Carcieri Fix

Deputy Interior Secretary Criticizes Carcieri Decision

Kate Fort

From an AP article printed in the Boston Globe, among others:

Hayes said the federal government opposes the Supreme Court’s interpretation of the law, and argued Congress should extend the right to hold land in trust to every tribe, regardless of the date of its recognition.

The administration envisions a “future in which we do not let legalistic interpretations of the law stand in the way of extending basic rights,” Hayes said at the National Congress of American Indians annual convention, which continues through Friday.

The high court’s ruling “must be overturned,” he said. His comments were met with cheers.

Hayes is the second highest-ranking official at the Interior Department. He said the Obama administration has worked to reverse a relationship between the federal government and Indian tribes that significantly deteriorated under George W. Bush’s presidency.

The Political Economy of the Carcieri Fix

Matthew L.M. Fletcher2 Comments

Last week’s hearing on the ongoing question of whether Congress will “fix” the Supreme Court’s Carcieri decision was a different take than earlier hearings, but still completely ignores the elephant in the room.

The first hearings were naked pleas to reverse the Supreme Court’s decision on the grounds that the decision was just plain incorrect. The increased complexity of administration of fee to trust acquisitions for tribes possibly affected by Carcieri and Interior was the backdrop there. Now it is jobs and economic development, truly important factors.

But what was missing, and what likely guarantees there will never be a Carcieri fix, was the big gaming tribes. It is the big gaming tribes that divide Indian country on this question, and even though there are only a dozen, maybe two, in question … and they have an effective veto on a Carcieri fix.

Forget Rhode Island’s concern about having their ridiculously expensive Supreme Court victory stripped away, or some Senators’ concerns about “reservation shopping.” Senators views can be changed, especially when political expediency requires it. But the powerful Indian gaming tribes’ interests are economic. So the hearings are incomplete at best, and maybe a sham at worst, because the real interests can stay quiet on the record.

Intertribal gaming revenue sharing anyone? But even that might not be enough.

House Resources Committee Hearing on Carcieri Fix

Matthew L.M. Fletcher

Here:

SUBCOMMITTEE ON INDIAN AND ALASKA NATIVE AFFAIRS
1324 Longworth House Office Building
Tuesday, July 12, 2011
11:00 a.m.

LEGISLATIVE HEARING ON:

  • H.R. 1291 (Cole) to amend the Act of June 18, 1934, to reaffirm the authority of the Secretary of the Interior to take land into trust for Indian tribes, and for other purposes;
  • H.R. 1234 (Kildee) to amend the Act of June 18, 1934, to reaffirm the authority of the Secretary of the Interior to take land into trust for Indian tribes; and
  • H.R. 1421 (Boren) to amend the Water Resources Development Act of 1986 to clarify the role of the Cherokee Nation of Oklahoma with regard to the maintenance of the W.D. Mayo Lock and Dam in Oklahoma.

 

OPENING STATEMENT:

Representative Don Young
Chairman

WITNESSES AND TESTIMONY:

Continue reading →

Iowa Law Review Note on Possible Carcieri Fixes

Matthew L.M. Fletcher

Amanda Hettler has published her note “Beyond a Carcieri Fix: The Need for Broader Reform of the Land-Into-Trust Process of the Indian Reorganization Act of 1934” in the Iowa Law Review.

Here is the abstract:

: In Carcieri v. Salazar, the Supreme Court held that under the Indian Reorganization Act of 1934 the Secretary of the Interior can take land into trust only for those tribes that were federally recognized prior to 1934. In light of this decision, many tribes and leaders called for a legislative Carcieri fix. While a fix is necessary, this decision has provided lawmakers with a historic opportunity to reform both the statutory and regulatory frameworks for the land-into-trust program. The current process is inadequate and often leaves state and local governments with little voice in the process. It is often administered inefficiently, harming tribal interests and state and local governmental interests. Congress can and should provide a balanced fix that not only remedies the Carcieri issue, but also reforms the regulations governing this process and sets out new purposes and goals for this program.

Asst. Sec. Echo Hawk on a Congressional Carcieri Fix

Kate Fort

An excerpt from his op-ed in Indian Country Today this afternoon:

The Carcieri decision, and the secretary’s authority to acquire lands in trust for all Indian tribes, touches the heart of the federal trust responsibility. Without a clear reaffirmation of the secretary’s trust acquisition authority, a number of tribes will be delayed in their efforts to restore their homelands: Lands that will be used for cultural purposes, housing, education, health care and economic development.

It is important that a Carcieri fix not be tied to the issue of gaming, which is just one activity that may occur on Indian lands. Only 30 of the more than 1,350 pending land-into-trust applications before the department are for gaming purposes. At the same time, it is also important that we acknowledge the role of Indian gaming in tribal economic development.

