The Prairie Band Casino and Resort off U.S. Highway 75 in northeast Kansas is a sprawling Las Vegas-style casino and hotel with an RV park and golf course that employs 750 and generates $65 million in annual revenue.
In 2000, the tribe submitted a permit to the U.S. Bureau of Indian Affairs (BIA) seeking to build a retail plaza anchored by a convenience store next door.
More than 20 years later, it’s still waiting for a decision.
Prairie Band Potawatomi Nation Chair Joseph Rupnick told congressional lawmakers on March 1 that boggy regulations hatched from convoluted federal land-use laws administered by a chronically underfunded, undermanned BIA are among the head-banging hurdles hamstringing economic development on many of the 325 Indian reservations within the United States.
“We started this project 22 years ago and we’re still not finished. Nowhere else in America does this type of bureaucratic stranglehold occur,” Rupnick testified before the House Natural Resources Committee’s Indian and Insular Affairs Subcommittee. “Frankly, what the government has done to us and our lands is nothing more than create a mess.”
Rupnick was one of four tribal leaders to speak to the panel during a hearing on “unlocking Indian Country’s economic potential,” orchestrated by chair Rep. Harriet Hageman (R-Wyo.).
Laws affecting 2.8 million members of 574 federally recognized Indian tribes are a muddled matrix of scaffolded complexities that have been tacked one upon another for more than two centuries. None are more clapboard than the land-use laws that regulate 56 million “Indian Country” acres nationwide.
Universal 99-Year Lease Law
The day before the hearing, Hageman filed legislation seeking to chip away at one of the growth-snuffing entanglements in Indian Country land-use regulations: a 25-year sunset on all leases of trust lands.“One of the biggest hindrances to economic development on tribal lands is the uncertainty associated with 25-year lease agreements,” Hageman said, noting her proposal would amend the 1955 Long-Term Leasing Act, which allowed tribal leases but required federal approval and limited their duration.
The act has since been amended by Congress more than 50 times to grant 99-year leases, she said, insisting her measure “will get rid of the piecemeal approach of the last 67 years.”
“Lands will be able to be used the way tribes want to use them to unlock economic potential,” she said.
Federal law defines Native American tribes as “domestic, dependent nations.” While “sovereign,” the federal government in treaty and subsequent agreements retains “trust responsibility,” which confers legal obligation and fiduciary responsibility to provide services to individual Native Americans and tribal governments on reservations.
There are three types of federal Indian Country land classifications: trust land, restricted fee land, and fee simple land, with the former two most affected by the 25-year lease cap.
Trust lands are held by the Department of the Interior on behalf of tribes and individual tribal members. They are essentially in the care of the federal government, exempt from state regulatory and taxing authority. They can’t be sold or leased without federal approval.
Restricted fee lands are also exempt from state taxation and regulation but are used by tribes and individual tribal members as homes and for business and other activities. They can be leased without federal permission, but for only 25 years.
Tribes say the BIA’s development approval process, which can involve check-offs from multiple federal agencies, hinders economic activity and fosters investment-zapping uncertainty.
“Many developers cannot partner with tribes for much-needed commercial, retail, or industrial projects without the certainty of longer-term land leases,” Hageman said. “By extending tribal land leasing, we will help to unlock economic potential and streamline development opportunities.”
Hageman’s proposal, similar to a measure introduced into the Senate last year, has bipartisan support, including from the subcommittee’s ranking Democrat, Rep. Teresa Leger Fernández (D-N.M.), who applauded the effort to create a rule “that will apply to all tribes.”
“This is not a silver bullet,” Fernández said, “but one of the important pieces” needed to streamline BIA land-use regulations.
Self-Perpetuating Disparities
Native Americans suffer significantly higher poverty than non-native communities, as the Indian Health Service (IHS) documents. This contributes to higher rates of unemployment and an underdeveloped business and entrepreneur environment in Indian Country, according to IHS and multiple analyses.Those disparities are rooted in land-use restrictions, such as the 25-year lease cap—themselves among lingering legacies of broken treaties, neglect, and “outright theft,” Rupnick said.
