TRIBAL LAND EXPANSION AND THE FIX

By Kathy Cleary, Contributing Writer

A recent Supreme Court decision (Carcieri v. Salazar) will fall under the radar for most people.

It shouldn’t for two important reasons; the first, it appears to me, is that since 1934 the federal government has been erroneously removing land from state jurisdiction on behalf of Indian tribes subsequently eroding state sovereignty.

The second is the realization that the federal government has created a process to operate with unlimited power.

Carcieri v. Salazar was filed years ago by the Governor of Rhode Island (Carcieri) against the Department of the Interior (Kempthorne, now Salazar). 

Gov. Carcieri objected to a local tribe’s application to take 31 acres out of his state’s jurisdiction and put it into federal trust.

The federal government’s Department of the Interior’s two agencies (the Bureau of Indian Affairs, BIA, and Internal Board of Indian Appeals, IBIA) ignored the state’s objections and approved the land into trust. Carcieri appealed and the case was recently heard by the Supreme Court.

The significant ramifications to the public of casino tribes that are using their hundreds of millions of dollars of gambling profits, which are untaxed, to buy more and more land and take it out of local and state jurisdiction and put it into federal “trust” is summarized by a brief filed by 16 states supporting Rhode Island Governor (Carcieri):

Land taken into trust for Indians by the Secretary is removed from state authority in several significant respects (including taxation, land use restrictions and certain environmental regulations), thereby limiting the States’ ability to exercise their sovereign powers to protect the public on the trust land.  25 C.F.R. § 1.4(a). 

Thus, the result of the secretary’s taking land into trust is the creation of an area largely controlled by a competing sovereign within a state’s borders without its consent, contrary to core principles of federalism. Source: www.abanet.org.

The concerns expressed by those 16 states is central to many affected communities and to the case filed four years ago by grass roots citizen groups P.O.L.O. and POSY v. the Department of the Interior.  P.O.L.O. and POSY filed the privately funded litigation when Santa Barbara County Supervisors refused to do so.

On Feb. 24, the Supreme Court, in a 6-3 decision, ruled that the federal government can no longer take land out of state jurisdiction for Indian tribes federally recognized after 1934.

This decision is huge, in and of itself.  However, the reality of how our federal government is actively working to undermine any attempt to re-balance federal and state power with respect to tribal issues is even more significant.

These “competing sovereigns,” as defined in the 16 states’ brief, are like no other special interests in this country.

They are federally sponsored governments, governments whose operations and dealings are closed from public scrutiny. They are allowed the special privilege of gambling and the billions of gambling dollar profits are not taxed. They use this money to buy land.

They impact the public but have no accountability to the public. 

Through a loophole they are also allowed to contribute to political campaigns.

The federal government (through your tax dollars) subsidizes them and funds their defense when their expansion is opposed.

And when Constitutionally based objections and re-balancing to ensure public protection regarding tribal issues is successful, the federal government changes the rules. 

Literally within hours after the Supreme Court decision, the press reported that a “Carcieri fix” is already in play.

Rather than accepting that they have made erroneous decisions regarding tribal land expansion since 1934 that placed the public at risk, the federal government via Congress is instead working to find a way to make this Supreme Court decision irrelevant.

If the federal government via Congress is successful in ignoring public protection by undermining the Supreme Court, then we are witnessing unlimited federal power.

For more information about the Carcieri v. Salazar Supreme Court decision, visit www.supremecourtus.gov.

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