Second Quarter Report - 2008
 
September 23, 2008
 

CAPITOL HILL

During the second quarter of the second session of the 110th Congress, the House and Senate agreed to a Fiscal Year (“FY”) 2009 Budget Resolution, officially starting the FY 2009 appropriations process, but the House subsequently passed only one FY 2009 appropriations bill (see EYE ON CONGRESS: FY 2009 Budget Resolution and FY 2009 Appropriations, respectively, below). Both chambers also considered and moved forward on several Indian Affairs-related bills in the second quarter, summarized as follows:

• In late April, the Senate approved Robert McSwain’s nomination to be the Director of the Indian Health Service (“IHS”).
• The Senate unanimously passed, and prior to the August recess the House requested conference with the Senate on, the legislation reauthorizing the Native American Housing Assistance and Self-Determination Act (“NAHASDA”) (see EYE ON CONGRESS: NAHASDA below).
• In late June, the House failed to pass a Michigan tribal land claim bill, H.R. 2176 (Stupak, D-MI), to provide for and approve the settlement of certain land claims of the Bay Mills Indian Community.
• In July, Congress passed and the President subsequently signed into law legislation authorizing funds for the global fight on HIV/AIDS, which had been amended to also include $2 billion for Indian Country law enforcement, health care, and water projects (see EYE ON CONGRESS: PEPFAR below).

Both the House and Senate returned to Capitol Hill from the August recess on Monday, September 8, for a three-week working period before its scheduled adjournment on Friday, September 26, in preparation for the November elections. Senate Majority Leader Harry Reid (D-NV) stated that he does not expect Congress to return to Washington, D.C. for a lame-duck session after the November elections.

During the working period, the Senate is expected to consider the FY 2009 Defense Authorization bill, an energy package, an additional domestic supplemental spending bill, and a package of tax extenders. The House is expected to focus on a second economic stimulus package and a tax extenders package as well. House Speaker Nancy Pelosi (D-CA) has indicated that the House will pass its FY 2009 Defense bill in September, which has been suggested as the vehicle for a Continuing Resolution (“CR”), a resolution that funds the federal government on a temporary basis until Congress determines how to proceed with the FY 2009
appropriations bills later this fall.

EYE ON CONGRESS

FY 2009 Budget Resolution. On May 14, the House named conferees for negotiations to begin on the FY 2009 Budget Resolution. The House FY 2009 Budget Resolution passed earlier this year contained approximately $1.014 trillion in discretionary funding, while the Senate’s FY 2009 Budget Resolution contained approximately $1.010 trillion and included a provision offered by Senator Byron Dorgan (D-ND) to add $1 billion to the IHS budget. On June 5, Congress reached an agreement and approved the FY 2009 Budget Resolution, which provides $1.013 trillion in discretionary spending, $21 billion over the $991.6 billion recommended by President Bush.

FY 2009 Appropriations. After Congress approved the FY 2009 Budget Resolution, each of the respective House and Senate Appropriations Committee received their allocation levels for the twelve FY 2009 appropriations bills. In early June, the House Appropriations Subcommittees and Full Committee began marking up their twelve FY 2009 appropriations bills, with nine bills considered at the Subcommittee level but only five bills considered and marked up by the Full Committee. Because Republicans tried to offer energy-related amendments at Full Committee mark-up, House Appropriations Committee Chairman David Obey (D-WI) cancelled further mark-ups of the FY 2009 appropriations bills in the second quarter (see House Appropriations Interior Subcommittee Marked Up Its FY 2009 Interior Appropriations Bill below). Only one House FY 2009 appropriations bill, for Military Construction/Veterans Affairs, passed the House just prior to the August recess. In addition, the House Appropriations Defense Subcommittee marked up its FY 2009 Defense appropriations bill, in which then the mark-up scheduled by the full House Appropriations Committee for September 9 was cancelled without explanation. It is widely anticipated that the CR will be attached to the FY 2009 Military Construction/Veterans Affairs or Defense appropriations bill later this fall.

In the Senate in late June, the Senate Appropriations Subcommittees began marking up and considering their twelve FY 2009 appropriations bills. By late July, nine of the twelve bills were marked up by the Full Senate Appropriations Committee, but then the Senate Appropriations Committee cancelled the scheduled mark-up of the three remaining FY 2009 appropriations bills for the Legislative Branch, Interior, and Defense. The Senate Appropriations Committee did not move forward on marking up any of the remaining appropriations bills before adjourning on August 1, and it is unlikely that it will move forward on any such bills in the short September working period. Although the Senate Defense Appropriations Subcommittee marked up its FY 2009 Defense appropriations bill, it is not yet determined if the bill will be marked up at the Full Committee level this fall. The Committee is instead likely to approve a CR.

House Appropriations Interior Subcommittee Marked Up Its FY 2009 Interior Appropriations Bill. On June 11, the House Appropriations Interior Subcommittee marked up the FY 2009 Interior Appropriations bill. Overall, the Subcommittee’s mark provides $27.9 billion for Interior and Environment programs, a $1.3 billion increase over the FY 2008 enacted level. In his opening remarks, Subcommittee Chairman Norm Dicks (D-WA) stated that the single largest increase within the bill is for programs serving Native Americans. He stated that the President’s FY 2009 proposal would have cut funding for these programs by $121 million and would have resulted in a loss of healthcare for 100,000 Indians. Chairman Dicks further stated that the Subcommittee’s mark provides $6 billion for the IHS and the Bureau of Indian Affairs (“BIA”), $350 million over the FY 2008 enacted levels for both the IHS and BIA. He stated that $181 million of the increase provided by the Subcommittee mark will go directly to clinical health services at the IHS. In addition, he stated that the Subcommittee’s mark includes $118 million over the President’s FY 2009 request for Indian law enforcement, education, community development, and construction. No Indian affairs-related amendments were offered. Additional details of the mark have not been made available. The Subcommittee-approved bill is now awaiting mark-up by the full House Appropriations Committee. In June, the House FY 2009 Interior appropriations bill became the target for all energy-related policy provisions, further delaying the re-scheduling of the mark-up.

IHCIA Reauthorization. On June 6, both the House Energy and Commerce and House Ways and Means Committees discharged from further consideration H.R. 1328 (Pallone, D-NJ), a bill to amend the Indian Health Care Improvement Act (“IHCIA”) to revise and extend the Act. H.R. 1328 has now been placed on the House calendar and is awaiting floor consideration. House Leadership is currently determining the strategy to bring H.R. 1328 to the floor, since the National Right To Life Committee issued a letter opposing passage of the IHCIA reauthorization on the suspension calendar if the bill did not contain a provision permanently prohibiting federal health programs for American Indians from providing abortions. During the first quarter, the Senate had overwhelmingly passed S. 1200 (Dorgan, D-ND), a bill reauthorizing the IHCIA, as amended, by an 83-10 vote.

NAHASDA. On May 22, the Senate, by unanimous consent, passed S. 2062 (Dorgan, D-ND), a bill to amend and reauthorize the Native American Housing Assistance and Self-Determination Act of 1996. Senate Majority Leader Harry Reid (D-NV) offered amendment #4820 to modify provisions relating to the expansion of listed activities for which grants may be used, an allocation formula, and a demonstration program, to which the Senate agreed. Last year in September, the House passed H.R. 2786 its version of the NAHASDA legislation. On July 17, the House agreed to S. 2062, the Senate’s NAHASDA reauthorization bill, with amendment, and to a motion to instruct on the bill. The following conferees were subsequently appointed: Reps. Barney Frank (D-MA), Maxine Waters (D-CA), Melvin Watt (D-NC), Al Green (D-TX), Emanuel Cleaver (D-MO), Spencer Bachus (R-AL), Shelley Moore Capito (R-WV), and Steve Pearce (R-NM). The House has requested conference with the Senate on the House-amended version of S. 2062.

