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Fixing a Hole

Tribes, lobby face toughest challenge in Carcieri decision

Fixing a Hole

American Indians, when unified, have proven their political strength on Capitol Hill. Lacking numbers but united in purpose and fortified with billions of dollars from casino gambling, tribes during the Obama Administration have won several major legislative battles.

Indigenous communities in 2010 succeeded in getting Congress to permanently authorize the Indian Health Care Improvement Act (IHCIA), a crucial effort in modernizing a crumbling and ineffective system.

Tribes were united last year in getting congressional authorization of the Violence Against Women Act (VAWA), a significant step in protecting Indian women on U.S. reservations from an epidemic of murder, rape and domestic abuse.

And Indian leaders have successfully staved off Treasury Department intrusion into the tax-exempt status of tribal government programs.

Federal lobbying by tribal governments has increased dramatically since 1998, climbing from $5 million in 1998 to more than $22 million in 2013, generating a great deal of political clout to go along with a unified message from Indian Country.

“Political power is determined by organized votes, organized money or organized ideas,” says Tom Rodgers, president and CEO of Carlyle Consulting of Alexandria, Virginia, and a member of the Blackfeet Tribe of Montana.

“We’ve never had the organized vote. We’ve never had the numbers. But Native Americans, when organized and with their resources brought to bear, can favorably affect an outcome.”

“We’re used to being united,” says tribal lobbyist Mike Anderson, a citizen of the Muscogee Creek Nation. “And when that happens we’re a powerful force.”

Perhaps. But Indian Country’s newfound political power is being seriously challenged by federal court rulings and congressional attempts to thwart what is most crucial to tribal sovereignty and self-determination: the ability of tribes to reclaim and place in federal trust their ancestral lands.

It’s a political and legal battle Indian advocates believe is too important to lose.

Unfortunately, the odds for success are long.

Defeating Decision

Indigenous governments have struggled for nearly five years to remedy Carcieri v. Salazar, a 2009 U.S. Supreme Court decision that limits the Interior Department’s ability to place land in trust for tribes not “under federal jurisdiction” when the Indian Reorganization Act (IRA) was passed in 1934.

The high court ruling stems from former Rhode Island Governor Donald Carcieri’s fear that 31 acres the Narragansett Tribe said it wanted in trust for elderly housing would instead be used for a casino.

Carcieri and related federal court rulings in Patchak v. Salazar and Big Lagoon Rancheria v. California have ripped away the fabric of established Indian law and jeopardized the ability of tribes to strengthen their governments and provide for their citizens housing, health care and other services non-Indian communities take for granted.

Tragically, in this most crucial of battles, tribes are no longer united—at least not to the degree necessary to overcome a contentious Congress angry with what a handful of senators perceive to be an unnecessary proliferation of Indian casinos.

Native America’s $24 million in federal political contributions in the 2012 and 2014 election cycles—nearly 20 times the $1.6 million contributed in 1998—has done little to sway Congress on a legislative “fix” to Carcieri.

And the tribes’ $22 million lobby—praised for its role in securing passage of VAWA and IHCIA—has been powerless. Some tribal Capitol Hill firms have been chastised for their lack of transparency, others for their inability to work in unison on Carcieri-related fee-to-trust issues.

While a remedy to the high court decision may get through the House this session, the latest in a series of Senate Carcieri bills introduced in April by Jon Tester (D-Montana), chairman of the Senate Committee on Indian Affairs (SCIA), is believed doomed on arrival.

“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 warned in introducing his legislation on the Senate floor. “Even Indian Country is divided on the issue.”

Tribes are philosophically united on the need for a legislative “fix” to the high court ruling. But there is strong division over whether the remedy should be linked to Indian Gaming Regulatory Act (IGRA) provisions dealing with casinos on newly acquired lands.

The debate is in large part fueled by a handful of controversial casino projects: gambling halls proposed by the restored North Fork and Enterprise Indians in California and newly recognized Cowlitz Indian Tribe of Washington state; Tohono O’odham’s effort to build a Phoenix area casino on property acquired through a federal land claim; and the Menominee Tribe of Wisconsin’s proposal to develop an off-reservation casino near the Illinois border.

