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Indigenous Policy Journal - Three-Day Tribal Leaders Summits Urges Clean Carcieri Fix

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By Gale Courey Toensing

The United South and Eastern Tribes and the National Congress of American Indians will host a two-day "Carcieri fix" summit in Washington June 21-23.

The purpose of the Carcieri Fix Summit is to gather support for legislation--S. 676, introduced in the Senate by Sen. Daniel Akaka (D-Hawaii), and H.R. 1291 and and H.R. 1234, introduced in the House by Rep. Tom Cole (R-Oklahoma) and Rep. Dale Kildee, respectively--that would reaffirm the Secretary of the Interior's authority to place land into trust for all federally recognized Indian tribes.

"Land is essential to our sovereignty and who we are," said United South and Eastern Tribes (USET) President Brian Patterson. "This land from the west coast to the east coast holds the bones of our ancestors."

In a June 9 invitation letter to tribal leaders posted on the United South and Eastern Tribes' (USET) website, organizers said, "It is critical to have strong attendance from tribal leaders at the Summit to demonstrate to Congress that the Carcieri Fix is an issue of utmost importance for Indian country." And tribal leaders from all over the country have responded to the call to attend the summit, Patterson said. The summit is called "Affirm the Federal Government's Duty to Protect Tribal Lands: Addressing the Carcieri Decision."

"The National Congress of American Indians (NCAI) has been a dynamic resource and partner in addressing this issue and USET has really found itself in a unique position to advance a Carcieri position on several levels and that is essentially that Carcieri is a sovereignty issue in all of Indian country whether it's a nation that's directly involved or not so I think we need to unite around these direct frontal attacks on our sovereignty," Patterson said.

It has been two-and-a-half years that Indian country has sought "a clean Carcieri fix" to the U.S. Supreme Court's Carcieri v. Secretary of the Interior ruling in which a majority of justices concluded that the Interior Secretary does not have the authority to take land into federal trust for Indian tribes that were not "under federal jurisdiction" in 1934 when the Indian Reorganization Act was passed. Justice John Stevens wrote the dissenting opinion. The case was named after former Rhode Island Gov. Donald Carcieri and ended up in the high court after the state's 10-year battle against the Narragansett Indian Tribe over the tribe's plan to build low income elderly housing on 31 acres of trust land. The state and local municipality fought ceaselessly against the tribe, claiming it would actually build a casino on the site--despite evidence to the contrary in the fact that the tribe had began construction on the housing project with a $4 million Housing and Urban Development grant. The state lost its case--twice--in front of the 1st Circuit Court of Appeals before petitioning the high court for review.

The high court's ruling turned on the majority's interpretation of the statutory phrase "now under Federal jurisdiction." The petitioners claimed the term "now" meant then--1934 when the statute was enacted. The respondents argued that "now" is an ambiguous term that could reasonably mean "as of now"--as opposed to "in the past"--the secretary was authorized to take land into trust for tribes or members of tribes that are "under federal jurisdiction" at the time the land is accepted into trust. And in practice, that is what occurred: The Interior secretary has taken land into trust for federally recognized tribes since 1934, including those that became federally acknowledged over the years, such as the Narragansetts who were acknowledged in 1983. But land into trust applications have been virtually frozen since the high court's ruling.

The summit will begin with a Tribal Leaders Strategy Session on Tuesday, June 21 in Room HT-2 at the U.S. Capitol from 3 p.m. to 5 p.m. The next day, Wednesday, June 23, there will be a "Carcieri Fix Rally" on the U.S. Capitol Grounds on the corner of Constitution Avenue and 1st Avenue, NE, at 8:30 a.m.

"We're going to be in full force up on The Hill in our full regalia to identify ourselves, one, as Indian country, and two, to showcase the fact that we are not a "special interest group,' we are Indian country with a unique relationship with this country and we're calling on the trustees to represent and advance that position and for the representative of Congress to realize their role and responsibility in advancing the social needs of our peoples," Patterson said.

On June 23, the Senate Committee in Indian Affairs will hold an oversight hearing on "The Indian Reorganization Act--75 Years Later: Renewing our Commitment to Restore Tribal Homelands and Promote Self-Determination."

There has been much controversy over the "clean Carcieri fix," much of it centered around Sen.Dianne Feinstein's (D-California) opposition to "off reservation" gaming in her California district where several hugely successful and wealthy casino tribes have mounted a vigorous opposition to smaller tribes cutting into what they consider their "market share." Feinstein introduced an amendment to the Indian Gaming Regulatory Act (IGRA) legislation at the end of last year that would have made it almost impossible for a tribe to put into trust any land acquired after October, 1988, for gaming. She threatened to hold a "Carcieri fix" hostage if it didn't include a compromise that would restrict--or eliminate--off reservation gaming. "If the Senate takes up this (Carcieri) bill, I plan to offer legislation to make clear, once and for all, that reservation shopping is not acceptable in California," Feinstein wrote in an opinion piece. Her concern, however, may be misplaced: In the 23 years since IGRA was enacted, Interior has approved only five trust land applications for off reservation gaming.

Feinstein's bill did not make it through the last legislative session, but she introduced a similar proposal--S. 771--in April, setting up the possibility of another showdown or hostage-taking scenario between those tribes and their lobbyists who want to stop competition through additional legislation and those who believe the regulations in place are sufficient to restrain off reservation gaming by tribes with no legitimate claims to aboriginal territories far from their current reservations.

The best resolution to the conflict, Patterson said, would be for tribal leaders to talk to each other and not be victims of the "divide and conquer" strategy.

"I know there are tribes with concerns. I've had conversations with some of those tribes in southern California. We need to have a candid discussion about this and I think when we do that we'll find we share a similar position and a unified position,' Patterson said. "I think the issue really gets clouded when others besides tribal leaders play themselves into the discussion."

Patterson said that USET will not bend to any "compromise" that diminishes tribal sovereignty.

"USET will not stand idle for the creation of different classes of sovereignty. Taking away a tribe's ability to put land into trust is the essence of sovereignty," Patterson said. "This is a priority issue for Indian country."


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