Holland & Knight - Indian Law Alert - November 10, 2006

Indian Law
Alert - November 10, 2006

Third Quarterly Report

November 10, 2006

CAPITOL HILL

The Third Quarter of the 109th Congress was relatively brief, with Congress returning from the August recess on September 5 and working until September 29, when they adjourned to provide members with additional time to campaign for the November election. All members of the House and approximately one third of the Senators were up for re-election on November 7.

Congress passed a number of bills during the Third Quarter, most of which were focused on improving national security, including: the Department of Defense and the Department of Homeland Security appropriations bills for fiscal year (“FY”) 2007; the Secure Fence Act (H.R. 6061); and the Security and Accountability for Every Port Act (“SAFE Port Act”) (H.R. 4954). The Secure Fence Act authorized the construction of a 700-mile fence on the U.S. border with Mexico. Meanwhile, the SAFE Port Act included unrelated language prohibiting internet gambling, which tracked portions of H.R. 4411, the Internet Gambling Prohibition and Enforcement Act. All of the bills were signed by the President and have become Public Law.

Congress is expected to return for a lame duck session on November 13, the Monday following elections, for one week before departing again for Thanksgiving recess beginning Friday, November 17. During the one week session, Congress will need to address the remaining appropriations bills and may address several tax bills focused on health insurance savings and telephone taxes, among other pieces of legislation. Legislation considered during this session will be extremely vulnerable to riders, which are unrelated and sometimes controversial legislation attached to a bill that is moving. These riders can be favorable or detrimental to Indian Country, and bills should be carefully reviewed whenever possible. While neither the House nor the Senate have confirmed whether they will reconvene for an additional lame duck session following Thanksgiving recess, there is a strong possibility that they will reconvene.

EYE ON CONGRESS

Appropriations. Two FY 2007 appropriations bills were signed into law during the Third Quarter, including the Department of Defense and the Department of Homeland Security Appropriations Acts (signed by the President on September 29 and October 4, respectively). The Senate had previously indicated that it would only bring domestic security related appropriations bills to the floor before the November election. The Defense bill was funded at $447.6 billion, in direct response to the President’s threat to veto the measure if it did not meet the House passed funding level of $447.4 billion. The amount was a substantial increase from the budgeted level and will result in a $5 billion decrease in the remaining domestic spending bills in order stay within the total spending limits, jeopardizing all projects already secured in Committee reports or House passed bills. The Homeland Security bill was funded at $34.8 billion, $1.2 billion of which is directed to fund the construction of a 700-mile fence along the U.S. border with Mexico.

Ten FY 2007 appropriations bills have not been passed and are currently being funded by a continuing resolution (“CR”), since the FY 2006 appropriations bills expired on September 30. The CR, which was attached to the Defense appropriations bill, funds programs at the lowest level of either FY 2006 monies or the FY 2007 House or Senate passed levels. However, it only authorizes funding through November 17. If the Congress fails to finalize and pass appropriations for any federal department or agency by November 17, it will have to adopt another CR.

Meanwhile, the House resumed its discussion of earmark reform. On September 14, the House passed H.Res. 1000, a resolution providing for earmark reform in the House of Representatives. The resolution changes the House rules to require that Committee and conference reports include a list of earmarks in the bill or in the report and the names of members who requested the earmarks. Earmarks include tax earmarks as well as traditional member-directed funding requests. The Senate has yet to address earmarks with similar reform and it is not clear whether the 109th Congress will substantially reform the practice before concluding its second session.

Gaming Legislation. Despite efforts in both the House and Senate, neither S. 2078, the Indian Gaming Regulatory Act Amendments of 2006, a bill to amend the Indian Gaming Regulatory Act (“IGRA”) to clarify the authority of the National Indian Gaming Commission (“NIGC”) to regulate class III gaming, to limit the lands eligible for gaming, and for other purposes, nor H.R. 4893, the Restricting Indian Gaming to Homelands of Tribes (“RIGHT”) Act, a bill to amend section 20 of IGRA, were passed during the Third Quarter of the 109th Congress.

On September 13, House Republican leadership unsuccessfully tried to pass the RIGHT Act using the suspension calendar, where it is required to obtain a super majority or two thirds vote for passage. The final vote count was 247 YEAs and 171 NAYs, with 15 Members not voting (7 Republicans, 8 Democrats). Those who voted for the bill included 208 Republicans and 39 Democrats, while 16 Republicans and 154 Democrats voted against it. The lone Independent voted against the bill. Although many provisions were removed from the bill that were considered attacks on tribal sovereignty, many tribes remained opposed to the bill because of a provision that would require tribes to negotiate agreements with counties, creating a dangerous Indian Law precedent.

The Committee has not indicated how it will proceed or whether the bill will be addressed during the lame duck session. If the House were to pass the RIGHT Act, it would be sent to the Senate, where Senate Committee on Indian Affairs (“SCIA”) Chairman John McCain (R-AZ) could attach his bill, S. 2078, and attempt to pass that vehicle. If such a bill were passed, conferees would then determine which provisions are implemented.

The SCIA has not made any progress with the passage of S. 2078. The Committee attempted to hotline the bill during September, but numerous holds remain and at least one firm hold appears to be non-negotiable. The Committee has indicated that it might begin stripping sections of the bill that are subject to holds and then re-initiate the hotline process, but that plan has not yet happened. Holland & Knight LLP will continue to monitor the activity of both bills.

Meanwhile, the Department of the Interior (“DOI”), Bureau of Indian Affairs (“BIA”) has continued moving forward with its effort to address off-reservation gaming concerns expressed by Congress by publishing a proposed rule to address section 20 of IGRA, and the Office of Indian Gaming Management (“OIGM”) has informally proposed amendments to the regulations authorizing tribal per capita payments. For further information please see the below sections, EXECUTIVE BRANCH: Agency Action – Tribal Revenue Allocations Plans, and Proposed Regulations for the Implementation of Section 20 of the Indian Gaming Regulatory Act.

Tribal Provisions in the Pension Protection Act. The 109th Congress is not expected to remedy tribal provisions in the Pension Protection Act of 2006 (“PPA”), despite prior expectations. Section 906 of the Internal Revenue Code, under which plans established and maintained by Indian tribal employers may qualify as “governmental plans,” sharply limit the circumstances under which tribal plans could be considered “governmental” plans. Legislation that could have been a vehicle for favorable tribal language is no longer possible as a stand alone bill to which Indian Country could attach itself. However, the Internal Revenue Service recently issued a Notice providing partial transition relief for tribal governments. For further information please see the below section, EXECUTIVE BRANCH: Agency Action – Transition Relief for Indian Tribal Government Plans.

