Last year, before anyone knew that Sen. Max Baucus (D-Montana) would decide to retire early from Congress, paving the way for a leadership shuffle that would lead to Sen. Maria Cantwell’s (D-Washington) decision to exit the chair of the Senate Committee on Indian Affairs (SCIA) this month, Cantwell was making the calculated decision to take on an issue that she and her staff knew could make her unpopular in some parts of Indian country.

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Slowly but surely throughout 2013, her first and only full year in the SCIA chair, she was developing a path to secure legislation that would resolve the controversial 2009 Supreme Court Carcieri decision that called into question the Department of the Interior’s ability to take lands into trust for tribes recognized by the federal government after the Indian Reorganization Act of 1934.

Jared Leopold, a spokesman for Cantwell, recently detailed her efforts to Indian Country Today Media Network, noting she said in a speech in February 2013 that a Carcieri fix “needs to pass” Congress in order for tribes to have economic security. He noted, too, that she held an oversight hearing on Carcieri in November 2013. “If the Carcieri decision is left to stand, the result will be the perpetration of two classes of tribes,” Cantwell said at that hearing. “This is inconsistent with the Indian Reorganization Act, and this is why we must bring certainty back into the process today.” Leopold added that the senator has met with more than a dozen senators and many tribal advocates about this issue.

Tribal leaders made clear to Cantwell that their ideal fix looks much like the one that passed the House in December 2010—a clean fix that does not link limits on gaming to land-into-trust issues. Gaming and land-into-trust issues are distinct, the leaders have told Cantwell and her staff, and if Congress decides tribal gaming is to be tinkered with, it should do so separately from a Carcieri land-into-trust fix.

But Cantwell and her staff knew full well that the ideal clean fix desired by so many tribal leaders had not been able to gain traction in the Senate at any point since the Supreme Court’s 2009 decision. Her immediate past SCIA chair predecessor, the retired Sen. Daniel Akaka (D-Hawaii), had made a clean fix a keystone of his leadership—and even though he pushed it with all his might, in the end he came up short of convincing Senate Majority Leader Harry Reid (D-Nevada) to bring a clean fix to the floor. Reid, with his own complex and not always positive Indian gaming opinions, had many reasons to stall Akaka here, and he did, despite promising Akaka a vote. It was a broken promise that still stings the former Hawaii senator, according to sources close to him, since he feels he had enough votes to make a clean fix happen in 2012.

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At the same time, Cantwell and her staff knew that some of her close Democratic colleagues, especially Sen. Dianne Feinstein (D-Calif.), were opposed to any fix that did not include provisions to prevent off-reservation gaming for some tribes. And staffers close to Sen. Jack Reed (D-Rhode Island) were making clear to the committee that he and the Rhode Island delegation could only support a fix that carved out the Narragansett Tribe of that state from receiving clean land-into-trust protections. That tribe was at the center of the Carcieri lawsuit at the Supreme Court, and state politicians in Rhode Island have placed heavy pressure on the Rhode Island delegation not to allow a positive land-into-trust provision for the Narragansetts.

Cantwell knew all of the above, yet still she chose to dive into Carcieri. Beyond her speeches, hearings and meetings, she began last year developing draft legislation that contained provisions that could appease her congressional friends – one of her plans included “significant historical connection” tests aimed at limiting off-reservation gaming that could pass muster with Feinstein and her ilk – as well as a specific carve out that would leave the Narragansetts without the ability to ever have land taken into trust for them. The legislation, which ICTMN has reviewed, also mandated a one-year bargaining period with local governments for mitigation with tribes involving gaming issues, and it included a set period of time – 60 days – for parties to file challenges to lands taken into trust for tribes.

