Indian Law Update 2008 Year End Report
 
January 16, 2009
 

This Report summarizes some of the major actions of 2008, the second session of the 110th Congress, and related events, through December 31, 2008.

CAPITOL HILL – Overview of 2008

The second session of the 110th Congress began in mid-January. Congress passed, and the President signed into law, several major bills in 2008, including the Emergency Economic Stabilization Act of 2008 (Public Law (“P.L.”) 110-343), an emergency financial rescue package; the Worker, Retiree, and Employer Recovery Act 0f 2008 (P.L. 110-458), a pension protection act that ultimately did not include a tribal fix; the Housing and Economic Recovery Act of 2008 (P.L. 110-140), an economic stimulus bill; the Unemployment Compensation Extension Act of 2008 (P.L. 110-449), an emergency unemployment benefits bill; and the Food, Conservation, and Energy Act of 2008 (P.L. 110-246), also known as the Farm Bill. Congress also considered, but could not agree upon, an energy tax package and a financial rescue plan for the auto industry. Congress agreed to a Fiscal Year (“FY”) 2009 Budget Resolution, defeating a proposed year-long moratorium on earmarks that was offered as a budget resolution amendment. However, the House subsequently passed only one FY 2009 appropriations bill. As a result, Congress was forced to pass a Continuing Resolution (“CR”) funding bill, providing full-year funding for the Departments of Defense, Veterans, and Homeland Security and funding for the rest of the federal government through March 6, 2009. See below, EYE ON CONGRESS: FY 2009
Appropriations.

Indian Affairs-related legislation with broad or significant impact was enacted in 2008, including reauthorization of the Native American Housing Assistance and Self-Determination Act (“NAHASDA”), and legislation authorizing funds for the global fight on HIV/AIDS, amended to include a $2 billion authorization for Indian Country law enforcement, health care, and water projects. The Senate passed a bill to reauthorize the Indian Health Care Improvement Act (“IHCIA”) and a Tribal Pension Protection Act correction. See below, EYE ON CONGRESS: NAHASDA, PEPFAR, IHCIA Reauthorization, and Tribal Employee/Pension Plan Fix respectively.

EYE ON CONGRESS

FY 2009 Appropriations. On February 5, President Bush sent a $3.1 trillion FY 2009 budget to Congress, which included $10.7 billion for the Department of the Interior (“DOI”), a $388.5 million decrease from the FY 2008 amount. Under the DOI request, the President proposed $2.2 billion for the Bureau of Indian Affairs (“BIA”), a $100 million decrease from FY 2008, and $4.3 billion for the Indian Health Service (“IHS”), an increase of $212 million over FY 2008. In the House, the Appropriations Subcommittees and Full Committee began marking up their twelve FY 2009 appropriations bills, but just nine bills were considered at the Subcommittee level, only five bills were considered and marked up by the Full Committee, and only the FY 2009 Military Construction/Veterans Affairs spending bill passed the House. In the Senate, nine of the twelve bills were marked up by the Full Appropriations Committee, but no further action was taken. In September, Congress passed a CR to fund the federal government at FY 2008 levels through March 6, 2009. Because the CR will fund the remainder of the federal government at current levels, tribes will remain eligible for program funding, like that of the Safe Indian Communities Initiative, which Congress enacted in FY 2008 at an annual level of $23.7 million. The CR also includes full-year funding for the following three FY 2009 appropriations bills: Defense; Military-Construction/Veterans Affairs; and Homeland Security. Congress is expected to finalize and pass the nine remaining FY 2009 appropriations bills sometime in late January or February by combining the bills into an approximately $410 billion omnibus appropriations bill.

NAHASDA. On October 14, the President signed into law H.R. 2786 (Kildee, D-MI), a bill reauthorizing the Native American Housing Assistance and Self-Determination Act of 1996 (P.L. 110-411). The Act includes provisions relating to the expansion of listed activities for which grants may be used, an allocation formula, and a demonstration program. The Senate companion bill was S. 2062 (Dorgan, D-ND).

PEPFAR - $2 Billion for Indian Country Law Enforcement, Health Care, and Water Rights Settlements Projects. On July 31, the President signed into law H.R. 5501 (Berman, D-CA), 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 (“PEPFAR”). The PEPFAR law authorizes up to $2 billion for Indian country law enforcement ($750 million), health care ($250 million), and water projects authorized as part of Indian water rights settlements ($1 billion). 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 (“FBI”));
• $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 IHS Director deems necessary among contract health service providers, 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 federal government will plan, design, rehabilitate, construct, or provide financial assistance for the construction of water supply and delivery mechanisms to tribes. In addition, $100 million of the $1 billion will be allocated to the IHS to provide domestic and community sanitation facilities for tribal members.

IHCIA Reauthorization. In 2008, reauthorization of the IHCIA was again actively considered by both Chambers. The Senate overwhelmingly passed S. 1200 (Dorgan, D-ND), a bill reauthorizing the IHCIA, as amended, by an 83-10 vote during the first quarter. However, action in the House stalled after the National Right To Life Committee issued a letter opposing passage of H.R. 1328 (Pallone, D-NJ), the IHCIA reauthorization bill, on the suspension calendar if the bill did not contain a provision permanently prohibiting the use of federal funds to perform abortions on American Indians. There was an effort to move the IHCIA reauthorization during the December lame-duck session. However, it was not successful. IHCIA reauthorization likely will be a priority of the Senate Committee on Indian Affairs (“SCIA”) and the House Committee on Natural Resources (“HNRC”) in the 111th Congress.

