Holland & Knight - Indian Law Alert - Second Quarter Report 2007

Indian Law
Alert - Second Quarter Report 2007

August Recess Summary

August 24, 2007

CAPITOL HILL

During the 2nd Quarter of the 110th Congress, the House and Senate passed several bills, including the Fiscal Year (“FY”) 2007 emergency funding supplemental bill, the Foreign Intelligence Surveillance Act, an energy bill, a lobbying and ethics reform bill, a bill implementing the 9/11 Commission recommendations, and a reauthorization of the State Children Health Insurance Program (“SCHIP”). The Senate failed to secure enough votes to limit debate on H.R. 800, the labor union “card check” legislation, and was also unable to pass comprehensive immigration reform. The House Democratic Leadership decided not to consider immigration reform until the Senate completes its action. The Senate is unlikely to reconsider immigration reform this year. And finally, the House passed all twelve FY 2008 appropriations bills; the Senate passed one (see EYE ON CONGRESS: FY 2008 Appropriations).

Congress is expected to consider several issues in the 3rd Quarter, including FY 2008 appropriations and several conference reports on energy, children’s health insurance, higher education, and Food and Drug Administration (“FDA”) reauthorization. The Senate must pass all twelve appropriations bills before the end of the current fiscal year on September 30, or a continuing resolution will be required and an omnibus appropriations package may be likely. The House is scheduled to consider the FY 2008 Iraq War Supplemental Appropriations bill and legislation reauthorizing the 2001 No Child Left Behind Act. Congress is also expected to address several bills with significant impact on Indian Country, including reauthorization of the Indian Health Care Improvement Act (“IHCIA”), Native American Housing and Self Determination Act (“NAHASDA”), and Indian Head Start programs (see EYE ON CONGRESS: IHCIA, NAHASDA, and Head Start Reauthorization and Indian Head Start, respectively).

Both the House and Senate will return from August recess on Tuesday, September 4. The House has set October 26 as its tentative adjournment date, while the Senate will take a Columbus Day recess and adjourn by November 16. However, Majority Leader Harry Reid (D-NV) has indicated that if the Senate is unable to meet the November target, the Senate will return on December 3.

EYE ON CONGRESS

FY 2007 Emergency Supplemental Appropriations. On May 25, President Bush signed into law a $120 billion Iraq supplemental war spending bill with $20 billion more in domestic spending than requested and no timetable for withdrawal. The first version of H.R. 1591, a bill making emergency supplemental appropriations for the fiscal year ending September 30, 2007, included a timetable for withdrawing from Iraq and was vetoed by President Bush on May 2.

FY 2008 Appropriations. The FY 2008 appropriations process began heating up in late May, when House Appropriations Chairman David Obey (D-WI) indicated that he would not allow earmarks in appropriations bills until they reached conference. However, the House Democratic Leadership finally agreed to include earmarks in all of the bills after Republicans delayed the FY 2008 Homeland Security and Military Construction-Veterans Affairs appropriations bills on the House floor. All twelve FY 2008 appropriations bills were passed by the House before the August recess and await action in the Senate. However, the Senate has only passed one FY 2008 appropriations bill, the Homeland Security spending measure, and it now awaits conference with the House. The current fiscal year ends on September 30, and all of the appropriations bills must be signed by the President in order to avoid a continuing resolution. The fact that no bills will have been sent to the President by early September, and the President has threatened to veto several of the bills, an omnibus spending bill for FY 2008 seems likely.

FY 2008 Interior Appropriations. The House passed, and the Senate Interior appropriations subcommittee approved, separate FY 2008 Interior appropriations bills with a total of $10.3 billion and $10.1 billion, respectively. The House version provides $2.35 billion to the BIA, $80,000 more than the Senate subcommittee mark and $118 million more than the President’s request. In addition, the House version provides the Indian Health Service (“IHS”) with a total of $3.4 billion, $300,000 more than the Senate mark and $113 million more than the President’s request. Both versions fully restore funding for the Johnson O’Malley Grant Program and the Urban Health Program.

Indian Law Chart

Indian Health Care Improvement Act. Both the House and Senate continued considering IHCIA reauthorization bills in the 3rd Quarter. H.R. 1328, introduced by Rep. Frank Pallone (D-NJ), has been approved by the House Natural Resources Committee (“HNRC”) but still awaits action by the Energy and Commerce, Natural Resources, and Ways and Means Committees. In the Senate, S. 1200, introduced by Sen. Byron Dorgan (D-ND), has been approved by the Senate Committee on Indian Affairs (“SCIA”) he Chairs and awaits action by the Finance Committee. Chairman Dorgan has secured a commitment from Finance Committee Chairman Max Baucus (D-MT) to hold a Finance Committee markup on S. 1200 on September 12, and Senate Majority Leader Harry Reid (D-NV) agreed to schedule the bill for floor action before the end of the year.

Indian Head Start. Both the House and Senate passed H.R. 1429 and S. 556, Head Start reauthorization bills, respectively. H.R. 1429, the House version, would improve program quality, expand access, and implement other changes, including an immediate 3.5 percent set aside for Indian Head Start, subject to a study and Secretarial determination on the level of need. The House version would also require government-to-government consultation with a tribal government to develop a correction plan before an Indian Head Start program can be found deficient and forced to re-compete. The Senate version, S. 556, provides a 4 percent set aside for Indian Head Start programs and would prevent other Head Start programs from expanding until the Indian and Migrant programs reach their respective set-aside amounts established in the bill. The bills now await conference where their differences will be reconciled.

Indian Housing. On June 6, the House Financial Services Subcommittee on Housing and Community Opportunity held a hearing on draft legislation reauthorizing NAHASDA. Shortly after the hearing, Rep. Dale Kildee (D-MI) introduced H.R. 2786, which was ordered reported favorably by the House Financial Services Committee on June 26. The bill has been placed on the House calendar and now awaits House floor action. In the Senate, the SCIA held a hearing on July 19 to discuss Chairman Dorgan’s draft bill reauthorizing NAHASDA. The purpose of the hearing was to receive recommendations on the draft legislation before Chairman Dorgan formally introduces the bill.

Meanwhile, H.R. 1676 (Kildee, D-MI), the Native American Home Ownership Opportunity Act of 2007, became Public Law 110-37 on June 18. The bill extends the Housing and Community Development Act of 1992 through FY 2012; authorizes appropriations for the Indian Housing Loan Guarantee Fund, to provide loan guarantees for Native American housing; and limits the outstanding aggregate principal amount of such loans.

Tribal Provisions in the 9/11 Commission Recommendations Act Signed Into Law. In the 1st Quarter, House Homeland Security Chairman Bennie Thompson (D-MS) introduced H.R. 1, a bill to provide for the implementation of the recommendations of the National Commission on Terrorist Attacks Upon the United States, and the House passed the bill in late January. In early July, H.R. 1 passed the Senate, and on July 20, the House and Senate finally agreed to proceed to conference. The conferees reconciled the legislation, and the both the House and Senate passed the conference report prior to the August recess. On August 3, the President signed H.R. 1 into law (Public Law 110-053), which contains provisions for Homeland Security direct funding to tribal governments. The provisions state that all tribes are eligible to receive homeland security funding through their state government, and if a state fails to transfer funds in a timely way, then the tribe may apply to receive the funds directly. In addition, “directly eligible tribes” – defined as tribes in the continental U.S. which operate a law enforcement or emergency response agency with the capacity to respond to calls for law enforcement or emergency services, and which have not received funds for the same purpose from a state government – may apply to receive homeland security funds directly if they submit a plan that shows consistency with the state homeland security plan. The tribe must also meet one of the following criteria: located on or near an international border or a coastline; located within ten miles of prioritized critical infrastructure list item; located within or contiguous of the 50 most populous metropolitan areas; or jurisdiction over 1,000 square miles of Indian country. In addition, the law contains a minimum 0.1 percent set-aside for directly eligible tribes and requires states to provide grant funds to assist tribal communities in improving interoperable communications.

