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Clean Carcieri Fix Legislation Introduced in House and Senate

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WASHINGTON – Proposed legislation for a “clean Carcieri fix” has been introduced in Congress and the Senate.

Congressman Dale E. Kildee (D-MI), the Democratic Chairman of the House Native American Caucus, announced March 30 that he has introduced H.R. 1234, legislation to reverse a controversial 2009 U.S. Supreme Court ruling that has blocked almost all land into trust applications at the Interior Department for more than two years. On the same day, Senator Daniel K. Akaka (D-Hawaii), Chairman of the Committee on Indian Affairs, introduced S.676, a bill that is virtually identical to Kildee’s proposal. The proposed legislation would “fix problems created by a Supreme Court ruling in Carcieri v Salazar which will lead to inequities in federal Indian policy if not corrected,” Akaka said.

The Supreme Court ruling said in essence that the Interior Department Secretary does not have the authority to take land into trust for tribes who were federally acknowledged after 1934 when the Indian Reorganization Act (IRA) was passed. The Act said, “The term ‘Indian’ as used in this Act shall include all persons of Indian descent who are members of any recognized Indian tribe now under Federal jurisdiction, and all person who are descendants of such members who were, on June 1, 1934, residing within the present boundaries of any reservation, and shall further include all other persons of one-half or more Indian blood.”

A majority of the Supremes interpreted the word “now” to mean then –1934. The federal government, however, interpreted it to mean “as of now” and proceeded for 75 years after the IRA was enacted to take tens of thousands of acres land into trust for the dozens of tribal nations that were acknowledged after 1934.

Both Akaka and Kildee’s bills would reaffirm the Interior secretary’s authority to take land into trust by striking the phrase “any recognized Indian tribe now under Federal jurisdiction” and inserting “any federally recognized Indian tribe.”
“The Supreme Court’s literal interpretation of the Indian Reorganization Act ignores the congressional intent of the original legislation and would reverse years of progress,” Kildee said in a statement. “By clarifying the language of the Indian Reorganization Act, we will put to rest any question as to the Secretary of the Interior’s authority to take land into trust for tribes. This legislation will uphold the original intent of the IRA and ensure that all federally recognized tribes are able to utilize the land trust process, regardless of when they were recognized.”

"This legislation is necessary for the United States government to fulfill its trust responsibility towards tribes and Native peoples," Akaka said. "If Congress does not act, the Carcieri ruling will, in effect, create two classes of tribes – those who can have lands taken into trust and those who cannot. Creating this inequity runs counter to established federal Indian policy and Congressional intent in enacting the Indian Reorganization Act and subsequent legislation. Congress must step in now to preserve tribes' ability to provide basic governmental services to their members."

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Akaka noted that the Indian Reorganization Act was enacted to reverse devastating federal policies that resulted in the loss of hundreds of millions of acres of tribal lands. He emphasized his legislation does not add any new rights for tribes to acquire trust lands, rather it merely reaffirms the authority the Secretary has had since 1934 to acquire trust lands for all tribes. His legislation is co-sponsored by Senators Kent Conrad, Al Franken, Dan Inouye, Tim Johnson, John Kerry, Jon Tester, and Tom Udall.

Carcieri v. Salazar — named for former Rhode Island Governor Carcieri and Interior Secretary Ken Salazar — centered on a 31-acre parcel of land that the Narragansett Indian Tribe of Rhode Island wanted to use for elder housing. The Interior Department took the land into trust, but the town of Charlestown where the Narragansett land is located and the state challenged the Interior decision through the federal district courts and then the 1st Circuit Court of Appeals in Boston, which upheld Interior’s to take the land into trust – twice. But the state, which has a monopoly on gaming in Rhode Island, feared that the tribe would open a casino on the 31 acres that would compete with the state- owned Newport Grand Slots, and Twin Rivers Casino, so they took the case to the high court.

Federal legislators have been trying to pass a “clean Carcieri fix,” meaning one that would leave no ambiguity about the Interior secretary’s authority, since 2009. Kildee’s newly introduced bill is virtually identical to a bill he previously introduced, and Akaka co-sponsored a previous Carcieri fix bill introduced by former Sen. Byron Dorgon.

The Carcieri fix got sidelined during the last congressional session at the end of 2010 when Sen. Dianne Feinstein and those aligned with her attempted to introduce legislation that would amend the Indian Gaming Regulatory Act in a way that would make it almost impossible for tribes to conduct gaming on newly acquired off reservation land. Tribal leaders were outraged by the proposal.

Feinstein’s primary interest in proposing the IGRA amendment was to stop the expansion of off reservation gaming in the Bay Area of San Francisco that she represents, but the amendment would have affected all tribes. The most forbidding part of the proposed amendment set the nearly impossible standard that tribes would have to demonstrate both a “substantial” modern connection and a direct aboriginal connection to the off reservation lands they want for gaming. What ended up happening during the lame duck session was that neither the clean Carcieri fix nor Feinstein’s efforts moved forward.

The question now becomes Feinstein’s efforts to introduce anti-Indian gaming legislation will reappear along with a potential new obstacle in the form of the Alaska Native Corporations’ opposition to land into trust for the Alaska Native villages.