Efforts to Change 8(a) Contracting. On May 20, Congressman Henry Waxman (D-CA), Chairman of the House Oversight and Government Reform Committee, filed an amendment to H.R. 5658, the Defense Authorization Bill, which would set a cap on the number Native American contractors and exclude Native American businesses from sole source contracts. Rep. Waxman’s amendment targeted limiting the availability of all sole source contracts, but included an exemption for small businesses. However, Native 8(a)s were excluded from this exemption. Congressman Tom Cole (R-OK), along with House Natural Resources Committee Chairman Nick Rahall (D-WV) and Ranking Member Don Young (R-AK), worked successfully to have Rep. Waxman revise his amendment to remove the Native 8(a) cap provision.

Tribal Law Enforcement. In late July, after holding a series of tribal law enforcement hearings and soliciting input from tribal leaders, Senate Committee on Indian Affairs (“SCIA”) Chairman Byron Dorgan (D-ND) introduced S. 3320, the Tribal Law and Order Act of 2008. In the House, Representative Stephanie Herseth Sandlin (D-SD) introduced companion legislation, H.R. 6583. The bill establishes an Office of Indian Country Crime within the Department of Justice and requires federal law enforcement officials and U.S. attorneys to submit a report to that Office and to tribal officials whenever they decline to investigate or prosecute crimes on reservations. It also requires the appointment of assistant U.S. attorneys to serve as tribal liaisons and gives tribal law enforcement officials access to the National Criminal Information Center. The bill increases the sentencing power of tribal courts to up to 3 years incarceration in a tribal or federal facility and fines up to $15,000, and encourages cooperation and consultation with tribal authorities throughout. The bill also authorized appropriations in various areas. Both Senator Dorgan and Representative Herseth Sandlin are hopeful to have at least a hearing on the legislation in both chambers this year, although overall passage is unlikely given the short working period in September. The legislation will most likely be re-introduced in the 111th Congress next year.

In a related matter, on August 7, the SCIA released, over BIA objections, a draft report compiled by a BIA consultant entitled “Master Plan for Justice Services in Indian Country - Year 2007 to Year 2017.” The draft Master Plan consists of detailed assessments of 38 tribal jails, including facility observations, inspections, interviews with officers and inmates, and photographs. It concludes that the life and safety of officers and inmates are at risk due to the lack of adequate justice facilities and programs in Indian Country and that there are not enough corrections officers to sustain the jails, among other findings. “This report confirms what so many in Indian Country have known all along the tribal jail system is unbelievably broken,” said SCIA Chairman Dorgan. “There are not enough beds, facilities must be improved, and there is a lack of trained staff. This is a crisis that allows half of all of those in Indian Country who should be incarcerated to go free.” The SCIA also included the entire draft report within the SCIA’s June 19, 2008 hearing record (see COMMITTEE ACTION below). To date, no further action on the report has been announced.

Climate Change Legislation. During the week of June 2, the Senate considered a climate change bill, S. 3036 (Boxer, D-CA), also known as the Lieberman-Warner climate change legislation, that contained provisions establishing a Tribal Climate Change Assistance Fund to address local or regional impacts of climate change affecting Indian tribes. Although the bill was ultimately defeated on the Senate floor, it is expected to be considered again in the next Congress. The House is also developing similar legislation that will most likely be considered next year as well.

Farm Bill. After Congress passed the 2007 Farm Bill earlier this year, the President vetoed it on May 21. Congress then voted to override the veto, and on May 22 the bill became Public Law 110-234. The new law contains several tribal-related provisions, including a requirement that the Farm Service Agency provide loans to Indians to purchase highly fractionated parcels of land according to the Indian Land Consolidation Act, and support for the procurement of foods produced by Native American farmers and ranchers. In addition, the law contains an allowance for the purchase of bison meat from Native American bison producers, which is authorized at $5 million annually for FY 2008 through FY 2012.

PEPFAR - $2 Billion Indian Country Amendment for Law Enforcement, Health Care, and Indian Water Rights Settlements Projects. On July 31, the President signed into law H.R. 5501/S. 2731, the Tom Lantos and Henry J. Hyde United States Global Leadership Against HIV/AIDS, Tuberculosis, and Malaria Reauthorization Act of 2008 (P.L. 110-293), also know as the U.S. President’s Emergency Plan for AIDS Relief (“PEPAR”). The PEPAR law authorizes up to $2 billion for Indian country law enforcement, health care, and water projects authorized as part of Indian water rights settlements. The $2 billion will be divided three ways - $750 million for public safety, $250 million for health care, and $1 billion for Indian water rights settlement agreements. If appropriated by the Congress, the money will be available over a five year period.

Below is a more detailed break-down of the $2 billion commitment:

• $750 million for public safety is to be allocated as follows:
• $370 million for detention facility construction, rehabilitation, and replacement (through the Department of Justice (“DOJ”));
• $310 million for the BIA’s Public Safety and Justice Account, which funds tribal police and courts;
• $30 million for investigations and prosecutions of crimes in Indian country (U.S. Attorneys and the Federal Bureau of Investigation);
• $30 million to the DOJ’s Office of Justice Programs for Indian and Alaska Native Programs; and
• $10 million for cross-deputization or other cooperative agreements between state or local governments and Indian tribes.
• $250 million for health care is to be allocated as the Director of IHS deems necessary among contract health services, construction and rehabilitation of Indian health facilities, and domestic and community sanitation facilities serving Indian tribes.
• $1 billion for water rights settlement agreements is to be used to fund water settlement agreements already approved by Congress, under which the government will plan, design, rehabilitate, construct, or provide financial assistance for the construction of water supply and delivery mechanisms to tribes. Additionally, $100 million of the $1 billion will be allocated to the IHS to provide domestic and community sanitation facilities for tribal members.

Tribal Tax Legislation. Several statutory tribal tax provisions and new legislation were considered in the second quarter, including Pension Protection Act provisions and statutory provisions pertaining to tribal tax-exempt bonds.

• Pension Protection Act. On July 9, the House passed H.R. 6382 (Rangel, D-NY), the Pension Protection Technical Corrections Act of 2008, which contains a tribal provision that eliminates duplication under the Employee Retirement Income Security Act (“ERISA”). Under ERISA, Indian tribal government plans do not need to purchase plan termination insurance. ERISA Section 4021(b) excludes Indian tribal government plans by reference in paragraph 2 and explicitly in paragraph 14. H.R. 6382 eliminates this duplication by striking paragraph 14.
• Tax Incentive Provisions. Two reservation tax incentive provisions expired at the end of 2007 and have not yet been re-authorized. The two provisions pertain to the accelerated depreciation deduction for reservation property and infrastructure and the Indian Employment Tax Credit. These two provisions are now part of a package of expiring or expired provisions that are awaiting re-authorization by Congress. The package is expected to move before the end of the 110th Congress, but is not guaranteed to pass both the House and Senate because of political posturing related to the budget rules.
• Tax-Exempt Bonds. Legislation to reform the treatment of tribal tax-exempt bonds has been introduced in both the House and the Senate, but neither H.R. 3164 nor S. 1850 have been scheduled for a Committee markup or House or Senate floor action. At the July 22 Senate Finance Committee hearing on tribal tax legislation, Chairman Max Baucus (D-MT) opened the hearing by indicating his strong interest in tax provisions that would support Indian reservation development, particularly for those tribes who continue to struggle economically (see COMMITTEE ACTION below). Chairman Baucus also directed his staff to focus on a “solution” to the tax treatment of tribal tax exempt bonds, as well as a fix for the much-criticized tribal pension provisions passed in 2006 as part of the Pension Protection Act.

