It’s not ANYTHING like what
the CCA says it is
 |
| CLICK TO ENLARGE: The true effects of Carcieri v. Salazar |
By Will Collette
The
CCA has put out a lot of false information both before and after the recent
election about an obscure piece of federal legislation called “The Carcieri
Fix.” In the CCA’s reality, if this dreaded Fix is enacted by Congress and
gets signed by the President, the Narragansett Indian Tribe will automatically
begin construction on a resort casino a la Foxwoods right here in Charlestown.
That’s
simply not true. First, no matter what the CCA says, the Carcieri Fix seems
to be hopelessly stalled in the lame-duck session of the US Senate. The Fix had been scheduled for a vote but was pulled from the calendar “indefinitely” because it lacks the votes
to pass the Senate. Since Congress only has a matter of days to resolve the
huge issue of the “fiscal cliff,” such a postponement means the end of any Fix
this year. When the lame-duck session ends before New Year’s, that’s the end of
this Congress.
A new
Congress will be sworn in next month, minus retiring Hawaii Senator Daniel
Akaka, who has been the driving force behind the Fix” Somebody new will have
to take up the cause and start all over again.
But
to understand what the Carcieri Fix is (and isn’t), I found an interesting
point-by-point breakdown done by the Indigenous
Law and Policy Center at Michigan State University College of Law. Since they do legal work for Native
American tribes, they obviously have a point of view, probably one that
conflicts with that of Charlestown’s hired gun, Injun Joe Larisa, Charlestown’s
Special Counsel for Indian Affairs. I would LOVE to see Larisa’s analysis of
the Fix and see where it differs from the following analysis. We pay Larisa over $2000 a month watch out for any suspicious movement by Native Americans (over a quarter-million dollars so far). If Larisa has a POV, he ought to share it
with Charlestown taxpayers.
Anyway, here is a
detailed legal analysis that explains what all the fuss is about.
S. 676 – THE CARCIERI FIX
– IS A TECHNICAL AMENDMENT THAT DOES THREE THINGS
1. Amends the 1934 Indian
Reorganization Act (IRA) to apply to all federally recognized Indian tribes,
regardless of when any tribe became recognized, thus overruling the Supreme
Court's decision in Carcieri v. Salazar. In that decision, the Court
held that the Secretary of the Interior (Secretary) could not take land into
trust for a specified tribe because that tribe had not been under federal
jurisdiction when the IRA was enacted in 1934;
2. Ratifies and confirms any
action taken by the Secretary pursuant to the IRA for any Indian tribe that was
federally recognized on the date of that action; and
3. Directs the Secretary to
study and report to Congress on the effects of Carcieri, including a
list, which is to be published, of each tribe and parcel of tribal land
affected by that decision.
COMMITTEE ACTION
S. 676 is Bi-partisan and
has been Reported Out of the Committee Twice.
On March 30, 2011, Senator
Akaka introduced S. 676, a bill to reaffirm the Secretary of the Interior’s
ability to take land into trust for all tribes. S. 676 is co-sponsored by
Senators Baucus, Conrad, Franken, Inouye, Johnson (SD), Kerry, Stabenow, Tester
and Udall (NM). S. 676 was favorably reported out of the Committee on Indian
Affairs on April 7, 2011, by a voice vote.
The Carcieri fix
language was also reported favorably out of the Committee in July of 2011, on
S. 703, the Helping Expedite and Advance Responsible Tribal Homeownership Act
of 2011. S. 703 was introduced by Senator Barrasso and co-sponsored by Senators
Akaka, Bingaman, Cantwell, Enzi, Johnson, Tester, Thune, and Udall.
COMMITTEE OVERSIGHT RECORD
The Committee’s Review of
the Carcieri Record Finds the Court’s Decision to be Based on an
Incomplete and Misleading Docket.
From Committee hearings and
from extensive research, the Committee has built a record showing not only the
significant negative impact of the Carcieri decision, but also why the
Supreme Court’s decision was flawed and erroneous and based on an incomplete and
faulty record.
The Committee filed a
substantial report on May 17, 2012, which summarized the Carcieri case,
the incomplete and misleading docket, and analyzed the applicable laws and
policies of the United States.
Witnesses in 31 Oversight
Hearings Testify to Array of Negative Impacts.
In the 112th Congress, the
Committee has held three hearings specifically on the negative impacts of the Carcieri
decision including the effect on jobs, economic development and public
safety and increased administrative burdens.
