First Quarter Report 2008
 
April 4, 2008
 

CAPITOL HILL

The second session of the 110th Congress began in mid-January with the Senate passing S. 1200, the Indian Health Care Improvement Act (“IHCIA”) (see EYE ON CONGRESS below), while the House passed an energy tax package to provide $3.6 billion in energy conservation tax credit bonds to states, municipalities and tribal governments for green community programs and initiatives designed to reduce greenhouse gas emissions. Also in the First Quarter, the House and Senate passed H.R. 5140, an economic stimulus bill; continued negotiating the 2007 Farm Bill; and defeated attempts to adopt a year-long moratorium on earmarks, offered as an amendment to the Fiscal Year (“FY”) 2009 Budget Resolutions. Both chambers are expected to conference and reach an agreement on a final budget resolution early in the Second Quarter. Once a final budget resolution is agreed to, Appropriations Subcommittees may begin drafting their respective FY 2009 appropriations bills.

The House and Senate began the Second Quarter upon returning to Capitol Hill on Monday, March 31, and will remain in session until the week-long Memorial Day recess begins May 23. The Second Quarter will resume again in June before Congress leaves for another week-long recess on June 27. During the Second Quarter, the House and Senate are expected to focus on drafting their respective FY 2009 appropriations bills, with the House planning to bring the following FY 2009 appropriations bills to the floor for votes by the end of May: Defense; Homeland Security; and Military Construction. The House may also consider an additional economic stimulus bill and the Iraq War supplemental bill. The Senate is also expected to focus on the Iraq War with General David Patraeus, the U.S. Commander in Iraq, to testify before the Senate Armed Services and the Foreign Relations Committees, and the FY 09 Defense authorization bill and the Iraq War Supplemental. The Senate may also consider a package of housing-related measures and energy tax legislation.

EYE ON CONGRESS

FY 2009 President’s Budget Request. On February 5, the President released a $3.1 trillion FY 2009 budget proposal to Congress, again prioritizing military spending and slowing the growth rate of entitlement programs. The request includes $10.7 billion for the Department of the Interior (“DOI”), a $388.5 million decrease from the amount enacted by Congress for FY 2008, while the Bureau of Indian Affairs (“BIA”) would receive a $100 million decrease from the FY 2008 enacted amount with a total of $2.2 billion. The President proposed $4.3 billion for the Indian Health Service (“IHS”), an increase of $212 million above the FY 2008 enacted amount.

Bureau of Indian Affairs

Under the President’s proposed budget for the BIA, the following programs would receive an increase over the FY 2008 enacted amount: Office of Indian Programs (+$59.5 million); Guaranteed Loan Program (+$2 million); Law Enforcement (+$1.4 million); Historical Accounting (+$941,000); and the National Indian Gaming Commission (“NIGC”) (+$2 million). The President also proposed a decrease for the following programs: Indian Education (-$25.6 million); Construction for Indian Education (-$27.6 million); Office of Special Trustee (“OST”) (-$15 million); and tribal scholarships (-$5.9 million). In addition, the President has proposed the complete elimination of the Johnson O’Malley (“JOM”) Grant Program; the Housing Improvement Program (“HIP”); the Indian Land Consolidation Program; and funding for tribal technical colleges. However, last year Congress restored funding for all four programs.

Indian Health Service

Under the IHS proposed budget, the following programs would receive an increase: Clinical Services (+$131million, of which $588 million is for Contract Health Services - an $18 million increase); Preventative Health (+$3 million); Sanitation Facilities Construction (+$5 million); Health Care Facilities Construction (+$3 million); Facilities and Environmental Health Support (+$4 million); and Maintenance and Improvement (+$1 million). The President proposed a $3 million decrease for the Direct Operations program and again proposed the complete elimination of the Urban Indian Health Program, which was restored by Congress in FY 2008.

Senate Passes S. 2457. On February 5, the Senate passed S. 2457 (Lieberman, I-CT), a bill to provide for the extension of leases of certain land held by the Mashantucket Pequot (Western) Tribe, after agreeing to an amendment offered by Sen. Reid (D-NV) (Amendment 3988) prohibiting gaming activities on certain lands. The bill was received in the House and referred to the HNRC on February 7, which has yet to schedule any further action on the bill.

IHCIA Reauthorization Passed by the Senate. On February 27, the Senate passed S. 1200 (Dorgan, D-ND), a bill reauthorizing the IHCIA, as amended, in an 83-10 vote. The Senate began debating the bill on January 22 but was forced to complete business on other issues and was unable to resume its consideration until nearly a month later. Following Senate passage, the bill was received in the House and referred to the Natural Resources, Energy and Commerce, and Ways and Means Committees. Rachel Joseph (Co-Chair, National Steering Committee on the Reauthorization of the IHCIA) recently noted that progress in the Senate does not necessarily indicate what will happen in the House. Consequently, several tribal leaders met with key House offices immediately after the Senate passed S. 1200.

The House Natural Resources Committee (“HNRC”) and Energy and Commerce Health Subcommittee passed H.R. 1328 (Pallone, D-NJ), companion legislation in the House, last year on April 25 and November 7, respectively. However, H.R. 1328 awaits action by the full House Energy and Commerce and the House Ways and Means Committees. House leadership has not yet decided whether it will proceed with H.R. 1328, S. 1200, or re-introduce S. 1200 as a House bill. If the House proceeds with H.R. 1328, tribal leaders are pushing the Energy and Commerce Committee to mark up the bill as soon as possible in order to get IHCIA reauthorization passed this year.

