First Quarter Report 2009
 
May 6, 2009
 

CAPITOL HILL

On Tuesday, January 6, Congress convened the 111th Congress by swearing in all members and spent the following weeks focusing on Committee assignments and setting the legislative agenda. On Tuesday, January 20, President Barack Obama was sworn in on Capitol Hill as the 44th President of the United States. Immediately following his inauguration, both Congress and the new Administration began working on the American Recovery and Reinvestment Act (“ARRA,” also known as the “Economic Stimulus”). On February 17, President Obama signed into law the ARRA (Public Law 111-5), which contains $2.5 billion in Indian Country-specific provisions and other funding for which tribal entities may be eligible (see EYE ON CONGRESS: ECONOMIC STIMULUS, below).

During the First Quarter, Congress also passed, and the President signed into law, legislation reauthorizing the State Children’s Health Insurance Program, the Fiscal Year (“FY”) 2009 Omnibus Appropriations bill, and the FY 2010 Congressional Budget Resolution. Congress adjourned on April 3 for a two-week Easter recess and returned to Capitol Hill on Monday, April 20, for five weeks before adjourning for the Memorial Day recess.

After their return on April 20, the House and Senate will attempt to reconcile their budget resolutions. House Majority Leader Steny Hoyer (D-MD) said the House will consider energy legislation before the Memorial Day recess and health reform by August. Congress also will move forward in drafting the individual FY 2010 appropriations bills in the Second Quarter.

EYE ON CONGRESS FY 2009 Appropriations. Congress finalized the FY 2009 Omnibus Appropriations bill, and President Obama signed it into law on March 11. The bill contained approximately $410 billion in funding and combined the following remaining nine appropriations bills: (i) Agriculture; (ii) Commerce, Justice, and State; (iii) Energy and Water Development; (iv) Financial Services; (v) Interior-Environment; (vi) Labor-Health and Human Services; (vii) Legislative Branch; (viii) State-Foreign Operations; and (ix) Transportation-Treasury, Housing and Urban Development. The federal government had been operating pursuant to a continuing resolution passed last year that expired on March 6.

FY 2010 Budget. President Obama will release his detailed FY 2010 budget to Congress in late April.

Economic Stimulus. The final bill includes $2.5 billion in Indian Country-specific provisions and other monies for which tribal entities may be eligible, as detailed below. It should be noted that $50 million for Contract Health Care that was included in the Senate version of the bill was removed during conference negotiations.

Indian Health Service (“IHS”):

• Indian Health Facilities – $415 million total in the following areas:
• New Construction – $227 million
• Maintenance and Improvements – $100 million
• Sanitation Facilities – $68 million
• Medical Equipment – $20 million
• Health Information Technology - $85 million

Bureau of Indian Affairs(“BIA”):

• BIA Office of Indian Programs – $40 million (housing improvement and workforce & training)
• BIA Construction – $450 million (schools, roads repair, jails, irrigation, dams)

Public Safety and Justice:

• Department of Justice (“DOJ”) Grants – $225 million for Indian jails construction (DOJ to coordinate with BIA and consider violent crime rates and detention space needs)
• DOJ Community Oriented Policing Services – $1 billion program (tribes eligible to compete)
• DOJ Violence Against Women Prosecution Grants – $22.5 million (result of a 10% tribal set-aside)

Tribal Roads and Bridges:

• Department of Transportation (“DOT”) Indian Reservation Roads – $310 million
• DOT Tribal Transit Set-Aside – $17.25 million

Indian Housing:

• Department of Housing and Urban Development (“HUD”) Indian Housing block grants – $510 million (conference note states funding is to be used to rehabilitate and improve energy efficiency in houses maintained by Native American housing programs)

Education:

• Head Start – $10 million (tribal set-aside)
• Early Head Start – $1.1 billion (tribes eligible for a portion)
• Special Education – $12.2 billion (tribes eligible for a portion)
• Impact Aid – $100 million (language urges targeted funding to military and Indian reservations)

Energy and Water:

• Bureau of Reclamation Tribal Water Projects – $60 million for water intake and treatment facilities
• Safe Drinking and Clean Water Revolving Funds – $120 million (tribal set-aside)
• Tribal Energy Efficiency and Conservation Black Grants – $56 million (result of a 2% tribal set-aside)
• Weatherization Assistance Program – $5 billion (tribes eligible to compete for competitive grants)

Tribal Tax Provisions:

• Tribal Economic Development Bonds – $2 billion in tax-exempt bond issuances authorized (Under current law, tribal governments are limited in their ability to issue tax-exempt bonds. Projects funded by bonds issued by tribal governments must satisfy an “essential governmental function” requirement. This requirement is not imposed on projects funded by bonds issued by state and local governments and can limit the ability of tribal governments to use tax-exempt bonds for economic development. The ARRA would temporarily allow tribal governments to issue $2 billion in tax-exempt bonds without this restriction in order to spur economic development on tribal lands, and would require the Secretary of the Treasury to study whether this restriction should be repealed on a permanent basis.)
• Qualified School Construction Bonds – $400 million in bond issuances authorized (The ARRA creates a new category of tax-credit bonds that may be issued by state and local governments for the construction, rehabilitation, or repair of public school facilities, or for the acquisition of land on which a public school facility will be constructed. This provision also contains a special authorization for the issuance of $400 million – $200 million in 2009 and $200 million in 2010 – of qualified construction bonds by Indian tribal governments for schools funded by the Bureau of Indian Affairs.)
• Clean Renewable Energy Bonds – $1.6 billion in bond issuances authorized (The ARRA raises the national limitation for new clean renewable energy bonds to finance facilities that generate electricity from the following resources: wind, closed-loop biomass, geothermal, small irrigation, hydropower, landfill gas, marine renewable, and trash combustion facilities. The additional $1.6 billion authorized by the ARRA will be subdivided into thirds: one-third will be available for qualifying projects of state, local, and tribal governments, one-third for qualifying projects of public power providers, and one-third for qualifying projects of electric cooperatives.)
• Qualified Conservation Bonds – $2.4 billion in bond issuances authorized (The ARRA provides for an additional $2.4 billion of qualified energy conservation bonds to finance state, municipal and tribal government programs and initiatives that are designed to reduce greenhouse gas emissions. Allocations of qualified energy conservation bonds will be made to the states with sub-allocations to large local governments. The term “large local government” means any municipality or county with a population of 100,000 or more, but Indian tribes also are to be treated as large local governments for purposes of these provisions.)

