It’s almost December and the lame-duck Congress is deliberating and negotiating. Will a Carcieri fix happen this year?
Legislation
Sen. Reid Indicates that Senate Continues to Negotiate Carcieri Fix Legislation — Vote Delayed
Mr. REID. “As I indicated this morning, we are trying to work our way through a number of issues. We thought we were going to be able to move toward the Carcieri matter this evening, but we are still negotiating this matter, so we are going to have to do that at some subsequent time.”
http://www.gpo.gov/fdsys/pkg/CREC-2012-11-26/pdf/CREC-2012-11-26-senate.pdf, page S6891
Carcieri Fix Calendar Vote in Senate Today
Akaka’s clean Carcieri fix calendar vote is today see: http://www.gpo.gov/fdsys/pkg/CCAL-112scal-2012-11-26/pdf/CCAL-112scal-2012-11-26.pdf (page 57 405 S. 676)
Need 60 senators voting yes to get this bill on the Senate calendar for a vote on the full bill on Wednesday.
NYTs Op/Ed: Lawlessness in Indian Country
Here.
An excerpt:
Violence and crime rage unchecked in Indian country, yet the federal government, the primary law enforcer on reservations, is investigating and prosecuting fewer violent felonies, and reducing financing for tribal courts and public-safety programs. That is a scandal.
Updated Materials on Proposal to Amend/Repeal Section 1500
Nixon Administration Redux — Two Papers from the Nixon Era
These two papers — from 1970 and 1974 — are interesting tidbits on the 1970 Nixon message to Congress and perhaps some backgrounds on the 1975 Indian Self-Determination and Education Assistance Act. Miigwetch to Bob Anderson for the 1970 paper, and miigwetch to whomever sent me the 1974 paper (poor form in losing the accompanying docs).
NCAI Resolution Supporting Repeal or Reform of Section 1500
Here:
Administrative Conference Recommends Repeal and Replacement of Section 1500
Tribal support needed. Here are the materials:
S 1500_ Revised draft recommendation _ 09202012
DOJ Statement Re Section 1500 Proposal
From DOJ:
The Department of Justice is seeking input from tribal leaders to assist the Department in formulating the official position it will take on a proposal that will be considered in early December 2012 by the Administrative Conference of the United States, of which the Department is a member. The proposal, which did not originate at the Department of Justice, would recommend to Congress that it repeal and replace 28 U.S.C. 1500, a Federal statute that prohibits consideration by the United States Court of Federal Claims of otherwise cognizable claims if the plaintiff also has pending litigation against the United States in any other court based on substantially the same operative facts, regardless of the type of relief sought. Additional information regarding the statute and the proposal are included in the attached letter and enclosures.
Tom Gede on the Problems with an Oliphant Fix
Tom Gede has published “Criminal Jurisdiction of Indian Tribes: Should Non-Indians Be Subject to Tribal Criminal Authority Under VAWA?” in ENGAGE: The Journal of the Federalist Society Practice Groups.
Here is a sampling:
As a policy matter, Congress must consider whether the “relaxing” of restrictions on inherent tribal criminal jurisdiction over non-Indians is warranted, given that it would subject non-Indian citizens to the authority of an extraconstitutional sovereign to which they had not previously been subject, and where the customary guarantees of federal constitutional protections may be questioned. Unlike the Duro-fix, which related to non-member Indians, a full or partial Oliphant-fix that relies on reaffirming inherent tribal criminal jurisdiction will bring significant constitutional and prudential questions that will likely have to be tested at the highest levels. An Oliphant-fix that grants federal delegated authority to tribal governments and includes federal appellate review likely will be more palatable to non-Indians and to a Supreme Court that looks to constitutional structure guarantees, among others, but does nothing to respect tribal sovereignty. The real question ought to be what instrument most effectively and expeditiously permits the local prosecution and punishment of domestic violence and sexual assault and other crimes committed by non-Indians in Indian country.
Sen. Akaka Release on Senate Passage of Three Indian Affairs Bills
Washington D.C. – Today, U.S. Senator Daniel K. Akaka (D-Hawaii), Chairman of the Senate Committee on Indian Affairs, made the following statement on the unanimous Senate passage of the Minnesota Chippewa Tribe Judgment Fund Distribution Act of 2011 (H.R. 1272), the Barona Band of Mission Indians Land Transfer Clarification Act of 2012 (S. 3193), and the National Native American Heritage Month Resolution (S.Res. 561). All three bills passed the Senate over the weekend.
“Since becoming Chairman of this committee last spring, I have worked hard with Vice Chair Barrasso and the other Senators on this committee to advance the priorities of all Native American peoples and to work to improve their lives. Each of these bills will have a positive impact on tribes and surrounding communities.” said Chairman Akaka. “Mahalo – thank you- to my colleagues in the Senate for working with me in a bipartisan manner to pass these bills.”
H.R. 1272 would distribute settlement funds to compensate tribal members for the improper taking and sale of their land and timber. This bill passed the House of Representatives on June 18, 2012, and was favorably reported out of the Senate Committee on Indian Affairs on June 28, 2012. It now heads to the President for enactment.
S. 3193 would make technical corrections to the legal description of certain land to be held in trust for the Barona Band of Mission Indians. This bill was favorably reported out of the Senate Committee on Indian Affairs on June 28, 2012, but awaits consideration by the House of Representatives.
S.Res. 561 recognizes November as Native American Heritage Month and celebrates the heritages and cultures of Native Americans and the contributions of Native Americans to the United States. S.Res. 561 was introduced by Chairman Akaka on September 19, 2012.
Turtle Talk 
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