Trust Reform. Contrary to its reported agreement to do so, the Administration failed to release a settlement figure it could support to the SCIA by September 30. As a result, the SCIA could not move forward to markup S. 1439, the Indian Trust Reform Act of 2005, and passage of the bill this session appears highly unlikely. The most recent draft of S. 1439 included mandatory settlement of all Indian trust asset mismanagement claims. The plaintiffs in Cobell v. Kempthorne believe that mandatory settlement of those issues is premature, since the claims were not previously part of the litigation and have not been explored by all interested parties. The plaintiffs have stated that they will not support a bill unless it includes an opt-out provision for the settlement of assets mismanagement.

On October 23, the SCIA released a “Briefing Paper” on its web site that addressed Indian trust reform and sought input from Indian Country concerning potential dramatic changes to the federal-tribal trust relationship and to the government’s management of both individual and tribal trust resources. The timing of the release of the Briefing Paper implied that some, if not all, of the proposed changes would need to be implemented in order for the Administration to proceed with S. 1439.

Although reports indicated that the substance of the two-page document originated within the Bush Administration, the document was not endorsed by any group or individual. The briefing paper addressed the following four concepts: (1) land fractionation; (2) beneficiary-managed trust; (3) resolution of tribal claims; and (4) limitation on the liability of the federal government. The significant changes proposed in the paper could have serious repercussions, and tribes are encouraged to review them carefully.

The SCIA subsequently held five consultation meetings to discuss the concepts set forth in the briefing paper and the Indian Trust Reform Act. The meetings were held between October 23 and November 3 in Tulsa, Oklahoma; Cabazon, California; Rapid City, South Dakota; Bismarck, North Dakota; and Portland, Oregon. A final meeting is scheduled in Washington, D.C. on November 16.

Esther Martinez Native American Languages Preservation Act. On September 29, the Senate hotlined the Esther Martinez Native American Languages Preservation Act, H.R. 4766. However, Senators Daniel Akaka (D-HI) and Daniel Inouye (D-HI) placed holds on the bill to press for the inclusion of additional language specific to Native Hawaiians. After many tribal leaders and tribal organizations contacted their offices, they removed their holds and expressed strong support for the revitalization of all Native languages. Unfortunately, the bill did not move forward because of an anonymous hold that was placed on all Indian-related bills at the last hour before the recess. It was later confirmed that Representative Pete Sessions (R-TX) placed the hold. This hold also delayed the confirmation of Carl Artman to the post of Interior Assistant Secretary – Indian Affairs. Both the Artman nomination and H.R. 4766 are expected to be brought up for consideration during the lame duck session.

Federal Emergency Management Agency (“FEMA”) Reorganization. The Senate Committee on Homeland Security and Governmental Affairs indicated during the Third Quarter that it will bring a version of S. 3721, the Post Katrina Emergency Management Reform Act of 2006, to the floor with an important change for Indian Country: the bill removes tribal governments from the definition of “local government” and adds tribal governments almost everywhere that state and local governments are mentioned throughout the bill. However, the definition of tribal government was not changed from the definition in the Homeland Security Act. Tribes have been coordinating their efforts to make these changes in order to eventually extend the changes to the Act authorizing the Department of Homeland Security (“DHS”). Once the changes are made to the DHS Act, tribes will be eligible to seek direct funding from DHS instead of having to go through the state for Homeland Security funding.

FLOOR ACTION

Federal Funding Accountability and Transparency Act. On September 7, the Senate passed S. 2590, a bill to require full disclosure of all entities and organizations receiving federal funds. On September 8, the Senate Committee on Homeland Security and Governmental Affairs filed the report to accompany the bill, S. Rept. No. 109-329. The measure was passed by the House on September 13 and signed by the President on September 26, becoming Public Law 109-282. The bill requires the Office of Management and Budget to create and maintain a database for “entities” that receive “federal funding,” defining both terms broadly. The provisions of this bill will apply to Indian tribes. For example, tribes who participate in Self-Governance would be included in the database in their role as contractors, along with the specific dollar amounts they receive.

Pueblo de San Ildefonso Claims Settlement Act of 2005. On September 12, the House passed S. 1773, a bill to resolve certain Native American claims in New Mexico, without a recorded vote clearing the measure for the President. The President signed the bill on September 27, and it become Public Law 109-286. (The House Resources Committee favorably reported the bill on September 6, H. Rept. No. 109-633.)

Pascua Yaqui Tribe Subsurface Mineral Rights. On September 12, the House passed H.R. 631, a bill to provide for the acquisition of subsurface mineral rights to land owned by the Pascua Yaqui Tribe and land held in trust for the Tribe, without a recorded vote. The bill has since been received in the Senate and placed on the Legislative Calendar. (The House Resources Committee favorably reported the bill on September 6, H. Rept. 109-621.)

Restricting Indian Gaming to Homelands of Tribes (“RIGHT”) Act. On September 13, the House failed to pass H.R. 4893, as amended, a bill to amend section 20 of the Indian Gaming Regulatory Act to restrict off-reservation gaming.

Water Resources Development Act of 2006. On September 13, the House disagreed with Senate amendments to H.R. 2864, a bill to provide for the conservation and development of water and related resources and to authorize the Secretary of the Army to construct various projects for improvements to rivers and harbors of the United States. On September 14, the House requested a conference on the bill and appointed the following Representatives as conferees: Don Young (R-AK), John Duncan (R-TN), Richard Baker (R-LA), Gary Miller (R-CA), Henry Brown (R-SC), John Boozman (R-AZ), Richard Pombo (R-CA), Marilyn Musgrave (R-CO), James Oberstar (D-MN), Eddie Bernice Johnson (D-TX), Jerry Costello (D-IL), Tim Bishop (D-NY), and Ron Kind (D-WI).

On September 19, the Senate appointed the following Senators as conferees: James Inhofe (R-OK), John Warner (R-VA), Christopher Bond (R-MO), George Voinovich (R-OH), Lincoln Chafee (R-RI), Lisa Murkowski (R-AK), David Vitter (R-LA), Max Baucus (D-MT), Joe Lieberman (D-CT), Barbara Boxer (D-CA), Thomas Carper (D-DE), and James Jeffords (I-VT).

