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Obama administration knocks Carcieri ruling

WASHINGTON – It took a few months for Obama officials to take a clear public stand on the controversial Supreme Court’s Carcieri v. Salazar ruling, but when they did, they came out swinging.

Some administration officials, including Interior’s Assistant Secretary for Indian Affairs Larry EchoHawk, a member of the Pawnee Nation, had long been hinting that the February ruling was wrong.

The court’s decision has effectively restricted Interior’s ability to take land into trust for tribes federally recognized after the Indian Reorganization Act of 1934 became law.

The administration’s position grew more pronounced during a media conference call involving Interior Department and White House officials held Nov. 4.

“There is a problem here that has to be fixed,” Secretary of the Interior Ken Salazar said.

Kim Teehee, White House senior policy advisor for Native American Affairs, elaborated, saying the administration supports a legislative fix whereby all tribes can benefit from the land into trust process regardless of their date of federal recognition. Teehee is a citizen of the Cherokee Nation of Oklahoma.

The day after the call, the administration made its case before a hearing of the House Natural Resources Committee on Capitol Hill.

The hearing was aimed at discussing two bills, H.R. 3742, sponsored by Rep. Dale Kildee, D-Mich., which would amend the IRA to reaffirm the authority of the secretary of the Interior to take land into trust for Indian tribes, and H.R. 3697, sponsored by Rep. Tom Cole, R-Okla., which has a nearly identical intention. Cole is a member of the Chickasaw Nation.

Donald Laverdure, deputy assistant secretary of Indian affairs at Interior, testified that the department applauds both bills. He is a citizen of the Crow Tribe of Montana.

“The department was, and continues to be, disappointed in the court’s ruling in the Carcieri case.

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“The decision was not consistent with the longstanding policy and practice of the United States to assist all tribes in establishing and protecting a land base sufficient to allow them to provide for the health, welfare, and safety of tribal members, and in treating tribes alike regardless of the date of acknowledgment.”

Laverdure said the decision has disrupted the process for acquiring land in trust for recognized tribes by imposing new and undefined requirements on applications now pending before Interior.

While several members of the committee agreed that there must be a Carcieri fix, there was some wariness presented by Rep. Doc Hastings, R-Wash., who opposes a “fast track” land into trust fix. He wants to hear from state and local governments before taking action.

Some states’ rights advocates and others have taken strong stances against a legislative fix, fearing the consequences of more lands going back to tribes.

One such opponent who made an appearance at the hearing was Connecticut Attorney General Richard Blumenthal. He testified that he supports tribal sovereignty, but opposes a Carcieri fix.

He said lawmakers should consider whether the pre-Carcieri system is still necessary to achieve the original goals of the IRA. He also made the case that states and localities are harmed in many ways when tribes receive lands, such as by reducing tax revenues.

Blumenthal predicted 10 more years of litigation if a land into trust fix passes Congress.

Several tribal leaders, including some who testified at the hearing, have said the Obama administration is right to support a fix, as tribes should not be treated differently and many have historical claims to more land of what is now known as the United States.

“If this decision is not addressed, there will be ‘haves’ (those who can take land into trust) and ‘have nots’ in Indian country,” said Sandra Klineburger, chairwoman of the Stillaguamish Tribe of Indians.

“Our community knows what it is like to be part of the ‘have nots.’”