Sen. Jon Tester (D-Montana), chairman of the Senate of the Committee on Indian Affairs (SCIA) since mid-February, has introduced a pro-tribal legislative solution to the controversial 2009 Supreme Court Carcieri v. Salazar decision that limited the Department of the Interior’s ability to take land into trust for tribes not under federal jurisdiction in 1934.
Tester’s bill, introduced April 1, reaffirms the Secretary of the Interior’s authority to take land into trust for all tribes, regardless of when they were recognized by the federal government. His legislation does not exclude any tribes on issues like off-reservation gaming or location, as past unsuccessful Carcieri legislation considered in the Senate has done.
“I know that there are a number of my colleagues who have an interest in this legislation and would like to see changes to this bill,” Tester said on the Senate floor upon his introduction. “I want to let you know that I stand ready to work with each of you to craft a bill that the Senate can enact and that will end this problem of two classes of tribes forever.”
Tester sought to introduce a clean fix quickly into his tenure leading SCIA, Senate aides said, because he believes this is an issue that is causing economic uncertainty and costly litigation for many tribes, as well as for the U.S. government.
“This decision has had a significant impact on tribes in every part of this country, whether it is the Poarch Band of Creek Indians, which is facing spurious litigation over its status as a tribe; the Samish Tribe of Washington, which has been waiting four years for a Carcieri determination; or the Little Shell Tribe of my home State of Montana, who could be affected by this ruling if they are granted federal recognition, as they should be,” Tester said in his introduction of the bill. “Moreover, the Carcieri decision has spawned more harmful litigation, including Salazar v. Patchak, where the Supreme Court ruled that individuals have six years to challenge a tribe's trust land acquisition, and Big Lagoon Rancheria v. California, where the Ninth Circuit essentially ruled that there is no time limit on challenging a tribe's status or its trust land acquisitions.”
Tester noted at a March 12 gathering of the National Congress of American Indians (NCAI) in Washington, D.C that problems for tribes stemming from Carcieri have been ongoing for five years and counting.
“While I believe a clean fix is a solution, many of my colleagues in the Senate don’t agree,” Tester cautioned at NCAI. “Even Indian country is divided on the issue. I can tell you that I plan to introduce a clean fix, but it must come with the support and pledge of Indian country to come together on this issue and engage in meaningful dialogue.
“At the end of the day, we need the votes to pass the legislation,” Tester added. “When we look at the map of the nation, we need to know where we stand on the issue. And when we look at the Senate, we need to know how we reach sixty votes. So let’s be realistic. We will not receive the full support of my Democratic colleagues, so the question becomes how we bargain with Republican leaders to make meaningful inroads to solve this issue.”
Randy Noka, a councilman and ambassador with the Narragansett Indian Tribe, told Tester at the NCAI meeting that while Indian country may not be 100 percent supportive of a clean fix, he believes there is overwhelming tribal support for one. He noted at the time that over 30 Native organizations that represent hundreds of Indian tribes had signed letters of support for a clean fix.
“Maybe not 566 federally acknowledged tribes, but overwhelmingly, senator, we support a clean Carcieri fix,” Noka told Tester. “We are ready to stand side-by-side with you, senator. Whatever we have to do as tribal leaders, let’s take that challenge.”
Sens. Jerry Moran (R-Kansas), Mark Begich (D- Alaska), Tom Udall (D-New Mexico), Heidi Heitkamp (D-North Dakota), Patty Murray (D-Washington), Martin Heinrich (D-New Mexico) and John Walsh (D-Montana) have signed on as co-sponsors to Tester’s bill.
Bipartisan clean Carcieri bills have already been introduced in the House this session of Congress, and a clean Carcieri fix passed the House in a previous session of Congress. The Senate has not to date successfully moved a Carcieri bill.
Tester’s legislation stands in contrast to draft legislation floated by Sen. Maria Cantwell (D-Washington) late last year before she exited the SCIA chairmanship. Her legislation called for a fix that would exclude the Narragansett Tribe of Rhode Island, and it made modifications to federal rules that would make gaming impossible or more difficult for some tribes. Many tribes and Indian organizations have argued that land-into-trust policy should not be tied to gaming policy, as they are distinct issues.
Cantwell’s legislation was not drafted with wide consultation from tribal leaders, as opposed to Tester’s, which is said to have wide-ranging tribal support.
Retired Sen. Daniel Akaka (D-Hawaii) pushed for passage of a clean Carcieri fix when he led SCIA before Cantwell, but that effort was stalled by legislators including Sen. Dianne Feinstein who would only support a legislative compromise that tied limits on off-reservation gaming for some tribes to Carcieri legislation. Some tribal lobbyists who want to limit casino competition for their clients have worked with Feinstein to develop Carcieri compromises that in effect create two classes of tribes.
Interior in March issued a legal opinion that has allowed it to continue taking lands into trust for tribes no matter their dates of federal acknowledgement, but the opinion could be ignored by future presidential administrations.