FY 2009 Appropriations. During the week of March 3, both House and Senate Budget Committees drafted and approved their respective FY 2009 Budget Resolutions, which will serve as a “blue print” for determining funding level allocations for each of the 12 Appropriations Subcommittees. Both draft Budget Resolutions hit the $3 trillion dollar mark by restoring domestic programs and opting not to extend the President’s tax cuts. Notably, the President has pledged to veto any FY 2009 appropriations bills that exceed his overall spending target and that fail to cut the number and cost of earmarks in half from FY 2008.

During the week of March 10, both the Senate and the House considered and passed their respective FY 2009 Budget Resolutions. During debate and final passage in the Senate, three Indian-related amendments were passed (see below). The House and Senate Appropriations Committees will conference on the Budget Resolution upon returning from recess on March 31. Once an agreement is met, the Committees will be able to move forward with drafting their respective 12 FY 2009 appropriations bills.

Internet Gambling. On March 4, Rep. Jim McDermott (D-WA) introduced H.R. 5523, the Internet Gambling Regulation and Tax Enforcement Act of 2008, a bill to amend the Internal Revenue Code of 1986 to regulate tax and Internet gambling. The bill was referred to the House Committee on Ways and Means. House Financial Services Chairman Barney Frank (D-MA) has also indicated that his committee will hold a hearing this spring to highlight the headaches that anti-gambling regulations have created for banks and other financial institutions.

Indian-related Amendments to the Senate FY 2009 Senate Budget Resolution. On March 12 and 13, the Senate agreed to three Indian-related amendments to the Senate FY 2009 Budget Resolution. The first amendment, offered by Senate Committee on Indian Affairs (“SCIA”) Chairman Byron Dorgan (D-ND) (Amendment 4198), sought to increase the IHS by $1 billion in FY 2009. It passed by a vote of 69 yeas to 30 nays. The second amendment, offered by Sen. John Thune (R-SD) (Amendment 4268), passed by unanimous consent. Thune’s amendment would provide: (1) $40 million to improve safety in FY 2009 by increasing funds for tribal justice and law enforcement; (2) an additional $200 million in budget authority funding for police and prosecutors to address the growing problem of crime on Indian reservations by increasing the BIA Public Safety and Justice Account, which funds tribal law enforcement, tribal court systems, and tribal detention centers, by $25 million a year for the next five years; and (3) increased funding for U.S. Attorneys to prosecute crimes in Indian Country by providing $15 million each year for the next five years. The Senate also adopted a third amendment, offered by Sen. Thune (Amendment 4269), by unanimous consent. It would provide a total of $99 million in funding for the Community Oriented Policing Services (“COPS”) Hot Spots program, as authorized under the Combat Methamphetamine Act (P.L. 109-177). The COPS Hot Spots program trains state and local law enforcement officers to investigate and prosecute methamphetamine offenders.

COMMITTEE ACTION

Markups

Tribal Land Claim Settlement Bills. On February 13, the HNRC marked up and ordered reported, as amended, the following bills: 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; and H.R. 4115 (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.

Hearings

Tribal Land Claim Settlement Bills. On February 6, the HNRC held a hearing on H.R. 2176 (Stupak, D-MI); and H.R. 4115 (Dingell, D-MI), land claim settlement bills for the Bay Mills Indian Community and the Sault Ste. Marie Tribe, respectively. The following witnesses appeared and provided testimony before the Committee: Reps. John Dingell (D-MI), Bart Stupak (D-MI), Carolyn Kilpatrick (D-MI), Mike Rogers (R-MI), Candice Miller (R-MI), Shelley Berkley (D-NV), Bennie Thompson (D-MS), and John Conyers, Jr. (D-MI); Carl Artman (Assistant Secretary for Indian Affairs, DOI); Jeff Parker (President, Bay Mills Indian Community); Aaron Payment (Chairman, Sault Ste. Marie Tribe of Chippewa Indians); Alan Lambert (Mayor, City of Romulus); Karl Tomion (City Manager, City of Port Huron); Kwame Kilpatrick (Mayor, City of Detroit); Fred Cantu (Chief, Saginaw Chippewa Tribe); and Joe Conroy (Director of Governmental Operations, City of Flint). The HNRC then quickly marked up the bills (see above).

On March 14, the House Judiciary Committee held a hearing on H.R. 2176 and H.R. 4115. The following witnesses appeared and provided testimony before the Committee: Rep. Carolyn Kilpatrick (D-MI); Rep. Shelley Berkley (D-NV); Carl Artman (Assistant Secretary for Indian Affairs, DOI); Fred Cantu (Chief, Saginaw Chippewa Tribe); Alicia Walker (Sault. Ste. Marie Chippewa Tribe); and Kathryn Tierney (Tribal Attorney, Bay Mills Indian Community). Cynthia Abrams (Board Member, National Coalition Against Legalized Gambling) and Guy Clark (Chairman, National Coalition Against Gambling Expansion) were unable to appear before the Committee; however, both individuals submitted statements for the record opposing the bills. The Committee indicated that it will consider all concerns before determining its next steps.

SCIA Confirmation Hearing of Robert McSwain to Serve as IHS Director. On February 7, the SCIA held a confirmation hearing on the appointment of Robert McSwain to serve as Director of the IHS. McSwain, a member of the North Fork Rancheria of Mono Indians, has been serving as Acting Director since Dr. Charles Grim left the IHS last fall. McSwain previously served as Deputy Director, IHS; Program Director, Central Valley Indian Health, Inc.; Executive Director, California Rural Indian Health Board; Director, IHS California Area Office; and numerous other positions at IHS Headquarters. McSwain was the only witness to appear and provide testimony before the SCIA. At the hearing, Chairman Dorgan and Vice Chair Murkowski promised to move McSwain’s nomination forward at the SCIA’s next business meeting, which has yet to be scheduled.

