Legislative Quarterly Report
 
April 26, 2005
 

Introduction

The 109th Congress convened in January with the Republicans holding 55 of the 100 seats in the Senate and assured of at least 232 of the 435 House seats, three more than it held in the 108th Congress. The shift in power in the Senate means that the Democrats lose one seat on each Senate Committee. Republicans continue to chair the committees but there are some major changes due to GOP-imposed term limits. This Report discusses the actions of the 109^th Congress, and related events, since Congress convened on January 4, 2005.

Legislative Branch

House and Senate Appropriators Restructure Subcommittees

On Wednesday, February 16, the House Appropriations Committee approved a plan to streamline and expedite the consideration of annual appropriations bills and reduce the number of subcommittees from 13 down to 10. On March 12, after refusing to accept the House proposal restructuring appropriations subcommittees in February, the Senate Appropriations Committee agreed to a plan rearranging the jurisdiction of several subcommittees.

The result is that all but three of 10 to 12 revised appropriation subcommittees match, with the House appropriations subcommittees numbering 10 and the Senate subcommittees numbering 12. For the BIA and IHS program purposes, the House and Senate Interior appropriation subcommittee jurisdictions continue to match, although both gained responsibility for the Environmental Protection Agency (EPA). While both the House and Senate eliminated the VA-HUD appropriations subcommittee, parceling those programs among other subcommittees and spending bills, only the House eliminated the District of Columbia and the Legislative Branch subcommittees. The House and Senate appropriations subcommittee on Agriculture retained its separate status and jurisdiction, as did the Energy & Water, and the Homeland Security subcommittees. The House and Senate Subcommittee on Interior Appropriation membership is comprised of:

Senate Subcommittee on Interior and Related Agencies House Subcommittee on Interior, Environment & Related
Republicans (8) Conrad Burns, Mont. - chairman Ted Stevens, Alaska Thad Cochran, Miss. Pete V. Domenici, N.M.* Robert F. Bennett, Utah Judd Gregg, N.H. Larry E. Craig, Idaho Wayne Allard, Colo Democrats (7) Byron L. Dorgan, N.D. - ranking member* Robert C. Byrd, W.Va. Patrick J. Leahy, Vt. Harry Reid, Nev. Dianne Feinstein, Calif. Barbara A. Mikulski, Md. Herb Kohl, Wis.	Republicans (8) Charles H. Taylor, N.C. - chairman Zach Wamp, Tenn. John E. Peterson, Pa. Don Sherwood, Pa. Ernest Istook, Okla. Robert B. Aderholt, Ala. John T. Doolittle, Calif. Mike Simpson, ID - vice chairman Democrats (5) Norm Dicks, Wash. - ranking member James P. Moran, Va. Maurice D. Hinchey, N.Y. John W. Olver, Mass. Alan B. Mollohan, W.Va.

FY 2006 Budget & Appropriations

FY 2006 Budget Released

On Monday, February 7, 2005, President Bush sent a $2.57 trillion budget to Congress, strongly prioritizing Defense and Homeland Security. Discretionary domestic spending outside of Homeland Security or national security has been cut by .7%. Overall, Foreign and Domestic discretionary spending will see a 2.1% increase under the President’s budget request, though not enough to cover the annual inflation rate of 2.3%.

The President requested $10.6 billion for the Department of Interior, a 1.1% decrease from the 2005 amount of $10.8 billion, while the request for the Department of Justice was $19.1 billion, a 5.5% decrease from the $20.2 billion in 2005. In formulating the 2006 budget, the Office of Management and Budget (OMB) looked at whether the program or function was a federal responsibility; whether the program or function was in line with the national priority of Homeland Security; and the PART score, measuring success, of the program.

FY 2006 Bureau of Indian Affairs (BIA) - Under the President’s budget, the BIA would receive $2.2 billion, $108.2 million less than the 2005 amount. The President proposed reductions for Tribal Priority Allocations (TPAs), Operation of Indian Programs, Indian education, and School construction while Public Safety and Justice would see an increase. School construction would be impacted most with an $89.5 million decrease, while TPAs would be reduced $9.29 million from 2005, specifically impacting welfare assistance, Johnson O’Malley grants, community fire protection, energy development grants, probate, and administrative services at the Area Office level.

Under the budget request, Operation of Indian Programs would be decreased by $1.9 million to $1.9 billion and Tribally Controlled Community Colleges would be reduced by $9.766 million. The President requested a $19.2 million increase to expand law enforcement programs in areas where violent crimes are most severe and COPS grants are to expire; to staff, operate and maintain detention facilities built with DOJ funding; to outsource the detention of individuals to local jurisdictions where BIA facilities fail to comply with national standards; and to begin a comprehensive program to improve and repair BIA detention facilities.

The budget also includes $521.6 million for school operations to support 184 schools and dormitories, $2.0 million to pilot leadership academies, offering a curriculum that helps students gain a positive attitude toward learning, conform to established behavior requirements, meet high academic standards, and learn skills required to become leaders in Indian communities; $60.9 million for post-secondary education; $173.9 million for education construction, but only for two schools on the March 2004 priority list; $128.4 million for Education Facilities Improvement and Repair; $500,000 to establish an Economic Development Commission; and $24.8 million for payment of authorized Indian land and water claim settlements, $19.4 million less than the 2005 amount. The Office of Special Trustee would benefit from the President’s request with a net increase of $113.6 million for an overall budget of $303.9 million. Historical accounting would be increased by $77.8 million to $135 million, while Indian Land Consolidation would be flat-lined from the 2005 amount.

FY 2006 Department of Justice - Tribal Law Enforcement is increased by $31 million to $51.06 million under the Department of Justice. At the Office of State and Local Government Preparedness, which handles law enforcement and includes tribes as local governments, border security will be the top priority. However, qualification for funding through the Office requires compliance with the National Incident Management System (NIMS), similar to the incident command system, enabling all resources to be controlled by one local commander. Funding mechanisms overall will be prioritized by threat area, which may or may not impact the current position of tribes.

FY 2006 Indian Health Service - The President has requested $3.8 billion for Indian Health Service, a net increase of $72 million over the 2005 amount. Contract Support Costs would be increased by $5 million to a total of $269 million, but the President’s budget for contract support costs is still $100 million short of the tribal need, which is closer to $369 million. Other increases in the President’s budget include clinical services, contract health services, preventive health, sanitation construction, facilities and environmental health support, urban health, direct operations, Indian health professions and staffing new outpatient clinics. Health care facilities construction was reduced the most with an $86 million decrease.

FY 2006 HHS and VA-HUD - A notable increase from the President’s budget includes $45 million to HeadStart to a total of $6.8 billion, of which tribes receive a 2.9% set-aside. However, under HUD, the President has requested just $583 million under the combined Indian Community Development Block Grants and Native American Housing Block Grants, previously separate for a total of $690 million. The President’s request represents a $107 million loss for Indian Country.

FY2006 Reductions - According to the Senate Committee on Indian Affairs’ FY20066 Budget Views and Recommendations, dated February 18, the Administration’s request resulted in many federal Indian program decreases. These include:

Program/Agency	FY2006 Request	Change from FY2005
Department of the Interior	$10.8 Billion	-$101 million (.9% decrease)
Office of Special Trustee	$303..9 million	+$75.9 million
Bureau of Indian Affairs (BIA)	$2.28 Billion	-$110 million
BIA Contract Support Costs	$134.6 m	-$2 million
BIA Law Enforcement	$190 m	+12.1 million
BIA School Construction	$173.9 m	-$89.5 million
BIA School Operations	$454 m	-$1.3 million
BIA Tribal Colleges	$43.4 m	-$9.7 million
Department of Health & Human Services	$67.2 Billion	(1% decrease)
Indian Health Service - Grand Total The Senate Committee indicated that $24 million was still needed for pay cost increases.	$3.84 B	+$ 72 million ($20.5M pay cost; $15.9M inflation; $18.2 m population growth; $18.5 new facility staffing.)
IHS Facilities Construction	$322 m	-$73 million (new hospital/clinics)
Contract Health Services	$525 m	+$27 million
Contract Support Costs	$269 m	+$5 million (increases for new contracts only )
Dept. of Housing & Urban Development	$28.5 Billion	11% decrease
HUD Tribal Housing Block Grants	$582 m	-$45 million (plus decrease of $58 million for Indian CDBG)
HUD Indian Community Development Block Grants (CDBG)	$69 m	-$11 million (funded at $58 million under $582 tribal block grant request.)
Dept of Education Office of Vocational & Technical Education (VTE) Indian Grant Program	$14.9 m	-$14.9 m (entire VTE program eliminated.)
Environmental Protection Agency, State Tribal Assistance Grants (STAG)	$3.544 B	-$643.9 m
Dept of Agriculture, Rural Development Program's Indian Waste & Waste Loan and grants program	$9 m	-$16 m

FY 06 Budget Resolution

On March 9, the House approved a $2.57 trillion FY 06 budget resolution, which included a 2.1% increase in discretionary spending to $843 billion. The budget resolution would require House committees to come up with $68.6 billion in mandatory savings proposals over the next five years, including $7.8 billion for FY 06. House Republicans had originally proposed hefty mandatory spending cuts representing $18 billion more than the President’s requested mandatory spending cuts.

The Senate also plans to cut the deficit in half but without similar drastic cuts to mandatory spending. On March 15, the Senate rejected an effort by Democrats to block drilling of the Arctic National Wildlife Refuge in Alaska. As a result, the FY 06 budget resolution contains instructions to the Environmental and Natural Resources Committee to find $2.7 billion in five-year budget savings, largely through assumptions of future ANWR revenues. $2.5 billion of those revenues would come from opening up a portion of ANWR to oil drilling.

Floor Action

Transportation Bill Passes in the House. On March 10, the House passed a bill containing $283.9 billion in guaranteed spending and overall authorization after the OMB stated it would recommend a veto if the bill exceeded $283.9 billion. On March 11, 2005, the Senate Environment and Public Works Committee agreed to $283.9 billion. The Senate, which had expected to see a more expensive bill after strong support for returning to the $318 billion level approved by the Senate last year, will soon begin debate on the $283.9 billion bill. Tribal transportation and traffic safety provisions were passed by the House and Senate last year, H.R. 3550 and S. 1072, but have yet to be reconciled and finally passed. Floor debate is tentatively scheduled for the last two weeks in April.