Code Talkers Recognition Act. On September 20, the Senate passed S. 1035, a bill to authorize the presentation of commemorative medals on behalf of Congress to Native Americans who served as Code Talkers during foreign conflicts in which the United States was involved during the 20th century, to recognize the service of those Native Americans to the United States. The bill was received in the House and is being held at the desk, and may be placed on the suspension calendar when the House reconvenes.

Federal Election Integrity Act of 2006. On September 20, the House passed H.R. 4844, a bill to amend the National Voter Registration Act of 1993 to require any individual who is registering or re-registering to vote in a federal election to provide the appropriate State election official with proof that the individual is a citizen of the United States, in order to prevent fraud in federal elections. The bill does not consider tribal enrollment cards as sufficient proof of citizenship. The bill has been received in the Senate.

Esther Martinez Native American Languages Preservation Act of 2006. On September 27, the House passed H.R. 4766, a bill to amend the Native American Languages Act to provide for the support of Native American language survival schools. Originally the “Native American Languages Preservation Act of 2006,” the bill was renamed in honor of Esther Martinez, a language preservationist who recently passed away. The bill was received in the Senate and is expected to be considered during the lame duck session.

Pueblo of Isleta Settlement and Natural Resources Restoration Act of 2006. On September 27, the House passed H.R. 5842, a bill to compromise and settle all claims in the case of Pueblo of Isleta v. United States, without a recorded vote. The bill would restore, improve, and develop valuable on-reservation land and natural resources of the Pueblo. The bill has been received in the Senate.

Land Conveyance from Jicarilla Apache Reservation to Rio Arriba County. On September 27, the House passed H.R. 4876, a bill to ratify the conveyance of a portion of the Jicarilla Apache Reservation to Rio Arriba County in State of New Mexico, pursuant to the settlement of litigation between the Jicarilla Apache Nation and the County, without a recorded vote. The bill also authorizes the issuance of a patent for said lands and changes the exterior boundary of the Jicarilla Apache Reservation accordingly. The bill has since been received in the Senate.

Fort McDowell Indian Community Water Rights Settlement Revision Act of 2006. On September 28, the House passed S. 2464, a bill to revise a provision relating to a repayment obligation of the Fort McDowell Yavapai Nation under the Fort McDowell Indian Community Water Rights Settlement Act of 1990, without a recorded vote and clearing the measure for the President. The Senate passed the bill on September 13.

Trail of Tears National Historic Trail Study. On September 29, the Senate passed H.R. 3085, a bill to amend the National Trails System Act to update the feasibility and suitability study (“Study”) originally prepared for the Trail of Tears National Historic Trail and provide for the inclusion of new trail segments, land components, and campgrounds associated with that trail, with an amendment offered on behalf of Senator Pete Domenici (R-NM) to clarify that additional funds are not authorized to be appropriated to carry out the Study. The House passed the measure on July 17, but because the Senate amended the bill, it requires further action before it may be sent to the President.

Secure Fence Act. On September 29, the Senate passed H.R. 6061, a bill to establish operational control over the international land and maritime borders of the United States. The bill authorizes the construction of a 700-mile fence on the U.S. border with Mexico. The House passed H.R. 6061 on September 14, and the President signed the measure into law on October 26, when it became Public Law 109-367.

Indian Land Consolidation Act. On September 29, the Senate passed S. 3526, a bill to amend the Indian Land Consolidation Act to modify certain requirements under that Act, with an amendment offered on behalf of Senator John McCain (R-AZ) making technical corrections to the bill.

FY 2007 Department of Defense Appropriations Act. On September 29, the Senate agreed to the conference report to accompany H.R. 5631, a bill making appropriations for the Department of Defense for FY 2007, clearing the measure for the President. The Senate passed its version of the bill on September 7 and the House previously approved the conference report on September 26. The President signed the measure on September 29, which effectively became Public Law 109-289.

FY 2007 Department of Homeland Security Appropriations Act. On September 29, both the House and the Senate agreed to the conference report to accompany H.R. 5441, a bill making appropriations for the Department of Homeland Security for FY 2007, clearing the measure for the President. On October 4, H.R. 5441 was signed by the President and became Public Law 109-295.

Security and Accountability For Every (“SAFE”) Port Act. On September 29, both the House and the Senate agreed to the conference report to accompany H.R. 4954, the SAFE Port Act, a bill to improve maritime and cargo security through enhanced layered defenses, clearing the measure for the President. The conference report included unrelated provisions regarding internet gambling.

COMMITTEE ACTION

Reports

Gimme Five – Investigation of Tribal Lobbying Matters. On September 6, the SCIA filed a special report entitled “Gimme Five – Investigation of Tribal Lobbying Matters’’ (S. Rept. No. 109-325). The report, ordered favorably reported out of Committee on June 22, 2006, summarizes the Committee’s multi-year investigation into the dealings of former lobbyists Jack Abramoff and Michael Scanlon with six federally recognized tribes.

Pascua Yaqui Tribe Subsurface Mineral Rights. On September 6, the House Resources Committee filed its report to accompany H.R. 631, a bill to provide for the acquisition of subsurface mineral rights to land owned by and held in trust for the Pascua Yaqui Tribe, and for other purposes (H. Rept. 109-621). The House passed the measure on September 12, 2006. The bill has since been received in the Senate and placed on the Legislative Calendar.

Tribal Development Corporation Feasibility Study Act of 2005. On September 6, the House Resources Committee filed its report to accompany H.R. 3350, a bill to amend the Native American Business Development, Trade Promotion, and Tourism Act of 2000 to establish the Tribal Development Corporation Feasibility Study Group (H. Rept. 109-626). The measure was placed on the Legislative Calendar.

Pueblo de San Ildefonso Claims Settlement Act of 2005. On September 6, the House Resources Committee filed its report to accompany S. 1773, a bill to resolve certain Native American claims in New Mexico (H. Rept. 109-633), and the bill was placed on the Legislative Calendar. On September 12, the House passed S. 1773, clearing the measure for the President. The President signed the bill on September 27, and it become Public Law 109-286.