She said that without a “fiscal infrastructure” in place, many tribal roads, utilities, and public works degrade in a self-perpetuating downward spiral—and communities secure no financing because investors don’t like what they see.
Saunders said that about 350,000 reservation residents nationwide lack access to safe drinking water and that many more subsist with inadequate sewer, electricity, roads, and bridges.
A lack of access to broadband internet “makes a technically trained workforce and continuing education difficult,” she said, noting that 95 percent of reservation residents are unserved or have dodgy access to the internet.
The 34,000-member Tohono O’odham Nation’s reservation in south-central Arizona, which Saunders said is “the size of Connecticut,” spans 62 miles of the U.S.–Mexico border and includes 734 miles of BIA roads.
She said that Tohono O’odham roads have sinkholes, potholes, and washed-out bridges. “Flooding completely washes out our roads and makes them unpassable. This creates diminishing opportunities for development,” she said.
The nation’s planning and economic development department has a “BIA roads program” that charts maintenance and improvements but faces “chronic underfunding” and a morass of red tape from the BIA, Saunders said.
“The time that it takes to get that funding and contract in place to address the roads, [maintenance] is years behind,” she said, adding that in the past three years, the BIA has only authorized maintenance “for less than 100 miles” of the sprawling reservation’s roads.
“These fundamental deficiencies” in fiscal and physical infrastructure pose a persistent “barrier to reservation-based employment and economic development,” Saunders said.
Something We Can Use
Confederated Tribes of the Chehalis Reservation Chair Dustin Klatush said the Chehalis needed an exemption from the 1834 Non-Intercourse Act, which allowed the U.S. Army to destroy any distilleries discovered on supposedly sovereign reservations to build Talking Cedar, a restaurant, brewery, and the “largest craft distillery west of the Mississippi,” in Rochester, Washington, about halfway between Seattle and Portland on I-5.The 4,870-acre reservation is in a flood plain with little suitable land for development, but its proximity to I-5 makes it ideal for dining and entertainment development, Klatush said. But it was a long process to get Congress to repeal the otherwise obscure 1834 law.
The tribe has a new development proposal also taking advantage of its I-5 proximity: warehouses. In December 2022, Congress granted it one of the 50-plus 99-year lease amendments to the 1955 act to move forward with the project. Now, it awaits the BIA permitting process.
The 99-year lease applications “have always been noncontroversial,” but the Chehalis encountered “a drawn-out situation” with the amendment bill “being held in the Senate for reasons other than the merits of the bill itself,” Klatush said.
The Senate did adopt it, and the House sent it to President Joe Biden, who signed it in December. The tribe hopes to begin construction soon.
Klatush said “a priority is getting a 99-year bill adopted” to trim back costly federal agency reviews because time can be of the essence in economic development.
“The more time that passes, the more likely that outside interests” will lose interest or find another place for their investments, he said.
A key issue is staffing at the BIA. “There aren’t enough people in the BIA’s Northwest Regional Office to process routine applications and tasks,” Klatush said, noting that most of the staff continues to work remotely.
Rupnick said that after waiting for 22 years for the BIA to approve its development proposal, the Prairie Band Potawatomi Nation supports Hageman’s proposal because it would give it something it can use immediately.
The tribe manages 30,000 acres, including 15,000 fee land acres, in southwest Oregon and a casino resort off I-5 that draws 1 million visitors a year and employs more than 800 people.
Robison said the Cow Creek Band seeks 99-year leases to manage forests “under tribal rules, not federal rules” for timber harvests by tribal managers who are more responsive, saying the BIA permitting process that could often take years “can now be done by the tribe in a few months while still complying with federal law.”
Rupnick said tribes have other priorities for the newly convened two-year congressional session, including bills imposing a 90-day lease process.
He said that he’d like to see a bill to recognize that his nation is the owner of the land.
“The federal government should be able to protect our lands from sale and external taxation, but not interfere in tribes’ land-use decisions,” he said.
