Feinstein’s ‘Drafting ?Service’ Controversy


It started in late September at the New England Gaming Summit when the chairman of the Mashpee Wampanoag Tribe said he had heard that Sen. Dianne Feinstein, D-Calif., was preparing a “Carcieri fix” amendment that would eliminate a tribe’s ability to take newly-acquired land into trust for gaming.

And it flared into a full-blown controversy by early November when tribal leaders learned that the Interior Department had provided the senator with “drafting services” on the amendment.

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 to clarify the Interior secretary’s authority to take land into trust for all federally acknowledged Indian tribes, which has stalled since being approved by the Senate Committee on Indian Affairs in December 2009.

In either case, Feinstein aims to curtail the Interior secretary’s authority to take newly-acquired land into trust for Indian gaming, Cromwell said.

And he was indignant.

“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.

The Wampanoags were the first indigenous people to greet the European settler colonists who sailed through the indigenous peoples’ sacred waters of Nantucket Sound to land on the shores of what became known as Massachusetts.

But the Mashpee, who were federally acknowledged in 2007, have no land held in trust by the Interior Department. If Feinstein were to succeed in stopping tribes from putting newly acquired land into trust, there would be no way for Mashpee, other newly acknowledged tribes, or tribes with restored lands ever to exercise their right to conduct gaming under the IGRA. They would be the “have nots” of Indian gaming.

By early November murmurs about Feinstein’s anti-gaming amendment turned viral when the Washington Indian gaming-related community of tribal leaders, lawyers and lobbyists learned that Feinstein had been working with Interior Department Deputy Secretary David Hayes on drafting an IGRA amendment that stop gaming on “off reservation” trust land, and planned to attach it to a must-pass appropriations bill during the lame duck session.

The tribal leaders raised an outcry about the proposal being developed behind the scenes and without the standard process of consultation, hearings and comments.

By the time the National Congress of American Indians and the Global Gaming Expo took place during the week of Nov. 15, Interior officials decided it was best to release the document, explain their involvement – and distance themselves from it.

Feinstein’s draft legislation was as bad or worse than tribal leaders had anticipated. Her bill would require tribes to prove “a substantial direct modern connection” and “a substantial direct aboriginal connection” to land it hoped to acquire and have placed in trust status for gambling – an impossible standard for most tribal nations.

An Interior spokesperson explained that Feinstein had approached Interior and asked for a “drafting service” – input on legislative language her staff was considering – and that Interior had responded according to its “Department Manual.”

The spokesperson assured the Indian community that Feinstein’s “language does not represent the position of the administration” and that the Interior Department is committed to consultation as mandated by President Obama’s consultation memorandum issued in 2009.

Hayes was reluctant to discuss the issue in an interview with Indian Country Today.

In the midst of the fray, the White House reiterated its support for a “clean Carcieri fix,” meaning one that is unencumbered by any limitations such as the Feinstein amendment. And so did Assistant Secretary-Indian Affairs Larry Echo Hawk.

But by the time the 111th Congress passed its final appropriations bill – a continuing resolution to fund the federal government for a few months until the new Republican majority rules the House, neither a “clean Carcieri fix” nor Feinstein’s anti-gaming amendment was included.