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Sen. Jim DeMint Resigns to Head Heritage Foundation on Heels of Its Anti-Carcieri Brief

Legislators who have been working hard for almost four years to pass an amendment to restore Indian homelands will not likely regret the departure of a senator who would almost certainly vote against the measure.

Sen. Jim DeMint (R-S.C.) announced on Thursday, December 6, that he will leave the Senate at the beginning of January to become the next president of The Heritage Foundation, the best known and most influential rightwing think tank in the country.

A day earlier, the Heritage Foundation published what it called “an issue brief” criticizing the proposed amendment to the 1934 Indian Reorganization Act (IRA), known as the “Carcieri Fix.” Sen. Daniel Kahikina Akaka, who is retiring in January, authored the amendment to repair the misguided 2009 U.S. Supreme Court Carcieri v. Salazar decision by reaffirming the Interior Secretary’s authority to take lands into trust for all federally a acknowledged tribes — not only those “under federal jurisdiction” in 1934.

There was no mention of the Carcieri fix in DeMint’s resignation announcement. Proponents of the fix hope it will pass during the current lame duck session, but if it doesn’t the soon-to-be-former senator will have the opportunity to work against it in his new role from within the foundation’s overall opposition to Indian land restoration. "I'm leaving the Senate now, but I'm not leaving the fight,” DeMint said in his announcement. “I've decided to join The Heritage Foundation at a time when the conservative movement needs strong leadership in the battle of ideas. No organization is better equipped to lead this fight and I believe my experience in public office as well as in the private sector as a business owner will help Heritage become even more effective in the years to come.”

DeMint’s resignation sparked a commentary by faux pundit Steven Colbert, a South Carolina resident, the Huffington Post reported. "I'm not going to sit here and say I should be South Carolina's next senator. Not when so many other people are saying it for me," Colbert cracked.

In its tone, content, and the use of the skeptical or ironic quotation marks, the Heritage Foundation paper called “Indian Tribal Lands and the Carcieri Fix” is sure to offend Indian leaders and legislators who continue to struggle to restore the land into trust process as it operated for 75 years before the high court ruling. The paper alleges that the Carcieri fix would give the Interior Secretary “unbridled discretion to turn over tens of thousands of acres of private land to Indian tribes.” It suggests that before giving “serious consideration” to a Carcieri Fix – implying the fix is only worthy of inconsequential consideration – that “Congress should establish clear and specific standards, including elucidating what constitutes a legitimate ‘tribal need,’ in order to guide the land trust decisions made by those executive branch officials acting under a grant of congressional authority.” The words “tribal need” again use the quotation marks.

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Matthew Fletcher, a professor at the Michigan State University College of Law, director of its Indigenous Law Center, and keeper of the top-rated law blog Turtle Talk, told Indian Country Today Media Network that the Heritage Foundation’s allegations are not supported by facts. “It's important to note that Section 5 [of the Indian Reorganization Act], and its accompanying regulations, already force Interior to take all of these factors into consideration in making the determination to take land into trust. All of the allegations made here can be made at the time of the trust acquisition decision, and in litigation following the decision under the Administrative Procedures Act,” Fletcher said. “Moreover, a clean Carcieri fix merely returns the state of the law to where it had been for seven decades prior to the Supreme Court decision. It's a restoration of the well-established state of the law before the Supreme Court's surprising intervention.”

The Heritage Foundation paper acknowledges that the IRA was designed to restore tribal lands that had been ripped apart under the Dawes Act, but goes on to say that “one of the most controversial provisions of the IRA is the taking of "non Indian" land into trust for tribes because it "removes the land from the states' traditional jurisdiction," deprives states of taxes, and exempts the land from state laws. There is no consideration of the historical fact that 100 million acres of land taken from tribal nations deprived them of their traditional jurisdiction over their territories.

The paper also presents the objection to trust land – tribal gaming – that all anti-Indian casino groups make. “This allows the tribes to use the land for purposes that might otherwise be circumscribed by the state, such as operating gambling casinos, which is generally prohibited under the Indian Gaming Regulatory Act of 1988 (IGRA) unless the land qualifies under one of the exceptions set out in Section 20 of that act, a loophole that is frequently exploited,” the foundation said. The paper goes on to complain about gaming investors and “bogus historical connection[s]” to land and accuses some land into trust applicants of using “vague or ambiguously worded proposed uses for that land. There is nothing to prevent the applicants from establishing casinos—which has been known to happen—on land that meets the requirements of Section 20 of the IGRA once it is appropriated by the Interior Secretary and put in trust for their use.” In fact, the requirements of IGRA’s Section 20 are so stringent that it takes years to acquire gaming approvals.

Perhaps the Heritage Foundation’s most potentially offensive claim – in view of the land uses by the dominant society that have brought on global warming and climate change – is the sweeping allegation that Indian land use has degraded the environment. “What is telling is the complete lack of factual support for the allegations,” Fletcher said. “Tribal control over land causes climate change? Seems to me the Heritage Foundation was in charge of the political machinein denial of climate change not all that long ago,” Fletcher said, referring to the foundation’s “fervent” opposition to the Kyoto protocol. “This is just pure political defamation, a kind of irresponsible, ignorant, and even pathetic policy statement that the Heritage Foundation should be embarrassed to publish,” Fletcher said.

More recently – in fact, on the same day the Heritage Foundation issued its anti-Carcieri fix paper – it also issued U.S. Should Put U.N. Climate Conferences on Ice – in which it refers to global warming as “a theory.” Among its recommendations to address global warming is “removing onerous and unnecessary regulations on fossil fuels that are driving up the cost of energy.”

Ben Lieberman, Senior Policy Analyst for Energy and Environment at The Heritage Foundation said the following about climate change: "What I conclude from a policy standpoint is that global warming is clearly not a crisis and should not be addressed as one … None of the scary stuff about global warming is true, and what is true about global warming, what the science actually tells us about man's role in changing the climate, is far from terrifying." The foundation has also said that “global warming will not hurt the U.S. economy,” which may surprise those individuals and businesses affected by Superstorm Sandy in October.