8(a) Contracting. On May 10, the full House passed H.R. 1873 (Braley, D-IA), the Small Business Fairness in Contracting Act, a bill to reauthorize the programs and activities of the Small Business Administration (“SBA”) relating to procurement. During subsequent markup by the Oversight and Government Reform Committee, which has concurrent jurisdiction over the bill along with the House Natural Resources Committee, Chairman Henry Waxman (D-CA) and Ranking Member Thomas Davis (R-VA) added “placeholder” language to the bill directing the Federal Procurement Administrator to establish limits on the value of contracts awarded without competition under the 8(a) program if Congress fails to act by December 31, 2007. Despite Waxman’s past efforts to repeal the 8(a) program, the language added to the bill recognizes that there is a reason for having a different threshold on Native American 8(a) programs, which return revenues to Native communities for governmental services. Chairman Waxman also filed an amendment to H.R. 1585, the Defense Authorization Bill, that would require agencies with large acquisition budgets to develop a plan to “minimize and report” on sole source contracting. The directive targeted all sole source contracts, including Native 8(a) contracts (above the competitive pricing threshold), and exempted all other small business contracts. However, the Rules Committee did not accept the Waxman amendment.

H.R. 1362, the Accountability in Contracting Act, could also impact sole source contracts for American Indian and Alaska Native contractors, but does not contain direct language on Native 8(a) programs. The House passed H.R. 1362 on March 15, and it is now pending in the Senate Committee on Homeland Security and Governmental Affairs.

2007 Farm Bill. The Farm Bill of 2002, which includes several programs that benefit Indian tribes, is up for reauthorization this year. The House began formal consideration of the 2007 Farm Bill during the week of May 21 with markups in two House Agriculture Subcommittees. The House Agriculture Committee approved H.R. 2419 on July 19, and the House passed the bill on July 27. H.R. 2419 provides improvement for how the U.S. Department of Agriculture treats Indian and minority farmers by strengthening the Food Distribution Program on Indian Reservations. On the Senate side, Agriculture Committee Chairman Tom Harkin (D-IA) has expressed interest in a six or seven year reauthorization rather than a five year term. The Senate Agriculture Committee is scheduled to markup its Farm Bill the week of September 4, and the bill is expected to be on the floor by late September.

Internet Gaming. On April 26, Rep. Barney Frank (D-MA) introduced H.R. 2046, the Internet Gambling Regulatory and Enforcement Act. The bill seeks to reverse last year’s crackdown on Internet gambling passed by the Republican-led Congress under Title VIII of the SAFE Port Act (Pub.L. 109-347), which barred U.S. financial institutions (particularly banks and credit card companies) from participating in transactions between U.S.-based customer accounts and online gambling firms. H.R. 2046 would not legalize gambling itself or supersede decisions by states or tribes to either prohibit Internet gambling or impose limits, but instead would authorize the Treasury Department’s Financial Crimes Enforcement Network to license and monitor Internet gambling. Indian tribes and states can choose to opt-out of the licensing program. The bill has been referred to the House Energy and Commerce and Financial Services Committees and is awaiting Committee action.

Pension Protection Act. In the 1st Quarter, Sens. Gordon Smith (R-OR) and Jeff Bingaman (D-NM) introduced S. 792, the Tribal Government Equality Act of 2007, a bill to amend the Internal Revenue Code of 1986 and the Employee Retirement Income Security Act of 1974 to modify the definition of governmental plan with respect to Indian tribal governments. On April 17, Sen. Smith introduced similar legislation, S. 1129, a bill to amend the Internal Revenue Code of 1986 to modify the definition of a governmental plan with respect to Indian tribal governments. On May 2, Rep. Earl Pomeroy (D-ND) introduced H.R. 2119 in the House. S. 792, S. 1129, and H.R. 2119 are all awaiting Committee consideration. In addition, on August 3, House Ways and Means Committee Chairman Charles Rangel (D-NY) introduced H.R. 3361, and Senate Health, Education, Labor, and Pensions (“HELP”) Committee Chairman Ted Kennedy (D-MA) introduced S. 1970, bills to make technical corrections related to the Pensions Protection Act of 2006.

SCIA Chairman Dorgan Releases Discussion Draft Legislation Regarding Regulation of Class III Gaming, the “CRIT-Fix”. On June 21, Chairman Dorgan released a discussion draft bill that would overturn the Colorado River Indian Tribes (“CRIT”) v. National Indian Gaming Commission (“NIGC”) decision, which held that the Indian Gaming Regulatory Act (“IGRA”) does not provide NIGC with authority to regulate certain Class III tribal gaming activity. The SCIA held a hearing on June 28 to discuss the draft (see Committee Action: Hearings, Class III Gaming Regulation below), but a bill has not yet been introduced.

House Defeats Proposal to Prohibit DOI from Addressing Section 20 Gaming Applications. On June 26, the House defeated an amendment to the FY 2008 Interior, Environment, and Related Agencies appropriations bill proposed by Rep. Charles Dent (R-PA) that sought to prohibit the Department of the Interior (“DOI”) from spending any money in the next fiscal year to process any tribal gaming applications made under IGRA Section 20(b)(1). The amendment would have prohibited DOI from working on or processing any Section 20 applications from October 1, 2007 until September 30, 2008, including applications under the land claims, restored lands and initial reservation exceptions, and pure Section 20 two-part determinations. The amendment failed on a voice vote, and on a Roll Call vote by 194 yeas to 236 noes.

SCIA Vice Chairman Craig Thomas (R-WY). On June 4, Sen. Craig Thomas (R-WY) passed away after a half-year battle with leukemia. Sen. Thomas was the ranking Republican on the SCIA, serving as Vice-Chairman of the Committee for the 110th Congress and a long-time friend and supporter of Indian tribes. Sen. John Barrasso (R-WY), a Wyoming state senator, replaced Thomas in the Senate for Wyoming and joined the SCIA, as well as the Energy and Natural Resources and Environment and Public Works Committees. On July 19, Sen. Lisa Murkowski (R-AK) was approved as Vice Chair for the Committee (see Committee Action: Markups, SCIA Business Meeting: Vice Chair below).

COMMITTEE ACTION

Committee Markups

NAHASDA Reauthorization. On June 26, the House Financial Services Committee ordered reported three bills, including H.R. 2786 (Kildee, D-MI), the NAHASDA Reauthorization Act of 2007. Rep. Maxine Waters (D-CA), Rep. Melvin Watt (D-NC), and Rep. Dan Boren (D-OK) all expressed concerns regarding the Cherokee Nation membership dispute litigation involving the descendents of freed slaves. However, the Committee agreed that the bill should move forward so as not to penalize other tribes from receiving funding for federal housing.

House Natural Resources Committee (“HNRC”). On July 18, the HNRC held a full committee markup on the following bills:

H.R. 673 (Grijalva, D-AZ), the “Cocopah Lands Act,” a bill 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;
H.R. 1696 (Reyes, D-TX), a bill to amend the Ysleta del Sur Pueblo and Alabama and Coushatta Indian Tribes of Texas Restoration Act to allow the Ysleta del Sur Pueblo tribe to determine blood quantum requirement for membership in that Tribe;
H.R. 2120 (Stupak, D-MI), a bill to direct the Secretary of the Interior to proclaim as reservation for the benefit of the Sault Ste. Marie Tribe of Chippewa Indians a parcel of land now held in trust by the U.S. for that Indian tribe;
H.R. 2863 (DeFazio, D-OR), a bill to authorize the Coquille Indian Tribe of the State of Oregon to convey land and interests in land owned by the Tribe;
H.R. 2952 (Kildee, D-MI), a bill to authorize the Saginaw Chippewa Tribe of Indians of the State of Michigan to convey land and interests in land owned by the Tribe; and
S. 375 (Smith, R-OR), a bill to waive application of the Indian Self-Determination and Education Assistance Act (“ISDEAA”) to a specific parcel of real property transferred by the U.S. to two Indian tribes in the State of Oregon.

All six of the bills were ordered reported as amended.

SCIA Business Meeting: Vice Chair and S. 462. On July 19, the SCIA held a business meeting to approve Sen. Lisa Murkowski as the new Committee Vice Chair and to mark up S. 462 (Reid, D-NV), a bill to approve the settlement of the water rights claims of the Shoshone-Paiute Tribes of the Duck Valley Indian Reservation in Nevada, to require the Secretary of the Interior to carry out the settlement, and for other purposes. The Committee ordered S. 462 reported favorably.

