Holland & Knight - Indian Law Alert - Second Quarter Report 2009 - Indian Law Update

Indian Law
Alert - Second Quarter Report 2009

Indian Law Update - Second Quarter Report 2009

September 10, 2009

CAPITOL HILL

During the second quarter of the first session of the 111th Congress, both the Senate and House agreed to a supplemental appropriations bill to fund the wars in Iraq and Afghanistan and other programs, and to a Fiscal Year 2010 (“FY 2010”) Congressional Budget Resolution. Congress also continued to address health care reform, climate change, and energy policy. Meanwhile, President Obama released his detailed FY 2010 Budget, which included some funding increases for Indian Country but did not include a request for the $400 million authorized last year for the first year of a $2 billion, five-year PEPFAR Emergency Fund for Indian Health and Safety.

The House worked steadily during the second quarter to pass all of its FY 2010 appropriations bills (see EYE ON CONGRESS: FY 2010 Appropriations), PAYGO legislation, and a bill to amend the Morris K. Udall Scholarship and Excellence in National Environmental and Native American Public Policy Act of 1992. Meanwhile, the Senate passed four appropriations bills, S. 151 - the Indian Arts and Crafts Amendments Act of 2009, and S. 982 - the Family Smoking Prevention and Tobacco Control Act (see EYE ON CONGRESS: Family Smoking Prevention and Tobacco Control Act). In addition, the Senate confirmed former Attorney General of Idaho, Larry J. Echo Hawk, as the Assistant Secretary of Indian Affairs (“AS-IA”) at the Department of the Interior (“DOI”) and the Honorable Sonia Sotomayor as Supreme Court Justice, filling the position vacated by Justice David Souter. Meanwhile, the Senate Environment and Public Works Committee agreed to follow the Obama Administration’s lead in extending the surface transportation law by 18 months to give lawmakers and the Administration time to prepare a six-year reauthorization bill.

Democrats increased their stronghold over the Senate during the second quarter, with the Minnesota Supreme Court declaring Democrat Al Franken the winner of November’s Senate election over Republican Norm Coleman on June30, giving Senate Democrats a key 60th vote. However, because of the illness of Senator Robert Byrd (D-WV), and the recent passing of Senator Edward “Ted” Kennedy (D-MA), it may be that Franken will be providing only a 58th vote, in which case the Democratic leadership would need to find two additional votes to get to a filibuster-proof 60 votes. Senator Mel Martinez (R-FL) also made a surprise announcement in August stating that he would resign as soon as Florida Governor Charlie Crist appointed a successor. On August 28, Gov. Crist picked George LeMieux, his former chief of staff, to complete the term that expires January 2011.

Congress is expected to return to Capitol Hill for the third quarter on September 8 and will address several issues, including health care reform legislation (see EYE ON CONGRESS: Health Care Reform) and comprehensive immigration legislation. The Senate must also pass eight appropriations bills before the end of the current fiscal year on September 30, or a continuing resolution will be required to provide temporary funding to federal agencies and programs.

EYE ON CONGRESS

President Obama’s FY 2010 Budget Request. On May 7, President Obama released his detailed FY 2010 Budget Request for a total of $3.55 trillion in federal spending. Under the Budget Request, the President sought $12.1 billion for the DOI for FY 2010, an increase of $500 million over the FY 2009 enacted level; $2.5 billion for the Bureau of Indian Affairs (“BIA”), an increase of $161.3 million; and $4 billion for the Indian Health Service (“IHS”), a $453.5 million increase.

The following tables provide detailed information on the funding levels in the President’s FY 2010 Budget Request for BIA and IHS programs. (Capitalized phrases refer to specific budget line items.)

FY 2010 Appropriations. The FY 2010 Appropriations process began shortly after President Obama released his FY 2010 budget. The House passed its first spending bill, the FY 2010 Commerce, Justice, and Science Appropriations bill, on June 18 and completed all twelve of its appropriations bills before leaving town for the August recess. The Senate was only able to approve four spending bills, including the Homeland Security, Legislative Branch, Energy and Water, and the Agriculture appropriations bills, before the end of the second quarter. As a result, the Senate and Congressional appropriators will have less than a month to pass the remaining eight bills and to resolve differences between all twelve House and Senate versions, respectively, before the end of the fiscal year on September 30. While appropriators are intent on finishing all of the spending bills by fiscal year end, some members, including House Majority Leader Hoyer, recently conceded that a short-term continuing resolution to extend governmental funding may be necessary. Detailed information about select appropriations bills follows.