COMMITTEE ACTION

Markups

Land Claims Settlement Legislation – House Judiciary Committee. On April 2, the House Judiciary Committee marked up H.R. 2176 (Stupak, D-MI) and H.R. 4115 (Dingell, D-MI), the land claim settlement bills for the Bay Mills Indian Community and the Sault Ste. Marie Tribe, respectively. The Committee voted 29-0 to report unfavorably H.R. 2176 without amendment and with a recommendation that the bill not be passed by the full House. The Committee also voted 27-0 to report unfavorably H.R. 4115 without amendment and with a recommendation that the bill not be passed by the full House.

HNRC Mark-Up – Four Tribal Bills. On April 17, the House Natural Resources Committee (“HNRC”) marked up the following four tribal bills:

• H.R. 3522 (Udall, D-NM), a bill to ratify a conveyance of a portion of the Jicarilla Apache Reservation to Rio Arriba County, New Mexico, pursuant to the settlement of litigation between the Jicarilla Apache Nation and Rio Arriba County, to authorize issuance of a patent for said lands, and to change the exterior boundary of the Jicarilla Apache Reservation accordingly;
• H.R. 3490 (Radanovich, R-CA), the Tuolumne Me-Wuk Land Transfer Act of 2007, a bill to transfer administrative jurisdiction of certain federal lands from the Bureau of Land Management (“BLM”) to the BIA, to take such lands into trust for the Tuolumne Band of Me-Wuk Indians of the Tuolumne Rancheria;
• S. 2457 (Lieberman, I-CT), a bill to provide for extensions of leases of certain lands by the Mashantucket Pequot Tribe; and
• H.R. 1575 (Stupak, D-MI), the Burt Lake Band of Ottawa and Chippewa Indians Reaffirmation Act, a bill to reaffirm and clarify the federal relationship of the Burt Lake Band as a distinct federally recognized Indian Tribe.

The HNRC agreed to and reported favorably by unanimous consent and without amendment H.R. 3522, H.R. 3490, and S. 2457. H.R. 1575 was agreed to favorably as amended.

HNRC Subcommittee on Water and Power Mark-Up on Tribal Legislation. On April 23, the HNRC Subcommittee on Water and Power held a markup on H.R. 4841 (Bono Mack, R-CA), a bill to approve, ratify, and confirm the settlement agreement entered into to resolve claims by the Soboba Band of Luiseño Indians relating to alleged interferences with the Tribe’s water resources, and to authorize and direct the Secretary of the Interior to execute and perform the Settlement Agreement. H.R. 4841 was agreed to
unanimously as amended and forwarded to the full HNRC.

SCIA Business Meeting – IHS Director McSwain Nomination and Four Tribal Bills. On April 24, the SCIA held a business meeting to mark up the nomination of Robert McSwain to be the Director of the IHS and the following four bills:

• H.R. 65 (McIntyre, D-NC), the Lumbee Recognition Act, a bill to provide for the federal recognition of the Lumbee Tribe of North Carolina;
• S. 1779 (Tester, D-MT), the Tribal Health Promotion and Tribal Colleges and Universities Advancement Act, 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;
• S. 1193 (Domenici, R-NM), the 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; and
• H.J.Res. 62 (Baca, D-CA), Native American Heritage Day of 2007, a joint resolution honoring the achievements and contributions of Native Americans to the U.S.

The SCIA approved H.R. 65; S. 1779; and S. 1193 unanimously without amendment. H.J.Res. 62 was approved unanimously and ordered reported favorably as amended by the SCIA. In addition, McSwain’s nomination was
approved unanimously.

Soboba Indians Water Settlement Act. On April 30, the HNRC marked up and ordered reported favorably H.R. 4841 (Bono Mack, R-CA), the Soboba Indians Water Settlement Act.

Senate Energy and Natural Resources Committee. On May 7, the Senate Energy and Natural Resources Committee marked up S. 1171 (Bingaman, D-NM), the Northwestern New Mexico Rural Water Projects Act, a bill to amend the Colorado River Storage Project Act and P.L. 87-483 to authorize the construction and rehabilitation of water infrastructure in Northwestern New Mexico, the use of the Bureau of Reclamation Fund to fund the Reclamation Water Settlements Fund, the conveyance of certain Bureau of Reclamation land and infrastructure, and the Commissioner of Reclamation to provide for the delivery of water. S. 1171 was ordered reported favorably with an amendment in the nature of a substitute.

HNRC Mark-Up. On May 14, the HNRC held a markup on H.R. 5680 (Grijalva, D-AZ), a bill to amend certain laws relating to Native Americans, including legislation pertaining to the following:

• Colorado River Indian Tribes;
• Gila River Indian Community contracts;
• Land and interests of the Sault Ste. Marie Tribe of Chippewa Indians of Michigan;
• Land and interests of the Lac du Flambeau Band of Lake Superior Chippewa Indians of Wisconsin;
• Morongo Tribe lease extension;
• Cow Creek Band leasing authority;
• Amendment of the Alaska Native Claims Settlement Act to issue new settlement common stock to descendants, left-outs, and elders;
• Columbia River Treaty fishing access sites; and
• Miccosukee Tribe of Indians of Florida.

H.R. 5680 was ordered reported favorably as amended.

SCIA Business Meeting – Mark-Up of Six Tribal Bills. On June 19, the following six bills were reported out of the SCIA by unanimous consent:

• S. 1255 (McCain, R-AZ), the Indian Arts and Crafts Amendments Act of 2007, a bill to protect Indian arts and crafts through the improvement of applicable criminal proceedings, with a McCain amendment;
• S. 531 (McCain, R-AZ), a bill to repeal section 10(f) (commonly known as the “Bennett Freeze”) of Pub.L. 93-531, the Navajo-Hopi Settlement Act;
• S. 1080 (Baucus, D-MT), the Crow Tribe Land Restoration Act, a bill to develop a program to acquire interests in land from eligible individuals within the Crow Reservation in Montana;
• S. 2489 (Johnson, D-SD), the Oglala Sioux Tribe Angostura Irrigation Project Modernization and Development Act, a bill to enhance and provide to the Oglala Sioux Tribe and Angostura Irrigation Project certain benefits of the Pick-Sloan Missouri River basin program;
• S. 160 (Thune, R-SD), the Lower Brule and Crow Creek Tribal Compensation Act, a bill to provide compensation to the Lower Brule and Crow Creek Sioux Tribes of South Dakota for damage to tribal land caused by Pick-Sloan projects along the Missouri River; and
• S. 2494 (Cantwell, D-WA), the Spokane Tribe of Indians Grand Coule Dam Equitable Compensation Settlement Act, a bill to provide equitable compensation to the Spokane Tribe of Indians of the Spokane Reservation for the use of tribal land in the production of hydropower at the Grand Coulee Dam.

Hearings

FY 2009 Indian Health Service Budget. On April 2, the House Interior Appropriations Subcommittee held a hearing on the FY 2009 IHS budget, with IHS Director Robert McSwain as the only witness to appear and provide testimony.

Western Hemisphere Travel Initiative (“WHTI”) – Senate Judiciary Committee. On April 2, the Senate Judiciary Committee held an oversight hearing on the Department of Homeland Security (“DHS”), with Secretary Michael Chertoff as the only witness to appear and provide testimony. Although no tribal specific issues were raised, the hearing was monitored for potential tribal concerns or impact on Indian tribes.

