On the eve of President Obama’s 4th Annual White House Tribal Nations Summit, there is still time for a legislative solution to Indian country’s top priority: fixing the U.S. Supreme Court’s devastating ruling that denies the Interior Secretary’s authority to take land into trust for Indian tribes that were not “under federal jurisdiction” almost 80 years ago.
With tribal leaders flocking to the capitol this week for the summit on Wednesday, the timing may be perfect for a final push to pass soon-to-be-retired Hawaii’s Democratic Sen. Daniel Kahikina Akaka’s S. 676, Indian lobbyists told Indian Country Today Media Network. The bill, known as the “clean Carcieri fix,” amends the 1934 Indian Reorganization Act to reaffirm the Interior Secretary’s authority to take land into trust for all federally recognized Indian tribes, regardless of when they were recognized. And the Obama administration, which has voiced its support for the Carcieri fix, should play a role in encouraging passage of the bill, according to Joe Valandra.
“If it is not acted on this term it will lose its champion – Senator Akaka – and will likely need to start over in the reconstituted Senate Indian Affairs Committee. It will be a long time in coming without action now,” said Valandra, a citizen of the Sicangu Lakota Nation, principal owner and president of VAdvisors, LLC, chairman and CEO of Tehan Woglake, Inc., and former chief of staff of the National Indian Gaming Commission. “The Obama administration should step up the political efforts on behalf of the Carcieri fix, take an active role in the bargaining. In my view, it would be too bad if the President's Tribal Leaders Conference this week becomes a showcase for the lack of resolve in solving one of, if not the largest focused issue in Indian Country.”
The misguided high court ruling has created uncertainty and chaos in Indian country, including hindering tribes from nation building and providing programs for their citizens, litigation over proposed and existing trust lands, safety issues, a backlog of land into trust applications, questions over the tax status of Indian lands, and difficulty for tribal governments to borrow money.
Senate Majority Leader Harry Reid hoped to bring the bill to a vote on Monday, November 26, but that didn’t happen because there weren’t enough votes to pass the bill on the Senate floor. At that time, according to Washington sources, around 35 Senate Democrats and 18 Republicans were committed to voting yes on the Carcieri fix legislation, leaving a needed seven or eight votes to overcome the 60-vote filibuster. There are five Senate Democrats who are almost certain to vote against the Carcieri fix: Richard Blumenthal of Connecticut; Dianne Feinstein of California; Jack Reed and Sheldon Whitehouse of Rhode Island, and Richard Durbin of Illinois, who has recently spoken out against the fix, according to Washington sources. Durbin’s staff did not provide any light on the senator’s position. When asked if he planned to vote yes on the Carcieri fix, his press officer asked, “What is that?”
Valandra said the five that are likely to vote against Carcieri are well known for their resistance to Indian Gaming. “For them the Carcieri issue is all about Indian gaming. Of course it is not, it is about fixing [the statute that deals with] land into trust. The provisions of the Indian Gaming Regulatory Act that deal with land into trust for gaming are not affected by a Carcieri fix at all!” Valandra said.
Since senators like Feinstein have conflated casino gaming with the federal government’s trust responsibility to restore Indian homelands, there is some question as to whether the opposing senators and those still sitting on the fence about the Carcieri fix clearly understand what's at stake for Indian country in not passing a fix – preventing Indian tribes from acquiring trust lands for housing, education, safety of their citizens, and economic development. Valandra said he thinks those likely to vote against the Carcieri fix have probably not put the issue of trust land into historical and future political perspective. “The injustices of the past and the plenary power of the Congress to deal with Indian issues are lost on most. The loss of land resources for future economic development alone should be enough for a positive vote on the Carcieri fix – unfortunately, it is not enough,” Valandra said. “Senators Feinstein and John McCain (R-Arizona) have done a masterful job over the past few years of framing every Indian land issue as a gaming issue so that it is easy for the bulk of busy Senators to just pass on the fix – the strategy has been to create a false controversy so that attention can be diverted. Let's hope it does not work this time.”
It worked last time. A full blown controversy erupted during the lame duck session of 2010 when Indian Country Today Media Network reported that Feinstein was working with Interior Department Deputy Secretary David Hayes on drafting a “Carcieri fix” amendment that would make it nearly impossible not only for a tribe to take off reservation land into trust for gaming, but for landless tribes to take newly-acquired land into trust for any purpose. By the time the 111th Congress passed its final appropriations bill, neither a “clean Carcieri fix” nor Feinstein’s anti-gaming amendment was included in any must-pass appropriations bill.
A current poll on Turtle Talk asking whether a Carcieri fix will pass this year garnered a no vote from more than 77 percent of the small sample. Wilson Pipestem, managing partner and co-founder of Ietan Consulting, agrees that the chance of passing the fix is slim. “All of Indian country would like to see a clean bill pass. But the chances are very small and worse than last week,” Pipestem said.
But it doesn’t have to be déjà vu all over again, said Tom Rodgers, a Blackfeet Nation citizen and lawyer-lobbyist-owner of Carlyle Consulting. “Given the fact that we have the best tribal lobbyists in town – the tribal leaders – and the president’s tribal leaders summit this week, the timing couldn’t be more perfect,” Rodgers said. “Successful legislation is part substance and part timing and this week we have both.”
Rodgers said there’s still the opportunity for a vote on the bill, but it will take aggressive lobbying by Indian country leaders of legislators on both sides of the aisle and a reminder to those legislators who returned to office with the help of Indian country. “We’ve impacted the politics, now it’s time to impact the policy,” Rodgers said. “Senate Majority Leader Harry Reid has shown tremendous leadership on Carcieri. We have no word in my Blackfeet language for ‘vote’ but we do for ‘make your mark.’ So as 2013 and 2014 approach we will remember not the words of our enemies who only seem to view Indian people through the prism of gaming, but the silence of those senators who in the autumn of 2012 benefited from the voices of those who are all too often the poorest of the poor. When it comes time to be counted, how will they, if at all, make their mark?”