Vocational Education. On March 10, the Senate passed S. 250, the Carl D. Perkins Vocational and Technical Education Act Amendment by a unanimous vote of 99 yeas (Vote No. 43), after agreeing to a committee amendment in the nature of a substitute from the Committee on Health, Education, Labor and Pensions. S. 250 amends the Carl D. Perkins Vocational and Applied Technology Education Act of 1998 to reauthorize and revise its programs. S. 250 sets forth new definitions and revises definitions relating to Tech-Prep programs. Section 6 repeals a prohibition on the use of funds under the Act to: (1) provide funding under the School-to-Work Opportunities Act of 1994; or (2) carry out activities that were funded under such Act through programs funded under this Act, unless such programs only serve participants eligible under this Act.

Interior Department Volunteer Act. On March 14, the House passed under Suspension of the Rules, H.R. 548. This bill is called the Department of the Interior Volunteer Recruitment Act and would authorize the Secretary of the Interior to recruit volunteers to assist with, or facilitate, the activities of various agencies (including the Bureau of Indian Affairs, the National Park Service, the Office of the Secretary) and offices of the Department of the Interior;

TANF Temporary Extension. On March 15, the Senate passed H.R. 1160, the Welfare Reform Extension Act, to reauthorize the Temporary Assistance for Needy Families block grant program through June 30, 2005. This action cleared this measure for the President’s approval.

Committee Action

Congressional Committee Changes. The change in Senate leadership affected the Committee on Indian Affairs, which now has eight Republican members and six Democratic members. Senator John McCain (R-AZ) is now serving as the Chairman of the Committee of Indian Affairs after Senator Ben Nighthorse Campbell retired and joined the Holland & Knight team.

INDIAN AFFAIRS AUTHORIZING COMMITTEES – 109^TH Congress

SENATE INDIAN COMMITTEE*	HOUSE RESOURCES COMMITTEE
	REPUBLICANS	DEMOCRATS
John McCain (AZ), Chairman Pete Domenici (R-NM) Craig Thomas (R-WY) Gordon Smith (R-OR) Lisa Murkowski (R-AK) Michael D. Crapo (R-ID) Richard Burr (R-NC) Tom Coburn (R-OK) Byron Dorgan (D-ND), Vice Chairman Dan Inouye (D-HI) Kent Conrad (D-ND) Daniel Akaka (D-HI) Tim Johnson (D-SD) Maria Cantwell (D - WA)	Richard W. Pombo, California, Chairman Don Young, Alaska Jim Saxton, New Elton Gallegly, California John J. Duncan, Jr., Tennessee Wayne T. Gilchrest, Maryland Ken Calvert, California Barbara Cubin, Wyoming George P. Radanovich, California Walter B. Jones, Jr., North Carolina Chris Cannon, Utah John E. Peterson, Pennsylvania Jim Gibbons, Nevada Thomas G. Tancredo, Colorado J.D. Hayworth, Arizona Jeff Flake, Arizona Rick Renzi, Arizona Stevan Pearce, New Mexico Devin Nunes, California Henry Brown, South Carolina Thelma Drake, Virginia Luis Fortuno, Puerto Rico Cathy McMorris, Washington Bobby Jindal, Louisiana Louie Gohmert, Texas Marilyn Musgrave, Colorado	Dale E. Kildee, Michigan Jersey Eni F.H. Faleomavaega, American Samoa Neil Abercrombie, Hawaii Solomon P. Ortiz, Texas Frank Pallone, Jr., New Jersey Donna M. Christensen, Virgin Islands Ron Kind, Wisconsin Grace F. Napolitano, California Tom Udall, New Mexico Raúl M. Grijalva, Arizona Madeleine Z. Bordallo, Guam Jim Costa, California Charlie Melancon, Louisiana Greg Walden, Oregon Dan Boren, Oklahoma George Miller, California Ed Markey, Massachusetts Peter DeFazio, Oregon Jay Inslee, Washington Mark Udall, Colorado Dennis Cardoza, California Stephanie Herseth, South Dakota

Potential Indian Agenda. On January 26, the Committee on Indian Affairs held its first business meeting of the 109th Congress and approved the Committee budget, rules, Chairman and Vice-Chairman. Sen. McCain indicated at that time that he will focus on off-reservation land acquisition, concerns over Indian gaming amendments to the Voting Act, lobbyist hearings, trust litigation, Native Hawaiians, Tribal-State gaming compacts, the recognition process, and proposed changes to the Indian Gaming Regulatory Act, Education and Welfare Reform.

Rep. Pombo has established a number of goals for the House Resources Committee and claims that he wants to move as many solution-oriented bills as possible. Some of these will include legislation to address longstanding petitions for federal recognition of certain Indian tribes (H.R. 512); off-reservation gaming, particularly those that cross state lines; Cobell litigation and Individual Indian Money (IIM) mismanagement settlement; an Indian Health Care Improvement Act (“IHCIA”) reauthorization bill; and regional issues, including Homeland Security for tribes, internet tobacco sales regulation, internet gaming, tribal self-governance, BIA reorganization and transportation.

The energy bill will be a continued challenge for the GOP in the 109th Congress. Last week, the House Resources and Energy and Commerce Committees marked up energy provisions which included tribal specific language nearly identical to last year’s legislation which ultimately died in conference.

Budget Oversight Hearing. On Wednesday, February 16, the Senate Committee on Indian Affairs held a Budget Oversight Hearing. The hearing focused on the Bush Administration’s proposed cuts to tribal housing, education, health care and other programs. The Committee received testimony from:

• Jim Cason (Acting Assistant Secretary for Indian Affairs, Department of Interior)

• Dr. Charles Grim (Director, Indian Health Service, Department of Health and Human Services)

• Michael Liu (Assistant Secretary, Office of Public and Indian Housing, Department of Housing and Urban Development)

• Victoria Vasques (Assistant Deputy Secretary and Director of the Office of Indian Education, Department of Education)

• Tex Hall (President, National Congress of American Indians)

• Chester Carl (Chairman, National American Indian Housing Council)

• J.T. Petherick (Executive Director, National Indian Health Board)

• Dr. David Beaulieu (President, National Indian Education Association)

Trust Reform Hearing. On Wednesday, February 16, the House Resources Committee held a hearing on trust reform. The Committee received testimony from Jim Cason (Acting Assistant Secretary for Indian Affairs) and Keith Harper (Attorney, Native American Rights Fund). Cason doubted the claims of progress made by the Department of Interior, which has spent $2.9 billion in the past decade to develop computer systems, improve information technology and reorganize the BIA, expanding the Office of Special Trustee. Meanwhile, Harper said that an accounting is wasteful and the mediation process established by the Committee has not produced any substantive resolution. Chairman Pombo hopes to develop a legislative solution to the case.

Native Hawaiian Government Reorganization Hearing. On March 1, the Senate Committee on Indian Affairs held a hearing to consider S. 147, a bill to recognize a Native Hawaiian governing entity. Under the bill, DOI would oversee the process and establish the Office for Native Hawaiian Relations to lead an Interagency Coordinating Group, a nine-member commission leading the recognition process.

Republican leaders had promised a floor vote for later this Spring. However, Chairman McCain previously noted that the federal government never meant to treat Native Hawaiians the same as Native Americans in the continental U.S. A companion bill has been introduced in the House, H.R. 309.

The Committee received testimony from:

• Governor Linda Lingle (R-HI)

• Tex Hall (President, NCAI)

• Huanani Apoliona (Chair, Board of Trustees, Office of Hawaiian Affairs)

• Jade Danner (Director of Government Affairs, Council for Native Hawaiian Advancement)

The Department of Justice was invited to testify, but did not appear.

FY 2006 DOI Budget Proposal Hearings. On March 2, the House Appropriations Subcommittee on Interior, Environment, and Related Agencies held a hearing on the FY 2006 Department of Interior budget. Secretary Gale Norton testified, highlighting the Department’s priorities and key goals for the vision of “healthy lands, thriving communities, and dynamic economies.” Norton testified that the Department’s FY 2006 budget would enable ongoing efforts to reform management of its fiduciary obligations and continue historical accounting efforts. The proposed budget would also support BIA detention centers and complement BIA efforts to implement the No Child Left Behind Act by promoting leadership academies and improve facility conditions. The Johnson-O’Malley reductions were proposed because Norton felt that the grants “do not currently address a focused goal for academic achievement and duplicate similar funding made available by the Department of Education.”

On March 10, the Senate Appropriations Interior subcommittee held a hearing to receive testimony from Department of Interior Secretary Gale Norton on the Department’s proposed FY 2006 budget request. Norton used the hearing request Congress to take action on trust fund accounting, citing the reinstated injunction issued in Cobell v. Norton last month, ordering DOI to undertake accounting of Individual Indian Money (IIM) trusts. Norton said that the Department has estimated costs of the accounting to be between $10-$12 billion. Meanwhile, members of the Subcommittee appeared confused over the Department’s $135 million request for the accounting, an increase of $78 million, and expressed more interest in the Department’s cuts to tribal colleges and the construction of BIA schools.

Trust Reform. On March 9, 2005, the Senate Committee on Indian Affairs held a hearing on Trust Reform. Chairman McCain said that the Committee would make a single attempt to resolve the issue because of other concerns in Indian country that require immediate attention. The Committee received testimony from:

• Jim Cason (Acting Assistant Secretary of Indian Affairs, Department of Interior) along with Ross Swimmer (Office of Special Trustee)

• Tex Hall (President, National Congress of American Indians)

• Jim Gray (Principal Chief, Osage Nation and President, Inter-Tribal Monitoring Association)

• Charles Colombe (President, Rosebud Sioux Tribe)

• Darrell Hillaire (Chairman, Lummi Nation)

• Keith Harper (Attorney, Native American Rights Fund), on behalf of Elouise Cobell, Plaintiff, Cobell v. Norton

Cason described the mediation effort and the Department’s concern over the recent District Court order in Cobell restoring the historical accounting requirement, which the Department believes will cost billions. Cason emphasized the high priority the Administration has placed on trust reform, leading to significant reforms to date, and requested the Committee to step in and protect Interior from the obligation to perform the historical accounting required by the District Court. Meanwhile, NCAI President Hall stated that tribal leaders want a fair and equitable process for settling the litigation. He noted that the DOI has diverted resources in response to the litigation and has been slow to implement policies, procedures and systems to improve performance. President Hall also highlighted some discussions and recommendations developed during the task force meetings that should be considered in future trust reform efforts: (1) there should be no external oversight of Indian trust; (2) OST should be an independent office, not placed subordinate to the Secretary of Interior; (3) Indian Affairs should be held to a high level of responsibility; (4) BIA Reorganization should be considered; (5) trust standards and a clear right of action against the Department if they violate their trust responsibilities should be created; and (6) new appropriations for trust management are necessary to provide adequate funding and staffing for trust management.