Native American Economic Development and Infrastructure for Housing Act of 2007. On July 26, the House Financial Services Committee held a full committee markup on several bills, including H.R. 3002 (Pearce, R-NM), the Native American Economic Development and Infrastructure for Housing Act of 2007. The bill would establish a demonstration program to authorize the Secretary of Housing and Urban Development (“HUD”) to guarantee obligations issued by Indian tribes to finance community and economic development activities. During the markup, Rep. Melvin Watt (D-NC) offered an amendment that sought to prevent the Cherokee Nation of Oklahoma (“Nation”) from participating in and receiving funds under the federal housing bill until the Nation restores citizenship to the Cherokee Freedmen. The amendment was agreed to, and H.R. 3002 was reported favorably as amended. However, Rep. Dan Boren (D-OK) subsequently placed a hold on the bill until the Nation’s court system can resolve the Freedman citizenship issue.

Family Smoking Prevention and Tobacco Control Act. On August 1, the Senate HELP Committee marked up S. 625, the Family Smoking, Prevention and Tobacco Control Act, a bill to protect the public health by providing the FDA with certain authority to regulate tobacco products. Sen. Tom Coburn (R-OK) proposed two separate amendments that seek to include tribes in the definition of municipality and ensure that Internet sales are included under the bill. The amendments were not brought up for a vote, but staff believe Chairman Edward Kennedy (D-MA) gave Sen. Coburn his word that they would continue discussing the proposed language. No other tribal amendments were raised.

Committee Hearings

Shoshone-Paiute Tribes of Duck Valley Water Rights Settlement Act (S. 462). On April 26, the SCIA conducted a hearing to examine S. 462, a bill to approve the settlement of the water rights claims of the Shoshone-Paiute Tribes of the Duck Valley Indian Reservation in Nevada, to require the Secretary of the Interior to carry out the settlement. The Committee received testimony from Senator Harry Reid (D-NV); W. Patrick Ragsdale (Director, Bureau of Indian Affair (“BIA”)); Allen Biaggi (Nevada Department of Conservation and Natural Resources); and Kyle Prior (Shoshone-Paiute Tribes of the Duck Valley Reservation).

Indian Education. On April 28, the House Education and Labor Committee, Subcommittee on Early Childhood, Elementary, and Secondary Education held a field hearing in Arizona to review the impact of the No Child Left Behind Act on Indian education. Subcommittee Chairman Dale Kildee (D-MI) presided over the hearing. The following individuals served as witnesses during the hearing: Governor William Rhodes (Gila River Indian Community); Chairman Wendsler Nosie, Sr. (San Carlos Apache Tribe); Tom Miller (Board of Directors, Sault Ste. Marie Tribe of Chippewa Indians); Dr. Willard S. Gilbert (President-Elect, NIEA); and Dr. Roger Bordeaux (Director, Association of Community Tribal Schools).

Rights-of-Way Over Alaska Native Allotments (S. 205, H.R. 865). On May 3, the Senate Committee on Energy and Natural Resources Subcommittee on Public Lands and Forests concluded a hearing to examine S. 205 (Stevens, R-AK) and H.R. 865 (Young, R-AK), bills to grant rights-of-way for electric transmission lines over certain Native allotments in the State of Alaska, among several other measures.

Native Hawaiian Government Reorganization Act (S. 310). On May 3, the SCIA concluded a hearing to examine S. 310 (Akaka, D-HI), a bill to express the policy of the U.S. regarding the U.S. relationship with Native Hawaiians and to provide a process for the recognition by the U.S. of the Native Hawaiian governing entity. The Committee received testimony from the following witnesses: Gregory G. Katsas (Principal Deputy Associate Attorney General, Department of Justice); Mark J. Bennett (Hawaii Attorney General); Micah Kane (Hawaiian Homes Commission); Haunani Apoliona and William Meheula (both of the Office of Hawaiian Affairs); H. William Burgess (Aloha for All); and Viet D. Dinh (Georgetown University Law Center, Washington, D.C.).

Law Enforcement in Indian Country. On May 17, the SCIA held an oversight hearing on law enforcement in Indian Country. The following witnesses presented testimony: W. Patrick Ragsdale (Director, BIA); Regina Schofield (Assistant Attorney General, Office of Justice Programs); Matthew Mead (U.S. Attorney’s Office for the District of Wyoming); and Scott Burns (Deputy Director for State and Local Affairs, White House Office of National Drug Control Policy (“ONDCP”)).

Minority Entrepreneurship: Assessing the Effectiveness of SBA’s Programs for the Minority Business Community. On May 22, the Senate Small Business and Entrepreneurship Committee held a hearing on the challenges of minority entrepreneurship and evaluating the SBA’s programs for minority-owned businesses. The Committee briefly discussed Alaska Native, tribal, and Hawaiian-owned small businesses, but there was no direct input from Native Americans.

Tribal Law Enforcement Field Hearing. On June 1, the HRNC held a field hearing in Lower Brule, South Dakota, regarding the needs and challenges of tribal law enforcement on Indian reservations. The following witnesses presented testimony: W. Patrick Ragsdale, (Director, BIA), accompanied by Christopher Chaney and Elmer Fourdance; Chairman Michael Jandreau (Lower Brule Sioux Tribe); Chairman Lester Thompson Jr., (Crow Creek Sioux Tribe); President John Yellowbird Steele (Oglala Sioux Tribe); Chairman Joseph Brings Plenty, Sr. (Cheyenne River Sioux Tribe); President Rodney Bordeaux (Rosebud Sioux Tribe); Gary Gaikowski (Chief of Police, Sisseton Wahpeton Oyate), speaking on behalf of Chairman Michael Selvage, Sr., Sisseton Wahpeton Oyate; Georgia Little Shield, Director (Pretty Bird Woman House); Karen Artichoker (Director, Cangleska, Inc.); Carol Pollack (Researcher, Amnesty International); Robert W. Cournoyer (Chairman, Yankton Sioux Tribe); and Archie Fool Bear (Councilman, Standing Rock Sioux Tribe).

NAHASDA Reauthorization. On June 6, the House Financial Services Subcommittee on Housing and Community Opportunity held a hearing on draft legislation to reauthorize NAHASDA. The following witnesses presented testimony before the Committee: Orlando Cabrera (Assistant Secretary for Public and Indian Housing, HUD); Cheryl Parish (Vice Chairman of the National American Indian Housing Council (“NAIHC”)); Sami Jo Difuntorum (Executive Director of the Karuk Tribe Housing Authority); Aneva Yazzie (Chief Executive Officer of the Navajo Housing Authority); Wendsler Nosie (Chairman of the San Carlos Apache Tribe); Jacqueline Johnson (Executive Director, National Congress of American Indians (“NCAI”)); and Mark Chino (President, Mescalero Apache Tribe).

Indian Health Care Improvement Act (H.R. 1328). On June 7, the House Energy and Commerce Subcommittee on Health held a hearing on H.R. 1328 (Pallone D-NJ), the IHCIA Amendments of 2007. Several witnesses testified before the Committee, including: Charles W. Grim (Director, IHS) accompanied by Robert McSwain (Deputy Director, IHS) and Ronald Ferguson (Director, Division of Sanitation Facilities Construction, IHS); James Crouch (Executive Director, California Rural Indian Health Board, Inc.); Ralph Forquera (Executive Director, Seattle Indian Health Board); Ken B. Lucero (Councilman, Pueblo of Zia; Chairman, All Indian Pueblo Council Health Committee); and Rachel A. Joseph (Co-Chair, National Steering Committee for the Reauthorization of IHCIA, National Indian Health Board). The bill must still go through two more Committees, Ways and Means and Energy and Commerce, before it can be considered by the full House.

Internet Gambling Regulation. On June 8, the House Full Committee on Financial Services held a hearing titled “Can Internet Gambling Be Effectively Regulated to Protect Consumers and the Payments System?” Witnesses that testified before the Committee included: Jon Prideaux (Chief Executive of Asterion Payments); Gerald Kitchen (CEO of SecureTrading Ltd.); Pastor Greg Hogan; Jeff Schmidt (CEO of Authis); and Michael Colopy (Senior Vice President of Communications at Aristotle, Inc.).