• FY 2010 Commerce, Justice and Science (“CJS”) Appropriations Bill. On June 18, the House approved H.R. 2847, the CJS bill, totaling $64.4 billion for FY 2010. The FY 2010 bill includes $802 million for Community Oriented Policing Services (“COPS”), a $41 million increase from the proposal President Barack Obama submitted, and $400 million for the Office on Violence Against Women, an $11 million increase. Another $155 million was included for tribal assistance grants to fund tribal courts, detention facilities, law enforcement, methamphetamine enforcement, and federal investigations and prosecutions, some $65 million above Obama’s request. The bill also includes $325 million for activities related to the Adam Walsh Child Protection and Safety Act and several tribal-specific allocations.

The Senate CJS Appropriations Subcommittee approved its FY 2010 funding bill on June 24 in a unanimous vote, providing $64.8 billion, which is $500 million above the House-approved version. However, the full Senate has yet to take up the spending bill. The Subcommittee included $658.5 million for COPS, a $108 million increase from the FY 2009 enacted amount but a $143.5 million decrease from the House version, and $435 million for the Office on Violence Against Women, a $20 million increase from the FY 2009 enacted level and a $35 million increase over the House version. The bill also includes another $30 million for Indian assistance programs such as legal assistance, tribal prison construction, tribal courts, and alcohol and substance abuse grants.

• FY 2010 Interior and Environmental Protection Agency (“Interior-EPA”) Appropriations Bill. On June 26, the House approved H.R. 2996, the FY 2010 Interior-EPA appropriations bill. The bill provides $6.8 billion for the BIA, the Office of the Special Trustee for American Indians (“OST”), the IHS and related Indian programs, which is $654 million above the FY 2009 level and $39 million above the request submitted by President Obama. The bill provides a $471 million increase over the FY 2009 enacted level for the IHS, totaling $4 billion, which also represents an $18 million increase above the President’s request. The bill also provides $770 million for contract health services, which allows sites to purchase services they are not able to provide, an increase of $144 million above the FY 2009 level. The bill gives the BIA a total of $2.6 billion, which is $21 million above the President’s request and $182 million above the FY 2009 level. Of the increases, $30 million is for law enforcement, detention center operations and tribal courts. The bill also contains a number of earmarks, none of which were directed to the BIA or the IHS. The sole Indian-related earmark appears to be $1 million for the Pascua Yaqui Tribe of Arizona for a water project. The money would be set aside under the EPA portion of the bill.

• FY 2010 Energy and Water (“E&W”) Appropriations Bill. On July 17, the House approved H.R. 3183, the FY 2010 E&W appropriations bill. The bill provides $1.1 billion, $17 million above the President’s request but $38 million less than the FY 2009 enacted amount, to continue to support and improve the nation’s water infrastructure. This amount includes $1 billion for the Bureau of Reclamation for dams, canals, water treatment and conservation, and rural water projects.

The full Senate approved S. 1436, a $34 billion E&W appropriations bill, on July 9. The bill provides approximately $993 million for general investigations of the Bureau of Reclamation. The water and related resources account supports the development, management, and restoration of water and related natural resources, and supports Indian water projects.

Employee Free Choice Act (“EFCA”). EFCA legislation, S. 560 (Kennedy, D-MA) and H.R. 1409 (Miller, D-CA), introduced during the first quarter without an Indian tribal government exemption under the National Labor Relations Act (“NRLA”), saw little action in the second quarter. However, on June 1 Senator Inouye (D-HI) released a letter announcing his intention to seek an amendment to the EFCA expressly including tribes within the definition of governments exempt from the definition of employer under the NLRA. Although no further action was taken by Congress, EFCA is still considered one of the legislative priorities for this year and President Obama remains firmly committed to its passage, although there is no formal timeline for when it would get to the President’s desk.

