Lame duck’s last days to determine Carcieri, online gaming

WASHINGTON – The battle over Indian gaming legislation continues to play out on the Hill during the last frenetic days of the lame duck session.

On Monday, Dec. 13, at the beginning of the countdown to the final days of the 111th Congress, a number of potential pieces of gaming legislation were still up in the air:

  • A “clean Carcieri fix” that would restore 76 years of practice in which the Interior Secretary exercises his authority to put land into trust for all federally recognized Indian tribes for the purposes of housing, education, health services, and economic development;
  • A “dirty Carcieri fix” from Sen. Dianne Feinstein, D-Calif., to limit or prohibit “off reservation” gaming, and;

  • Online poker legislation by Sen. Harry Reid, D-Ariz., that would favor big commercial casino operators and gaming machine manufacturers over Indian nations.

Two legislators – Rep. Tom Cole, R-Okla., and Rep. Frank Wolf, R-Va. – have distributed pro and con letters to House members and legislative directors that are emblematic of the conflict over the “Carcieri fix.”

Cole’s amendment for a “clean Carcieri fix” has been attached to a continuing resolution passed by the House Dec. 8 that would fund the remainder of fiscal 2011, which ends Sept. 30, 2011, with a freeze on overall federal spending at fiscal 2010 levels.

A “clean Carcieri fix” would repair a 2009 Supreme Court ruling by clarifying that the 1934 Indian Reorganization Act authorizes the Interior Secretary’s authority to take land into trust for all federally acknowledged tribes. A “dirty Carcieri fix” muddies the water with amendments limiting Indian gaming issues, which have nothing to do with the IRA. Indian gaming law is codified in the Indian Gaming Regulatory Act.

Cole’s Dec. 9 letter debunks the “myths” circulating against the Carcieri fix by the anti-Indian gaming crowd, including the unfounded allegation that his amendment for a clean Carcieri fix is a “last minute clandestine effort” to pass unvetted legislation.

“The Cole Amendment was reported out of the Interior, Environment and related agencies appropriations subcommittees with bi-partisan support. The House Natural Resources Committee has held hearings on the Carcieri v. Salazar decision as far back as April 2009,” Cole wrote.

In his letter urging legislators to oppose the Carcieri fix, Wolf claims that the fix would “dramatically expand the number of tribes that can have lands taken into trust – including for purposes of operating gambling casinos” and would “kick the door open for gambling interests in many states.”

Not so, Cole said. Tribes that get land into trust under the Carcieri fix still have to go through an onerous process under the Indian Gaming Regulatory Act to operate a casino.

“The Supreme Court case that prompted the need for this language stems from the Narragansett tribe asking the secretary of the Interior to take land into trust to provide housing for elderly tribal members, not for gaming facilities. The Supreme Court’s interpretation of the 1934 Indian Reorganization Act created two tiers of federally recognized tribes. The Cole Amendment simply reinstitutes a regime that has worked for nearly 80 years.” Cole wrote.

Wolf, a long time anti-Indian casino legislator, is perhaps most famous for threatening former Interior Secretary Gale Norton with job termination if she did not reverse the Final Determination federally acknowledging the Schaghticoke Tribal Nation. Not satisfied with preventing gaming in his home state of Virginia, Wolf’s intention was to prevent the Schaghticoke from opening the third Indian casino in Connecticut.

The “clean Carcieri fix” has widespread support, including from the White House and from Assistant Secretary-Indian Affairs Larry Echo Hawk.

Even the Mashantucket Pequot Tribal Nation, whose famous Foxwoods Resort Casino is likely to be affected by additional Indian gaming in nearby Massachusetts and New York, voiced its support in a statement released Dec. 10.

“The Mashantucket Pequot Tribal Nation applauds the U.S. House of Representatives for passing language that provides a legislative solution to the ill-conceived U.S. Supreme Court decision that has denied tribes their right to take land into trust. Our tribe believes it is critical that all Indian nations have the ability to exercise their full sovereignty – especially when it comes to their lands. We urge the U.S. Senate to move quickly to pass identical legislation to allow the Secretary of Interior to take land into trust so tribes can exercise their sovereign rights as governments.”

The three bills that proposed legislation could have been reduced to two. The controversial tax bill extending President George Bush’s tax cuts for everyone including the very rich was due for a procedural vote for cloture mid-afternoon on Dec. 12, but without the Carcieri fix or an Internet gaming bill attached to it.

“It’s like a train that’s left the station and won’t have anything added on to it,” said a Washington source.

With the tax bill out of the way, attention will shift to the omnibus appropriations bill where efforts will be made to attach legislative amendments.

“The omnibus appropriations bill is the place where the most mischief can be done, it’s the place that’s easiest to add amendments and that has the highest probability of having legislative amendments attached,” the source said.

By mid-afternoon Monday, the exact language of Feinstein’s proposal to restrict gaming on “off reservation” lands was still a mystery. And there was no word on whether Reid’s on-again, off-again proposal for federal oversight of Internet poker was on again.

If Feinstein’s “dirty Carcieri fix” is attached to the omnibus bill, there will have to be consultation between the Senate and the House. There is no certainty that the omnibus will get the 60 votes needed to cut off debate and move the bill to a vote.

“If the omnibus bill fails, the only thing left will be the continuing resolution. And the only question will be how long should it be. Should it be a year like the House wants or four months like the Senate Republicans want? Indian country should be on full alert this week,” the source said.