Federal Funding Accountability and Transparency Act of 2006. On September 8, the House Committee on Homeland Security and Governmental Affairs filed its report to accompany S. 2590, a bill to require full disclosure of all entities and organizations receiving federal funds (S. Rept. No. 109-329). The measure was passed by the full Senate on September 7, 2006. The House passed S. 2590 on September 13 and the bill was signed by the President on September 26, becoming Public Law 109-282.

Lumbee Tribal Acknowledgement. On September 13, the SCIA filed its report to accompany S. 660, a bill to provide for the acknowledgement of the Lumbee Tribe of North Carolina (S. Rept. No. 109-334). The bill was then placed on the Legislative Calendar.

RIGHT Act. On September 13, the House Resources Committee filed its report to accompany H.R. 4893, a bill to amend section 20 of the Indian Gaming Regulatory Act to restrict off-reservation gaming (H. Rept. 109-650). The bill failed to pass the House on the suspension calendar on the same day, however there remain other avenues for passage. See above discussion EYE ON CONGRESS: Indian Gaming.

Indian Health Care Improvement Act Amendments of 2006. On September 14, the House Resources Committee filed its report to accompany H.R. 5312, a bill to amend the Indian Health Care Improvement Act to revise and extend that Act (H. Rept. 109-661, Pt. 1). The Resources Committee also granted extensions to the Ways and Means Committee and the Energy and Commerce Committee for further consideration of H.R. 5312, ending no later than Sept. 29, 2006, subsequently extended until November 17, 2006.

Federal Election Integrity Act of 2006. On September 19, the House Committee on House Administration filed its report to accompany H.R. 4844, a bill to amend the National Voter Registration Act of 1993 to require any individual who is registering or re-registering to vote in a federal election to provide the appropriate State election official with proof that the individual is a citizen of the United States, in order to prevent fraud in federal elections (H. Rept. 109-666). On September 20, the House passed the measure, which has been received in the Senate.

Utu Utu Gwaitu Paiute Trust Land. On September 20, the SCIA filed its report to accompany H.R. 854, a bill to provide for certain lands to be held in trust for the Utu Utu Gwaitu Paiute Tribe (S. Rept. No. 109-342). The measure was then placed on the Legislative Calendar.

Cheyenne River Sioux Tribe Equitable Compensation Amendments Act of 2005. On September 20, the SCIA filed its report to accompany S. 1535, a bill to amend the Cheyenne River Sioux Tribe Equitable Compensation Act to provide compensation to members of the Cheyenne River Sioux Tribe for damage resulting from the Oahe Dam and Reservoir Project, with an amendment in the nature of a substitute (S. Rept. No. 109-343). The measure was then placed on the Legislative Calendar.

Tribal Parity Act. On September 20, the SCIA filed its report to accompany S. 374, 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, with an amendment in the nature of a substitute (S. Rept. No. 109-344). The measure was then placed on the Legislative Calendar.

S. 3687. On September 26, the SCIA filed its report to accompany S. 3687, a bill to waive application of the Indian Self-Determination and Education Assistance Act to a specific parcel of real property transferred by the United States to the Confederated Tribes of Siletz Indians of Oregon and the Confederated Tribes of the Grand Ronde Community of Oregon (S. Rept. No. 109-349). The measure was then placed on the Legislative Calendar.

Secretarial Review of Federal Recognition Petitions. On September 28, the House Resources Committee filed its report to accompany H.R. 512, a bill to require the prompt review by the Secretary of the Interior of the longstanding petitions for federal recognition of certain Indian tribes (H. Rept. 109-694). The measure was then placed on the Legislative Calendar.

Hawaiian Homeownership Opportunity Act of 2006. On September 28, the House Committee on Financial Services filed its report to accompany H.R. 5851, a bill to reauthorize the programs of the Department of Housing and Urban Development for housing assistance for Native Hawaiians (H. Rept. 109-697). The measure was then placed on the Legislative Calendar.

Pueblo of Isleta Settlement and Natural Resources Restoration Act of 2006. On September 29, the SCIA filed its report to accompany S. 3648, a bill to compromise and settle all claims in the case of Pueblo of Isleta v. United States, to restore, improve, and develop the valuable on-reservation land and natural resources of the Pueblo (S. Rept. No. 109-354). The measure was then placed on the Legislative Calendar. The House passed its version of the bill, H.R. 5842 on September 27.

Markups

Nomination of Carl Artman to Assistant Secretary of Indian Affairs. On September 14, the SCIA convened a business meeting immediately following a hearing on the nomination of Carl Artman to the post of Assistant Secretary of the Interior (see COMMITTEE ACTION: Hearings – Nomination of Carl Artman to Assistant Secretary of Indian Affairs below). With little discussion, the Committee voted unanimously to favorably report the nomination of Carl Artman. In addition, the Committee unanimously reported the following three bills without amendment:

• H.R. 854, Utu Utu Gwaitu Paiute Trust Land, a bill to provide for certain lands to be held in trust for the Utu Utu Gwaitu Paiute Tribe;

• S. 3648, Pueblo of Isleta Settlement and Natural Resources Restoration Act of 2006, a bill to compromise and settle all claims in the case of Pueblo of Isleta v. United States, to restore, improve, and develop valuable on-reservation land and natural resources of the Pueblo, and for other purposes; and

• S. 3687, a bill to waive application of the Indian Self-Determination and Education Assistance Act to a specific parcel of real property transferred by the United States to the Confederated Tribes of Siletz Indians of Oregon and the Confederated Tribes of the Grand Ronde Community of Oregon in the State of Oregon, and for other purposes.

Artman’s nomination and the reported bills may now proceed to the full Senate for consideration.

Hearings

Breaking the Methamphetamine Supply Chain – Law Enforcement Challenges. On September 12, the Senate Finance Committee held a hearing on the challenges that law enforcement faces in breaking the supply chain for methamphetamine (“meth”). Senators in attendance requested that the witnesses specifically state what they require to effectively shut down the trafficking of meth. The witnesses said that they need significant additional funds, with the freedom to spend the funds at their discretion as opposed to the limits imposed by grant requirements. The following witnesses presented testimony:

• Lt. Dan Springer, Commander, Missouri River Drug Task Force;

• Honorable Carl Venne, Chairman, Crow Tribe of Montana and Advisory Member of the Montana Meth Project;

• Sean McCullough, Special Agent in Charge, Division of Narcotics Enforcement, State of Iowa;

• Joseph Rannazzisi, Deputy Assistant Administrator, Office of Diversion Control, Drug Enforcement Administration;

• Gregory Passic, Director, Office of Drug Interdiction, U.S. Customs and Border Protection; and

• C. Andre Martin, Director, Operations Policy & Support, IRS Criminal Investigation.