However, in each of the
thirty-one oversight hearings the Committee has held, Administration officials,
tribal leaders, academics, financial experts, and others, have cited the Carcieri
decision as the main impediment to creating the certainty needed for tribes
and local communities to thrive in challenging economic times.
Federal Officials Enumerate
Costly Administrative Burdens.
The Committee heard from
Administration officials from the following agencies detailing the negative
impacts that the Carcieri decision has created: Department of the
Interior, Department of Justice, Department of Housing and Urban Development,
Indian Health Service, Department of Treasury, and the Federal Communications
Commission.
Testimony received by the Committee
has outlined how the uncertainty in land status further complicates the
administration of federal programs, requires the diversion of personnel and
resources, and has spawned lawsuits which can drain agency budgets.
CARCIERI v. SALAZAR WAS ERRONEOUSLY DECIDED
On February 24, 2009, the
United States Supreme Court issued its decision in the Carcieri v. Salazar case.
Reading “now” to mean “in 1934,” the Court ruled that the Secretary could only
take land into trust for a tribe if it was under federal jurisdiction in 1934
when the IRA was enacted. The ripple effect of the Court’s ruling casts doubt
upon the legal status of lands acquired in trust over the last 75 years for
tribes recognized after 1934. The Court did not address the legislative history
of the IRA.
The Carcieri Decision
Contradicts Congressional Intent and Overturns more than 75 Years of
well-settled Administrative Practice Regarding Tribal Trust Land Acquisitions.
Carcieri ignores dozens of legislative actions in which
Congress has exercised its plenary power to enact. For over 75 years, Section 5
of the IRA has authorized the Secretary to acquire and hold land in trust for
the purpose of providing land for Indians so that tribes might restore their
homelands.
Congress solidified its intent
when it amended the IRA in 1994 in order to prohibit the Federal Government and
its agencies from taking any action that “classifies, enhances, or diminishes
the privileges and immunities available to the Indian tribe relative to other
federally recognized tribes by virtue of their status as Indian tribes.”
When Congress amended the IRA
in 1994, it reaffirmed the original intent of the IRA and ensured that all
tribes would be treated equally and have the same governmental rights, no
matter when their relationship with the Federal Government was recognized.
The Carcieri Decision
Fails to Address Subsequently Recognized Tribes.
All federally recognized tribes
are under federal jurisdiction and qualify to have land taken into trust if
recognized. The Carcieri decision has had the detrimental effect of
creating two classes of Indian tribes—those who can have lands taken into trust
and those who cannot—in direct contradiction to the IRA and the 1994 Amendment
to the IRA. Many tribes did not receive federal recognition until after 1934
because no formal mechanism existed at that time to recognize tribal
governments.
All subsequently recognized
tribes have demonstrable historical relationships with the Federal Government
and have been considered to be under federal jurisdiction in 1934. These tribes
have gone through either the traditional recognition processes, the legislative
process, or the recognition procedures set forth in 25 C.F.R. Part 83 to
establish that they were under federal jurisdiction in 1934 and should
therefore qualify under the IRA’s Section 5 trust-land provisions.
NEGATIVE IMPACTS OF THE CARCIERI
DECISION
Carcieri is a Barrier to Much Needed Economic Development and
Job Creation
With unemployment reaching
levels of 50 to 80 percent nationwide on reservations, the Carcieri decision
creates unnecessary hurdles to a population and to rural areas of our country
that are already in desperate need of economic opportunities.
Tribal land bases are the
foundation of tribal economies, which benefit Indians and non-Indians alike. In
Committee hearings, witnesses have testified that passage of S. 676 could
create at least 80,000 new construction jobs and 60,000 new permanent jobs for
Indians and non-Indians, in some of the most economically depressed areas of
the country.
When tribal governments succeed
at providing economic development on Indian lands, the benefits accrue not only
to tribal members, but also to the local communities and states. As tribes
succeed, local governmental costs decrease, revenue bases expand, and job
opportunities increase for everyone.
Carcieri Freezes Access to and Increases Cost of Capital for
Tribal Governments and Business Partners
Inadequate access to capital is
one of the primary impediments to economic development in Indian country, where
the hurdles to economic development and job creation are already significantly higher
than they are for mainstream America.
Since the Carcieri decision,
tribes hoping to access capital for economic development have an additional
layer of bureaucracy to overcome and more costs to pay because financial firms
require certainty regarding the status of Indian lands before investing on
tribal lands.
The legal challenges that have
arisen since the Carcieri decision in 2009 have also added to the
challenges to attracting economic development options on Indian lands and have
siphoned off resources that tribes could use to provide basic services to their
members.
