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Akaka: 'It Is the Responsibility of Congress To Set Carcieri Right'

The Obama administration’s head of Indian affairs told a Senate committee that fixing the U.S. Supreme Court’s disastrous ruling on Indian trust lands is the “top priority” among Indian issues.

Interior Department’s Assistant Secretary-Indian Affairs Larry Echo Hawk urged the Senate Committee on Indian Affairs to encourage Congress to quickly pass a bill amending the Indian Reorganization Act (IRA) to affirm the Interior secretary’s authority to take land into trust for all federally acknowledged Indian tribes.

Such a bill would reverse the Supreme Court’s 2009 Carcieri v. Salazar ruling, which stripped the secretary of authority to take land into trust for tribes for tribes not “under federal jurisdiction” in June 1934 when the IRA was passed. “This is the top priority that we’re talking about,” Echo Hawk said. “It goes right to the heart of the trust responsibility of the United States.”

Echo Hawk and several witnesses testified at a standing room only hearing October 13, called the “Carcieri Crisis: the Ripple Effect on Jobs, Economic Development and Public Safety in Indian Country.” After numerous hearings, round tables and listening session on Carcieri, the subject is not new to Congress or Indian Country, SCIA Chairman Sen. Daniel Akaka said.

“Following the Carcieri decision, tribal leaders, legal scholars, and administration officials predicted that the ruling would lead to an increase in litigation in Indian country, make it more difficult for tribes to develop economic opportunities to benefit their members and surrounding communities and create confusion regarding pubic jurisdiction,” Akaka said. “I believe it is the responsibility of Congress to set this right.”

In the Carcieri decision, the majority of Supreme Court justices ruled that the Interior secretary could not take 31 acres of land into trust for the Narragansett Indian Tribe, which intended to use the property for elders’ housing, because the tribe was not federally recognized in 1934. They interpreted the word “now” in “now under federal jurisdiction” to mean then in 1934 rather than “as of now” going forward. The witnesses talked about the damaging impacts the ruling will continue to without a “Carcieri fix.”

Rep. Thomas Cole (R-Okla.) said that whether or not a tribe signed onto the 1934 legislation “bears no relation on whether a tribe existed at that time or not. Many tribes in existence in that year were wary of the federal government, and for good reason.”

He said Carcieri creates two classes of Indian tribes – those that can have trust land and those that cannot. “This two class system is unacceptable and it is unconscionable for Congress not to act to correct the law as the Supreme Court interpreted it in the Carcieri decision.”

Cole, Chickasaw Nation, is the only indigenous legislator in Congress. Echo Hawk described how trust land is the foundation of tribal sovereignty and self-determination. It provides economic development opportunities in housing, energy and natural resources development, helps offset high unemployment rates, and protects subsistence hunting and agriculture that are important elements of tribal culture and ways of life, he said. The Carcieri ruling has led to increased litigation about tribal status, causing extra stress on the department’s limited human and budgetary resources. “Without the enactment of legislation, the Department, Indian tribes, and the courts will continue to face this burdensome process,” he said.

Echo Hawk also debunked the misperception that the IRA’s trust provisions have much to do with gaming. Of the last 541 trust land applications, 89 were for housing, 191 for agriculture, 47 for economic development projects, 211 for tribal infrastructure such as tribal offices, health and child care centers, habitat restoration, and law enforcement and justice department projects.

“And how many were for gaming out of 541? Three,” Echo Hawk said. “Not to dismiss the importance of gaming, but this is not about gaming.” Richard Guest, a staff attorney with the Native American Rights Fund, called Carcieri a “judicially-created crisis” that needs a prompt and clear legislative fix to begin repairing the damage and uncertainty it has already wrought. “For over 70 years the Department of the Interior applied an interpretation that ‘now’ means at the time of application and has formed entire Indian reservations and authorized numerous tribal constitutions and business organizations under the IRA. Now, there are serious questions being raised about the effect on long settled actions, as well as on future decisions,” Guest said.

Carcieri’s “ripple effects” will not only impact tribal economic development opportunities, but also eliminate revenue for state and local governments, and destroy jobs for both Indians and non-Indians, he said. And the ruling has “opened the floodgates to frivolous litigation” such as Patchak v. Salazar, which is now pending before the Supreme Court on two petitions for writ of certiorari.

Sen. Tim Johnson (D- S.D.) said the Carcieri ruling could have far-reaching negative impacts on tribes in South Dakota, “not only on their culture, but on economic development and public safety. I support a clean fix to this issue both as a standalone measure and as an amendment.”

His statements clarified that Carcieri impacts tribes all over the country and not just in the east, as some people have claimed. Colette Routel, an assistant professor of Law at William Mitchell College of Law, highlighted two impacts that Carcieri has had: it has generated a large number of frivolous challenges to trust acquisitions and it’s created the kind of uncertainty that will prevent access to capital for many types of economic development projects.

Even tribes that were thought to be safe, such as the Fond du Lac Band of Superior Chippewa and the Rosebud Sioux Tribe, both of which voted to accept the application of the IRA a few months after it passed in 1934, are embroiled in litigation, Routel said. Rosebud’s trust application includes sacred sites in the Black Hills that are threatened by development. “While that land remains in fee status it is not protected. And the surrounding areas are quickly being developed. If a company sought to construct power lines or a pipeline, say the Keystone pipeline across the property, state or federal eminent domain power could be used to take a right of way destroying sacred sites. If this land was in trust, consent would be needed,” Routel said.

No one knows what “under federal jurisdiction means,” said Willaim Lomax, president of the Native American Finance Officers Association, because “no one ever interpreted the IRA the way Carcieri court did“ and neither the courts nor the Interior Department have agreed on a definition. “You do not need a business degree to understand that banks and other investors are hesitant to lend money where they perceive risk,” Lomax said.

Already fewer and fewer “reputable” lending institutions and private investors are willing to take the risk of lending money to a tribe that might find itself outside of the Carcieri’s new “under federal jurisdiction” test, Lomax said. “Of all of the hurdles to economic development and job creation in Indian Country, the uncertainty caused by Carcieri should be the easiest and most straightforward hurdle that can be removed. NAFOA and its members urge the Congress to act as swiftly as possible to make clear that the benefits of the Indian Reorganization Act apply equally to all federally recognized tribes,” he said.