Bipartisan
legislation introduced to address damaging impact of Carcieri Decision
By Sen. Jon Tester |
| Over 500 tribes lost sovereignty rights under Carcieri |
U.S. SENATE – On May 7, Chairman Jon Tester (D-Mont.) held a U.S. Senate Committee on Indian Affairs hearing on five tribal land bills. Topping the discussion, the Committee heard testimony on Chairman Tester’s bill which ensures that all federally recognized tribes have the same rights for placing land into trust, regardless of when they were recognized.
Tester’s bill proposes to end the uncertainty and unnecessary litigation triggered by the U.S. Supreme Court’s Carcieri v. Salazar decision. That ruling held that the federal government has no legal authority take land into trust for American Indian tribes recognized after enactment of the 1934 Indian Reorganization Act (IRA). The decision, in effect, has created two classes of tribes - those federally recognized before 1934, and those recognized after passage of the IRA.
“The Carcieri decision has resulted in lost economic opportunities, stalled tribal infrastructure projects, increased litigation, bureaucratic delays at the Department of the Interior, and the unequal treatment of tribes,” Tester said. “For all of these reasons, I have introduced my bill to ensure that all tribes are able to continue re-acquiring their homelands and create economic development opportunities for their communities.”
Bill co-sponsor Senator Jerry Moran (R-Kan.) said, “A clean Carcieri fix is what the federal government should be doing to fulfill its obligations to Native Americans: encouraging tribal sovereignty, fostering economic opportunity by eliminating the uncertainty that scares away or delays investment and the resulting jobs, and providing a common sense solution to a problem manufactured in 2009.”
The legislation drew praise from the Department of the Interior and the National Congress of American Indians.
Kevin Washburn, Assistant Secretary of Indian Affairs at the Department of the Interior, expressed support, saying, “Tribal dollars that had been used to protect children and elders, provide housing and water, or protect tribal cultural sites are instead expended to jump through hoops created by Carcieri.”
Brian Cladoosby, President of the National Congress of American Indians, spoke about the attempt to link the Carcieri fix to other issues. “When tribal legislation becomes a priority, it is often seen as a vehicle to address a myriad of other issues related to tribes. That is what happened here - Carcieri legislation has become weighed down by issues such as gaming; state, county and tribal jurisdictional issues, and federal recognition.”
Nathan Small, Chairman of the Fort Hall Business Council, noted the additional litigation generated by the Carcieri decision. “This decision is quickly multiplying, spawning additional attacks that harm tribal sovereignty. Without passage of this bill, tribal sovereignty and the ability of tribes to restore our homelands is greatly diminished.”
The Committee also heard testimony from the Gun Lake Tribe regarding the Patchak decision, another negative ruling that stemmed from the Carcieri decision. Trust land for the Gun Lake Tribe was called into question in a lawsuit by a nearby land owner, David Patchak. The court ruling imposes additional burdens and uncertainty on trust lands by enabling an individual plaintiff to reverse trust acquisitions up to six years after land has been taken into trust for a tribe and to divest the United States of its title to the property.
David “D.K.” Sprague, Chairman of the Gun Lake Tribe, said, “This case threatens our economic wellbeing and has made it virtually impossible for my tribe to obtain financing for any future economic development projects.”
Chairman Tester commented on the importance of finding a solution to the ongoing debate over the Carcieri decision while acknowledging the multiple interests that complicate the issue. He called for further meaningful discussion among the tribes, Congress and key stakeholders.
The Committee also heard testimony on the Pyramid Lake Paiute Tribe - Fish Springs Ranch Settlement Act; the Blackfoot River Land Exchange Act of 2014; and the May 31, 1918 Act Repeal Act.
Video of the hearing and witness testimony are available at indian.senate.gov.