FY 2009 BIA and Office of Special Trustee (“OST”) Budgets. On April 3, the House Interior Appropriations Subcommittee held a hearing on the President’s FY 2009 budget request for OST. Carl Artman (Assistant Secretary for Indian Affairs, Department of the Interior (“DOI”) and Ross Swimmer (Special Trustee for American Indians, OST, DOI) appeared and provided testimony before the Subcommittee.

Hearing on Five Tribal Bills. On April 9, the HNRC held a legislative hearing on the following five tribal bills:

• H.R. 5608 (Rahall, D-WV), the Consultation and Coordination with Indian Tribal Governments Act, a bill to establish regular and meaningful consultation and collaboration with tribal officials;
• H.R. 3522 (Udall, D-NM), a bill to ratify a conveyance of a portion of the Jicarilla Apache Reservation to Rio Arriba County, New Mexico, pursuant to the settlement of litigation between the Jicarilla Apache Nation and Rio Arriba County, to authorize issuance of a patent for said lands, and to change the exterior boundary of the Jicarilla Apache Reservation accordingly;
• H.R. 3490 (Radanovich, R-CA), the Tuolumne Me-Wuk Land Transfer Act of 2007, a bill to transfer administrative jurisdiction of certain federal lands from the BLM to the BIA, to take such lands into trust for the Tuolumne Band of Me-Wuk Indians of the
  Tuolumne Rancheria;
• S. 2457 (Lieberman, I-CT), a bill to provide for extensions of leases of certain lands by the Mashantucket Pequot Tribe; and
• H.R. 5680 (Grijalva, D-AZ), a bill to amend certain laws relating to Native Americans.

The following individuals appeared and provided testimony before the HNRC: James Cason (Associate Deputy Secretary, DOI); Philip Hogen (Chairman, National Indian Gaming Commission (“NIGC”)); Robert McSwain (Acting Director, IHS); the Honorable Joe Shirley (President, Navajo Nation); the Honorable Buford Rolin (Chairman, Poarch Band of Creek Indians); the Honorable Gerald Danforth (Chairman, Oneida Nation of Wisconsin); Jerry Gidner (Director, BIA); the Honorable Valerie Welsh-Tahbo (Secretary, Colorado River Indian Tribes); the Honorable Kevin Day (Chairman, Tuolumne Me-Wuk Tribe); the Honorable Fidelia Andy (Chairwoman, Columbia River Inter-Tribal Fish Commission); and Dennis Lee Forsgren, Jr. (Consultant, Miccosukee Tribe of Indians of Florida).

FY 2009 Interior Budget. On April 15, the Senate Interior Appropriations Subcommittee held a hearing on the President’s FY 2009 Interior budget request. DOI Secretary Dirk Kempthorne was the only witness to appear and provide testimony before the Subcommittee.

Western Hemisphere Travel Initiative – House
Homeland Security Subcommittee. On April 16, the House Homeland Security Subcommittee on Border, Maritime and Global Counterterrorism held a hearing to review the current status of WHTI and its future, noting the challenges in ensuring that WHTI is implemented in a way that minimizes the inconvenience of border communities. Although no tribal specific issues were raised, the hearing was monitored for potential tribal concerns or impact on Indian tribes.

Indian Water Rights Settlements. On April 16, the HNRC Water and Power Subcommittee held an oversight hearing on Indian water rights settlements. The following individuals appeared and provided testimony before the Subcommittee: Michael Bogert (Chairman of the Working Group on Indian Water Rights, DOI); Susan Cottingham (Director, Montana Reserved Water Rights Compact Commission); John Echohawk (Executive Director, Native American Rights Fund (“NARF”)); John Sullivan (General Manager, Salt River Project); Jeanne Whiteing (Tribal Counsel, Blackfeet Tribe); the Honorable Joe Shirley, Jr. (President, Navajo Nation); and Rodney Lewis (Former General Counsel, Gila River Indian Community).

NIGC Oversight Hearing. On April 17, the SCIA held an oversight hearing on the NIGC. The following individuals appeared and provided testimony before the SCIA: Phil Hogen (Chairman, NIGC); the Honorable Delia Carlyle (Chairwoman, Arizona Indian Gaming Association); the Honorable J.R. Matthews (Board Member and Vice-Chairman of the Quapaw Tribe of Oklahoma) accompanied by Mark Van Norman (Executive Director, National Indian Gaming Association); Brian Patterson (President, United South and Eastern Tribes); Kurt Lugar (Executive Director, Great Plains Indian Gaming Association); and Kathryn Rand (Co-Director, Institute for the Study of Tribal Gaming Law and Policy, University of North Dakota).

Federal Acknowledgement. On April 24, the SCIA held an oversight hearing on the federal acknowledgement process. The following individuals appeared and provided testimony before the SCIA: Carl Artman (Assistant Secretary for Indian Affairs, DOI); the Honorable Anthony Rivera, Jr. (Tribal Chairman, Juaneno Band of Mission Indians); and Patty Ferguson-Bohnee (Director, Indian Legal Clinic).

Rio Grande Pueblos Irrigation Legislation. On April 24, the Senate Energy and Natural Resources Subcommittee on Water and Power held a hearing on several bills, including one tribal-specific bill, S. 2805 (Bingaman, D-NM), the Rio Grande Pueblos Irrigation Infrastructure Improvement Act, a bill to direct the Secretary of the Interior, acting through the Commissioner of the Bureau of Reclamation (“BOR”), to assess the irrigation infrastructure of the Rio Grande Pueblos in New Mexico and provide grants to, and enter into cooperative agreements with, the Rio Grande Pueblos to repair, rehabilitate, or reconstruct existing infrastructure. Bob Johnson (BOR Commissioner) and the Honorable J. Michael Chavarria (Chairman, Eight Northern Indian Pueblos Council) appeared and provided testimony before the Subcommittee on S. 2805.

WHTI and REAL ID Act - Senate Homeland Security and Governmental Affairs Subcommittee Hearing. On April 29, the Senate Homeland Security and Governmental Affairs Subcommittee held an oversight hearing on the implementation of the WHTI and REAL ID Act. Although no tribal specific issues were raised, the hearing was monitored for potential tribal concerns or impact on Indian tribes.

House Natural Resources Subcommittee Joint Hearing on the Sothern Border Wall. On May 28, the House Natural Resources Committee Subcommittee on National Parks, Forests and Public Lands, led by Rep. Raul Grijalva (D-AZ), and Subcommittee on Fisheries, Wildlife and Oceans, chaired by Rep. Madeleine Z. Bordallo (D-GU), held a joint oversight field hearing in Brownsville, Texas, entitled “Walls and Waivers: Expedited Construction of the Southern Border Wall and the Collateral Impacts on Communities and the Environment.” The following tribal witness appeared and provided testimony before the Subcommittees: the Honorable Ned Norris Jr., (Chairman, Tohono O’odham Nation) who discussed the impacts of the wall on tribal lands, resources and people.

Indian Energy Development. On May 1, the SCIA held an oversight hearing on Indian energy development. The following individuals appeared and provided testimony before the SCIA: the Honorable Marcus Wells, Jr. (Chairman, Three Affiliated Tribes of Mandan, Hidatsa, and Arikara); the Honorable Carl Venne (Chairman, Crow Nation); Steven Begay (General Manager, Dine Power Authority, Navajo Nation); Julie Kitka (President, Alaska Federation of Natives); Bob Middleton (Director, Office of Indian Energy and Economic Development, DOI); and Steven Morello (Director, Office of Indian Energy Policy and Programs, Department of Energy).

