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Another Shot at a Clean Carcieri Fix in the House

Democratic House members have re-introduced a clean legislative solution to the controversial 2009 U.S. Supreme Court Carcieri decision.

While Democratic senators in Congress continue to suppress a clean legislative solution to the controversial 2009 U.S. Supreme Court Carcieri decision, Democratic House members have re-introduced such legislation in their chamber.

The new bill calls for a restoration of the authority of the U.S. Department of Interior to place land into trust for all Indian tribes, regardless of when they were federally recognized by the United States. It was offered on February 13 by Reps. Ed Markey, D-Mass., and Colleen Hanabusa, D-Hawaii, and the new ranking member of the House Subcommittee on Indian and Alaska Native Affairs for the 113th Congress. The leader of that subcommittee, Rep. Don Young, R-Alaska, has long been a supporter of a clean legislative fix.

Markey noted that a legislative repair to the Carcieri decision has been a top priority for Indian country since the case involving the Narragansett Tribe of Rhode Island was decided in 2009.

“Indeed, for four years, tribal sovereign authority to restore their ancestral homelands, essential to tribal self-determination and self-governance, has been under assault,” Markey said in a statement. He is the top Democrat on the Natural Resources Committee, which has primary jurisdiction over Indian affairs in the House.

A clean Carcieri fix has already passed the House once since the 2009 Supreme Court decision, which found that the Interior Department did not have the authority to take land into trust for tribes recognized by the federal government after 1934.

The decision has caused widespread economic uncertainty for tribes and the nation at large because many tribal developments on trust lands have been called into question by tribal foes in the courts.

“Tribes from across the country – including those whose federal status predate 1934 and therefore beyond dispute – have been hauled into court to fight meritless lawsuits challenging land into trust decisions,” Markey noted. “In fact, a majority of those decisions authorized housing, health care clinics and other government services that are vital to the stability of tribal governments and the well-being of their citizens. It’s well past time for Congress to act by fixing this judicially-created problem and reinstate the status quo.”

Hanabusa added that the Supreme Court’s Carcieri decision completely ignored the congressional intent of the Indian Reorganization Act of 1934 and reversed 75 years of the Interior secretary’s authority to take land into trust for Indian tribes.

“[O]ur clean fix removes the uncertainty that Indian country is facing due to the decision,” Hanabusa said in a statement. “We cannot ignore the strain this ruling has placed on tribes and the dangerous precedent this decision sets.”

Freshly retired Sen. Daniel Akaka, D-Hawaii, had made it his priority to secure a clean legislative fix in the 112th Congress – a solution that the President Barack Obama White House has also asked for – but fellow Democrats who wish to limit tribal economic development prevented Majority Leader Harry Reid from calling for a vote in 2012 on Akaka’s efforts. These senators include Diane Feinstein, D-Calif; Chuck Schumer, D-N.Y.; and Jack Reed, D-Rhode Island.

A clean fix would not treat any tribes differently from one another when it comes to their sovereign status and the ability of Interior to take lands into trust for them. Some tribal lobbyists and Democratic senators have advanced compromised fixes that would attempt to limit gaming and other economic development opportunities for some tribes. These compromises have had the effect of stalling the overall effort in the Senate.

On the House side, Rep. Tom Cole, R-Okla., Darrell Issa, R-Calif., and others have been successful in achieving bipartisan support for a clean legislative solution, which previously passed the full House in December 2010.

The failure of the Senate Democrats to pass similar legislation in the 112th Congress have mooted previous success in the House, so a new Carcieri fix bill must still pass there now in the 113th Congress.

Enter Markey and Hanabusa, who said they will gladly work to once again garner bipartisan support in their chamber for the bill, and they hope that similar efforts make headway in the Senate.

Mike Anderson, owner of the Anderson Indian Law firm, said he believes there is enough bipartisan support in the current Congress to once again pass a clean Carcieri fix.

“There is still a majority there in the House,” Anderson said. “I am a little more nervous on the Senate side, but I think in the end, if Indian country weighs in strongly for a clean fix only, they would get it.”