Last year when U.S. Senator Maria Cantwell of Washington took over the chairmanship of the Senate Committee on Indian Affairs from retiring Senator Daniel Akaka of Alaska, Indians were hopeful that their number one cause, the “fix” of the 2009 Supreme Court’s Carcieri v. Salazar decision, would be enacted.
They were disappointed. Now Cantwell is set to leave her position as chairman of the committee and hand it over to another senator.
The controversial court decision, almost universally reviled by tribal leaders across the country, says that tribes recognized after the Indian Reorganization Act of 1934 cannot put land into trust.
Upon taking the chairmanship of the committee, Cantwell began developing a strategy for bringing the “fix” to a vote, something that Akaka tried unsuccessfully to do before he retired. In February of last year she declared that the “fix” needed to pass to ensure economic security for tribes.
Without legislative action, the court decision created two classes of tribes, she said. She made with many fellow senators and tribal leaders as she tried to bring the issue to a vote.
Tribal leaders pressed her to adopt as her touchstone a bill that passed the Democratic House in 2010, just as it was getting ready to hand over power to the GOP.
Since then, Republicans and a significant number of Democratic lawmakers have tied any support for a Carcieri fix to changing the process for putting land into trust, specifically for making it harder to put land off the reservation into trust for casinos.
Indian leaders insist that the issues of putting land into trust and casinos should be kept separate. But opponents of off-reservation trust proposals, such as Senator Diane Feinstein, insist on linkage.
Senator Majority Leader Harry Reid of Nevada is also not fond of the practice that detractors call “reservation shopping.” He refused to let an issue sponsored by Akaka come to the floor during the last year the senator was in office, 2012.
Senator Jack Reed of Rhode Island provided another level of complexity to the issue, since he tied his support to the Narragansett tribe of Rhode Island being prevented from ever getting federal recognition. The Narragansetts were tied up in the Carcieri decision of 2009.
During 2013 Cantwell came up with a draft bill that included a higher threshold that tribes had to meet before getting an off-reservation casino. It also included a provision that virtually shut the Narragansetts out of the game forever. This is at odds with Cantwell’s earlier pledge not to create a two-class system of tribes.
But it may be the best deal available. According to a Cantwell spokesman, quoted by Indian Country Today, “Sen. Cantwell is committed to finding a solution that will not impact tribal sovereignty, nor create different classes of tribes. That means clarifying the law to ensure the Secretary of the Interior can take land into trust for all tribes—including the Narragansett—and ensuring the same rules would apply for all tribes seeking land into trust.”
Indian law expert Larry Echo-Hawk, who calls the Narragansett tribe’s situation, “shameful,” says that the efforts lawmakers expend to stop Indian casinos might better be expended stopping commercial casinos.
Washington lobbyist Tom Rodgers added, “It not only treats the Narragansett tribe differently, it pulls the ladder up for tribes that may wish to do certain types of gaming in the future.”
And while most tribes want a Carcieri fix, some established gaming tribes aren’t too unhappy at preventing other tribes from entering an increasingly crowded market.
Another lobbyist, Larry Rosenthal, commented, “I don’t think a bill like Cantwell’s discussion draft moves because it has a lot of tough issues for Indian country to swallow. But, for the first time, it does lay out the issues, and I am hopeful it will lead to a real dialogue in Indian country.”
Some tribal leaders have been further alarmed by the January 21 Ninth Circuit Court of Appeals decision that ruled in Big Lagoon Rancheria v. California that the Golden State had no obligation to negotiate in good faith with the Big Lagoon tribe because the tribe, recognized after 1934, did not have jurisdiction over 11 acres on which it proposed to build a casino.
According to a National Indian Gaming Association legislative alert, “The case is clearly a blow to the tribe and to all of Indian country. It not only sets negative precedent with regard to the application of IGRA’s good faith negotiation requirement, but it also will serve to encourage litigants seeking to undermine tribal sovereignty and/or the status of trust lands to assert Carcieri-related claims in all lawsuits involving federal laws or federal actions relating to Indian lands.”