Alaska Native Claims Legislation. On September 12, the House Resources Committee held a hearing on H.R. 5617 (Young, R-AK), the 13th Regional Corporation Land Entitlement Act, a bill to amend the Alaska Native Claims Settlement Act to provide an equitable distribution of land to the 13th Alaska Native Regional Corporation, and H.R. 5781 (Young, R-AK), the Copper Valley Native Allotment Resolution Act, a bill to grant rights-of-way for electric transmission lines over certain Native allotments in the State of Alaska. Director Hughes informed the Committee of the Department’s opposition to H.R. 5617 and support for H.R. 5781. Congressman Young dismissed the Bureau of Land Management’s opposition to H.R. 5617. Regarding the Copper Valley rights-of-way legislation, he stated that since Congress created the controversy, it has the responsibility to correct it. Testimony was received from the following witnesses:

• Jim Hughes, Deputy Director, Bureau of Land Management;

• Norman Ream, President Emeritus, 13th Regional Corporation;

• Robin Nazzaro, Director, Natural Resources and Environment Team, Government Accountability Office; and

• Robert Wilkinson, CEO, Cooper Valley Electric Association.

Nomination of Carl Artman to Assistant Secretary of Indian Affairs. On September 14, the SCIA held a hearing on the nomination of Carl Artman as Assistant Secretary of Indian Affairs. Mr. Artman, an enrolled member of the Oneida Tribe of Indians of Wisconsin, currently serves as the Associate Solicitor for Indian Affairs. During the hearing Mr. Artman faced few questions. Chairman John McCain (R-AZ) and Vice-Chairman Byron Dorgan (D-ND) stated their support for Mr. Artman during opening remarks, but took a moment to criticize the Administration and, in particular, the Office of Management and Budget for their lack of action on S. 1439, the Indian Trust Reform Act of 2005.

Tribal Self-Governance. On September 20, the SCIA held a hearing on Tribal Self-Governance. Chairman Floyd Jourdain, Jr., of the Red Lake Band of Chippewa Indians, testified in support of self-governance, but raised concerns over inadequate funding and the lack of annual funding increases, to which most federal agencies are privy. George Skibine, Acting Deputy Assistant Secretary, Indian Affairs, DOI, specifically acknowledged that contract support costs, as part of self-governance funding, have been a difficult issue for tribes. The Honorable Ron Allen, Chairman and Executive Director of the Jamestown S’Klallam Tribe and Treasurer of NCAI, respectfully requested that Congress enact legislation to expand self-governance. In addition to Mr. Skibine, Chairman Allen and Chairman Jourdain, the Honorable Delia Carlyle, Chairman, Ak-Chin Indian Community, presented testimony.

INDIAN LEGISLATION INTRODUCED – THIRD QUARTER

House

H.R. 6043 (Hastings, R-WA). A bill to amend the Native American Graves Protection and Repatriation Act (“NAGPRA”) so that it will be interpreted in accordance with the original intent of Congress to require a “significant relationship” between remains discovered on federal lands and presently existing Native American tribes for NAGPRA to be applicable to those remains; referred to the Committee on Resources on September 7, 2006. The Committee requested Executive Comment from DOI on September 18, 2006.

H.R. 6069 (Waxman, D-CA). Clean Contracting Act. A bill to reform the acquisition practices of the federal government; referred to the Committees on Government Reform, Armed Services, Rules, and Small Business, for consideration of such provisions that fall within the jurisdiction of the committee concerned, on September 13, 2006. Among other provisions, the bill restricts the award of no-bid contracts to Alaska Native Corporations.

H.R. 6105 (Herseth, D-SD). A bill to amend the Indian Health Care Improvement Act to help ensure that no Service hospital or outpatient health facility is closed unless Congressional reporting requirements regarding the hospital or facility are current; referred to the Committee on Resources and the Committee on Energy and Commerce, in each case for consideration of such provisions as fall within the jurisdiction of the committee concerned, on September 19, 2006.

H.R. 6119 (Dicks, D-WA). Puget Sound Regional Shellfish Settlement Act of 2006. A bill to provide for the equitable settlement of claims of Indian tribes in the region of Puget Sound, Washington regarding treaty rights to take shellfish from lands in that region, and for other purposes; referred to the Committee on Resources on September 20, 2006. The Committee requested Executive Comment from DOI on September 25, 2006.

H.R. 6123 (Holt, D-NJ). Helping Fill the Medicare Prescription Gap Act of 2006. A bill to include prescription drug costs incurred by the Indian Health Service, a federally qualified health center, an AIDS drug assistance program, certain hospitals, and a pharmaceutical manufacturer patient assistance program toward the annual out-of-pocket threshold under part D of title XVIII of the Social Security Act and to provide a safe harbor for assistance provided under a pharmaceutical manufacturer patient assistance program; referred to the Committees on Energy and Commerce and Ways and Means, in each case for consideration of such provisions as fall within the jurisdiction of the committee concerned, on September 20, 2006.

H.R. 6150 (Hayworth, R-AZ). National Minority Business Enterprise Incubator Program Act. A bill to establish the National Minority Business Enterprise Incubator Program; referred to the Committee on Financial Services on September 21, 2006. The Program will award grants to economic development organizations and other entities for the purpose of providing business incubation services to minority business enterprises.

H.R. 6259 (Abercrombie, D-HI). Hawaiian Homeownership Opportunity Act of 2006. A bill to reauthorize the programs of the Department of Housing and Urban Development for housing assistance for Native Hawaiians; referred to the Committee on Financial Services on September 29, 2006.

H.R. 6275 (Christensen, D-VI). Health Equity and Justice Act of 2006. A bill to improve the health of minority individuals; referred to the Committees on Energy and Commerce, Education and the Workforce, the Judiciary, Ways and Means, and Resources, in each case for consideration of such provisions as fall within the jurisdiction of the committee concerned, on September 29, 2006.

H.R. 6298 (Pearce, R-NM). Rights-Of-Way Recognition Act. A bill to clarify congressional intent with respect to the nature of rights-of-way granted and accepted under former section 2477 of the Revised Statutes, and for other purposes; referred to the Committee on Resources on September 29, 2006.