Department of Interior’s FY 2009 Budget. On February 7, the House Interior Appropriations Subcommittee held a hearing to receive the Administration’s position on the FY 2009 Budget for DOI. The HNRC held a similar hearing on February 14. Secretary Dirk Kempthorne was the only witness to appear and provide testimony before both the Subcommittee and the Committee.

Indian Community Economic Assistance. On February27, the SCIA held a hearing on S. 2232 (Stevens, R-AK), the Foreign Aid Lessons for Domestic Economic Assistance Act of 2007. The bill directs the Secretary of Commerce to establish a demonstration program that adapts the lessons of providing foreign aid to underdeveloped economies to provide federal economic development assistance to certain similarly situated remote Native American communities. The following witnesses appeared and provided testimony before the SCIA: Senator Ted Stevens (R-AK); Matt Crow (Deputy Assistant Secretary for External Affairs and Communications, Economic Development Administration, Department of Commerce); Julie Kitka (President, Alaska Federation of Natives); Ralph Anderson (President, Bristol Bay Native Association); Zach Brink (Vice President, Association of Village Council Presidents); and Paul Applegarth (Chief Executive Officer, Value Enhancement International).

DOI’s Memorandum Providing Guidance on Taking Land Into Trust for Gaming. On February 27, the HNRC held an oversight hearing on the DOI’s January 3 memorandum providing guidance for taking land into trust for gaming purposes and its ramifications (see EXECUTIVE BRANCH – Agency Action below). The following witnesses appeared and provided testimony before the HNRC: Carl Artman (Assistant Secretary for Indian Affairs, DOI); Lorraine White (Chief, St. Regis Mohawk Tribal Council); Vincent Armenta (Tribal Chairman, Santa Ynez Band of Chumash Indians); Hazel Hindsley (Tribal Chairwoman, St. Croix Chippewa Indians of Wisconsin); Jeff Warnke (Director, Government and Public Relations, Confederated Tribes of the Chehalis Reservation); Jacqueline L. Johnson (Executive Director, National Congress of American Indians (“NCAI”)); Alex Tallchief Skibine (Professor, University of Utah S.J. Quinney College of Law); and Kevin K. Washburn (Visiting Associate Professor of Law, Harvard Law School). Members of the HNRC were demonstrably and vocally skeptical of Assistant Secretary Artman’s rationalization for the new Guidance and its issuance without tribal consultation. In closing, Chairman Rahall pledged to introduce legislation requiring DOI to engage in government-to-government consultation with tribes before taking action (see INDIAN LEGISLATION INTRODUCED – House below).

Jails, Schools and Health Facilities in Indian Country. On March 6, the SCIA held an oversight hearing on the state of jails, schools and health facilities in Indian Country. The following individuals appeared and provided testimony before the SCIA: Randy Grinnell (Deputy Director, Management Operations, IHS), accompanied by Gary Hartz (Director, Office of Environmental Health and Engineering, IHS) and Dr. Rick Olson (Director, Clinical and Prevention Services, IHS); Jack Rever (Director of Facilities, DOI), accompanied by Pat Ragsdale (Director, Office of Law Enforcement Services, DOI); Domingo Herraiz (Director, Bureau of Justice Assistance, Department of Justice (“DOJ”)); Wendsler Nosie (Chairman, San Carlos Apache Tribe); Monty Roessel (Executive Director, Rough Rock Community School); and Valerie Davidson (Senior Director, Legal and Governmental Affairs, Alaska Native Tribal Health Consortium), accompanied by Rick Boyce (Director for Health Facilities Support, Alaska Native Tribal Health Consortium). The Committee did not indicate any future action on this issue.

Tribal Witnesses Testify on the President’s FY 2009 DOI Budget. On March 12 and 13, the House Interior Appropriations Subcommittee held a hearing on the President’s FY 2009 DOI Budget to receive testimony from tribal witnesses. Several tribal witnesses appeared and provided testimony before the Subcommittee, including: Frances Charles (Chairwoman, Lower Elwha Klallam Tribe); Jeremy Weso (Tribal Administrator, Menominee Indian Tribe of Wisconsin); Herman Dillion, Sr. (Chairman, Puyallup Tribe); Billy Frank, Jr. (Chairman, Northwest Indian Fisheries Commission); Denese LaClair (Chairwoman, Skokomish Tribe); Victoria Doud (President, Lac du Flambeau Band of Lake Superior Chippewa Indians); James Zorn (Executive Director, Great Lakes Indian Fish and Wildlife Commission); Ron His Horse Is Thunder (Chairman, Standing Rock Sioux Tribe); Gene Joseph (Council Member, Confederated Tribes of the Colville Reservation); Liz Mueller (Vice-Chair, Jamestown S’Klallam Tribe); Ervin Carlson (President, InterTribal Bison Cooperative); Jim Peters (Chairman, Squaxin Island Tribe); Gary Batton (Assistant Chief, Choctaw Nation of Oklahoma); David Gipp (President, United Tribes Technical College); Eugene Guerito (School Board President, Dzith-Na-O-Dith-Hle Community Grant School) and Faye BlueEyes (Director of Finance, Dzith-Na-O-Dith-Hle Community Grant School); Rodger Martinez (President, Board of Trustees, Ramah Navajo School Board, Inc.) accompanied by Nancy Martine Alonzo (Assistant Secretary of Education for Indian Education, Ramah Navajo School Board, Inc.); Fawn Sharp (President, Quinault Indian Nation); Lloyd Tortalita (Education Director, Pueblo of Acoma); Joe Herman (Chief of Police, Oglala Sioux Tribe - Department of Public Safety); Micah McCarty (Chairman, Makah Tribal Council); Linda Holt (Chairperson, Northwest Portland Area Indian Health Board); Ralph Forquera (Executive Director, Seattle Indian Health Board); James Allen Crouch (Executive Director, California Rural Indian Health Board, Inc.); H. Sally Smith (Chairman, National Indian Health Board); Nolan C. Colegrove, Sr. (President, Intertribal Timber Council); Virginia Thomas (President, National Johnson O’Malley Association); Joseph J. Brings Plenty, Sr. (Chairman, Cheyenne River Sioux Tribe); Elbridge Coochise, (Chief Justice, Retired, Independent Review Team on Tribal Courts); Clifton Skye (Director of Project Management, United Sioux Tribes Development Corporation); and Roman Bitsuie (Executive Director, Navajo-Hopi Land Commission Office).