Bills Addressing Specific Tribes (HNRC). On June 13, the HNRC held a hearing on several tribal-specific bills, including:

H.R. 673 (Grijalva, D-AZ), a bill 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;
H.R. 1575 (Stupak, D-MI), to reaffirm and clarify the federal relationship of the Burt Lake Band as a distinct federally recognized Indian Tribe, and for other purposes; and
H.R. 2120 (Stupak, D-MI), to direct the Secretary of the Interior to proclaim a parcel of land now held in trust by the U.S. as reservation for the benefit of the Sault St. Marie Tribe of Chippewa Indians.

Several witnesses testified before the Committee, including: Congressman Bart Stupak (D-MI); George Skibine (Acting Principal Deputy Assistant Secretary, BIA) accompanied by R. Lee Fleming (Director, Office of Federal Acknowledgement, BIA); Paul Soto (Tribal Resource Planner, Cocopah Indian Tribe); Curtis Chambers (Burt Lake Band of Ottawa and Chippewa Indians); Alice Littlefield (Professor Emerita of Anthropology, Central Michigan University); and Aaron Payment (Chairman, Sault Ste. Marie Tribe of Chippewa Indians).

Law Enforcement in Indian Country. On June 21, the SCIA held an oversight hearing on law enforcement in Indian Country. The following witnesses presented testimony: Marcus Wells Jr. (Chairman, Three Affiliated Tribes); Herman Dillon (Chairman, Puyallup Tribe of Indians); Larry Lapointe (Councilmember, Puyallup Tribe of Indians); Bonnie Clairmont (Victim Advocacy Specialist, Tribal Law & Policy Institute); Joseph Garcia (President, NCAI); Kevin Washburn (Associate Professor, University of Minnesota Law School); and Thomas Heffelfinger (former U.S. District Attorney, District of Minnesota and former Chair, Attorney General’s Advisory Committee – Indian Affairs Subcommittee).

Class III Gaming Regulation. On June 28, the SCIA held a hearing on the discussion draft bill authored by SCIA Chairman Dorgan (D-ND), which seeks to expand the authority of the NIGC over the regulation of Class III tribal gaming activities. The discussion draft, released on June 21, would overturn the recent ruling in CRIT v. NIGC, which held that IGRA does not provide the NIGC with such authority. The following witnesses presented testimony before the Committee: Philip Hogen (Chairman, NIGC); Dean Shelton (Chairman, California Gambling Control Commission); Myra Pearson (Chairman, Great Plains Indian Gaming Association and Chairman, Spirit Lake Tribe) accompanied by Kurt Lugar (Executive Director, Great Plains Indian Gaming Association); Ron Allen (Chairman, Washington Indian Gaming Association and Chairman, Jamestown S’Klallam Tribe); and Valerie Welsh-Tahbo (Councilmember, Colorado River Indian Tribes Tribal Council). Tracy Burris (Commissioner, Chickasaw National Gaming Commission) was unable to testify due to travel-related complications.

Bills Addressing Specific Tribes (HNRC). On July 11, the HNRC held a hearing on the following four tribal-specific bills:

S. 375 (Smith, R-OR), a bill to waive application of ISDEAA to a specific parcel of real property transferred by the U.S. to two Indian tribes in the State of Oregon;
H.R. 1696 (Reyes, D-TX), a bill to amend the Ysleta del Sur Pueblo and Alabama and Coushatta Indian Tribes of Texas Restoration Act to allow the Ysleta del Sur Pueblo tribe to determine blood quantum requirement for membership in that Tribe;
H.R. 2863 (DeFazio, D-OR), a bill to authorize the Coquille Indian Tribe of the State of Oregon to convey land and interests in land owned by the Tribe; and
H.R. 2952 (Kildee, D-MI), a bill to authorize the Saginaw Chippewa Tribe of Indians of the State of Michigan to convey land and interests in land owned by the Tribe.

Several witnesses testified before the Committee, including: Rep. Silvestre Reyes (D-TX); Michael R. Smith (Deputy Bureau Director, Field Operations, BIA); Delores Pigsley (Chairman, Confederated Tribes of Siletz Indians); Jack Giffen (Tribal Council Secretary, Confederated Tribes of Grand Ronde); Tom Younker (Vice Chairman, Coquille Indian Tribe); Arturo Senclair (Governor, Ysleta del Sur Pueblo Tribe); and Fred Cantu (Chief, Saginaw Chippewa Indian Tribe).

Transportation in Indian Country. On July 12, the SCIA held an oversight hearing on transportation issues in Indian Country. The following witnesses presented testimony: Jerry Gidner (Deputy Director for the Office of Indian Services, BIA); John Baxter (Associate Administrator, Federal Lands Highways, Federal Highway Administration, Department of Transportation); Don Kashevaroff (President, Seldovia Village Tribe); Pete Red Tomahawk (Director of Transportation Safety and Road Maintenance, Standing Rock Sioux Tribe); James Garrigan (Transportation Planner, Red Lake Band of Chippewa Indians); and Erin Forrest (Director of Public Works, Hualapai Nation).

NAHASDA Reauthorization. On July 19, the SCIA held a hearing to discuss Chairman Dorgan’s draft bill that seeks to amend and reauthorize NAHASDA. Several witnesses testified before the Committee, including: Rodger J. Boyd (Deputy Assistant Secretary for Native American Programs, Office of Public and Indian Housing, HUD); Teri Nutter (Copper River Basin Housing Authority); David Brien (Turtle Mountain Band of Chippewa Indians); Waldo Walker (Washoe Tribe of Nevada and California); Aneva J. Yazzie (Navajo Housing Authority); and Marty Shuravloff (NAIHC).

Western Hemisphere Travel Initiative: Perspectives of a Community on the U.S.-Canada Border. On July 20, the House Homeland Security Full Committee held a field hearing in Buffalo, New York, on the Western Hemisphere Travel Initiative (“WHTI”). The Committee received testimony from several witnesses, but did not address tribal concerns.

Nomination of Dr. Grim to Serve as Director of the Indian Health Service. On July 26, the SCIA held a confirmation hearing on the nomination of Dr. Charles Grim to serve a second term as IHS Director. Dr. Grim, whose term expired earlier this year, is currently serving as “Acting Director.” Dr. Grim was the only witness before the Committee. Chairman Dorgan and other Committee members generally supported the nomination but stated their intent to submit additional written questions for the record. Chairman Dorgan also indicated that the Committee would refrain from moving the nomination to the Senate floor until all of the written questions have been answered sufficiently.

Field Hearing on Indian Health. On August 15, the SCIA held a field hearing on Indian health at the Crow Agency multi-purpose building on the Crow Reservation in Montana. Chairman Dorgan (D-ND) and Sen. Jon Tester (D-MT) attended the hearing. The following witnesses presented testimony before the Committee: Dr. Charles North (Acting Chief Medical Officer, IHS); Pete Conway (Director Billings Area Office, IHS); Dr. Westley Clark (Director, Substance Abuse and Mental Health Services Administration); Dr. Joe McDonald (President, Salish Kootenai College); Ada White (Health Services Director, Crow Tribe); Jonathan Windy Boy (Chairman, Montana Wyoming Tribal Leaders Council Subcommittee on Health Care); Moke Eagle Feathers (President, National Council of Urban Indian Health Board); Marjorie Don’t Walk (Director, Indian Health Board of Billings); Stacy Bohlen (Executive Director, National Indian Health Board); Jace Killsback (Billings Area Representative, National Health Board Council Member for the Northern Cheyenne Tribe); and Dr. Joseph Erpelding (Orthopedic Surgeon).

Committee Reports

H.R. 1676, Native American Home Ownership Opportunity Act. On April 20, the House Committee on Financial Services filed a report to accompany H.R. 1676 (Boren, D-OK), a bill to reauthorize the program of the Secretary of HUD for loan guarantees for Indian housing (H.Rept. 110-102).

Virginia Tribes Federal Recognition. On April 25, the HNRC ordered reported, as amended, the following bills:

H.R. 65 (McIntyre, D-NC), Lumbee Recognition Act;
H.R. 1294 (Moran, D-VA), Thomasina E. Jordon Indian Tribes of Virginia Federal Recognition Act of 2006 (H.Rept. 110-124); and
H.R. 1328 (Pallone, D-NJ), IHCIA Amendments of 2007.