Tribal Employee/Pension Plan Fix. On December 23, President Bush signed into law P.L. 110-458, a bill to make technical corrections related to the Pension Protection Act of 2006, and for other purposes (H.R. 7327 (Rangel, D-NY)). Senator Baucus (D-MT), Chairman of the Senate Committee on Finance, had sought to include a tribal provision that would treat Indian tribal government employee retirement plans the same as state and local government plans. Such government plans are generally exempt from the Employee Retirement Income Security Act (“ERISA”) and various tax code requirements, regardless of the type of work performed by the governmental employees covered by the plan. However, an agreement on tribal government plans was not reached between the House and Senate and the version finally adopted contained no tribal fix provision. Chairman Baucus received a commitment from Representative Miller that he will work toward a mutual acceptable fix for tribal plans in 2009. Consequently, for now, tribal plans are subject to ERISA and restrictive tax code provisions unless all of the tribal workers in the plan are performing essential governmental functions.

Tribal Law Enforcement. In 2008, Congress emphasized the need to focus on tribal law enforcement issues. The SCIA held a series of tribal law enforcement hearings to solicit input from tribal leaders, followed by the introduction of S. 3320, the Tribal Law and Order Act of 2008, by SCIA Chairman Byron Dorgan (D-ND) on July 23. In the House, Representative Stephanie Herseth Sandlin (D-SD) introduced companion legislation, H.R. 6583. The bills establish an Office of Indian Country Crime (“Office”) within the DOJ and require 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. The bills also require 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. Finally, the bills increase the sentencing authority of tribal courts (up to 3 years imprisonment and a fine of $15,000), encourage cooperation and consultation with tribal authorities, and authorize appropriations in various areas.

In addition to the proposed legislation, 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” (“Master Plan”). 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. In releasing the draft report, SCIA Chairman Dorgan noted that “[t]his report confirms what so many in Indian Country have known all along -- the tribal jail system is unbelievably broken.” He added that “[t]here 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 its June 19 hearing record. Although no further action on the proposed legislation was taken in 2008, it likely will be re-introduced in the 111th Congress.

Tribal Tax Provisions in The Energy Improvement and Extension Act of 2008. The House and Senate separately considered and passed its own tax extenders package, including provisions for an Indian employment tax credit and accelerated depreciation for business property located on Indian reservations. However, Congress could not agree on either package so it failed to send a tax extenders package to the President for signature in 2008.

Climate Change Legislation. In 2008, the Senate seriously 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 (“Fund”). The Fund would 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 111th Congress. The House is also developing similar legislation that likely will be considered in 2009.

COMMITTEE ACTION

Hearings in 2008

House and Senate Committees held several hearings on the following Indian-related issues:

FY 2009 Budget/Appropriations for Indian Programs

• The House Interior Appropriations Subcommittee held a hearing to receive the Administration’s position on the FY 2009 Budget for the DOI on February 7; the HNRC held a similar hearing on February 14;
• The House Interior Appropriations Subcommittee held a hearing on the President’s FY 2009 DOI Budget to receive testimony from tribal witnesses on March 12 and 13;
• The House Interior Appropriations Subcommittee held a hearing on the FY 2009 IHS budget on April 2;
• The House Interior Appropriations Subcommittee held a hearing on the President’s FY 2009 budget request for the Office of the Special Trustee for the American Indian (“OST”) on April 3; and
• The Senate Interior Appropriations Subcommittee held a hearing on the President’s FY 2009 Interior budget request on April 15.

Indian Health

• The SCIA held a confirmation hearing on the appointment of Robert McSwain to serve as Director of the IHS on February 7;
• The SCIA held an oversight hearing on contract health services on June 26; and
• The SCIA held an oversight hearing to examine the management of the IHS, focusing on lost property, wasteful spending and document fabrication on July 31.

Law Enforcement in Indian Country

• The SCIA held an oversight hearing on the state of jails, schools and health facilities in Indian Country on March 6;
• The SCIA held a hearing on a draft law enforcement bill on June 19;
• The SCIA held an oversight hearing entitled “Tracking Sex Offenders in Indian Country: Tribal Implementation of the Adam Walsh Act” on July 17; and
• The SCIA held an oversight hearing on tribal courts and the administration of justice in Indian Country on July 24.

Gaming

• 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 on February 27; and
• The SCIA held an oversight hearing on the National Indian Gaming Commission (“NIGC”) on April 17.

Indian Water Rights

• 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, on March 13;
• The HNRC Water and Power Subcommittee held an oversight hearing on Indian water rights settlements on April 16;
• 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, on April 24; and
• The HNRC Subcommittee on Water and Power held a hearing on H.R 155 (Herseth Sandlin, D-SD), the Lower Brule and Crow Creek Tribal Compensation Act, on May 8.

Western Hemisphere Travel Initiative (“WHTI”)

• The Senate Judiciary Committee held an oversight hearing on the Department of Homeland Security (“DHS”) on April 2 (no tribal specific issues were raised);
• 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 on April 16 (no tribal specific issues were raised); and
• The Senate Homeland Security and Governmental Affairs Subcommittee held an oversight hearing on the implementation of the WHTI and REAL ID Act on April 29 (no tribal specific issues were raised).