Charles Colombe, President of the Rosebud Sioux Tribe, requested that any settlement of the Cobell case be paid from the U.S. permanent judgment appropriation rather than DOI/BIA appropriations. The current practice of spending appropriation dollars on defending the Federal government in Cobell has directly impacted all tribes because, Colombe described, it has resulted in drastic funding cuts to essential programs while increasing the budget for the Office of Special Trustee. President Colombe also explained his experience with trust lands and the need for trust reform, particularly at Rosebud where the BIA created the Tribal Land Enterprise, or “TLE,” which President Colombe described as a “black hole for the financial interests of individual certificate holders.” Because of this, he requested the Committee to conduct a GAO audit, which the Committee seemed genuinely interested in doing. President Colombe also made several specific recommendations for a trust administration fix, including: (1) ensure DOI leadership is proactive; (2) direct DOI to actively listen to tribes; (3) maximize decision-making authority at the local level; (4) protect funds designated to provide services at the agency level; and (5) define terms of DOI accountability. In closing, President Colombe requested the Committee to prioritize a voluntary and fair legislative settlement process that involves the collaboration of all stakeholders.

Finally, Keith Harper, attorney on behalf of Elouise Cobell, laid out an appropriate approach to trust reform, including clarity of trust duties and standards, clarity regarding complete enforceability in courts and meaningful remedies, and independent oversight. All of the tribal witnesses agreed that Indian country needs meaningful trust reform brought about through consultation.

Off-Reservation Gaming. On March 17, the House Resources Committee held a full committee oversight hearing discuss the Committee’s draft bill amending the Indian Gaming Regulatory Act (IGRA) to revise the process for acquiring land into trust for gaming purposes. IGRA establishes a general policy that Indian Tribes should only conduct gaming on lands held in trust by the United States as of the enactment of IGRA on October 17, 1988. However, Congress recognized and accounted for historical circumstances such as diminished reservations, terminated Tribes, landless Tribes, and Indian land claims and established in IGRA certain exceptions to authorize Tribes to conduct gaming activities on “after acquired” lands under certain circumstances.

Current Law

Accordingly, Section 20 of IGRA, 25 U.S.C. § 2719, sets forth the following categories of exceptions which authorize gaming on “after acquired” lands:

(1) lands within or contiguous to an existing reservation;

(2) certain former reservation lands in Oklahoma;

(3) former reservation lands for Tribes with no reservations as of the date of the law’s enactment within the Tribe’s last recognized reservation and in a state where the Tribe is currently located;

(4) lands that are approved under the “two part determination”;

(5) lands acquired as part of a land claims settlement;

(6) lands acquired as part of an initial reservation of a newly recognized Tribe acknowledged by the Secretary under that Federal acknowledgement process;

(7) lands acquired as part of the process for newly restored Tribes.

IGRA also set forth specific provisions for the St. Croix Chippewa and the Miccosukee Tribe. The Committee draft bill does not on its face amend the process for the first three categories of exceptions nor would it affect the Tribe specific provisions.

Under the two part determination, IGRA currently (1) requires the Secretary to determine whether gaming on these “newly acquired lands” would be both in the best interest of the applicant Indian tribe and its members and would not be detrimental to the surrounding community, and (2) requires the concurrence of the Governor of the affected state with the Secretary’s determination. IGRA requires the Secretary in making her determination to consult with the applicant Tribe, the appropriate state and local officials as well as “nearby” Indian tribes. The Governor’s concurrence is not required for lands acquired as part of a land claims settlement or for newly recognized or restored Tribes.

Committee Draft Bill

The Committee draft bill would delete the two-part secretarial consultation process and nullify pending applications pending under this process, affecting about a dozen that have been filed and are in various stages of the process. In addition, the draft bill would alter the law’s treatment of the initial reservations of newly acknowledged, restored, and currently federally recognized but landless Tribes.

Similarly, the draft bill would delete the exception for gaming on lands taken into trust as part of an Indian land claim settlement and seems to preclude the use of such lands for gaming purposes. The draft bill would also limit Tribes to gaming on lands in the State in which it is currently located. This provision would prohibit the State of New York from negotiating Tribal-State gaming compacts with the Oneida Tribe of Wisconsin, Stockbridge-Munsee Tribe, and the Seneca-Cayuga Tribe and prohibit efforts by other Oklahoma tribes to return to their aboriginal areas.

The bill would treat the initial reservations of newly acknowledged Tribes differently from those of legislatively restored and landless Tribes. A newly acknowledged Tribe would simply need the Secretary to determine that its initial reservation is “within the State” where the Indian tribe has its primary geographic, social, and historical nexus to the land.”

Legislatively restored and landless Tribes would need this same determination, and would have to undergo an expanded two-part determination process. Under the new process, the Secretary would determine whether the gaming activity is in the best interest of the Tribe and not detrimental to the surrounding community. The Tribe would also have to gain the approval of “the State, city, county, town, parish, village, and other … political subdivision of the State with authority over land that is … contiguous to” the newly acquired lands (the Tribe’s initial reservation). The degree of state involvement in the proposed language gives rise to the question of whether state legislative action may be required to approve new trust land acquisitions.

The Committee draft bill appears to alter the treatment of landless Tribes with respect to gaming conducted on their initial reservation established after October 17, 1988, where such initial reservation is “within the tribe’s last recognized reservation within the State or States within which the tribe is presently located.” The draft bill would both require the Secretary to find that the initial reservation is within the State where the Tribe is primarily located and that gaming would benefit the Tribe. And, the Tribe would be required to secure the approval of the State and local community. Under the draft bill, the location of their initial reservation would no longer be limited to land “within the tribe’s last recognized reservation” and conceivably be located anywhere in the State.

The centerpiece of the draft bill is the creation of “Indian Economic Opportunity Zones” (IEOZ). Accordingly, the draft bill authorizes the Secretary to establish two IEOZs in each State with Indian gaming either on an existing reservation or on an off-reservation location but within the same state. For on-reservation IEOZs, Tribes may participate if:

(1) the Secretary finds that such participation is in the best interests of all of the participating Tribes;

(2) the host-Tribe receives no “funds related to the gaming activities” of other participating Tribes, other than no more than 10% of gross revenues as a management fee to operate the IEOZ facility;

(3) the host-Tribe provides no financial support to any other participating Tribe;

(4) the State and contiguous units of local government approve of the IEOZ;

(5) the host-Tribe does not have an ownership interest in any other gaming facility on any other Indian lands.

A Tribe would be permitted to partner/host another Tribe or Tribes within the State on a separate gaming facility on the host-Tribe’s reservation. However, the draft bill would place limits on what the host-Tribe can do on its reservation with that facility. It would also require the State and nearby units of local government to approve of the on-reservation partnership.

Off-reservation IEOZs would have no host Tribes. The newly acquired land would be placed into trust for the benefit of all participating Tribes. The State and contiguous units of local government would have to approve of the off-reservation IEOZ. The off-reservation zone would also require the approval of Tribes located within 200 miles of the proposed site. No Tribe participating in the off-reservation IEOZ could have an ownership interest in another gaming facility on Indian lands – including its own current reservation.

Summary of Hearing

Chairman Pombo opened the hearing with a statement regarding his intentions with regard to the draft bill. He discussed his desire to increase the input of local communities in the process of determining whether gaming facilities would be placed in their communities, but also his desire to allow tribes who were currently not able to successfully operate gaming in their current locations the ability to develop off-reservation facilities in communities that desires them. He noted that since IGRA was passed, only three tribes have ever successfully used the two part determination to open off-reservation facilities. He further stated his intent that the bill be discussed fully in Indian Country, and his desire to work with tribes to improve the bill.

Congressman George Miller (D-CA) reiterated the statistics regarding the number of successful off-reservation facilities that have opened, and also expressed concern with the bill, as drafted. There were no other opening statements because the Committee members were scheduled to cast votes throughout the afternoon and the Chairman wanted to be sure to get the witness testimony on the record.

The Committee received testimony from:

• Richard Forster, Chairman, Amador County (CA) Board of Supervisors

• Lori Jaimes, Chairperson, Greenville Rancheria of Maidu Indians (CA)

• Kevin Leecy, Chairman, Bois Forte Reservation (MN)

• Jean Quan, Councilmember, Oakland City Council

• J. Kurt Luger, Executive Director, Great Plains Indian Gaming Association

• James T. Martin, Executive Director, United South and Eastern Tribes, Inc.

• Mark Van Norman, Executive Director, National Indian Gaming Association

During the first panel, Ms. Jaimes told the Committee that IGRA should not be amended to allow local governments veto power over Indian self-determination and economic development. Both Forster and Quan argued in favor of local government input and control because of the concern over the impacts of gaming facilities. Forster told the Committee that “checks and balances” are required because he feels the Federal government is avoiding the correct procedures requiring local participation. Rep. Kildee (D-MI), who helped author IGRA, pointed out that IGRA only requires the approval of the State governor and questioned why local units of government, which are creatures of the state, should have any authority over decisions regarding tribes. Rep. Frank Pallone (D-NJ) agreed with Kildee’s remarks, recognizing local control and input as an infringement on tribal sovereignty. In fact, Rep. Pallone believes there is no problem with off-reservation gaming and that it is an issue overblown by the media.

Rep. Steve Pearce (R-NM) expressed concern with a tribe in New Mexico that is attempting to build a casino 300 miles away from its reservation in an area where there is widespread opposition from the affected local communities. Rep. Pearce inquired whether a tribe should be allowed to build a casino in light of the broad opposition and the apparent lack of aboriginal connection it has to the land.

Tim Martin explained the position of the United Southeastern Tribes which opposes “out-of-state” Tribes seeking to acquire land into trust for gaming purposes. Martin expressed concern over tribes seeking to cross state lines to take advantage of lucrative markets, noting that “reservation shopping” runs contrary to IGRA, and placed the blame on greedy developers. Martin fears out-of-state tribes that agree to state and local jurisdiction in return for the ability to establish out-of-state facilities impact the tribes within that state and set bad precedent. Rep. Kildee asked about whether USET had a position with regard to in-state Tribes seeking to acquire lands into trust away from their existing Reservations. Martin stated that USET does not have a position, but he raised the issue of having a aboriginal connection to the lands.

