Skip to main content

Feinstein’s ‘Carcieri fix’ would ‘devastate’ trust land for gaming

Reports that Sen. Dianne Feinstein, D-Calif., is planning her own version of a “Carcieri fix” that would eliminate the ability of tribes to take newly-acquired land into trust for gaming are raising concerns in Indian country.

The issue came to light at the New England Gaming Summit at Mohegan Sun during the week of Sept. 20.

Mashpee Wampanoag Chairman Cedric Cromwell said during his presentation at the summit that he had learned Feinstein would propose an amendment to Section 20 of the Indian Gaming Regulatory Act – the part of the law that deals with putting land into trust for gaming when the land has been acquired after Oct. 17, 1988 – or an amendment to Sen. Byron Dorgan’s “Carcieri fix” – a bill that has stalled since being approved by the Senate Committee on Indian Affairs almost a year ago. In either case, Feinstein aims to curtail the Interior secretary’s authority to take newly-acquired land into trust for Indian gaming, Cromwell said.

The Cape Cod island-based Mashpee Wampanoag Tribe, which was federally acknowledged in 2007, has a pending application for land into trust to build a casino in the Boston area.

Dorgan and other legislators have sought a “Carcieri fix” since February 2009 when the U.S. Supreme Court ruled that the Interior secretary had no authority to take land into trust for the Narragansett Indians because they were not “under federal jurisdiction” in 1934 when the Indian Reorganization Act was passed.

Dorgan’s bill – S. 1703 – amends the IRA to reaffirm the secretary’s authority to take land into trust for all acknowledged tribes – a practice that has been in place for more than 70 years.

No one knows exactly what Feinstein plans to do because her activities have taken place behind the scene, Cromwell said.

“Since the senator has not consulted with Indian country, and since her draft language has not been the subject of public hearings, we do not know exactly what the language says. Based on her long-held anti-Indian gaming stance, however, we can assume that her proposed language will be devastating for newly recognized and disadvantaged tribes,” Cromwell said.

Cromwell also questioned whether Feinstein’s motives to alter national law and policy were based strictly on her local concerns to stop the expansion of gaming in California.

“Most disturbing, we are concerned that the senator is using her position as an appropriations subcommittee chair to achieve her local end goal: Shutting down forever the possibility of the Indian gaming in the Bay Area. She is willing to hold hostage the nationally-needed Carcieri fix, and willing to throw newly recognized and disadvantaged tribes from all across the United States under the bus, so that she can achieve this one local goal,” Cromwell said.

Cromwell called on the Obama administration “to take a tough stand on behalf of all tribes. … (and) to tell Congress that all tribes must be treated equally” under the laws.

Barry Piatt, Dorgan’s spokesman, said the senator has not heard about the Feinstein amendment.

“It’s possible she may do so, but it hasn’t reached a stage where it’s an amendment that she’s notified the committee about,” Piatt said.

While Dorgan could not comment on an amendment he hasn’t yet seen, Piatt said, he would not favor creating two classes of tribes.

“He feels very strongly that there should not be two classes of tribes – one that can take land into trust and one that can’t. He stands firm that all tribes ought to be equal on this issue.”

Feinstein’s office did not return calls seeking comment.

Consultant Joe Valandra, Rosebud Sioux, said Feinstein’s reported efforts are happening at the same time that the Interior Department is reviewing the IGRA regulations for “off-reservation” trust land for gaming and encouraging the BIA to move forward with pending applications.

With all these elements and potential actions bumping up against each other, the moment is fraught with danger, Valandra said.

“Right now the Interior Department is in a tough spot trying to respond administratively to the Supreme Court’s Carcieri decision. They hope that Congress will get around to passing a Carcieri fix, but I doubt that will happen soon and it may happen during the lame duck session (when Congress returns after the elections and before new elected officials take office), but there’s danger in that,” Valandra said.

The danger is no one knows exactly what the amendment is, said a Washington attorney who deals in Indian affairs and asked not to be named.

“There was supposed to be a mark-up of the appropriations bills and everyone thought they’d see it then, but Feinstein canceled the mark up. Now the understanding is there won’t be any mark up of the appropriations bill and instead when (legislators) come back for the lame duck session they’ll just wrap a whole bunch of these appropriation bills together so they’ll be tens of thousands of pages long and she’ll just insert the language somewhere and we may never find it before it becomes law,” the attorney said.

A coalition of nations has mobilized to fight Feinstein’s efforts, said Lance Gumbs, senior trustee of the Shinnecock Indian Nation and vice president of the National Congress of American Indians northeast region.

“Obviously, this is another attack on our sovereignty,” Gumbs said.

The NCAI, the largest Indian organization in the country, will also throw its weight behind opposing Feinstein’s actions, Gumbs said.