Other Programs:

• Department of Agriculture Indian Reservation Food Distribution Program – $5 million
• Department of Health and Human Services (“HHS”) Native Elder Nutrition Program (Older Americans Act, Title IV) – $3 million
• BIA Indian Loan Guarantee Program – $10 million
• Department of Treasury Tribal Community Development Financial Institutions Program – $10 million
• Bill language permits Indian Tribes to contract and compact to build projects and create reservation jobs pursuant to Indian self-determination and self-governance legislation

Employee Free Choice Act (“EFCA”). During the week of March 9, both the Senate and House introduced their respective EFCA legislation, S. 560 (Kennedy, D-MA) and H.R. 1409 (Miller, D-CA). Neither bill contains an Indian tribal government exemption under the National Labor Relations Act.

Senate Committee on Indian Affairs (“SCIA”) Chairman Byron Dorgan and Vice Chair Barrasso Submit Letter Regarding Funding for Native American Programs in FY 2010 Congressional Budget. On March 13, Chairman Dorgan (D-ND) and Vice Chair Barrasso (D-WY) sent a letter to Senate Budget Committee Chairman Kent Conrad (D-ND) and Ranking Member Judd Gregg (R-NH) recommending funding for Native American programs in the FY 2010 Congressional budget. The letter requested increases in the following four priority areas:

• At least a $600 million increase for Indian health care services and construction within the IHS budget;
• At least a $100 million increase for tribal public safety and justice programs and construction within the Department of the Interior (“DOI”) and DOJ;
• At least a $90 million increase for tribal economic development programs within the DOI and Department of Energy; and
• Authority for initial funding of $400 million within the Treasury Department budget for the Emergency Fund for Indian Safety and Health

COMMITTEE ACTION

Hearings

SCIA Oversight Hearing on Job Creation and Economic Stimulus in Indian Country. On January 15, the SCIA convened an oversight hearing to examine the need for job creation and economic stimulus in Indian Country. The following witnesses appeared and provided testimony before the SCIA: Robert Middleton (Director, DOI Office of Energy and Economic Development); Jackie Johnson Pata, (Executive Director, National Congress of American Indians (“NCAI”)); Robin Butterfield (Vice President, National Indian Education Association); Reno Franklin (Chairman, National Indian Health Board); and Julie Kitka (President, Alaska Federation of Natives).

SCIA Business Meeting and Oversight Hearing on Advancing Indian Health. On February 5, SCIA Chairman Byron Dorgan (D-ND) convened a business meeting to vote on the Chairman, Vice Chairman, and SCIA committee rules and budget for the 111th Congress. The SCIA’s rules and budget were approved, with a minor change in the deadline for invited witnesses to submit written testimony. The new deadline is now 48 hours in advance of a scheduled hearing. After the business meeting, Chairman Dorgan then moved to the oversight hearing on advancing Indian health. The following witnesses appeared and provided testimony before the SCIA: Sally Smith (Alaska Area Representative, National Indian Health Board); the Honorable Ron His Horse Is Thunder (Chairman, Standing Rock Sioux Tribe, and Chairman, Aberdeen Area Tribal Chairmen’s Health Board); Rachel Joseph (Tribal Co-Chair, National Steering Committee for Reauthorization of the IHCIA); David Rambeau (President, National Council of Urban Indian Health); Andy Joseph (Tribal Council Member of the Confederated Tribes of the Colville Reservation and Chair, Northwest Portland Area Indian Health Board); and Mickey Peercy (Executive Director of Health Services, Choctaw Nation of Oklahoma).

SCIA Oversight Hearing to Receive the Views of Secretary of the Interior Ken Salazar on Indian Affairs Matters. On February 12, the SCIA convened an oversight hearing in order to hear the new Secretary’s views on his priorities for Indian Country and also to provide SCIA members with the opportunity to advise the new Secretary of their priorities. Interior Secretary Ken Salazar was the only witness to appear and provide testimony before the SCIA.

SCIA Oversight Hearing on Youth Suicide. On February 26, the SCIA convened a hearing on youth suicide. The following witnesses appeared and provided testimony before the SCIA: the Honorable Harry Reid (D-NV); Dana Lee Jetty (student at Minnewaukan Public School and member of the Spirit Lake Nation); the Honorable Robert McSwain (Director, IHS); Dr. Eric Broderick (Acting Administrator, Substance Abuse and Mental Health Services Administration); the Honorable Robert Moore (Aberdeen Area Tribal Chairmen’s Health Board and Tribal Council Member of the Rosebud Sioux Tribe); Dr. Dale Walker (Director, One Sky Center); Hayes Lewis (Director, Achein Center for Life Long Education of the Institute of American Indian Arts); and Dr. Teresa LaFromboise (Associate Professor, Stanford University School of Education).

SCIA Oversight Hearing on Tribal Priorities in the FY 2010 Budget. On March 12, the SCIA held an oversight hearing to examine tribal priorities for the FY 2010 budget. The following witnesses appeared and provided testimony before the SCIA: Jackie Johnson Pata (Executive Director, NCAI); Jessica Burger (Health Director, Bemidji Area, National Indian Health Board); Robert Cook (President, National Indian Education Association); and Cheryl Parish (Vice-Chairperson, National American Indian Housing Council).

Senate Committee on Energy and Natural Resources Hearing to Consider the Nomination of David Hayes to Be Deputy Secretary of the Interior. On March 12, the Senate Committee on Energy and Natural Resources held a hearing to consider the nomination of David Hayes to be the Deputy Secretary of the DOI, with Mr. Hayes as the only witness to appear and provide testimony.