Kurt Luger told the Committee that gaming represents jobs, not revenues and that IGRA has created employment, economic, social and governmental progress for Tribes. On behalf of the Great Plains Indian Gaming Association, Luger stressed the importance of thorough consultation by the Secretary of the Interior with local governments and “neighboring” Indian tribes under existing law for all applications to take after-acquired lands into trust in North Dakota, or even near the North Dakota border in Minnesota, South Dakota or Montana. Because the Tribes in the Great Plains live in areas that are large geographically, with small populations, Lugar explained that their Tribes often draw their customer base from a substantial distance away. He thanked Chairman Pombo for distributing the proposed bill in draft form to allow for broad and deliberative government-to-government discussions with the affected Tribes. He further asked that the bill move forward through the regular hearing process with the consensus of tribal governments and without surprise amendments on the House or Senate floor or in the Conference Committee that are not relevant to this issue or that undercut tribal rights to conduct Indian gaming as an exercise of Indian sovereignty.

Rep. Pombo asked whether tribes would have a problem with Economic Opportunity Zones located on existing reservation land where the “local government” approval required is that of the local tribe, not of the local community. Luger agreed that if two tribes agree that a zone is in their best interest, then GPIGA would not have a problem with it.

Mark Van Norman, on behalf of NIGA, explained the background of IGRA and the exceptions for after acquired lands, including the provisions designed to redress historical injustices (land claims, restored tribes, initial reservations). He cautioned the Committee that tribal governments would, as a fundamental principle, work to ensure that the integrity of IGRA is maintained in any legislation. And, he pointed out to the Committee that the Committee bill would eliminate the current provisions permitting gaming on lands reacquired in the settlement of land claims. He explained to the Committee that the NIGA/NCAI Task Force on Indian Gaming was proceeding to hold a series of task force meetings on off-reservation gaming and that NIGA would report back to the Committee.

Additional questions to the witnesses will be submitted in writing by House Resource Committee members and witnesses will submit answers within two weeks.

On April 5, 2005, the Senate Committee on Indian Affairs held a hearing to discuss Senator Feinstein’s legislation , S. 113, affecting the Lytton Band of Pomo Indians off-reservation casino in California, which would modify the date as of which certain tribal land of the Lytton Band is deemed to be held in trust. The bill would require the Lytton Band to undergo the same regulatory oversight process for gaming as any other tribe that acquired land after October 17, 1988 – the date the Indian Gaming Regulatory Act was enacted. If the legislation is approved, the Lytton tribe would be required to go through a two-part determination process that requires both the Secretary of Interior and a State’s Governor to sign off on plans to build a gaming facility. This process also provides for consultation with local communities and nearby tribes prior to its completion.

FY2006 Bureau of Indian Affairs Appropriation Hearing. On March 17, the House Appropriations Subcommittee on Interior held a hearing on the FY2006 Bureau of Indian Affairs (BIA) Budget Request. Members present during the hearing were: Congressman John Taylor (R-NC), Chairman; Congressman Ernest Istook (R-OK); Congressman Robert Aderholt (R-AL); Congressman Michael Simpson (R-ID); Congressman Norm Dicks (D-WA), Ranking Minority; Congressman James Moran (D-VA); and Congressman Maurice Hinchey (D-NY). Issues of concern within hearing exchanges:

• Chairman Taylor expressed serious concerns over the continued high cost of Trust Reform, especially as advocated by tribes, in such difficult budget times;

• Congressman Norm Dick’s (Ranking Democrat, WA) remarked over inadequacy of federal Judgment Fund for trust reform solution as pressed by tribes;

• Congressman Istook’s questioning the continuation of a trust and fiduciary relationship;

• Administration reply to Istook regarding questioning need for a continued trust relationship;

• Congressman Hinchey’s expressed concerns over New York Indian Land Settlement and provision for casino; especially for non-NY based tribal claimants. Congressman Hinchey’s remarks concerning Pombo draft off-reservation legislation and request to Administration for private meeting on this point, as it related to his New York concerns.

Witness for the Administration was Mr. James Cason, Associate Deputy Secretary, Department of the Interior, also designated acting Assistant Secretary for Indian Affairs. Mr. Cason was accompanied by Mr. John D. Trezise, DOI Budget Director. Mr. Cason did not read his prepared statement but submitted it into the hearing record. He began with a broad overview of the FY2006 budget decision process and overall levels. Mr. Cason’s remarks were 90% focused on the issue of Indian Trust Reform. Subcommittee chairman and the ranking minority Member were very receptive to Mr. Cason’s remarks and suggestions on promoting the Interior trust reform plan over the court order historical accounting methodology for resolving this dispute. The meeting adjourned when House floor vote bells began to ring. During this hearing only Trust Reform costs, BIA Budget Reorganization, Indian Off-Reservation legislative proposal and the Indian school construction reductions were discussed.

Senate Indian Affairs Committee Oversight Hearing on S.113. A hearing was held on Tuesday, April 5, 2005 on S.113, a bill to modify the date as of which certain tribal land of the Lytton Rancheria of California is deemed to be held in trust. The bill was introduced by Senator Dianne Feinstein (D-CA). Chairman McCain (R-AZ) voiced concern about the issue but gave no clear indications on whether he would support or oppose the bill. Vice Chairman Inouye (D-HI) voiced clear opposition to the bill. No other members of the Committee gave an indication of their position on the bill. The witness list included:

• Senator Dianne Feinstein;

• Congressman George Miller;

• Mr. George T. Skibine, Acting Deputy Assistant Secretary for Policy and Economic Development for Indian Affairs, U.S. Department of the Interior, Washington, DC;

• The Honorable Sharon J. Brown, Councilmember, City of San Pablo, San Pablo, California Accompanied by: MR. BROCK ARNER, City Manager, City of San Pablo, San Pablo, California;

• The Honorable Margie Mejia, Chairperson, Lytton Rancheria, Santa Rosa, California;

• The Honorable Loni Hancock, Assembly Member, 14th Assembly District, Sacramento, California; The Honorable Mark Macarro, Chairman, Pechanga Band of Luiseno Indians, Temecula, California

Tribal Leaders’ Meetings

Tribal Leaders Budget Briefing and Strategy Meeting

On Monday, February 14, 2005, tribal leaders and representatives met to discuss the President’s 2006 budget and to propose ideas for coordinating a strategy to support the goals of Indian Country. Joan Huffer, Center on Budget and Policy Priorities, explained the broader context of the budget as a strategy-oriented focus on reducing federal responsibility and federal programs to reduce the federal deficit. In the State of the Union address, the President said that the budget would call for reducing or eliminating more than 150 federal programs that fail to get results, are duplicative, or fail to fulfill essential priorities. The current federal deficit is a result of tax cuts, defense and homeland security, and domestic spending, including entitlements and discretionary spending. Reductions to entitlement programs will have large impacts in Indian Country because it will primarily affect food stamps and Agriculture, which contains many farm and nutrition programs. Entitlement or spending caps will be expected for the 2006 budget to control the rate of growth.

Tribal Organizations Mobilize in Washington D.C.

In February, the National Indian Gaming Association (NIGA), the National Indian Education Association (NIEA), the American Indian Higher Education Consortium (AIHEC), the Native American Indian Housing Council (NAIHC), and the National Congress of American Indians (NCAI) mobilized efforts in Washington D.C. to begin advocating their interests on Capitol Hill, the federal agencies and the White House.

NIGA kicked off their legislative summit with a press conference at the National Press Club with the unveiling of its recent “Analysis of Economic Impact of Indian Gaming in 2004” report which highlights that Indian gaming generated $18.5 billion annually, generated an additional $2.5 billion for the hospitality and entertainment industry, created more than 550,000 jobs, generated $5.5 billion in federal taxes (thereby reducing federal unemployment and welfare payments by $1.4 billion), generated $1.8 billion in state government revenue, and has successfully help rebuild and revitalize Indian communities including education, housing, health care, police and fire protection, child and elder care, road, water and wastewater systems and services, as intended by the Indian Gaming Regulatory Act. NIGA’s legislative summit featured a host of Congressman and Senators who pledged to support tribal sovereignty and protect Indian gaming. NIGA combined forces with NIEA on the second day of its Legislative Summit.

AIHEC was also active on Capitol Hill and directed its focus on restoring the proposed $10 million budget cut included in the President’s budget. AIHEC honored Senator Conrad Burns (R-MT), Chairman of the Interior Appropriations Committee and Senator Byron Dorgan (D-ND), Ranking Member of the Committee. Both pledge to continue to support tribal colleges and to restore the cuts proposed in the budget.

NAIHC’s efforts on Capitol Hill included press coverage in the Washington Post which featured Native American soldiers who advocated for Congress to restore the proposed $107 million reduction for Indian housing included in the President’s budget. The soldiers, from the Cheyenne River Sioux Tribe in South Dakota, and the Navajo Nation in New Mexico, recounted their experiences in Iraq and explained that the conditions there are better than the ones on the Indian Reservations where they are returning. They pled to Congress and the President to recognize their service to the country and to provide adequate housing for them and others who are lucky to return home alive.

The NCAI Winter Executive Council Session brought in numerous tribal leaders and representatives to discuss concerns for the 109^th Congress. Senator McCain addressed the NCAI membership on the first day of the conference, laying out the Committee on Indian Affairs’ priorities for the 109^th Congress. McCain emphasized budget concerns and the problem with cuts to self-governance, recognizing that self-governance works. However, he cited the Cobell litigation as impacting everything the Committee will attempt to do because the final cost is expected to be upwards of $12 billion.

Tax Exempt Bonds, which are important for tribes to use in building infrastructure, were also addressed during the conference. Tribal governments are currently held to a stringent “essential government function” test under Section 7871 of the federal tax code, preventing tribes from accessing funding available to private businesses. Legislation was introduced last year and moved quickly through the Senate but stopped in the House because of ill-conceived notions of the bill. Opponents holding up the bill argued that only gaming tribes, rich tribes, bankers and developers would benefit and that the bonds were an inefficient subsidy for tribal economic development. A tax-exempt bond provision is expected to be reintroduced this year.