H.R. 6301 (Renzi, R-AZ). Tribal Economic Development and Infrastructure Support Act of 2006. A bill to amend Title VI of the Native American Housing and Self-Determination Act of 1996 to authorize Indian tribes to issue notes and other obligations to finance community and economic development activities, and for other purposes; referred to the Committee on Financial Services on September 29, 2006.

Senate

S. 3885 (Johnson, D-SD). Lake Traverse Reservation Act Amendments of 2006. A bill to amend Public Law 98-513 to provide for the inheritance of small fractional interests within the Lake Traverse Indian Reservation; referred to the Committee on Indian Affairs on September 11, 2006.

S. 3953 (Kerry, D-MA). Minority Entrepreneurship Development Act of 2006. A bill to foster the development of minority-owned small businesses; referred to the Committee on Small Business and Entrepreneurship on September 27, 2006.

S. 3979 (Levin, D-MI). A bill to amend the National Trails System Act to clarify Federal authority relating to land acquisition from willing sellers for the North Country National Scenic Trail; referred to the Committee on Energy and Natural Resources on September 28, 2006.

EXECUTIVE BRANCH

Public Laws

H.R. 4, Pension Protection Act of 2006 – Public Law 109-280, to provide economic security for all Americans, was signed on August 17, 2006.

S. 2590, Federal Funding Accountability and Transparency Act of 2006 – Public Law 109-282, to require full disclosure of all entities and organizations receiving federal funds, was signed on September 26, 2006.

S. 1773, Pueblo de San Ildefonso Claims Settlement Act of 2005 – Public Law 109-286, to resolve certain Native American claims in New Mexico, was signed on September 27, 2006.

H.R. 6061, Secure Fence Act of 2006 – Public Law 109-367, to establish operational control over the international land and maritime borders of the United States, was signed on October 26, 2006.

Agency Action

Tribal Revenue Allocation Plans. On September 19, OIGM sent a letter to tribal leaders informally proposing amendments to the regulations (25 CFR 290 et seq.) governing the distribution of net gaming revenue through the use of per capita payments. Under the proposed regulations, a tribe may not distribute per capita payments unless it has a BIA approved revenue allocation plan (“RAP”). The RAP must: (1) include a percentage breakdown of the uses for all net gaming revenue; (2) demonstrate that an adequate portion of the revenue is dedicated to one or more other purposes specified in the proposal; (3) identify when, where and to whom per capita payments will be made; (4) include detailed information to ensure that compliance with IGRA is evident to the BIA; (5) demonstrate that the interests of minors and legally incompetent persons are protected; and (6) describe how recipients will be notified of the tax requirements.

The letter also announced the time and locations of tribal consultation sessions regarding the amendments, which were held between October 26 and November 8 in Mt. Pleasant, Michigan; Albuquerque, New Mexico; and Hollywood, Florida. For further information please contact our Washington, D.C. office.

Indian Energy Rights-of-Way. The Departments of Interior and Energy (“Departments”) failed to submit to Congress a final report on the Section 1813 energy rights-of-way study on Indian lands by the congressional deadline of September 30. The final report is now expected to surface in mid-December. This delay may be compounded by letters sent to the Departments by Representative Joe Barton (R-TX), Chairman of the House Energy and Commerce Committee, and Senator Pete Domenici (R-NM), Chairman of the Senate Energy and Natural Resources Committee. The letters encouraged the Departments to carefully consider the draft report, and may lead the Departments to wholly reconsider what is included in the final report. If the timeline for filing the final report stretches into 2007, Senator Craig Thomas (R-WY) may be expected to make the report a priority if he assumes chairmanship of the SCIA. Senator Thomas has a long record of interest in natural resource and environmental issues implicated in the Section 1813 study.

In addition, Representative Richard Pombo (R-CA), Chairman of the House Resources Committee sent a letter to Representative Barton requesting the involvement of all Committees of jurisdiction if any legislation is introduced this year.

Transition Relief for Indian Tribal Government Plans. During the week of October 2, the Department of the Treasury, Internal Revenue Service (“IRS”) issued Notice 2006-89, Transition Relief for Indian Tribal Governmental Plans. The IRS notice summarized the changes made to the Internal Revenue Code (“Code”) by Section 906 and provides transition relief under a “reasonable and good faith” standard with respect to compliance with the PPA changes between now and September 30, 2007, pending further IRS guidance. Specifically, it allows plan sponsors to defer taking action now to split out “commercial” employees from their “governmental” employees. It is anticipated, however, that tribes desiring to maintain a “governmental” plan (i.e., a plan exempt from ERISA and the various Code rules that govern private employer plans) will eventually need to establish and maintain at least two separate plans. In determining what kind of activities will be considered commercial, Notice 2006-89 follows the description of the legislation formulated by the Joint Tax Committee and deems the following as “commercial” – hotels, casinos, service stations, convenience stores and marinas.

While Notice 2006-89 provides some measure of relief, tribes may wish to have their plans evaluated now to avoid having to freeze benefits or reduce permitted deferrals for certain employees because of the application of the nondiscrimination testing rules. The relief provided is not a blanket extension of the new law’s effective date until September 30. The legislation also impacts other employee benefit plans, such as health plans. For more information, including a copy of the Notice, please contact our Washington, D.C. office.

Proposed Regulations for the Implementation of Section 20 of the Indian Gaming Regulatory Act. On October 5, the BIA published a notice of proposed rulemaking establishing procedures for the section 20 two-part determination process under IGRA, which allows tribes to conduct gaming on land acquired after October 17, 1988 under certain exceptions. The BIA currently follows a checklist in considering the exceptions; however, it has never published regulations regarding section 20 consideration. The BIA began to develop its proposed regulations in recent years as congressional hearings and proposed legislation began to focus on significant revisions to section 20 out of rising concerns about off-reservation gaming.

The proposed rule would define several key terms for the purposes of section 20, but fails to further clarify what is meant by “appropriate officials of local government”. It would also add some requirements to the three existing exceptions for gaming on lands acquired in trust for gaming after October, 1988. The existing exceptions include: (1) land as part of a land claims settlement; (2) initial reservation land; and (3) land restored for a restored tribe. Finally, the proposed regulation would make significant changes to the section 20, “two-part” determination process. Although the proposed rule would impose several timelines on the process, it would not establish a deadline for the Secretary to make a determination on a tribe’s application nor does it address appeal procedures. Comments on the proposed rule are due by Monday, December 4.