Bills Addressing Specific Tribes

• Bay Mills Indian Community and the Sault Ste. Marie Tribe of Chippewa Indians. The HNRC held a hearing on February 6 to consider several tribal-specific bills, including H.R. 2176 (Stupak, D-MI); and H.R. 4115 (Dingell, D-MI). The House Judiciary Committee also held a hearing on March 14 to consider H.R. 2176 and H.R. 4115 See below, INDIAN LEGISLATION INTRODUCED - 2008;
• Tuolumne Band of Me-Wuk Indians of the Tuolumne Rancheria, Jicarilla Apache Nation, Mashantucket Pequot (Western) Tribe, and Various Tribes. The HNRC held a legislative hearing on April 9 to consider several tribal specific bills, including H.R. 3490 (Radanovich, R-CA), H.R. 3522 (Udall, D-NM), H.R. 5680 (Grijalva, D-AZ) and S. 2457 (Lieberman, I-CT). See below, INDIAN LEGISLATION INTRODUCED – 2008;
• Crow Tribe, Sault Ste. Marie Tribe of Chippewa Indians, and the Spokane Tribe of Indians. The SCIA held a hearing on May 15 to discuss several tribal specific bills, including S. 1080 (Baucus, D-MT), H.R. 2120 (Stupak, D-MI), and S. 2494 (Cantwell, D-WA) See below, INDIAN LEGISLATION INTRODUCED - 2008; and
• Minnesota Chippewa Tribe. The HNRC held a hearing on June 5 regarding legislation concerning the distribution of certain judgment funds of the Minnesota Chippewa tribe, H.R 2306 (Peterson, D-MN) and H.R. 3699 (Oberstar, D-MN). See below, INDIAN LEGISLATION INTRODUCED - 2008.

Indian Community Economic Assistance (February 27). The SCIA held a hearing on S. 2232 (Stevens, R-AK), the Foreign Aid Lessons for Domestic Economic Assistance Act of 2007.

Federal Recognition (April 24). The SCIA held an oversight hearing on the federal acknowledgement process.

Indian Energy Development (May 1). The SCIA held an oversight hearing on Indian energy development.

Tribal Self-Governance (May 13). The SCIA held an oversight hearing to explore the successes and shortfalls associated with tribal self-governance policy.

DOI’s Handling of Land Issues (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, probate cases, and appraisal reports.

Southern Border Wall (May 28). The HNRC Subcommittee on National Parks, Forests and Public Lands and Subcommittee on Fisheries, Wildlife and Oceans 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.”

Predatory Lending in Indian Country (June 5). The SCIA held an oversight hearing on predatory lending in Indian Country.

Tribal Tax Legislation (July 22). The Senate Finance Committee held a hearing entitled “Indian Governments and the Tax Code: Maximizing Tax Incentives for Economic Development.”

INDIAN LEGISLATION INTRODUCED - 2008

Bills Introduced in the House and Senate

H.R. 637/S. 2747 (Herseth Sandlin, D-SD/Johnson, D-SD). A bill to grant a federal charter to the National American Indian Veterans, Incorporated; STATUS: H.R. 637 referred to the House Subcommittee on Immigration, Citizenship, Refugees, Border Security, and International Law on March 3; S. 2747 referred to the Senate Judiciary Committee on March 12.

H.R. 956/S. 531 (Renzi, R-AZ/McCain, R-AZ). A bill to repeal section 10(f) of Public Law 93-531, commonly known as the “Bennett Freeze”; STATUS: H.R. 956 referred to the HNRC on February 8; S. 531 referred to the SCIA on February 8, passed the Senate on September 18, and referred to the HNRC on September 22.

H.R. 2210/S. 2983 (DeGette, D-CO/Lautenberg, D-NJ). Diabetes Prevention Access and Care Act of 2008 – to amend the Public Health Service Act to prevent and cure diabetes and to promote and improve the care of individuals with diabetes for the reduction of health disparities within racial and ethnic minority groups, including the African-American, Hispanic American, Asian American and Pacific Islander, and American Indian and Alaskan Native communities; STATUS: H.R. 2210 referred to the House Subcommittee on Health on May 8; S. 2983 referred to the Senate Committee on Health, Education, Labor, and Pensions on May 6.

H.R. 4544/S. 2681 (Boren, D-OK/Inhofe, R-OK). Code Talkers Recognition Act of 2008 – to require the issuance of medals to recognize the dedication and valor of Native American code talkers; STATUS: H.R. 4544 became P.L. 110-420 on October 15.

H.R. 5293/S. 462 (Heller, D-NV/Reid, D-NV). Shoshone-Paiute Tribes of the Duck Valley Reservation Water Rights Settlement Act – 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: H.R. 5293 passed the House on September 17; S. 462 placed on Senate Legislative Calendar on July 10.

H.R. 5661/S. 2779 (Pearce, R-NM/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: H.R 5661 referred to the House Subcommittee on Energy and Mineral Resources on April 2; S. 2779 placed on the Senate Legislative Calendar on September 16.

H.R. 5928/S. 2949 (Wu, D-OR/Smith, R-OR). Mark O. Hatfield Scholarship and Excellence in Tribal Governance Act of 2008 – to establish the Mark O. Hatfield Scholarship and Excellence in Tribal Governance Foundation; STATUS: H.R. 5928 referred to both the House Committee on Education and Labor and the HNRC on April 30; S. 2949 referred to the SCIA on April 30.

H.R. 6024/S. 2805 (Udall, D-NM/Bingaman, D-NM). Rio Grande Pueblos Irrigation Infrastructure Improvement Act – to direct the Secretary of the Interior, acting through the Commissioner of Reclamation, to assess the irrigation infrastructure of the Rio Grande Pueblos in the State of New Mexico and provide grants to, and enter into cooperative agreements with, the Rio Grande Pueblos to repair, rehabilitate, or reconstruct existing infrastructure; STATUS: H.R. 6024 referred to the House Subcommittee on Water and Power on May 19; S. 2805 placed on the Senate Legislative Calendar on September 16.