Carcieri Threatens Public Safety and Law Enforcement
American Indians already suffer
disproportionally from violence; with Native women suffering from violent crime
at a rate of three and a half times greater than the national average and
aggravated assault among American Indians and Alaska Natives is roughly twice
that of non-Indians.
Federal laws such as the
Violence Against Women Act and the Tribal Law and Order Act are intended to
clarify the jurisdictional maze that can exist on Indian lands. The Carcieri
decision could interfere with the successful prosecution of crimes in
Indian country.
Jurisdictional uncertainty
creates many challenges in Indian communities and impacts the work of police,
prosecutors, defense attorneys and judges. If left to stand, the Carcieri decision
threatens the public safety of all those who live on or near Indian
reservations or on Indian lands.
Carcieri Restricts Energy and Natural Resource Development in
Indian Country
Indian land contains an
estimated 10 percent of all energy resources in the United States.
The Department of the Interior
estimates that undeveloped reserves of coal, natural gas, and oil on tribal
land could generate nearly $1 trillion in revenues for tribes and surrounding
communities. Tribal wind and solar energy potential can provide respectively, 14
percent and 4.5 times the nation’s energy needs.
The uncertainty created by the Carcieri
decision makes it difficult for tribal governments to utilize the vast
resources on their lands to provide jobs and economic development opportunities
for tribal members and the local community.
Carcieri Exacerbates Existing Backlogs for Housing, Health, and
Educational Facilities
Currently
90,000 Indian families are homeless or under-housed and 28% of Indian
households face overcrowding conditions, compared with a national average of
5.4%.
The national graduation rate
for Native students is the lowest of any racial or ethnic group. Only 49.3% of
Native students graduate high school, compared to 76.2% for their counterparts.
Among those who graduate only 13.3% go on to receive a college degree compared
with a national average of 24.4%.
Without Indian lands, these
social disparities cannot be corrected. There is no chance to improve these
conditions without a land base and the need will continue to grow and the negative
ripple effect will continue throughout Indian country.
ADDRESSING POPULAR
MISCONCEPTIONS ABOUT S. 676
Question: Does S. 676 expand gaming by Indian Tribes?
Answer: NO.
S. 676 will not expand Indian gaming. Gaming
applications are governed by a separate land in trust process at the Department
of the Interior, and any lands taken into trust must be eligible for gaming
under the Indian Gaming Regulatory Act, not the IRA.
Over 95% of land applications approved by the Department of the
Interior in a two-year period were for housing, agricultural purposes, economic
development, cemeteries, courts, recreation, health care, child care, education
and law enforcement purposes.
Only 3 applications of the 541 applications approved in that two-year
period were for gaming purposes. In order to game on those lands, the tribes
will need to comply with the stringent requirements of the Indian Gaming
Regulatory Act.
Question: Does the
Secretary have the authority to take lands into trust for Tribes?
Answer: YES.
The only Tribe that
currently cannot have land taken into trust is the Rhode Island tribe that was
the subject of the Carcieri lawsuit. For
every other tribe, the Secretary can still take lands into trust, but a “Carcieri
analysis” must be performed to determine whether the tribe was “under
federal jurisdiction” in 1934 when the IRA was enacted.
This additional analysis has
created costly administrative and financial burdens on tribes who seek land in
trust.
Tribes now face legal
challenges to any parcel taken into trust which drains scarce tribal resources
that could be better used to meet the basic needs of their members.
S. 676 IS THE NUMBER ONE
PRIORITY FOR TRIBES AND THE ADMINISTRATION AND IT COSTS NOTHING
A Carcieri fix does not
advance any issue or cause for Indian country. This legislation simply
restores Indian tribes to the status quo of 75 years of practice by the
Secretary of the Interior to acquire lands in trust for all federally
recognized tribes regardless of their date of recognition. Enactment of S. 676
is the highest tribal priority for President Obama and his Administration,
tribal governments and organizations, and the Senate Committee on Indian
Affairs.
President Obama has included Carcieri
fix language in his Budget requests to Congress for fiscal years 2010, 2011
and 2012. In each year, the President’s request represented the only
non-budgetary priority for Indian Affairs.
S. 676 has bi-partisan and
bi-cameral support and is essential in upholding the
government-to-government relationship between the federal government and tribal
governments.
S. 676 has no cost. If
the Carcieri decision is left to stand, it has the potential to cost
taxpayers millions of dollars in bureaucratic delays, litigation, and lost
economic opportunities. Failure to pass S. 676 will mean that federal resources
will continue to be diverted from providing services and benefits to Americans
to fund federal agency litigation and other legal expenses.