Congress grappling with 6-year-old Supreme Court land ruling

By Dylan Brown | 10/28/2015 07:27 AM EDT

Indian Affairs can offer a breath of nonpartisan fresh air in Washington, D.C., but for six years, Congress has failed to “fix” a 2009 Supreme Court decision that threw eight decades of tribal trust land deals into doubt.

Indian Affairs can offer a breath of nonpartisan fresh air in Washington, D.C., but for six years, Congress has failed to "fix" a 2009 Supreme Court decision that threw eight decades of tribal trust land deals into doubt.

Self-determination, or the ability of the nation’s 567 Native American tribes to control their own destinies, is a bipartisan rallying cry after centuries of policies aimed to destroy the tribes or force their members to assimilate.

Sovereignty is a one-two punch. First, a tribe must be officially recognized by the United States, establishing the sacrosanct trust responsibility for the federal government. Then, tribes reclaim indigenous homelands by having the government take lands into trust.


Six years ago, the Supreme Court’s interpretation of a single line from a 1934 law cut off the second fist for some tribes.

After Carcieri v. Salazar, the Department of the Interior can only take lands into trust for tribes that were "under Federal jurisdiction" when the Indian Reorganization Act was signed in 1934.

Outraged at finding themselves the lesser of two classes, post-1934 tribes now have to ask Congress to specifically set aside trust lands — the building blocks of any tribal economy and energy development.

While about two dozen trust land bills have filled Congress this session, the National Congress of American Indians and tribal leaders support a "Carcieri fix," rewriting "under Federal jurisdiction" to say "any federally recognized Indian tribe."

An array of House and Senate bills, including four "clean fixes," would do just that, but none has gotten out of committee as lawmakers struggle to find a workable solution in a mess created by casinos and parochial concerns.

Mix of fixes

Since 2009, whether Republicans or Democrats have controlled Congress, tribes have had to endure a lengthy and expensive process to pass legislation.

"I’m never much in favor of seeking authority for the executive branch, but in this particular case it might make sense," Senate Indian Affairs Committee ranking member Jon Tester (D-Mont.) said in support of a fix.

Tester’s S. 732 and Sen. Jerry Moran’s (R-Kan.) S. 1931 haven’t moved in the Senate, and the House has ignored Rep. Betty McCollum’s (D-Minn.) H.R. 407 and Rep. Tom Cole’s (R-Okla.) H.R. 249, which is co-sponsored by 22 Democrats and 16 Republicans.

"I’ve got 11 tribes in my district. None of them are affected by Carcieri; all of them are for [a fix] because they understand that it’s a bad thing to have two different classes of Indian tribes," said Cole, the only enrolled Native American in Congress, a member of the Chickasaw Nation.

Cole said he hopes at least his partial fix, H.R. 3137, which would "grandfather" in any land deals made before the Supreme Court justices made their decision in 2009, will pass this Congress.

"Then, hopefully, restore to the [Interior] secretary — be that person Republican or Democrat — the right that everybody thought they had in the 1934 Indian recognition act, which is to put lands into trust for tribes," he said.

In the Senate, Tester has given up on his own bill to work with Indian Affairs Chairman John Barrasso (R-Wyo.) on a more nuanced approach (E&E Daily, July 30).

As written, S. 1879 would restore access to trust lands for every recognized tribe but also give preference to tribes that enter into cooperative agreements that mitigate disputes over changing land use with local stakeholders.

Tribes argue that local governments should have no place in nation-to-nation negotiations, but state, county and other local government concerns about casinos are why Congress can’t pass a Carcieri fix and why the fight started in the first place.

Rhode Island roadblock

In 2009, the Supreme Court sided with Rhode Island and former Gov. Donald Carcieri (R) against then-Interior Secretary Ken Salazar and the Narragansett Indian Tribe, ruling that Interior could not legally place lands into trust for the tribe, which was planning to build a casino, because the tribe wasn’t officially recognized until after 1934.

Gaming is the elephant in the room for all Indian policy, dividing Congress along strange battle lines in localized fights.

The high court decision emboldened critics who accuse tribes of "reservation shopping" — picking out trust land close to metropolitan centers to ensure thriving casinos — or blame Interior for "creating" tribes that did not merit recognition, which was the subject of a recent House subcommittee hearing (Greenwire, April 23).

Beyond moral objections to gambling, many local governments argue tribal land deals cost them part of their tax base.

They join forces with rival tribes with competing casinos. In an Arizona casino dispute, the Tohono O’odham Nation and the Gila River Indian Community, a neighboring tribe with its own gaming facilities, signed the fourth- and second-largest single lobbying contracts on Capitol Hill, respectively, to aid them in the battle, according to Open Secrets.