H.R. 6547/S.2494 (Inslee, D-WA/Cantwell, D-WA). Spokane Tribe of Indians of the Spokane Reservation Grand Coulee Dam Equitable Compensation Settlement Act – 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: H.R. 6547 referred to the HNRC on July 17; S. 2494 placed on Senate Legislative Calendar on September 9.

H.R. 6583/S. 3320 (Herseth Sandlin, D-SD/Dorgan, D-ND). Tribal Law and Order Act of 2008 – 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: H.R. 6583 referred to the House Energy and Commerce Subcommittee on Health on July 23; hearing on S. 3320 held by SCIA on September 18.

H.R. 6754/S. 3128 (Pastor, D-AZ/Kyl, R-AZ). White Mountain Apache Tribe Rural Water System Loan Authorization Act – 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: S. 3128 signed into law as P.L. 110-390 on October 10.

H.R. 6768/S. 3381 (Udall, D-NM/Domenici, R-NM). Aamodt Litigation Settlement Act / Taos Pueblo Indian Water Rights Settlement Act – 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: House Subcommittee on Water and Power held a hearing on H.R. 6768 on September 25; S. 3381 ordered to be favorably reported without amendment by the SCIA on September 23.

H.R. 6970/S. 3630 (Regula, R-OH/Johnson, D-SD). AmericaView Authorization Act – to authorize a comprehensive program of nationwide access to federal remote sensing data, to promote its use for education, workforce training and development, applied research, and to support federal, state, tribal, and local government programs; STATUS: H.R. 6970 referred to the House Subcommittee on Energy and Mineral Resources on September 25; S. 3630 referred to the Senate Committee on Commerce, Science, and Transportation on September 26.

H.R. 7024/S. 1255 (Pastor, D-AZ/McCain, R-AZ). Indian Arts and Crafts Amendments Act of 2008 – to protect Indian arts and crafts through the improvement of applicable criminal proceedings; STATUS: H.R. 7024 referred to both the HNRC and the House Committee on the Judiciary on September 23; S. 1255 passed the Senate on September 23 and referred to both the HNRC and the House Committee on the Judiciary on September 24.

H.R. 7172/S. 3650 (Young, R-AK/Murkowski, R-AK). Salmon Lake Land Selection Resolution Act – to resolve the claims of the Bering Straits Native Corporation and the State of Alaska to land adjacent to Salmon Lake in the State of Alaska and to provide for the conveyance to the Bering Straits Native Corporation of certain other public land in partial satisfaction of the Corporation’s land entitlement under the Alaska Native Claims Settlement Act (“ANCSA”); STATUS: H.R. 7172 referred to the HNRC on September 26; S. 3650 referred to the Senate Committee on Energy and Natural Resources on September 29.

Resolutions Introduced in the House and Senate

H. Res. 1074/S. Res. 496 (Herseth Sandlin, D-SD/Thune, R-SD). A resolution honoring the 60th anniversary of the commencement of the carving of the Crazy Horse Memorial; STATUS: H. Res. 1074 passed the House on May 21; S. Res. 496 passed the Senate on May 20.

Bills Introduced in the House

H.R. 2120 (Stupak; D-MI). A bill to direct the Secretary of the Interior to proclaim as reservation for the benefit of the Sault Ste. Marie Tribe of Chippewa Indians a parcel of land now held in trust by the United States for that Indian tribe; STATUS: passed the House on July 30, 2007; SCIA held a hearing on May 15.

H.R. 2176 (Stupak, D-MI). A bill to provide for and approve the settlement of certain land claims of the Bay Mills Indian Community; STATUS: the House failed to pass the bill on June 25.

H.R. 2306 (Peterson, D-MN). Minnesota Chippewa Tribe Judgment Fund Distribution Act of 2007 – to provide for the use and distribution of the funds awarded to the Minnesota Chippewa Tribe, et al., by the United States Court of Federal Claims in Docket Numbers 18 and 188; STATUS: HNRC held a hearing on June 5.

H.R. 3490 (Radanovich, R-CA). Tuolumne Me-Wuk Land Transfer Act of 2008 – 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 Tuolumne Band of Me-Wuk Indians of the Tuolumne Rancheria; STATUS: passed the House on April 29; placed on the Senate Legislative Calendar on September 16.

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 188, United States Court of Federal Claims; STATUS: HNRC held a hearing on June 5.
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; STATUS: placed on the House Calendar on April 4.

H.R. 5335 (Wamp, R-TN). Trail of Tears Documentation Act – 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: passed the House on September 22; referred to the Senate Committee on Energy and Natural Resources on October 2.

H.R. 5403 (Young, R-AK). 13th Regional Corporation Land Entitlement Act - to amend the ANCSA to provide an equitable distribution of land to the 13th Alaska Native Regional Corporation; STATUS: referred to the HNRC on February 12.

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

H.R. 5581/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 a decision on the petition is made; STATUS: H.R. 5581 referred to the HNRC on March 11; H.R. 5795 referred to the HNRC on April 15.

H.R. 5608 (Rahall, D-WV). Consultation and Coordination With Indian Tribal Governments Act – 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: HNRC held a hearing on April 9.

H.R. 5680 (Grijalva, D-AZ). A bill to amend certain laws relating to Native Americans; STATUS: passed the House on June 18; placed on the Senate Legislative Calendar on September 25.

H.R. 6005 (Becerra, D-CA). Tribal Charities Fairness Act of 2008 – to amend the Internal Revenue Code (“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: referred to the House Ways and Means Committee on May 8.

