Holland & Knight - Indian Law Alert - 2006 Year End Report - CAPITOL HILL

Indian Law
Alert - 2006 Year End Report

CAPITOL HILL – Overview of 2006

March 28, 2007

This Report summarizes some of the major actions of 2006, the second session of the 109th Congress, and related events.

The second session of the 109th Congress began in the wake of several lobbying scandals, most prominent of which was that involving former lobbyist Jack Abramoff and his colleagues. Abramoff was ultimately convicted in federal court and imprisoned for felony charges related to his acts of defrauding several tribes and corrupting public officials. In addition to lobbying reform, Congress focused on tribal campaign contributions because of Abramoff’s involvement and influence. Despite the attention to lobbying and campaign contribution reform, the Senate did confirm sitting Federal Appeals Court Judge Samuel Alito, Jr. as an Associate Justice of the Supreme Court to replace Justice Sandra Day O’Connor, who retired.

During the second session, Congress reauthorized the USA PATRIOT Act (Pub.L. 109-177) as well as a $94.5 billion emergency supplemental appropriations package for defense, the global war on terror, and hurricane recovery (Pub.L. 109-234). Both the House and Senate passed the Legislative Transparency and Accountability Act in response to the lobbying scandals, but never reached an agreement in conference and therefore failed to enact any bill into law. In the third quarter, Congress passed the Pension Protection Act (Pub.L. 109-280) and several national security bills, including the fiscal year (“FY”) 2007 Department of Defense and the Department of Homeland Security appropriations bills (Pub.L. 109-289 and Pub.L. 109-295, respectively), the Security and Accountability for Every Port Act (“SAFE Port Act”) (Pub.L. 109-347), and the Secure Fence Act (Pub.L. 109-367). Congress adjourned in late September in anticipation of the November 7, 2006 mid-term Congressional election for the entire House of Representatives and one-third of the Senate. Congress reconvened for post-election or “lame duck” sessions, with the Democrats looking forward to controlling both the House and the Senate when the 110th Congress convenes. The lame duck sessions were dominated by efforts to address the unfinished FY 2007 appropriations bills. Congress ultimately passed three separate continuing resolutions (“CR”) to temporarily fund the federal government through February 15, 2007, effectively allowing the 110th Congress to decide most funding decisions for the Fiscal Year that began on October 1, 2006 and runs through September 31, 2007.

EYE ON CONGRESS

FY 2007 Appropriations

During the second session, the House was able to pass all but one of the annual appropriations bills before the end of the 2006 Fiscal Year. The sole exception was the Labor, Health and Human Services and Education Appropriations bill, which was held up in the Appropriations Committee because of a provision added by then Minority Whip Steny Hoyer (D-MD) to increase the federal minimum wage by two dollars and ten cents over two years. Meanwhile, the Senate fell behind schedule and failed to pass several measures. As a result, the Senate elected to focus on the Defense and Homeland Security appropriations bills to address national security priorities. In addition, the Senate passed the Military Construction and Veterans Affairs Appropriations Act, but the bill did not make it out of conference. Therefore, only two FY 2007 bills were enacted - the Department of Defense and the Department of Homeland Security appropriations bills.

Because the 109th Congress failed to pass nine of the eleven appropriations bills, it was forced to pass three separate CRs to temporarily fund the federal government from the start of FY 2007 on October 1, 2006. The last CR funded the government through the start of the 110th Congress and until February 15, 2007. Shortly after the last CR was passed, extending funding through to the 110th Congress, incoming Appropriations Chairmen Representative David Obey (D-WI) and Senator Robert Byrd (D-WV) announced that they intended to pass a long-term joint resolution (“JR”) to fund the federal government for the remainder of FY 2007, rather than passing individual appropriations bills. This was an unexpected and unprecedented plan. The Chairmen indicated that the JR will be “clean”, without any FY 2007 earmarks previously reported by the Senate Committee or passed by the House. In addition, the Democratic Leadership announced that it will cease earmarking until reforms are made to the process.

At the close of 2006, the JR was expected to be based on FY 2006 appropriations levels, rather than the FY 2007 budget resolution figures. The JR was not expected in include detailed numbers for each of the various federal programs funded by each appropriations bill. Instead, it was anticipated that the JR would only allocate dollar amounts at the programmatic level. This would simply shift the responsibility of distributing federal funds to the respective federal agencies; however, Democratic leadership also suggested it would consider reallocating funding among programs and Departments. The following are the relevant FY 2006 Interior Appropriations Act (P.L. 109-54) amounts upon which the JR was expected to based:

• $1.9 billion for the Operation of Indian Programs;

• $191.5 million for the Office of Special Trustee for American Indians; and

• $2.7 billion for the Indian Health Service.

Indian Gaming

Despite efforts in both the House and Senate, Congress did not enact any changes to the Indian Gaming Regulatory Act (“IGRA”) in 2006. Several bills were introduced seeking to amend section 20 of IGRA, which allows tribes to conduct gaming on land acquired after IGRA was enacted on October 17, 1988. In addition, Minimum Internal Control Standards (“MICS”), the review of gaming contracts, and regulatory oversight by the National Indian Gaming Commission (“NIGC”) were also the subject of legislative proposals. The following provides a list of bills introduced in 2006:

• H.R. 4677 (Rogers, R-MI). (January 31, 2006) – To impose a two year moratorium on the approval of new tribal-state gaming compacts by the Secretary of the Interior, pursuant to IGRA.

• H.R. 4696 (Rogers, R-MI). Restoring Trust in Government Act (February 1, 2006) – To make certain reforms in lobbying, ethics, and campaign finance laws, and for other purposes. Title III of the bill, “Indian Gambling Reform,” sought to: (1) subject the ten persons or entities with the highest financial interest in a gaming operation to background investigations; (2) define the “state” as encompassing the Governor and a State’s legislature; and (3) change the section 20 provisions of IGRA to limit off-reservation gaming.

• H.R. 4893 (Pombo, R-CA). Restricting Indian Gaming to Homelands of Tribes (“RIGHT”) Act (March 7, 2006) – To amend section 20 of IGRA to restrict off-reservation gaming.

• H.R. 5125 (Costa, D-CA). (April 6, 2006) – To amend IGRA to provide that the Secretary of the Interior shall not approve a tribal-state gaming compact, pursuant to IGRA, unless the state has a Secretarially approved law establishing a master plan for gaming.

• S. 2078 (McCain, R-AZ). Indian Gaming Regulatory Act Amendments of 2006 (November 18, 2005) – To amend IGRA to clarify the authority of the NIGC to regulate class III gaming, to limit the lands eligible for gaming, and for other purposes.

Executive comment was requested from the Interior regarding H.R. 4677, H.R. 4696, and H.R. 5125, but no further action was taken on any of the measures.

Of these bills, only H.R. 4893 and S. 2078 were the subject of major Committee or floor action during the second session. H.R. 4893, the RIGHT Act, was a legislative priority of House Resources Committee (“HRC”) Chairman Richard Pombo (R-CA). The bill was marked up and approved by the HRC on July 26, 2006. And although several provisions were removed from H.R. 4893 that were considered an attack on tribal sovereignty, many tribes remained opposed to the Act because of a provision that would have required tribes to negotiate agreements with counties, creating a dangerous precedent in Indian Law. On September 13, House Republican leadership unsuccessfully tried to pass the RIGHT Act under the suspension calendar, where it was required to obtain a super majority or two thirds vote to pass. 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.

