Rep. Markwayne Mullin (R-Oklahoma). Photo: Sen. Jim Inhofe

Rep. Mullin confirms divisions in Indian Country on Carcieri fix

Competing forces in Indian Country are hindering a fix to the U.S. Supreme Court decision in Carcieri v. Salazar, Rep. Markwayne Mullin (R-Oklahoma) said on Tuesday.

The decision currently restricts the process to tribes that were "under federal jurisdiction" as of 1934, the year the Indian Reorganization Act became law. A fix would ensure that all tribes, regardless of the date of federal recognition, can follow the land-into-trust process but Mullin said lawmakers on Capitol Hill are hearing conflicting messages.

"When there's an issue that Indian Country themselves is divided on then you're going to have a hard opportunity to convince legislation to be passed because no one wants to make the other side mad," Mullin, a citizen of the Cherokee Nation, said during an appearance on Native America Calling.

"The Carcieri fix -- that's a huge issue," said Mullin, who is one of two members of a federally-recognized tribe in Congress.

Mullin hinted at gaming as one of the issues causing divisions. Some tribes -- mainly those with successful casinos -- have opposed new land-into-trust acquisitions due to concerns about competition and encroachments on territories they claim as their own.

Mullin also mentioned a rather specific inter-tribal dispute over "burial sites." The Muscogee Nation of Oklahoma supports a Carcieri fix as long as it doesn't include the Poarch Band of Creek Indians in Alabama. The Muscogee Nation believes the Poarch Band, whose federal recognition was finalized in 1984, has desecrated Hickory Ground, a historic Creek town and burial grounds.

"You'll find that maybe 90 percent of Native country will be on the same side, but then you're also going to find that 10 percent might be very loud and so then it causes the legislation to be polarized," Mullin told Native America Calling host Tara Gatewood on the one-hour program.

In a sign of the differing views, lawmakers have introduced no less than six different Carcieri bills Two of them -- S.732 and H.R.249 -- offer a "clean" fix that applies to all tribes and does not take into account gaming, the views of state and local governments or other issues. Mullin is a co-sponsor of H.R.249.

Other fixes merely confirm prior land-into-trust decisions to ensure they can't be challenged in federal court. S.1931, H.R.3137 and H.R.407 are three examples of that approach. Mullin is also co-sponsoring H.R.3137.

Finally, Sen. John Barrasso (R-Wyoming), the chairman of the Senate Indian Affairs Committee, introduced S.1879, the Interior Improvement Act. The bill overhauls the entire land-into-trust process at the Bureau of Indian Affairs.

So far none of the six versions of the Carcieri fix have been approved by any committees in the House or the Senate.

DOI Solicitor Opinion:
M-37029: The Meaning of "Under Federal Jurisdiction" for Purposes of the Indian Reorganization Act (March 12, 2014

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