“National Working Group on Trust Reform/ Settlement” Established

On Thursday, March 3, Tribal leaders met in Washington, D.C. to discuss Congress’s plans for taking up settlement of the Cobell class action lawsuit and trust reform legislation, and to begin developing a tribal unified strategy to address these issues. Many tribal leaders have stressed the importance of trust reform and the need for all of Indian country to work together of its widespread impacts in Indian country. Tribal leaders agree that any legislation developed should reaffirm the standards for management of Indian trust land and support tribal self-determination.

David Mullon and Patricia Zell provided an overview of the Senate Committee on Indian Affairs’ plans for the March 9 hearing. Zell, Democratic staff director to the Committee, noted the enormous pressure Congress has placed on the Committee to bring resolution to the trust issue. Both Mullon and Zell emphasized the importance of working on trust reform immediately because Chairman McCain is willing to commit his resources and staff to the effort, but he is expected to resign as Chairman in 2007. In addition to McCain’s impending move to takeover the top position on the Armed Services Committee, appropriators are increasingly adding pressure to the Committee to “fix” the trust issues. Marie Howard and Tom Brierton discussed the position of the House Committee on Resources. The Committee also faces intense pressure from House appropriators, even more so than in the Senate. Chairman Pombo feels he needs to show concrete progress before appropriators decide to move forward without tribal input. As a result, the Committee has a new sense of urgency for a legislative settlement and fix to the trust issue.

Also during the March 3 meeting, NCAI President Tex Hall announced a newly appointed Special Committee on trust reform/settlement legislation formed in conjunction with the Inter-Tribal Monitoring Association (ITMA). Some tribal leaders expressed disdain for the new committee, noting that the individuals appointed are not representative of Indian country, primarily leaving out the Northwest and Northeast tribes. However, NCAI leaders assured that the meetings and process would be open to all tribes and input would be accepted from everyone.

On March 16, ITMA held an emergency meeting in Washington, DC to discuss its strategy for the “National Working Group on Trust Reform/Settlement,” established March 3^rd. Jim Gray, ITMA President, also intends to get all inter-tribal organizations that deal with resources together to support and approve a position on trust reform. ITMA and NCAI are encouraging tribal leaders to work closely together because tribes will have a very short window of time to address trust reform.

The Senate Committee on Indian Affairs will take a serious look at trust reform legislation as its main priority this session, with no interest in a settlement bill without a trust reform fix. As of March 16, staff have already begun working in a bipartisan manner to discuss substantive legislation, according to Sara Garland, Minority Staff Director. David Mullon, Majority General Counsel, is hopeful that the Committee can accomplish good tribal outreach and assistance in forming the principles and essential resources that tribes feel need to be incorporated into the bill. Senator McCain instructed the Committee staff to draft a bill based on the needs and desires of tribes expressed through staff consultations and input from Indian country. The draft will not be a place-holder for anything drafted by the tribes, but will serve as a starting point and the Committee will seriously consider any consensus bill developed by tribes. The only ideas for a draft that the Committee has so far are those concepts repeatedly expressed during the March 9^th hearing.

Accordingly, Committee staff will be relying on ITMA and NCAI as a source of tribal input and as strong tribal leadership that can guide all tribal leaders through the issues that the tribes do not agree on. The Committee does not intend to include tribal claims in the discussion because it would be too difficult, too large to manage, and nearly impossible to find an acceptable resolution within the two-year time frame. On the House side, Rep. Pombo has only general concepts of trust reform and has not yet begun to write any legislation. The House Resources Committee may also be pressured by appropriators to get something done by the summer and may look toward the working group for suggestions in the near future.

The Committee could move forward with legislation as early as May, or as late as August, with hopes of holding a hearing as far in advance of the August recess as possible. The Committee intends to send a strong signal to Congress by showing serious consideration of trust reform because of the remote possibility that Appropriations will start in on its own resolution in the form of a rider. As a result of the urgency, the ITMA-NCAI technical working group will develop a draft of general principles and issues, incorporating all aspects of trust and resources, for tribal input. Meetings began on March 31 in Washington, DC and will be followed by 5 Regional Meetings in April and May. Last week the ITMA NCAI trust reform task force met in San Diego, CA to resume discussion on these issues.

Tribes Assemble to Discuss Off-Reservation Gaming

Tribes are divided over the issue of off-reservation gaming, some are seeking acquisitions while others have significant concerns. On February 10, USET passed a resolution requesting Congress to prohibit tribes from opening casinos in states where they do not have reservations. During the National Congress of America Indians (NCIA) Executive Council meeting in Washington, D.C., Tex Hall, NCAI President and Ernie Stevens, Jr., Chairman of the National Indian Gaming Association, announced that NCAI and NIGA will hold a number of forums to provide interested Tribes an opportunity to debate and discuss their views on the issue.

NIGA and NCAI have hosted two tribal leader task force meetings to discuss off-reservation gaming. In the first meeting George Skibene addressed the off-reservation gaming issue in the context of the Department of the Interior and Bureau of Indian Affairs. Although the Department did not testify at last week’s hearing on the Pombo draft legislation, Skibene expects the Department to testify at future hearings. His viewpoint on the off-reservation gaming issue is that those affected most by the prospect of gaming normally resolve the issues on their own and the communities that tend to object to prospective gaming facilities are typically located more than fifty miles away from the planned site, not the surrounding communities. Skibene also highlighted a number of facts downplaying the alleged ‘need’ for legislation that addresses ‘reservation shopping.’ Skibene believes the off-reservation gaming problem is largely a result of developers, who have encouraged deals before any application is submitted to the BIA, generating widespread rumors and local concern that a tribal gaming facility will happen in local communities overnight without consultation or input.

Some tribal leaders suggested establishing regulations for the Section 20 process as a possible alternative to legislation, but others do not believe this would be a realistic alternative. The BIA has tried drafting regulations in the past but the Administration decided not to go forward with them. Similarly, attempts to establish regulations on the Part 151 (land into trust) process, which does not deal with gaming directly, were pulled by the Administration almost immediately after the Department released the proposed regulations.

At both forums, many tribal leaders expressed concerns with the Pombo draft bill presented as-is, in particular, the absence of provisions to codify the Secretary of Interior’s regulations for an alternate compact process. The Seminole case took away the ability to sue a state unless there is a specific waiver of sovereign immunity, giving states an advantage in the ability to compact with tribes. Omitting such a provision may send the wrong message to Congress.

Others share concerns over whether the Pombo bill would negatively impact tribes that have invested a lot of time, money and resources into getting a gaming facility under the current Section 20 process. Still others are highly concerned over the veto power the draft legislation would provide to local units of government. NIGA Executive Director Mark Van Norman stressed concern over the local government issue and views it as treating tribes the same as local governments. Van Norman believes that local governments do not want to work with tribes, they want to control tribes, which is unacceptable for tribes. The state should be the one that works with the local government, despite existing requirements that the Secretary of Interior consult with local governments.

In general, Rep. Pombo feels the need to implement a national policy and thus have uniform application of the legislation. They believe the current process has too many grey areas, resulting in a number of parties taking advantage of tribes. Rep. Pombo believes that under IGRA, money is tribal government money and should not be going to the state as a stream of revenue because he considers that a form of taxation. They believe that the draft legislation will restore tribal balance because it is an attempt to address off-reservation agreements leading tribes to give up certain aspects of their sovereignty. As a result, there will be a longer process to the legislation and tribes should not expect quick introduction of the bill. Currently, there is a huge incentive at the BIA not to make decisions or at least postpone decisions because of the number of lawsuits and investigations arising from any discretion on their decisions and thoughts. Rep. Pombo is also looking for consensus from NIGA and NCAI on as many points as possible.

The next meeting will be held on May 25 at the Great Plains Indian Gaming Association meeting in Bloomington, MN, and in June at NCAI in Oneida, WI.

Indian Legislation Introduced

First Quarter 2005

Senate Bills

1. S. 57 (Allard, R-CO). Sand Creek Massacre National Historic Site Trust Act of 2005. A bill to further the purposes of the Sand Creek Massacre National Historic Site Establishment Act of 2000; to the Committee on Energy and Natural Resources on January 24, 2005. Status: Senate committee filed report on March 8, 2006, S.Rept. 109-20, after favorable committee vote.

2. S. 68 (Inouye, D-HI). Native Hawaiian Medicaid Coverage Act of 2005. A bill to amend title XIX of the Social Security Act to provide 100 percent reimbursement for medical assistance provided to a Native Hawaiian through a federally-qualified health center or a Native Hawaiian health care system; to the Committee on Finance on January 24, 2005.

3. S.140 ((Rodham-Clinton, D-NY). Domestic Defense Fund Act of 2005. A bill to provide for domestic defense fund to improve the Nation’s homeland defense, and for other purposes; to the Committee on Homeland Security and Governmental Affairs on January 24, 2005. [Note: Includes grants to states, units of general local government and Indian tribes.]

4. S. 147 (Akaka, D-HI). Native Hawaiian Government Reorganization Act of 2005. A bill to express the policy of the United States regarding the United States relationship with Native Hawaiians and to provide a process for the recognition by the United States of the Native Hawaiian governing entity; to the Committee on Indian Affairs on January 25, 2005. Status: Senate Committee ordered bill reported on March 9, 2005.

5. S. 154 (Johnson, D-SD). A bill to grant a Federal charter to the National American Indian Veterans, Incorporated; to the Committee on the Judiciary on January 25, 2005.

6. S. 156 (Bingaman, D-NM). Ojito Wilderness Act. A bill to designate the Ojito Wilderness Study Area as wilderness, to take certain land into trust for the Pueblo of Zia, and for other purposes; to the Committee on Energy and Natural Resources on January 25, 2005 Status: Senate committee filed report on February 28, S.Rept. 109-13, after favorable committee vote on February 9, 2005.

7. S. 168 (Bingaman, D-NM). Indian School Bus Route Safety Reauthorization Act of 2005. A bill to reauthorize additional contract authority for States with Indian reservations; to the Committee on Environment and Public Works on January 26, 2005.

8. S. 214 (Bingaman, D-NM). United States-Mexico Transboundary Aquifer Assessment Act. A bill to authorize the Secretary of the Interior to cooperate with States on the border with Mexico and other appropriate entities in conducting a hydrogeologic characterization, mapping and modeling program for priority transboundary aquifers, and for other purposes; to the Committee on Energy and Natural Resources. Status: Senate committee filed a report on March 7, S.Rept. 109-17, after favorable committee vote on February 9, 2006.