S. 2078, the top priority of the Chairman of the Senate Committee on Indian Affairs (“SCIA”), Sen. John McCain (R-AZ), was marked up by the SCIA on March 29, 2006, but the report accompanying the bill was not filed until June 6. After the report was filed, the bill was placed on the Senate Legislative Calendar. However, Chairman McCain sought passage by unanimous consent, which requires a bill to be passed without objection by any Senator. Several Senators immediately placed holds on the bill and Chairman McCain was not able to convince one or more of these Senators to lift their hold to allow the bill to be considered by the full Senate. As a result, S. 2078 died on the Calendar.

Even if a bill similar to H.R. 4893 is introduced during the 110th Congress it is very unlikely that it will receive much, or any, attention in the HRC, primarily because Chairman Pombo was not re-elected to Congress and the new Democratic Chairman of the HRC, Nick Rahall (D-WV) has vowed not to include gaming as part of the Committee’s priorities for 2007. Similarly, even if a bill similar to S. 2078 is introduced in the 110th Congress, Senator McCain will no longer chair the SCIA since the Republicans lost control with the November election. However, new SCIA Chairman Byron Dorgan (D-ND) has indicated that if the Department of the Interior (“DOI”) does not make progress on the effort to implement section 20 regulations, he might reconsider the need for gaming legislation.

Trust Reform

S. 1439, the Indian Trust Reform Act of 2005, also saw significant action in the Senate in 2006. Most significantly, for the first time the Chairman and Vice-Chairman of the SCIA circulated a proposed settlement figure for the Cobell litigation. However, after distributing a draft bill that proposed an $8 billion settlement figure, the Committee failed to schedule a vote on the revised legislation, reportedly because the Administration would not approve an $8 billion settlement figure. Tribal sentiment on the legislative proposal was mixed, with some tribes opposed to some of the bill’s provisions.

S. 1439 sought to reform Indian trust asset management and settle the historical accounting claims raised in Cobell v. Kempthorne. Title I addressed the Cobell case, which began in 1996 (as Cobell v. Babbitt), while the remaining five titles sought to reform trust resources management, including the mandatory settlement of all Indian trust asset mismanagement claims. Title II would have created an Indian Trust Asset Management Policy Review Commission to review all federal laws or regulations and DOI practices relating to trust asset management and administration. Title III would have created a demonstration project allowing up to thirty tribes to develop their own Trust Asset Management Plans for the administration of their trust assets unique to their situation, but still in compliance with all federal laws. Title IV sought to amend the Indian Land Consolidation Act to increase land consolidation and the purchase of fractional interests. Title V sought to abolish the Office of the Special Trustee for American Indians and transfer that authority to a new Under Secretary of Indian Affairs. Title VI would have required annual audit reports for all individual, tribal, or other trust accounts.

On October 23, the SCIA released a “Briefing Paper” addressing Indian trust reform and seeking 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. The substance of the two-page document originated within the Bush Administration, though 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 SCIA subsequently held six consultation meetings to discuss the concepts set forth in the briefing paper and the Indian Trust Reform Act. Legal Counsel for the Cobell plaintiffs indicated that the mandatory settlement of asset and tribal trust account mismanagement was premature, since the claims are not part of the Cobell litigation and have not been explored by all interested parties. In addition, the plaintiffs stated they would not support a bill unless it included opt-out provisions for the settlement of asset mismanagement claims. Several tribes noted that they had invested significant resources in litigating their own trust account mismanagement claims or elected not to litigate those claims, in arguing that those decisions should not be overridden by the Indian Trust Reform Act.

It remains unclear how, or if, the 110th Congress will proceed with a legislative settlement of Cobell or trust management reform. Incoming SCIA Chairman Byron Dorgan (D-ND) has indicated that while settlement and reform are important, his priority is the reauthorization of the Indian Health Care Improvement Act, which was not passed during the 109th Congress.

COMMITTEE ACTION

Hearings – The following is a list of hearings held in 2006 that affect Indian Affairs.

Off-Reservation Gaming (Feb. 1). The SCIA held a hearing on the restored lands and initial reservation lands exceptions to the general prohibition of gaming on lands acquired after Congress enacted IGRA on October 17, 1988.

Campaign Finance Reform (Feb. 8). The SCIA held a hearing on campaign finance reform, following assertions that a tribal “loophole” for contributions existed.

President’s FY 2007 Budget Request for Indian Programs (Feb. 14). The SCIA held a hearing on the FY 2007 President’s Budget for Indian programs. In addition to addressing controversial cuts to the Johnson O’Malley program and the Urban Indian Health program, Senators questioned DOI officials regarding the decision to pay Cobell v. Norton attorney fees with Indian program funds.

Gaming – Two-Part Determination Process (Feb. 28). The SCIA held a hearing on the two-part determination process for taking land into trust under section 20 of IGRA.

Cobell v. Norton Litigation (Mar. 1). The HRC and the SCIA held a joint hearing to address the possibility of a legislative settlement to the Cobell litigation, the class action suit against the federal government regarding the mismanagement of Individual Indian Monies (“IIM”) trust accounts.

Rural Telecommunications (Mar. 7). The Senate Commerce, Science and Transportation Committee held a hearing on rural telecommunications, which also addressed telecommunications problems in Indian Country.

Gaming – Contract and Regulatory Provisions in S. 2078 (Mar. 8). The SCIA held a hearing on the contract and regulatory provisions of S. 2078, the Indian Gaming Regulatory Act Amendments of 2005.

Indian Health Service Budget (Mar. 8). The House Appropriations Subcommittee on Interior, Environment and Related Agencies held a hearing on the IHS budget for FY 2007.

Gaming - H.R. 4893 (Mar. 15). The HRC held a hearing on H.R. 4893, a bill to amend section 20 of IGRA to restrict off reservation gaming, to hear testimony from the Administration.

Child Abuse Prevention, S. 1899 (Mar. 15). The SCIA held a hearing on S. 1899, the Indian Child Protection and Family Violence Prevention Amendments Act, a bill to amend the Indian Child Protection and Family Violence Prevention Act to identify and remove barriers to reducing child abuse, to provide for examinations of certain children, and for other purposes.

Trust Reform - Titles II-VI of S. 1439 (Mar. 28). The SCIA held a hearing on S. 1439, the Indian Trust Reform Act, a bill to provide for Indian trust asset management reform and the resolution of historical accounting claims, and for other purposes. The hearing focused on Titles II-VI of the bill. Majel Russell testified that existing problems are the result of a lack of funding and a lack of training, rather than the result of tribal mismanagement.

Tribal Development Corporation Feasibility Study Act, H.R. 3350 (Mar. 29). The HRC held a hearing on H.R. 3350, the Tribal Development Corporation Feasibility Study Act, a bill to amend the Native American Business Development, Trade Promotion, and Tourism Act of 2000 to establish a Tribal Development Corporation Feasibility Study Group.

Pechanga Band of Luiseno Mission Indians Transfer Act, H.R. 3507 (Mar. 29). The Senate Public Lands and Forests Subcommittee held a hearing which addressed, among other measures, H.R. 3507, the Pechanga Band of Luiseno Mission Indians Transfer Act, a bill to transfer certain land in Riverside and San Diego Counties, California, from the Bureau of Land Management to the United States to be held in trust for the Pechanga Band of Luiseno Mission Indians, and for other purposes.