House Interior Appropriations Subcommittee Receives Testimony from Public Witnesses on Native American Funding Issues. On March 25-26, the House Interior Appropriations Subcommittee received testimony from public witnesses regarding Native American funding issues and programs for FY 2010. The following witnesses appeared and provided testimony: Robert Bear (Chairman, Shoshone-Paiute Tribes of the Duck Valley Reservation); Fawn Sharp (President, Quinault Indian Nation); Henry Cagey (Chairman, Lummi Indian Nation); Samuel Penney (Chairman, Nez Perce Tribal Executive Committee); Julie Doney (President, Fort Belknap Indian Reservation); James Allen Crouch (Executive Director, California Rural Indian Health Board); Jeff Koenings (Pacific Salmon Commission); Joy Culbreath (Director, Director of Education, Choctaw Nation of Oklahoma); Martha Garcia (President, Ramah Navajo School Board, Inc. Board of Trustees); Jim Zorn (Executive Director, Great Lakes Indian Fish and Wildlife Commission); Geoffrey Roth (Executive Director, National Council of Urban Indian Health); Jacqueline Johnson Pata (Executive Director, NCAI); Andy Joseph (Chairperson of the Board, Northwest Portland Area Indian Health Board); Lillian Sparks (Executive Director, National Indian Education Association); Douglas R. Nash (Director, Institute for Indian Estate Planning and Probate at Seattle University School of Law); Charon Asetoyer (Executive Director, Native American Women’s Health Education Resource Center); Conrad Edwards (Chief Executive Officer (“CEO”), Council for Tribal Employment Rights); Cedric Black Eagle (Acting Chairman, Crow Tribe); N. Kathryn Brigham (Chairwoman, Columbia River Inter-Tribal Fish Commission); Larry Blythe (Vice Chief, Intertribal Timber Council); Ron Suppah (Chairman, The Confederated Tribes of the Warm Springs Reservation); Cheryle A. Kennedy (Chairperson, The Confederated Tribes of the Grand Ronde Community); Pablo Viramontes (Treasurer, Indian Health Center of Santa Clara Valley); Norman J. Cooeyate (Governor, Pueblo of Zuni); Carl Edwards (President, Lac du Flambeau Band of the Lake Superior Chippewa Indians); Faye BlueEyes (Director, Dzilth-Na-O-dith-Hle Community Grant School); David Bean (Council Member, Puyallup Tribe); Reno Keoni Franklin (Chairman, National Indian Health Board); Myra Pearson (Chairwoman, Spirit Lake Tribe of North Dakota); Dr. John Findley (President, American Dental Association); Joe Shirley, Jr. (President, Navajo Nation); Chad Smith (Chief, Cherokee Nation); John Stone (Vice Chairman, Yankton Sioux Tribe); Billy Frank, Jr. (Chairman, Northwest Indian Fisheries Commission); Carmelia W. Skeeter (Chief Executive Officer, Indian Health Care Resource Center); Theresa Two Bulls (President, Oglala Sioux Tribe); Dr. Daniel Szekely (Representative, Friends of Indian Health); Virginia Thomas (Manager, National Johnson-O’Malley Association); Ralph Forquera (Executive Director, Seattle Indian Health Board); Elbridge Coochise (Chief Judge, Independent Review Team on Tribal Courts); Ned Norris, Jr. (Chairman, Tohono O’Odham Nation); Virgil Seymour (Council Member, Confederated Tribes of the Colville Reservation); Timothy J. Greene (Vice Chairman, Makah Tribal Council); David M. Gipp (President, United Tribes Technical College); Quinton Roman Nose (Education Director, Tribal Education Departments National Assembly); Patty Brown-Schwalenberg (Executive Director, Chugach Regional Resources Commission); Monty Roessel (Executive Director, Rough Rock Community School); Shawn E. Ynity (Chairman, Stillaguamish Tribe); Larry Romanelli (Tribal Chief, Little River Band of Ottawa Indians); Meghan Kelly (Federal Liaison, Sault Sainte Marie Tribe of Chippewa Indians); Deloris Pigsley (Tribal Council Chairman, Siletz Tribe); Laura Spurr (Chair, Nottawaseppi Huron Band of Potawatomi); Gloria O’Neill (President/CEO, Cook Inlet Tribal Council); Donald Rodger (Chief, Catawba Indian Nation); and Roman Betsuie (Navajo Hopi Land Commission Office).

Oversight Hearing on CarcieriDecision. On April 1, the House Natural Resources Committee (“HNRC”) held an oversight hearing on the ramifications for Indian tribes of the Carcieri v. Salazar decision recently issued by the U.S. Supreme Court. The following witnesses appeared and provided testimony before the HNRC: Colette Routel (Visiting Assistant Professor, University of Michigan Law School and Assistant Professor, William Mitchell College of Law); Michael J. Anderson (Partner, AndersonTuell, LLP); and Donald Craig Mitchell (Esq., Anchorage, AK).

INDIAN LEGISLATION INTRODUCED

Senate

S. 22 (Bingaman, D-NM). Omnibus Land Package. A bill to designate certain land components of the National Wilderness Preservation System, and to authorize certain programs and activities in the Department of the Interior and the Department of Agriculture; STATUS: introduced and placed on the Senate Calendar on January 8. This bill contains Northwestern New Mexico Rural Water Projects, which includes the Navajo-Gallup Water Supply Project and Navajo Nation water rights. This bill was combined into H.R. 146 (Holt, D-NJ) and signed into law on March 30 (P.L. 111-11).

S. 39 (McCain, R-AZ). A bill to repeal section 10(f) of Public Law 93-531, commonly known as the “Bennett Freeze.” The legislation amends federal law to repeal the freeze on the development of lands in litigation under the Navajo-Hopi Settlement Act of 1974; STATUS: introduced and referred to the SCIA on January 6; passed the Senate by Unanimous Consent on March 12; received in the House and referred to the HNRC on March 16. See also H.R. 1762.

S. 52 (Inouye, D-HI). Native Hawaiian Medicaid Coverage Act of 2009. A bill to amend title XIX of the Social Security Act to provide 100 percent reimbursement for medical assistance provided to a Native Hawaiian through a federally-qualified health center or a Native Hawaiian health care system; STATUS: introduced and referred to the Senate Finance Committee on January 6.

