PHOENIX – A standing room only audience at a panel discussion on a Carcieri fix at the National Indian Gaming Association’s annual conference shows that the issue is alive and controversial as ever.
The panel discussion took place on the first full day of Indian Gaming 2011 Trade Show & Conference on Monday, April 4. Panelists were lobbyist Wilson Pipestem, Otoe-Missouria Tribe, managing partner and co-founder of Ietan Consulting; Allison Binney, Sherwood Valley Band of Pomo Indians of Northern California, former general counsel to the Democrats on the Senate Committee on Indian Affairs; Judy Shapiro, Washington-based attorney practicing Indian law; Brian Newland and Burton Warrington, policy advisors to the Assistant Secretary-Indian Affairs; and lobbyist Tom Rodgers of Carlyle Consulting, who served both as moderator and participant.
In February 2009 the U.S. Supreme Court issued a devastating ruling in Carcieri v. Salazar, which said the Interior Secretary is not authorized to take land into trust for tribes not “under federal jurisdiction” in 1934 when the Indian Reorganization Act (IRA) passed. The IRA was a remedial statute that was meant to repair the devastating damage to Indian culture and traditions lost to settler colonialist expansion, encroachment, and expropriation of Indian lands. The high court’s decision has virtually frozen around 1,300 land-into-trust applications at the Interior Department since it was rendered. Indian country and legislators who support American Indian rights and treaties have sought a “clean” Carcieri fix ever since the ruling was rendered. A clean fix is one that simply clarifies the Interior Secretary’s authority to take land into trust for any federally acknowledged Indian tribe.
The NIGA panel discussion focused on the unsuccessful efforts in Congress at the end of last year to pass a clean Carcieri fix and the chances of passing one now, which most panelists considered to be slim at best.
Efforts to pass a clean fix at the end of the 111th Congress last December themselves became fraught with controversy when Indian country learned that Sen. Dianne Feinstein was working with the Interior Department’s Deputy Secretary David Hayes behind the scenes and without consultation with the nations on proposed legislation to counter a clean Carcieri fix. Feinstein’s proposed bill, which was resurrected last week in the 112th Congress, would amend the Indian Gaming Regulatory Act to require tribes to prove both an aboriginal and modern connection to land acquired for gaming after IGRA was enacted in 1988 – criteria that’s almost impossible for most tribes to meet. The issue was further complicated last year by disunity among the nations, Rodgers said. “During a hectic legislative December we were coming off an exhausting election year and most of Indian country was focused on a clean Carcieri fix, but we were forced by disunity to deal with diversions, such as Sen. Feinstein’s efforts, at a time when unity was the dispositive factor if we were to be successful,” Rodgers said. In the end, neither Feinstein’s bill nor the Carcieri fix legislation were successful.
In December as the lame duck session moved toward its close, Feinstein published an article in the Contra Costa Times in which she threatened to introduce legislation “to stop reservation shopping once and for all” if a clean Carcieri bill was introduced. Her concern over “off reservation” gaming displayed a profound misunderstanding or disregard for the fact that the Carcieri fix had nothing to do with off reservation gaming, Indian leaders said. The fix would only reaffirm the Interior secretary’s authority to take land into trust for tribes that have been federally acknowledged since 1934, but tribes must qualify under an entirely separate set of regulations, most of them extremely onerous, to take land into trust for off reservation gaming. Only around a half a dozen tribes have successfully acquired off reservation gaming land since the Indian Gaming Regulatory Act was passed in 1988 and of the approximately 1,300 pending land into trust applications, only around 30 of them are for land for gaming. But Feinstein’s conflation of off reservation gaming with a clean Carcieri fix to allow Interior to take land into trust for non-gaming purposes muddied the waters and confused the issue.
“Gaming is tied to it (a clean Carcieri fix) and it won’t be untied,” Binney said at the panel. She was with the Senate Indian Affairs Committee during the lame duck session last December when attempts were made to pass former committee Chairman Byron Dorgan’s clean Carcieri legislation, which had bipartisan support and had passed out of committee almost a year earlier. “It’s just unfortunate. I’ve heard senators say, ‘I know this has nothing to do with gaming, but our constitutuents think it does and the press thinks it does.’ So gaming is on this and we have to figure out a way to deal with it.”
Because of the misguided linking of off reservation gaming and trust land, the efforts to pass a clean Carcieri fix during the lame duck session “ran into a brick wall,” Pipestem said “It appeared there might be a pathway to get this done if some compromises were made but there wasn’t enough time or willingness to compromise on the part of Indian country. So while I certainly respect the view that there should have been a no compromise position, ultimately it was clear that that position was not going to prevail.” The problem is it’s going to be much more difficult to move forward than last year, Pipestem asked, “The question to tribal leaders is, are you willing to have a Plan B? In my estimation – I said this last year and it got me into trouble with some folks, but I’ll say it again – there’s not a chance of legislation passing without some sort of willingness to address this (off reservation gaming issue),” he said.
Both Shapiro’s and Rodgers’ comments addressed the ethical issues surrounding the struggle to fix the U.S. Supreme Court’s fundamentally anti-Indian ruling and the implications of compromise. “No matter who you are or what your tribe is, this decision threatens you, because if the Supreme Court can rewrite a remedial statute for whatever reason, then your remedial statute may be next,” Shapiro said. “And if Congress is not willing to remedy this situation and if Indian country can’t circle around and say this is a mistake and we can’t let our brother tribes suffer, then we’re in a bad place because opposition to gaming becomes a code for any anti-Indian opposition and it becomes acceptable and possible as it was in the last term of Congress to obstruct relief, which is manifestly necessary to make sure there are not two classes of Indians in this country.”
Rodgers said the controversy fractured and weakened Indian country. “We’re doing exactly what Tecumseh said we’d do 150 years ago – we’re splintering and each going our own way,” Rodgers said. “What’s most important here is we’re losing the narrative, we’re losing our ability to tell our story, and pretty soon we’ll just become like Las Vegas – commercial gaming – because it’s becoming about the money. I’ll lay it out again: It’s becoming about the money, and that’s the prism Indian country has to look through,” Rodgers said. He urged everyone to consider both the ancestors and those to come in their words, and deeds. “We need to be reminded that when you do something, it’s not just about you. Everyone in this room knows what’s the right thing to do about Carcieri. The question is will you do it? All I ask for is we reconstitute the narrative of what this is about and reframe it. So when you do something, say something act a certain way, or push a certain way, how are your actions befalling your brothers and sisters?”