House Natural Resources Subcommittee on Water and Power – Water Rights Legislation. On May 8, the HNRC Subcommittee on Water and Power held a hearing on the following Indian Affairs related bill, in addition to two
non-tribal related water bills:

• H.R. 155 (Herseth Sandlin, D-SD), the Lower Brule and Crow Creek Tribal Compensation Act, which would provide compensation to the Lower Brule and Crow Creek Sioux Tribes of South Dakota for damage to tribal land caused by Pick-Sloan projects along the Missouri River;

The following individuals appeared and provided testimony before the Subcommittee on this bill: Robert Quint (Director of Operations, BOR), accompanied by Elizabeth Southerland (Director of the Assessment and Remediation Division, Environmental Protection Agency); the Honorable Michael Jandreau (Chairman, Lower Brule Sioux Tribe).

Tribal Self-Governance. On May 13, the SCIA held an oversight hearing to explore the successes and shortfalls
associated with tribal self-governance policy. The following individuals appeared and provided testimony before the SCIA: Jim Cason, (Deputy Assistant Secretary, DOI); the Honorable Ron Allen (Chairman, Jamestown S’Klallam Tribe); the Honorable Lyle Marshall, (Chairman, Hoopa Valley Tribe); the Honorable James Steele, Jr., (Chairman, Confederated Salish & Kootenai Tribes of the Flathead Indian Reservation); and Gene Peltola (President, Yukon-Kuskokwim Health Corporation).

Indian Affairs Senate Legislation. On May 15, the SCIA held a hearing on the following bills:

• S. 1080 (Baucus, D-MT), the Crow Tribe Land Restoration Act, which would develop a program to acquire interests in land from eligible individuals within the Crow Reservation in Montana;
• H.R. 2120 (Stupak, D-MI), which would direct the Secretary of the Interior to proclaim a parcel of land now held in trust by the United States for the benefit of the Sault Ste. Marie Tribe of Chippewa Indians as reservation land;
• S. 2494 (Cantwell, D-WA), the Spokane Tribe of Indians of the Spokane Reservation Grand Coulee Dam Equitable Compensation Settlement Act, which would provide equitable compensation to the Spokane Tribe of Indians of the Spokane Reservation for the use of tribal land in the production of hydropower at the Grand Coulee Dam;
• H.R. 2963 (Issa, R-CA), the Pechanga Band of Luiseño Mission Indians Land Transfer Act of 2007, which would transfer certain land in Riverside County, California, and San Diego County, California, from the BLM to the United States to be held in trust for the Pechanga Band; and
• S. 531 (McCain, R-AZ), a bill to repeal section 10(f), commonly known as the “Bennett Freeze”, of the Navajo-Hopi Land Settlement Act of 1974, P.L. 93-531.

The following individuals appeared and provided testimony before the SCIA: Jerry Gidner (Director, BIA); the Honorable Richard Sherwood (Chairman, Spokane Tribe of Indians); the Honorable Carl Venne (Chairman, Crow Tribe); the Honorable Mark Macarro (Tribal Chairman, Pechanga Band of Luiseno Mission Indians); the Honorable Aaron Payment (Chairman, Sault St. Marie Tribe of Chippewa Indians); Benjamin Nuvamsa (Chairman, Hopi Tribe); and Raymond Maxx (Navajo Nation Council Delegate and Chairman of the Navajo-Hopi Land Commission).

Oversight Hearing on the DOI’s Handling of Land Issues. On May 22, the SCIA held an oversight hearing to follow-up on its October 4, 2007 hearing on the DOI’s handling of land-into-trust applications, environmental impact statements, probates, and appraisals. The following individuals appeared and provided testimony before the SCIA: Carl Artman (Assistant Secretary for Indian Affairs, DOI); the Honorable Robert Chicks (President, Stockbridge-Munsee Band of Mohican Indians, and Vice President, National Congress of American Indians (“NCAI”)); Gary Svanda (Council Member, Madera City, California); and Doug Nash (Director, Institute for Indian Estate Planning and Probate).

Predatory Lending in Indian Country. On June 5, the SCIA held an oversight hearing on predatory lending in Indian Country. The following individuals appeared and provided testimony before the SCIA: Jerilyn DeCoteau (Policy Director, First Nations Development Institute); the Honorable Ron Allen (Chairman, Jamestown S’Klallam Tribe); Donna Gambrell (Director, U.S. Treasury’s Community Development Financial Institutions Fund); Darwin Brokke (President, Citizen Community Credit Union); John Barkley (Vice Chairman, Umatilla Tribal Water Commission); and Jamie Fulmer (Director of Public Affairs, Advance America)

Tribal Funds Legislation. On June 5, the HNRC held a hearing regarding tribal funds related legislation, specifically focusing on the following two bills:

• H.R. 3699 (Oberstar, D-MN), a bill to provide for the use and distribution of the funds awarded to the Minnesota Chippewa Tribe in Minnesota Chippewa Tribe v. United States, Docket Nos. 19 and 1888, United States Court of Federal Claims; and
• H.R. 2306 (Peterson, D-M), the Minnesota Chippewa Tribe Judgment Fund Distribution Act of 2007.

The following individuals appeared and provided testimony before the HNRC: Rep. James Oberstar (D-MN); Rep. Collin Peterson (D-MN); Jerry Gidner (Director, BIA); the Honorable Kevin Leecy (Chairman, Bois Forte Band of Chippewa Indians); the Honorable Karen Driver (Chairwoman, Fond du Lac Band of Lake Superior Chippewa Indians); the Honorable Norman Deschampe (President, Minnesota Chippewa Tribe, and Chairman, Grand Portage Band of Lake Superior Chippewa Indians); the Honorable George Goggleye, Jr. (Chairman, Leech Lake Band of Ojibwe Indians); the Honorable Melanie Benjamin (Chief Executive, Mille Lacs Band of Ojibwe); and the Honorable Erma Vizenor (Chairwoman, White Earth Band of Chippewa Indians).

Senate Tribal Law Enforcement Draft Bill. On June 19, the SCIA held a hearing on a draft law enforcement bill. The following individuals appeared and provided testimony before the SCIA: the Honorable Ron His Horse Is Thunder (Chairman, Standing Rock Sioux Tribe); the Honorable Joe Garcia (President, NCAI, and Governor, Ohkay Owingeh); Kelly Stoner (Law Professor); Walter Lamar (Consultant); Gretchen Shappert (U.S. Attorney for the Western District of North Carolina); and Patrick Ragsdale (Director, BIA Office of Justice Services).

Contract Health Services. On June 26, the SCIA held an oversight hearing on contract health services. The following individuals appeared and provided testimony before the SCIA: Sally Smith (Chair, National Indian Health Board); Marlene Krein (President/CEO, Mercy Hospital, Devils Lake, ND); the Honorable Stacy Dixon (Chair, Susanville Indian Rancheria); the Honorable Jefferson Keel (Lt. Governor, Chickasaw Nation); the Honorable Linda Holt (Chair, Northwest Portland Indian Health Board); Brenda Shore (Tribal Health Program Director, United South and Eastern Tribes, Inc.); and Robert McSwain (Director, IHS).

