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Lessons to be Learned from Carcieri Fix Defeat

WASHINGTON – The BIA announced its decision to take land into trust for an initial reservation for the Cowlitz Indian Tribe on the same day that the 111th Congress adjourned without passing a Carcieri fix.

The “Carcieri fix” legislation would have repaired a 2009 U.S. Supreme Court decision that interpreted the Indian Reorganization Act to mean the Interior secretary has no authority to take land into trust for tribes that were not “now under federal jurisdiction” in 1934 when the IRA was passed. The Carcieri fix would have reaffirmed the secretary’s authority to take land into trust for all federally acknowledged tribes – a practice that has been in place for more than 70 years.

Until the Cowlitz decision, the Carcieri ruling had virtually frozen land into trust applications at the Interior Department for the last two years.

The fix had been approved in both House and Senate committees, but it became entangled in a controversial anti-Indian gaming amendment proposed by Sen. Dianne Feinstein, D-Calif. Feinstein’s amendment to the Indian Gaming Regulatory Act would have required a tribe to demonstrate both a “substantial direct modern connection” and “a substantial direct aboriginal connection” to acquire “off reservation” land for gaming – standards that would be impossible for almost any tribe to meet.

The Feinstein proposal created divisions in the circle of tribal leaders, lawyers and lobbyists during the last two months of the legislative session that were in large part responsible for the Carcieri fix dying a painful death during the last week of the session, according to Tom Rodgers, a member of the Blackfeet Tribe and owner of Carlyle Consulting, a lobbying firm.

“Í think the overwhelming message that came at the end of the last Congress is that Indian country cannot allow its agenda to be sidetracked by internal divisions that consume enormous amounts of resources – time, money and human capital – that are diverted to managing internal tribal disagreements.”

The internal division was over whether the Indian community should accept what Feinstein was proposing, Rodgers said. Five or six California tribes eager to stop casinos locating near their own gaming operations aligned themselves with Feinstein, Rodgers said.

“Ninety-nine percent of Indian country did not support what Sen. Feinstein was doing yet even that small division completely dissipated all ability to come to a final favorable Carcieri decision for Indian country.” Rodgers said.

Tribal lawyers and lobbyists were also outraged to learn that the Interior Department was providing Feinstein with “drafting services” for her proposal, meaning they were writing the legislation that would limit the ability of tribes not currently operating casinos to acquire and place land in trust for gambling.

Feinstein was also able to muddy the waters by conflating the Carcieri fix, which concerns the Indian Reorganization Act, and the Indian Gaming Regulatory Act, creating uncertainty and confusion among some legislators.

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“We in Indian country need to do a much better job – and so does the government – of reminding policy makers and the media that the overall use of trust land is for housing, healing and education. It’s not about gaming. Only about two percent of trust land is for gaming, according to the Interior Department’s own records,” Rodgers said.

The Cowlitz decision provides an opportunity for tribes to show solidarity, Rodgers said.

“The tribes should find ways to work together as tribal governments when there are findings such as this instead of fighting each other.”

The Carcieri fix could be revived, said Judith Shapiro, a Washington-based attorney who has practiced Indian law for almost three decades.

“It’s unfortunate that the clean Carcieri fix didn’t pass because that’s the best solution, but it doesn’t mean we won’t try again in the new Congress and it doesn’t mean there’s no hope as evidenced by the fact that Interior issued the Cowlitz decision and has finally begun to move on these applications.”

Carcieri can still be resolved without congressional action, as a legal matter, if Interior rules that a tribe was “under federal jurisdiction” in 1934, as required by the court’s decision, Shapiro said.

“Many of us have been arguing that tribes can still get land into trust under the IRA despite the fact of only recent ‘formal federal acknowledgment’ because the court did not rule that such tribes were ineligible. The decision did not say that a line was drawn to exclude recently acknowledged tribes. The court made no finding about what ‘under federal jurisdiction’ meant largely because the court had no record before it to make such a finding.”

The Carcieri ruling stemmed from an attempt by the Narragansett Indian Tribe of Rhode Island to place 31 acres of land in trust for low-cost elder housing. The State of Rhode Island and its Gov. Donald Carcieri fought the project up to the Supreme Court because they feared the land would be used for a casino instead of housing. Carcieri argued that the Interior secretary was not authorized to take the 31 acres into trust because Narragansett was not “under federal jurisdiction” in 1934.

The Supreme Court ruling in Narragansett was as much a procedural result as anything else because no one rebutted the state’s assertion that the tribe was not under federal jurisdiction in 1934, Shapiro said.

“With no administrative record on the subject, and with only a formal assertion in the record, the court ruled that the issue was established for the purpose of the dispute before it concerning the Narragansett Tribe’s trust application. The ruling does not impair the ability of the Interior Department to find otherwise with respect to any other tribe,” she said.