Jefferson Keel, the president of the National Congress of American Indians, urged Congress to support legislation that clarifies the Secretary’s authority to take land into trust for all federally recognized tribes.

Experts Urge Congressional Carcieri Fix—Again

Gale Courey Toensing
John Echohawk

More than a dozen lawsuits are clogging federal and state courts in what Native American Rights Fund (NARF) Executive Director John Echohawk called “a judicially-created crisis precipitated by the U.S. Supreme Court’s 2009 decision in Carcieri v. Salazar.”

Echohawk made a powerful argument to the Senate Committee on Indian Affairs (SCIA) for the quick passage of a “clean Carcieri fix” to affirm the Interior Secretary’s authority to take land into trust for all federally acknowledged Indian nations. The event was a SCIA oversight hearing called by Sen. Daniel Kahikina Akaka on September 13 on "Addressing the Costly Administrative Burdens and Negative Impacts of the Carcieri and Patchak Decisions."

“Last year, NARF came before this Committee on two separate occasions to discuss the Carcieri crisis—a judicially-created crisis precipitated by the U.S. Supreme Court’s 2009 decision in Carcieri v. Salazar. Today, we are here because of the Supreme Court’s more recent decision in Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians (Gun Lake Tribe) v. Patchak,” Echohawk said. “But make no mistake: the Patchak decision is direct evidence of the judicially-created Carcieri crisis. In other words, Patchak is but a symptom of the larger Carcieri problem—a problem which can only be solved by Congress.”

The high court’s 2009 Carcieri ruling has created chaos and uncertainty to both established and new trust land acquisition along with the glut of lawsuits that Echohawk lists in his written testimony. The Carcieri ruling held that the Interior Secretary is authorized to take land into trust only for Indian tribes that were "now under Federal jurisdiction" in 1934 when the Indian Reorganization Act was passed. No definition was given as to what “under federal jurisdiction” means. “We warned this Committee, and this Congress, that a significant number of cases are moving through the federal courts and the administrative process using Carcieri to harass Indian tribes and delay trust land acquisitions—many times in situations where there should be no question whether an Indian tribe was under Federal jurisdiction in 1934,” Echohawk said. But  the claims are becoming even more insidious. “In addition to the question of whether a tribe was ‘under Federal jurisdiction’ in 1934, there are now challenges as to whether a tribe also had to be ‘federally recognized’ in 1934; whether the tribe even existed as an Indian tribe in 1934; or whether the tribe today is even ‘Indian’ and should have ever been federally recognized.”

The awfulness of the Carcieri ruling was augmented June 18 when the Supreme Court ruled that David Patchak has standing to sue the Interior Department for taking land into trust for the Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians for it casino in Wayland County, Michigan, which opened in February 2011. Patchak’s original lawsuit is a Carcieri claim that Interior could not acquire the land in trust for Gun Lake because the tribe was not “under federal jurisdiction” in 1934. A federal court dismissed the lawsuit on the procedural ground that Patchak did not have standing to pursue it because the Quiet Title Act (QTA) protected Indian trust lands from legal challenges. An appeals court reversed that ruling and expanded the criteria for “standing,” which had required someone to be injured or affected by an action. Gun Lake and the Department of Justice petitioned the Supreme Court to review the appeals court decision. The Supremes’ ruling—an 8-1 decision with Justice Sonia Sotomayor dissenting—remanded the case back to the district court for a trial on the merits of Patchak’s Carcieri arguments. If Patchak prevails, Interior’s trust acquisitions could be challenged for six years after the department acquires trust land for an Indian tribe.

Because Congress failed to enact legislation fixing the Carcieri ruling, Patchak “has trampled over the sovereign immunity of the United States and eviscerated the once-broad protections for Indian lands under the Quiet Title Act,” Echohawk said. Patchak has also “barreled-open the court room doors” for Administrative Procedure Act challenges by any non Indian who claims to be “harmed” by an Interior decision that may benefit Indian tribes, he said.

Donald ‘Del’ Laverdure, acting assistant secretary of Indian Affairs, said the Carcieri and Patchak decision have forced the Interior Department and many tribes “to spend an inordinate amount of time” and money analyzing whether a tribe was “under federal jurisdiction” in 1934—only to face more costly litigation if Interior decides to acquire the trust land. “The Secretary’s authority to acquire lands in trust for all Indian tribes, and certainty concerning the status of and jurisdiction over Indian lands, touch the core of the federal trust responsibility,” Laverdure said. “A system where some federally recognized tribes cannot enjoy the same rights and privileges available to other federally recognized tribes is unacceptable. “

Jefferson Keel, the president of the National Congress of American Indians, also urged Congress to support legislation that clarifies the Secretary’s authority to take land into trust for all federally recognized tribes.” Every time an Indian tribe acquires land, the tribe uses the land to build housing or a health clinic, to protect natural or cultural resources, or to pursue economic development that creates jobs for Indian people and their neighbors. Mostly importantly, restoring tribal lands helps to reverse centuries of federal policies that have prevented Indian Nations from reaching their potential,” he said.

Colette Routel, associate professor of law at William Mitchell College of Law in St. Paul, appeared before the SCIA for the third time in support of a clean Carcieri fix. She talked about the risk to tribes’ lands and economies brought on by the high court’s rulings. “Before Patchak, the Carcieri decision brought new trust acquisitions to a halt. After Patchak, tribes will be faced with a new wave of lawsuits seeking to take their land out of trust,” Routel said, noting that even projects financed and developed before the Carcieri decision are now at risk.  Successful litigation against a trust acquisition could shift a tribe's business or housing project outside of Indian country and subject it to state law that could prohibit its continued operation or require the payment of property, sales, and other state and local taxes, she said. Patchak will make it harder and more expensive for tribes to borrow money for new economic development because investors will be leery about potential challenges to land-into-trust decisions. “Will land lie fallow for six years after its acquisition? Or will tribes risk building a business on trust property that they could later be compelled to shut down if a lawsuit is filed years later?“ she asked.

Although the panelists urged Congress to move quickly on a clean Carcieri fix, most people believe that nothing is likely to happen before the November 6 elections. “Our best window of opportunity in 2012 will happen during the lame duck session from mid-November to mid-December,’’ Ernie Stevens Jr., chairman of the National Indian Gaming Association told Indian Country Today. Carcieri is not an Indian gaming issues, Stevens said. “It's important to remind the congressional decision makers that the Carcieri case involved a housing development for [Narragansett Indian Tribe] tribal elders, not a gaming project. Most members of Congress understand that this is about jobs and about protecting tribal sovereignty. We have broad bipartisan support in the House, and Senator Akaka has made it one of his top priorities.’

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