Oversight Hearing on the Adam Walsh Act. On July 17, the SCIA held an oversight hearing entitled “Tracking Sex Offenders in Indian Country: Tribal Implementation of the Adam Walsh Act.” The following individuals appeared and provided testimony before the SCIA: the Honorable Ronald Suppah (Chairman, Confederated Tribes of the Warm Springs Reservation); the Honorable Isidro Lopez (Vice Chairman, Tohono O’odham Nation); the Honorable Robert Moore (Tribal Councilman, Rosebud Sioux Tribe); William Gregory (Tribal Prosecutor, Little Traverse Bay Band of Odawa Indians); and Jacqueline Johnson
(Executive Director, NCAI).

Status of Tribal Tax Legislation. On July 22, the Senate Finance Committee held a hearing entitled “Indian Governments and the Tax Code: Maximizing Tax Incentives for Economic Development.” The hearing focused on the current tax code provisions encouraging reservation economic development and on tribal government tax-exempt bond financing. The following individuals appeared and provided testimony before the Committee: Dante Desiderio (Certified Financial Planner and Economic Development Policy Specialist, NCAI); Donald (Del) Laverdure (Chief Legal Counsel, Crow Nation Executive Branch); and Wayne A. Shammel (General Counsel, Cow Creek Band of Umpqua Tribe of Indians).

Tribal Courts and the Administration of Justice. On July 24, the SCIA held an oversight hearing on tribal courts and the administration of justice in Indian Country. The following individuals appeared and provided testimony before the SCIA: Patrick Ragsdale (Director, BIA Office of Justice Services), accompanied by Joe Little (Associate Deputy Director, Office of Justice Services - Division of Tribal Justice Support); the Honorable Roman Duran (First Vice President, National American Indian Court Judges Association); the Honorable Joseph Flies Away (Chief Judge, Hualapai Indian Tribe of Arizona); Dorma Sahneyah (Tribal Prosecutor, Hopi Tribe of Arizona); and the Honorable Teresa Pouley (President, Northwest Tribal Court Judges Association).

IHS Mis-Management of Property. On July 31, the SCIA held an oversight hearing to examine the management of the IHS, focusing on lost property, wasteful spending and document fabrication. The following individuals appeared and provided testimony before the SCIA: Gregory D. Kutz (Managing Director, Forensic Audits and Special Investigations, General Accounting Office); Robert McSwain (Director, IHS); and Fernand R. Verrier (former Deputy Director of the Office of Finance and Accounting and former Chief Financial Officer, IHS).

INDIAN LEGISLATION INTRODUCED – SECOND QUARTER 2008

Senate

S. 2779 (Bingaman, D-NM). A bill to amend the Surface Mining Control and Reclamation Act of 1977 to clarify that uncertified States and Indian tribes have the authority to use certain payments for certain non-coal reclamation projects; STATUS: introduced and referred to the Senate Committee on Energy and Natural Resources Subcommittee on Public Lands and Forests on March 13; hearing held on July 9.
See also H.R. 5661.

S. 2805 (Bingaman, D-NM). Rio Grande Pueblos Irrigation Infrastructure Improvement Act. A bill to direct the Secretary of the Interior, acting through the Commissioner of Reclamation, to assess the irrigation infrastructure of New Mexico’s Rio Grande Pueblos and provide grants to, and enter into cooperative agreements with, the Rio Grande Pueblos to repair, rehabilitate, or reconstruct existing infrastructure; STATUS: introduced and referred to the Senate Committee on Energy and Natural Resources on April 2; hearing held by the Senate Energy and Natural Resources Subcommittee on Water and Power on April 24.
See also H.R. 6024.

S. 2875 (Tester, D-MT). Gray Wolf Livestock Loss
Mitigation Act of 2008. A bill to authorize the Secretary of the Interior to provide grants to designated states and tribes to carry out programs to reduce the risk of livestock loss due to predation by gray wolves and other predator species or to compensate landowners for livestock loss due to predation; STATUS: introduced and referred to the Senate Committee on Energy and Natural Resources on April 16.

S. 2949 (Smith, R-OR). Mark O. Hatfield Scholarship and Excellence in Tribal Governance Act of 2008. A bill to establish the Mark O. Hatfield Scholarship and Excellence in Tribal Governance Foundation, a foundation at Portland State University to award scholarships, internships, fellowships and grants to individuals and organizations across the country in the furtherance of tribal self-governance and self-determination; STATUS: introduced and referred to the SCIA on April 30. See also H.R. 5928

S. 2983 (Lautenberg, D-NJ). Diabetes Prevention Access and Care Act of 2008. 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 in order to reduce health disparities among racial and ethnic minority groups, including the African-American, Hispanic American, Asian American and Pacific Islander, and American Indian and Alaskan Native communities; STATUS: introduced and referred to the Senate Committee on Health, Education, Labor, and Pensions on May 7.

S. 3000 (Akaka, D-HI). Native American Veterans Access Act of 2008. A bill to amend Title 38 of the United States Code to include federally recognized tribal organizations in certain grant programs of the Department of Veterans Affairs currently available to States and territories; STATUS: introduced and referred to the Senate Committee on Veterans’ Affairs on May 8.

S. 3128 (Kyl, R-AZ). White Mountain Apache Tribe Rural Water System Loan Authorization Act. A bill to direct the Secretary of the Interior to provide a loan to the White Mountain Apache Tribe for use in planning, engineering, and designing a water system project; STATUS: introduced and referred to the SCIA on June 12.

S. 3192 (Wyden, D-WA). A bill to amend the Act of August 9, 1955, to authorize the Cow Creek Band of Umpqua Tribe of Indians, the Coquille Indian Tribe, and the Confederated Tribes of the Siletz Indians of Oregon to obtain 99-year lease authority for trust lands; STATUS: referred to the SCIA on June 25; marked up by SCIA on July 31.

S. 3283 (Tester, D-MT). Dr. Joseph Medicine Crow Congressional Gold Medal Act. A bill to award a Congressional gold medal to Dr. Joseph Medicine Crow, in recognition of his especially meritorious role as a warrior of the Crow Tribe, Army soldier in World War II, and author; STATUS: introduced and referred to the Senate Committee on Banking, Housing, and Urban Affairs on July 17.

S. 3320 (Dorgan, D-ND). Tribal Law and Order Act of 2008. A bill to amend the Indian Law Enforcement Reform Act, the Indian Tribal Justice Act, the Indian Tribal Justice Technical and Legal Assistance Act of 2000, and the Omnibus Crime Control and Safe Streets Act of 1968 to improve the prosecution of, and response to, crimes in Indian country; STATUS: introduced and referred to the SCIA. Cosponsors of the bill include: Senators Lisa Murkowski (R-AK); Joe Biden (D-DE); Pete Domenici (R-NM); Max Baucus (D-MT); Jeff Bingaman (D-NM); Joseph Lieberman (I-CT); Jon Kyl (R-AZ); Gordon Smith (R-OR); Tim Johnson (D-SD); Maria Cantwell (D-OR); John Thune (R-SD); and Jon Tester (D-MT). See also H.R. 6583.

S. 3355 (Tester, D-MT). Crow Tribe Water Rights Settlement Act of 2008. A bill to authorize the Crow Tribe of Indians water rights settlement; STATUS: introduced and referred to the SCIA on July 29.

S. 3381 (Domenici, R-NM). A bill to authorize the Secretary of the Interior, acting through the Commissioner of Reclamation, to develop water infrastructure in the Rio Grande Basin, and to approve the settlement of the water rights claims of the Pueblos of Nambe, Pojoaque, San Ildefonso, Tesuque, and Taos; STATUS: introduced and referred to the SCIA on July 31.

