Carcieri: Indian Country's 'Number One Priority'

Carcieri: Indian Country's 'Number One Priority'

Gale Courey Toensing
12/1/11

Legislators in the House and the Senate have promised to move a Carcieri fix forward during the current congressional session.

Sen. Daniel Kahikina Akaka (D-Hawaii) and Rep. Tom Cole (R – Okla.) both have bills pending that would reaffirm the Interior Secretary’s authority to take land into trust for all federally acknowledged tribes.

“As chairman of the Senate Committee on Indian Affairs, I will exercise every legislative opportunity at my disposal to bring forward Indian country’s number one priority: a Carcieri fix,” Akaka told Indian Country Today Media Network on November 30.

Cole, a member of the Chickasaw Nation, is also determined to act on a Carcieri fix, his press secretary Jocelyn Rogers said. “Congressman Cole remains committed to passing the Carcieri fix and is exploring all possible vehicles to ensure its passage by the end of the year,” she said.

February 24, 2012 will mark the third anniversary of the U.S. Supreme Court’s Carcieri v. Salazar ruling, an eight-to-one decision that the Interior Secretary has the authority to take land into trust only for a “recognized Indian tribe under federal jurisdiction” in 1934 when the Indian Reorganization Act (IRA) was passed. The ruling reversed 75 years of practice in which the Interior Department has taken countless acres of land into trust for dozens of tribes who were federally acknowledged over the decades since the IRA passed.

A number of legislators immediately promised a quick fix to the disastrous ruling, which has virtually frozen land into trust transfers for Indian nations, but they didn’t anticipate running up against such strong opposition to Indian land rights. Now, with time running out on the first session of the 112th Congress, both proponents and opponents of a fix will be pushing to have their bills passed – almost certainly by attaching them to must-pass appropriations bills.

There are at least nine bills or amendments pending. The bills would either provide a “clean Carcieri fix” – a clarification that the Interior Secretary has the authority to take land into trust for all federally acknowledged tribes – or they would limit or eliminate tribes’ ability to take land into trust.

The legislators opposed to a clean Carcieri fix outweigh the supporters 5-3. They are Senators Dianne Feinstein (D-Calif.), John McCain (R-Arizona) and Jon Kyl (R-Arizona), and Congressmen Charlie Dent (R-Penn.) and James Lankford (R-Okla.)

The clean Carcieri fix became controversial last year when some legislators, including Feinstein and McCain, conflated the 1934 Indian Reorganization Act, which clearly has nothing to do with gaming, with the 1988 Indian Gaming Regulatory Act (IGRA) in efforts to stop tribal nations from placing “off reservation” lands into trust for gaming.

The IGRA generally prohibits Indian gaming on land acquired after its enactment on October 17, 1988, but it provides exceptions to the prohibition in a process called the Two Part Determination. The process is so demanding that only six applications have been approved since 1988. Feinstein’s bill, the Tribal Gaming Eligibilibity Act or S. 771 would amend the IGRA by placing restrictions on the conduct of gaming on lands taken into trust after October 17, 1988, as part of a land claim settlement, as an initial reservation for a newly recognized tribe, or as restored lands for a restored tribe. In addition, a tribe would have to demonstrate both a modern and an aboriginal connection to the land they wish to game on – two totally random new requirements.

Feinstein will try to push her bill through, said Joe Valandra, Sicangu Lakota, and principal owner and president of VAdvisors, LLC, a specialty advisory firm with an expertise in gaming. “Dianne Feinstein is not being quiet. She wants something to happen and she’s still looking for a vehicle to move her bill through,” Valandra said. “I think – and this is my opinion -- that if and probably when the Internet gaming bill begins to actually get marked up so it can move, that’s when we’ll see Sen. Feinstein try to attach her bill.”

Valandra said that McCain was likely to use the same tactic of attaching his bill to one of the must-pass appropriations bills “Both Sen. Feinstein and Sen. McCain will probably couch it in terms of a compromise, that wouldn’t surprise me at all if that’s the tactic they try to use.”  One point of leverage might be to allow the National Indian Gaming Commission to have regulatory authority over tribal government Internet gaming, which has been proposed by the National Indian Gaming Association, Valandra said.

As a counterpoint to the Feinstein and McCain bills in the Senate, Akaka’s bill, S. 676, would amend the 1934 statute by striking “any recognized Indian tribe now under federal jurisdiction” and inserting “any federally recognized Indian tribe.” In the House, Chickasaw Nation citizen Rep. Tom Cole, (R – Okla.) and  Rep. Dale Kildee (D-Mich.) sponsored two proposed Carcieri fix bills – HR 1291 and HR 1234, respectively.  Both bills include language almost identical to Akaka’s bill, but H.R. 1291 includes a provision that would exclude Alaska Native tribes and communities from taking lands into trust under the IRA.

In a recent opinion piece in The Hill, Akaka and Cole cited a study that showed more than 140,000 jobs would become available in the first year after a Carcieri fix. “Many of these new jobs would require a specialized, non-native workforce. With the creation of these jobs, badly needed schools, senior centers and tribal housing can finally be built on tribal lands. Reversing Carcieri would provide people who live in economically repressed areas surrounding reservations with an opportunity to work, sell their services and products, and regain the opportunity to support their families,” they wrote.

Meanwhile, the National Congress of American Indians and the Western Region Tribes have petitioned Congress to pass a clean Carcieri fix. The Western Region Tribes’ document was signed by almost 50 tribal nations. The NCAI’s petition “urging swift enactment of the Carcieri Fix legislation,” has been circulating since June and at last count had more than 100 tribal signatures, said Judy Shapiro, a Washington-based Indian law attorney, who is collecting signatures.

Shapiro said that legal challenges brought on by the Carcieri decision threaten all tribes. “As new cases progress, the threat is clearly broadening, with the Supreme Court’s consideration of the Patchak case, all tribes should be aware that the status of trust land is no longer secure.”  In the Patchak case, an appeals court said David Patchak, a former trustee in Wayland County, Michigan, has standing to bring a lawsuit against the Interior Department for taking into trust 147 acres near Grand Rapids where the Gun Lake Tribe operates its casino. The ruling reversed a decision by the Washington federal district court that said Patchak did not have standing and was barred from filing the complaint by the Quiet Title Act (QTA), which says the federal government cannot be divested of title to Indian trust lands. The appeals court expanded the previous criteria for “standing”—the right to initiate a lawsuit—which basically requires someone to be injured or affected by an action by granting Patchak “prudential standing.”

“We still don’t know what new threats to tribal sovereignty may be posed by cases working through the courts, or not yet filed,” Shapiro said. “All tribes should press their congressional delegations for a quick and clean legislative correction to the Carcieri decision, to protect tribal trust lands now and in the future.” Tribal governments that wish to sign the petition can contact Shapiro at jshapirolaw@earthlink.net.

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