H.R. 1592, Local Law Enforcement Hate Crimes Prevention Act. On April 30, the House Committee on the Judiciary reported H.R. 1592 (Conyers, D-MI), a bill to provide Federal assistance to States, local jurisdictions, and Indian tribes to prosecute hate crimes, and for other purposes, with an amendment (H.Rept. 110-113).

H.R. 505, Native Hawaiian Government Reorganization Act of 2007. On May 2, the HNRC ordered reported by voice vote H.R. 505 (Abercrombie, D-HI), a bill to express the policy of the U.S. regarding the U.S. relationship with Native Hawaiians and to provide a process for the recognition by the U.S. of the Native Hawaiian governing entity.

H.R. 487, Cheyenne River Sioux Tribe Equitable Compensation Act. On May 7, the HNRC reported H.R. 487 (Herseth-Sandlin, D-SD), 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, and for other purposes (H.Rept. 120-128).

Senate Committee on Indian Affairs. On May 10, the SCIA ordered favorably reported the following items:

S. 1200 (Dorgan, D-ND), a bill to amend the IHCIA to revise and extend the Act;
S. 310 (Akaka, D-HI), a bill to express the policy of the U.S. regarding the U.S. relationship with Native Hawaiians and to provide a process for the recognition by the U.S. of the Native Hawaiian governing entity;
H.R. 835 (Abercrombie, D-HI), a bill to reauthorize HUD programs for housing assistance for Native Hawaiians; and
S.J. Res. 4 (Brownback, R-KS), a resolution to acknowledge a long history of official depredations and ill-conceived policies by the U.S. Government regarding Indian tribes and offer an apology to all Native Peoples on behalf of the U.S.

H.R. 65, Lumbee Tribe Recognition. On May 22, the HNRC filed its report to accompany H.R. 65 (McIntyre, D-NC), to provide for the recognition of the Lumbee Tribe of North Carolina, with an amendment (H.Rept. 110-164).

H.R. 2284, Small Business Act Amendments. On June 15, the House Small Business Committee filed its report to accompany H.R. 2284 (Udall, D-NM), a bill to amend the Small Business Act to expand and improve the assistance provided by Small Business Development Centers to Indian tribal members, Alaska Natives, and Native Hawaiians (H.Rept. 110-192).

S.J. Res. 4, Apology to Native Peoples. On June 18, Chairman Dorgan reported without amendment and with a preamble, and filed the report to accompany S. J. Res. 4 (Brownback, R-KS), a resolution to acknowledge a long history of official depredations and ill-conceived policies by the U.S. government regarding Indian tribes and to offer an apology to all Native Peoples on behalf of the U.S. (H.Rept. 110-83). S.J.Res. 4 has been placed on the Senate calendar under general orders, and is awaiting floor action.

H.R. 1982, Rural Housing and Economic Development Improvement Act of 1987. On June 21, the House Financial Services Committee filed its report to accompany H.R. 1982 (Hinojosa, D-TX), a bill to authorize appropriations for the rural housing and economic development program of HUD (H.Rept. 110-205).

H.R. 835, Housing Assistance for Native Hawaiians. On July 9, the SCIA filed its report to accompany H.R. 835 (Abercrombie, D-HI) to reauthorize HUD programs for housing assistance for Native Hawaiians. (S.Rept. 110-126).

House Natural Resources Committee. On July 30, the HNRC filed reports for the following bills:

H.R. 673 (Grijalva, D-AZ), a bill 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, with an amendment (H.Rept. 110-271);
H.R. 1696 (Reyes, D-TX), a bill to amend the Ysleta del Sur Pueblo and Alabama and Coushatta Indian Tribes of Texas Restoration Act to allow the Ysleta del Sur Pueblo tribe to determine blood quantum requirement for membership in that Tribe (H.Rept. 110-272);
H.R. 2120 (Stupak, D-MI), a bill to direct the Secretary of the Interior to proclaim as reservation for the benefit of the Sault Ste. Marie Tribe of Chippewa Indians a parcel of land now held in trust by the United States for that Indian tribe, with an amendment (H.Rept. 110-273);
H.R. 2863 (DeFazio, D-OR), a bill to authorize the Coquille Indian Tribe of the State of Oregon to convey land and interests in land owned by the Tribe, with an amendment (H.Rept. 110-274);
H.R. 2952 (Kildee, D-MI), a bill to authorize the Saginaw Chippewa Tribe of Indians of the State of Michigan to convey land and interests in land owned by the Tribe, with an amendment (H.Rept. 110-275); and
S. 375 (Smith, R-OR), a bill to waive application of the ISDEAA to a specific parcel of real property transferred by the United States to two Indian tribes in the State of Oregon (H.Rept. 110-276).

H.R. 2786, NAHASDA Reauthorization. On August 3, the House Financial Services Committee filed a report to accompany H.R. 2786 (Kildee, D-MI), reauthorization of NAHASDA, a bill to reauthorize the programs for housing assistance for Native Americans (H. Rept. 110-295).

2007 INDIAN LEGISLATION – 2nd Quarter

Senate

S. 1193 (Domenici, R-NM). Albuquerque Indian School Act. A bill to direct the Secretary of the Interior to take into trust two parcels of Federal land for the benefit of certain Indian Pueblos in the State of New Mexico. STATUS: referred to the SCIA on April 24.

S. 1200 (Dorgan, D-ND). IHCIA Amendments of 2007. A bill to amend the IHCIA to revise and extend the Act. STATUS: referred to the SCIA on April 24 and ordered reported favorably on May 10. See also H.R. 1328.

S. 1255 (McCain, R-AZ). Indian Arts and Crafts Amendments Act of 2007. A bill to protect Indian arts and crafts through the improvement of applicable criminal proceedings, and for other purposes. STATUS: referred to the SCIA on May 1.

S. 1286 (Smith, R-OR). A bill to authorize the Coquille Indian Tribe of the State of Oregon to convey land and interests in land owned by the Tribe. STATUS: referred to the SCIA on May 3. See also H.R. 2863.

S. 1347 (Feinstein, D-CA). A bill to amend the Omnibus Indian Advancement Act to modify the date as of which certain tribal land of the Lytton Rancheria of California is deemed to be held in trust and to provide for the conduct of certain activities on the land. STATUS: referred to the SCIA on May 9.

S. 1103 (Bingaman, D-NM). Helping Fill the Medicare Rx Gap of 2007. A bill to amend title XVIII of the Social Security Act to include costs incurred by the IHS, a Federally qualified health center, an AIDS drug assistance program, certain hospitals, or a pharmaceutical manufacturer patient assistance program in providing prescription drugs toward the annual out of pocket threshold under part D of the Medicare program. STATUS: referred to the Senate Finance Committee on April 12. See also H.R. 2058.

S. 1494 (Domenici, R-NM). A bill to amend the Public Health Service Act to reauthorize the special diabetes program for Type I diabetes and Indians under that Act. STATUS: referred to the Senate HELP Committee on May 24. See also H.R. 2762.

S. 1746 (Murkowski, R-AK). Unrecognized Southeast Alaska Native Communities Recognition and Compensation Act. A bill to provide for the recognition of certain Native communities and the settlement of certain claims under the Alaska Native Claims Settlement Act (“ANCSA”), and for other purposes. STATUS: referred to the Senate Energy and Natural Resources Committee on June 29.

S. 1779 (Tester, D-MT). Tribal Health Promotion and Tribal Colleges and Universities Advancement Act of 2007. A bill to establish a program for tribal colleges and universities within the Department of Health and Human Services and to amend the Native American Programs Act of 1974 to authorize the provision of grants and cooperative agreements to tribal colleges and universities, and for other purposes. STATUS: referred to the SCIA on July 12.

S. 1819 (Dorgan, D-ND). Adam Walsh Child Protection and Safety Act of 2006 Deadline. A bill to amend the Adam Walsh Child Protection and Safety Act of 2006 to modify a deadline relating to a certain election by Indian Tribes. STATUS: referred to the Senate Committee on the Judiciary on July 19. See also H.R. 3095.

S. 1852 (Inouye, D-HI). Native American Heritage Day. A bill to designate the Friday after Thanksgiving of each year as “Native American Heritage Day” in honor of the achievements and contributions of Native Americans to the United States. STATUS: referred to the Senate Committee on the Judiciary on July 23.