Some established tribes also decry "splinter groups" — former members who either leave or are forced out of a recognized tribe and then try to form their own tribe. With huge financial stakes, disenrollment played out fictionally in season two of Netflix’s "House of Cards" TV series and in reality, according to a New York Times report, for the Picayune Rancheria of the Chukchansi Indians of California.

In Congress, gaming opposition unites two usually antagonistic groups — House Republicans like Rep. Paul Gosar (R-Ariz.), a vocal critic of the Tohono O’odham casino, and senators from Democratic strongholds Connecticut and California, the epicenters of the debate over gaming and how the government recognizes tribes.

Connecticut Sen. Richard Blumenthal (D) has helped lead opposition to recently recognized tribes in his state building casinos, including killing two tribal trust land deals during his time as the state’s attorney general.

Fellow Democratic critic Sen. Dianne Feinstein’s state of California is home to the most federally recognized tribes outside of Alaska, with a huge backlog of groups petitioning to become tribes and another pile of proposed casinos.

While opposition senators are careful not to oppose self-determination, most tribal trust land bills include gaming prohibitions in order to get past them — a patronizing reality that erodes sovereignty, according to critics.

"Practically, I don’t think a clean Carcieri fix will pass the Senate; they’ve basically said as much," said House Natural Resources Chairman Rob Bishop (R-Utah).

Fixing Carcieri is on the to-do list, but only if it’s done "the right way for the right reasons," Bishop said. Whether or not local concerns should factor in the decisionmaking process, he said, is the big question.

"Should they have some kind of stake, some kind of input? Yeah. Should they have veto abilities? I don’t think so," he said, noting that he is open to the best answers.

But first, Bishop has his sights set on putting BIA in its place.

Recognition recon

After a decade drawing up new rules, BIA rolled out the changes to the process by which it recognizes tribes, referred to as "acknowledgment," in July.

The new rules update the controversial "Part 83" acknowledgment process, which has recognized 17 tribes since 1978 based on historic evidence but is widely regarded as a broken system for identifying tribes ignored for centuries.

For instance, the Shinnecock Indian Nation of New York was only recognized after waiting 32 years, spending more than $33 million and submitting more than 170,000 supporting documents.

The new Part 83 rules loosened some of the restrictions, including requiring a tribe to show evidence of organization dating back to 1900 instead of 1789, after a contentious public comment period that included criticism from other tribes as well as states and local officials.

"This is definitely evidence that no good deed goes unpunished, because we’ve been yelled at for 20 years about how this process is broken, and we’ve taken a real effort to try and fix it," Bureau of Indian Affairs Assistant Secretary Kevin Washburn said at the May House hearing that scrutinized the Part 83 revisions.

BIA implemented the changes in July, much to the chagrin of lawmakers from Connecticut and California as well as Bishop, who last week proposed stripping Interior’s recognition power altogether with a new bill H.R. 3764 (E&E Daily, Oct. 26).

"I really don’t care if the rules [Washburn] comes up with are agreed to by the Holy Trinity; it’s not their function," Bishop said during a recent interview. "What the rules are is not nearly as important to me as the fact that Congress has to have the final say, not the administrative branch."

The bill will undoubtedly draw the ire of Natural Resources Committee ranking member Raúl Grijalva (D-Ariz.), who puts fixing Carcieri atop his priority list.

"As long as you have the ambiguity created by that Supreme Court decision, the more non-supporters of sovereignty can continue to pick at it and deal with sovereignty by a thousand cuts," he said.

Grijalva thinks some Republicans, namely Bishop, are out to redefine recognition, sovereignty and the trust responsibility, causing Congress to regress in healing its frayed relationship with Native Americans.

"There’s a role for Congress, but I don’t think the role for Congress should be that they get to pick which is a recognized tribe and which is not," Grijalva said. "We’ve politicized everything else, and when we start anointing who is a real Indian and who is not, that would be awful."

Judith Shapiro, a tribal law expert based in Washington, D.C., said opponents of sovereignty use critiques of Interior recognizing splinter groups or creating tribes as a smokescreen for scaling back sovereignty.

"The process by which the bureau recognizes or acknowledges tribes has grown to be tens of thousands of documents with seven criteria that have become more and more and more rigorous and perhaps less logically applied over a period of 30 years," she said.

She cited the Mashpee Wampanoag Tribe, descendants of the Native Americans who fatefully welcomed the pilgrims to Plymouth Rock.

"You look at their record and you see a tribe in every generation, and you see a tribe in every generation saying we’re not leaving, this is who we are," she said. "And it took them from 1978 to 2007 to get recognized. They were not created."

She added: "Anyone who says that should be forced to read through those petitions."