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Money and power drive states’ interest in Carcieri ‘fix’

WASHINGTON – Seventeen attorneys general, seeking property taxes and more state power over sovereign Indian lands, have written to the ranking members of the Senate Committee on Indian Affairs and the House Resources Committee urging them to move slowly – if at all – on any Carcieri “fix” and to include them in discussions on the Interior secretary’s authority to take land into trust for the nations.

“A March 13 story in Indian Country Today said Indian country officials are calling for a quick legislative fix so that state and local interests will not have time to make arguments to Congress that the Carcieri decision should stand. The undersigned believe it would not be in the best interests of all stakeholders, both Indian and non-Indian, to rush a legislative fix and to ignore legitimate state and local interests,” the attorneys general wrote.

The Carcieri fix would have Congress amending the 1934 Indian Reorganization Act by deleting the phrase “any tribe now under federal jurisdiction” or adding the words “or hereafter” after the word “now.”

The fix would correct a February ruling by the U.S. Supreme Court, which interpreted “now” to mean then – 1934. The case centered on a 31 acre parcel of land purchased by the Narragansett Indian Tribe for elderly housing. The Interior Department agreed to place the land in trust, but the state and town fought that action all the way to the high court, where the justices ruled 6-3 that the Interior secretary could not take the land into trust because the tribe was not “federally recognized” in 1934.

The ruling reversed decisions by the 1st Circuit Court of Appeals and a lower federal district court that affirmed the Interior secretary’s authority to take the land into trust under the IRA.

Tribes fear the ruling may jeopardize the tens of thousands of acres of trust lands established by the secretary since 1934 for the tribes that have been granted federal acknowledgment since then. States saw the ruling as a huge victory for states’ rights – and they are eager to protect it.

In early April, the House Resources Committee held a hearing on the issue, at which chairman Rep. Nick J. Rahall, D-W. Va., expressed an inclination to sponsor a bill to fix the Supreme Court’s ruling.

“This decision may result in many frivolous lawsuits being filed to challenge the status of virtually every tribe.”

In their letter to Rahall and the SCIA leaders, the attorneys general plainly stated their interest in maintaining the high court’s ruling: money and power over sovereign tribal nations.

“Taking land into trust deprives the local units of government and the state of the ability to tax the land and calls into question the power of state and local government to enforce civil and criminal laws on the land,” the attorneys general wrote.

John Brown, a Narragansett spokesman and medicine man in training, says the Carcieri “fix” really needs three words. “The amendment to the IRA should actually be ‘now, before or hereafter.’”

The word “now” in the IRA only applied to tribes that were reorganizing in 1934 and not to tribes organized before or since the act, Brown said.

“Narragansett wasn’t reorganizing under the IRA. We didn’t have to. We have always been an Indian tribe and that’s what was found later on during our acknowledgment. We have tribally owned land that has always been tribally owned; 1790 (the Non-Intercourse Act that prohibited the sale or transfer of Indian lands without the approval of Congress) applies to us, but not the IRA.”

Brown said the Supreme Court erred by not reading the historical information reviewed by the lower courts that upheld the secretary’s authority to take the Narragansett’s land into trust.

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The justices further erred by going “way beyond their judicial scope of power and doing the work of Congress. It was not their job to judge whether we are an Indian tribe.”

The court allowed the states to have standing in a case where under federal regulations and precedent they had no standing, given that the government-to-government relationship is between tribes and the federal government, Brown said.

“If the states didn’t have it to begin with – and they didn’t – then what gives them the right now, in this modern era, to interfere?”

John Dossett, general counsel for the National Congress of American Indians, said it’s not surprising that some states oppose land into trust.

“The good news is that fewer and fewer states have that knee jerk opposition.”

Those that seem to have a limited sense of history, one “that goes back about five years – as if the tribes are taking land away from the states.”

The tribes have been dispossessed of hundreds of millions of acres of land that was guaranteed by treaty and by title, and they are trying to recover only a small portion of it, Dossett said.

“The ugly irony is that tribes have to pay full value to recover their stolen land, and then face opposition when they want to add it back to the reservation land base.”

States have a legitimate role in the conversations about the unique land management issues that sometimes arise, and they have an opportunity to be heard under 25 C.F.R. Part 151 – the federal statute dealing with Indian trust land acquisitions.

But it isn’t appropriate for states to seek veto power over the land to trust process, Dossett said.

“The restoration of tribal lands is a federal government responsibility. Tribes greatly appreciate the states that take a more constructive approach to working with the tribes and finding mutual solutions instead of offering knee jerk opposition to land acquisition.”

And, furthermore, Dossett asked, what’s not to like about land into trust acquisition since tribes generally acquire trust land for a good purpose?

“It is most often for economic development and jobs, or natural or cultural resources protection. For example, the Northwest tribes are acquiring river bank lands in order to protect aquatic habitat for salmon fisheries. The benefits of Indian trust land go beyond the tribe.

“Indian tribes are an economic anchor for hundreds of rural communities across the country. As time goes by and states see the advantages of tribal self-government, more and more states are working cooperatively with tribes rather than taking an oppositional approach.”