FY 2007 Interior Appropriations (Mar. 29). The Senate Appropriations Subcommittee on Interior and Related Agencies held a hearing on FY 2007 appropriations for DOI .

FY 2007 BIA and IHS Appropriations (Mar. 30). The House Appropriations Subcommittee on Interior, Environment, and Related Agencies held its annual hearing for tribal witnesses to comment on the FY 2007 budget request for the BIA and the IHS.

Internet Gambling Prohibition Act, H.R. 4777 (April 5). The House Judiciary Subcommittee on Crime, Terrorism, and Homeland Security held a hearing on H.R. 4777, the Internet Gambling Prohibition Act, a bill to amend title 18 of the United States Code to expand and modernize the prohibition against interstate gambling, and for other purposes.

Gaming - H.R. 4893 (April 5). The HRC held a second hearing on H.R.4893, a bill to amend IGRA to restrict off-reservation gaming, to hear testimony from tribal leaders.

Methamphetamine in Indian Country (April 5). The SCIA held a hearing on the methamphetamine problem in Indian Country.

Nomination to Secretary of the Interior – Governor Dirk Kempthorne (R-ID) (May 4). The Senate Energy and Natural Resources Committee held a hearing on Governor Kempthorne’s nomination to serve as Secretary of the Interior.

Energy Policy Act of 2005 – Hydro Power Licensing (May 8). The Senate Energy and Natural Resources Committee held a hearing on the implementation of hydroelectric facilities licensing provisions in the Energy Policy Act of 2005. Andrew Fahlund expressed concerns that the Act had inherent advantages for industry and inherent disadvantages for groups including federally recognized tribes.

Economic Development in Indian Country (May 10). The SCIA held a hearing on non-gaming economic development in Indian Country.

Indian Youth Suicide (May 17). The SCIA held a hearing on Indian youth suicide. Chairman of the Alaska State Suicide Prevention Council William Martin, First Vice-President of Central Council of Tlingit and Haida Indian Tribes of Alaska, related Alaska’s success with the Gatekeeper Program, which trains first-responders to respond to suicide attempts, but added that such programs are seriously under funded.

Tribally Issued Tax-Exempt Bonds (May 23). The Senate Finance Committee held a hearing on economic self-determination in Indian Country. Testimony focused on tribally issued tax-exempt bonds.

Indian Education (May 25). The SCIA held a hearing on the status of Indian education.

Tribal Parity Act, S. 374 and Cheyenne River Sioux Tribe Equitable Compensation Amendments Act, S. 1535 (June 14). The SCIA held a hearing on S. 374, the 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, and S. 1535, the Cheyenne River Sioux Tribe Equitable Compensation Amendments Act, 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.

Illegal Immigration on Public and Tribal Lands (June 15). The House Appropriations Subcommittee on the Interior, Environment and Related Agencies held a hearing on the effects of illegal immigration on public and tribal lands. The testimony of both Selanhongva McDonald from the BIA Western Regional Office and Representative Tom Tancredo (R-CO) focused on tribal lands, using the Tohono O’odham Nation as an example. The witnesses explained that tribal lands are different from federal lands, as a result of the unique harms posed by campers in historic villages, damage to culturally-sensitive natural resources and disturbances to burial sites.

Navajo-Hopi Land Settlement Amendments, S. 1003 (June 20). The HRC held a hearing on S. 1003, the Navajo-Hopi Land Settlement Amendments, a bill to amend the Act of December 22, 1974, and for other purposes.

Thomasina E. Jordan Indian Tribes of Virginia Federal Recognition Act, S. 480 and the Grand River Bands of Ottawa Indians of Michigan Referral Act, S. 437 (June 21). The SCIA held a hearing on S. 480, the Thomasina E. Jordan Indian Tribes of Virginia Federal Recognition Act, 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, and S. 437, the Grand River Bands 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 federal recognition as a Indian tribe.

Alaska Native Corporations and Federal Procurement (June 21). The House Government Reform and Small Business Committees held a joint hearing on the effect of Alaska Native Corporations on federal procurement.

Mni Wiconi Rural Water Supply Project, S. 3404 (June 28). The Senate Energy and Natural Resources Committee held a hearing on pending legislation, including S. 3404, a bill to reauthorize the Mni Wiconi Rural Water Supply Project. The Project was designed to supply water to the Lower Brule and Pine Ridge reservations as well as nine southwestern South Dakota counties.

Native American Housing (June 28). The SCIA held a hearing on the challenges for Native American housing programs.

Lumbee Recognition Act, S. 660 (July 12). The SCIA held a hearing on S. 660, the Lumbee Recognition Act, a bill to provide for the acknowledgement of the Lumbee Tribe of North Carolina, and for other purposes.

Tribal Labor Relations Restoration Act, H.R. 16 (July 20). The House Education and the Workforce Subcommittee on Employer-Employee Relations held a hearing on H.R. 16, the Tribal Labor Relations Restoration Act. The Act would reverse a controversial decision made in the spring of 2004 by the National Labor Relations Board (“NLRB”) to extend its jurisdiction to include activities conducted by Native American tribes on Native American lands.

Removing Barriers to Homeownership for Native Americans (July 31). The House Financial Services Subcommittee on Housing and Community Opportunity held a field hearing in Camp Verde, Arizona on Native American housing.

Breaking the Methamphetamine Supply Chain (Sept. 12). The Senate Finance Committee held a hearing on the challenges that law enforcement faces in breaking the supply chain for methamphetamine.

13th Regional Corporation Land Entitlement Act, H.R. 5617 and the Copper Valley Native Allotment Resolution Act, H.R. 5781 (Sept. 12). The HRC held a hearing on H.R. 5617, the 13th Regional Corporation Land Entitlement Act, a bill to amend the Alaska Native Claims Settlement Act (“ANCSA”) to provide an equitable distribution of land to the 13th Alaska Native Regional Corporation, and H.R. 5781, 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.

Nomination to Assistant Secretary of Indian Affairs – Carl Artman (Sept. 14). The SCIA held a hearing on the nomination of Carl Artman to serve as Assistant Secretary of Indian Affairs.

Tribal Self-Governance (Sept. 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.

INDIAN LEGISLATION – 2006

House Bills

H.R. 4677 (Rogers, R-MI). (Jan. 31) – to impose a two year moratorium on the approval by the Secretary of the Interior of new tribal-state gaming compacts, pursuant to IGRA, and for other purposes. Last Action: The HRC requested executive comment from DOI on February 2.

H.R. 4696 (Rogers, R-MI). Restoring Trust in Government Act (Feb. 1) – to make certain reforms in lobbying, ethics, and campaign finance laws, and for other purposes. Title III of the bill, “Indian Gambling Reform,” sought to require additional background investigations for persons or entities with financial interests in a gaming operation, expand the statutory definition of “state” to include the governor and the legislature, and limit off-reservation gaming. Last Action: The HRC requested executive comment from DOI on February 9.

H.R. 4766 (Wilson, R-NM). Esther Martinez Native American Languages Preservation Act of 2006 (Feb. 15) – to amend the Native American Languages Act to provide support for Native American language survival schools, and for other purposes. Last Action: Became P.L. 109-394 on December 14.

H.R. 4801 (Stupak, D-MI). Michigan Indian Land Claims Settlement Act Amendments (Feb. 16) – to extend the deadlines for distributing certain funds secured by the Michigan Indian Land Claims Settlement Act and for other purposes. Last Action: The HRC requested executive comment from DOI on February 24.

