In the Carcieri v. Salazar decision, the Supreme Court reversed 75 years of policy and practice. The Indian Reorganization Act (IRA) of 1934 authorized the secretary of the Interior to take lands into trust for federally recognized tribes. The court threw all tribes into a tailspin of uncertainty by ruling that the secretary did not have the authority to take land into trust for tribes that were not considered “under federal jurisdiction” when the IRA was enacted. The court did not define “under federal jurisdiction,” and in 1934 there wasn’t an official list of federally recognized tribes. The decision creates two classes of tribes: those that can have land in trust and those that cannot. Such a system promises to be both chaotic and unfair.
So much land has been taken from tribes and tribal members — it is unconscionable to make it harder for tribes to gain back their traditional lands. Congress enacted the IRA to protect tribal homelands and to restore land that was previously seized from the native peoples. It is the responsibility of Congress to act when its intentions are misconstrued by the courts, and so we must act now.
The uncertainty created by the Carcieri decision paralyzes economic development because banks and other financing sources are not willing to back tribal businesses, as it is impossible to tell whether a tribe will be affected by the Carcieri ruling. Land is vital to tribal economic growth, and if the rights to tribal land are no longer protected, lenders will not invest, and tribal businesses will be unable to grow.
Although the Carcieri case originated with Rhode Island’s Narragansett tribe, the consequences of the policy are national in scope. Tribes across the Great Plains and the western United States rely on trust lands for agricultural production, as well as energy production, both conventional and renewable. In the Northwest, tribes use fish from the waters adjacent to their land not only to feed their people but also as a catalyst for jobs catching, processing and marketing those fish.
At a time when the recession has exacerbated tribes’ already pronounced economic struggles, allowing these additional economic burdens to persist is unacceptable. The urgent need for job creation on Indian reservations is obvious. For Native American communities, the national unemployment average is 50 percent, and in the Northern Great Plains, it is 77 percent. Unemployment on reservations is not seasonal. It is chronic. It is an abiding unemployment that causes great hardship.
Often rural communities surrounding reservations also struggle due to the lack of job opportunities. These economically hard-hit rural communities are suffering across the board — people are unemployed, under-employed, family businesses are failing, some are losing their ability to provide for their children.
If the Carcieri decision received a legislative fix, more than 140,000 jobs would become available within the next year, according to a study by the Native American Finance Officers Association. Many of these new jobs would require a specialized, non-native workforce. With the creation of these jobs, badly needed schools, senior centers and tribal housing can finally be built on tribal lands. Reversing Carcieri would provide people who live in economically repressed areas surrounding reservations with an opportunity to work, sell their services and products, and regain the opportunity to support their families.
But economic development and job concerns are hardly the only issues that have sprung from the Carcieri decision.
Questions regarding the status of trust lands and jurisdiction have led to threats of legal challenges and have hampered the ability of both tribal and state authorities to bring criminals to justice. This is further complicated by the fact that tribal police officers often do not have jurisdiction or authority to investigate crimes and make arrests involving non-Indians, and state law enforcement officers cannot investigate or arrest an Indian for a crime in Indian country.
The confusion stemming from the Carcieri decision regarding tribal land has blurred the jurisdictional lines and has hampered the execution of public safety and law enforcement in Indian country and the surrounding communities. This perception of lawlessness is unacceptable. We need to do a better job at putting safeguards in place to ensure that children, women and families in these communities receive the protection that they deserve and are not lost in the crossfire of jurisdictional ambiguity.
Congress is facing many obstacles in this economy, many of which don’t have clear solutions. But Carcieri has a clear solution. It’s time to work together to make improvements where we can. Fixing Carcieri will provide hundreds of thousands of jobs, spur economic development, and crack down on violent crimes. Importantly, it will cost taxpayers nothing. Carcieri-fix legislation deserves its day on the floor.
Akaka is the chairman of the Senate Committee on Indian Affairs, and Cole is the deputy whip of the House Republican Conference. Both have introduced Carcieri “fix” bills.