Former BIA Assistant Secretary of Indian Affairs Carl Artman (By Gale Courey Toensing)

G2E Carcieri Panel Debates Bad U.S. Supreme Court Ruling

Gale Courey Toensing
10/11/11

Three speakers on a Carcieri panel at the Global Gaming Expo presented different perspectives and approaches to the U.S. Supreme Court land into trust decision that has roiled Indian country since 2009. But all three men agreed on one thing: The Carcieri ruling was not about off reservation gaming though it has been used by anti-Indian land rights opponents to bolster their arguments against Indian trust lands.

The panel drew a standing room only crowd. The Carcieri issue is heating up again as the congressional session moves forward with three pieces of proposed legislation for “fixing Carcieri.” Last year the fix was not considered on the floor as a stand-alone bill and failed to be attached as an amendment to an appropriations bill.

At G2E, moderator Tom Foley, president of Foley Law Group, introduced panel members: Robert Smith, chairman of the Pala Band of Mission Indians and chairman of the California Tribal Business Alliance; Carl Artman, general counsel  of the Miami Tribe of Oklahoma Business Development Authority and former Assistant Secretary-Indian Affairs; and John Tahsuda, vice president of navigators Global LLC.

“There are four separate words that I think all of us have heard -- ‘now under federal jurisdiction,’” Foley said. In 2009 the U.S. Supreme Court reversed decisions by a federal district court and an appellate court and issued a majority ruling that the Secretary of the Interior Department could not take land into trust unless  a tribe was “now under federal jurisdiction” when the Indian Reorganization Act passed in 1934. “So Justice (Clarence) Thomas in his controversial decision interpreted the word ‘now’ to basically mean 1934. The court said the language was clear and unambiguous. So what are the implications of this Carcieri decision? How does it affect tribal governments and land into trust applications? What is Congress doing – it’s been a couple of years and still no fix,” Foley said.

Smith, the first speaker, gave a tribal leader’s perspective. He reminded the audience that “it’s important to understand that tribal governments have the inherent right to exercise governmental authority over their members and lands and those rights predate colonization. It’s critical to protect tribal rights.” He said the federal government and states have implemented a number of failed statutes and policies that have affected tribal rights, but from 1934 until 2009, the Interior secretary was able to restore around 5 million acres of Indian lands – “far short of the 100 million acres lost through federal policies of removal, allotment and assimilation,” Smith said. Tribal governments have used the restored lands for housing, health care clinics, hospitals, schools, community centers and other purposes that service their citizens, Smith said.

“Legislation is needed to prevent irrevocable damage to tribal sovereignty, tribal culture and the federal trust responsibility. Carcieri affects the ability of tribes to place their traditional homelands into trust if they were not recognized as of 1934,” Smith said. “It creates two classes of Indians – those recognized in 1934 and those after. It establishes unequal treatment of federally recognized tribes which also contradicts congressional intent and policy and it threatens tribal sovereignty, economic self sufficiency and self determination. The importance of getting a legislative fix cannot be stressed enough as it impacts decisions around Indian country.”

Smith distinguished between the Indian Reorganization Act and the Indian Gaming Regulatory Act (IGRA) of 1988, which established a separate policy for taking land into trust for gaming. “Now to be clear Carcieri is not about off reservation gaming. The California Tribal Business Association is not opposed to tribes taking land into trust for gaming provided the land is on their ancestral homeland, but we are opposed to the policy called ‘reservation shopping’ where tribes take new land into trust dozens of miles away from their existing reservation on land to which they have no ancestral ties, solely for commercial gaming purposes,” he said.

Artman noted that the Carcieri decision was “not about gaming or off reservation gaming and I think many opponents have grabbed onto this relatively narrow decision…to make it look like it’s some big comment on where Indian country is going – where they would like it to be going, not where we want it to go.” Opponents of gaming or of taking land into trust for Indians are using Carcieri to bolster their opposition to taking land into trust “for whatever the purpose,” Artman said.

A “narrow reading” of the Carcieri decision “arguably impacts a very limited number of tribes. . . but just a slightly wider reading of Justice (Clarence) Thomas’s holding exponentially increases the number of tribes impact, Artman said. That’s why a fix is necessary, he said. “Without a fix either at the administrative level, the congressional level or perhaps one that’s starting with the tribes, this case will certainly be a millstone around the already belabored fee to trust process that the Interior Department is already struggling with and will become nothing more than a red herring in the ongoing debate about taking land into trust for gaming purposes, be it on or off the reservation.” Tribes like his own Oneida Indian Tribe of Wisconsin will be drawn into lawsuits defending their land into trust applications against challenges that are essentially baseless, but time consuming and costly, he said.

“But perhaps what’s even more worrisome than Carcieri itself is the spawn of Carcieri,” Artman said, citing the Salazar and Gun Lake Tribe’s versus Patchak petitions for certiorari currently waiting for the U.S. Supreme Court to decide whether to review the case.  This case challenges, among other things, the expanse of sovereign immunity reserved for the U.S. in the Quiet Title Act, which says the federal government cannot be divested of title to Indian lands.

“This does raise the specter that the Quiet title Act does not quiet title or even protect the sovereign immunity of the United States,” Artman said. “To the United States: Welcome to our party.”

The case is important, Artman said, because it forces the questions: How much of a threat is Carcieri not only to tribes that want to take land into trust, but also tribes that already have land in trust and may have “Carcieri issues,” that is, not being “under federal jurisdiction” in 1934.

Artman pointed to the Cowlitz Tribe for which Interior Department took land into trust at the end of 2010 by determining that the tribe has been “under federal jurisdiction” since 1855 even though it wasn’t  federally recognized until 2000.

“This sort of distinction put daylight between these two concepts—federal recognition and under federal jurisdiction and this, if allowed to stand, could be a cornerstone upon which you can build future cases for taking land into trust, especially for those tribes that have a Carcieri issue,” Artman said.

Despite two bills in the House and one in the Senate, Tahsuda said there are “internal divisions” among the nations and bipartisan opposition to a Carcieri fix. “I would anticipate anything that’s accepted is going to have to have some type of clarification on off reservation gaming land into trust by Interior. I’m pessimistic that any legislation can move forward without addressing this because of senators on both sides of the aisle that oppose it.”

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