H.R. 4802 (Stupak, D-MI). Burt Lake Band of Ottawa and Chippewa Indians Reaffirmation Act (Feb. 16) – to reaffirm and clarify the federal relationship of the Burt Lake Band as a distinct federally recognized Indian tribe, and for other purposes. Last Action: The HRC requested executive comment from DOI on March 1.

H.R. 4863 (Diaz-Balart, R-FL). (Mar. 2) – to establish a Department of State pilot program for the improvement of government-to-government relations with the Miccosukee Tribe of Indians of Florida. Last Action: The HRC requested executive comment from DOI on March 7.

H.R. 4871 (Pallone, D-NJ). Tribal Government Homeland Security Coordination and Integration Act (Mar. 2) – to ensure the coordination and integration of Indian tribes in the National Homeland Security strategy and to establish an Office of Tribal Government Homeland Security within the Department of Homeland Security, and for other purposes. Last Action: The HRC requested executive comment from the Department of Homeland Security on March 9.

H.R. 4876 (Udall, D-NM). (Mar. 2) – to ratify the conveyance of a portion of the Jicarilla Apache Reservation to Rio Arriba County, New Mexico, pursuant to the settlement of litigation between the Jicarilla Apache Nation and Rio Arriba County, New Mexico, to authorize the issuance of a patent for said lands, and to change the exterior boundary of the Jicarilla Apache Reservation accordingly, and for other purposes. Last Action: Referred to the SCIA on November 13.

H.R. 4893 (Pombo, R-CA). Restricting Indian Gaming to Homelands of Tribes (“RIGHT”) Act of 2006 (Mar. 7) – to amend section 20 of IGRA to restrict off-reservation gaming. Last Action: Failed on the suspension calendar on September 13.

H.R. 4934 (Udall, D-CO). (Mar. 9) – to amend the Carl D. Perkins Vocational and Technical Education Act of 1998 to modify the definition of “Indian student count.” Last Action: Referred to the Subcommittee on Education Reform on May 1.

H.R. 4936 (Udall, D-CO). National Fund for Excellence in American Indian Education Amendments Act of 2006 (Mar. 9) – to amend the Indian Self-Determination and Education Assistance Act (“ISDEAA”) to modify provisions relating to the National Fund for Excellence in American Indian Education. Last Action: Referred to the Subcommittee on Education Reform on May 1.

H.R. 4951 (Grijalva, D-AZ). Cocopah Lands Act (Mar. 14) – to direct the Secretary of the Interior to take lands in Yuma County, Arizona, into trust as part of the reservation of the Cocopah Indian Tribe, and for other purposes. Last Action: The HRC requested executive comment from DOI on March 16.

H.R. 5125 (Costa, D-CA). (April 6) – a bill to amend IGRA to provide that the Secretary of the Interior shall not approve a tribal-state gaming compact unless the state involved has a gaming master plan law that has been approved by the Secretary. Last Action: The HRC requested executive comment from DOI on April 19.

H.R. 5130 (Davis, R-VA). (April 6) – to extend federal recognition to the Rappahannock Tribe, and for other purposes. Last Action: The HRC requested executive comment from DOI on May 5.

H.R. 5222 (Case, D-HI). Native American Languages Amendments Act of 2006 (April 27) – to amend the Native American Languages Act to provide support to Native American language survival schools, and for other purposes. See also S. 2674. Last Action: Referred to the Subcommittee on 21st Century Competitiveness on May 24.

H.R. 5225 (DeGette, D-CO). Diabetes Prevention Access and Care Act (April 27) – to amend the Public Health Service Act to aid in preventing and curing diabetes and to reduce the diabetes health disparities within racial and ethnic minority groups, including American Indian and Alaskan Native communities. Last Action: Referred to the Subcommittee on Health on May 15.

H.R. 5289 (Johnson, R-IL). Protection of University Governance Act of 2006 (May 4) – to provide institutions of higher education with a right of action against entities that improperly regulate intercollegiate sports activities (e.g. when the National Collegiate Athletic Association (“NCAA”) prohibits schools from participating in post-season games due to a school’s Native American mascot). Last Action: Referred to the Subcommittee on 21st Century Competitiveness on May 24.

H.R. 5394 (Hooley, D-OR). (May 16) – to waive application of the ISDEAA 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, and for other purposes. See also S. 3687. Last Action: The HRC requested executive comment from DOI on May 24.

H.R. 5564 (Herseth, D-SD). Indian Country Educational Empowerment Zone Act (June 8) – to facilitate economic growth and development and to promote tribal sovereignty, by encouraging a dramatic increase in the number of individuals with higher education degrees working within and for Indian Country. Last Action: Referred to the Subcommittee on 21st Century Competitiveness on July 24.

H.R. 5565 (Herseth, D-SD). Oglala Sioux Tribe Angostura Irrigation Project Modernization and Development Act (June 8) – to enhance and provide to the Oglala Sioux Tribe and the Angostura Irrigation Project certain benefits of the Pick-Sloan Missouri River basin program. Last Action: The HRC requested executive comment from DOI and also referred to the bill to the HRC Subcommittee on Water and Power on June 21.

H.R. 5617 (Young, R-AK). 13th Regional Corporation Land Entitlement Act (June 14) – to amend the Alaska Native Claims Settlement Act (“ANCSA”) to provide an equitable distribution of land to the 13th Alaska Native Regional Corporation. Last Action: Hearing held by the HRC on September 13.

H.R. 5639 (Herseth, D-SD). (June 19) – to reauthorize the Mni Wiconi Rural Water Supply Project. The Project was designed to supply water to the Lower Brule and Pine Ridge reservations as well as nine southwestern South Dakota counties. Last Action: The HRC requested executive comment from DOI and also referred to the bill to the HRC Subcommittee on Water and Power on June 27.

H.R. 5779 (Udall, D-CO). (July 12) – to establish the treatment of actual rental proceeds resulting from land leases acquired under an untitled Act to provide for loans to Indian tribes and tribal corporations. Last Action: The HRC requested executive comment from DOI on July 18.

H.R. 5780 (Udall, D-CO). (July 12) – to amend the Indian Financing Act of 1974 to provide for the sale and assignment of loans and underlying security, and for other purposes. Last Action: The HRC requested executive comment from DOI on July 18.

H.R. 5781 (Young, R-AK). Copper Valley Native Allotment Resolution Act of 2006 (July 12) – to grant rights of way for electric transmission lines over certain Native allotments in the state of Alaska. See also S. 3000. Last Action: Hearing held by the HRC on September 13.

H.R. 5804 (Rehberg, R-MT) Little Shell Tribe of Chippewa Indians Restoration Act of 2006 (July 13) – to extend the federal relationship to the Little Shell Tribe of Chippewa Indians of Montana as a distinct federally recognized Indian tribe, and for other purposes. Last Action: The HRC requested executive comment from DOI on July 18.

H.R. 5842 (Pearce, R-NM). Pueblo of Isleta Settlement and Natural Resources Restoration Act of 2006 (July 19) – 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 (P.L. 109-379). See also S. 3648. Last Action: Became P.L. 109-379 on December 1.

H.R. 5868 (Grijalva, D-AZ). (July 24) – to amend the Morris K. Udall Scholarship and Excellence in National Environmental and Native American Public Policy Act of 1992 to provide funds for training in tribal leadership, management, and policy, and for other purposes. Last Action: Referred to the Subcommittee on Select Education on September 28.