S. 65 (Inouye, D-HI). A bill to provide relief to the Pottawatomi Nation in Canada for settlement of certain claims against the United States; STATUS: introduced and referred to the Senate Judiciary Committee on January 6.

S. 72 (Inouye, D-HI). Hawaiian Homeownership Opportunity Act of 2009. A bill to reauthorize the programs of the Department of Housing and Urban Development for housing assistance for Native Hawaiians; STATUS: introduced and referred to the SCIA on January 6. See also H.R. 709.

S. 76 (Inouye, D-HI). Native Hawaiian Health Care Improvement Reauthorization Act of 2009. A bill to amend the Native Hawaiian Health Care Improvement Act to revise and extend that Act; STATUS: introduced and referred to the SCIA on January 6.

S. 151 (McCain, R-AZ). Indian Arts and Crafts Amendments Act of 2009. A bill to protect Indian arts and crafts through the improvement of applicable criminal proceedings; STATUS: introduced and referred to the SCIA on January 6. See also H.R. 725.

S. 280 (Baucus, D-MT). Crow Tribe Land Restoration Act. A bill to develop a program to acquire interests in land from eligible individuals within the Crow Reservation in the State of Montana; STATUS: introduced and referred to SCIA on January 16.

S. 288 (Inhofe, R-OK). A bill to amend the Internal Revenue Code of 1986 to permanently extend the Indian employment credit and the depreciation rules for property used predominantly within an Indian reservation; STATUS: introduced and referred to the Senate Finance Committee on January 21. See also H.R. 474.

S. 313 (Kyl, R-AZ). White Mountain Apache Tribe Water Rights Quantification Act of 2009. A bill to resolve water rights claims of the White Mountain Apache Tribe in the State of Arizona; STATUS: introduced and referred to the SCIA on January 26; SCIA held a hearing on April 2. See also H.R. 1065.

S. 338 (Feinstein, D-CA). A bill to amend the Omnibus Indian Advancement Act to modify the date as of which certain tribal land of the Lytton Rancheria of California is deemed to be held in trust and to provide for the conduct of certain activities on the land; STATUS: introduced and referred to the SCIA on January 28; passed the Senate by Unanimous Consent on March 12; received in the House and referred to the HNRC on March 16.

S. 375 (Tester, D-MT). Crow Tribe Water Rights Settlement Act of 2009. A bill to authorize the Crow Tribe of Indians water rights settlement; STATUS: introduced and referred to the SCIA on February 4. See also H.R. 845.

S. 381 (Akaka, D-HI). A bill to express the policy of the United States regarding its relationship with Native Hawaiians, to provide a process for the reorganization of a Native Hawaiian government and the recognition by the United States of the Native Hawaiian government; STATUS: introduced and referred to the SCIA on February 4. See also S. 708, H.R. 1711, and H.R. 862.

S. 432 (Bingaman, D-NM). Morris K. Udall Scholarship and Excellence in National Environmental Policy Amendments Act of 2009. A bill to amend the Morris K. Udall Scholarship and Excellence in National Environmental and Native American Public Policy Act of 1992 to honor the legacy of Stewart L. Udall, and for other purposes; STATUS: introduced and referred to the Senate Committee on Environment and Public Works on February 12. See also H.R. 1035.

S. 439 (Inouye, D-HI). Indian Development Finance Corporation Act. A bill to provide for and promote the economic development of Indian tribes by furnishing the necessary capital, financial services, and technical assistance to Indian-owned business enterprises, in order to stimulate the development of the private sector of Indian tribal economies; STATUS: introduced to the SCIA on February 13. See also H.R. 1607.

S. 443 (Murray, D-WA). Hoh Indian Tribe Safe Homelands Act. A bill to transfer certain land to the United States to be placed and held in trust for the Hoh Indian Tribe; STATUS: introduced and referred to the SCIA on February 13; SCIA held a hearing on April 4. See also H.R. 1061.

S. 522 (Murkowski, R-AK). Salmon Lake Land Selection Resolution Act. A bill 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 land entitlement of the Corporation under the Alaska Native Claims Settlement Act; STATUS: introduced and referred to the Committee on Energy and Natural Resources on March 4.

S. 530 (Nelson, D-FL). Muscogee Nation of Florida Federal Recognition Act. A bill to extend federal recognition to the Muscogee Nation of Florida; STATUS: introduced and referred to the SCIA on March 5. See also H.R. 1899.

S. 617 (Johnson, D-SD). 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; STATUS: introduced and referred to the SCIA on March 17. See also H.R. 1562.

S. 633 (Tester, D-MT). Tribal Health Promotion and Tribal Colleges and Universities Advancement Act of 2009. 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; STATUS: introduced and referred to the SCIA on March 18; SCIA held a hearing on April 4.

S. 708 (Akaka, D-HI). A bill to express the policy of the United States regarding its relationship with Native Hawaiians, and to provide a process for the reorganization of a Native Hawaiian government and the recognition by the United States of the Native Hawaiian government; STATUS: introduced and referred to the SCIA on March 25. See also H.R. 862, S. 1711, and S. 381.

S. 759 (Bingaman, D-NM). Indian School Bus Route Safety Reauthorization Act of 2009. A bill to amend the Transportation Equity Act for the 21st Century to reauthorize a provision relating to additional contract authority for States with Indian reservations; STATUS: introduced and referred to the Senate Committee on Environment and Public Works on April 1.

S. 784 (Murkowski, R-AK). A bill to provide for the recognition of certain Native communities and the settlement of certain claims under the Alaska Native Claims Settlement Act; STATUS: introduced and referred to the Senate Energy and Natural Resources Committee on April 2.

S. 797 (Dorgan, D-ND). Tribal Law and Order Act of 2009. 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. Cosponsors include the following Senators: John Barrasso (R-WY), Jeff Bingaman (D-NM), Joe Lieberman (I-CT), Jon Kyl (R-AZ), Ron Wyden (D-OR), Tim Johnson (D-SD), Maria Cantwell (D-WA), Lisa Murkowski (R-AK), John Thune (R-SD), Jon Tester (D-MT), Mark Begich (D-AK), and Tom Udall (D-NM); STATUS: introduced and referred to the SCIA on April 2. See also H.R.1924.