Tribal Water Rights Claims Bills. On March 13, the HNRC Water and Power Subcommittee held a hearing on several bills, including: H.R. 4841 (Bono, R-CA), the Soboba Band of Luiseno Indians Settlement Act, and H.R. 5293 (Heller, R-NV), the Shoshone-Paiute Tribes of the Duck Valley Reservation Water Rights Settlement Act. H.R. 4841 seeks Congressional approval of the settlement of water rights claims of the Soboba Band of Luiseno Indians relating to alleged interferences with the water resources of the Tribe and to authorize and direct the Secretary of the Interior to execute and perform the settlement agreement and related waivers. H.R. 5293 seeks Congressional approval of the settlement of water rights claims of the Shoshone-Paiute Tribes on the Duck Valley Reservation in Nevada. The following witnesses appeared and provided testimony before the Subcommittee: Majel Russell (Principal Deputy Assistant Interior Secretary of Indian Affairs, DOI) accompanied by Karl Wirkus (Deputy Commissioner for Operations, Bureau of Reclamation (“BOR”)); Kyle Prior (Chairman, Shoshone-Paiute Tribes); Allen Biaggi (Director, Nevada Department of Conservation and Natural Resources); Jay Chamberlin (Project Manager, Owyhee Irrigation District, Nyssa); Robert Salgado Sr. (Chairman, Soboba Band of Luiseno Indians); Randy Record (Director, Eastern Municipal Water District); Bill Long (President, Southeastern Colorado Water Conservancy District); Jim Broderick (Executive Director, Colorado Water Conservancy District); and Norman Noe (Manager, South Swink Water Company). Robert Johnson (Commissioner, BOR) also provided written testimony for the record.

INDIAN LEGISLATION INTRODUCED – FIRST QUARTER 2008

Senate

S. 2676 (Vitter, R-LA). Common Sense Indian Gambling Reform Act of 2008. A bill to make technical corrections to the Indian Gaming Regulatory Act (“IGRA”); STATUS: introduced and referred to the SCIA on February 28.

S. 2681 (Inhofe, R-OK). Code Talkers Recognition Act of 2008. A bill to require the issuance of medals to recognize the dedication and valor of Native American code talkers; STATUS: introduced and referred to the Senate Committee on Banking, Housing, and Urban Affairs on February 29.

S. 2747 (Johnson, D-SD). A bill to grant a federal charter to the National American Indian Veterans, Incorporated; STATUS: introduced and referred to the Senate Judiciary Committee on March 12.

House

H.R. 5293 (Heller, D-NV). Shoshone-Paiute Tribes of the Duck Valley Reservation Water Rights Settlement Act. A bill to approve the settlement of the water rights claims of the Shoshone-Paiute Tribes of the Duck Valley Reservation in Nevada, to require the Secretary of the Interior to carry out the settlement; STATUS: introduced and referred to the HNRC on February 7; referred to the HNRC Subcommittee on Water and Power on February 12; the HNRC Subcommittee on Water and Power held a hearing on March 13 (see COMMITTEE ACTION - Hearings above).

H.R. 5335 (Wamp, R-TN). A bill to amend the National Trails System Act to provide for the inclusion of new trail segments, land components, and campgrounds associated with the Trail of Tears National Historic Trail; STATUS: introduced and referred to the HNRC Subcommittee on National Parks, Forest, and Public Lands on February 13.
H.R. 5403 (Young, R-AK). 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; STATUS: introduced and referred to the HNRC on February 12.

H.R. 5530 (Pallone, D-NJ). Tribal Government Homeland Security Coordination and Integration Act. A bill 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 (“DHS”); STATUS: introduced and referred to the HNRC on March 4 and the House Homeland Security Subcommittee on Management, Investigation, and Oversight on March 18.

H.R. 5581 (Campbell, R-CA). A bill to require the Secretary of the Interior to notify units of local government when a Native American group files a petition to become a federally recognized Indian tribe and before a decision on the petition is made, and for other purposes; STATUS: introduced and referred to the HNRC on March 11.

H.R. 5608 (Rahall, D-WV). Consultation and Coordination With Indian Tribal Governments Act. A bill to establish regular and meaningful consultation and collaboration with tribal officials in the development of federal policies that have tribal implications, to strengthen the United States’ government-to-government relationships with Indian tribes, and to reduce the imposition of unfunded mandates upon Indian tribes; STATUS: introduced and referred to the HNRC on March 13.