Family Smoking Prevention and Tobacco Control Act. On June 22, S. 982, the Family Smoking Prevention and Tobacco Control Act, was signed into law. The Act grants broad authority to the Food and Drug Administration (“FDA”) to regulate the sale, advertising, manufacture and taxation of tobacco products. As introduced by the late Senator Edward “Ted” Kennedy (D-MA) and passed by Congress, S. 982 protects tribal self-government by limiting the authority of the Secretary of the FDA to enter into contracts with state law enforcement to exercise enforcement authority under the Act within Indian country without the express written consent of the Indian tribe involved. During debate, Senator Coburn (R-OK) sought an amendment (Amendment No. 1227) to allow enforcement of federal law by the state over Indian country, effectively disregarding changes made by the House to allow states authority over tribal land ONLY if a tribe so consents and directly threatening tribal sovereignty. However, the Act was passed and signed into law without Senator Coburn’s amendment.

Health Care Reform. On July 14, Congressman John Dingell (D-MI) introduced American’s Affordable Health Choices Act of 2009 (H.R. 3200). H.R. 3200 is designed to provide affordable, quality health care for all Americans and reduce the growth in health care spending. However, since the bill, as marked up by three House Committees of jurisdiction, is still deficient in its treatment of American Indians, Congressman Nick Rahall (D-WV) drafted an amendment to the bill. It would ensure that all Americans, including Indians, benefit from the eligibility expansion of Medicaid, are eligible to receive subsidies to help low to moderate income Americans obtain health insurance, and provides vital protections to both the Federal government’s trust responsibility and the Indian health care system. However, it is not clear when the Rahall amendment will be considered. On July 15, the Senate Committee on Health, Education, Labor and Pensions (“HELP Committee”) passed the Affordable Health Choices Act, which is also designed to reduce health costs, protect individuals’ choices in doctors and plans, and assure quality and affordable health care for Americans. The HELP Committee’s bill includes several provisions for Indians and Indian health care, and notably exempts enrolled members of federally recognized Indian Tribes from any personal responsibility coverage requirements (and any related penalties). The Senate Finance Committee will take up the bill in mid-September.

COMMITTEE ACTION

Hearings

Senate Committee on Indian Affairs (“SCIA”) Hearing on the Nomination of Yvette Roubideaux as Director of the IHS. On April 23, the SCIA held a hearing to consider the nomination of Dr. Yvette Roubideaux to serve as Director of the IHS. The following witnesses appeared and provided testimony before the SCIA: Gerald Hill (President of the Association of American Indian Physicians) and Dr. Yvette Roubideaux. The SCIA approved Dr. Roubideaux’s nomination on April 30.

SCIA Nomination Hearing for Larry Echo Hawk as AS-IA. On May 7, the SCIA held a hearing on the nomination of Larry Echo Hawk to be AS-IA in the DOI. Mr. Echo Hawk testified on his behalf.

SCIA Hearing on Indian Land Trust Acquisitions. On May 21, the SCIA held a hearing to examine the Executive Branch authority to acquire lands into trust for Indian tribes. The following witnesses appeared and provided testimony before the SCIA: Edward P. Lazarus (Partner, Akin Gump Strauss Hauer & Feld, LLP); the Honorable W. Ron Allen (Chairman, Jamestown S’Klallam Tribe; Secretary, National Congress of American Indians (“NCAI”)); and the Honorable Lawrence Long (Attorney General, State of South Dakota; Chairman, Conference of Western Attorneys General).

House Natural Resources Committee (“HNRC”) Hearing on Proposed Bills for Hoh Tribe and Samish Nation Trust Land Acquisitions and Amendments to Udall Foundation Legislation. On June 3, the HNRC held a full Committee hearing on H.R. 1061 (the Hoh Indian Tribe Safe Homelands Act, a bill to transfer certain National Park Service land to the United States to be held in trust for the Hoh Indian Tribe and to transfer other lands owned by the Tribe into trust), H.R. 2040 (a bill authorizing a process for the Secretary of the Interior to acquire land into trust for the Samish Indian Nation), and H.R. 1035 (a bill to amend the Morris K. Udall Scholarship and Excellence in National Environmental and Native American Public Policy Act of 1992) (the “Udall Act”). The following witnesses appeared and provided testimony before the HNRC: George Skibine (Deputy Assistant Secretary for Policy and Economic Development for Indian Affairs, DOI); Ernie Penn (Hoh Tribal Council Member); Walter Ward (Chairman of the Hoh Indian Tribe); Tom Wooten (Chairman of the Samish Indian Nation); Terrence Bracy (Chairman of the Board of Trustees, Morris K. Udall Foundation); Ellen Wheeler (Executive Director, Morris K. Udall Foundation); and Clara Pratte (former Native American Congressional Udall intern).