S. 798 (Murkowski, R-AK). A bill to amend the Internal Revenue Code of 1986 to permanently extend existing elective tax treatment for Alaska Native Settlement Trusts; STATUS: introduced and referred to the Senate Finance Committee on April 2.

S. 802 (Johnson, D-SD). A bill to amend the Internal Revenue Code of 1986 to allow Indian tribes to transfer the credit for electricity produced from renewable resources; STATUS: introduced and referred to the Senate Finance Committee on April 2.

House

H.R. 438 (Radanovich, R-CA). Tuolumne Me-Wuk Land Transfer Act of 2009. A bill to transfer administrative jurisdiction of certain Federal lands from the Bureau of Land Management to the Bureau of Indian Affairs, to take such lands into trust for the Tuolumne Band of Me-Wuk Indians of the Tuolumne Rancheria; STATUS: introduced and referred to the HNRC on January 9.

H.R. 474 (Boren, D-OK). A bill to amend the Internal Revenue Code of 1986 to permanently extend the Indian employment credit and the depreciation rules for property used predominantly within an Indian reservation; STATUS: introduced and referred to the House Committee on Ways and Means on January 13. See also S. 288.

H.R. 709 (Abercrombie, D-HI). Hawaiian Homeownership Opportunity Act of 2009. A bill to reauthorize the programs of the Department of Housing and Urban Development for housing assistance for Native Hawaiians; STATUS: introduced and referred to the House Committee on Financial Services on January 27. See also S. 72.

H.R. 725 (Pastor, D-AZ). Indian Arts and Crafts Amendments Act of 2009. A bill to protect Indian arts and crafts through the improvement of applicable criminal proceedings; STATUS: introduced and referred to the HNRC on January 27. See also S. 151.

H.R. 727 (Pomeroy, D-ND). Indian School Construction Act. A bill to provide for the issuance of bonds to provide funding for the construction of schools of the Bureau of Indian Affairs; STATUS: introduced and referred to the House Committee on Ways and Means on January 27.

H.R. 845 (Rehberg, R-MT). Crow Tribe Water Rights Settlement Act of 2009. A bill to authorize the Crow Tribe of Indians water rights settlement; STATUS: introduced and referred to the HNRC on February 4. See also S. 375.

H.R. 862 (Abercrombie, D-HI). A bill to express the policy of the United States regarding its relationship with Native Hawaiians, to provide a process for the reorganization of a Native Hawaiian government and the recognition by the United States of the Native Hawaiian government; STATUS: introduced and referred to the HNRC and the House Committee on the Judiciary on February 4. See also H.R. 1711, S. 381, and S. 708.

H.R. 924 (Lujan, 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 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: introduced and referred to the HNRC Subcommittee on Water and Power on February 12.

H.R. 925 (Lujan, D-NM). Northwestern New Mexico Rural Water Projects Act. A bill to amend the Colorado River Storage Project Act and Public Law 87-483 to authorize the construction and rehabilitation of water infrastructure in Northwestern New Mexico, to authorize the use of the reclamation fund to fund the Reclamation Water Settlements Fund, to authorize the conveyance of certain Reclamation land and infrastructure, and to authorize the Commissioner of Reclamation to provide for the delivery of water; STATUS: introduced and referred to the HNRC on February 9; referred to the HNRC Subcommittee on Water and Power on February 12.

H.R. 1035 (Grijalva, D-AZ). Morris K. Udall Scholarship and Excellence in National Environmental Policy Amendments Act of 2009. A bill to amend the Morris K. Udall Scholarship and Excellence in National Environmental and Native American Public Policy Act of 1992 to honor the legacy of Stewart L. Udall; STATUS: introduced and referred to the House Committee on Education and Labor and HNRC on February 12; referred to the House Education and Labor Subcommittee on Higher Education, Lifelong Learning, and Competitiveness on March 30. See also S. 432.

H.R. 1061 (Dicks, D-WA). Hoh Indian Tribe Safe Homelands Act. A bill to transfer certain land to the United States to be placed and held in trust for the Hoh Indian Tribe; STATUS: introduced to the HNRC on February 13. See also S. 443.

H.R. 1065 (Kirkpatrick, D-AZ). White Mountain Apache Tribe Water Rights Quantification Act of 2009. A bill to resolve water rights claims of the White Mountain Apache Tribe in the State of Arizona; STATUS: introduced and referred to the HNRC on February 13; referred to the HNRC Subcommittee on Water and Power on February 20. See also S. 313.

H.R. 1122 (Franks, R-AZ). Hopi School Replacement Act of 2009. A bill to require the Secretary of the Interior to plan, design, and construct a new school at Third Mesa, Arizona, on the Hopi Indian Reservation; STATUS: introduced and referred to the House Committee on Education and Labor on February 23; referred to the House Committee on Education and Labor Subcommittee on Early Childhood, Elementary, and Secondary Education on March 30.

H.R. 1129 (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 February 23.

H.R. 1385 (Moran, D-VA). Thomasina E. Jordan Indian Tribes of Virginia Federal Recognition Act of 2009. A bill to extend federal recognition to the Chickahominy Indian Tribe, the Chickahominy Indian Tribe-Eastern Division, the Upper Mattaponi Tribe, the Rappahannock Tribe, Inc., the Monacan Indian Nation, and the Nansemond Indian Tribe; STATUS: introduced and referred to the HNRC on March 9; HNRC held a hearing on March 18.

H.R. 1395 (Kline, R-MN). Tribal Labor Sovereignty Act of 2009. A bill to clarify the rights of Indians and Indian tribes on Indian lands under the National Labor Relations Act; STATUS: introduced and referred to the House Committee on Education and Labor on March 9.

H.R. 1462 (Maloney, D-NY). Study of Ways to Improve the Accuracy of the Collection of Federal Oil, Condensate, and Natural Gas Royalties Act of 2009. A bill to provide for a study by the National Academy of Engineering regarding improving the accuracy of the collection of royalties on production of oil, condensate, and natural gas under leases of federal lands and Indian lands; STATUS: introduced and referred to the HNRC on March 12; referred to the HNRC Subcommittee on Energy and Mineral Resources on March 16.