House Resolutions

H. Res. 1043 (Fortenberry, R-NE). A resolution honoring the life and legacy of Chief Standing Bear, a pioneer in civil rights for Native Americans, on the 100th anniversary of Chief Standing Bear’s death; STATUS: introduced and referred to the HNRC on March 12.

EXECUTIVE BRANCH

Agency Action

DOI Releases Memorandum Providing Guidance for Taking Off-Reservation Land Into Trust for Gaming Purposes and Issues Decision Letters on 22 Applications to Acquire Land Into Trust for Gaming. On January 3, DOI Assistant Secretary -- Indian Affairs Carl Artman released a six-page memorandum announcing the Secretary of Interior’s intent to exercise his discretionary authority, under 25 C.F.R. part 151, to give “greater scrutiny” and “greater weight” when considering an application to take off-reservation land into trust for gaming purposes (“Guidance”). The Guidance sets forth explicit questions, intended to provide greater scrutiny of the anticipated benefits, that must be satisfied “if a proposed (land) acquisition exceeds a commutable distance from the reservation.” The Guidance defines “commutable distance” as a reasonable commute that a resident on a reservation makes on a daily basis to work at a tribal gaming facility located off the reservation. In addition, the Guidance gives greater weight to two specific state and local concerns, as set forth in the Section 151 regulations: (1) jurisdictional problems and potential conflicts of land use; and (2) the removal of the land from the tax rolls. The Guidance further states that it will be used on all applications currently pending before the Secretary of the Interior as well as future applications, and adds that Regional Directors shall use the Guidance when reviewing future applications. Immediately following the release of the Guidance, the Secretary of the Interior issued decision letters for 22 land into trust for gaming applications, denying 11 applications and deeming 11 applications incomplete. Applications may be re-submitted in accordance with the new guidance.

Internal Revenue Service (“IRS”) Publishes No-Rules List for 2008. On January 7, the IRS published a list of sections of the Internal Revenue Code that the IRS will not issue any rulings or determination letters on for 2008 (IRS Publication 2008-3; 2008-1 IRB 110). The following sections specifically pertain to tribes:

• Section 451 – General Rule for Taxable Year of Inclusion. This section sets forth the income tax consequences for beneficiaries of a trust established by an Indian tribe to receive and invest per capita payments for its members who are minors or legal incompetents under IGRA.
• Sections 671 to 679 – Grantors and Others Treated as Substantial Owners. These sections relate to whether an Indian tribe that establishes a trust to receive and invest per capita payments for its members who are minors or legal incompetents under IGRA is the grantor and owner of the trust.

No rulings or determination letters will be issued on the sections until the IRS resolves the issues through publication of a revenue ruling, procedure, or regulation.

NIGC and Five California Tribes Agree on Class III MICS Oversight. On January 11, five California tribes and the NIGC reached an agreement reinstating the NIGC’s oversight of Minimum Internal Control Standards (“MICS”) at several Class III gaming operations. The Pala Band of Luiseno Mission Indians; Picayune Rancheria; Rumsey Indian Rancheria; Twenty Nine Palms of Mission Indians; and United Auburn Indian Community each adopted a tribal gaming ordinance that requires compliance with NIGC’s MICS. The NIGC’s oversight authority was successfully challenged in Colorado River Indian Tribes (“CRIT”) v. NIGC.

DHS Announces Final Rule Implementing the REAL ID Act. On January 11, the DHS released a final rule implementing the REAL ID Act, establishing requirements for licenses and identification (“ID”) cards accepted for domestic air travel and entrance into federal buildings and nuclear facilities. However, the DHS did not include tribal ID cards as proof of identity in acquiring a REAL ID, failed to accept tribal ID cards in place of REAL ID, did not engage in tribal consultation (as required under Executive Order (“E.O.”) 13175), and otherwise failed to respect the government-to-government relationship between tribes and the federal government. States must begin issuing REAL ID licenses by May 11, 2008. However, states may obtain an initial extension until December 31, 2009, and an additional extension until May 11, 2011. Regardless of when a state begins issuing REAL ID licenses, all state licenses must comply with REAL ID by December 1, 2017.

DHS Issues Interim Guidance and Final Rule under the Western Hemisphere Travel Initiative (“WHTI”). On January 16, the DHS announced interim rules for border crossing. As of January 31, the interim rules no longer permit individuals to provide an oral declaration of identification and citizenship when crossing the U.S.-Canada or U.S.-Mexico border. Individuals age 19 and older must provide one of 10 documents to prove identity and citizenship, including Native American Tribal Photo ID Cards and Indian and Northern Affairs Canada (“INAC”) cards. However, to avoid undue delay, individuals may choose to provide a state driver’s license and birth certificate or passport to prove identification and citizenship.

DHS announced the final rule for WHTI on March 27, which will not be implemented and enforced until June 2009. Under the final rule, tribal ID cards will be accepted for border crossing after June 2009 if the issuing tribe agrees to: (1) establish identity and citizenship on its document; (2) meet WHTI tribal document security standards, yet to be established; and (3) provide Customs and Border Protection access to the appropriate entries in its enrollment records. Tribes must enter a voluntary agreement with the Secretary and DHS will work with tribes to develop, test and produce WHTI-compliant documents. The final rule is available at http://www.dhs.gov/xnews/releases/pr_1206634226418.shtm

Comment Period Extended for Four NIGC Proposed Regulations. On January 17, the NIGC extended the comment period for the following four proposed rules: (1) Classification Standards for bingo, lotto, other games similar to bingo, pull tabs and instant bingo as Class II gaming; (2) Definition for electronic or electromechanical facsimile; (3) MICS for Class II gaming; and (4) Technical Standards for electronic, computer, or other technologic aids used in the play of Class II games. The NIGC previously extended the comment period to January 24, 2008. The extension allowed interested parties to submit comments on the four proposed rules until March 9. A final rule is not expected until later this year.