H.R. 5878 (Cummings, D-MD). Minority Entrepreneurship and Innovation Pilot Program of 2006 (July 25) – a bill to establish a 2-year pilot program to develop a curriculum at minority schools, including tribal colleges and universities, to foster entrepreneurship and business development in underserved minority communities. See also S. 2586. Last Action: Referred to the Subcommittee on Select Education and the Subcommittee on 21st Century Competitiveness on September 28.

H.R. 4 (Boehner, R-OH). Pension Protection Act of 2006 (July 28) – to provide economic security for all Americans, and for other purposes. The bill amended Section 906 of the Internal Revenue Code, under which plans established and maintained by Indian tribal employers may qualify as “governmental plans.” Last Action: Became P.L. 109-280 on August 17.

H.R. 6043 (Hastings, R-WA). (Sept. 7) – 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 apply to those remains. Last Action: The HRC requested executive comment from DOI on September 18.

H.R. 6069 (Waxman, D-CA). Clean Contracting Act (Sept. 13) – to reform the acquisition practices of the federal government. Last Action: Referred to the Subcommittee on Readiness on October 10.

H.R. 6105 (Herseth, D-SD). (Sept. 19) – to amend the Indian Health Care Improvement Act (“IHCIA”) to help ensure that no service hospital or outpatient health facility is closed unless Congressional reporting requirements regarding the hospital or facility are current. Last Action: Referred to the Subcommittee on Health on September 25.

H.R. 6119 (Dicks, D-WA). Puget Sound Regional Shellfish Settlement Act of 2006 (Sept. 20) – 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. Last Action: The HRC requested executive comment from DOI on September 25.

H.R. 6123 (Holt, D-NJ). Helping Fill the Medicare Prescription Gap Act of 2006 (Sept. 20) – to include prescription drug costs incurred by the IHS, among other organizations, 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. See also S. 3650. Last Action: to the Subcommittee on Health on September 25.

H.R. 6259 (Abercrombie, D-HI). Hawaiian Homeownership Opportunity Act of 2006 (Sept. 29) – to reauthorize the programs of the Department of Housing and Urban Development (“HUD”) for housing assistance for Native Hawaiians. Last Action: Referred to the Subcommittee on Housing and Community Opportunity on October 18.

H.R. 6301 (Renzi, R-AZ). Tribal Economic Development and Infrastructure Support Act of 2006 (Sept. 28) – to amend Title VI of the Native American Housing and Self-Determination Act (“NAHASDA”) of 1996 to authorize Indian tribes to issue notes and other obligations to finance community and economic development activities, and for other purposes. Last Action: Referred to the Subcommittee on Housing and Community Opportunity on October 18.

H.R. 6337 (Young, R-AK). (Nov. 15) – to provide equitable treatment for the people of the Village Corporation established for the Native Village of Saxman, Alaska, and for other purposes. See also S. 2615. Last Action: The HRC requested executive comment from DOI on November 20.

H.R. 6368 (Maloney, D-NY). Study of Ways to Improve the Accuracy of the Collection of Federal Oil, Condensate, and Natural Gas Royalties Act of 2006 (Dec. 5) – to provide for a study by the National Academy of Engineering to improve the accuracy of collection of royalties on production of oil, condensate, and natural gas under leases of Federal lands and Indian lands, and for other purposes. Last Action: Referred to the Subcommittee on Energy and Mineral Resources on December 11.

House Resolutions

H. Res. 829 (Souder, R-IN) (May 19) – expressing the sense of the House of Representatives that the Shadow Wolves should be preserved and fostered as one unit, located on the Tohono O’odham lands. Status: Referred to the Subcommittee on Economic Security, Infrastructure Protection, and Cybersecurity on May 23.

H. Res. 977 (McCollum, D-MN) (July 28) – reinforcing the federal government’s federal trust relationship and commitment to working with American Indian nations to empower, promote, and support the educational development of American Indian and Alaska Native children and youth. Status: Referred to the Subcommittee on Education Reform on September 28.

Senate Bills

S. 2245 (Dorgan, D-ND). Indian Youth Telemental Health Demonstration Project Act (Feb. 6) – to establish an Indian youth telemental health demonstration project for suicide prevention, intervention and the treatment of Indian youth. Last Action: Referred to the House Subcommittee on Health on June 5.

S. 2378 (Inouye, D-HI). Broadband Data and E-rate Improvement Act (Mar. 7) – to amend the Communications Act of 1934 to ensure that tribal libraries that receive assistance under the Library Services and Technology Act are eligible for e-rate assistance to the same extent as other libraries receiving such assistance and for other purposes. Last Action: Referred to the Committee on Commerce, Science, and Transportation on March 7.

S. 2464 (McCain, R-AZ). Fort McDowell Indian Community Water Rights Act (Mar. 28) – 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, and for other purposes. Last Action: Became P.L. 109-373 on November 27.

S. 2552 (McCain, R-AZ). Indian Tribes Methamphetamine Reduction Grants Act (April 5) – to amend the Omnibus Control and Safe Streets Act of 1968 to clarify that Indian tribes are eligible to receive grants for confronting the use of methamphetamine, and for other purposes. See also S. 4113. Last Action: Referred to the Committee on the Judiciary on April 5.

S. 2586 (Kerry, D-MA). Minority Entrepreneurship and Innovation Pilot Program of 2006 (April 6) – to establish a 2-year pilot program to develop a curriculum at historically black colleges and universities, tribal colleges, and Hispanic serving institutions to foster entrepreneurship and business development in underserved minority communities. See also H.R. 5878. Last Action: Referred to the Committee on Small Business and Entrepreneurship on April 6.

S. 2615 (Murkowski, R-AZ). (April 7) – to provide equitable treatment for the people of the Village Corporation established for the Native Village of Saxman, Alaska, and for other purposes. See also H.R. 6337. Last Action: Referred to the Committee on Energy and Natural Resources on April 7.

S. 2659 (Akaka, D-HI). Native American Veterans Cemetery Act of 2006 (April 26) – to amend title 38 of the United States Code to ensure Indian tribal organizations are eligible for grants to establish veterans cemeteries on trust lands. Last Action: Hearing held by the Committee on Veteran’s Affairs on September 13.

S. 2674 (Akaka, D-HI). Native American Languages Act Amendments Act of 2006 (April 27) – to amend the Native American Languages Act to provide for the support of Native American language survival schools, and for other purposes. See also H.R. 5222. Last Action: Referred to the SCIA on April 27.

S. 2825 (Bingaman, D-NM). Border Health Security Act of 2006 (May 17) – to establish grant programs to improve the health of border area residents and for bioterrorism preparedness in the border area, and for other purposes. Last Action: Referred to the Committee on Health, Education, Labor, and Pensions on May 17.

S. 2912 (DeWine, R-OH). Great Lakes Coordination and Oversight Act of 2006 (May 19) – to establish a Great Lakes Interagency Task Force, to establish a Great Lakes Regional Collaboration, and for other purposes. The bill proposes to create a four-member Executive Council, one of which is a tribally elected tribal representative. Last Action: Placed on Senate Legislative Calendar on September 20.

S. 3000 (Stevens, R-AK). Copper Valley Native Allotment Resolution Act of 2006 (May 24) – to grant rights of way for electric transmission lines over certain Native allotments in the state of Alaska. See also H.R. 5781. Last Action: Hearing held by the Committee on Energy and Natural Resources on September 27.

