Sen. Jon Tester has reintroduced a bill aimed at a clean Carcieri fix.

Tester Re-introduces ‘Clean Carcieri Fix’

Gale Courey Toensing

A “clean Carcieri fix” is back on the table.

On March 12, Sen. Jon Tester (D-MT) introduced S. 732, “A bill to amend the [Indian Reorganization] Act of June 18, 1934, to reaffirm the authority of the Secretary of the Interior to take land into trust for Indian tribes.”

The bill aims to repair the U.S. Supreme Court’s ruling in Carcieri v. Salazar, an anti-Indian sovereignty decision that curbed the Interior Secretary’s authority to take land into trust for tribes recognized after 1934 when the Indian Reorganization Act (IRA) was passed. The 8-1 ruling was based on language in the IRA authorizing the secretary to take land into trust for “any recognized Indian tribe now under Federal jurisdiction.” Justice Clarence Thomas, who wrote the majority opinion, said “now” meant 1934. He did not define “under federal jurisdiction.” The ruling has caused tribes a loss of economic opportunity, created major delays in infrastructure projects, and increased litigation and costs for both tribes and the Interior Department in their efforts to put tribal lands into trust.

Tester’s bill “cleanly” fixes the Carcieri ruling by striking “any recognized Indian tribe now under Federal jurisdiction” and inserting “any federally recognized Indian tribe” – without conditions or exceptions.

This is the second time Tester, vice chairman of the Senate Committee on Indian Affairs (SCIA), has sponsored legislation to repair the high court’s Carcieri ruling. His previous bill, S.2188, was introduced in March 2014 and was voted unanimously out of the committee, then died. He co-sponsored similar bills during the 111th Congress (2009-2011) and the 112th Congress (2011-2013). Tester’s new bill is cosponsored by Senators Jerry Moran (R-Kan.), Al Franken (D-Minn.), Martin Heinrich (D-N.M), Heidi Heitkamp (D-N.D.), Patty Murray (D-Wash.), Debbie Stabenow (Mich.), and Tom Udall (D-N.M).

The Supreme Court decision created two classes of tribes, those recognized before and after 1934, Tester said. “This bipartisan bill was built with tribal input and eliminates unnecessary hurdles for tribes to increase economic development opportunities,” Tester said. “The court decision had a negative impact on tribes across the nation by causing costly litigation and harmful delays in critical infrastructure development. This solution addresses one of Indian country’s top priorities and is a strong step forward to fulfilling the federal government’s treaty and trust responsibilities.”

February 24, 2015 marked the sixth anniversary of the Supreme Court’s Carcieri ruling, but a congressional fix has remained elusive. “It's taking a while because other stakeholders see this as an opportunity to fix other issues,” Dave Kuntz, Tester’s press secretary told ICTMN. “‎Senator Tester doesn't agree with that approach, he would like to see a clean bill.”

Sen. Dianne Feinstein (D-CA) has been the fiercest foe of a clean Carcieri fix, bringing her opposition to Indian gaming into the conflict. Although the IRA was enacted 54 years before the 1988 Indian Gaming Regulatory Act – and has nothing to do with gaming – Feinstein continues to conflate trust land with gaming. “[A]ny Carcieri fix must address concerns about tribal gaming,” she said at an SCIA hearing.

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The IRA was enacted specifically to restore some of the 90 million-plus acres of indigenous land taken by the federal government during the 19th century, and the 2009 Supreme Court ruling put a halt to 75 years of Indian land restoration. The Interior Department had taken approximately 10 million acres of land into trust between 1934 and 2009.

A clean Carcieri fix will allow tribes to determine how to use their own land to create jobs and increase economic development and Tester is hopeful that his Carcieri fix legislation will pass this time, Kuntz said. “He will be working with fellow senators to get them to understand the negative impacts this decision continues to have on tribal communities,” he said.

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