The federal judiciary, executive branch and Congress are tussling over which should have the final say in bestowing federal recognition on Indian tribes. The political situation is the subject of a report by Politico.
In a report on a current movement in Congress to take back some of the power that the executive branch wields to bestow federal recognition on Indian tribes, Politico focused on the assertion that most members of Congress and almost no one on the Supreme Court know little or nothing about Indian law.
The report quotes Rep. Tom Cole, an Oklahoma representative who is a member of the Chickasaw tribe. “With all due respect, there’s not anybody on the court who knows very much about Indians or Indian law.”
The subject of the U.S. Supreme Court and Indian law comes up a lot among members of Congress wrestling with how they can undo some of the perceived damage done by the 2009 Carcieri v. Salazar decision by the high court. Justices overturned federal policy that had been in force since the 1930s by their ruling that tribes recognized after the adoption of the Indian Reorganization Act (IRA) of 1934 cannot put land into trust.
According to Cole: “They literally overturned what both parties and successive secretaries of the Interior thought was the law for 80 years.”
The fight has evolved from being less about returning lands that tribes historically lived on and more about whether they will turn that land into a casino. And, unlike past battles where tribes banded together for the common good, existing tribes who have established casinos are often arrayed against tribes that are trying to acquire that right.
Senator John Barrasso, who took over as chairman of the Senate Committee on Indian Affairs about a year ago, has been working since that time on a bill that would “fix” the Carcieri ruling. A first draft of a bill was filed in July.
Barrasso told Politico “Anybody who thinks they can solve this on their own has to be kidding themselves. What we’re trying to do is put a whole group together,” he says. “We have draft legislation. We’ve asked for input. Nobody’s saying `stop the process.’”
William Rice, co-director of the Native American Law Center in Oklahoma, encapsulates many Indians’ attitude toward this controversy:
“We didn’t invade Europe. Europe invaded the tribes. And just because that invasion was successful doesn’t mean we no longer want the tribes,” he said. “We never gave up our rights to self-government, we never gave up our rights to territory. We’ve been recognized as nations since the days of the Founding Fathers.”
The IRA represented a watershed moment when the federal government turned away from the forced assimilation of Indian tribes and the acquisition of tribal lands to the promotion of self-governance and tribal sovereignty. Since 1934 the federal government has added about 8 million acres to Indian land.
However, in the Carcieri ruling the Supreme Court said that the Act only applied to tribes who could show that they were “under federal jurisdiction” in 1934. The phrase “under federal jurisdiction” and disagreements over what it actually means has sparked lawsuits in numerous states challenging some land that the federal government has put into trust.
According to close watchers of the court, the justices in recent years have ruled against tribal interests in 11 cases and for them in only two. Many Indian lawyers consider the Supreme Court to be “reflexively anti-Indian.”
Robert Anderson, who teaches law at the University of Washington and Harvard and spent some time in the Interior Department prefers the term: “anti-tribal sovereignty,” and adds that the justices are also “very protective of states’ rights” at the expense of tribal sovereignty. Anderson goes so far as to assert that the court is “legislating” its own views.
Which focuses on a struggle to see who sets Indian policy, the executive, Congress, or the court. Congress has been relatively gridlocked insofar as Indian policy is concerned, while the court appears to favor the states and the administration sees itself as the champion of the tribes.
The Obama administration has restored more than 300,000 acres since it took office. Its new rules that call for an even more relaxed approach has alarmed many in Congress on both sides of the aisle.
Kevin Washburn, assistant secretary for Indian Affairs, who is head of the Bureau of Indian Affairs, is the point of the spear in this movement by the administration. He told Politico, “I do think there is hostility among certain segments of Congress to tribal sovereignty in general.” He added, “To some degree it’s a backlash against our own success. The Obama administration has done a lot of positive things for tribes and I feel this is a backlash against all the positive steps we have done.”
Because the administration is nearing the end of its second term, Washburn is impatient to accomplish as much as he can.
At a recent hearing before the House Committee on Natural Resources, Washburn told a hostile questioner, “You’ve not hidden your prejudices and I respect that … [But] I worry that your vision returns us to what some believe were the darkest days of Indian policy.”
He is especially derisive of some representatives who want to return land to the states. “Most of it was not taken from the states. It was taken from the tribes. If they really wanted to return it, give it back, it would be given back to the tribes from whom it was taken in the first place,” he says.
Senator Barrasso wants to restore Congress’s power to make such determinations and to clarify who is in charge. “The idea is to add some certainty. Because ever since the Supreme Court ruling, things have been pretty confusing for just about everyone … We want to allow tribes to take land into trust by statute, not by lawsuit and Interior Department memorandum.”
His bill, the “Interior Improvement Act,” would not be the “fix” that some tribes seek, it would go further. “This is a complete reform.”
One of the battleground states in this struggle is California, where there are more than 60 casinos, but where a year ago voters overwhelmingly rejected a state tribal gaming compact for a tribe that had put off-reservation land into trust.
Governor Jerry Brown finds himself on one side of this controversy, with his state’s powerful Senator Dianne Feinstein on the other side. The senator wants to put the brakes on what she and many other opponents of the practice call “reservation shopping” by tribes who don’t want to be stuck putting their casinos in the hinterland and want outlets to urban areas.
Last month Feinstein wrote Barrasso’s committee: “As currently implemented, there is effectively no limit to where a tribe may propose a casino.” She would like to revise the 1988 Indian Gaming Regulatory Act and require tribes to show a “substantial, direct, aboriginal connection” to land put into trust for a casino.
A coalition of established gaming tribes has banded together in the “Aboriginal Lands Coalition” that seeks to prevent tribes from relocating very far from this ancestral homelands. They seek to prevent tribes from “leap frogging” to acquire better markets than their rivals. Some leaders of this group have met with Feinstein and have forged an unofficial alliance.
Cole has introduced his own bill that would retroactively ratify any land into trust actions taken by the secretary of the Interior since 1934.
The Obama administration opposes any bill that would return the power to give federal recognition to Congress. It fears that if the bill became law it would threaten the legitimacy of hundreds of tribes.
Representative Rob Bishop of Utah is the sponsor of the bill, which drew the scorn of Washburn recently when he spoke before Bishop’s House Natural Resources Committee. He said the bill would create “serious doubts” about the legitimacy of about 200 tribes in Alaska and over 12 in California.
Bishop declared, “My goal is to empower Native American tribes. We don’t have a great record. We do a lot of lip service to it.” However he does insist that Congress should have the final say.
Critics say that if the bill became law it would make every question of tribal sovereignty a “hyper-partisan” issue.