S. 3064 (Akaka, D-HI). Native Hawaiian Government Reorganization Act of 2006 (May 25) – to express the United States’ policy regarding its relationship with Native Hawaiians and to provide a process for the recognition by the United States of the Native Hawaiian governing entity. Last Action: Placed on Senate Legislative Calendar on May 26.

S. 3501 (McCain, R-AZ). (July 24) – to amend the Shivwits Band of the Paiute Indian Tribe of Utah Water Rights Settlement Act to establish an acquisition fund for the water rights and habitat acquisition program. Last Action: After being passed by the Senate, the HRC requested executive comment from DOI and referred to the Subcommittee on Water and Power on November 16.

S. 3524 (Grassley, R-IA). Medicare, Medicaid, and SCHIP Indian Health Care Improvement Act of 2006 (June 15) – to amend titles XVIII, XIX, and XXI of the Social Security Act to improve health care provided to Native Americans under the Medicare, Medicaid, and State Children’s Health Insurance Programs, and for other purposes. Last Action: S. Rept. 109-278 filed on July 12.

S. 3525 (Grassley, R-IA). Improving Outcomes for Children Affected by Meth Act of 2006 (June 15) – to amend subpart 2 of part B of title IV of the Social Security Act to improve outcomes for children in families affected by methamphetamine abuse and addiction, to reauthorize the Promoting Safe and Stable Families Program, and for other purposes. Last Action: Became P.L. 109-269 on September 28.

S. 3526 (McCain, R-AZ). Indian Land Consolidation Act Amendments of 2006 (June 15) – to amend the Indian Land Consolidation Act to modify certain requirements under that Act. Last Action: The HRC requested executive comment from DOI on November 15.

S. 3565 (Domenici, R-NM). (June 26) – to designate Sandoval County, Valencia County, and Torrance County, New Mexico, as new Southwest Border High Intensity Drug Trafficking Area counties. Last Action: Referred to the Committee on the Judiciary on June 26.

S. 3567 (Smith, R-OR). (June 26) – to amend the Internal Revenue Code of 1986 to provide for the treatment of Indian tribal governments as state governments for purposes of issuing tax-exempt governmental bonds, and for other purposes. Last Action: Referred to the Committee on Finance on June 26.

S. 3635 (Domenici, R-NM). Albuquerque Indian School Act (July 11) – to direct the Secretary of the Interior to take into trust two parcels of federal land for the benefit of the nineteen Indian Pueblos in the state of New Mexico. Last Action: Referred to the SCIA on July 11.

S. 3648 (Domenici, R-NM). Pueblo of Isleta Settlement and Natural Resources Restoration Act of 2006 (July 12) – 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. See also H.R. 5842. Last Action: H.R. 5842 became P.L. 109-379 on December 1.

S. 3650 (Bingaman, D-NM). Helping Fill the Medicare Prescription Gap Act of 2006 (July 12) – to include prescription drug costs incurred by the Indian Health Service, among other organizations, 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. See also H.R. 6123. Last Action: Referred to the Committee on Finance on July 12.

S. 3687 (Gordon, R-OR). (July 19) – to waive application of the ISDEAA 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 Indian tribes in the State of Oregon, and for other purposes. See also H.R. 5394. Last Action: The HRC requested executive comment from DOI on November 16.

S. 3885 (Johnson, D-SD) Lake Traverse Reservation Act Amendments of 2006 (Sept. 11) – a bill to amend Public Law 98-513 to provide for the inheritance of small fractional interests within the Lake Traverse Indian Reservation. Last Action: Referred to the SCIA on September 11.

S. 3953 (Kerry, D-MA) Minority Entrepreneurship Development Act of 2006 (Sept. 27) – a bill to foster the development of minority-owned small businesses. Last Action: Referred to the Committee on Small Business and Entrepreneurship on September 27.

S. 4113 (McCain, R-AZ). (Dec. 8) – to amend the Omnibus Crime Control and Safe Streets Act of 1968 to clarify that territories and Indian tribes are eligible to receive grants for confronting the use of methamphetamine. See also S. 2552. Last Action: Passed by the Senate on December 8 and held at the desk.

S. 4122 (McCain, R-AZ). (Dec.8) – to amend the Indian Health Care Improvement Act to revise and extend that Act. Last Action: Referred to the SCIA on December 8.

Senate Resolutions

S. Res. 358 (Johnson, D. SD) (Jan 30) – expressing the sense of the Senate that the Secretary of Health and Human Services, acting through the Director of IHS, should maintain the current operating hours of the Wagner Service Unit until the Secretary submits to Congress a new report that accurately describes the current conditions at the Wagner Service Unit. Last Action: Referred to the SCIA on January 30.

EXECUTIVE BRANCH

Public Laws Signed in 2006

Public Law 109-157 (Jan. 18) – Indian Land Probate Reform Technical Corrections Act of 2005 (S. 1481). An Act to amend the Indian Land Consolidation Act to provide for probate reform.

Public Law 109-179 (Mar. 13) – An Act to facilitate shareholder consideration of proposals to make Settlement Common Stock available to missed enrollees, eligible elders, and eligible persons born after December 18, 1971, pursuant to ANCSA, and for other purposes (S. 449).

Public Law 109-221 (May 12) – Native American Technical Corrections Act of 2006 (H.R. 3351). An Act to make technical corrections to laws relating to Native Americans, and for other purposes.

Public Law 109-224 (May 18) – An Act to require the Secretary of the Interior to accept the conveyance of certain land, to be held in trust for the benefit of the Puyallup Indian Tribe (S. 1382).

Public Law 109-280 (Aug. 17) – Pension Protection Act of 2006 (H.R. 4). An Act to provide economic security for all Americans.

Public Law 109-282 (Sept. 26) – Federal Funding Accountability and Transparency Act of 2006 (S. 2590). An Act to require full disclosure of all entities and organizations receiving federal funds.

Public Law 109-286 (Sept. 27) – Pueblo de San Ildefonso Claims Settlement Act of 2005 (S. 1773). An Act to resolve certain Native American claims in New Mexico.

Public Law 109-288 (Sept. 28) – Improving Outcomes for Children Affected by Meth Act of 2006 (S. 3525). An Act to amend subpart 2 of part B of title IV of the Social Security Act, to improve outcomes for children in families affected by methamphetamine abuse and addiction, to reauthorize the Promoting Safe and Stable Families Program, and for other purposes.

Public Law 109-373 (Nov. 27) – Fort McDowell Indian Community Water Rights Settlement Revision Act of 2006 (S. 2464). An Act 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, and for other purposes.

Public Law 109-378 (Dec. 1) – National Trails System Act Amendments (H.R. 3085). An Act to amend the National Trails System Act to update the feasibility and suitability study originally prepared for the Trail of Tears National Historic Trail and to provide for the inclusion of new trail segments, land components, and campgrounds associated with that trail.

Public Law 109-379 (Dec. 1) – Pueblo of Isleta Settlement and Natural Resources Restoration Act of 2006 (H.R. 5842). An Act 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, and for other purposes.

Public Law 109-394 (Dec. 14) – Esther Martinez Native American Languages Preservation Act of 2006 (H.R. 4766). An Act to amend the Native American Programs Act of 1974 to provide for the revitalization of Native American languages through Native American language immersion programs, and for other purposes.

Public Law 109-410 (Dec. 18) – An Act to authorize the Assiniboine and Sioux Tribes of the Fort Peck Indian Reservation in the State of Montana to enter into a lease or other temporary conveyance of water rights to meet the water needs of the Dry Prairie Rural Water Association, Inc (S. 1219).