House

H.R. 2210 (DeGette, D-CO). Diabetes Prevention Access and Care Act of 2008. 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 in order to reduce health disparities among racial and ethnic minority groups, including the African-American, Hispanic American, Asian American and Pacific Islander, and American Indian and Alaskan Native communities; STATUS: introduced and referred to the House Energy and Commerce Subcommittee on Health on May 8. See also S. 2983.

H.R. 5661 (Pearce, R-NM). A bill to amend the Surface Mining Control and Reclamation Act of 1977 to clarify that uncertified States and Indian tribes have the authority to use certain payments for certain non-coal reclamation projects; STATUS: introduced and referred to the HNRC on March 31; referred to the HNRC Subcommittee on Energy and Minerals on April 2. See also S. 2779.
H.R. 5680 (Grijalva, D-AZ). A bill to amend certain laws relating to Native Americans; STATUS: introduced and referred to the HNRC on April 2; HNRC held a hearing on the bill on April 9 and mark-up on May 14; passed the House on June 18; received in the Senate and referred to the SCIA on June 19.

H.R. 5680 (Grijalva, D-AZ). A bill to amend certain laws relating to Native Americans; STATUS: introduced and referred to the HNRC on April 2; HNRC held a hearing on the bill on April 9 and mark-up on May 14; passed the House on June 18; received in the Senate and referred to the SCIA on June 19.

H.R. 5795 (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 the decision on the petition is made; STATUS: introduced and referred to the HNRC on April 15.

H.R. 5928 (Wu, D-OR). Mark O. Hatfield Scholarship and Excellence in Tribal Governance Act of 2008. A bill to establish the Mark O. Hatfield Scholarship and Excellence in Tribal Governance Foundation, a foundation at Portland State University to award scholarships, internships, fellowships and grants to individuals and organizations across the country in the furtherance of tribal self-governance and self-determination; STATUS: introduced and referred to the House Committee on Education and Labor and HNRC on April 30. See also S. 2949.

H.R. 6005 (Becerra, D-CA). Tribal Charities Fairness Act of 2008. A bill to amend the Internal Revenue Code to provide for the treatment of Indian tribal governments as State governments for purposes of the public charity-private foundation classification under the Code; STATUS: introduced and referred to the House Ways and Means
Committee on May 8.

H.R. 6024 (Udall, D-NM). Rio Grande Pueblos Irrigation Infrastructure Improvement Act. A bill to direct the Secretary of the Interior, acting through the Commissioner of Reclamation, to assess the irrigation infrastructure of New Mexico’s Rio Grande Pueblos and provide grants to, and enter into cooperative agreements with, the Rio Grande Pueblos to repair, rehabilitate, or reconstruct existing infrastructure; STATUS: introduced and referred to the HNRC on May 12; referred to the HNRC Subcommittee on Water and Power on May 19. See also S. 2805.

H.R. 6087 (Campbell, R-CA). A bill to sunset the federal recognition and acknowledgment process within the BIA; STATUS: introduced and referred to the HNRC on May 20.

H.R. 6098 (Reichert, R-WA). PRICE of Homeland Security Act. A bill to amend the Homeland Security Act of 2002 to improve the financial assistance provided to State, local, and tribal governments for information sharing activities; STATUS: introduced and referred to the House Homeland Security Committee on May 20; marked up on June 11; passed the House on July 29 and referred to the Senate Homeland Security and Government Affairs Committee on July 30.

H.R. 6405 (Larsen, D-WA). A bill to authorize a process by which the Secretary of the Interior shall process acquisitions of certain real property of the Samish Indian Nation into trust; STATUS: referred to the HNRC on June 26.

H.R. 6450 (Hodes, D-NH). ECO Fund Act of 2008. A bill to establish a revolving loan fund for loans to states and Indian tribes that provide incentives to use renewable energy sources for housing and other structures; STATUS: referred to the House Committee on Financial Services on July 9.

H.R. 6547 (Inslee, D-WA). Spokane Tribe of Indians of the Spokane Reservation Grand Coulee Dam Equitable Compensation Settlement Act. A bill to provide for equitable compensation to the Spokane Tribe of Indians of the Spokane Reservation for the use of tribal land for the production of hydropower at the Grand Coulee Dam; STATUS: introduced and referred to the HNRC on July 17.

H.R. 6583 (Herseth Sandlin, D-SD). Tribal Law and Order Act of 2008. A bill to amend the Indian Law Enforcement Reform Act, the Indian Tribal Justice Act, the Indian Tribal Justice Technical and Legal Assistance Act of 2000, and the Omnibus Crime Control and Safe Streets Act of 1968 to improve the prosecution of, and response to, crimes in Indian country, and for other purposes; STATUS: introduced and referred to the House Judiciary Committee; House Natural Resources Committee; House Energy and Commerce Committee; and House Education and Labor Committee on July 23. Cosponsors of the bill include Reps. Dale Kildee (D-MI), Tom Cole (R-OK), Raul Grijalva (D-AZ), and Tom Udall (D-NM). See also S. 3320.

H.R. 6685 (Lynch, D-MA). A bill to authorize the Secretary of the Interior to provide an annual grant to facilitate an iron working training program for Native Americans; STATUS: introduced and referred to the HNRC on July 31.

H.R. 6786 (Sullivan, R-OK). A bill to provide for the settlement of claims arising from the use and distribution of judgment funds previously awarded and provided to the Delaware Tribe of Indians, the Delaware Nation, the Kansas Delaware Tribe of Indians, Incorporated, and the Delawares of Idaho, Incorporated, to correct underpayment of certain funds, and to provide for the settlement of accounting claims arising from, and otherwise achieve the requirements of, certain litigation; STATUS: introduced and referred to the HNRC and the House Ways and Means Committee on August 1.

H.R. 6825 (Salazar, D-CO). A bill to direct the Secretary of the Interior to assess the irrigation infrastructure of the Pine River Indian Irrigation Project in the State of Colorado; STATUS: introduced and referred to the HNRC on August 1.

Resolutions

S. Res. 496 (Thune, R-SD) & H. Res. 1074 (Herseth Sandlin, D-SD). A resolution honoring the 60th anniversary of the commencement of the carving of the Crazy Horse Memorial; STATUS: S. Res. 496 was introduced and referred to the Senate Judiciary Committee on April 2 and passed the Senate May 20. H. Res. 1074 was introduced and referred to the HNRC on April 2; passed the House on May 21.

EXECUTIVE BRANCH

Public Laws

P.L. 110-228. On May 8, the President signed into law S. 2457 (Lieberman, I-CT), a bill to provide for extensions of leases of certain land by the Mashantucket Pequot Tribe.

P.L. 110-236. On May 27, the President signed into law H.R. 3522 (Udall, D-NM), a bill to ratify a conveyance of a portion of the Jicarilla Apache Reservation to Rio Arriba County, New Mexico, pursuant to the settlement of litigation between the Jicarilla Apache Nation and Rio Arriba County, to authorize issuance of a patent for said lands, and to change the exterior boundary of the Jicarilla Apache Reservation accordingly.

P.L. 110-297. Soboba Band of Luiseno Indians Settlement Act. On July 31, the President signed into law H.R. 4841 (Bono Mack, R-CA), a bill to approve, ratify, and confirm the settlement agreement to resolve claims by the Soboba Band of Luiseno Indians relating to alleged interferences with the water resources of the Band and to authorize and direct the Secretary of the Interior to execute and perform the settlement agreement and related waivers.

