Different Responses to Carcieri v. Salazar

Local groups and their supporters are touting the recent Supreme Court Carcieri v. Salazar decision as a major victory for those opposed to the current land into trust policies of the US Government but they are also claiming that the Federal Government is already working to “fix” the decision. Kathy Cleary has stated that “within hours after the Supreme Court decision, the press reported that a “Carcieri fix” is already in play.” She went on to claim that the federal government via Congress is working to find a way to make this Supreme Court decision irrelevant.

Again we see this recurring alarmist rhetoric…. this vast government conspiracy to allow the Indians whatever they want at the expense of us non-Indians.

So, once more I present you with the facts.

Its been over two weeks since the decision was handed down and, so far, all Congress has done is promised to “take a look” at the decision.

U.S. Rep. Nick Rahall, chairman of the House Resources Committee, has promised to call a hearing on the issue. U.S. Sen. Byron Dorgan, who is chairman of the Senate Indian Affairs Committee, met with tribe leaders from across the country last Thursday, but his spokesman said a “fix” won't come quickly if at all.

In addition, all four members of Rhode Island’s congressional delegation (all of them Democrats) said they do not plan to introduce legislation to undo the decision. Three of the four, Rep. James R. Langevin and Senators Jack Reed and Sheldon Whitehouse, reaffirmed their opposition to any expansion of casino gambling in the state. Though the tribe has never announced any such plans, state officials had feared that the Narragansetts would use the trust status to establish a gambling enterprise.

Rep. Patrick J. Kennedy, who in years past has been the delegation’s strongest supporter of the tribe’s effort to secure gambling rights, issued this statement: “The Supreme Court’s decision has the potential to affect tribes all over the country and right now the legal ramifications are still being determined. I am not submitting legislation to challenge the court ruling,” said Kennedy.

So… is the government scrambling to placate the Indians on this issue? No. Will there eventually be a “fix”? Time will tell but do not believe the alarmists who tell you it’s already in the works and will happen very quickly. In the end there may be a fix… but time will tell.

So how would a “fix” work if one were to occur?

The Supreme Court decision was based on one phrase or actually one word. The case centered on the interpretation of the word “now” in the IRA’s phrase “recognized Indian tribes now under federal jurisdiction.” In the 6-3 ruling, the majority of justices interpreted “now” to mean then – 1934 – as opposed to “going forward as of now.”

So they take one word…”now”…. out of the 1934 IRA and define it to change 70 years of BIA policy which, if it sticks, will result in creating two classes of tribes…those that can take land into trust and those who can’t. I believe this ruling is a bad one.

The “fix” would be for the tribes to petition Congress to amend the 1934 IRA to reword the definition of an Indian tribe by removing the word “now.” It sounds simple enough, but as stated above, whether it will actually be done remains to be seen.

There will also be gaming tribes opposing this “fix” because keeping the decision in tact will prohibit many tribes in the future from acquiring land for gaming. Less competition… two classes of tribes, all because of how 6 people interpreted the word “now” in a sentence written 75 years ago. Nice.

POLO / POSY and their supporters are also saying that this decision will impact the Santa Ynez Band of Chumash’s efforts to place the 6.9 acres across the hwy from the reservation into trust and their (POLO/POSY’s) case against it.

In the world’s eyes, the Santa Ynez Band of Chumash Indians were federally recognized as a tribe in 1901, 33 years after the IRA, but Santa Barbara attorney Jim Marino, who is involved with groups who are against casino expansion and has recently been searching for any available federal records related to the SY Band claims that there are questions about their status as a tribe. In a quote from a recent article in the Santa Ynez Valley Journal he stated: “Their status as a tribe, up until 1979, was highly questionable. They never met any of the conditions that are set down in the code of regulations for Indian tribes.”

Cheryl Schmidt, co-director of the gambling watchdog group "Stand up for California”, a group that opposes gambling expansion in California, sees it differently.

In the Valley Journal article referred to above Schmidt was quoted as saying, in reference to questioning the legitimacy of our local Chumash, “People just have to get outside of their mindsets.”

She indicated that California has 108 tribal governments and out of those approximately 60 of those are potentially affected by the Carcieri v. Salazar decision.

Schmidt believes that the SY Band is not one of those 60. She believes the SY Band’s federal recognition goes back as far as 1881 with the passage of the Act for Relief for Mission Indians which was followed by an inventory of Mission Indians living in California in 1888 in which the inventory did “specifically include the Chumash in Santa Ynez”.

POLO/POSY has questioned the legitimacy of our local Chumash’s claim to the land which is now designated as the reservation and this question, they say, is a part of their case involving the 6.9 acres into trust.

Who’s right and who’s wrong? I don’t know, but considering the long historical ties that they have had to that land down by the river will, all by itself, make a strong case for the tribe. I guess we will just have to wait and see how it all plays out.

Indian gaming has taken the land into trust policy to a whole new level and is just one of the many relatively new issues that have arisen due to new found tribal wealth and political clout in combination with the different laws and rules the Indians have no choice but to follow as sovereigns.

It's like a bucket of water has been kicked and it will take some time for the water to settle.

I believe eventually, through litigation, negotiations and agreements equitable resolutions to these issues will occur. There are thousands of cases in the US right now hashing out these issues and POLO/POSY v BIA as well Carcieri v. Salazar are good examples. It's going to take awhile and it may not happen in our lifetime, but it could happen much faster if those involved can focus on real issues while maintaining a healthy, pragmatic and realistic perspective.

Sources:
http://www.santaynezvalleyjournal.com/archive/7/10/3971/
http://www.santaynezvalleyjournal.com/archive/7/10/3992/