Senator Tries to “Fix” Carcieri

Senator John Barrasso (l.), chairman of the Senate Committee on Indian Affairs hopes that he will be able to get support on a compromise bill to “fix” what many tribes regard as the disastrous Carcieri v. Salazar decision by the U.S. Supreme Court.

Senator John Barrasso, chairman of the Senate Committee on Indian Affairs has introduced a bill designed to “fix” the 2009 U.S. Supreme Court’s Carcieri v. Salazar decision, which has bedeviled tribal leaders since it was unveiled.

The high court ruled that any tribe recognized by the federal government after the passage by Congress of the Indian Reorganization Act of 1934 (IRA) can’t put land into trust for reservation land.

This ruling has, many tribal leaders feel, called into question any federal action putting land into trust since 1934. They would like a “clean fix,” but that’s not exactly what Barrasso is giving them. A “clean fix” would state simply that the Interior Secretary can recognize tribes without limit. There is too much opposition in Congress to get that passed, however.

The actual wording of the ruling is that tribes “under federal jurisdiction” in 1934 can put land into trust. Since that ruling the Department of the Interior has conducted extensive investigations into what exactly “under Federal jurisdiction” means.

A huge problem is that many tribes that might be considered to fit that definition do not have the ability to document their relationship with the federal government over the decades, especially because during the 1950s there was a determined effort by the federal government to abolish many tribes.

Standing in the way of a “clean fix” are opponents of off-reservation gaming, the so-called “reservation shopping,” many of whom would like to give local governments more of a say in whether land can be put into trust. This is something that most tribes are dead set against.

The new bill is a compromise between these two seemingly irreconcilable forces. It confirms that the Interior Department can put into trust land for any federally recognized tribe, while adding a layer that would increase input from and weight given to local government.

It would require that local jurisdictions be notified within 30 days of an application being received from a tribe and give them an opportunity to provide comments. That isn’t much of a change. What IS a significant change is to give more weight to applications where a tribe has reached a “cooperative agreement” with any local governments that border on it.

From a tribal standpoint one change is attractive: cutting the timeline for the process from months or several years to 30 days after a National Environmental Policy Act (NEPA) review.

It is not uncommon for tribal applicants to enter into such agreements to try to nip opposition in the bud. Many tribal state gaming compacts, especially in California, include requirements that tribes reach such agreements. But some tribal leaders see the ambiguity of Barrasso’s bill as opening the door for municipalities and counties to demand fees or other payments.

The bill allows a tribe to skip this requirement if it considers the demands too onerous and submit an application without an agreement, but it would apparently make it more difficult to then put the land into trust.

The bill also requires judicial review of any land into trust decision, something that almost always happens anyway since opponents do not hesitate to resort to the courts.