Sen. Dianne Feinstein (D-Calif.) continues to make headlines for her opposition to a clean Carcieri fix.

So Close! How the Senate Almost Passed a Clean Carcieri Fix

Rob Capriccioso


Sen. Dianne Feinstein (D-Calif.) is again making headlines for her opposition to a clean Carcieri legislative fix to a controversial 2009 Supreme Court decision that limited the U.S. Department of the Interior’s ability to take lands into trust for tribes recognized after 1934.

In an exclusive Indian Country Today Media Network interview, Loretta Tuell, former staff director of the U.S. Senate Committee on Indian Affairs under retired Sen. Daniel Akaka (D-Hawaii), sheds light on just how close the Senate came to passing a clean Carcieri fix in the 112th Congress last fall—over the wishes of Feinstein and other senators.

A clean Carcieri legislative fix – that would not limit sovereignty for any tribes – was the major tribal issue Sen. Akaka worked on passing during his last year in Congress—how did he and you feel that it didn’t get done? What is the real reason it didn’t happen?

Chairman Akaka and I were both disappointed that final passage was not achieved. The senator knew that the Carcieri issue was the number one priority for President Obama and Indian country. In response, he quickly introduced and marked up a bill to amend the Indian Reorganization Act [to make it clear that the Act referred to all tribes, not just ones recognized by the federal government before 1934]. Then, over the course of the 112th Congress, he looked for opportunities to move the bill. Along the way, the senator developed a solid legislative record, educated members, and secured bicameral and bipartisan support. He also secured an agreement with Majority Leader [Harry] Reid [D-Nevada] to bring the bill to the floor during the lame-duck session [last fall].  With all that said, when the bill was poised to come to the Senate floor, it was put aside and never came up again. There is a story to be told, but not now. Instead I will leave it with a quote from Buddha that resonates with me: “There are only two mistakes one can make along the road to truth; not going all the way, and not starting.”

Did Sen. Feinstein play a role in thwarting Sen. Akaka’s effort?

As for which senators played a role during the floor action, they are not the traditional or knee-jerk names. In fact, Chairman Akaka had many necessary conversations with known opponents and he had already calculated their votes into his decision to move forward with the bill. Chairman Akaka knew that he had bipartisan support, and he was willing to move the bill.

Did you feel like you had enough support from Senate Majority Leader Harry Reid in trying to pass a Carcieri fix?

Over the course of the 112th Congress, Chairman Akaka and Majority Leader Reid had many discussions about the Carcieri bill. The leader understood that the bill was the top priority of the committee, the administration, and the White House. The leader made a personal commitment to Sen. Akaka to bring the Carcieri bill to the floor in the lame-duck session. In addition, the leader expressed his support for passage of the bill to his colleagues. Now, could the leader have done more – definitely – but the same could be said of many other supportive members present in the Senate chamber the day the bill was called to the floor.

The House would have still had to have passed another clean Carcieri fix if the Senate had voted affirmatively, correct?

As you will recall, the House passed a fairly clean version before [during the 111th Congress] and was poised to do it again, or, more importantly, accept our bill in some package. We had many bipartisan champions on the House side. They were very supportive of Chairman Akaka's efforts, and they believed he could get it done.

Please remind readers what happened the day the Carcieri bill was called to the Senate floor.

As politics go, the path to passage of any bill is never a short linear story, especially in these highly charged, partisan times on Capitol Hill. Rather, the political process is inherently messy, complicated and latent with big personality schisms. The legislative process is aptly compared to the “sausage-making” process for a reason—you never want to watch it being made, but doesn’t the final product taste good, [at least] to those folks who like sausage. Well, in summary, that is the foreground of the Carcieri legislation….

After 18 months of preparation, a solid legislative record, support on both sides of the aisle, support from the administration and the White House, the Carcieri bill was put aside for later debate.

But that debate never happened?

During the fall of 2012, Chairman Akaka began to alert all the interested players that a deal had been reached with the majority leader. They had an agreement that during the lame-duck session, the Carcieri bill would come to the Senate floor for an up or down vote. True to his word, when the time came, the leader listed the Carcieri bill on the very short list of the important bills eligible for a vote in that very critical session. In fact, the unprecedented nature of securing an up or down vote on an Indian bill during a limited lame duck session was historic and an accomplishment in itself. Yet, this very action may have unsettled those who never believed it could happen and added to the “sausage-making” process.

As the exact timing for consideration was revealed, all the interested players were updated. The chairman and the committee staff prepared internally for the next step with further caucus presentations, bipartisan outreach, vote counts, background information and floor statements, etc. Now the sausage-making begins and the roles of the all the players – internally and externally – become complicated or some would say dramatic, or many would say tragic. Many of the advocates in the chamber and outside the forum, including tribal leaders and their advocates, wanted complete certainty—not calculated certainty. A fear factor arose, and many players could not move past it or rise to the challenge.

The end result was the decision to put the bill aside for later consideration. The chairman continued to pursue reconsideration with the leader, as the bill remained on the now shortened list of possible bills for the lame-duck session.

Suddenly, real tragedy struck the Congress with the unexpected passing of the Senate President Pro Tem, Senator Daniel K. Inouye. The death of Hawaii’s senior senator changed everything in the Senate chamber, the Congress, and the country. Ultimately, the 112th Congress came to a close on January 2, 2013 without consideration of the Carcieri bill. The 113th Congress began the next day.

Editor’s note: This interview has been edited for clarity and condensed.