9. S. 215 (Inouye, D-HI). Native Hawaiian Health Care Improvement Reauthorization Act of 2005. A bill to amend the Native Hawaiian Health Care Improvement Act to revise and extend that Act; to the Committee on Indian Affairs on January 31, 2005

10. S. 216 (Inouye, D-HI). A bill for the relief of the Pottawatomi Nation in Canada for settlement of certain claims against the United States; to the Committee on the Judiciary on January 31, 2005.

11. S. 279 (Domenici, R-NM). A bill to amend the Act of June 7, 1924, to provide for the exercise of criminal jurisdiction; to the Committee on Indian Affairs on February 3, 2005.

12. S. 374 (Thune, R-SD). Tribal Parity Act. A bill to provide compensation to the Lower Brule and Crow Creek Sioux Tribes of South Dakota for damage to tribal land caused by Pick-Sloan projects along the Missouri River; to the Senate Committee on Indian Affairs on February 14, 2005.

13. S. 412 (Dorgan, D-ND). ANA Reauthorization Act. A bill to reauthorize the Native American Programs Act of 1974; to the Committee on Indian Affairs on February 16, 2005

14. S. 437 (Levin, D-MI). Grand River Band of Ottawa Indians of Michigan Referral Act. A bill to expedite review of the Grand River Band of Ottawa Indians of Michigan to secure a timely and just determination of whether that group is entitled to recognition as a Federal Indian tribe; to the Committee on Indian Affairs on February 17, 2005.

15. S. 449 (Murkowski, R-AK). A bill to facilitate shareholder consideration of proposals to make Settlement Common Stock under the Alaska Native Claims Settlement Act available to missed enrollees, eligible elders, and eligible persons born after December 18, 1971, and for other purposes; to the Committee on Indian Affairs on February 17, 2005.

16. S. 474. (Smith, R-OR) Mark O. Hatfield-Elizabeth Furse Scholarship and Excellence in Tribal Governance Act of 2005. A bill to establish the Mark O. Hatfield-Elizabeth Furse Scholarship and Excellence in Tribal Governance Foundation, and for other purposes; to the Committee on Indian Affairs on February 28, 2005.

17. S. 475 (Johnson, D-SD). Native American Housing Enhancement Act of 2005. A bill to amend the Native American Housing Assistance and Self-Determination Act of 1996 and other Acts to improve housing for Indians; to the Committee on Indian Affairs on February 28, 2005.

18. S. 477 (Dorgan, D-ND). Tribal Government Amendments to the Homeland Security Act of 2002. A bill to amend the Homeland Security Act of 2002 to include Indian tribes among the entities consulted with respect to activities carried out by the Secretary of Homeland Security, and for other purposes; to the Committee on Homeland Security and Governmental Affairs on March 1, 2005

19. S. 480 (Allen, R-VA). Thomasina E. Jordan Indian Tribes of Virginia Federal Recognition Act of 2005. A bill to extend Federal recognition to the Chickahominy Indian Tribe, the Chickahominy Indian Tribe—Eastern Division, the Upper Mattaponi Tribe, the Rappahannock Tribe, Inc., the Monacan Indian Nation, and the Nansemond Indian Tribe; to the Committee on Indian Affairs on March 1, 2005.

20. S. 504 (Hagel, R- NE). Public Health Preparedness Workforce Development Act of 2005. A bill to amend the Public Health Service Act to establish a scholarship and loan repayment program for public health preparedness workforce development to eliminate critical public health preparedness workforce shortages in Federal, State, local, and tribal public health agencies; to the Committee on Health, Education, Labor, and Pensions on March 3, 2005.

21. S. 506 (Hagel, R-NE). Public Health Preparedness Workforce Development Act of 2005. A bill to amend the Public Health Service Act to establish a scholarship and loan repayment program for public health preparedness workforce development to eliminate critical public health preparedness workforce shortages in Federal, State, local, and tribal public health agencies; to the Committee on Health, Education, Labor, and Pensions on March 3, 2005.

22. S. 535 (Inouye, D-HI). Native American Connectivity Act. A bill to establish grant programs for the development of telecommunications in Indian Country; referred to the Committee on Indian Affairs on March 7, 2005.

23. S. 536 (McCain, R-AZ) . Native American Omnibus Act of 2005. A bill to make technical corrections to laws relating to Native Americans, and for other purposes; referred to the Senate Committee on Indian Affairs on March 7, 2005.

[Note: This bill resurrects a controversial two-word change to the Native American Graves Protection Act (NAGPRA) adding “or was” to the definition of Native American to ensure remains not linked to present-day tribes can still be repatriated. The provision makes it easier for tribes to reclaim ancient remains but was the source of a number of holds on the technical bill at the end of last session. Among the bill’s sections are provisions for the reauthorization of DOJ Tribal Justice Programs; reauthorization Administrative on Native Americans (ANA) and the HHS Inter-Departmental Council of Native American Affairs; a Pilot Program for Enhancing Tribal Border Prepardeness; and the Navajo Sage Memorial Hospital as a 638 contract for FTCA coverage.]

Status: Bill was ordered favorably reported without amendment, by the Senate Committee on Indian Affairs on March 9, 2005.

24. S. 598 (Inouye, D-HI). NAHASDA Reauthorization Act. A bill to reauthorize provisions in the Native American Housing Assistance and Self Determination Act of 1996 relating to Native Hawaiian low-income housing and Federal loan guarantees for Native Hawaiian housing; referred to the Committee on Indian Affairs on March 10, 2005.

25. S. 630 (Dodd, D. –CT). – Tribal Acknowledgement and Indian Bureau of Enhancement Act of 2005. A bill to establish procedures for the acknowledgement of Indian tribes; referred to the Senate Committee on Indian Affairs on March 15, 2005.

House Bills

1. H.R. 16 (Hayworth, R-AZ). Tribal Labor Relations Restoration Act of 2005. A bill to clarify the rights of Indians and Indian tribes on Indian lands under the National Labor Relations Act; to the Committee on Education and the Workforce on January 4, 2005.

2. H.R. 21 (McIntyre, D-NC). Lumbee Recognition Act. A bill to provide for the recognition of the Lumbee Tribe of North Carolina, and for other purposes; to the Committee on Resources on January 4, 2005.

3. H.R. 109 (Herseth, D-SD). Tribal Parity Act. A bill to provide compensation to the Lower Brule and Crow Creek Sioux Tribes of South Dakota for damage to tribal land caused by Pick-Sloan projects along the Missouri River; to the Committee on Resources on January 4, 2005.

4. H.R. 154 (Menendez, D-NJ). State and Local Reservist First Responders Assistance Act of 2005. To authorize the Secretary of Homeland Security to make grants to reimburse State and local governments and Indian tribes for certain costs relating to the mobilization of Reserves who are first responder personnel of such governments or tribes; to the House Committees on Transportation & Infrastructure, the Energy & Commerce; and the Judiciary on January 4, 2005.

5. H.R. 158 (Millender-McDonald, D-CA). A bill to direct the Secretary of Education to conduct a study of the rate at which Native Americans and students who reside in American Samoa, the Northern Mariana Islands, and Guam drop out of secondary schools in the United States, and for other purposes; to the Committee on Education and the Workforce on January 4, 2005.

6. H.R. 159 (Millender-McDonald, D-CA). Minority Populations Diabetes Prevention and Control Act of 2005. A bill to provide, with respect to diabetes in minority populations, for an increase in the extent of activities carried out by the Centers for Disease Control and Prevention and the National Institutes of Health; to the Committee on Energy and Commerce on January 4, 2005.

7. H.R. 309 (Abercrombie, D-HI). Native Hawaiian Government Reorganization Act of 2005. To express the policy of the United States regarding the United States relationship with Native Hawaiians and to provide a process for the recognition by the United States of the Native Hawaiian governing entity; to the Committee on Resources on January 25, 2005.

8. H.R. 331(Hayworth, R-AZ). Governmental Pension Plan Equalization Act of 2005. A bill to amend the Internal Revenue Code of 1986 and the Employee Retirement Income Security Act of 1974 to clarify that federally recognized Indian tribal governments are to be regulated under the same government employer rules and procedures that apply to Federal, State, and other local government employers with regard to the establishment and maintenance of employee benefit plans; to the Committee on Ways and Means, and in addition to the Committee on Education and the Workforce, for a period to be subsequently determined by the Speaker, in each case for consideration of such provisions as fall within the jurisdiction of the committee concerned on January 25, 2005.

9. H.R. 374 (Dicks, D-Wash). A bill to direct the Secretary of the Interior to take certain tribally-owned reservation land into trust for the Puyallup Tribe; to the Committee on Resources on January 26, 2006.

10. H.R. 429 (Udall, D-NM). Indian School Bus Route Safety Reauthorization Act of 2005. A bill to reauthorize additional contract authority for States with Indian reservations; to the Committee on Transportation and Infrastructure on January 26, 2005.

11. H.R. 464 (Faleomavaega, D-AS). Indian Tribal Federal Recognition Administrative Procedures Act of 2005. A bill to provide for administrative procedures to extend Federal recognition to certain Indian groups, and for other purposes; to the Committee on Resources on January 25, 2005.

12. H.R. 469 (Kolbe, R-AZ). United States-Mexico Transboundary Aquifer Assessment Act. To authorize the Secretary of the Interior to cooperate with the States on the border with Mexico and other appropriate entities in conducting a hydrogeologic characterization, mapping, and modeling program for priority transboundary aquifers, and for other purposes; to the House Resources Committee on February 11, 2005.

13. H.R. 481 (Musgrave, R-CO). Sand Creek Massacre National Historic Site Trust Act of 2005. A bill to further the purposes of the Sand Creek Massacre National Historic Site Establishment Act of 2000; to the Committee on Resources on February 1, 2005.

14. H.R. 512 (Pombo, R-CA). Tribal Federal Recognition. A bill to require the prompt review by the Secretary of the Interior of the longstanding petitions for Federal recognition of certain Indian tribes, and for other purposes; to the Committee on Resources on February 2, 205. Status: Committee held a hearing on February 10, 2005.

15. H.R. 597 (Sullivan, R-OK). A bill to amend the Internal Revenue Code of 1986 to permanently extend the Indian employment credit and the depreciation rules for property used predominantly within an Indian reservation; to the Committee on Ways and Means on February 2, 2005

16. H.R. 598 (Terry, R-NE) . A bill to amend the Impact Aid program under the Elementary and Secondary Education Act of 1965 to improve the distribution of school construction payments to better meet the needs of military and Indian land school districts; to the Committee on Education and the Workforce on February 2, 2005.