Rural Health Telecommunications. The Federal Communications Commission (“FCC”) instituted a $400 million pilot program designed to increase access to advanced telecommunications and information services for public and non-profit rural health care providers. The program has been significantly underutilized, disbursing only $40 million a year. Participants in the program are eligible for a 25% reduction in the cost of their monthly internet service charges. In addition, they may be eligible for a reduction in their telephone bill, through the use of new high-speed internet technology. Improved internet and telephone service would increase the availability of telemedicine and distance learning for rural health care providers. Program funds may also be used to support the construction of state or regional broadband networks, and cost of services over those networks, as well as the cost of connecting the networks to “Internet2” (a national fiber optic backbone). For more information please contact our Washington, D.C. office.

SUPREME COURT

Court to Review Zuni Public School District v. Department of Education. On September 26, the Supreme Court granted a writ of certiorari in Zuni Public School District v. Department of Education, which challenges the formula used to distribute funding under the Federal Impact Aid Program (“Program”), (20 U.S.C. § 7709). The Program provides assistance to school districts that have federal lands, including Indian reservations or military bases, within the school district to compensate for the district’s inability to collect taxes on those lands. However, the state of New Mexico is including those payments as part of the district’s budget when the State allocates operational funds to the district. The Zuni Public School District and the Gallup McKinley School District contend that the government is failing to follow the intent of Congress in implementing the Program, claiming that they are being shortchanged $50 million a year. The petitioners’ opening brief is due November 13.

Cert Denied in South Dakota v. Department of the Interior and Utah v. Shivwits Band of Paiute Indians. On October 2, the Court denied review of issues raised by South Dakota and Utah, both of whom argued that section 5 of the Indian Reorganization Act of 1934 (“IRA”) was an unconstitutional delegation of authority to DOI to take land into trust for Indian tribes. As a result, the Court declined to overturn the 8th and 10th Circuit Court decisions in favor of land-into-trust decisions for the Lower Brule Sioux Tribe of South Dakota and the Shivwits Band of Paiute Indians in Utah. Despite repeated attempts to challenge the Secretary’s authority to place land in trust, the IRA has withstood constitutional challenges raised by opponents of the fee to trust process.

Cert Denied in Dark-Eyes v. Connecticut Commission of Revenue Services. Also on October 2, the Court denied review of Dark-Eyes, which considered whether an individual member of the Mashantucket Pequot Nation owes state income tax earned between 1996 and 1998 while serving as a tribal official living on Congressionally-defined reservation land that was not taken into trust until 1998. The Connecticut Supreme Court ruled that Dark Eyes owed approximately $200,000 in taxes and interest.

Cert Denied in Morris v. Tanner and Means v. Navajo Nation. On October 6, the Supreme Court denied review of Morris v. Tanner and Means v. Navajo Nation. Both cases raised Due Process and Equal Protection concerns with tribal criminal prosecution of a nonmember Indian on the Reservation. The Supreme Court previously upheld tribal criminal jurisdiction over nonmember Indians in U.S. v. Lara, which focused on the Double Jeopardy clause. However, these cases sought to raise additional constitutional issues. The Court’s denial of these appeals settles the question of tribal criminal jurisdiction over non-member Indians in favor of the tribe involved.

OTHER

Deadline for Filing Tribal Trust Claims. The timeline for tribes to file claims for losses to or mismanagement of tribal trust funds will expire on December 31, 2006. In 1996, DOI began distributing reports prepared by the Arthur Andersen accounting firm to each Indian tribe. The reports purportedly accounted for the federal government’s management of trust funds. Although the six year period for filing claims under the regular statute of limitations has been extended in the past, many members of Congress stated that the extension to December 31, 2006 was the last extension that would be granted. Any lawsuit filed after December 31, 2006 will likely be barred by the statute of limitations.

These types of claims are fact-specific and the information required for drafting a complaint likely necessitates requests for documents and information from the BIA. These claims are also one of the few options tribes can use to recover damages for any federal mismanagement of its trust funds. If a tribe believes it has a breach of trust claim that extends back before the year 2000, it may wish to consider giving this its priority attention. For more information, please contact our Washington, D.C. office.

Council on Energy Resource Tribes/National Congress of American Indians – Indian Energy Rights-of-Way. On September 11-13, the Council on Energy Resource Tribes (“CERT”) and the National Congress of American Indians (“NCAI”) hosted meetings at NCAI headquarters to brief tribal leaders on the Indian energy rights of way (“ROW”) study, prior to tribal leader meetings with members of Congress. Reports from the meetings indicated that the final ROW report might not be filed until early December. In addition, NCAI held two briefing sessions to educate Congressional staff on tribal concerns with the draft report. Speakers generally emphasized the benefits that the potential development of Indian energy resources has for Indian Country and the United States and drew attention to the unique importance that land and resources have for tribal people. Several speakers noted that any development must be done in accordance with tribal beliefs, consent and cooperation. During the Congressional briefings statements were made by:

• Jackie Johnson, Executive Director, NCAI;

• David Lester, Executive Director, CERT;

• Ginny Boylan, counsel to CERT;

• Honorable Joe Garcia, President, NCAI and Governor of the Ohkay Owingeh;

• Honorable Jefferson Keel, First Vice-President, NCAI and Lt. Governor of the Chickasaw Nation;

• Senator (Ret.) Ben Nighthorse Campbell, Senior Policy Advisor, Holland & Knight LLP;

• Tom Shipps, General Counsel, Southern Ute Indian Tribe; and

• John Jurrius, General Counsel, Ute Indian Tribe of the Uintah & Ouray Reservation (a.k.a. Northern Ute Tribe).

NCAI Meeting on the National Indian Country Meth Task Force. On September 12, NCAI held a pre-meeting on the creation of the NCAI National Indian Country Meth Task Force (“Task Force”), which will function as the sister group to the federal government’s Indian Country Meth Initiative Federal Agency Task Force comprised of representatives from the BIA, ONDCP, HHS, IHS and FBI etc. The NCAI Task Force will be comprised of an Executive Committee and tribal representatives and will focus on both law enforcement concerns and health and prevention issues. During the meeting, potential Task Force efforts and projects were discussed. Notably, the Partnership for a Drug-Free America attended and expressed interest in creating anti-meth advertisements specifically tailored to Indian Country. Also, a representative from the Chickasaw Nation presented a series of comic books developed by the Nation which could be adapted to provide anti-meth messages.

