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Rice: Nothing scary in a Carcieri fix

Recent newspaper reports suggest that there is concern in Rhode Island, and perhaps elsewhere, that a Carcieri fix to the Indian Reorganization Act of 1934 will allow tribes to acquire trust land wherever they choose, resulting in tribes building Indian casinos willy-nilly outside their reservations and without appropriate input from the state. These reports appear designed to create unjustified fears of an Indian gaming boogey man hiding in a closet of the Carcieri fix.

In February, the Supreme Court interpreted the IRA as granting the secretary of the Interior authority to acquire land only for tribes under federal supervision when the IRA was enacted in 1934 – thereby creating “second class” tribes of those brought under federal authority after 1934.

As a result of this litigation, a development meant to provide homes for tribal members has sat uncompleted and deteriorating for many years. The Carcieri fix would simply put all federally recognized tribes on equal footing, creating an even playing field in matters of land acquisition. This would, in turn, allow the secretary of the Interior to acquire land from willing sellers to meet the needs of Indian tribes and their people. All peoples are entitled to peacefully acquire lands for homes, sustenance, and to pursue their social, cultural and economic development. Indian peoples are not excepted from this rule.

Reports appear designed to create unjustified fears of an Indian gaming boogey man hiding in a closet of the Carcieri fix.

Contrary to some published assertions, the secretary sends notice of every proposed fee to trust land acquisition to state and local governmental entities which might be affected, requests their views, and considers those views in the trust acquisition process. Further, the secretary considers myriad additional factors set out in the Code of Federal Regulations including the need of the Indians for the additional land, the uses to which the land will be put, the impact on the tax base of the state and local governments, jurisdictional problems, and potential conflicts of land use which might arise. For off-reservation acquisitions the secretary also considers the distance from the tribe’s reservation and a business plan if the land is to be used for economic development. These considerations govern every secretarial acquisition of land for Indians under the IRA which would be subject to the pending Carcieri fix legislation. To suggest that the state and local governments have no input into the process is simply erroneous.

It is also worth noting that the complaints of these small protest groups are not very compelling when one considers that Rhode Island exempts from taxation certain land, improvements, and personal property held by independent chartered military organizations, churches, clergy housing, private schools, teacher housing, library societies, societies for aid to the poor, hospitals, veterans’ organizations, volunteer fire departments, fraternal organizations, and nonprofit organizations among a long list of exempt and partially exempt entities and specific properties.

Opponents of the sensible plan to restore the affected tribes to an equal status with all other federally recognized tribes are also attempting to create a false fear by claiming that the proposed amendment to the IRA will allow tribes to indiscriminately build casinos off their reservations.

Protesters say that if the Carcieri fix is implemented then states and their voters will be helpless to prevent tribes from conducting off-reservation gaming. Nothing could be further from the truth. If the protestors’ statements were true, some tribe would have had a casino in Providence, R.I. long before Carcieri was decided.

The reality is that the Indian Gaming Regulatory Act does not allow gaming on lands acquired outside of a tribe’s territorial area (reservation or former reservation where the tribe still resides) after Oct. 17, 1988 unless the land can qualify under a very limited set of exceptions.

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After a decision that the land is eligible for acquisition by the secretary, all of these IGRA exceptions require a second decision by the secretary of the Interior that the lands qualify for gaming use under one of the exceptions. This decision as to whether land can be used for gaming is separate from the determination to take lands into trust under IRA, and must occur before the tribe can use that land for gaming even if the land has been in trust for other purposes for years.

Three of those exceptions have nothing to do with off-reservation gaming. The first exception allows gaming on new lands taken into trust as part of a settlement of a land claim, hardly to be considered off-reservation, but more appropriately viewed as a return of reservation lands wrongfully taken.

Protesters say that if the Carcieri fix is implemented then states and their voters will be helpless to prevent tribes from conducting off-reservation gaming. Nothing could be further from the truth.

The second exception allows new lands to be taken into trust for the purpose of gaming on the initial reservation of a newly recognized tribe when the government-to-government relationship is established with the United States. Gaming on these lands cannot properly be classified as off-reservation for the newly acquired land is part of the reservation for the tribe.

The third exception allows for restoration of lands for a tribe restored to federally-recognized status after that status was terminated – usually as a part of the failed “termination” policy of the federal government in the 1950s and 1960s – and usually over tribal protests. Like an initial reservation, a restored reservation cannot truly be classified as off-reservation.

The true “off-reservation gaming” exception in the IGRA requires satisfaction of a number of requirements before tribal gaming can occur away from the reservation. Before this exception can become applicable, the secretary of the Interior must consult with state and local officials, and explicitly find that gaming on that land would be in the best interest of the tribe, and would not be detrimental to the surrounding community. Further, the governor of the state in which the lands are located must concur in those two determinations. This two-part determination by the secretary and the governor must ultimately conclude that it is in all party’s best interest to allow gaming at the off-reservation site. If the site is approved for gaming purposes, the tribe is also required to negotiate a gaming compact with the state governing and regulating the conduct of such gaming before Class III casino gaming can be conducted by the tribe on that site.

The latest public data found indicates that only three off-reservation sites have received final approval for gaming out of about 40 applications in the 21 years since the IGRA went into effect – hardly the boogey man Indian opponents attempt to conjure into existence. Each of those sites received the approval of the secretary and concurrence of the governor of the state.

Any suggestion that the proposed Carcieri fix would increase success rates of these applications is without merit since there was no Carcieri problem for tribes during this entire period. Thinking people should urge their congressional delegation to support legislation restoring the secretary of the Interior’s authority to acquire lands for all federally recognized Indian tribes and individuals on an equal basis.

G. William Rice is an associate professor of law and co-director of the Native American Law Center at the University of Tulsa College of Law. He is an enrolled member of the United Keetoowah Band of Cherokee Indians.