S. 1850 (Baucus, D-MT). Tribal Government Tax-Exempt Bond Parity Act of 2007. A bill 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. STATUS: referred to the Senate Finance Committee on July 23. See also H.R. 3164.

S. 1974 (Kennedy, D-MA), a bill to make technical corrections related to the Pension Protection Act of 2006. STATUS: introduced on August 3 and has yet to be referred to a Committee. See also H.R. 3361.

House

H.R. 1954 (Grijalva, D-AZ). A bill to amend the Internal Revenue Code of 1986 to allow Indian tribal goverments to transfer the credit for electricity produced from renewable resources. STATUS: referred to the House Ways and Means Committee on April 19.

H.R. 2022 (Shuler, D-NC). A bill to provide for the consideration of a petition for Federal Recognition of the Lumbee Indians of Robeson and adjoining counties, and for other purposes. STATUS: referred to the HNRC on April 24.

H.R. 2028 (Boyd, D-FL). Muscogee Nation of Florida Federal Recognition Act. A bill to extend Federal recognition to the Muscogee Nation of Florida. STATUS: referred to the HNRC on April 25. See also S. 514.

H.R. 2046 (Frank, D-MA). Internet Gambling Regulation and Enforcement Act. A bill to amend title 31, U.S. Code, to provide for the licensing of Internet gambling facilities by the Director of the Financial Crimes Enforcement Network, and for other purposes. STATUS: referred to the Financial Services and Energy and Commerce Committees on April 26. See also H.R. 2607.

H.R. 2058 (Holt, D-NJ). Helping Fill the Medicare Rx Gap Act of 2007. A bill to include costs incurred by the IHS, a federally qualified health center, an AIDS drug assistance program, certain hospitals, or a pharmaceutical manufacturer patient assistance program in providing prescription drugs 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. STATUS: referred to the Energy and Commerce and Ways and Means Committees on April 26. See also S. 1103.

H.R. 2119 (Pomeroy, D-ND). Tribal Government Pension Equality Act of 2007. A bill to amend titles I and IV of the Employee Retirement Income Security Act of 1974 to modify the definition of governmental plan with respect to Indian tribal governments. STATUS: referred to the Ways and Means and Education and Labor Committees on May 2. See also S. 792 and S. 1129.

H.R. 2120 (Stupak, D-MI). A bill to direct the Secretary of the Interior to proclaim as reservation for the benefit of the Sault Ste. Marie Tribe of Chippewa Indians a parcel of land now held in trust by the U.S. for that Indian tribe. STATUS: referred to the HNRC on May 2; HNRC held a hearing on June 13 and a markup on July 18; House passed H.R. 2120 on July 30; received in the Senate and referred to the SCIA on August 2.

H.R. 2145 (Diaz-Balart, R-FL). A bill to establish a pilot program in the Department of State for improvement of government-to-government relations with the Miccosukee Tribe of Indians of Florida. STATUS: referred to the HNRC on May 3.

H.R. 2176 (Stupak, D-MI). A bill to provide for and approve the settlement of certain land claims of the Bay Mills Indian Community. STATUS: referred to the HNRC on May 3.

H.R. 2210 (DeGette, D-CO). Diabetes Prevention Access and Care Act of 2007. A bill to amend the Public Health Service Act to prevent and cure diabetes and to promote and improve the care of individuals with diabetes for the reduction of health disparities within racial and ethnic minority groups, including American Indian and Alaskan Native communities. STATUS: referred to the House Committee on Energy and Commerce on May 8.

H.R. 2358 (Kildee, D-MI). Native American $1 Coin Act. A bill to require the Secretary of the Treasury to mint and issue coins in commemoration of Native Americans and the important contributions made by Indian tribes and individual Native Americans to the development of the U.S. and the history of the U.S., and for other purposes. STATUS: introduced on May 17; passed by the House on June 12; received in the Senate and referred to the Senate Banking, Housing, and Urban Affairs Committee on June 13; the Senate passed H.R. 2358 as amended on August 3. Since the Senate amended H.R. 2358, the House and Senate must resolve their differences at conference before the legislation is sent to the President for signature.

H.R. 2562 (Dent, R-PA). Limitation of Tribal Gambling to Existing Tribal Lands Act of 2007. A bill to amend IGRA to limit casino expansion. STATUS: referred to the HNRC on June 5.

H.R. 2607 (McDermott, D-WA). Internet Gambling Regulation and Tax Enforcement Act of 2007. A bill to amend the Internal Revenue Code of 1986 to regulate Internet gambling. STATUS: referred to the House Committee on Ways and Means on June 7. See also H.R. 2046.

H.R. 2762 (DeGette, D-CO). A bill to amend the Public Health Service Act to reauthorize the special diabetes programs for Type I diabetes and Indians under that Act. STATUS: referred to the House Energy and Commerce Committee on June 18. See also S. 1494.

H.R. 2786 (Kildee, D-MI). NAHASDA Reauthorization. A bill to reauthorize the programs for housing assistance for Native Americans. STATUS: referred to the House Financial Services Committee on June 20; the Committee ordered the bill reported favorably on June 26, and the bill was placed on the House calendar on August 3.

H.R. 2824 (Watson, D-CA). A bill to sever the federal government’s relations with the Cherokee Nation of Oklahoma until such time as the Cherokee Nation of Oklahoma restores full tribal citizenship to the Cherokee Freedmen disenfranchised by virtue of the March 3, 2007 Cherokee Nation vote, and the Nation fulfills all its treaty obligations with the Government of the U.S. STATUS: referred to the HNRC and the House Judiciary Committee on June 21.

H.R. 2837 (Faleomavaega, D-AS). Indian Tribal Federal Recognition Administrative Procedures Act. A bill to provide for administrative procedures to extend Federal recognition to certain Indian groups, and for other purposes. STATUS: referred to the HNRC on June 22.

H.R. 2863 (DeFazio, D-OR). A bill to authorize the Coquille Indian Tribe of the State of Oregon to convey land and interests in land owned by the Tribe. STATUS: referred to the HNRC on June 26; the HNRC held a hearing on the bill on July 11, and ordered the bill reported as amended on July 18; the House passed H.R. 2863 on July 30, and the Senate passed it on August 2; H.R. 2863 was cleared for the President on August 2. See also S. 1286.

H.R. 2952 (Kildee, D-MI). A bill to authorize the Saginaw Chippewa Tribe of Indians of the State of Michigan to convey land and interests in land owned by the Tribe. STATUS: referred to the HNRC on July 10; the HNRC held a hearing on July 11, and ordered the bill reported as amended on July 18; the House passed H.R. 2952 on July 30, and the Senate passed it on August 2; H.R. 2952 was cleared for the President on August 2.

H.R. 2963 (Issa, R-CA). Pechanga Band of Luiseno Mission Indians Land Transfer Act of 2007. A bill to transfer certain land in Riverside County, California, and San Diego County, California, from the Bureau of Land Management to the U.S. to be held in trust for the Pechanga Band of Luiseno Mission Indians, and for other purposes. STATUS: passed the House on July 30; received in the Senate and referred to the SCIA on August 3.

H.R. 3002 (Pearce, R-NM). Native American Economic Development and Infrastructure for Housing Act of 2007. A bill to establish a demonstration program to authorize the Secretary of HUD to guarantee obligations issued by Indian tribes to finance community and economic development activities. STATUS: referred to the House Committee on Financial Services on July 9; and the Committee ordered the bill reported as amended on July 26.

H.R. 3048 (Dingell, D-MI). A bill to provide for and approve the settlement of certain land claims of the Sault Ste. Marie Tribe of Chippewa Indians. STATUS: referred to the HNRC on July 16.

H.R. 3069 (Nunes, R-CA). Dunlap Band of Mono Indians Reaffirmation Act. A bill to reaffirm and clarify the Federal relationship of the Dunlap Band of Mono Indians as a distinct federally recognized Indian Tribe. STATUS: referred to the HNRC on July 17.

H.R. 3095 (Kildee, D-MI). Adam Walsh Child Protection and Safety Act of 2006 Deadline. A bill to extend the deadline for Indian tribes to comply with the Adam Walsh Child Protection and Safety Act (Pub.L. 109-248) by one year to July 27, 2008. STATUS: passed the House on July 23; received in the Senate and referred to the SCIA on August 3. See also S. 1819.