17. H.R. 600 (Udall, D-NM). To clarify issues of criminal jurisdiction within the exterior boundaries of Pueblo lands; to the Committee on Resources on February 2, 2005.

18. H.R. 601 (Udall, D-NM). A bill to amend title 38, United States Code, to provide for the eligibility of Indian tribal organizations for grants for the establishment of veterans cemeteries on trust lands; to the Committee on Veterans’ Affairs on February 2, 2005.

19. H.R. 631 (Grijalva, D-AZ). A bill to provide for acquisition of subsurface mineral rights to land owned by the Pascua Yaqui Tribe and land held in trust for the Tribe, and for other purposes; to the Committee on Resources on February 8, 2005.

20. H.R. 680 (Cannon, R-UT). A bill to direct the Secretary of Interior to convey certain land held in trust for the Paiute Indian Tribe of Utah to the City of Richfield, Utah, and for other purposes; to the Committee on Resources on February 9, 2005. Status: Passed the House on March 14, without any committee action or report; referred to the Senate Committee on Indian Affairs on March 15, 2005.

21. H.R. 794 (Grijalva, D-AZ). Colorado River Indian Reservation Boundary Correction Act. A bill to correct the south boundary of the Colorado River Indian Reservation in Arizona, and for other purposes; to the Committee on Resources on February 14, 2005.

22. H.R. 797 (Renzi, R-AZ). Native American Housing Enhancement Act of 2005. A bill to amend the native American Housing Assistance and Self Determination Act of 1996, and other acts to improve housing programs for Indians; referred to the Committee on Financial Services on February 14, 2005.

23. H.R. 852 (McDermott, D-WA). Duwamish Tribal Recognition Act. A bill to extend Federal recognition to the Duwamish Tribe, and for other purposes; to the Committee on Resources on February 16, 2005.

24. H.R. 854 (McKeon, R-CA). A bill to provide for certain lands to be held in trust for the Utu Utu Gwaitu Paiute Tribe; to the Committee on Resources on February 16, 2005.

25. H.R. 861 (Reyes, D-TX). A bill to amend the Ysleta del Sur Pueblo and Alabama and Coushatta Indian Tribes of Texas Restoration Act to decrease the requisite blood quantum required for membership in the Ysleta del Sur Pueblo tribe; to the Committee on Resources on February 16, 2005.

26. H.R. 933 (Herseth, D-SD). A bill to grant a Federal charter to the National American Indian Veterans, Incorporated; to the Committee on the Judiciary on February 17, 2005.

27. H.R. 1104 (Johnson , R-CT). Schaghticoke Acknowledgment Repeal Act of 2005. A bill to repeal the Federal acknowledgment of the Schaghticoke Tribal Nation; to the Committee on Resources on March 3, 2005.

28. H.J.Res 3 (Davis, R-VA). To acknowledge a long history of official depredations and ill-conceived policies by the United States Government regarding Indian tribes and offer an apology to all Native Peoples on behalf of the United States; to the House Resources Committee on January 4, 2005.

29. H. Con. Res. 5 (Gibbons, R-NV) Concurrent resolution providing for the acceptance of a statue of Sarah Winnemucca, presented by the people of Nevada, for placement in National Statuary Hall, and for other purposes; to the Committee on House Administration on January 4, 2005. Status: passed the House on March 1 and the Senate on March 2, 2005. No further action required.

30. H.Res. 76 (Baca, D0CA) Recognizing and honoring the achievements and contributions of Native Americans of the United States and urging the establishment and observation of a paid legal public holiday in honor of Native Americans, to the House Resources Committee on February 9, 2005.

Executive Branch

Assistant Secretary of Indian Affairs Resigns

On February 12, 2005, Dave Anderson (Lac Courte Oreilles Lake Superior Band of Ojibwa), Assistant Secretary of Indian Affairs, officially resigned after just one year on the job. Anderson was nominated September 12, 2003 and confirmed December 9, 2003 after numerous holds we placed on his nomination. He had recused himself from tribal recognition and Indian gaming issues early in his position. The recusal was highly criticized and often led to calls for Anderson’s resignation. Shortly before his resignation, Anderson had publicly stated his intent to stay through the end of the President’s second term. Jim Cason, formerly the Associate Deputy Secretary and a key player in the trust reform saga, will serve as Acting Assistant Secretary until a nominee is confirmed.

President Bush Re-Nominates William G. Myers III

On February 7, President Bush re-nominated 20 candidates for federal court who were denied confirmation by the Senate during the President’s first term. Included on that list is William G. Myers III, a nominee for a lifetime appointment to the U.S. Court of Appeals for the Ninth Circuit, which hears a very high number of Indian law cases. Myers was originally blocked confirmation by the Senate on July 20, 2004 after a number of tribes and tribal organizations submitted an opposition letter to the Senate. The debate over his nomination was due to Myers’ connections to the ranching and grazing industries, which he has favored over tribes. In February, Earl Devaney of the Department of Interior released a letter that questioned the role that Myers played in a controversial deal with a Wyoming rancher accused of violating Federal laws while Myers led the Office of Solicitor. In prior testimony and interviews, Myers claimed he had not performed any legal work in the case but the letter stated an investigation found that BLM processes were circumvented by the Office of Solicitor. Devaney followed up the letter with a statement saying his report “ascribed no fault whatsoever to Mr. Myers.” Senator Ken Salazar (D-CO), who formerly supported Myers, has since requested President Bush to withdraw Myers’ nomination.

On March 1, the Senate Judiciary Committee held a confirmation hearing on Myers, focusing on Myers’ environmental record. Senator Larry Craig (R-ID), Senator Mike Crapo (R-ID) and Myers all testified. The Committee voted 10-8 on March 17 to send Myers’ nomination to the Senate floor. The impasse over judges is one of the most explosive issues facing the 109^th Congress and Myers was selected as the first test case. Senate Minority Leader Harry Reid (D-NV) has vowed to filibuster at least 7 of the re-nominated candidates. Sixty votes are required to stop filibuster and proceed to a confirmation vote. Republicans hold 55 seats, but Democrats intend to block the nominees unless compelling new information arises. Senate Majority Leader Bill Frist has discussed changing the Senate’s filibuster rules in response to the Democrat’s continued opposition to President Bush’s judicial nominees. However, Democrats have warned that if that happens they will essentially shut down the Senate.

Federal Register Notices

Indian Gaming - Notice of Class III Gaming Compacts taking Effect

Bureau of Indian Affairs (BIA), Department of the Interior

[Federal Register: February 9, 2005 (Volume 70, Number 26)] [Notices] [Page 6903]

Notice is given that the Tribal-State Compacts between the Eastern Shawnee Tribe, the Choctaw Tribe, the Citizen Potawatomi Nation and the State of Oklahoma are considered to have been approved and are in effect. Effective Dates: February 9, 2005.

Law and Order on Indian Reservations. Rescission of Notice of intent to Reassume Judicial Jurisdiction

Bureau of Indian Affairs (BIA), Department of the Interior

[Federal Register: February 15, 2005 (Volume 70, Number 30)] [Notices] [Page 7756-7757]

This notice rescinds the Notice of Intent published by the Bureau of Indian Affairs in the Federal Register on April 29, 2003. Effective Dates: February 15, 2005.

Indian Gaming - Notice of approved Tribal—State Class III Gaming Compact.

Bureau of Indian Affairs (BIA), Department of the Interior

[Federal Register: February 22, 2005 (Volume 70, Number 34)] [Notices] [Page 8608]

This notice publishes the approval of the Tribal—State Compact between the Winnebago Tribe of Nebraska and the State of Iowa. Effective Date: February 22, 2005.

Proposed Rule Regarding 24 C.F.R. Part 1000, the Native American Housing Assistance and Self-Determination Act (NAHASDA); Revisions to the Indian Housing Block Grant Program Formula (February 25, 2005, Vol. 70, No. 37).

This proposed rule would make several revisions to the Indian Housing Block Grant (IHBG) Program allocation formula authorized under section 302 of NAHASDA. Comments due April 26, 2005.

Grant Availability to Federally-Recognized Indian Tribes for Projects Implementing Traffic Safety on Indian Reservations

Bureau of Indian Affairs, Department of the Interior.

[Federal Register: March 7, 2005 (Volume 70, Number 43)] [Notices][Pages 11024-11027]

In accordance with the Surface Transportation and Uniform Relocation Assistance Act of 1987, and as authorized by the Secretary of Transportation, the Bureau of Indian Affairs intends to make funds available to federally-recognized Indian tribes on an annual basis for implementing traffic safety projects. Requests for funds must be received by May 1 of each program year.

Final Rule: Probate of Indian Trust Estates.

Bureau of Indian Affairs, Department of the Interior

[Federal Register: March 9, 2005 (Volume 70, Number 45)] [Rules and Regulations][Pages 11803-11826]

The BIA and the Office of Hearings and Appeals (OHA), Department of the Interior (the Department), are revising their regulations dealing with the probate of Indian trust estates to reflect an organizational change. Effective Date: March 9, 2005.

Minimum Internal Control Standards, 25 C.F.R. Part 542; Proposed Rule.

National Indian Gaming Commission.

[Federal Register: March 10, 2005 (Volume 70, Number 46)]

[Proposed Rules][Pages 11893-11903]

The proposed rule revisions contain certain proposed corrections and revisions to the Commission’s existing MICS, which are necessary to clarify, improve, and update other existing MICS provisions. Submit comments on or before April 25, 2005.

Indian Child Welfare Act, Receipt of Designated Tribal Agents for Service of Notice.

Bureau of Indian Affairs, Department of the Interior.

[Federal Register: March 21, 2005 (Volume 70, Number 53)] [Notices][Pages 13518-13535]

This notice is published in exercise of authority delegated by the Secretary of the Interior to the Principal Deputy Assistant Secretary—Indian Affairs by 209 DM 8.

Notice of Approved Tribal—State Compacts.

Bureau of Indian Affairs, Department of the Interior.

[Federal Register: March 21, 2005 (Volume 70, Number 53)] [Notices][Pages 13535-13536]

This notice publishes approval of the Tribal—State Compacts between the Osage Nation and the State of Oklahoma; the Pawnee Tribe of Oklahoma and the State of Oklahoma. Effective date: March 21, 2005.