New Director Named for the Office of Indian Education. On January 22, Department of Education (“Department”) Secretary Margaret Spellings named Cathie Carothers as the new Director of the Office of Indian Education within the Department’s Office of Elementary and Secondary Education. Carothers had been serving as Acting Director of the Office on Indian Education since October 2007.

BIA Modernization Meeting. On January 30, Carl Artman (Assistant Secretary for Indian Affairs, DOI) and Majel Russell (Deputy Assistant Secretary, DOI) joined NCAI President Joe Garcia and tribal leaders from across the nation to discuss the BIA Modernization Initiative. During the meeting, Assistant Secretary Artman released the “Indian Affairs Modernization Initiative Summary Report” (“Report”), which details the comments and responses received from consultation sessions held in different BIA regions to discuss the BIA Modernization Initiative, and encouraged tribal leaders to review the Report. President Garcia discussed NCAI Resolution # 07-004, passed in 2007 to support a tribally-driven initiative to improve the efficiency and effectiveness of the BIA. Tribal leaders in attendance agreed upon the need to create a National Tribal Advisory Group to address the Modernization Initiative. Tribal leaders also agreed that each tribe should determine how many and who will represent them at future National Tribal Advisory Group meetings.

A National Tribal Advisory Group meeting was held on March 17 and 18 in Denver, CO. During this meeting, Mary Jane Miller (Director of Indian Affairs, Office of Management and Budget) gave a brief overview of the FY 2008 budget for Indian Affairs and identified the limits of existing resources. In addition, Vicki Forest (Director, OST) gave a presentation on the profile of trust services. Several breakout sessions were held to discuss BIA staffing and services; law enforcement; Indian lands; self-governance and 638 contracting; and education. During the breakout sessions, chairpersons and technical team leaders were selected; specific goals for the teams were identified; work team processes were established; and timelines and team assignments were set.

Federal Communications Commission (“FCC”) Workshop on Consumers in Rural Areas and Tribal Lands Affected by the Digital Television Transition. On January 31, the FCC held a workshop to discuss the challenges associated with ensuring that consumers on tribal lands receive and can act on information regarding the upcoming Digital Television Transition (“DTV Transition”), scheduled to occur on February 17, 2009. The following tribal representatives participated on the panel and provided guidance on outreach to Indian Country for the upcoming transition: Raymond Apodaca (Division of Tribal TANF Management, Office of Family Assistance, Department of Health and Human Services (“HHS”)); Geoffrey Blackwell (NCAI Telecommunications Subcommittee Member); Francis Dune (Office of Indian Energy and Economic Development, DOI); Craig Lewis (Federal Project Officer, Employment and Training Administration, Department of Labor); Loriene Roy (President Library Association); Georgeline Sparks (Office of Headstart, HHS); and Deswood Tome (Director of Communications, Navajo Nation). Detailed information on the DTV Transition is available at http://www.dtv.gov and information on the voucher program is available at http://www.dtv2009.gov. The FCC also has a informational call-in line available at (888) CALL FCC and for TTY services, (888) TELL FCC.

DHS and Federal Emergency Management Agency (“FEMA”) Announce Availability of FY 2008 Direct Funding Grants to Tribes. In early March, DHS and FEMA announced the availability of grant funding for “direct service tribes”, as required under the 9/11 Commission Recommendations Act (P.L. 110-053). For FY 2008, the total amount of State Homeland Security Program (“SHSP”) funding available to tribal applicants is $1,644,555, or 0.1 percent of the total funds appropriated to grants under the Urban Areas Security Initiative (“UASI”) and SHSP. In order to be eligible for FY 2008 funding, a tribe must have complied with the National Incident Management Systems (“NIMS”) in FY 2007 and must qualify as an “eligible tribe” – a tribe that: (1) is located in the continental United States; (2) operates a law enforcement or emergency response agency with the capacity to respond to calls for law enforcement or emergency services; (3) certifies to the Secretary that a state has not provided funds to the Indian tribe or consortium of Indian tribes under sections 2003 of the UASI or 2004 of the SHSP for the purpose for which direct funding is sought; and (4) satisfies at least one of the following requirements:

• Located on or near an international border or coastline bordering an ocean (including the Gulf of Mexico) or international waters;
• Located within 10 miles of a system or asset included on a prioritized critical infrastructure list to be compiled by DHS/FEMA, or has such system or asset within its
  territory;
• Located within or contiguous to one of the 50 most populous metropolitan statistical areas in the U.S.
  (a full list of the metropolitan statistical areas is available at
  http://www.whitehouse.gov/omb/bulletins/b03-04_attach.pdf); or
• The jurisdiction of which includes not less than 1,000 square miles of Indian country, as that term is defined under section 1151 of Title 18, United States Code.

For additional information and guidance, please contact our Washington, D.C. Indian Law Practice Group. FEMA has also provided supplemental guidance for tribes online at http://www.fema.gov/government/grant/hsgp/index.shtm#2.

Applications are due by May 1, 2008.

