Tribal-rights advocates seek ‘fix’ in Congress
July 14, 2010 By JOHN E. MULLIGAN Journal Washington Bureau The Providence Journal / Gretchen Ertl
WASHINGTON — Tribal-rights advocates came in force to Capitol Hill Tuesday to ask Congress to undo last year’s Supreme Court ruling that made it harder for Native Americans to set their own rules for the use of certain lands — including the Rhode Island parcel at issue in the decision.
Interior Secretary Ken Salazar and key legislators reiterated their support for swift passage of a so-called “Carcieri fix.” But the tribal lobbyists gathered in a Senate committee room got no definite word on how soon the Senate or the House might consider bills to reverse the effects of the Supreme Court case nicknamed for Governor Carcieri.
“I know that they want something done in this Congress,” said Matthew Thomas, chief sachem of the Narragansett tribe. He referred to administration officials and lawmakers who advocate reversal of the decision that centered on the Rhode Island tribe. “But when it’s going to happen is anyone’s guess.”
In the 2009 Carcieri case, the Supreme Court ruled that the Narragansetts were not eligible for special federal trust status for a parcel of land they own in Charlestown. The trust status in question permits tribes, in effect, to be exempt from most state and local laws and taxes. The court ruled the Narragansetts ineligible because they were not a federally recognized tribe in 1934, when Congress passed the Indian regulatory law encompassing the modern land-trust system.
The “Carcieri fix” bills would effectively permit tribes to seek or retain the federal land trust status.
Thomas spoke by telephone after the Senate meeting, which was informally billed as a “Carcieri summit.”
Also addressing the group was Sen. Byron Dorgan, a North Dakota Democrat and chairman of the Senate Indian Affairs Committee. That panel has approved legislation in response to the Carcieri decision. There is another version of the bill pending in the House, but neither it nor the Senate has scheduled floor action on the legislation.
The leaders of 17 tribal organizations presented Dorgan with a letter warning that if the Carcieri decision “is not addressed immediately, there will be irrevocable damage done to Tribal sovereignty, Tribal culture and the federal trust responsibility.”
Indian activists argue that many tribes would be affected by the ruling, raising questions about their dealings with local authorities on zoning, taxation, law enforcement and other issues.
After extensive hearings last year, Dorgan shepherded a Senate version of the “Carcieri fix” through his committee without dissent in December.
The high court’s ruling unfairly created “two classes of Indian tribes, those who can take land into trust and those who cannot,” Dorgan, the author of the bill, said at the time. Thomas said enactment of the legislation would let the Narragansetts proceed with a housing project — suspended years ago after a dispute with local authorities — that the tribe wanted to build on the land at issue in the Supreme Court case.
To Rhode Island state and local officials, however, the real concern is the possibility of gambling.
The “fix” legislation, if enacted, “will allow the Narragansetts to take any land in the state that they or their chosen financial partner wants to buy” and establish enterprises outside the reach of local zoning rules, taxes and other regulations, Joseph S. Larisa Jr., the assistant solicitor who represented Charlestown in the Carcieri case, said in December.
Dorgan spokesman Barry Piatt said the senator “is determined to get something done in this Congress,” which will adjourn after the 2010 elections. “Senator Dorgan has made the argument that this is clearly a case where justice delayed is justice denied.”
But there were no signs Tuesday that the delays in congressional consideration of the land-trust legislation will end soon. “I haven’t heard any inkling of any movement,” said Sen. Sheldon Whitehouse, who, with Sen. Jack Reed and Rep. James R. Langevin, oppose the legislation in its current form.
Dorgan has asserted repeatedly that his legislation is “not about gaming,” but about helping tribes plan for schools, health clinics and other facilities that have been placed “in limbo” by the high court ruling.
Rep. Patrick J. Kennedy, the Rhode Island delegation’s only supporter of the measure, said last fall — after President Obama endorsed the legislation before a tribal gathering in Washington — that it could be signed into law during the current Congress.
But Kennedy has also predicted that the Narragansetts will never win casino gambling rights in Rhode Island without the agreement of state officials, including the rest of the congressional delegation.
Besides facing opposition from officials from a number of states, Reed said the legislation is unlikely to move soon because the Senate faces such a large backlog of more pressing national measures — such as the Wall Street regulatory overhaul and the extension of expired jobless benefits — with so little time remaining in an election year.
It might be easier to move the Indian land trust bill “if there were a way to take gambling off the table,” Reed said. But he expressed doubt that Indian-rights advocates would readily accept exemptions for such specific land uses as casinos because they would view those as an abridgement of their tribal sovereignty.