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The Urgent Need for a Clean and Transparent Carcieri Fix

As Congress winds down its session, we should acknowledge the historic accomplishments it has helped us achieve over the past two years. The Indian Health Care Improvement Act, the Tribal Law & Order Act, the settlement of the Cobell litigation, and the passage of four Indian water rights settlements mark significant milestones of progress for Indian country. I am grateful for the efforts and support of so many throughout Indian country and in Congress to bring these accomplishments to fruition.

The 111th Congress also has more work on its plate before it breaks, including enactment of a legislative fix for the U.S. Supreme Court’s February 2009 Carcieri v. Salazar decision which has called into question the federal government’s authority to take land into trust for all American Indian tribes.

The Obama administration has expressed its full support for a legislative resolution of this problem on many occasions. At the recent conference for the National Congress of American Indians, several high-ranking officials from the administration expressed support for a clean Carcieri fix.

I am aware of proposals to link a Carcieri fix to amendments to the Indian Gaming Regulatory Act. This fall, the department received what is known as a “request for drafting service” for legislative language that would amend IGRA’s provisions governing gaming on Indian lands acquired after 1988.

The department responded to this request pursuant to its policy of providing technical assistance to members of Congress. In its response to the request, the department reiterated that the drafting language does not represent a statement of the department’s position on potential legislation. We have since made the outcome of our response available to Indian country.

I would like to take this opportunity to reiterate my support for congressional enactment of 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.

It is important that a Carcieri fix not be tied to the issue of gaming, which is just one activity that may occur on Indian lands. Only 30 of the more than 1,350 pending land-into-trust applications before the department are for gaming purposes. At the same time, it is also important that we acknowledge the role of Indian gaming in tribal economic development.

The Indian Gaming Regulatory Act establishes the framework for regulating this activity, and has become part of the bedrock of federal Indian law over the last quarter-century. Any efforts to fundamentally alter this important law should adhere to the traditional legislative process, and allow for the full participation of all affected tribes.

Such a process is consistent with President Obama’s commitment to transparent government, tribal consultation, and the nation-to-nation relationship between the United States and Indian tribes.

I strongly object to any process that deviates from those principles, and fundamentally amends a cornerstone of federal Indian law and policy without full tribal participation.

The department studied the Indian Gaming Regulatory Act very closely, and consulted with leaders from across Indian country, as well as federal, state and local officials, and developed a path forward on processing Indian gaming applications. Secretary Salazar laid out this framework in his June 18, 2010 memorandum to my office.

We have since taken action on seven Indian gaming applications, including approvals for projects by the Navajo and Cherokee Nations. On Dec. 18, we will complete a period of tribal consultation on developing a framework to implement department regulations governing off-reservation gaming, so that Indian country’s views will inform the first-ever implementation of those regulations.

I have had the fortune to visit hundreds of tribal leaders in my visits across Indian country over the past 18 months, and have candidly expressed my commitment to tribal participation in the formulation of our policies in a manner consistent with our trust responsibility.

I am committed to upholding this administration’s policy of nation-to-nation dialogue and transparency as we move forward with a responsible tribal gaming policy under the Indian Gaming Regulatory Act.

Larry Echo Hawk is the Assistant Secretary – Indian Affairs at the U.S. Department of the Interior.