The Indian Gaming Regulatory Act establishes the framework for regulating this activity, and has become part of the bedrock of federal Indian law over the last quarter-century. Any efforts to fundamentally alter this important law should adhere to the traditional legislative process, and allow for the full participation of all affected tribes.

Such a process is consistent with President Obama’s commitment to transparent government, tribal consultation, and the nation-to-nation relationship between the United States and Indian tribes.

I strongly object to any process that deviates from those principles, and fundamentally amends a cornerstone of federal Indian law and policy without full tribal participation.

Update on Carcieri Fix?

Matthew L.M. Fletcher

From How Appealing:

“Tribal-rights advocates seek ‘fix’ in Congress”: The Providence (R.I.) Journal today contains an article that begins, “Tribal-rights advocates came in force to Capitol Hill Tuesday to ask Congress to undo last year’s Supreme Court ruling that made it harder for Native Americans to set their own rules for the use of certain lands — including the Rhode Island parcel at issue in the decision.”

More at Indianz.

Current Status of Carcieri Fix Bills

Matthew L.M. Fletcher

From THOMAS:

1. H.R.3697 : To amend the Act of June 18, 1934, to reaffirm the authority of the Secretary of the Interior to take land into trust for Indian tribes.
Sponsor: Rep Cole, Tom [OK-4] (introduced 10/1/2009)      Cosponsors (5)
Committees: House Natural Resources
Latest Major Action: 11/4/2009 House committee/subcommittee actions. Status: Committee Hearings Held.

2. H.R.3742 : To amend the Act of June 18, 1934, to reaffirm the authority of the Secretary of the Interior to take land into trust for Indian tribes.
Sponsor: Rep Kildee, Dale E. [MI-5] (introduced 10/7/2009)      Cosponsors (31)
Committees: House Natural Resources
Latest Major Action: 11/4/2009 House committee/subcommittee actions. Status: Committee Hearings Held.

3. S.1703 : A bill to amend the Act of June 18, 1934, to reaffirm the authority of the Secretary of the Interior to take land into trust for Indian tribes.
Sponsor: Sen Dorgan, Byron L. [ND] (introduced 9/24/2009)      Cosponsors (8)
Committees: Senate Indian Affairs
Latest Major Action: 12/17/2009 Senate committee/subcommittee actions. Status: Committee on Indian Affairs. Ordered to be reported with amendments favorably.

Native America Calling Carcieri Radio Show Archived

Matthew L.M. Fletcher

Monday, March 22, 2010– The Carcieri Fix: (listen)
Last year the Supreme Court ruled in Carcieri v. Salazar that language in the 1934 Indian Reorganization Act does not allow the Interior Secretary to take land into trust for the Narragansett Tribe of Rhode Island because the tribe was not federally recognized in 1934. Tribal leaders immediately turned to their allies in Congress to pass a “Carcieri Fix” – a bill that would reverse the court’s decision. But the fix has not been passed. Does Indian Country have the clout to pull it off? Guests are Matthew Fletcher (Grand Traverse Band of Ottawa/Chippewa) of the Michigan State University College of Law and Jason Giles (Muscogee Creek) Deputy Executive Director/National Indian Gaming Association.

Carcieri Fix Talk Monday on Native America Calling

Matthew L.M. Fletcher2 Comments

Here:

Monday, March 22, 2010 (1-2 PM, eastern) – The Carcieri Fix:
Last year the Supreme Court ruled in Carcieri v. Salazar that language in the 1934 Indian Reorganization Act does not allow the Interior Secretary to take land into trust for the Narragansett Tribe of Rhode Island because the tribe was not federally recognized in 1934. Tribal leaders immediately turned to their allies in Congress to pass a “Carcieri Fix” – a bill that would reverse the court’s decision. But the fix has not been passed. Does Indian Country have the clout to pull it off? Guests include Matthew Fletcher (Grand Traverse Band of Ottawa/Chippewa) of the Michigan State University College of Law.

Op/Ed re: Carcieri Fix

Matthew L.M. Fletcher

From the Traverse City Record-Eagle:

The Grand Traverse Band of Ottawa and Chippewa Indians celebrates its 30th anniversary of federal recognition this year, but nothing, apparently, is sacred in ever-changing federal American Indian policy.

A controversial Supreme Court ruling last year blocks many American Indian tribes recognized by the U.S. Interior Secretary after 1934 from making more land-to-trust applications.

The high court’s Carcieri vs. Salazar ruling on Feb. 24, 2009, and politics surrounding a proposed legislative fix, show just how frustrating, confounding and shameful federal American Indian policy has been over more than two centuries of American history — and apparently still is.

The ruling appears to have no effect on the Grand Traverse Band, which was recognized in 1980. In fact, the Interior Department approved trust status for 78 acres in Antrim County on Dec. 10.

The ruling also does not appear to affect two other area tribes — the Little Traverse Bay Bands of Odawa Indians in Emmet County and the Little River Band of Ottawa Indians in Manistee County, both recognized in 1994 by federal statute. Continue reading →