Public Law 109-421 (Dec. 20) – An Act to provide for certain lands to be held in trust for the Utu Utu Gwaitu Paiute Tribe (H.R. 854).

Agency Action

Changes at the Department of the Interior. In March of 2006 Secretary of the Interior Gale Norton resigned her post and the President nominated Governor Dirk Kempthorne (R-ID) as her successor. On May 26, the Senate confirmed Kempthorne and he was sworn in on June 7 in a ceremony at the White House. Kempthorne indicated that he would strongly advocate for the settlement of the Cobell v. Norton (now known as Cobell v. Kempthorne) lawsuit. Kempthorne served in the Senate from 1993-1999 and was elected Governor of Idaho in 1998 and 2002. He has worked on gaming compacts, natural resources management and water rights. Since confirmation, Secretary Kempthorne has attended several tribal leaders meetings, reaffirmed his commitment to settling to the Cobell litigation and commented on the need to address the healthcare and methamphetamine crises in Indian Country.

In August, the President nominated Carl Artman to the post of Assistant Secretary for Indian Affairs, as a permanent replacement for Acting Assistant Secretary Jim Cason. Artman, an enrolled member of the Oneida Tribe of Wisconsin, was serving as Associate Solicitor for Indian Affairs. Artman’s nomination was approved by the SCIA in September but returned to the President in December because the Senate failed to confirm him before the adjournment of the 109th Congress. Mr. Artman’s nomination will need to be resubmitted to the Senate in the 110th Congress and proceed through the Committee process again before he can be confirmed by the full Senate.

BIA Announced Budget Cuts. On January 26, Acting Associate Deputy Secretary Jim Cason announced in a letter to tribal leaders that the Cobell v. Norton case had had an affect “upon the financial resources available to carry out Indian programs”. Due to the litigation, addressing historical wrongs regarding the federal government’s mismanagement of trust accounts and trust resources, Cason stated his intent to cut approximately $1 million from the BIA budget using an across-the-board rescission (with some exclusions) of program funds. The funding was later reinstated when the Saginaw Chippewa Tribe of Michigan returned funds slated for construction of a tribal school and specifically requested that the monies be used to replace the Cobell attorney’s fees budget cut.

Draft and Proposed Regulations from the BIA. During 2006 the BIA proposed regulations regarding the implementation of section 20 of IGRA and tribal revenue allocation plans. The proposed regulations are summarized below:

• Regulations for the Implementation of Section 20 of IGRA. In Spring 2006, the BIA released a revised draft proposed rule for establishing criteria for the implementation of section 20 of IGRA, which allows tribes to conduct gaming on land acquired after October 17, 1988 under certain exceptions, including the two-part determination process. The BIA currently follows a checklist in considering the exceptions; however, it has never published regulations regarding section 20 consideration. The BIA began developing its proposed regulations after congressional hearings and proposed legislation sought significant revisions to section 20 to address concerns about off-reservation gaming.

On October 5, the BIA published a notice of proposed rulemaking in the Federal Register to establish procedures for the implementation of section 20. 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) restored land for a restored tribe. Finally, the proposed regulations would make significant changes to the 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. The deadline for comments was originally December 4, but was extended to December 19, 2006 and extended again through February 1, 2007.

• Tribal Revenue Allocation Plans. On September 19, the BIA sent a letter to tribal leaders informally proposing amendments to the regulations governing the distribution of net gaming revenue through the use of per capita payments (25 CFR 290 et seq.). Under the proposed regulations, a tribe may not distribute per capita payments unless it has a BIA approved revenue allocation plan (“RAP”). In addition, the proposed amendments would require the RAP to: (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.

Draft and Proposed Regulations from the NIGC. During 2006, the NIGC informally and formally proposed or finalized regulations regarding: (1) minimum internal control standards (“MICS”); (2) facility licensing; (3) the definition for “electronic or electromechanical facsimile;” (4) classification standards for gaming machines; and (5) technical standards for electronic, computer and other technologic aids. The proposed regulations are summarized below:

• Minimum Internal Control Standards. On May 11, the NIGC published a final rule revising the MICS. The purpose of the revisions was to address shortcomings in the existing MICS and various changes in tribal gaming technology and methods. The regulations took effect on May 11, although extensions were available on a restricted basis.

• Facility Licensing Regulations. On May 12, the NIGC sent a letter to tribal gaming commission chairpersons informally proposing facility licensing regulations. Requirements proposed in the letter included: annually issued licenses for each place, facility or location of class II or class III gaming; a detailed “Indian Lands Eligibility Opinion” accompanying the first annual license; and annual certification that the construction, maintenance and operation of the gaming facility adequately protects the environment and public health and safety. The regulations have not been published in the Federal Register yet, but by providing a working draft of the regulations for pre-rulemaking comment, the NIGC is in compliance with its tribal consultation policy. Comments were accepted through June 30, 2006. Other opportunities for comment will arise when the rulemaking process begins with a notice in the Federal Register.

• Definition for “Electronic or Electromechanical Facsimile” and Classification Standards for Gaming Machines. On May 25, the NIGC published two proposed rules. The first proposal would revise the definition of “electronic or electromechanical facsimile”, which Congress used to define Class II gaming under IGRA. The proposal would define “electronic or electromechanical facsimiles” to include bingo, lotto and other games similar to bingo when such games are played in an electronic medium, and therefore said games would not be permissible Class II games under IGRA.

The second proposed rule would clarify the terms Congress used to define Class II gaming under IGRA. It would also further revise the existing regulations to incorporate the above definition of “electronic and electromechanical facsimile.” Finally, the second proposed rule would add a new part to the regulations to articulate how to determine whether a game, when played electronically, meets the IGRA statutory requirements for Class II gaming.

NIGC accepted comments on the proposed rules through November 15, 2006. In addition, the NIGC published two reports on November 13 regarding the economic impacts of the proposed definition revisions and classification standards. Comments on the reports were accepted through December 15, 2006.

• Technical Standards for Electronic, Computer or Other Technologic Aids. On August 11, the NIGC proposed a new rule which would establish technical standards for Class II games (e.g. bingo, lotto, other games similar to bingo, pull tabs, or instant bingo) that are played primarily through electronic, computer, or other technologic aids. The proposed rule would also establish a process for assuring the integrity of such games and aids before their placement in a Class II tribal gaming operation. No such standards currently exist. Comments were accepted through November 15, 2006.

All of the above proposed regulations were included in the NIGC’s semiannual regulatory agenda, published in the Federal Register on December 11, 2006, which announces the areas that the NIGC intends to take regulatory action.

Section 1813 Energy Right of Way Study. Under the Energy Policy Act of 2005, Public Law 109-58, Title XVIII, Section 1813, the Departments of Energy and Interior (“the Departments”) were required to study Indian Energy Rights of Way and report to Congress by August 7, 2006 (referred to as the “Section 1813 Study”). Concerns about Indian energy rights of way (“ROW”) did not arise until the end of the process to pass the 2005 Act. The New Mexico Oil and Gas Association (“NMOGA”) raised the issue primarily in response to an impasse in negotiations between the Navajo Nation and El Paso energy company over the renewal of 900 miles of ROW for the company’s pipelines that cross Navajo lands. NMOGA initially proposed a provision that would empower the Secretary of the Interior to condemn Indian lands for energy ROWs under certain circumstances, but instead Congress responded by requiring the Section 1813 Study.

