribal authority extends over trust lands and is vital to tribal self-determination. Many federal programs designed to benefit tribes are only made available on trust or reservation lands.

Over the course of the Trump administration, the Department implemented a number of changes to the fee-to-trust process, including increased scrutiny of off-reservation trust applications, the halting of fee-to-trust acquisition in Alaska and withdrawal of an Obama-era M-Opinion that sought to resolve issues following the Supreme Court’s decision in Carcieri v. Salazar. We anticipate a swift rollback of several of these policies and attention to the fee-to-trust process as it is currently implemented at the Department.

Scrutiny of Off-Reservation Trust Applications at Central Office

In an April 2017 memorandum, the Department delegated all off-reservation trust application decisions to the acting assistant secretary of Indian affairs at the central office in D.C., departing sharply from the previous practice that delegated authority to Bureau of Indian Affairs (BIA) regional directors. This directive, and subsequent interim policies, has created a substantial backlog of fee-to-trust applications before the Department.

The Trump administration resulted in 75,000 acres of land taken into trust on behalf of Indian tribes in the last four years, compared to more than 500,000 acres taken in trust during the Obama administration. We expect a return to Obama-era policies under the incoming Biden administration, including a streamlining of the fee-to-trust application process under regional BIA review.

Alaska Fee-to-Trust

The Biden administration is also very likely to reverse the Trump administration’s actions on fee-to-trust in Alaska. Until 2014, the Department’s regulations largely excluded the acquisition of land into trust in Alaska, known as the “Alaska Exception.” Following an opinion by the D.C. district court favorable to Alaska Native tribes, the Department removed the Alaska Exception from its fee-to-trust regulations. However, the Trump administration removed the legal opinion supporting fee-to-trust acquisitions in Alaska, effectively placing a moratorium on all fee-to-trust applications in Alaska. We expect the Department to reverse course on this quickly during Biden’s presidency.

Carcieri Analysis

Finally, we expect a return to Obama-era interpretations of the “under federal jurisdiction” analysis outlined in Carcieri v. Salazar. In response to uncertainty posed by the Supreme Court’s decision in Carcieri, the solicitor’s office issued Opinion M-37029 that put forth a two-part test to determine whether a tribe was “under federal jurisdiction” in 1934 and could therefore benefit from the Indian Reorganization Act’s (“IRA”) land into trust provisions. The Trump administration withdrew M-37029, concluding that it was inconsistent with the ordinary meaning and relevant context of the phrase “recognized Indian tribe now under federal jurisdiction.” The D.C. district court reviewed the solicitor’s office memorandum during the course of litigation over a contested trust acquisition for the Mashpee Wampanoag Tribe. The court criticized the Department’s explanation and noted that the Trump administration’s guidance would confuse and further complicate the fee-to-trust process.

We anticipate that the Biden-Harris administration will adopt a similar interpretation and analysis as the one expressed in M-37029.

Health Policy and Access to Technology Will Be Central to Biden-Harris Administration

Considering the COVID-19 pandemic and challenges to the Affordable Care Act, it’s not surprising that health care is a central policy priority of the Biden-Harris administration. With COVID-19’s particularly devastating impact in several Native communities, we anticipate that the new administration will have ambitious plans for the Indian Health Service and addressing access to care in Indian country. The Biden-Harris campaign has already promised to increase the number of doctors and nurses in Indian country through incentive programs such as scholarship and grant opportunities, as well as student loan forgiveness.

A move toward more telemedicine and technologically-assisted care will also likely be prioritized. This means closing the “digital divide” and making broadband access a priority. The Biden administration intends to make digital equality the centerpiece of its broadband policy. It will move aggressively to close the digital divide in all areas, rural, urban and on tribal lands. It likely will seek to include significant funding for broadband deployment as part of an infrastructure plan, including targeting specific amounts for tribes.  Further expanding telehealth opportunities in Indian country may include reopening the window for tribes to apply for 2.5 GHz spectrum to use for wireless broadband services. During the Trump administration, more than 400 tribal entities applied for access to free broadband spectrum.

Energy and Climate Policy Shifts Could Bring Opportunity to Indian Country

The Trump administration prioritized energy development and U.S. “energy dominance,” stressing independence from foreign oil and other sources of energy. It is likely that concerns related to climate change and environmental stewardship will shift broader energy policy priorities dramatically. With regard to Indian country, Biden’s “Build Back Better” plan promises to “[e]nsure equity in Biden’s bold infrastructure and clean energy investments,” including for American Indians and Alaska Natives. We expect Congress and the Biden administration to continue current investments in tribal energy within the Department of the Interior, including Tribal Energy Development Capacity grants (TEDC) and Energy and Mineral Development Program (EMDP) grants, perhaps prioritizing tribal renewable or sustainable energy projects such as solar or biomass. There will likely be a push to see large solar projects on tribal lands like the Moapa Southern Paiute Solar Project in Nevada, which was completed during the Obama administration.

The Department of Energy may also see additional resources in its Office of Indian Energy Programs. The Biden administration will likely continue with many of the funding opportunities announced under the Trump administration, including $15 million to deploy energy technology on tribal lands announced in March 2020. Some programs and offices, such as the Loan Programs Office, will likely be reorganized to assist in deploying more clean energy technologies. The Loan Programs Office currently offers loan guarantees for tribal energy programs. Congressional action will be needed to fully unlock potential funding opportunities since many tribes do not meet eligibility and cost-share requirements, which could be a bi-partisan priority for future appropriations or infrastructure packages. Further, a stimulus package in the new year targeting tribal infrastructure, along with the Biden administration’s promises to promote access to clean energy in Indian country could result in increased funding opportunities in 2021.

Potential Addition to Native American Caucus Could Signal More Bipartisan Support for Indian Country

Bipartisan cooperation and support will be critical to the success of Indian country priorities during the Biden administration. Because the administration will likely be faced with a Republican-controlled Senate, having allies on both sides of the aisle and in both houses of Congress will be critical to tribes. A race in New Mexico’s 2nd Congressional District may have yielded another ally for tribal priorities in the House of Representatives. Former Republican state Rep. Yvette Herrell, a member of the Cherokee Nation, defeated Democratic Congresswoman Xochitl Torres Small by a margin of 54% to 46% in a race that pollsters predicted would be decided by no more than 2%. Herrell was aided by a strong Republican turnout in the predominately red counties of the district. Herrell lost the district to Torres Small in 2018 by a margin of 50.9-49.1%. Rep. Torres Small had a strong record of support for Native priorities. We anticipate that Herrell’s Cherokee citizenship, combined with her many years of experience in New Mexico, will yield strong support for Indian country in the tradition of many members from New Mexico.


This document is intended to provide you with general information regarding American Indian law and policy updates. The contents of this document are not intended to provide specific legal advice. If you have any questions about the contents of this document or if you need legal advice as to an issue, please contact the attorneys listed or your regular Brownstein Hyatt Farber Schreck, LLP attorney. This communication may be considered advertising in some jurisdictions.

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