November 27, 2019

Warren Joins Tester’s Carcieri Fix Bill That Would Advance Tribal Sovereignty and Affirm Tribal Trust Land

Bill provides a fix to the 2009 Supreme Court decision in Carcieri v. Salazar that negatively impacted tribal nations

Washington, DC - United States Senator Elizabeth Warren (D-Mass.) joined Senator Jon Tester (D-Mont.), member of the Senate Committee on Indian Affairs (SCIA), in introducing S. 2808, companion legislation to Congressman Tom Cole’s (R-Okla.) bill that would provide a fix to the 2009 Supreme Court case Carcieri v. Salazar, so that tribal nations’ lands can be taken into trust and protected. A Carcieri fix would advance tribal sovereignty and benefit tribal economies.
Trust land is a special legal status by which title to land is acquired by the federal government and held for the benefit of tribal nations or Native people. This process was intended to help tribal nations regain homelands and build economies. Trust land is crucial for tribal sovereignty in that it establishes tribal governance of the land and enables the tribal nation to enjoy the economic benefits of that land.
The 1934 Indian Reorganization Act (IRA) empowered the federal government and tribal nations to place new land into trust—that is, to enlarge existing tribal homelands or newly recognize tribal homelands—in order to “conserve and develop Indian lands and resources,” and to further economic prosperity. For decades, the Department of the Interior (DOI) interpreted the IRA as authorizing the Secretary of the Interior to place land into trust for any federally recognized tribal nation, and about 9 million acres of land have been taken into trust since 1934. In 2009, however, the U.S. Supreme Court ruled in Carcieri v. Salazar that DOI could take land into trust only for tribal nations “under Federal jurisdiction” at the time the IRA was enacted in 1934. Many tribal nations—including both of Massachusetts’s federally recognized tribal nations—were recognized after 1934, and many of them are now in danger of losing the ability to take land into trust. This bill would amend the IRA to reaffirm DOI’s authority to take land into trust for all tribal nations equally, and ensures that existing tribal lands will continue to be held in trust.
The House of Representatives decisively passed Congressman Cole’s companion bill, H.R. 375, on May 15, 2019.
Carcieri v. Salazar is a roadblock to tribal sovereignty that created inequality and continues to negatively impact many tribal nations, including the two federally recognized tribal nations of Massachusetts: the Mashpee Wampanoag Tribe and the Wampanoag Tribe of Gay Head (Aquinnah),” Senator Warren said. “A clean Carcieri fix is long overdue, and that’s why I joined my Senate colleagues in supporting this bipartisan legislation that has already passed the House of Representatives and would advance tribal self-governance, protect tribal lands, and further economic growth and prosperity.”
“Without passage of this legislation, there will continue to be certain federally recognized tribes in the United States treated as ‘second class’ tribes from whom the full benefits of the Indian Reorganization Act will continue to be denied,” said Chairman Cedric Cromwell of the Mashpee Wampanoag Tribe. “While in our culture we ‘Give Thanks’ with every sunrise, it is particularly timely that in this month of November when families across the country will gather for a Thanksgiving meal, it is indeed an appropriate time to say that we are proud of, and thankful for our congressional delegation and their support of all federally recognized tribes across the United States.” Read the Chairman’s full statement here. 

