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Native Americans call for ‘fix’ to controversial Supreme Court ruling

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WASHINGTON – A 2009 Supreme Court ruling that restricts tribal jurisdiction “is killing jobs in Indian country, and it is killing jobs in the local non–Indian communities which neighbor Indian country,” a Native American official told a Senate committee Thursday.

William Lomax, president of the Phoenix–based Native American Finance Officers Association, was one of two Arizona speakers testifying to the Senate Indian Affairs Committee on the so–called Carcieri ruling and its impact on Native American communities.

The ruling, Carcieri v. Salazar, is considered a major challenge to the Department of the Interior’s right to take land into trust for tribes – which gives the Indian nations jurisdiction over the land. It said only tribes under federal jurisdiction when the Indian Reorganization Act was passed in 1934 could have land placed into trust.

But witnesses said there is no uniform standard to say which tribes meet that requirement, so many are susceptible to having their land rights questioned in court. That leads to uncertainty that can affect everything from economic development to law enforcement to how tribes relate to one another, witnesses said.

Because of that uncertainty, banks and investors are wary of putting money into tribal businesses and projects, Lomax testified.

“There’s a lot of other places to deploy capital. (Lenders) can just go somewhere else,” he said. “Indian country is already complex enough.”

That can drive tribal businesses to payday–loan–type lenders who collect interest rates up to 20 to 30 percent, said Lomax, a San Francisco resident who is a member of the British Columbia–based Gitxsan nation.

Questions about tribal jurisdiction raised by Carcieri can also create a “debilitating” public safety hazard for law-enforcement agencies, Arizona State University law professor Carl Artman told the committee.

The current mix of federal, state, local and tribal agencies is confusing enough, he said.

“This 2009 holding may only be the cornerstone of future litigation that will not only further confuse jurisdictional boundaries in Indian country, but perhaps cause a debilitating blurring of the lines that will hamper the execution of public safety and law enforcement in Indian country,” said Artman, a former Interior Department assistant secretary of Indian affairs.

Two House bills introduced in March seek to circumvent Carcieri by amending the Indian Reorganization Act to include all federally recognized tribes, regardless of the date they were recognized. A similar bill introduced by Sen. Daniel Akaka, D–Hawaii, was passed by the Senate Indian Affairs Committee in April but has not yet come up for a vote by the full Senate.

Akaka, the chairman of the committee, said the committee was determined to find “a clean fix.” The best fix is legislation, said the witnesses, who included Interior Department officials and legal experts.

“From a long-term perspective, it would be nice if Congress could address this issue,” Artman said.