H.R. 6049 (Rangel, D-NY). Energy Improvement and Extension Act of 2008 – To amend the Internal Revenue Code of 1986 to provide incentives for energy production and conservation, to extend certain expiring provisions, and to provide individual income tax relief; STATUS: passed the House on May 21; passed the Senate on September 23.

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

H.R. 6098 (Reichert, R-WA). Personnel Reimbursement for Intelligence Cooperation and Enhancement (“PRICE”) of Homeland Security Act of 2008 – 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: signed into law as P.L. 110-412 on October 14.

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

H.R. 6450 (Hodes, D-NH). Energy Conservation Opportunity (“ECO”) Fund Act of 2008 – 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 both the House Committee on Financial Services and the House Committee on Energy and Commerce on July 9.

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: passed the House on September 22; referred to the SCIA on October 2.

H.R. 6786 (Sullivan, R-OK). Delaware Judgment Funds Distribution Settlement Act of 2008 – 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: referred to both the HNRC and the House Committee on Ways and Means 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: referred to the HNRC Subcommittee on Water and Power on August 6.

H.R. 6994 (Nunes, R-CA). Tule River Tribe Water Development Act – to direct the Secretary of the Interior to conduct a study on the feasibility and suitability of constructing a storage reservoir, outlet works, and a delivery system for the Tule River Indian Tribe of California to provide a water supply for domestic, municipal, industrial, and agricultural purposes; STATUS: referred to the HNRC Subcommittee on Water and Power on September 25.

H.R. 7073 (Dicks, D-WA). Hoh Indian Tribe Safe Homelands Act – to transfer certain land to the United States to be held in trust for the Hoh Indian Tribe, to place land into trust for the Hoh Indian Tribe; STATUS: referred to the HNRC on September 25.

H.R.7251 (McHugh, R-NY). Land-In-Trust Impact Aid and PILT Equity Act of 2008 – to amend the Elementary and Secondary Education Act of 1965 to ensure that local educational agencies receive Impact Aid payments for lands held in trust for the benefit of a federally recognized Indian tribe or individual Indian and to amend Title 31 of the United States Code to ensure that local governments receive payments in lieu of taxes for lands held in trust for the benefit of a federally recognized Indian tribe or individual Indian; STATUS: referred to both the House Committee on Education and Labor and the HNRC on October 2.

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: passed the House on April 29.

Bills Introduced in the Senate

S. 16 (Craig, R-ID). A bill to provide for certain land to be held in trust for the Burns Paiute Tribe; STATUS: referred to the SCIA on November 20.

S. 1080 (Baucus, D-MT). Crow Tribe Land Restoration Act – to develop a program to acquire interests in land from eligible individuals within the Crow Reservation in the State of Montana; STATUS: SCIA ordered to be reported favorably without amendment on June 19.

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

S. 2875 (Tester, D-MT). Gray Wolf Livestock Loss Mitigation Act of 2008 – 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: placed on the Senate Legislative Calendar on September 16.

S. 3000 (Akaka, D-HI). Native American Veterans Access Act of 2008 – 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 for the several states and territories; STATUS: referred to the Senate Committee on Veterans’ Affairs on May 8.

S. 3192 (Wyden, D-OR). A bill to amend the Act of August 9, 1955, to provide the Cow Creek Band of Umpqua Indians of Oregon, the Coquille Tribe of Oregon, and the Confederated Tribes of the Siletz Reservation, Oregon, with 99-year lease authority for trust land, and to provide the Morongo Band of Cahuilla Mission Indians of the Morongo Reservation, California, with 50-year lease authority for trust land; STATUS: passed the Senate on September 26; referred to the HNRC on September 27.

S. 3283 (Tester, D-MT). Dr. Joseph Medicine Crow Congressional Gold Medal Act – 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: referred to the Senate Committee on Banking, Housing, and Urban Affairs on July 17.

S. 3355 (Tester, D-MT). Crow Tribe Water Rights Settlement Act of 2008 – to authorize the Crow Tribe of Indians water rights settlement; STATUS: SCIA ordered reported favorably without amendment on September 25.

S. 3599 (Kyl, R-AZ). A bill to amend Title 18 of the United States Code to add crimes committed in Indian Country or under exclusive federal jurisdiction as racketeering predicates; STATUS: referred to the Senate Judiciary Committee on September 25.

S. 3651 (Murkowski, R-AK). Southeast Alaska Native Land Entitlement Finalization Act – to provide for the settlement of certain claims under ANCSA; STATUS: referred to the Senate Committee on Energy and Natural Resources on September 29.

S. 3724 (Reid, D-NV). Elko Indian Colony Expansion Act of 2008 – to direct the Secretary of Interior to take land into trust for the Te-moak Tribe of Western Shoshone Indians of Nevada; STATUS: referred to the Senate Committee on Energy and Natural Resources on December 8.

S. 3734 (Ensign, R-NV). Pyramid Lake Paiute Tribe Fish Springs Ranch Settlement Act – to ratify a water settlement agreement affecting the Pyramid Lake Paiute Tribe; STATUS: referred to the SCIA on December 11.

EXECUTIVE BRANCH

Public Laws Signed in 2008

Public Law 110-228 (May 8) – An Act providing for extensions of leases of certain land by the Mashantucket Pequot (Western) Tribe (S. 2457).

Public Law 110-236 (May 27) – An Act ratifying a conveyance of a portion of the Jicarilla Apache Reservation to Rio Arriba County, State of 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. 3522).

Public Law 110-293 (July 30) – Tom Lantos and Henry J. Hyde United States Global Leadership Against HIV/AIDS, Tuberculosis, and Malaria Reauthorization Act of 2008 (H.R. 5501).

