‘Carcieri Fix,’ Key To Mashpee Tribe's Reservation Plans, Slated For Senate Vote

By: Geoff Spillane
Published: 10/12/12

Prospects for the Mashpee Wampanoag Tribe’s land-into-trust application for properties in Taunton and Mashpee may receive a major boost by year’s end.

A prominent Democratic senator will work for a vote to overturn, or “fix,” changes in Indian reservation approval rules caused by the landmark 2009 Carcieri v. Salazar United States Supreme Court decision, a Senate aid said this week. The push is expected during the upcoming lame duck session of Congress, between the election and the end of the year.

The court’s Carcieri decision ruled that the US Department of the Interior could not grant reservations for tribes that were not “under federal jurisdiction” prior to 1934, a change that has affected the Mashpees and dozens of other tribes across the country.

The Mashpee received federal recognition in 2007, though the tribe is at work on an effort to prove in its reservation application that it was under federal jurisdiction much earlier.

A “fix” to the ruling would reaffirm the secretary of the interior’s authority to place land into trust for all federally recognized Indian tribes, and could substantially accelerate the time it could take for the Mashpee to open its proposed $500 million destination resort casino in Taunton. The property at the site of the proposed casino in Taunton must be taken into to trust before gaming operations can begin. In addition, the commonwealth, as highlighted in the compact, has also committed to support and advocate for rapid approval of the application as it maneuvers its way through Washington.

News of impending action on the Carcieri decision comes as the tribe awaits word on another major decision from Washington, DC, with the tribe expecting to hear as early as Monday whether its casino revenue sharing compact with the Commonwealth of Massachusetts has been accepted by the United States Bureau of Indian Affairs.

Reached by telephone earlier this week, Emily Deimel, communications director for the United States Senate Committee on Indian Affairs, confirmed that a vote for a fix was expected soon, and provided the following statement from committee chairman Senator Daniel Akaka (D-Hawaii):

“One of my top legislative priorities has been to secure passage of a legislative Carcieri Fix. Amending the Indian Reorganization Act represents a commitment to parity - to the principle that all federally-recognized Native peoples should be offered the same rights and opportunities. All should have the same tools at their disposal to address the unique needs and priorities in their communities.

I am determined to pass a Carcieri fix this Congress. I have been working hard for the past nineteen months to make sure that my Senate colleagues understand that a Carcieri-fix is the number one priority of tribes, the Administration, and the Committee on Indian Affairs.

I am happy to report that Majority Leader Reid has committed to working with me to ensure that the Carcieri fix is enacted in this Congress - and signed into law by President Obama.”

Matthew L.M. Fletcher, professor of law and director of the Indigenous Law and Policy Center at Michigan State University, welcomed the news that a Carcieri fix could be near.

“If it comes up for a vote, it will pass, and will provide a major economic catalyst for Indian Country,” Mr. Fletcher said, noting that it was wise for Sen. Reid to join Sen. Akaka in the effort, as there are several close senate races in states that have significant Native American populations.

Support from Senator Harry Reid, the Democratic majority leader, would also dramatically increase the chances that the measure would pass the Senate, though its prospects in the House are unclear.

A bill to address the decision came up during the last lame duck session, after the 2010 Congressional elections, but despite harried efforts to get it approved, the effort failed. Proponents of the bill argued that it ensured all federal recognized tribes would be treated equally, while opponents expressed concerns about Indian gaming and the loss of state sovereignty when reservations are approved.

While Mr. Fletcher acknowledged that President Barack H. Obama could issue an executive order to address the issues raised by the decision if he does not win reelection, he said it would not be as durable as having a vote pass Congress. “A Romney administration, and I have no idea what it would look like, could come in and immediately overturn an Obama order,” he said.

The Obama administration has been the most supportive of Indian affairs in decades, if not the nation’s history, Mr. Fletcher said.

“While the Mashpee Wampanoag Tribe does not depend on a Carcieri fix to have land taken into trust, such legislation would go a long way toward clearing up the uncertainty caused by the Carcieri decision. We fully support Chairman Akaka’s efforts and believe that his legislation will benefit all of Indian Country and our neighbors by stimulating economic development and job creation on Indian trust lands,” Mashpee Wampanoag Tribal Council Chairman Cedric Cromwell said in a written statement.

Correction: The article has been changed to reflect the correct elections prior to the last lame duck session, when a Carcieri fix was proposed but did not pass. The elections were in 2010, not 2008.