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Senators, more tribal leaders urge ‘clean Carcieri fix’ passage

WASHINGTON – As the clock ticks down toward the end of Congress’ lame duck session, efforts to pass a “clean Carcieri fix” become more urgent each day.

On Dec. 15, 32 additional signatures were added to a letter signed by 97 tribal leaders a day earlier, urging President Barack Obama to contact Senate leaders “to insist that a clean, no-strings-attached Carcieri fix be included in the Senate’s Fiscal Year 2011 omnibus spending bill.

“We agree with the sentiments, views and concerns expressed in that 97 leader letter. All tribes should be treated equally under the law. The Carcieri decision effectively created two different classes of tribes. We know that your administration cannot possibly support or countenance this kind of inequality under the law,” the 32 tribal leaders wrote.

Meanwhile, Senate Republican Minority Leader Mitch McConnell is lobbying against passage of the $1.108 trillion omnibus spending plan that was unveiled Dec. 14. The bill includes around $8 billion in earmarks.

McConnell, who was for earmarks before speaking out against them a month ago, has included an earmark request for $109 million, the largest of which is $18 million for a railroad upgrade at Kentucky’s Fort Knox, according to The Hill.

Borrowing language from the “clean Carcieri fix,” McConnell is pitching what he calls a “clean, one-page continuing resolution” (CR) to fund the federal government until Feb. 19. He introduced his proposal Dec. 16. The goal is to delay passage of a spending plan until Republicans who won a majority in the House and more seats in the Senate in November elections “can have a chance to pass a less expensive bill free of wasteful spending,” he said.

The tribal leaders said the Supreme Court’s 2009 Carcieri ruling created two different classes of tribes – those with trust land and those who would not be able to get trust land – by denying the Interior secretary’s authority to take land into trust for tribes that were not “under federal jurisdiction” in 1934 when the Indian Reorganization Act passed.

The ruling overturned 75 years of practice during which the Interior secretary did take land into trust for numerous tribes, thereby fulfilling the IRA’s intent to restore to tribal nations some of the lands that had been expropriated, divided, allotted, privatized and otherwise stolen and broken up into non-contiguous holdings.

The proposed “clean Carcieri fix” would affirm the secretary’s authority to take land into trust for all federally acknowledged tribal nations.

In a recent opinion piece in Indian Country Today, Assistant Secretary-Indian Affairs Larry Echo Hawk reiterated his support for a “clean Carcieri fix.”

“The Carcieri decision, and the secretary’s authority to acquire lands in trust for all Indian tribes, touches the heart of the federal trust responsibility. Without a clear reaffirmation of the secretary’s trust acquisition authority, a number of tribes will be delayed in their efforts to restore their homelands: Lands that will be used for cultural purposes, housing, education, health care and economic development,” Echo Hawk wrote.

Also on Wednesday, Sen. Byron Dorgan, D-N.D., and Sen. Lisa Murkowski, R-Alaska, wrote a “dear colleagues” letter to Senate Majority Leaders Harry Reid and Sen. Daniel Inouye, D-Hawaii, the chairman of the Appropriations Committee, urging the passage of S.1703, the original “clean Carcieri” bill sponsored by Dorgan. The bill reaffirms the Interior secretary’s authority to take land into trust for acknowledged tribal nations. It was approved by the Senate Indian Affairs Committee on Dec. 17, 2009.

“Besides dividing our country’s Indian tribes into two distinct classes in a manner that does not appear to serve any modern federal Indian policy, the court’s decision has spawned troubling questions of civil, criminal and regulatory jurisdiction and authority over tracks of trust lands acquired by the secretary over the course of several decades – questions with grave implications for public safety within the Indian communities located on these lands,” the senators wrote.

“The uncertainty and risk created by the Carcieri decision cannot and should not be tolerated. We believe that passing S.1703, as reported, is not only the right course of action, it is the only responsible course of action.” The letter was signed by 21 senators.

S. 1703 “dropped off” the omnibus bill earlier this week under the weight of controversy, but Carcieri fix supporters said Thursday they are hoping to reattach it.

If the omnibus bill fails, the House has passed a CR supported by tribal leaders that includes the “clean Carcieri fix,” no earmarks and no anti-Indian amendments. The House CR would cap spending at this year’s level of $1.089 trillion and would fund the government until Sept. 30, 2011 or for a shorter period of time if Republican legislators succeed in a battle over its extent.

McConnell’s proposed CR may throw a monkey wrench into the works if both the omnibus bill and House CR stumble. The current CR expires Dec. 18.

It’s a time of peril, a Washington source said.

“As legislative time grows short and the calendar year comes to a close the Republicans in the Senate will become more emboldened and the probability of a short term CR becomes more likely. There is a high stakes legislative game of poker occurring; the question is who controls the narrative and thus who will be able to maintain his bluff.”