The Departments held two public scoping meetings, March 7-8 and April 18-20, 2006 in Denver, Colorado, where Indian Country and industry concerns were received. The Departments accepted comments through May 15 to prepare a first draft of its report to Congress, which was released for public comment on August 8.

The first draft report set out numerous options for addressing energy ROWs on Indian lands, including legislative action. However, the first draft report indicated that there was no major problem with ROWs, that difficulties in negotiation did not impact consumers and that tribal consent would not be an issue in an emergency situation. The Departments revised the report based on the comments they received and released a second draft on December 22, 2006.

The Departments were accepting comments on the second draft through February 5, 2007. Following review of comments received, the Departments will issue a final report to Congress by Spring 2007.

Tribal Provisions in the Pension Protection Act. The Pension Protection Act of 2006 (“PPA”) amended Section 906 of the Internal Revenue Code (“Code”), under which plans established and maintained by Indian tribal employers may qualify as “governmental plans.” The amendments would sharply limit the circumstances under which tribal plans could be considered “governmental” plans, extending governmental plan status only for: (1) those plans that are established and maintained by a federally recognized tribe, a political subdivision of the tribe, or an agency or instrumentality of either; and (2) where the Tribal entity is engaged in providing services that are consistent with the definition of an essential governmental function.

During the first week of October, 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 Code by Section 906 of the PPA and also provided transition relief under a “reasonable and good faith” standard with respect to compliance with the PPA changes made before September 30, 2007, pending further IRS guidance. Specifically, it allowed plan sponsors to defer taking action to distinguish “commercial” employees from “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 as “commercial”, Notice 2006-89 follows the description of the legislation formulated by the Joint Tax Committee, which includes hotels, casinos, service stations, convenience stores and marinas.

The new law’s reliance on the “essential governmental function” vs. “commercial” distinction has caused many tribal representatives and organizations to seek amendment of the provision. As a result, new legislation eliminating the “essential governmental function” vs. “commercial” distinction will be pursued in 2007.

Methamphetamine Prevention Public Awareness Campaign. On November 30, National Methamphetamine Awareness Day, a coalition comprised of DOI, the National Congress of American Indians (“NCAI”), the Partnership for a Drug-Free America, the Department of Health and Human Services (“HHS”), and the Office of National Drug Control Policy announced a public awareness campaign to prevent meth use in Indian Country. The coalition, the first national anti-meth campaign targeted to Native Americans, has combined funding totaling $300,000. Funding will be used to create anti-meth radio and print advertisements specific to Indian Country.

Rural Health Telecommunications. In 2006, 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, significantly underutilized in the past, makes participants eligible for a 25% reduction in the cost of monthly internet service charges and for a reduction in telephone bills, through the use of new high-speed internet technology.

NIGC Proposed Commissioner. On December 6, Secretary Kempthorne proposed to appoint Norm DesRosiers, Commissioner of the Viejas Tribal Gaming Commission, as the third member of the NIGC. Commissioner DesRosiers has been involved with tribal gaming commissions since 1982, including the San Carlos Apache Tribal Gaming Commission and the Fort McDowell Gaming Commission. Cloyce Choney currently serves as the only Secretarially-appointed NIGC Commissioner.

SUPREME COURT

Changes on the Supreme Court Bench. On January 31, 2006 the Senate confirmed Judge Samuel Alito Jr. as an Associate Justice to the United States Supreme Court, replacing Sandra Day O’Connor, a frequent carrier of the swing vote on Indian Law cases for the high court. Justice O’Connor was known to be displeased with other jurists for their limited view of tribal sovereignty, but often voted against tribes regarding reservation diminishment cases. Alito has limited experience with federal Indian Law, having written only one judicial opinion in the field in 2004. However, in Blackhawk v. Pennsylvania, 381 F.3d 202 (3d Cir. 2004), Alito ruled in favor of an Indian holy man who kept black bears on his property for religious ceremonies. It is still unclear how Alito will impact Indian cases since the Court did not hear any in 2006.

Supreme Court Grants Review in 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. Oral arguments were set for January 2007.

Supreme Court Denies Review of Indian Related Cases. In 2006 the Supreme Court denied review of seven Indian related cases, as follows:

• Cayuga Nation v. New York. The Second Circuit Court of Appeals in Cayuga applied the doctrine of laches, which prevents parties from unjustified delay in asserting their rights such that the adverse party is disadvantaged, to dismiss the Cayuga Nation’s land claim. Typically, courts have not applied laches on tribal claims because of the longstanding impediments tribes faced on both legal and practical fronts.

• Seneca Nation v. New York. The Second Circuit determined that the state of New York did not violate the Non-Intercourse Act when it purchased more than 40 islands in the Niagara River because the Seneca Nation had already ceded the land through treaties with Great Britain. The federal government was in support of the tribe’s writ of certiorari, but the Court again refused to hear a tribal land claim case.

• South Dakota v. Department of the Interior and Utah v. Shivwits Band of Paiute Indians. The Eighth and Tenth Circuit Courts held §5 of the Indian Reorganization Act of 1934 (“IRA”) as a constitutional delegation of authority to DOI to take land into trust for Indian tribes. 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.

• Dark-Eyes v. Connecticut Commission of Revenue Services. The Court declined to hear a case involving whether an individual member of the Mashantucket Pequot Nation owed 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.

• 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

San Manuel Band of Mission Indians v. National Labor Relations Board. On Monday, November 6, the Court of Appeals for the D.C. Circuit heard oral arguments in San Manuel Band of Mission Indians v. National Labor Relations Board (“NLRB”) (D.C. Circuit 05-1392), a case challenging the NLRB’s May 2004 decision requiring tribes to comply with the National Labor Relations Act (“NLRA”) when their businesses affect non-Indians. Several tribes and tribal organizations submitted an amicus brief in support of the Tribe.

Senior Judge Stephen Williams and Judges Merrick B. Garland and Janice Rogers Brown served as the three-judge panel for the case. Holland & Knight’s Jerry Levine, represented the San Manuel Band, argued before the court that tribes are sovereign governments and should be exempt from the reach of the NLRB. The NLRB tried to persuade the Court that Congress did not mean to foreclose the Board from taking action on conditions in 2000. However, Judge Garland noted the failure to foreclose did not mean that Congress intended to allow the NLRB to have jurisdiction over tribes.

Once the D.C. Circuit Court issues a decision, either party may seek an appeal of the decision to the Supreme Court.

8(a) Contracts. On December 6, NCAI and the Native American Contractors Association (“NACA”) held a meeting regarding legislative attacks on 8(a) contracting. The purpose of the meeting was to develop a strategy for the 110th Congress, which is expected to significantly increase the number of oversight hearings regarding federal procurement and introduce and potentially act on legislation that may alter, limit or remove favorable provisions for federally recognized tribes and Alaska Native Corporations (“ANCs”) in the Small Business Administration. In 2006, Representative Henry Waxman (D-CA), Representative Nancy Pelosi (D-CA) and Senator Byron Dorgan (D-ND) all introduced legislation proposing to limit 8(a) contracting and are in key leadership and Committee positions in the 110th Congress that may enable the passage of such legislation. Committees that may have interest in or jurisdiction over 8(a) contracting include: House Government Reform; House Small Business; House Natural Resources (formerly Resources), Senate Homeland Security and Government Affairs; Senate Small Business and Entrepreneurship; and SCIA.

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