UNCASVILLE, Conn. – A panelist at the National Indian Gaming Association’s mid-year meeting echoed speakers at a recent congressional hearing on the urgent need to “fix Carcieri.”
“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 (San Felipe Pueblo) of the Mapetsi Policy Group. The NIGA meeting took place Oct. 17-19 at the Mohegan Sun.
The Carcieri fix is very much in the air these days as Indian leaders, attorneys and lobbyists look with increasing impatience toward February 2012—the three-year anniversary of the badly conceived U.S. Supreme Court ruling in Carcieri v. Salazar. The Senate Committee on Indian Affairs held a hearing on October 13 when senior Interior officials said fixing Carcieri is the Obama administration’s top priority for Indian country. The Carcieri issue was also highlighted at the Global Gaming Expo in Las Vegas in early October. Tribal leaders promise to continue lobbying Congress and the administration until a “fix” is in place.
The Carcieri case started in the 1990’s with the former Rhode Island Gov. Donald Carcieri administration’s opposition to the Interior Secretary’s decision to take 31 acres of land into trust for the Narragansett Indian Tribe to build affordable housing for elders. The case ended up with a majority of high court justices ruling in February 2009 that the Interior Secretary lacked the authority to take land into trust for tribes that were not “under Federal jurisdiction” in 1934 when the Indian Reorganization Act was passed. The ruling has placed immense burdens on the Interior Department, according to officials there, and has virtually frozen land into trust applications at the Interior Department until recently.
Harte’s panel at NIGA was called “Trust Land for Gaming: Carcieri, Feinstein, McCain and Beyond.” Other panelists included Mashpee Wampanoag Tribe Chairman Cedric Cromwell, and Allison Binney, of the firm Akin Gump Strauss Hauer.
Watch Cromwell speak on the “Carcieri Fix” at NIGA:
The Wampanoag people were the first to meet the European invaders at what became known as Plymouth, Mass, yet the Mashpee Wampanoag Tribe waited more than 30 years to be federally acknowledged in 2007. The tribe is landless, Cromwell said. “We need federal trust lands to provide the services needed by our people, to protect our cultural and religious heritage and to promote economic development and self reliance,” Cromwell said. “The confusion in the wake of the Carcieri decision has complicated our efforts to re-establish even a modest land base—one of the original goals of the IRA.”
Cromwell noted that Carcieri has now morphed into a wider attack on trust land in Patchak v. Salazar. The Washington, D.C. appeals court ruled that David Patchak, an anti-Indian casino individual, fell within the “zone of interest” in the IRA and could challenge the Secretary’s acquisition of land for the Gun Lake Band in Michigan even after the land was put into trust and despite other federal rulings that the Quiet Title Act bars such challenges against the federal government’s land holdings. The U.S Supreme Court is considered petitions from the tribe and the federal government to review the appeals court ruling.
“This is only the clearest example of how the Carcieri decision is being used as a weapon for a much broader attack on tribal sovereignty, either to change applicable law, or to delay its rightful implementation,” Cromwell said.
Binney, who was on the staff of the Senate Committee on Indian Affairs last year, discussed the committee’s efforts during the 111th Congress to pass a proposal by committee Chairman Sen. Byron Dorgan, who retired last year. Dorgon’s bill – a “clean Carcieri fix” — and similar legislation by congressional members, would affirm Interior’s authority to take land into trust for all federally acknowledged tribes. “It was one of the few things we weren’t able to accomplish,” Binney said. She blamed the press, in part, for the failure. “We tried to move Carcieri as a standalone bill but we couldn’t — there was so much press tying it to off reservation gaming that it was really hard to get the attention off of reservation gaming,” she said several times.
Binney only briefly mentioned Senator Dianne Feinstein (D-Calif.) in a nod to the panel’s title, noting that Feinstein “has concerns” about off reservation gaming, Feinstein is viewed as having played a starring role in the demise of the Carcieri fix last year. Gaming consultant Joe Valandra (Rosebud Sioux), director of VAdvisors, wrote in a recent article, “Remember, during the lame duck session at the end of the last Congress, there was a concerted effort by Sen. Feinstein to make it virtually impossible for land to be taken into trust resulting in the death of the Carcieri fix. The fix passed in the House but died in the Senate because it was ‘too controversial. Senator Feinstein along with those opposed to ‘Off-Reservation Gaming’ manufactured the ‘controversy,’” Valandra said.
The controversy was sparked by rumors that Feinstein was trying to curtail “off reservation” gaming and flared when tribal leaders learned she had been working behind the scenes with Interior Department officials on drafting an Indian Gaming Regulatory Act amendment would have required a tribe to demonstrate both a “substantial direct modern connection” and “a substantial direct aboriginal connection” to acquire “off reservation” land for gaming – standards that would be impossible for almost any tribe to meet. The leaders raised an outcry about the proposal being developed behind the scenes and without the standard process of consultation, hearings, and comments. Feinstein’s bill did not pass at the end of the congressional session last year.
Valandra warned that what’s past may be present again. “As you may already know, Senators Feinstein, (John) McCain, and Kyle have introduced legislation that brings most of the worst case scenarios into focus again. If you were not aware of this take note. We now have S. 1424 titled, “Off-Reservation Land Acquisition Guidance Act” by Senators John McCain (R-Arizona) and Jon Kyl (R-Arizona) and S.771 titled, “Tribal Gaming Eligibility Act,” by Senators Feinstein and Kyle. Both bills address problems that do not exist and are clearly designed to block or dilute a Carcieri fix,” Valandra wrote.
“Off reservation” is a buzz word meant to stir the emotions and provoke the idea that tribes are clamoring to build casinos far from their reservation lands, Valandra said in his article. “This is a reactionary strategy designed to solicit support from other reactionary groups opposing tribal governmental gaming,” Valandra said. The battle over the Feinstein amendment in last year should be a lesson “in how subtly and effectively this strategy can be used. The road to a Carcieri fix will be very difficult to find through S.1424 and S.771,” Valandra warned.