Jurisprudence

Will a Trump Tweet Sabotage a Popular Bipartisan Bill to Restore Tribal Lands?

Donald Trump sits at his desk in the Oval Office.
President Donald Trump in the Oval Office at the White House on Monday.
Nicholas Kamm/AFP/Getty Images

Last month marked the 85th anniversary of the passage of the FDR-era Indian Reorganization Act. It is now up to Congress to make this milestone a happy one. Hailed by supporters as the “Indian New Deal,” the IRA was enacted in 1934 to revitalize Indian tribes by reinstating their homelands and tribal self-government. With its emphasis on restoring tribal sovereignty, culture, and land, the IRA is a staple of American Indian law and policy.

The heartbeat of the IRA is a provision that authorizes the Department of the Interior to acquire lands in trust for Indian tribes, largely exempt from state and local regulation. Trust lands provide resources and housing, and create eligibility for vital federal programs. A decade ago, however, in the 2009 decision Carcieri v. Salazar, the Supreme Court crippled the Interior Department’s ability to properly administer the IRA’s fee to trust provision. Two House bills presently before the Senate aim to change that.

On May 15, the House overwhelmingly passed H.R. 312 and H.R. 375, bipartisan measures designed to ensure that all federally recognized Indian tribes are treated equally under the IRA. Oklahoma Republican Rep. Tom Cole’s H.R. 375 is critically needed to correct the damage caused by the Supreme Court’s disastrous decision in Carcieri. That ruling quashed the Narragansett tribe’s land trust in Rhode Island by effectively reinterpreting the IRA to apply only to tribes that were federally acknowledged at the time of its enactment in 1934. The court’s finding that the Narragansett tribe was not “under federal jurisdiction” in 1934, an issue that was not even briefed by the parties, countermanded more than 70 years of agency policy, congressional mandates, and the court’s own standard of review. In addition, it ignored that federal acknowledgment can only be obtained if a tribe proves that it “has been identified as an American Indian entity on a substantially continuous basis since 1900.” H.R. 375 is a Carcieri fix that reasserts that the IRA applies to “any federally recognized Indian Tribe.”

Massachusetts Democratic Rep. Bill Keating’s H.R. 312, the Mashpee Wampanoag Tribe Reservation Reaffirmation Act, meanwhile, is a narrowly tailored Band-Aid bill that restores the Mashpee Wampanoag tribe’s reservation lands in Massachusetts and reinstates an Interior land trust decision that was invalidated by a Carcieri challenge. It exemplifies the lengthy, costly, and circuitous route federally recognized tribes must now follow post-Carcieri to try to secure their trust lands.

Both of these measures have broad bipartisan support in the House and Senate.
However, the Mashpee Wampanoag tribe’s plans to build a casino near the Rhode Island border are opposed by the same casino interests that benefited from the Carcieri decision. Just before the House vote on H.R. 312, seemingly out of nowhere, President Donald Trump weighed in and tweeted—invoking the racial slur that he devised as a nickname for Sen. Elizabeth Warren—that Republicans should not vote for it: “Republicans shouldn’t vote for H.R. 312, a special interest casino Bill, backed by Elizabeth (Pocahontas) Warren. It is unfair and doesn’t treat Native Americans equally!”

The tweet was a bit odd in light of the president’s previous support for similar legislation and for the Wampanoag people—he praised the Wampanoag tribe as a valued ally in his 2018 Thanksgiving proclamation. His unlikely opposition to their reservation, though, exposes the influence of casino lobbyists on this administration and highlights one of the most pernicious effects of Carcieri, which has given Indian gaming opponents and competitors a basis to attack a tribe’s land trust under the IRA in order to block a casino. Trump’s labeling of H.R. 312 as a “casino bill” demonstrates the gambling industry’s conflation of the IRA with Indian gaming regulations. Although the president’s missive ultimately could not stop the measure in the House, it signals that we can expect to see more partisanship and big money lobbying at play during the Senate debates over these much-needed pieces of legislation. It also means that if they do make it through Congress, a supermajority might be needed to overcome a presidential veto.

Again, H.R. 375 is necessary because Carcieri has overburdened federal and tribal resources with protracted litigation over the now-uncertain status of trust lands, natural resources, and jurisdictional boundaries. The ruling has created a two-class system of tribal regulation that impermissibly treats tribes unequally to one another based upon their dates of acknowledgment. Moreover, although the IRA does not regulate casinos, Indian gaming opponents have co-opted Carcieri as a weapon against Indian tribes, imperiling land trusts that were intended for the tribes’ welfare under the IRA.

The IRA has been a lifeline for tribes that must be preserved and safeguarded from special interests and lobbyists. Democrats and Republicans in the House were resolute in their commitment to upholding the IRA’s promises. If this new legislation can make it into law, the IRA’s 85th anniversary will stand as a monument to the federal government’s good faith commitment to the prosperity and self-determination of indigenous peoples.