Public Law 110-297 (July 31) - Soboba Band of Luiseno Indians Settlement Act (H.R. 4841).

Public Law 110-364 (Oct. 8) - Oregon Surplus Federal Land Act of 2008 (H.R. 6370).

Public Law 110-370 (Oct. 8) - Native American Heritage Day Act of 2008 (H.J. Res. 62).

Public Law 110-383 (Oct. 10) - Pechanga Band of Luiseno Mission Indians Land Transfer Act of 2007 (H.R. 2963).

Public Law 110-390 (Oct. 10) - White Mountain Apache Tribe Rural Water System Loan Authorization Act (S. 3128).

Public Law 110-411 (Oct. 14) - Native American Housing Assistance and Self-Determination Reauthorization Act of 2008 (H.R. 2786).

Public Law 110-420 (Oct. 15) - Code Talkers Recognition Act of 2008 (H.R. 4544).

Public Law 110-453 (Dec. 2) - Albuquerque Indian School Act (S. 1193).

Agency Action

Department of the Interior Memorandum Providing Guidance for Taking Off-Reservation Land Into Trust for Gaming Purposes and 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 stated that it would be used on all applications pending before the Secretary of the Interior as well as future applications, and added 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.

Internal Revenue Service (“IRS”) Action. 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 upon 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 under IGRA for its members who are minors or legal incompetents.
• 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 under IGRA for its members who are minors or legal incompetents is the grantor and owner of the trust.

The IRS further stated that it would not issue any rulings or determination letters on the sections until the IRS resolved the issues through publication of a revenue ruling, procedure, or regulation.

On September 29, the IRS also announced that it would continue to recognize, as tribal governments under the tax code, those tribal entities that are recognized as tribal governments by the BIA and appear on the current or future lists of federally recognized Indian tribes published annually in the Federal Register by the DOI. The IRS has announced revenue procedures listing tribal entities recognized as tribal governments three times, most recently in 2002, and the latest IRS list matches the latest list published by the DOI.

NIGC Action. On January 11, the NIGC announced that it had reached an agreement with five California tribes 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 v. NIGC (“CRIT”).

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 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. On September 24, the NIGC announced the final rules for the proposed Class II MICS and Technical Standards regulations. In addition, the NIGC officially withdrew the proposed Class II Classification Standards and Definition of “electronic or electromechanical facsimile” regulations. The final regulations on Technical Standards and on Class II MICS regulations were both published in the October 10, 2008 issue of the Federal Register.

DHS Announces Final Rule Implementing the REAL ID Act. On January 11, the DHS released a final rule implementing the REAL ID Act and establishing requirements for licenses and identification (“ID”) cards that will be 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 cards, 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. Under the final rule, states were required to begin issuing REAL ID licenses by May 11, 2008. However, states were able to 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. The final rule is available at: http://www.dhs.gov/xprevprot/laws/gc_1172765386179.shtm.

Despite the final ruling, the Transportation Security Administration (“TSA”) has informally decided to accept tribal IDs containing a photograph for domestic air travel. In addition, DHS has indicated its willingness to accept tribal IDs for international land border crossing purposes under the WHTI, as long as they have met certain security requirements. However, there is no consistent agency-wide recognition of tribal governmental identification cards.

DHS Issues Interim Guidance and Final Rule under WHTI. On January 16, the DHS announced interim rules for border crossing under WHTI, effective through June 1, 2009. 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; and (3) provide Customs and Border Protection (“CBP”) access to the appropriate entries in its enrollment records. Tribes shall 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.

Changes at the Department of Education, DOI, and IHS. On January 22, Department of Education 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.

On April 28, Assistant Secretary Carl Artman sent his letter of resignation, effective May 23, to Secretary of the Interior Dirk Kempthorne. On May 27, the DOI announced that George Skibine would temporarily assume the responsibilities of the Assistant Secretary - Indian Affairs position. Mr. Skibine previously served as Acting Deputy Assistant Secretary for Policy and Economic Development for Indian Affairs. And on April 29, the Senate confirmed Robert McSwain as Director of the IHS.

SUPREME COURT

Supreme Court Issues Decisions in Indian-Related Cases. In 2008, the Supreme Court issued three (3) decisions impacting Indian Country. Those decisions are as follows:

• Crawford v. Marion County Election Board; Indiana Democratic Party v. Rokita – On April 28, the Supreme Court upheld the Indiana voter-identification law requiring voters to present state or federal photo identification in order to vote. In upholding the law, the Court favored the state’s interest in protecting the integrity and reliability of the electoral process and rejected arguments that the law, one of the strictest voter-identification laws in the nation, imposes a substantial burden on poor people, minority groups (including Indians), the elderly and others who do not have drivers’ licenses or other acceptable forms of identification. Observers fear that the decision may encourage states with substantial Indian populations to adopt restrictive voter-identification statutes that may impose significant financial and administrative burdens on the ability of Indians to exercise their right to vote in state and federal elections, and could undermine the sovereign status of Indian tribal governments in issuing tribal identification cards.
• Exxon Shipping Company v. Baker (“Exxon”) – On June 2, the Supreme Court vacated the opinion of, and remanded the case back to, the U.S. Court of Appeals for the Ninth Circuit in Exxon, which upheld an award of $2.5 billion in punitive damages in a class action lawsuit against Exxon as a result of the 1989 Exxon Valdez oil spill in Prince William Sound. A number of Alaska Native villages that depend on subsistence fishing, hunting and gathering were among those most affected by the disaster and its members are included within a larger group of class action plaintiffs. The Court was divided on the question of whether maritime law allows corporate liability for punitive damages based on the acts of its agents, leaving undisturbed the Ninth Circuit opinion, which had held that it does allow punitive damages. However, a majority held that the punitive damages award of $2.5 billion was excessive under maritime common law, and that under the circumstances it should be limited to an amount equal to compensatory damages, or $507.5 million. As a result, each class plaintiff will receive approximately $31,000 in compensatory and punitive damages.
• Plains Commerce Bank v. Long Family Land & Cattle Company – On June 25, the Supreme Court took another significant step in diminishing the authority of Indian tribes over nonmembers. In a 5-4 decision, the Court held that a Tribal Court does not have jurisdiction over a claim by tribal members against a bank regarding the bank’s sale of fee lands on the reservation to non-Indians on terms more favorable than those offered to tribal members. In general terms, the Court indicated that a tribe lacks the authority to regulate the sale of fee lands on its reservation once the land is held by a non-Indian.

