The Supreme Court Carcieri decision has been a thorn in the side of Indian Country for almost three years. Promised “fixes” have not materialized, but that doesn’t mean they’ve stopped trying.
Deputy Interior Secretary David Hayes recently told a group of Indian leaders that the Obama administration remains committed to finding a “Carcieri fix” to address the problem created by the 2009 ruling that says tribes recognized by the federal government after 1934 cannot put land into federal trust.
Hayes said the administration is urging Congress to act to make clear that this was the not the intent of the 1934 Indian Reorganization Act. He emphasized that the court’s interpretation in Carcieri v. Salazar creates two different kinds of tribes.
“The high court’s ruling must be overturned,” said Hayes. “We respect the tribes as sovereigns. The Bush years had not been good in that regard. We’re working hard to change the way we do business with all of you.”
According to Brad Patterson, president of the United South and Eastern Tribes, Inc., “Even though a tribal nation may not have a shovel-ready project, it is still a matter of fundamental principle with the federal government. Indian Country has united on this issue. There’s a consensus to build a path forward.” At the fall meeting of the National Indian Gaming Association at the Mohegan Sun in Connecticut, speakers focused on how to reverse or modify the ruling.
“I can’t say enough about how important this case is to all of Indian Country and the need for Indian Country to come together and find a way to address the situation,” said John Harte of the Mapetsi Policy Group.
In October, the Senate Committee on Indian Affairs held hearings on the issue where officials of the Department of the Interior said that fixing the ruling was a top priority.
According to various Interior officials, the ruling has had an extreme chilling effect on trust applications, until a few months ago when the department began processing the applications anyway, pending further clarification by the courts.
Last year, Senator Byron Dorgan, then chairman of the Senate Committee on Indian Affairs, proposed a bill to fix Carcieri, but was unsuccessful in moving it forward. One member of the senator’s staff blames this on press coverage that equated a Carcieri “fix” with off-reservation land requests.
But that doesn’t give enough “credit” to Senator Dianne Feinstein, who last December tried the “fix” to off-reservation applications, which she opposes. Such a bill passed in the House, but Feinstein’s opposition killed it in the Senate.
Meanwhile, Feinstein and Senator John McCain, author of the original Indian Gaming Regulatory Act, and Senator John Kyl have introduced the Off-Reservation Land Acquisition Guidance Act which, according to some tribal leaders, “addresses problems that do not exist and are clearly designed to block or dilute a Carcieri fix.”