The Aboriginal Lands Coalition—a loosely organized group of tribes that include the San Manuel and Pechanga Indian bands in California, Forest County Potawatomi in Wisconsin, and Gila and Salt River Pima-Maricopa Indians of Arizona, among others—claims IGRA rules and Interior regulations are being used and abused by indigenous communities and big-moneyed developers who, in some cases, are encroaching on the ancestral lands of other tribes.

But coalition moves to reform the land/trust process are viewed by many tribes as obstructing efforts to get a Carcieri remedy that does not involve amending IGRA or limiting the ability of tribes to acquire trust land for casinos and other purposes.

Off-Reservation Gambling Fuels Lobby War

Akin Gump and IETAN, powerful lobbyists for San Manuel, Pechanga, Gila River and other tribes embroiled in the controversy, have been criticized by tribes seeking a “clean” fix to the Carcieri ruling.

The firms, which share office space in Washington, D.C., have been accused of working behind the scenes to get a legislative remedy that would limit the land/trust process for new recognized and restored tribes, among others.

“There can be no second-class citizenry of federally recognized tribes,” says Brian Patterson, a New York Oneida and president of the United South and Eastern Tribes (USET), which has been leading the lobby effort to remedy Carcieri. “There can only be one status for federally recognized tribes. That’s our pursuit.”

IETAN partners Wilson Pipestem and Larry Rosenthal say the criticism is unfair. They contend opposition to a Carcieri fix from Senators Dianne Feinstein (D-California), Jack Reed and Sheldon Whitehouse (D-Rhode Island), Charles Schumer (D-New York), Richard Durbin (D-Illinois) and others make it difficult if not impossible to get a Carcieri remedy out of Congress without compromising on off-reservation casinos.

“All of my clients support a clean Carcieri fix,” Rosenthal says. “The problem is after four years there hasn’t been a road map on how to get there. Do the math. There simply are not enough votes.”

Akin Gump lobbyist Alison Binney did not return telephone calls for comment. But she has also previously said there were too few votes in the Senate to get an IRA amendment without concessions on off-reservation casinos.

But lobbyists for other tribes working the issue in Washington do not buy that explanation.

“Akin Gump and IETAN and others may say publicly they favor a clean fix,” Anderson says. “But if a vehicle comes out of Congress that includes a clean fix, they’re all going to jump in with amendments.

“There are a number of lobbyists who are never going to be for a clean fix because they always have been pushing a compromise, which is to serve their clients, which is to link IGRA changes to Carcieri.”

USET tribes and others bristled three years ago when it was learned IETAN clients and others were working with Feinstein on limiting off-reservation gambling.

The issue grew even more heated when the National Congress of American Indians (NCAI) disclosed in 2011 that Feinstein was drafting off-reservation legislation with the aid of Interior Deputy Secretary David Hayes, a move that muddied Carcieri efforts.

“This was done unbeknownst to the tribal governments, at least those that were seeking a clean fix,” says a prominent Capitol Hill political adviser. “There was no consultation.

“That caused a lot of hard feelings in the Indian lobby community. That’s where the lobby groups started to work against each other.”

“The vast majority of Indian Country—NCAI, NIGA and regional associations—support a clean Carcieri fix,” Rodgers says. “But there is a minority of Indian Country which believes very differently about strategy and tactics.

“The message I give to my brothers and sisters is in this political environment, whatever group is going to succeed—whether it’s the majority of Indian Country that wants a clean fix, or whether it’s the minority—they have to do it transparently.”

IETAN and other firms also were accused of blocking an attempt in December 2012 to get a clean Carcieri fix to a Senate vote.

Loretta Tuell, then counsel for the Senate Committee on Indian Affairs, promised NCAI delegates the tribes had the 60 votes needed to get the measure to the floor, a pledge panned by several tribal political operatives who doubted her claim.