The discussion draft goes against Cantwell’s previous pledge against creating a two-class system of tribes, and her staff is now trying to soften the blow. “There were several different staff-level discussion drafts developed for the purpose of feedback,” Leopold said on January 31 in response to ICTMN questions about the legislation. “Sen. Cantwell is committed to finding a solution that will not impact tribal sovereignty, nor create different classes of tribes. That means clarifying the law to ensure the Secretary [of the Interior] can take land into trust for all tribes -- including the Narragansett -- and ensuring the same rules would apply for all tribes seeking land into trust.”

Cantwell has every reason to be treading carefully now. By mid-January, many tribal leaders and advocates were beginning to see Cantwell’s “draft discussion” legislation, which they had not been consulted on before it was drafted. They were not happy, to say the least. Organizations representing a large number of the federally recognized tribes have already made clear that the Narragansett provision is really bad. It means that one sovereign tribe would be treated differently than every other sovereign tribe for no logical reason, and it goes against Cantwell’s previous pledge against creating a two-class system of tribes—something that Cantwell seems to now understand, given the latest statements from her spokesman.

“What happened to Narragansett Tribe is shameful and should be rectified,” says Lael Echo-Hawk, an Indian law lawyer with Garvey Schubert Barer, who has reviewed the legislation. “Regardless of what the use is, tribes should have the right – and even more than that – should be encouraged to grow their land base,” she adds. “Let’s face it, non-Native gaming developers can buy a parcel of property and build massive gaming facilities without the hoops and hoopla tribes have to go through.”

“It’s Sophie’s choice legislation,” says Tom Rodgers, a lobbyist with Carlyle Consulting, who has also reviewed Cantwell’s draft. “It not only treats the Narragansett Tribe differently, it pulls the ladder up for tribes that may wish to do certain types of gaming in the future.”

Still, on the off-reservation gaming provisions Cantwell offers, tribal voices are not united; congressional members like Feinstein know that very well, and they are utilizing the discord to their full advantage. Many established gaming tribes, after all, would like to see gaming from other tribes limited so as to protect their own assets from competition. Some of these tribes have employed lobbyists who have worked with Congress on developing Carcieri legislation that would limit off-reservation and other gaming for some tribes, especially for those recognized after 1934, and for those that are recognized in the future.

Larry Rosenthal, the lobbyist founder of Ietan Consulting, is one who has received much scrutiny for a tactic several tribal lobbyists are taking with Congress right now involving Carcieri. It does not make Rosenthal happy, he says, because he knows that several of his colleagues from other firms that represent gaming tribes other than the ones he represents are pushing for legislation that would be in their tribal clients’ best interests.

At the same time, Rosenthal is trying to paint himself as a voice of reason, noting that a clean fix has never moved in the Senate, so he says if a majority of tribes really want to protect their land-into-trust interests, they should be willing to compromise.

After Cantwell’s staff began circulating her legislation, Rosenthal says he began fielding a number of calls from Senate staffers, asking for his insight on the bill, on which he is adamant that he and his firm played no role in drafting. Feinstein’s office, for that matter, also says she played no role in the drafting; Rosenthal’s firm has been criticized for working with Feinstein’s office on past Carcieri legislative compromises.

“I don’t think a bill like [Cantwell’s] discussion draft moves [because] it has a lot of tough issues for Indian country to swallow,” Rosenthal says. “But, for the first time, it does lay out the issues, and I am hopeful it will lead to a real dialogue in Indian country.” He pulls no punches in knocking Akaka’s previous attempt at a clean fix, saying that he and Senate staffers he has talked to do not believe there has been a real attempt to move a Carcieri bill since retired Sen. Byron Dorgan (D-N.D.) was chairman of SCIA before Akaka.

Rosenthal adds that he believes that the many clean Carcieri fix proponents have not shown any path to get the 60 votes in the Senate necessary for passage of a clean bill. “Give them a sheet of paper and ask them to identify 60 people who support a clean Carcieri fix,” he says. “They can’t get to 50.”

