Rep. Tom Cole (R-Oklahoma), a citizen of the Chickasaw Nation, addresses the executive council winter session of the National Congress of American Indians in Washington, D.C., on February 12, 2019. Photo by Indianz.Com (CC BY-NC-SA 4.0)

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House Subcommittee for Indigenous Peoples of the United States takes up Carcieri fix

Friday, March 29, 2019

By Acee Agoyo

• UPDATE: Draft discussion of RESPECT Act

The House Subcommittee for Indigenous Peoples of the United States will take up three bills, including a bipartisan measure to ensure that all tribes can restore their homelands, at a hearing next week.

In a decision known as Carcieri v. Salazar, the U.S. Supreme Court held that the land-into-trust process can only benefit tribes that were "under federal jurisdiction" in 1934. That was the year the Indian Reorganization Act became law.

Though the justices did not explain what "under federal jurisdiction" means, opponents have used the February 2009 decision to inject uncertainty into the land-into-trust process. Non-Indian interests, as well as state and local governments, have argued that recently recognized tribes cannot restore their homelands because their status may have not been clear in 1934.

Rep. Tom Cole (R-Oklahoma), a citizen of the Chickasaw Nation, is hoping to resolve that uncertainty once and for all. His bill, H.R.375, clarifies that "any federally recognized Indian tribe" can follow the land-into-trust process.

"The federal government’s policy for tribal lands needs to put the interests of tribal nations first – and no one else’s," National Congress of American Indians President Jefferson Keel said in his State of Indian Nations address last month.

Tribal citizens take part in a #StandWithMashpee rally in support of the Mashpee Wampanoag Tribe at the U.S. Capitol on November 14, 2018. Photo by Indianz.Com (CC BY-NC-SA 4.0)

Passage of the so-called Carcieri fix would benefit the Mashpee Wampanoag Tribe, whose federal recognition wasn't finalized until 2007. The Trump administration has concluded that the People of the First Light cannot restore their homelands, paving the way for their reservation in Massachusetts to be taken out of trust, something that hasn't happened since the disastrous termination era.

But getting a Carcieri fix through Congress has proved a nearly impossible task over the last decade due to opposition from non-Indian interests, state and local governments and even some tribes who don't want to see their fellow Indian nations gain any lands. That explains the existence of a second bill that will be considered at the hearing next Wednesday.

H.R.312, the Mashpee Wampanoag Tribe Reservation Reaffirmation Act, is a Carcieri fix, but only for one tribe. It confirms that the Mashpee Wampanoag Tribe's reservation is in trust and can't be challenged in court.

Congress has embraced the exact same approach in the past. The Supreme Court, in a case known as Patchak v. Zinke, even confirmed that such legislation is constitutional, rebuking the arguments advanced by non-Indian interests.

But H.R.312 is just as controversial as a Carcieri fix. Opponents in Massachusetts, along with Democrats in neighboring Rhode Island, are vowing to stop the legislation even though it enjoys bipartisan support. The Aquinnah Wampanoag Tribe, whose federal status was finalized in 1987, also has raised concerns about the impact on its rights.

Despite the hurdles, Cole remains optimistic. In remarks to NCAI last month, he said the divided nature of the 116th Congress -- Democrats control the House while the Senate remains in Republican hands -- might benefit tribal interests.

"I think we may well have an opportunity on a lot of Native American issues that have been working their way through the Natural Resources Committee, to speed them up," Cole told tribal leaders on February 13 as they met for NCAI's executive council winter session in Washington, D.C.

The House Subcommittee for Indigenous Peoples of the United States is part of the House Committee on Natural Resources and Cole said the panel's chairman, Rep. Raúl Grijalva (D-Arizona), is a "good friend and strong advocate for Indian Country."

"So perhaps something like Carcieri can happen," he said.

In addition to H.R.375 and H.R.312, lawmakers also will take testimony on a draft discussion version of the Requirements, Expectations, and Standard Procedures for Executive Consultation with Tribes Act, also known as the RESPECT Act. The bill -- prior versions of which have been introduced by Grijalva and have been supported by Indian Country -- requires federal agencies to develop "meaningful" tribal consultation policies.

The hearing takes place at 2pm on April 3 in Room 1324 of the Longworth House Office Building. A witness list hasn't been posted online yet.

House Subcommittee for Indigenous Peoples of the United States Notice

Indigenous Peoples Legislative Hearing (April 3, 2019)