SUPREME COURT

Supreme Court Hears Oral Arguments in Two Indian-Related Cases. In the First Quarter of 2008, the Supreme Court heard oral arguments for the following cases:

• Crawford v. Marion County Election Board (“Crawford”). On January 9, the Supreme Court heard oral arguments in Crawford, which challenges a law enacted by the state of Indiana requiring voters to present state or federal photo ID in order to vote. If the decision is upheld, other states with substantial Indian populations may be encouraged to adopt restrictive voter identification statutes. A decision is not expected until late spring or early summer, before the Supreme Court adjourns.
• Exxon Shipping Company v. Baker (“Exxon”). On February 27, the Supreme Court heard oral arguments in Exxon, which involves the challenge of an award of $2.5 billion in punitive damages in a class action lawsuit brought as a result of the 1989 Exxon Valdez oil spill in Prince William Sound. A number of Alaska Native village members that depend on subsistence fishing, hunting, and gathering were among those most affected by the disaster and are included within a larger group of the class action plaintiffs. The Court is currently reviewing whether the punitive damages award is “excessive” under federal maritime law. A decision is not expected until late spring or early summer.

Supreme Court Grants Review in Two Cases with Impacts to Indian Country. The Supreme Court granted review of the following cases with potential impacts to Indian country:

• Plains Commerce Bank. v. Long Family Land and Cattle Company (“Plains”). On January 4, the Supreme Court granted review of a decision by the U.S. Court of Appeals for the Eighth Circuit in Plains, which held that the Cheyenne River Sioux Tribal Court has jurisdiction over a discrimination action by tribal members against a non-Indian bank conducting business on the Reservation. Oral arguments are scheduled for April 14.
• Carcieri v. Kempthorne (“Carcieri”). On February 25, the Supreme Court granted review of a decision by the en banc panel of the U.S. Court for the First Circuit in Carcieri that upheld the Secretary of the Interior’s authority to take land into trust for the Narragansett Tribe under Section 5 of the Indian Reorganization Act (“IRA”). The state of Rhode Island has made arguments threatening the land and sovereignty of all tribes. Oral arguments will not be scheduled until October.

Supreme Court Denies Review of Indian-Related Cases. The Supreme Court denied review in the following Indian-related cases:

• Mann v. North Dakota Tax Commissioner (“Mann”). On January 7, the Supreme Court denied review of Mann, upholding a North Dakota Supreme Court decision that the state’s motor fuel tax refund procedure for Indians residing on Reservations is reasonable and not unduly burdensome. Plaintiff Indians sought review, claiming that the refund procedure violates due process because it failed to provide for a hearing to challenge a denial, and violates equal protection because it denies a refund unless the claimant provides original receipts.
• Jones v. Minnesota (“Jones”). The Supreme Court also denied review of Jones on January 7. The Court effectively validated a decision by the Minnesota Supreme Court which held that a tribal member who fails to register as a sex offender is in violation of the state’s predatory-offender registration statute. As a result, under P.L. 280, the state has subject matter jurisdiction to prosecute a tribal member who lives on the reservation for failure to register.
• Macarthur v. San Juan County (“Macarthur”). On February 19, the Supreme Court denied review of Macarthur, affirming a decision by the Tenth Circuit which held that the consensual relationship exception found in Montana does not apply to a non-member who enters into an employment relationship with a member or the tribe on the Reservation. The case involved whether the Navajo Tribal Courts had subject matter jurisdiction over employment-related claims against the San Juan Health Services District, which operates a clinic within the exterior boundaries of the Navajo Nation.

Federal District Court

Judge Issues Ruling in Cobell v. Kempthorne (“Cobell”). On January 30, U.S. District Judge James Robertson issued a 165-page ruling in Cobell regarding the historical accounting of Individual Indian Money (“IIM”) trust. Judge Robertson determined that the federal government failed its obligation to account for the money, but also found that the DOI is unable to perform an adequate accounting of the IIM trust. Judge Robertson stated that a remedy must be found for the DOI’s unrepaired and irreparable breach of its fiduciary duty over the last century, and that it is time to bring the suit to a close.

Hearing Held on Appropriate Remedy in Cobell. On March 5, Judge Robertson held another important hearing in Cobell to “develop a process for determining an appropriate remedy.” Most of the hearing centered on whether the Federal District Court could provide a remedy for IIM beneficiaries who may never receive a complete accounting. In an effort to resolve the case by this summer, Judge Robertson ordered an aggressive briefing schedule leading up to a trial on June 9, 2008. Before the trial, the court will also rule on whether the DOI can reconnect to the Internet, disconnected under an order by the previous District Court Judge presiding over the Cobell case, Royce Lamberth, who required the DOI to disconnect its Internet based on information security concerns.

OTHER

National Indian Gaming Association (“NIGA”) Meeting and Winter Legislative Summit (“Summit”). On January 22, NIGA hosted a meeting for tribal leaders and tribal representatives to discuss DOI’s new Part 151/Section 20 policy for acquiring lands in trust for gaming purposes; proposed NIGC Class II regulations on definitions, classification standards, technical standards, and MICS; facility licensing and environment, health and safety NIGC regulations; Class III MICS and tribal ordinance revenue allocation plan NIGC regulations; and developments in labor law and tribal litigation. The following individuals provided remarks at the meeting: Carl Artman (Assistant Secretary-Indian Affairs, DOI); Phil Hogen (Chairman, NIGC); and George Skibine (Director, BIA Office of Indian Gaming Management).

NIGA also held its Winter Legislative Summit on February 26 and 27 in Washington, D.C. The Summit focused attention on the same issues listed above, as well as the Senate passage of the IHCIA.