Rosenthal may be a flawed person to deliver the message of compromise, given his firm’s own interests here, but another recent court decision is playing in his favor, and it has struck fear in many Indian-focused lawyers and tribal leaders. The latest very real bogeyman is the January 21 Ninth Circuit Court of Appeals decision in Big Lagoon Rancheria v. California, which found that California has no obligation under the Indian Gaming Regulatory Act to negotiate in good faith with the tribe on a new gaming compact because the court said the tribe did not have jurisdiction over the eleven-acre trust land parcel on which the tribe sought to conduct gaming. The court ruled that the tribe was not under federal jurisdiction in 1934, so its land, placed into trust by Interior in 1994, cannot be considered Indian lands under IGRA based on Carcieri.

While there is hope from tribal legal quarters that the Big Lagoon decision will be reviewed and vacated by an en banc Ninth Circuit panel, the ruling is already causing panic for tribes whose gaming operations and land bases could be affected if this case were to become a nationwide precedent. “The case is clearly a blow to the tribe and to all of Indian country,” according to a recent National Indian Gaming Association legislative alert. “It not only sets negative precedent with regard to the application of IGRA's good faith negotiation requirement, but it also will serve to encourage litigants seeking to undermine tribal sovereignty and/or the status of trust lands to assert Carcieri-related claims in all lawsuits involving federal laws or federal actions relating to Indian lands.”

The decision even has tribal advocates who have long been critical of Carcieri compromisers thinking more about what such a compromise could look like.

“I do think that that Big Lagoon decision has finally shaken everyone in Indian country, even those whom in the past pushed back or even fought against a fix,” says Joe Valandra, a tribal consultant who has been a critic of Rosenthal’s tactics in the past. Valandra says a clean fix is still possible in Congress, but not likely. “Sen. Feinstein and others of her view with the past support of certain tribal interests have staked out a position on off-reservation gaming that they will not back off,” he says. “Carcieri was a victory for them with the Big Lagoon case playing out just the way they wanted. It is my prediction that they will exact a price in order to get out of the way of a fix.”

The price, Valandra predicts, will be a new definition of Indian land that is at least as restrictive as the Big Lagoon case outcome for gaming. “In other words, those that have [gaming] keep what they have and those that don’t have [gaming] will never have,” he says.

Rodgers says this is a difficult place for clean-fix advocates to find themselves. “What’s most disturbing is the momentum is going all the wrong way, with the Big Lagoon decision and Cantwell’s legislation,” he says. “They’re telling us we are supposed to leave our Narragansett brothers and sisters at the train station and some of the smaller tribes in California at the train station as well. It’s a feeling of sadness.”

Rodgers says that for now he suspends judgment on Cantwell’s effort, but he admits that a deal may need to be cut with her; given the history and toxicity of this issue, he believes a solution will require extreme caution. “Any lasting solution on this will require transparency and complete tribal buy-in in order to be successful,” he says.

“The land-into-trust process should be neutral,” adds Echo-Hawk. “But I also understand the political reality of the world we live in, so as long as the compromise is reasonable, which [Cantwell’s] proposal is not, we need a fix to provide certainty.”

Cantwell has not yet said how and if Big Lagoon will factor into her legislative efforts, and Sen. Jon Tester (D-Montana), her replacement at SCIA, has yet to lay out specifics on how he would achieve a Carcieri solution. In a 2012 interview with ICTMN, he thought that more passion in Congress was needed to advance a fix. “I am going to do my level best to make sure that a Carcieri fix at least gets a vote on the floor,” he said at the time. “I think we can do the work from there.” His staff has not responded to requests for comment on how he views Cantwell’s current draft effort.

While some in Indian country think Cantwell will abandon her draft legislation once she hands over her gavel, her staff is not so sure. “Several ideas are being considered with input from multiple stakeholders, and more work needs to be done,” says Reid Walker, another of her spokesmen, who notes she is staying on as a member of SCIA. “She and the committee remain committed to finding a solution.”