H.R. 1554 (Boren, D-OK). Fountainhead Property Land Transfer Act. A bill to take certain property in McIntosh County, Oklahoma, into trust for the benefit of the Muscogee (Creek) Nation; STATUS: introduced and referred to the HNRC on March 17.

H.R. 1562 (Herseth Sandlin, D-SD). 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; STATUS: introduced and referred to the HNRC on March 17. See also S. 617.

H.R. 1607 (Faleomavaega, D-AS). Indian Development Finance Corporation Act. A bill to provide for and promote the economic development of Indian tribes by furnishing the necessary capital, financial services, and technical assistance to Indian-owned business enterprises, to stimulate the development of the private sector of Indian tribal economies; STATUS: introduced and referred to the HNRC on March 20. See also S. 439.

H.R. 1697 (Pallone, D-NJ). Tribal Government Homeland Security Coordination and Integration Act. A bill to ensure the coordination and integration of Indian tribes in the National Homeland Security strategy and to establish an Office of Tribal Government Homeland Security within the Department of Homeland Security; STATUS: introduced and referred to the HNRC and House Homeland Security Committee on March 24.

H.R. 1711 (Abercrombie, D-HI). A bill to express the policy of the United States regarding its relationship with Native Hawaiians, to provide a process for the reorganization of a Native Hawaiian government and the recognition by the United States of the Native Hawaiian government; STATUS: introduced and referred to the HNRC March 25. See also H.R. 862, S. 381, and S. 708.

H.R. 1741 (Cummings, D-MD). Witness Security and Protection Grant Program Act of 2009. A bill to require the Attorney General to make competitive grants to eligible state, tribal, and local prosecutors to establish and maintain certain protection and witness assistance programs; STATUS: introduced to the House Judiciary Committee on March 26.

H.R. 1762 (Kirkpatrick, D-AZ). A bill to repeal section 10(f) of Public Law 93-531, commonly known as the “Bennett Freeze.’’ The legislation amends federal law to repeal the freeze on the development of lands in litigation under the Navajo-Hopi Settlement Act of 1974; STATUS: introduced and referred to the HNRC on March 26. See also S. 39.

H.R. 1834 (Kirkpatrick, D-AZ). Native American Business Development Enhancement Act of 2009. A bill to amend the Small Business Act to expand and improve the assistance provided to Indian tribal members, Alaska Natives, and Native Hawaiians; STATUS: introduced and referred to the House Small Business Committee on April 1.

H.R. 1899 (Boyd, D-FL). Muscogee Nation of Florida Federal Recognition Act. A bill to extend federal recognition to the Muscogee Nation of Florida; STATUS: introduced and referred to the HNRC on April 2. See also S. 530.

H.R. 1913 (Conyers, D-MI). A bill to provide federal assistance to states, local jurisdictions, and Indian tribes to prosecute hate crimes; STATUS: introduced and referred to the House Judiciary Committee on April 2.

H.R. 1924 (Herseth Sandlin, D-SD). Tribal Law and Order Act of 2009. 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. Cosponsors of the bill include Rep. Dale Kildee (D-MI) and Rep. Raul Grijalva (D-AZ); STATUS: introduced and referred to the House Judiciary Committee, HNRC, House Energy and Commerce Committee, and House Education and Labor Committee on April 2. See also S. 797.

House Resolutions

H. Res. 48 (Rehberg, R-MT). A resolution amending the Rules of the House of Representatives to establish the Committee on Indian Affairs; STATUS: introduced and referred to the Committee on Rules on January 9.

H. Res. 132 (Grijalva, D-AZ). A resolution honoring the life and memory of the Chiricahua Apache leader Goyathlay or Goyaale, also known as Geronimo, and recognizing the 100th anniversary of his death on February 17, 2009, as a time of reflection and the commencement of a “Healing’’ for all Apache people; STATUS: introduced and referred to the HNRC on February 4; passed the House on February 23.

House Joint Resolutions

H.J. Res. 20 (Baca, D-CA). Native American Heritage Day Act of 2009. A joint resolution to honor the achievements and contributions of Native Americans to the United States; STATUS: introduced and referred to the House Committee on Oversight and Government Reform on February 10. See also H.J.Res.40.

H.J. Res. 40 (Baca, D-CA). Native American Heritage Day Act of 2009. A joint resolution to honor the achievements and contributions of Native Americans to the United States; STATUS: introduced and referred to the HNRC on March 12. See also H.J.Res.20.

EXECUTIVE BRANCH

Public Laws

P.L. 111-5. On February 17, President Obama signed into law the ARRA (Public Law 111-5), which contains $2.5 billion in Indian Country-specific provisions and other funding for which tribal entities may be eligible (see EYE ON CONGRESS: ECONOMIC STIMULUS, above).

P.L. 111-11. On March 30, the President signed into law H.R. 146 (Holt, D-NJ), an act to designate certain land as components of the National Wilderness Preservation System, in order to authorize certain programs and activities in the Department of the Interior and the Department of Agriculture, including the Northwestern New Mexico Rural Water Projects encompassing the Navajo-Gallup Water Supply Project and Navajo Nation water rights.

Agency Action

Office of Management and Budget Released Guidance to Federal Agencies Regarding Economic Stimulus Funding. On February 18, the Office of Management and Budget released extensive guidance to the federal agencies indicating how they are to post information about and administer the economic stimulus funding. Below is a breakdown of what the agencies are expected to do in the coming weeks:

• Beginning immediately, as the agencies are receiving the funding, they are to post all “major communications” (press releases) online at the www.recovery.gov website established by the bill.
• By March 3, the federal agencies were to begin providing weekly updates to the website, including a breakdown of funding, major actions taken to date, and major planned actions.
• By May 1, the agencies must post their “agency recovery plan” describing the agency’s “broad recovery goals and the agency’s coordinating efforts” in dispersing federal funds.
• Starting May 5, agencies must begin posting grants, loans, and loan guarantees.
• Beginning May 8, the agencies must provide monthly financial reports showing obligations, expenditures, and other financial information, as well as information on mandatory and entitlement programs by state, county, or other appropriate geographical unit.