Agency Action

“Acting” Assistant Secretary – Indian Affairs Named. On April 28, Assistant Secretary Carl Artman sent his letter of resignation, effective May 23, to Secretary of the Interior Kempthorne. On May 27, the DOI announced that George Skibine will temporarily assume the responsibilities of the Assistant Secretary for Indian Affairs position. Mr. Skibine previously served as Acting Interior Deputy Assistant Secretary for Policy and Economic Development for Indian Affairs.

National Indian Gaming Commission (NIGC) To Only Consider Technical Standards and Minimum Internal Control Standards Proposed Regulations for Class II Gaming. On June 5, NIGC Chairman Phil Hogen announced that the NIGC would set aside the controversial proposed Class II Classification and Definitions regulations and only now consider the Technical Standards and MICS proposed regulations. He stated that the Classification and Definition proposed regulations were considered a “major rule” due to their potential economic impact and required a cost-benefit study. He also stated that the study was expected to be released in July and would provide an analysis of each of the four proposed regulations. Chairman Hogen further stated that the NIGC may finalize the Technical Standards and MICS proposed regulations when the study is released. To date, however, the NIGC has yet to release the report.

SUPREME COURT

Plains Commerce Bank. v. Long Family Land and Cattle Company. In this case, the Court reviewed a decision by the U.S. Court of Appeals for the Eighth Circuit which determined 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 Tribe’s Reservation. The Department of Justice, the National Congress of American Indians, the Navajo Nation, and advocates for Native women (filed amicus briefs) supporting tribal court jurisdiction in the case. On April 14, the Supreme Court heard oral arguments and on June 25 issued its decision that the Tribe lacked the authority to regulate the sale of the fee land once it is held in non-Indian hands.

Exxon Shipping Company v. Baker (“Exxon”). On June 25, the Supreme Court issued its decision 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. A majority held that compensatory damages for the case should be limited to $507.5 million and the award of $2.5 billion was clearly excessive under maritime common law, and remanded the case back to the U.S. Court of Appeals for the Ninth Circuit.

Supreme Court Grants Review in Case with an Impact on Indian Country. The Supreme Court granted review of the following case with a potential impact on Indian Country:

• Carcieri v. Kempthorne (“Carcieri”). In the first quarter of the year, the Supreme Court granted review of a decision by the en banc panel of the U.S. Court of Appeals 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. Rhode Island’s opening brief was filed on June 6, and the U.S. response brief was due on August 11. The tribal amicus briefs in support of the U.S. were due on August 18. Oral arguments will be scheduled in November or December.

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

• Carls v. Blue Lake Housing Authority. On May 12, the Supreme Court denied review of an unpublished decision of the California Court of Appeal – Third District, which upheld the defense of tribal sovereign immunity. The case involved the issue of whether a tribe that voluntarily acquires a non-tribal business with existing contract obligations may repudiate those obligations and still maintain the defense of tribal sovereign immunity.

Federal District Court

Cobell v. Kempthorne (“Cobell”) Litigation.
The Cobell case was certified as a class action over twelve years ago. The Native American Rights Fund originally filed the case to force the United States to provide Indian Indian Money (“IIM”) account holders with a full and complete accounting of their trust fund assets. The case has changed a great deal over the last decade. The focus of the case shifted from seeking individualized accountings to an effort to address the IIM inflow and outflow disparity.

On August 7, Judge Robertson determined that the federal government could not account for $455.6 million that was apparently collected on behalf of IIM Account holders, but which the government can not prove that it has distributed to these account holders. Accordingly, the Court ruled that the government to “true up” the Individual Indian Money trust account by $455.6 million. (The Court emphasized that its ruling does not address how this amount should be distributed among the 300,000 to 500,000 IIM account holders.)

Judge Robertson opinion affirms the important trust principle that any doubts caused by the absence of evidence are to be held against the government. The Court recognized that to do otherwise would essentially “reward” the government for breaching its trust obligation. Nevertheless, the Court did not agree that this disparity can be measured in billions of dollars.

In his ruling, Judge Robertson made another plea for Congress to step in and work to resolve the case. “The Cobell case will no doubt stand, in some respects, as a cautionary tale about the limited ability of a court to right historical wrongs that could have been - and should have been - settled by the same political branches in recognition of their own failure to preserve the trust.”

In the few weeks likely remaining in the 110th Congress, it unlikely that Congress could enact settlement legislation for this case. Nevertheless, the ruling does create an avenue, and perhaps an opportunity, for the Congress to resume the substantial effort it initiated in the 109th Congress on trust reform and Cobell settlement legislation.

The attorneys for the Cobell class asked Judge Robertson to certify his ruling for an appeal to the U.S. Court of Appeals for the District of Columbia. He granted this request on September 4.

Judge Robertson indicated that he will still proceed to address the following items while the award is being appealed: (1) the amount of attorney fees and expenses that may be charged against the award; (2) the amount of recovery that will be paid to the named plaintiffs; (3) what, if any, notice to class members will be distributed; (4) whether and by which process class members could object to the plan; (5) who will be deemed to be a class member; (6) how would the disbursement of funds be administered; and (7) how will distribution of the funds be accomplished.

Tribal claims for asset and fund mismanagement are not covered by this case, ruling or award.
At the request of the attorneys for the Cobell class, on September 4, Judge Robertson certified his ruling to allow for an appeal to the U.S. Court of Appeals for the District of Columbia.

OTHER

SCIA Chairman Dorgan Holds Press Conference in the Capitol to Rollout Tribal Law Enforcement Bill. On
July 23, Senator Byron Dorgan (D-ND), Chairman of the SCIA, held a press conference to introduce S. 3320, the Tribal Law and Order Act, a product of extensive consultation with tribes and bipartisan leadership. Congressional members in attendance included Senators. Johnson (D-SD), Murkowski (R-AK), Domenici (R-NM), Thune (R-SD), and Kyl (R-AZ).


UPCOMING EVENTS

September 22-25 – Affiliated Tribes of Northwest Indians 2008 Annual Conference. Pendleton, OR.
www.atnitribes.org/calendar.htm

September 23-25 – Native American Contractors Association Impact Days. Washington, D.C.
http://www.nativecontractors.org/

September 29-October 2 – 2008 United South and Eastern Tribes, Inc. Annual Meeting and Expo. Sheraton Hotel, Music City, Nashville, TN. www.usetinc.org

September 29-October 2 – 7th Annual Native Hawaiian Convention. Honolulu, HI. www.hawaiiancouncil.org

October 1-2 – National Indian Gaming Mid-Year Membership Meeting. Isleta Casino and Resort, Albuquerque, NM.
http://www.indiangaming.org/events/midyear/index.shtml

October 1-3 – InterTribal Monitoring Association’s Annual Conference. Las Vegas, NV.
http://www.itmatrustfunds.org/MainPages/meetings__announcements.htm

October 16-17 – Indian Country’s Winning Hand: 20 Years of Indian Gaming Regulatory Act Conference. Radisson Fort McDowell Resort and Casino, Scottsdale, AZ. www.law.asu.edu/ILP

October 19-24 – National Congress of American Indians’ 65th Annual Convention. Hyatt Regency, Phoenix, AZ. www.ncai.org

October 20-21 – Alaska Federation of Natives’ Youth and Elders Conference. Anchorage, AK.
www.nativefederation.org

October 23-26 – National Indian Education Association’s 39th Annual Convention. Washington State Convention and Trade Center, Seattle, WA. www.niea.org

October 27-28 – Ninth Semiannual Native American Finance Conference. Foxwoods Resort and Casino, Ledyard, CT. www.imn.org/pf

October 30-November 1 – 30th Annual American Indian Science and Engineering Society National Conference. Anaheim, CA. www.aises.org/Events/NationalConferences/2008NationalConference


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