NCAI State of the Indian Nations Address and Winter Session. On January 31, NCAI President Joe Garcia gave the State of the Indian Nations Address at the National Press Club in Washington, D.C. In his address, President Garcia emphasized that the initiatives of 2008 should be viewed through the eyes of Indian children, specifically focusing on three areas: (1) economic development; (2) improved education; and (3) safer Indian communities. President Garcia also stressed the importance of passing the IHCIA this year. Following President Garcia’s address, SCIA Vice Chair Lisa Murkowski (R-AK) provided the first Congressional response to the State of the Indian Nations. Sen. Murkowski agreed that Congress must pass IHCIA this year, provide greater economic development opportunities in Indian Country, focus on law enforcement needs, improve Indian education, recognize the commitments to Indian Country, and listen to tribal leaders.

NCAI also held its Winter Executive Session in Washington, D.C. the week of March 3-5 to discuss issues in 2008 that Indian Country will need to address, including Supreme Court cases, appropriations, labor issues, off-reservation gaming, and land into trust regulations. NCAI also held various breakout sessions focusing on specific issues,
including Homeland Security issues.

NCAI and Native American Contractors Association (“NACA”) Impact Day. On February 12 and 13, NCAI and NACA held their 2nd Annual Impact Day, entitled “Constituent Briefings on Native 8(a) Progress”, in Washington, D.C. The purpose of the Impact Day was to allow Indian tribes to continue educating key members of Congress on the work that Native contractors do and to increase 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 that Congress should not make any changes to a program that brings important economic development to Indian country. Over 30 Indian tribes and business leaders participated in more than 50 meetings and briefings with Congressional offices.

HHS Tribal Budget Consultation. On March 12 and 13, the HHS held its Annual Tribal Budget Consultation with Tribal Leaders in Washington, D.C. The following IHS representatives provided testimony on the formulation of the IHS budget: Robert McSwain (Acting Director, IHS); Elizabeth Fowler (Acting Director - Office of Finance and Accounting, IHS); and Charles Johnson (Assistant Secretary for Resources and Technology, IHS). Linda Holt (Chairperson, Northwest Portland Area Indian Health Board) and Darryl Red Eagle (Tribal Executive Board Member, Fort Peck Tribes) made a presentation on behalf of the Tribal IHS Budget Formulation Team and pressed the IHS to address why IHS funding is considered as “discretionary” spending as opposed to mandatory spending; however, there was no agency response to this question. Jefferson Keel (NCAI Vice President) noted that Mr. Johnson, Mr. McSwain, and Laura Caliguiri (HHS) have made “great strides” for Indian health care programs despite tight budgets over the past two to three years.

Holland & Knight’s 2008 Young Native Writers Contest. Information on Holland & Knight’s 2008 Young Native Writers Essay Contest, an annual writing contest for Native American Indian and Alaska Native high school students designed to inspire honest portrayals of the richness of Native American Indian life and history, is now available at http://indian.hklaw.com/2008/index.asp. Winners receive a college financial scholarship and an all-expense paid trip to Washington, D.C. Student essays are due by
April 15, 2008.

UPCOMING EVENTS

April 9-10 – NCAI Environmental Protection Agency National Tribal Users Meeting. Agua Caliente Band of Cahuilla Indians’ Spa Resort Casino, Palm Springs, CA. http://www.ncai.org/

April 10-11 – Federal Bar Association 33rd Annual Indian Law Conference. Albuquerque Marriott, Albuquerque, NM. http://www.fedbar.org/eventreg.html

April 20-23 – NIGA Indian Gaming 2008 Tradeshow and Convention. San Diego Convention Center, San Diego, CA. http://www.indiangaming.org/events/tradeshow/index.shtml

April 20-23 – 26th Annual “Protecting Our Children” National American Indian Conference on Child Abuse and Neglect. Sheraton Bloomington Hotel, Minneapolis, MN. www.nicwa.org/conference

April 27- May 1 – “20 Years of Tribal Self-Governance: Celebrating Excellence” Conference. Hosted by the DOI and HHS. Riviera Hotel and Casino, Las Vegas, NV.
www.tribalselfgov.org

May 12-14 – National American Indian Housing Council’s 34th Anniversary Convention and Trade Show. Sheraton Seattle Hotel and Towers, Seattle, WA.
www.naihc.org

May 12-14 – 5th Annual Construction in Indian Country International Conference. Radisson Fort McDowell Resort, Fort McDowell, AZ.
http://construction.asu.edu/ciic/

May 18-21 – 16th Annual Great Plains/Midwest/Rocky Mountain Indian Gaming Conference and Tradeshow. Mystic Lake Casino, Prior Lake, MN.
http://www.gpiga.com/index.php?option=com_content&task=view&id=36&Itemid=30

May 19-21 – BIA/Tribal Budget Advisory Council Meeting. Sheraton National Hotel, Arlington, VA.
https://guest.cvent.com/EVENTS/Register/IdentityConfirmation.aspx?e=81a8b883-b3bc-4f8f-8fe2-cda90614f397

May 21-22 – National Indian Health Board Public Health Summit. Radisson Hotel and Conference Center, Green Bay, WI.
http://www.nihb.org/staticpages/index.php?page=phsummit08

May 24 – Memorial Day Honor Gourd Dance. National Museum of the American Indian, Washington, D.C.
http://www.nmai.si.edu/subpage.cfm?second=dc&subpage=events

June 1-4 – NCAI Mid-Year Conference. John Ascuaga’s Nugget, Reno, NV.
http://www.ncai.org/Home.313.0.html

INDIAN LAW PRACTICE GROUP

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