Supreme Court Grants Review in Cases Impacting Indian Country. In 2008, the Supreme Court granted review in the following three cases:

• Carcieri v. Kempthorne (“Carcieri”) – Carcieri challenges the Secretary of Interior’s authority to take land into trust for the Narragansett Tribe under Section 5 of the Indian Reorganization Act (“IRA”) over the objections of the State of Rhode Island. The Supreme Court heard oral arguments on November 3. The Court is expected to issue a decision in the first part of 2009.
• United States v. Navajo Nation (“Navajo”) – Navajo considers the substantive sources of law establishing specific trust duties that mandate compensation for breach of those duties by the federal government. This case is part of the on-going litigation between the Navajo Nation Peabody Coal Company and the United States (as trustee) which first reached the Supreme Court in 2003. The United States filed its opening brief on November 26, while the Peabody Coal Company filed its brief on December 3. The Navajo Nation’s response brief is due on January 9, 2009. Oral argument has been scheduled for February 23, 2009.
• State of Hawaii v. Office of Hawaiian Affairs (“Hawaii”) – In Hawaii, the Office of Hawaiian Affairs (“OHA”) challenges the State’s ability to sell or transfer “ceded lands” held in trust until Native Hawaiians’ claims to such lands have been resolved. The State’s opening brief was filed on December 4, while the OHA’s response brief is due on January 21, 2009. Oral argument has been scheduled for February 25, 2009.

Supreme Court Denies Review of Indian-Related Cases. In 2008, the Supreme Court denied review in the following thirteen cases:

• City of Pocatello v. Idaho. The Idaho Supreme Court determined that the 1888 Cession Agreement approved by Congress creating the City of Pocatello did not grant a federal water right to the City. The Court held that the legislation only granted the City access to surface water sources on the Reservation along with an opportunity to establish a water right under State law.
• Bodkin v. Cook Inlet Region, Inc. The Alaska Supreme Court upheld the authority of Cook Inlet Region, Inc. (“CIRI”), an Alaska Native Corporation under ANSCA, to establish and make distributions from the Elder’s Benefit Settlement Trust.
• Kickapoo Traditional Tribe of Texas v. State of Texas. The U.S. Court of Appeals for the Fifth Circuit determined that the Secretarial Procedure Regulations (25 C.F.R. Part 291), promulgated pursuant to IGRA, are invalid. The Secretarial Procedure Regulations were adopted following the Supreme Court’s decision in Seminole Tribe of Florida v. Florida, which held that Congress has no authority to abrogate a state’s Eleventh Amendment immunity from suit under the Indian Commerce Clause of Article I of the U.S. Constitution.
• Kemp (Oklahoma Tax Commission) v. Osage Nation. The U.S. Court of Appeals for the Tenth Circuit determined that, under the Ex Parte Young doctrine, individual State officials are not entitled to Eleventh Amendment immunity from suit by the Osage Nation. The Osage Nation sought declaratory and injunctive relief against individual members of the Oklahoma Tax Commission, asking the Court to (1) declare that all lands within the original Osage Reservation are Indian Country; (2) declare that all tribal members employed by the Nation who reside on the Reservation are not subject to State income taxes; and (3) enjoin the State from collecting State income taxes from those tribal members.
• Klamath Tribes of Oregon v. Pacificorp. The U.S. Court of the Appeals for the Ninth Circuit determined that the Klamath Tribes’ cause of action for money damages against Pacificorp for constructing a dam that destroyed a salmon fishery run in violation of the 1864 Treaty with the Klamath was foreclosed by Skokomish Indian Tribe v. United States. In Skokomish, an en banc panel of the Ninth Circuit held that it could find no basis for implying a right of action for money damages asserted by the Tribe under its Treaty, emphasizing that (in that case) the City of Tacoma and Tacoma Public Utilities were not contracting parties to the Treaty, and that there was not “anything in the language of the Treaty that would support a claim for damages against a non-contracting party.”
• South Fork Band v. United States. The U.S. Court of Appeals for the Ninth Circuit affirmed the district court’s dismissal of the quiet title claims for sixty (60) million acres of lands in Nevada and California against the United States under the Treaty of Ruby Valley.
• Matheson v. Gregoire. The Washington Court of Appeals dismissed a tribal member-owned smokeshop’s challenge of a Tribal-State cigarette tax agreement between the Puyallup Tribe and the Washington Department of Revenue based on the Tribe’s sovereign immunity from suit and finding that the Tribe was an indispensable party to the suit.
• Lawrence v. Department of the Interior. The U.S. Court of Appeals for the Ninth Circuit upheld the BIA’s denial of enhanced retirement benefits payable to BIA employees whose duties include firefighting. The court held that the BIA’s failure to provide timely, actual notice of the 1987 regulations limiting such claims does not violate the federal trust responsibility or the Indian Preference Act.
• Ho-Chunk Nation v. Wisconsin. The U.S. Court of Appeals for the Seventh Circuit determined that §2710(d)(7)(A)(ii) of IGRA confers jurisdiction on the federal courts over “any cause of action initiated by a state or Indian tribe to enjoin a class III gaming activity located on Indian lands and conducted in violation of any tribal-state compact entered into under paragraph (3).” The Seventh Circuit rejected both the State’s broad interpretation that IGRA authorizes the State to enjoin class III gaming for any violation of a Tribal-State compact, as well as the Tribe’s narrow reading that federal court jurisdiction only exists for states to enjoin a tribe’s class III gaming when that gaming is conducted in a manner that violates compact provisions that prescribe how the games are to be played (e.g. unauthorized games, unauthorized locations, unauthorized hours, etc.).
• Carls v. Blue Lake Housing Authority. The California Court of Appeals upheld the defense of tribal sovereign immunity where a tribe that voluntarily acquired a non-tribal business with existing contract obligations repudiated those obligations and still maintained the defense of tribal sovereign immunity.
• MacArthur v. San Juan County. The U.S. Court of Appeals for the Tenth Circuit determined that the Navajo Tribal Courts do not have 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. The Tenth Circuit found that Montana’s consensual relationship exception does not apply to a non-member who enters into an employment relationship with a member or the tribe on the Reservation. However, based on its understanding of Nevada v. Hicks, the Tenth Circuit held that Montana’s consensual relationship exception only applies to “private” consensual relations, not to consensual relations by the State or State officials acting in their official capacity on the Reservation.
• Mann v. North Dakota Tax Commissioner. The North Dakota Supreme Court determined that a motor fuel tax refund procedure for Indians residing on their Reservations is reasonable and not unduly burdensome, and was not a violation of due process or equal protection.
• Jones v. Minnesota. The Minnesota Supreme Court determined that a tribal member who fails to register as a sex offender in violation of the State’s predatory-offender registration statute is criminal/prohibitory conduct and thus, under P.L. 83-280, the State has subject matter jurisdiction to prosecute a tribal member who lives on the Reservation for failure to register.