USET and NCAI at the 11th hour advised tribes to back away from the effort, fearing it would fail for lack of support, despite promises by SCIA Chairman Senator Daniel Akaka (D-Hawaii) that he had the needed votes and a pledge from Majority Leader Harry Reid (D-Nevada) to move the measure.

“That was the closest we came to getting a clean fix,” Anderson says. “In the beginning of the day we had 60 votes, including Republicans. By the end of the day that all evaporated.

“Indian Country blinked.”

“That’s just wrong,” Rosenthal counters. “They never came close to getting the votes.”

Carcieri And The Need To Protect Ancestral Lands

Some believe criticism directed at IETAN and Akin Gump is unfair. IETAN, particularly, had been working on behalf of San Manuel’s Serrano Indians on ancestral land issues long before the Carcieri ruling.

San Manuel has for more than a decade fought efforts by Los Coyotes Indians near San Diego to build a casino 100 miles away in the desert community of Bartow, which is within Serrano territory, though far from its San Bernardino County casino.

“San Manuel had been looking for a way to limit situations like Barstow for a long time,” says a Capitol Hill attorney who requested anonymity. “It was a pre-existing situation. Carcieri got plopped down in the middle of it.”

Protection of ancestral lands is a concept supported by virtually all tribes, but it is not guaranteed under IGRA provisions for gambling on newly acquired lands.

“We need to get some certainty built into the regulations or the law,” Jacob Coin, San Manuel’s executive director of public affairs, told Gambling Compliance.com. “San Manuel continues to support a clean Carcieri fix,” said Coin, a citizen of the Hopi Tribe of Arizona. “But we understand, also, the political realities of the issue are such there are a lot of factors to reaching an appropriate or workable solution to the problem.

“Congressmen are empowered with the role of creating this fix to Carcieri. If they’re of the mind other factors are at play then they have to find ways to work through those issues.”

While lobbyists are the face of most legislative wars, they act at the behest of their clients.

“At the end of the day the decision-making is with the tribal leaders, not the lobbyists,” says Kiowa-Comanche John Tahsuda, principal in Navigators Global.

“Politics involving tribes working against each other certainly figures into this,” one tribal attorney says. “Lobbyists didn’t create that.”

Long Odds In Congress

Tester’s bill follows by a few months legislation introduced by Senator Maria Cantwell (D-Washington), who was criticized for her attempts to mediate a compromise with Feinstein and other anti-gambling senators.

Unlike Cantwell, the Montana senator has a long and strong relationship with tribes.

“I think Senator Tester will pass a clean Carcieri bill out of committee,” Rosenthal says. “Then he’ll take some time to see if he can work some magic. He’s well aware of all the issues. He’s an intense negotiator. If anyone can get this done, it’s Jon Tester.”

A solution is crucial to Indian Country and the 366 federally recognized tribes in the lower 48 states, particularly the more than 50 tribal communities recognized after 1934. Any attempt to place land in trust for casinos or other purposes faces a potential challenge on Carcieri grounds.

“I can’t speak to the strategy,” Heather Sibbison, an attorney for the tribal division of Denton U.S., says of Tester’s legislation.

“But I can speak to how courageous his action is, and how important it is.”

It is a stark irony that a handful of tribes and senators are holding up a legislative fix to Carcieri because of their opposition to what they perceive to be an unregulated, unchecked spread of Indian casinos, since the tribal gambling industry has been stagnant for several years. The National Indian Gambling Commission in 2012 audited 425 casinos, only 20 more than in 2008.

Nonetheless, it appears there will be no congressional remedy to Carcieri without a united Indian Country, and a congressionally mandated limit to an industry that is not growing.

Tester is a realist.

“While I believe a clean fix is a solution, many of my colleagues in the Senate don’t agree,” he told delegates to a winter NCAI meeting. “It must come with the support and pledge of Indian Country to come together on this issue and engage in meaningful dialogue.”

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Dave Palermo is an award-winning metropolitan newspaper reporter. He has written about American Indian governments for more than 20 years, working as an advocate for several tribes and tribal associations. He also has co-authored books on gambling and gambling law. He can be reached at dgpalermo1@gmail.com.

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