Also, upon the announcement of availability of funding by the agencies, if the program is to distribute the funding by formula (e.g., part of the Native American Housing Assistance and Self Determination Act funding is formula-based), the agency must administer the funds within 90 days. If the program is to distribute the funding by competitive grants, then it must be administered within 120 days.

HHS Economic Stimulus Funding for Native American Nutrition Programs. On March 18, Vice President Joe Biden announced that the HHS released $3 million, to be awarded to 246 Indian tribes, for Native American nutrition programs. For more information, please visit: http://www.hhs.gov/recovery/.

DOJ Announces Availability of Funding Opportunities under the Economic Stimulus. During the week of March 16, the DOJ announced the availability of funding for the following six programs under the Economic Stimulus:

• Community Oriented Policing Services (“COPS”) Hiring Recovery Program Competitive Grant Funding. On March 16, the DOJ announced the availability of grant opportunities under the COPS Hiring Recovery Program (“CHRP”). Tribal law enforcement agencies with primary law enforcement authority are eligible to apply. CHRP is a competitive grant program designed to address the needs of full-time sworn officers in state, local, and tribal law enforcement agencies nationwide. CHRP provides funding directly to law enforcement agencies to hire new and/or rehire career law enforcement officers in an effort to create and preserve jobs, and to increase the agencies’ community policing capabilities and crime-prevention efforts. Up to $1 billion in grant funding was appropriated through the Economic Stimulus. CHRP grants will provide 100 percent funding for approved entry-level salaries and fringe benefits of full-time officers for 36 months. At the conclusion of the federal funding grant period, the grantees must retain all sworn officer positions awarded under the CHRP grant for a minimum of 12 months. Applications were accepted online through the COPS website at www.cops.usdoj.gov from March 16 through April 14, 2009. For additional information on the CHRP application requirements, please visit http://www.cops.usdoj.gov/Default.asp?Item=2124.
• Edward Byrne Competitive Grant Program. On March 19, the DOJ’s Bureau of Justice Assistance (“BJA”) announced the availability of $225 million in grant funding for the Edward Byrne Competitive Grant Program. Tribal jurisdictions are eligible to apply. The Edward Byrne Competitive Grant Program focuses on the following eight initiatives: 1) preventing and reducing violent crime through community-based data-driven approaches; 2) providing funding for neighborhood-based probation and parole officers; 3) reducing mortgage fraud and crime related to vacant properties; 4) hiring of civilian support personnel in law enforcement (training staff, analysts, dispatchers, etc.); 5) enhancing forensic and crime scene investigations; 6) improving resources and services for victims of crime; 7) supporting problem-solving courts; and 8) national training and technical assistance partnerships. Applications must be submitted through the Office of Justice Program’s (“OJP”) online Grants Management System (“GMS”), which is available at https://grants.ojp.usdoj.gov. Applications were due by April 27, 2009. For additional information on application requirements, please visit http://www.ojp.usdoj.gov/BJA/recovery/RecoveryByrne.pdf.
• Assistance for Tribal Law Enforcement (Construction of Jails on Tribal Lands). On March 19, the BJA announced the availability of $225 million for the Correctional Facilities on Tribal Lands Program, which is intended to assist tribes in the cost of constructing and renovating correctional facilities associated with the incarceration and rehabilitation of juvenile and adult offenders subject to tribal jurisdiction. Applications must be submitted through OJP’s online GMS, which is available at https://grants.ojp.usdoj.gov. Applications were due by May 4, 2009. For additional information on the application requirements, please visit http://www.ojp.usdoj.gov/BJA/recovery/RecoveryTribalCorr.pdf.

• Assistance to Rural Law Enforcement to Combat Crime and Drugs. On March 19, the BJA announced the availability of $125 million for the ARRA Assistance to Rural Law Enforcement to Combat Crime and Drugs Program. Tribal jurisdictions with a population of less than 50,000 are eligible to apply. The Rural Law Enforcement to Combat Crime and Drugs Program is intended to assist rural areas in preventing and combating crime, especially drug-related crime, and provides for national support efforts, including training and technical assistance programs strategically targeted to address rural needs. Applications must be submitted through OJP’s online GMS, which is available at https://grants.ojp.usdoj.gov. Applications were due by April 22, 2009. For additional information on the application requirements, please visit http://www.ojp.usdoj.gov/BJA/recovery/RecoveryRuralLE.pdf.

• State and Local Law Enforcement Assistance Program: Combating Criminal Narcotics Activity Stemming from the Southern Border of the U.S. On March 19, the BJA announced the availability of $40 million for the State and Local Law Enforcement Assistance Program: Combating Criminal Narcotics Activity Stemming from the Southern Border of the U.S. Tribal law enforcement agencies located along the Southern border are eligible to apply. Applications must be submitted through OJP’s online GMS, which is available at https://grants.ojp.usdoj.gov. Applications were due by April 17, 2009. For additional information on the application requirements, please visit http://www.ojp.usdoj.gov/BJA/recovery/RecoverySouthernBorder.pdf.

• Office of Violence Against Women (“OVW”) – Indian Tribal Governments. On March 19, the OVW announced the availability of $21 million under the Office of Violence Against Women Program. Tribal governments are eligible to apply. Applications must be submitted through OJP’s online GMS, which is available at https://grants.ojp.usdoj.gov. Potential applicants are encouraged to submit a letter stating their intent to apply for funding; the letter will not obligate the potential applicant to submit an application. The letter should have been submitted to OVW by March 23, 2009 at OVW.VAIW@usdoj.gov. Applicants can still submit an application for funding if a Letter of Intent is not submitted. All applicants should have registered online with GMS by March 26, 2009. All applications were due April 9, 2009.

President Obama Nominates New IHS Director. On March 23, President Obama announced the nomination of Dr. Yvette Roubideaux as Director of the IHS. Dr. Roubideaux is currently an Assistant Professor in the Department of Family & Community Medicine at the University of Arizona College of Medicine, and she has conducted extensive research on American Indian health issues, with a focus on diabetes among American Indians/Alaska Natives and American Indian health policy. Dr. Roubideaux is a member of the Rosebud Sioux Tribe.