NCAI Meeting on S. 1439, The Indian Trust Reform Act of 2005. On September 13, NCAI held a meeting to discuss S. 1439, the Indian Trust Reform Act of 2005. NCAI representatives were clear that Indian Country must present a unified position to Congress and to the Administration when encouraging settlement legislation. NCAI has hired an issue advocacy and public relations group to create advertisements for Capitol Hill publications to educate members and staff on the trust legislation. The group presented several draft advertisements regarding the legislation and litigation, but were seeking real stories from tribal members. In addition, the group has created a website within the NCAI website that focuses solely on trust mismanagement information. http://www.ncai.org/indianfairness/

NCAI Annual Convention. NCAI held its 63rd Annual Convention in Sacramento, California from October 1 through October 6. The General Session convened on Monday with welcoming remarks made by NCAI President and Governor of the Ohkay Owingeh Joe Garcia, California tribal leaders, and Sacramento Mayor Heather Fargo. President Garcia and NCAI Executive Director Jackie Johnson provided an update on NCAI efforts and the legislative front in Washington, D.C. Dirk Kempthorne, Secretary of the Interior, gave the keynote speech, addressing the Cobell v. Kempthorne litigation and the meth crisis in Indian Country, announcing the development a Secretarial initiative that will focus on both law enforcement and treatment.

The general NCAI membership was addressed by a number of panelists (listed below), who focused on Trust Settlement, Tribal and BIA Public Safety, and Healthy Communities and Culture. NCAI also held breakout sessions focused on the following areas: American Indian and Alaska Native youth with disabilities, tribal education departments, federal recognition, meth, tribal environmental issues, self-governance and violence against Native women. (The session addressing meth served as the inaugural meeting of the NCAI National Indian Country Meth Task Force, the official NCAI sister organization to the Indian Country Meth Initiative Federal Agency Task Force.) Panelists included:

• Representative Charles Rangel (D-NY);

• Senator Byron Dorgan (D-ND), Vice-Chairman of the SCIA, via a video recording;

• Senator (Ret.) Ben Nighthorse Campbell, Senior Policy Advisor, Holland & Knight LLP;

• David Mullon, Majority General Counsel and Policy Director, SCIA;

• Allison Binney, Minority General Counsel, SCIA;

• Honorable Mike Marchand, Chairman, Confederated Tribes of Colville Reservation;

• Keith Harper, Cobell Attorney ;

• Reuben Barrales, Deputy Assistant to the President and Director of the White House Office of Intergovernmental Affairs;

• Richard Saunders, Chief of Police, Tohono O’odham Nation;

• Chris Chaney, Deputy Director, BIA Justice Services;

• Honorable Alex Kozinski, Judge, 9th Circuit U.S. Court of Appeals;

• Kevin Gover, Professor of Law, Arizona State University;

• Gerald Hill, President, Indigenous Languages Institute;

• Mark LeBeau, Co-Chair, NCAI Sacred Site Coalition, Vice-Chair, Native Coalition for Medicine Lake Highlands Defense and member of the Pit River Tribe;

• Eric Broderick, Administrator, Substance Abuse and Mental Health Services Administration (“SAMHSA”); and

• Sally Smith, Chair, National Indian Health Board.

White House Fellowship Program. The White House announced a fellowship program open to all Americans in the early stages of their professional careers. Applicants must be interested in directly participating in the federal government. While current federal employees are not eligible, armed services career military personnel are eligible. Fellows will be assigned as assistants to the Vice President, a Cabinet member, or the President’s staff, and educational programs will be part of the program. Selection for the fellowship will be based on the following criteria: achievement, intellectual ability, evidence of leadership, and community involvement. Applications are due November 15, 2006. For this and other fellowship programs please see http://www.apa.org/pi/wpo/fellows.html.

Upcoming Events

November 13-16 – Global Gaming Expo (G2E). Training and Development Institute and Annual Conference. Las Vegas, Nevada.

November 15 – Comment Deadline for the NIGC’s Proposed Rulemaking on Class II Definitions, Game Classification Standards and Technical Standards. Contact: Penny Coleman or John Hay, National Indian Gaming Commission, PH: (202) 632-7003, Fax: (202) 632-7066, Federal Register Notice:
http://a257.g.akamaitech.net/7/257/2422/01jan20061800/edocket.access.gpo.gov/

2006/E6-15992.htm.

November 28-December 1 – Native Youth Leadership Academy. Presented by the Native Wellness Institute, San Diego, California.
http://www.nativewellness.com/conference.html

December 4 – Comment Deadline for the BIA’s Proposed Rulemaking for Gaming on Trust Lands Acquired After October 17, 1988. Contact: George Skibine, Director, Office of Indian Gaming Management, PH: (202) 219-4066, Federal Register Notice:
http://a257.g.akamaitech.net/7/257/2422/01jan20061800/edocket.access.gpo.gov/

2006/E6-16490.htm.

December 5-6 – Tribal Lands Climate Conference. Hosted in partnership with the National Wildlife Federation. Cocopah Indian Nation Casino, Somerton, Arizona.
http://tribalclimate.org/

December 6-7 – National American Indian Housing Council Legal Symposium. A Forum for Legal, Financial, and Regulatory Issues in Indian Housing, Las Vegas, Nevada.
http://www.naihc.net/conferences/index.asp

December 11-12 – Tribal Energy in the Southwest. Indian Pueblo Cultural Center, Albuquerque, New Mexico.
http://www.lawseminars.com/seminars/06TRIBNM.php

December 13-15 – Council of Energy Resource Tribes Member Meeting. Four Points Sheraton, Denver, Colorado.
http://www.certredearth.com/events.php

January 16-19 – 12th Annual Western Indian Gaming Conference. Pechanga Resort and Casino, Temecula, California.
http://www.cniga.com/wigc07/index.html

February 26-28 – National Congress of American Indians Executive Council Winter Session. Wyndham Hotel, Washington, D.C.
http://www.ncai.org/Conferences_Events.7.0.html

INDIAN LAW PRACTICE GROUP

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Lynn G. Cutler • lynn.cutler@hklaw.com

Kathryn L. Dando • kate.dando@hklaw.com

David Devendorf • david.devendorf@hklaw.com

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