H.R. 3164 (Becerra, D-CA). Tribal Government Tax-Exempt Bond Parity Act of 2007. A bill 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. STATUS: referred to both the Ways and Means and Financial Services Committees on July 24. See also S. 1850.

H.R. 3361 (Rangel, D-NY). Pension Protection Technical Corrections Act of 2007. A bill to make technical corrections related to the Pensions Protection Act of 2006. STATUS: referred to the Ways and Means and Education and Labor Committees on August 3. See also S. 1940.

H.R. 3413 (Kline, R-MN). Tribal Labor Sovereignty Act of 2007. A bill to clarify the rights of Indians and Indian tribes on Indian lands under the National Labor Relations Act. STATUS: introduced and referred to the House Committee on Education and Labor on August 3.

House Resolutions

H.Res.364 (McGovern, D-MA). A resolution allowing for consideration of H.R. 1592, a bill to provide Federal assistance to States, local jurisdictions, and Indian tribes to prosecute hate crimes, and for other purposes. STATUS: the House Rules Committee reported H.Res.364 on May 2; on May 3, the House passed H.R. 1592 in a yea-and-nay vote of 237 yeas to 180 nays (Roll No. 299). See also H.R. 1592 and S. 1105.

H.Res.377 (Hastings, D-FL). A resolution providing for consideration of H.R. 1294, 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. STATUS: the Rules Committee reported H. Res.377 on May 7; the House passed H.R. 1294 in a yea-and-nay vote of 228 yeas to 186 nays (Roll no. 305). See also H.R. 1294.

H.Res.404 (Welch, D-VT). A resolution allowing for consideration of H.R. 1427, a bill to reform the regulation of certain housing-related government-sponsored enterprises, and for other purposes. STATUS: the Rules Committee reported H.Res.404 on May 15; the House passed H.R. 1427 in a yea-and-nay vote of 223 yeas to 186 nays (Roll no. 374). See also H.R. 1427.

H.Res.465 (Arcuri, D-NY). A resolution allowing for the consideration of H.R. 65, a bill to provide for the recognition of the Lumbee Tribe of North Carolina, and for other purposes. STATUS: the Rules Committee reported H.Res.465 on June 6; the House passed H.R. 65 on June 7 in a yea-and-nay vote of 214 yeas to 193 nays (Roll No. 445). See also H.R. 65.

EXECUTIVE BRANCH

Department of Justice Releases Proposed Guidelines under the Adam Walsh Act. On May 17, the Attorney General released proposed guidelines for implementing the sex offender registration and other sex offender Sentencing, Monitoring, Apprehending, Registering, and Tracking (“SMART”) Office provisions under the Adam Walsh Child Protection and Safety Act of 2006, which President Bush signed into law on July 27, 2006. The SMART Office is responsible for administering Sex Offender Registration and Notification Act (“SORNA”) and provides guidance and assistance to jurisdictions working to implement and comply with SORNA. The proposed guidelines provide dates for compliance under the Act and are available at http://www.ojp.usdoj.gov/smart/pdfs/proposed_sornaguidelines.pdf. *But see H.R. 3095 – bill introduced to extend the deadline for tribes to comply with the Act until July 26, 2008. The proposed guidelines were published in the Federal Register on May 30, 2007 (72 Fed. Reg. 30209), and comments were accepted until August 1, 2007.

New Associate Solicitor for Indian Affairs. On May 21, Kaush Arha was named the new Associate Solicitor for Indian Affairs at DOI. Mr. Arha formally served as a White House Fellow in 2005-06. He holds a Ph.D. and Masters of Science from UC-Berkeley, and an MA in Energy & Resource Management from Boston University.

Director of Education of Indian Affairs Resigns. Tom Dowd, the Director of Education for Indian Affairs at DOI, resigned on May 30, 2007. Dowd was the first director of the Bureau of Indian Education, formerly known as the Office of Indian Education Programs, and served for a year. Currently, Kevin Skenandore is the Acting Director of Education for Indian Affairs until Dowd’s replacement is determined.

Indian Gaming Revenues in 2006. On June 5, the NIGC reported that net revenues from Indian gambling in 2006 generated $25.1 billion, 11 percent more than in 2005. The data was collected from 387 tribal facilities in 28 states.

DOI Grants Shakopee Fee to Trust Application. On June 7, DOI’s Assistant Secretary for Indian Affairs, Carl Artman, approved the Shakopee Mdewakanton Sioux Community’s fee to trust application, which the Tribe submitted in February 2000. The Tribe’s prior application was denied by the Minneapolis Area Director on October 7, 1998. In the June 7 decision, Assistant Secretary Artman disagreed with the Area Director’s 1998 decision, which rejected the Tribe’s application because of the belief that the Tribe did not have any need for additional trust land due to its economic success. The over 750 acres accepted into trust are contiguous to the Tribe’s Reservation and will be used mainly for much-needed housing for tribal members. The decision, which is final for DOI, substantially confirmed a decision, made a year ago by the BIA’s Midwest Regional Office, which was suspended upon further review by the BIA Central Office.

The Department of State (“DOS”) and Department of Homeland Security (“DHS”) Releases Notice of Proposed Rulemaking on the Western Hemisphere Travel Initiative (“WHTI”). On June 26, the DOS and DHS announced the notice of proposed rulemaking (“NPRM”) of the joint DHS and DOS WHTI plan. The NPRM seeks to implement new requirements under the amended Intelligence Reform and Terrorism Prevention Act of 2004, which provides that upon full implementation, U.S. citizens and certain classes of nonimmigrant aliens may enter the United States only with passports or such alternative documents as the Secretary of Homeland Security designates as satisfactorily establishing identity and citizenship. For members of federally recognized tribes, DHS proposes to accept some form of tribal enrollment documents, which must establish the person’s identity and their citizenship, but this is limited to border tribes whose members cross the border at particular points of entry for “historic, religious, or other cultural purposes.” Also, Canadian Indians will be able to submit their documents for the same approval process as U.S. tribes. In addition, there is already a statutorily recognized “American Indian Card” issued by DHS, one for U.S. Citizen Kickapoos and one for non-US Citizen Kickapoos; DHS proposes to continue to accept these Kickapoo border cards. Written comments must be submitted on or before August 27, 2007.

Department of the Treasury Releases Final Rule on the Financial Crimes Enforcement Network Reporting Requirements. On June 26, the Department of the Treasury published a final rule on the Financial Crimes Enforcement Network (“FinCEN”) (72 Fed. Reg. 35008) amending the Bank Secrecy Act to modify certain reporting requirements applicable to tribal gaming operations. Effective June 26, 2007, gaming operations are no longer required to file currency transactions reports on jackpots from slot machines and/or video lottery terminals. Because these transactions result from a jackpot win, FinCEN reasons that they present little, if any, opportunity to be used to launder money. The final rule also makes changes to the reporting of certain “money plays,” including: (1) where a customer wagers cash at a table game that is not exchanged for chips; and (2) bills inserted into electronic gaming devices. For bills inserted into electronic gaming devices, such transaction is included as an example of a cash transaction, however, reporting exemptions are provided under certain circumstances. Other technical changes were also made, but notably, no change was made to the requirement that gaming operations report all other transactions in currency of more than $10,000. FinCEN is posting a revised version of Form 103 on its website (http://www.fincen.gov/), but gaming operations may continue to use the existing form so long as it is completed in accordance with the Final Rule. The complete text of the Final Rule may also be found at http://www.fincen.gov/Final_Rule_Casino.pdf.

New NIGC Director of Enforcement. On July 23, NIGC Chairman Phil Hogen announced that Cesar Valdez, Jr. will serve as the new NIGC Director of Enforcement. Prior to this position, Valdez served as Director of Security at the Oneida Tribe of New York’s Turning Stone Resort and Casino. Valdez started with NIGC on August 6.

Environmental Protection Agency (“EPA”) Releases Report to Congress on Tank Program in Indian Country. On August 8, the EPA released its report to Congress on the Underground Storage Tank (“UST”) program in Indian Country, as required under the 2005 Energy Act. In the report, EPA states that about 200 of the more than 560 federally recognized tribal governments have active or closed federally regulated USTs on their lands. Currently, there are 2,600 active USTs in Indian Country. The report also details that more than 150 tribal environmental professionals have received UST training in maintenance, prevention, and compliance requirements. The report also states that 59 percent of the USTs are in compliance with release prevention and detection requirements.

