House Committee Holds Carcieri v. Salazar Oversight Hearing – Mashpee Confident of a “Fix”

On April 1 the House Natural Resources Committee, led by Chairman Nick J. Rahall (D-WV), held an oversight hearing on the Supreme Court decision Carcieri v. Salazar.

At the hearing, Indian law experts said the decision could impact criminal jurisdiction, tribal governance as well as other issues that go beyond just land into trust matters and encouraged congress to amend the law to ensure all tribes, regardless of the date of recognition, can participate in the land into trust process.

Colette Routel, a professor at the University of Michigan Law School, said, "If allowed to stand, this decision will have profound effects in Indian Country."

She went on to say that Post-1934 tribes that adopted constitutions or created businesses under the IRA are no longer protected by the law and that those tribal members won't receive the same services and benefits from the Bureau of Indian Affairs.

"Tribal members will not be able to receive preference in employment with the BIA," Routel told the committee. "These are rights found directly in that statute."

Mike Anderson, a former BIA official, said that if the decision sticks it will bring to an end to the "renaissance" that the IRA spurred on reservations noting that the tribes that followed the land-into-trust process have been able to build schools, hospitals and other infrastructure.

"Carcieri threatens to undermine these successes with the creation of a new class of tribes that will not be eligible for land-into-trust," Anderson testified.

On the other side, Donald Craig Mitchell, an attorney from Alaska, thought that a fix should not take place citing concerns about the executive branch's handling of Indian affairs for the last 75 years. He did agree,though,that the decision poses litigation problems.

Mitchell testified, "If I was an attorney that had an attorney-client responsibility to someone that became entangled with one of those post-1934 tribes, you bet I would challenge the tribal status of that group. That is why this, as I said in my opening testimony, is a mess."

Democrats on the committee were receptive to a fix that would protect completed land-into-trust acquisitions for post-1934 tribes and ensure the processing of future applications. "Placing land into trust for an Indian tribe is an essential component of combating the situations experienced by Indian tribes as a result of their treatment by the United States," said Rep. Nick Rahall (D-West Virginia), who is the chairman of the committee.

"Even beyond the legal responsibility, the federal government has a moral responsibility to rectify this situation," Rahall said.

But Rep. Doc Hastings (R-Washington), the committee's top Republican warned against rushing to a “fix”. He wants the committee to take a deep study of Congressional and Interior Department records to find out how the decision will affect tribes.

But Rahall seems to be bent on a fix. In his closing remarks he said the committee would continue to work toward a fix.

Now to the Mashpee Wampanoag casino plans.

The Mashpee Wampanoag Tribe who have plans for a casino resort in Middleborough, Massachusetts say that their plans are still intact despite the poor economic conditions and the recent Supreme Court Carcieri v. Salazar decision which held that, under the court's interpretation of the Indian Reorganization Act of 1934, only tribes that were federally recognized before 1934 can place land into trust with the US Department of the Interior.

The tribe believes that their planned casino may be scaled back in size though and that the process to get the land placed into federal trust may take a little longer than previously expected.

Cedric Cromwell, the new Mashpee Wampanoag Tribal Council chairman, said the court decision, "although it is an obstacle," will be resolved within six months. "We're confident Congress will pass a bill this session, which ends in October." He said he expected the legislation's wording to be developed within the next 60 days.
Others don’t see that happening.

Rich Young, president of Casino Free Massachusetts and the local Casino Facts group, said, "There's no bill that's been filed yet, and our congressional delegates aren't in favor of a bill to fix the decision.”

US Representative Barney Frank, whose district includes the Middleborough area, also sees it different from the tribe stating, "I know the Wampanoag are disappointed, but I don't see any change on the horizon. Congress can change it, but I don't think it's at all likely.”

Frank said he believes the tribe's plan for a casino will most likely only go forward if it is approved as part of a statewide casino plan which would have to be passed by the Mass state legislator where there would be no land into trust and the tribe’s casino would be under state regulation.

Sounds like another long sovereignty lawsuit to me if they go down that road.