“This Bill is long overdue. For the last ten years, a whole decade, the negative impacts of the perceived uncertainty of the Secretary’s authority to take land into trust for all Federally Recognized Tribes has devastated Tribes’ ability to acquire trust lands to rebuild our communities, build housing for our Elders and Families, or to build healthcare or educational facilities. This uncertainty has also overshadowed, or more often, completely destroyed economic development for Tribes,” said Chairwoman Cheryl Andrews-Maltais of the Wampanoag Tribe of Gay Head (Aquinnah). “Senator Warren’s co-sponsorship of this bill is a testament to her commitment to Indian Country, and a way to begin to address the injustices and failures of the United States with regard to its obligation to Indians, as she has noted after reading the U.S. Commission on Civil Rights report Broken Promises.” Read the Chairwoman’s full statement here.
“Tribal government land bases are the very foundation of tribal sovereignty and strong economies. Enacting a legislative fix to the Carcieri v. Salazar decision remains a top priority for all of Indian Country,” a coalition of 26 intertribal organizations wrote in a letter to Congress. Read the full letter of support here. The letter was signed by leadership of the Affiliated Tribes of Northwest Indians, Alaska Federation of Natives, All Pueblo Council of Governors, Americans for Indian Opportunity, Coalition of Large Tribes, First Nations Development Institute, Great Plains Tribal Chairman’s Association, Indian Land Tenure Foundation, Indian Law Resource Center, Intertribal Agriculture Council, Inter Tribal Association of Arizona, Midwest Alliance of Sovereign Tribes, National American Indian Housing Council, National Center for American Indian Enterprise Development, National Congress of American Indians (NCAI), National Council of Urban Indian Health, National Indian Head Start Directors Association, National Indian Health Board, National Indian Gaming Association, Native American Contractors Association, Native American Finance Officers Association, Native American Rights Fund, Rocky Mountain Tribal Leaders Council, Self-Governance Communication & Education Tribal Consortium, Tribal Alliance of Sovereign Indian Nations, and United South and Eastern Tribes Sovereignty Protection Fund.
“NCAI’s hope is that our champions in the United States Senate will get behind this bill for a swift passage.  Its passage would be a monumental win for Indian Country as tribal government land bases are part of the foundation of tribal sovereignty.  All tribal nations deserve to receive equal treatment under the IRA,” NCAI said after the House passed the Carcieri fix legislation.
Cosponsors of the bill also include Senators Jerry Moran (R-Kan.), SCIA member; Tom Udall (D-N.M.), SCIA Vice Chairman; Doug Jones (D-Ala.); Patty Murray (D-Wash.); Mazie K. Hirono (D-Hawai’i); Edward J. Markey (D-Mass.); Brian Schatz (D-Hawai’i), SCIA member; Tina Smith (D-Minn.), SCIA member; Martin Heinrich (D-N.M.); and Catherine Cortez Masto (D-Nev.), SCIA member.
During her time in the Senate, Senator Warren has worked to protect and advance tribal sovereignty, to emphasize the federal government’s trust and treaty responsibilities to tribal nations, and to affirm Washington’s government-to-government relationship with tribal nations:
  • She is working with Congresswoman Deb Haaland (D-N.M.), one of the first Native women elected to Congress, on the Honoring Promises to Native Nations Act, legislation that will address chronic underfunding and barriers to sovereignty in Indian Country and hold the federal government accountable for honoring America’s legal promises to Native peoples.
  • Senator Warren and Senator Jeff Merkley (D-Ore.) will introduce the Senate version of the Remove the Stain Act, which would revoke the Medal of Honor from the soldiers who perpetrated the Wounded Knee massacre.
  • Senator Warren cosponsored a resolution to recognize November as Native American Heritage Month, a time for celebrating the heritages and cultures of Native Americans and the contributions of Native Americans to the United States.
  • She has supported efforts to address violence in Indian Country, especially against women and girls. When the Violence Against Women Act (VAWA) was last reauthorized in 2013, she joined the call to ensure the law contained new safeguards for Native abuse victims. She cosponsored that reauthorization, which recognized tribal sovereignty in crucial new ways. However, VAWA expired earlier this year, and Senator Warren is a cosponsor and strong supporter of Senator Dianne Feinstein’s (D-Calif.) bill to reauthorize VAWA through 2024. This bill—the Senate companion to legislation that has already passed the House of Representatives—contains important and robust tribal provisions. 
  • Senator Warren twice introduced a bipartisan bill to give tribal nations a seat at the table in addressing the elevated suicide rates in their communities.
  • Senator Warren worked with Representative Raúl Grijalva (D-Ariz.) and introduced the American Indian and Alaska Native Child Abuse Prevention and Treatment Act, legislation that would amend the Child Abuse Prevention and Treatment Act to help provide tribal nations with resources to combat child abuse and neglect.
  • The Comprehensive Addiction Resources Emergency (CARE) Act, her major legislation with then-Chairman of the Oversight and Government Reform Committee, the late Elijah Cummings, to address the nationwide crisis of opioid addiction and substance use disorders, has robust tribal provisions that would provide funding and resources directly to tribal nations and tribal organizations and mandate tribal consultation.
  • Senator Warren ensured that her bipartisan cannabis legislation, the Strengthening the Tenth Amendment Through Entrusting States (STATES) Act, would protect cannabis laws and policies that tribal nations adopted for themselves.
  • Senator Warren’s major housing legislation, the American Housing and Economic Mobility Act, would provide a significant increase in funding for Indian Housing Block Grants and restore the ability of tribal housing authorities to administer Housing Choice Vouchers. The National American Indian Housing Council passed a resolution supporting the bill.
  • She has twice partnered with Senator Udall to introduce the Native American Voting Rights Act, landmark legislation to provide the necessary resources and oversight to ensure Native people have equal access to the electoral process.
  • Senator Warren’s Universal Child Care and Early Learning Act, introduced with Congresswoman Haaland, would provide millions of families in Indian Country with free, high-quality child care and early learning options. The legislation allows tribal governments to be local administrators of the universal child care and pre-K program.