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Divide and Carcieri

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We abhor violence and mass murder. Much as we dislike the decision of Sen. Dianne Feinstein of California to undermine tribal interests, she does not belong in anyone’s crosshairs.

But we also dare to note a plain fact of American history: Scratch the surface of her Golden State and you get dried Indian blood. Settlers drove California tribes into the hills and hunted them down. The survivors emerged years later in small, mixed-tribal clusters, the kernels of today’s rancherias.

Feinstein and her like seem to believe that the further we are in time from atrocities, the less atrocious they become. But vigilant tribes will distrust such progress. On the contrary, it grows clearer with every passing year that tribes are not tribes without their land. They cannot survive without land, and clear rights to the use of their land. That is what the rancherias teach. That is why Feinstein’s mission of undermining the so-called “Carcieri fix” legislation in the last Congress was so deeply cynical.

In the case Carcieri v. Salazar, known as Carcieri, the U.S. Supreme Court has threatened to overturn settled precedent on Indian land, ruling that the Interior Department could not take land into trust for tribes that were not federally recognized as of 1934, the year of the Indian Reorganization Act. But the ruling concerned a very narrow set of facts, probably inapplicable outside Carcieri. Still one never knows, and tribes have tried to get the ruling corrected—“fixed”—by Congress ever since. They were poised to succeed in the last Congress, but Feinstein muddied the waters with an obscurantist amendment to the Indian Gaming Regulatory Act. She acted with the connivance of gaming tribes in California that do not welcome the prospect of competition from other tribes that might open casinos on their ancestral lands once Interior takes them into trust.

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But under U.S. and international law, tribes retain a property right to their ancestral land. That is the bedrock of land-into-trust; it is the birthright of every historical tribe; if that settled law and strong precedent can be manipulated by cynical political alliances, the holdings of every tribe are at risk. That is what Feinstein’s tribal allies seem to have missed.

In the current 112th Congress, tribes must bear in mind that they need strong consistent allies on Capitol Hill, not the kind who breed distrust with a show of support on one issue and skullduggery on others. And they should explore ways to build political solidarity by sharing prosperity with poorer tribes—though those ways would be traditional ways and Capitol Hill will not finally be the place for them. Above all, with state bankruptcies looming despite settled law against it, they must convince every tribe that we could all be abandoned to the hills again if Carcieri isn’t fixed.