The full report is available at http://www.epa.gov/swerust1/fedlaws/final_trtc.htm.

Internal Revenue Service (“IRS”) Extends Transitional Relief to Employee Benefit Plans Held by Indian Tribal Governments. On August 9, the IRS announced that it was extending transitional relief to employee benefit plans sponsored by Indian tribal governments until 6 months after the IRS releases applicable guidance. The IRS had previously provided transitional relief until September 30, 2007.

PUBLIC LAWS

Public Law 110-37 (H.R. 1676). On June 18, the President signed into law the Native American Home Ownership Opportunity Act of 2007, a bill to reauthorize a program authorizing the Secretary of Housing and Urban Development to provide loan guarantees for Indian housing.

SUPREME COURT

U.S. Court of Appeals – First Circuit

Tribes Win in Carcieri v. Norton (Kempthorne): Upholds Land to Trust for Narragansett Tribe. On July 30, the U.S. Court of Appeals for the First Circuit upheld the authority of the Secretary of DOI to take land into trust under Section 5 of the Indian Reorganization Act (“IRA”). In Carcieri v. Norton (Kempthorne), the state of Rhode Island claimed that the Narragansett Tribe and other tribes recognized after 1934 were not eligible to have land taken into trust and that the Rhode Island Indian Claims Settlement Act created an implicit limitation on the Secretary’s authority to take land into trust. However, the majority of the en banc panel on the U.S. Court of Appeals for the First Circuit held that the Secretary of Interior’s interpretation of the IRA as applying to all federally recognized Indian tribes is entitled to deference and ruled that any limitations on the Secretary’s authority must be explicit.

OTHER

National Native American Economic Policy Summit. On May 15-17, NCAI and the U.S. Department of the Interiors’ Office of Indian Energy and Economic Development held a National Native American Economic Policy Summit (“Summit”) in Phoenix, Arizona. The purpose of the Summit was to identify and promote those federal policies that have succeeded in stimulating Native tribal economies as well as finding ways to overcome persistent barriers. Materials from the Summit are now available at http://www.ncai.org/National_Native_American_Econo.231.0.html.

Tribal Labor Relations Ordinances Workgroup. On May 23, 2007, the Native American Rights Fund (“NARF”) and NCAI jointly conducted a conference call with the tribal labor ordinance workgroup, which was formed as a result of the San Manuel Indian Bingo & Casino v. National Labor Relations Board (“NLRB”) decision. The purpose of the call was to create a forum for discussing the resources available to tribes if the San Manuel decision, which would enable the NLRB to assert jurisdiction over tribal casinos, is not accepted for review by the Supreme Court. Tribes are encouraged to begin thinking about policies that would be required before unions organize.

Native American Contractors Association’s (“NACA”) Impact Day. On July 25, NACA held its first Native 8(a) Impact Day in Washington, D.C. The purpose of the Impact Day was to continue to educate key members of Congress on the work that Native contractors do and to raise awareness of attempts to make major changes to the Native 8(a) program. The primary message was that the Native 8(a) program is working and Congress should not change a program that brings economic development to Indian country. At least 34 Indian tribes and business leaders participated in more than 71 meetings with Congressional offices.

NIGA Legislative Summit. On July 25-26, NIGA held a Tribal Leaders’ Legislative Summit in Washington, D.C. to discuss current legislative and policy issues affecting Indian Country. NIGA also held an economic summit with the Inter-Tribal Economic Alliance to discuss tax exempt bonds and pensions with Senate Finance Committee staff, and to discuss the diversification of tribal economic development and green energy and protection of the 8(a) program with SBA staff.

On July 26, NIGA held a meeting to discuss gaming regulation and related concerns, focusing on the CRIT v. NIGC decision and NIGC’s regulatory authority over class III gaming. George Skibine, Acting Deputy Assistant Secretary for Indian Affairs for Policy and Economic Development at DOI, provided an update on the timeframe for the new Section 20 regulations. Skibine’s office is currently drafting the preamble and other portions of the rule, and expects it to take another couple of weeks before the rule can go to Carl Artman, Assistant Secretary - Indian Affairs. Artman is expected to give final shape to any grandfather clause that determines which pending project applications will be governed by the new rules, and which pending project applications will be governed by the old rules, and whether the latest draft rule will be sent out to the Tribes for further consultation. If not sent for further tribal consultation, sometime this fall Artman is expected to send the draft rule for review to the Office of Management and Budget and perhaps also Capitol Hill before it is published as a final rule in the Federal Register.

Holland & Knight’s Charitable Foundation Young Native Writers Contest Winners Visit D.C. On August 2-7, five (5) young Native students from across Indian Country traveled to Washington, D.C. as Holland & Knight’s 2007 Young Native Writers Contest winners. Natalie Carpenter (Karuk; Hoopa, CA), Fairuz Dakam (Oglala Lakota; Kyle, SD), Sandra Menadelook (Alaskan Inupiak; Teller, AK), Bridgette Mesa (Pascua Yaqui Tribe; Camas, WA), and Kai Monture (Tlingit; Yakutat, AK) were recognized at an honor ceremony held at the National Museum of the American Indian, met with members of Holland & Knight’s Indian Law Practice Group, and visited several local D.C. attractions and monuments. The 2007 award winning essays may be accessed by visiting: http://indian.hklaw.com/ESSAYS/2007/index.asp.

The Young Native Writers Essay Contest is an annual writing contest for Native American high school students and is designed to inspire honest portrayals of the richness of Native American life and history. Winners receive a college financial scholarship and an all-expense paid trip to Washington, D.C. The Holland & Knight Charitable Foundation began the annual Young Native Writers Contest last year. Information on the 2008 Contest will be available at http://indian.hklaw.com/2007/index.asp beginning in October, 2007.

UPCOMING EVENTS

August 27-28 – National Indian Gaming Association – Mid-Year Meeting, Mini Expo and Golf Tournament. Mohegan Sun – Uncasville, CT. http://www.indiangaming.org/events/midyear/index.shtml

September 25-27 – 2007 American Indian and Alaska Native Summit on Suicide Prevention, Intervention, and Healing. Pechanga, CA.

October 2-3 – NCAI Policy Research Center Advisory Council Meeting. Washington, D.C. http://www.ncaiprc.org/calendar.php?todo=all

October 14-15 – Native American Graves Protection and Repatriation Act (“NAGPRA”) Review Committee Meeting. Heard Museum, Phoenix, Arizona. 8:30 a.m. to 5 p.m. daily. http://www.nps.gov/history/nagpra/

October 22-23 – Law Seminars International Tribal Energy in the Northwest Conference. Red Lion Hotel, Seattle, WA. http://www.lawseminars.com/seminars/07TRIBWA.php

October 24-26 – Inter-Tribal Monitoring Association Annual Conference (“ITMA”). Golden Nugget Hotel and Casino, Las Vegas, NV. http://www.itmatrustfunds.org/documents/meeting%20announcements/2007Oct24-26,%20ITMA%20ANNUAL%20CONFERENCE%20Announcement.pdf

November 11-16 – National Congress of American Indians 64th Annual Convention. Denver Hyatt, Denver, CO. http://www.ncai.org/64th_Annual_Convention.219.0.html

December 8-11 – First Americans Land-grant College & Organization Network Annual Conference. Las Vegas, NV. http://quest.aihec.org/default.aspx

INDIAN LAW PRACTICE GROUP

WASHINGTON, D.C. 202 955 3000 • FAX 202 955 5564

Shenan R. Atcitty • shenan.atcitty@hklaw.com

Philip Baker-Shenk • philip.bakershenk@hklaw.com

Senator (Ret.) Ben Nighthorse Campbell • ben.campbell@hklaw.com

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

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

David Devendorf • david.devendorf@hklaw.com

Kimberlee M. Dunlop • kimberlee.dunlop@hklaw.com

Timothy Q. Evans • timothy.evans@hklaw.com

Ashley Fingarson • ashley.fingarson@hklaw.com

Stephen J. McHugh • steve.mchugh@hklaw.com