Notice of Approved Class III Tribal-State Compact.

Bureau of Indian Affairs, Department of the Interior.

[Federal Register: March 21, 2005 (Volume 70, Number 53)] [Notices][Page 13536]

This notice publishes approval of the First Amendment to the Tribal-State Compact between the Reno-Sparks Indian Colony and the State of Nevada. Effective Date: March 21, 2005.

Indian Education Formula Grants to Local Educational Agencies; Notice of reopened deadline Department of Education [Federal Register: March 21, 2005 (Volume 70, Number 53)] [Notices][Pages 13485-13486]

Notice reopening the deadline date for the Indian Education Formula Grants to Local Educational Agencies Program. The new deadline date for the transmittal of applications or amendments to applications already submitted is March 28, 2005.

Guidance for Distributing FY 2005 Contract Support Funds and Indian Self-Determination Funds.

Bureau of Indian Affairs, Department of the Interior.

[Federal Register: March 24, 2005 (Volume 70, Number 56)] [Notices][Page 15119-15122]

Notice of methodology for distribution and use of FY 2005 Contract Support Funds and Indian Self-Determination Funds. The “FY 2005 CSF Needs Report” is due June 30, 2005. Final distribution of CSF will be made on a pro-rata basis on or about July 19, 2005.

Law and Order on Indian Reservations: Winnemucca Indian Tribe.

Bureau of Indian Affairs, Department of the Interior

[Federal Register: March 29, 2005 (Volume 70, Number 59)] [Rules and Regulations][Page 15759-15761].

Final rule and request for comments. This rule is effective on March 29, 2005. Comments must be received on or before May 31, 2005. Section 11.100(a)(15) expires March 29, 2007.

Proposed Renewal of Information Collection for Source Directory Publication; Comment Request.

Indian Arts and Craft Board, Department of the Interior.

[Federal Register: March 29, 2005 (Volume 70, Number 59)] [Notices][Page 15869-15870]

The Indian Arts and Crafts Board collects information to identify and revise listings for the Source Directory of American Indian and Alaska native owned and operated arts and crafts businesses. Comments on renewal of this collection are requested from the public. Submit comments on or before May 3, 2005.

United States Supreme Court

Cert Granted in Richards v. Prairie Band Potawatomi Nation. On February 28, 2005, the Supreme Court accepted a case questioning whether Kansas can impose a gas tax on tribal sales to non-Indian motorists. In Prairie Band Potawatomi v. Richards, the 10^th Circuit Court invalidated the state’s gas tax as an infringement on tribal sovereignty, holding that the Nation was not “marketing a tax exemption” but rather was part of its on-reservation gaming enterprise. The case presents an economic angle, focusing on Indian commerce. The tribe argues the White Mountain Apache standard, which balances tribal, state and federal interests, while the State argues the Mescalero Apache standard, which favors state interests when states make laws affecting activities off-reservation. Thirteen states and the Multistate Tax Commission filed amicus briefs in support of Kansas.

Cert denied in Hammond v. C’oeur d’Alene Tribe of Idaho, et al. On February 28, 2005, the Supreme Court denied review in Hammond, where the Ninth Circuit held that the incidence of the Idaho motor fuel tax impermissibly falls on the Tribes, notwithstanding the state legislature’s declared intent to shift the incidence of the tax to the non-Indian distributors. Further, the Court held that the Hayden Cartwright Act does not a present a clear intent of Congress to abrogate tribal immunity to allow states to tax gasoline sales on Indian reservations.

Cherokee Nation v. Leavitt, 543 U.S. ___ (2005). On March 1, 2005, the Supreme Court unanimously decided in favor of Tribes in holding that Indian self-determination contracts are “legally binding” agreements similar to other government procurement contracts by the federal government. The case arose after two Indian tribes agreed to supply health services in entering a contract with the Government under the Indian Self-Determination and Education Assistance Act (ISDEAA) during fiscal years 1994 through 1997. The contract included an annual funding agreement with a government promise to pay “contract support costs,” which can include indirect administrative, direct and start-up costs. Thereafter, the Government refused to pay, claiming that it is only legally bound to pay its promises if Congress appropriates sufficient funds, that Congress had not done so, and that ISDEAA created a special contract with a unique nature differentiating it from standard Government procurement contracts. The Court disagreed with all of the Government’s arguments and held the Government is legally bound to pay the “contract support costs” at issue. A copy of the opinion is available at http://doc.narf.org/sc/okvthompson/opinion.pdf

City of Sherrill v. Oneida. On March 29, 2005, the Supreme Court reversed and remanded City of Sherrill v. Oneida Indian Nation of New York. The case concerned whether former reservation land, now held in fee by the Oneida Nation, is Indian country pursuant to 18 U.S.C. § 1151 and the Court’s previous decision in Alaska v. Native Village of Venetie Tribal Government, 522 U.S. 520 (1998).

The Oneida Nation had transferred parcels at issue to one of its members in 1805, who sold the land to a non-Indian two years later. The properties were in non-Indian possession until acquired by the Oneida Indian Nation (OIN) in 1997 and 1998 in open-market transactions. Thereafter, OIN maintained the properties were exempt from taxation. The city of Sherrill initiated eviction proceedings in state court and OIN sued in Federal court. The Second Circuit Court of Appeals held that the parcels qualified as “Indian country” because they fall within boundaries of a reservation set aside by treaty, there was no clear congressional purpose to disestablish or diminish the reservation and there was no legal requirement for the tribe to demonstrate continuous existence to assert a claim. In arriving at its decision to reverse the Second Circuit, the Court noted that it would evaluate the case in light of the long history of state sovereign control over the territory at issue and recognizing that the passage of time could preclude relief. Fearful of the onslaught of a new generation of litigation to free parcels from local zoning or other regulatory controls that protect all landowners in the area, the Court deferred to 25 U.S.C. § 465 as the appropriate mechanism for the acquisition of lands for tribal communities. 25 U.S.C. § 465 authorizes the Secretary of Interior to acquire land in trust for Indians and considered by the Court as the appropriate avenue for a tribe to reestablish sovereign authority over territory last held by the tribe years ago.

Upcoming Events

April 27, 2005. Senate Committee on Indian Affairs Oversight Hearing on Indian Gaming. 9:30am, SR-485 Russell Senate Office Buildling, Washington, D.C.

May 1-5, 2005 – National Tribal Environmental Council’s (NTEC) 11^th Annual National Conference to be held at the Radisson Hotel & Conference Center, Green Bay, WI. See http://www.ntec.org

May 2, 2005. Trust Reform Tribal Workgroup - Tribal Leaders and Indian Landowners Meeting. To be held at the Indian Pueblo Cultural Center, 2401 12th Street NW (1 block North of I-40), Albuquerque, NM 87104. For more information call 505-843-7270 or 1-800-766-4405 outside of New Mexico.

May 3, 2005. Trust Reform Technical Team Meeting. Topic: Individual Asset Mismanagement Claims. To be held at the Indian Pueblo Cultural Center, 2401 12th Street NW (1 block North of I-40), Albuquerque, NM 87104. For more information call 505-843-7270 or 1-800-766-4405 outside of New Mexico.

May 2 - 6, 2005. Tribal Self Governance Conference to be held at Paradise Point; San Diego, CA

May 17 - 18, 2005 – The Department of Health & Human Services 7th Annual Tribal budget Consultation Session which will be held in Washington, DC at the Hubert Humphrey Building. Please contact me if at Stacey.Ecoffey@hhs.gov or call (202)-690-7410 if you have any questions. http://www.hhs.gov/budget/document.htm

May 19, 2005. Tentative Trust Reform Tribal Workgroup Consultation. To be held in conjunction with ATNI at the Pyallup Tacoma Sheraton, Tacoma, Washington.

May 23 - 25, 2005 - Great Plains Indian Gaming 13^th Annual Trade Show & Conference to be held at the Sheraton Bloomington Hotel; Minneapolis, MN

June 13 - 15, 2005 - National American Indian Housing Council 31^st Anniversary Convention & Trade Show to be held at Mohegan Sun; Uncasville, CT

June 13 - 16, 2005 - National Congress of American Indians Mid-Year Session to be held at the Radisson Hotel & Conference Center; Oneida, WI

June 27-30, 2005. United South and Eastern Tribes Semi-Annual Board Meeting, Foxwoods Resort, CT.

August 12-14, 2005. NMAI National Pow-Wow. MCI Center, Washington, D.C. For more information visit www.AmericanIndian.si.edu or call 877-830-3224.

September 23, 2005. 38^th Annual California Indian Day Celebration to be held at the California State Capitol; Sacramento, CA

October 30 – November 4, 2005. National Congress of American Indians 62^nd Annual Convention in Tulsa, OK

Indian Law Practice Group

Washington, D.C.

Shenan R. Atcitty • 202-457-7128 shenan.atcitty@hklaw.com 

Philip Baker-Shenk • 202-457 7031 philip.bakershenk@hklaw.com 

Senator Ben Nighthorse Campbell • 202-457-7035 ben.campbell@hklaw.com 

Holly B. Cook • 202-457-7171 holly.cook@hklaw.com 

Lynn G. Cutler • 202-419-2478 lynn.cutler@hklaw.com 

David Devendorf • 202-457-7105 david.devendorf@hklaw.com 

Kimberlee Dunlop • 202-862-5966 kimberlee.dunlop@hklaw.com  

Gerry E. Sikorski • 202-828-5007 gerry.sikorsk@hklaw.com

Los Angeles and Seattle

Rory Dilweg • 213-896-2400 rory.dilweg@hklaw.com

Tim Evans • 213-896-2472 timothy.evans@hklaw.com

James K. Kawahara • 213-896-2412 james.kawahar@hklaw.com

Frank R. Lawrence • 530-478-0703 frank.lawrenc@hklaw.com 

Jerome L. Levine • 213-896-2565 jllevine@hklaw.com 

Padraic I. McCoy • 213-896-2541 padraic.mccoy@hklaw.com 

Teri Poust • 213-896-2555 teresa.poust@hklaw.com

Mary Prevost • 206-340-1825 mary.prevost@hklaw.com

Allyson G. Saunders • 213-896-2567 allyson.saunder@hklaw.com

Zehava Zevit • 213-896-2556 zehava.zevit@hklaw.com

Related Practices

• Indian Law