SUPREME COURT

Supreme Court Issues Decisions Impacting Indian Country – In the first few months of 2009, the Supreme Court has issued three decisions impacting Indian County. All three adversely affect tribal interests.

• Carcieri v. Salazar (“Carcieri”). On February 24, 2009, the Supreme Court issued its decision in Carcieri v. Salazar (“Carcieri”). Carcieri challenged the Secretary of Interior’s authority to take land into trust for the Narragansett Tribe under Section 5 of the Indian Reorganization Act (“IRA”) (25 U.S.C. § 465) over the objections of the State of Rhode Island. The Supreme Court heard oral arguments on November 3, 2008. Justice Thomas delivered the opinion of the Court, in which Chief Justice Roberts and Justices Scalia, Kennedy, Breyer and Alito joined. Justice Breyer filed a concurring opinion; Justice Souter filed an opinion concurring in part and dissenting in part, in which Justice Ginsberg joined; and Justice Stevens filed a dissenting opinion. The central holding of the case is that the Secretary of the Interior’s authority to take land into trust under Section 5 of the IRA is limited by the definition of “Indian” in Section 19, such that land may be accepted into trust only for members of a tribe that was under federal jurisdiction on June 1, 1934, the date of IRA enactment. The Court’s analysis was based on Section 19’s restrictive definition of the term “Indian” as being limited to, among other things, people of Indian descent who were members of a recognized tribe “now under Federal jurisdiction[.]” The Court interpreted “now” to be the time of the IRA’s enactment. Because the Narragansett Tribe did not claim to be under federal jurisdiction at that time, the Court found that the Secretary did not have the authority to take the parcel of land at issue into trust under Section 5.
• State of Hawaii v. Office of Hawaiian Affairs (“Hawaii”). On March 31, 2009, the Supreme Court issued its unanimous decision in State of Hawaii v. Office of Hawaiian Affairs (“Hawaii) reversing a Supreme Court of Hawaii decision. In Hawaii, the Office of Hawaiian Affairs (“OHA”) challenged the State’s ability to sell or transfer “ceded lands” held in trust until Native Hawaiians’ claims to such lands have been resolved based on the Apology Resolution adopted by Congress in 1993. Justice Alito, writing for the unanimous Court held that the “State Supreme Court incorrectly held that Congress, by adopting the Apology Resolution, took away from the citizens of Hawaii the authority to resolve an issue that is of great importance to the people of the state.” The case was remanded and the Court recognized that the Office of Hawaiian Affairs, on behalf of Native Hawaiians, may have property rights in the land in question and “broader moral and political claims for compensation for the wrongs of the past” as a matter of Hawaiian law that are entitled to further proceedings.
• United States v. Navajo Nation (“Navajo”). On April 6, 2009, the Supreme Court issued its decision in United States v. Navajo Nation (“Navajo II”) reversing and remanding the case to the U.S. Court of Appeals for the Federal Circuit with instructions to affirm the Court of Federal Claims’ dismissal of the Tribe’s complaint. This case was part of the on-going litigation between the Navajo Nation and the United States (as trustee) which first reached the Supreme Court in 2003 in Navajo I. In Navajo I the Court held that the Indian Minerals Leasing Act of 1938 (“IMLA”) and its regulations did not constitute the substantive source of law necessary to establish specific trust duties which mandate compensation for breach of those duties by the Government. The Court remanded Navajo I for further proceedings consistent with its opinion. On remand, the Federal Circuit held that the provisions of the Navajo-Hopi Rehabilitation Act of 1950 and the Surface Mining Control and Reclamation Act of 1977 (“SMCRA”) created trust duties. Additionally, the Federal Circuit found that the Government violated those trust duties in addition to common law trust duties. However, Justice Scalia, writing for a unanimous Court, found that the IMLA governed the coal lease at issue, and that the IMLA still did not constitute the requisite substantive source of law. Additionally, provisions in the Navajo-Hopi Rehabilitation Act of 1950 and the SMCRA did not apply to the coal lease.

OTHER

NCAI – State of the Indian Nations Address. On February 10, NCAI President Joe Garcia presented the 8th Annual State of Indian Nations Address at the National Museum of the American Indian. President Garcia’s address focused on hope for the new Administration and on the areas of economic recovery, health care, public safety, and education in the FY 2010 budget.

SCIA Tribal Leaders Summit. On March 5, SCIA Chairman Byron Dorgan invited and hosted a Tribal Leaders Summit in Washington, D.C. The Summit gave tribal leaders the opportunity to provide remarks on Indian health care, public safety and justice, tribal transportation, economic development, and tribal land management in Indian Country.

UPCOMING EVENTS

May 11-13 – Bureau of Indian Affairs Budget Consultation. Sheraton National Hotel, Arlington, VA. Washington, D.C. http://www.ncai.org/index.php?id=302&type=123

May 11-13 – National Alliance to Save Native Languages. Washington, D.C. http://www.culturalsurvival.org/node/8278

May 17-21 – 2009 Annual Tribal Self-Governance – Department of the Interior and Department of Health and Human Service Conference. Orlando World Center Marriott. Orlando, FL. www.tribalselfgov.org

May 17-21 – 30th National Indian and Native American Employment and Training Conference. Double Tree Hotel Sacramento, Sacramento, California. http://www.cimcinc.org/.

May 18-21 – Affiliated Tribes of Northwest Indians (ATNI) Mid-Year Conference. Reno, Nevada. www.atnitribes.org

June 1-5 – Society of American Indian Government Employees (“SAIGE”) 6th Annual National Training Conference “Many Nations, One Spirit”. Town & Country Resort & Convention Center, San Diego, California. http://www.saige.org/

June 15-18 – National Congress of American Indians Mid-Year Conference, hosted by the Seneca Nation of Indians. Niagara Falls, NY. www.ncai.org

July 9-10 – Third Annual Strategic Conference on Tribal Energy Development. Hilton Washington Embassy Row Hotel, Washington, D.C. www.lawseminars.com

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