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Senate Carcieri Report Blames Supreme Court for Mess in Indian Country

WASHINGTON – In a new report, the U.S. Senate Committee on Indian Affairs explains the need for legislation aimed at fixing the controversial 2009 U.S. Supreme Court Carcieri decision, while offering a scathing rebuke of the court’s rationale.

“The Committee on Indian Affairs, to which was referred the bill (S. 676) to amend the Act of June 18, 1934, to reaffirm the authority of the Secretary of the Interior to take land into trust for Indian tribes, having considered the same, reports favorably thereon, and recommends that the bill, as amended, do pass,” according to the report, dated May 17, and offered by Sen. Daniel Akaka, D-Hawaii, on behalf of the committee.

The purpose of the legislation is to clarify that the Secretary of the Interior, under the Indian Reorganization Act (IRA) of 1934, can legally take land into trust for all tribes that are federally recognized on the date their land is placed into trust.

The Supreme Court’s February 2009 decision has long perplexed Indian and federal officials who believe it unnecessarily upends longstanding federal and tribal law. The ruling specifically held that the Interior Secretary did not have the authority to take land into trust under the IRA for the Narragansett Indian Tribe because the tribe was not ‘‘under federal jurisdiction’’ in 1934 when the IRA was enacted.

The court said that the case centered on ‘‘whether the Narragansetts are members of a ‘recognized Indian Tribe now under federal jurisdiction,’ and it determined that ‘‘now’’ means ‘‘in 1934,’’ when the IRA was enacted, rather than the date that the Interior Secretary acted to take land into trust.

“It did so notwithstanding the absence of the word ‘now,’ or any other temporal qualifier in the separate definition of the term ‘tribe,’ which also appears in section 19 [of the IRA], and despite its recognition that section 5 authorizes the Secretary to take land into trust for a tribe,” says the report.

Drafted by Akaka, the report says that the court’s logic was “flawed” because members of tribes to be recognized in the future would be “Indians” under the generally accepted definition. “Accordingly, the definition easily could be read as insuring inclusion of members of tribes recognized before enactment of the Indian Reorganization Act without excluding members of tribes that may be recognized in the future,” the report says. “This is entirely consistent with the statutory use of an inclusive, not delimiting, definition of the term ‘Indian.’ ’’

The report says that the decision sent "shockwaves" through Indian country “in great part because the record on which the Supreme Court based its interpretation of section 19 of the IRA was noticeably incomplete.” It adds that the decision undermines the intent of the IRA, threatens public safety and law enforcement, and impedes economic development, while increasing costly tribal and federal litigation.

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Sen. John Barrasso, R-Wyoming, said in an accompanying view issued within the report that he concurs with most of Akaka’s views regarding the effects of the decision of and the purposes of the IRA, although he said he recognizes there to be other “good faith” understandings of the Supreme Court’s rationale.

“For my part, I do not claim to know enough about the government’s internal deliberations and legal strategies in the Carcieri case to say that there were deliberate or even careless omissions from the record presented to the Supreme Court,” Barrasso says. “But whether that happened or not is ‘water under the bridge’ and therefore much less important than the consequences of the decision itself.”

Barrasso adds that he believes the amended bill adopted by the committee reflects the committee’s best efforts to address the fallout from the Supreme Court’s decision: “It may not be a perfect solution, but in this instance there is likely no such thing."

Barrasso’s amendment, accepted by the committee, requires a study by the Department of the Interior that “would identify the impact of the Carcieri decision on Indian tribes and tribal lands and publish a list of each affected Indian tribe and parcel of tribal land,” according to the report.

Akaka says that failing to enact S. 676 “will deprive tribal governments of important rights and benefits that the IRA intended to provide; including the ability to restore and protect their homelands through the acquisition of tribal trust lands and the potential to develop and sustain tribal economic development through the creation of businesses that provide jobs and other economic opportunities for tribal members and residents of the surrounding communities.”

He adds that passage of S. 676 “will cost taxpayers nothing,” but says the “costs to taxpayers if S. 676 is not passed will, however, continue to grow” due to unnecessary lawsuits, some of which are already pending in the courts.

Akaka and the committee deemed the report necessary to follow up on the legislation's mark-up out of committee in April 2011, a spokeswoman for the senator said. Many in Indian country are concerned that the legislation hasn't moved despite widespread belief that it is needed.

Two companion bills were introduced in the U.S. House last year by Reps. Dale Kildee, D-Michigan, and Tom Cole, R–Oklahoma. The U.S. House Committee on Natural Resources held a legislative hearing on those two bills in July 2011. Similar Carcieri fix bills introduced in the previous Congress did not become law.

With the Senate committee’s action, it remains to be seen if the legislation will make it to the floor for a vote, or gain another legislative vehicle before this Congress ends. Akaka is also set to retire in January.