OTHER

Holland & Knight’s Charitable Foundation Young Native Writers Contest Winners of 2008. The Holland & Knight Young Native Writers Essay Contest, an annual writing contest for Native American Indian and Alaska Native high school students, is designed to inspire honest portrayals of the richness of Native American Indian life and history. Winners receive a college financial scholarship and an all-expense paid trip to Washington, D.C. In 2008, the following five (5) young Native students served as Holland & Knight’s 2008 Young Native Writers Contest winners: Simone Greenleaf (Minnesota Chippewa), Alyssa London (Tlingit), Stormy Sagmoen (Dena’ina Athabascan), Christina Tsosie (Navajo), and Jalea Walker (Yurok, Smith River Tolowa, Hupa, Tutuni). Information on the 2009 Contest is now available at http://indian.hklaw.com/2009/index.asp. 2009 student essays are due by April 30, 2009.

UPCOMING EVENTS IN 2009

January 13-16 – 14th Annual Western Indian Gaming Conference. Palm Springs Convention Center, Palm Springs, CA. http://www.cniga.com/wigc09/index.html

January 15 – Senate Committee on Indian Affairs – Oversight Hearing on Job Creation and Economic Stimulus in Indian Country. Senate Dirksen Office Building, Room 628 at 2:30 p.m., Washington, D.C. http://indian.senate.gov

January 19 – National Congress of American Indians (“NCAI”) and NIGA Tribal Leaders Strategy Session and Policy Briefing. Hyatt Regency Crystal City at Reagan National Airport, Arlington, VA. http://www.indiangaming.org/

January 20 – Inauguration Day – Swearing In Ceremony of President-Elect Barack Obama. U.S. Capitol. Washington, D.C. http://inaugural.senate.gov/

January 20 – 11th American Indian Inaugural Ball. Hyatt Regency Crystal City at Reagan National Airport, Arlington, VA. http://www.aiibdc.org/index.htm

February 9-11 – 12th Annual National Indian Education Association (“NIEA”) Legislative Summit. Holiday Inn Capitol, Washington, D.C. http://www.niea.org/events/summit.php

February 9-12 – 2009 United South and Eastern Tribes (“USET”) Impact Week Meeting. Crystal Gateway Marriot, Arlington, VA. http://www.usetinc.org/calendar.cfm?ID=19

February 10 – NCAI State of Indian Nations Address. National Museum of the American Indian (“NMAI”), Washington, D.C. http://www.ncai.org/Event-View.154+M598a9300570.0.html?&tx_ttnews[backPid]=22&tx_ttnews[tt_news]=566

February 10-11 – Great Plains Indian Gaming Association (“GPIGA”) Great Plains Winter Conference. Prairie Knights Casino, Fort Yates, ND. http://www.gpiga.com/index.php?option=com_content&task=view&id=58&Itemid=32

February 16-19 – 2009 Affiliated Tribes of Northwest Indians (“ATNI”) Winter Conference. Tulalip Resort & Casino, Tulalip, WA. http://www.atnitribes.org/

February 24-26 – National American Indian Housing Council 2009 Legislative Conference. Hyatt Regency Washington on Capitol Hill, Washington, D.C. http://www.naihc.net/conferences/index.asp?bid=3753

March 2-4 – NCAI Executive Winter Session. Westin Washington, Washington, D.C. http://www.ncai.org/Event_View.154+M582cfb0186c.0.html?&tx_ttnews[backPid]=22&tx_ttnews[tt_news]=369

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