SCIA Hearing on Reforming the Indian Health Care System. On June 11, the SCIA held a hearing to address reforming the Indian health care system. The following witnesses appeared and provided testimony before the SCIA: the Honorable Jefferson Keel (Vice President, NCAI; Lt. Governor of the Chickasaw Nation); the Honorable Buford Rolin (Vice Chairman and Nashville Area Representative, National Indian Health Board (“NIHB”); Chairman of the Poarch Band of Creek Indians); Geoffrey Roth (Executive Director, National Council on Urban Indian Health (“NCUIH”)); Valerie Davidson (Senior Director, Legal and Inter-Governmental Affairs, Alaska Native Tribal Health Consortium); and Dr. Paul K. Carlton, Jr. (M.D., Director of Homeland Security, Health Science Center, Texas A&M University).

HNRC Hearing on H.R. 2314, Native Hawaiian Government Reorganization Act of 2009. On June 11, the HNRC held a hearing to examine H.R. 2314 (Abercrombie, D-HI), the Native Hawaiian Government Reorganization Act of 2009. The following witnesses appeared and provided testimony before the HNRC: Representative Mazie K. Hirono (D-HI); the Honorable Micah Kane (Chairman, Department of Hawaiian Homelands); the Honorable Haunani Apoliona (Chairwoman, Office of Hawaiian Affairs); Gail Heriot (Commissioner, U.S. Commission on Civil Rights); Michael Yaki (Commissioner, U.S. Commission on Civil Rights); and Christopher Bartolomucci (Partner, Hogan & Hartson).

HNRC Hearing on the Indian Health Care Improvement Act. On June 25, the HNRC held a hearing on the reauthorization of the Indian Health Care Improvement Act (“IHCIA”). H.R. 2708, the IHCIA Amendments of 2009, would provide the IHS with greater resources to better serve the needs of American Indians and Alaska Natives. The following witnesses appeared and provided testimony before the HNRC: Dr. Yvette Roubideaux (Director, IHS); Rachel Joseph (Co-Chair, National Steering Committee for Reauthorization of the IHCIA); the Honorable Andy Joseph, Jr. (Chairman, Northwest Portland Area Indian Health Board); and Ms. Valerie Davidson (Senior Director of Legal and Intergovernmental Affairs, Alaska Native Tribal Health Consortium).

SCIA Hearing on S. 797, the Tribal Law and Order Act of 2009. On June 25, the SCIA held a hearing on S. 797, the Tribal Law and Order Act of 2009. The following witnesses appeared and provided testimony before the SCIA: the Honorable Tom Perrelli (Associate Attorney General, United States Department of Justice); the Honorable Larry Echo Hawk (AS-IA, DOI); the Honorable Alonza Coby (Chairman, Fort Hall Business Council, Shoshone-Bannock Tribes); the Honorable Anthony Brandenburg (Chief Judge of the Intertribal Court of Southern California); Troy Eid (Partner, Greenberg Traurig, LLP); and Ted Quasula (President, Quasula Consulting).

Senate Homeland Security and Governmental Affairs Committee Hearing – “Identification Security: Reevaluating the REAL ID Act.” On July 15, the Senate Homeland Security and Governmental Affairs Committee held a hearing aimed at reevaluating the REAL ID Act and its repeal by the proposed Pass ID Act. The proposed Pass ID Act would replace the REAL ID Act with requirements that the Homeland Security Department and state officials believe are much more workable. The following witnesses appeared and provided testimony before the Committee: the Honorable Janet A. Napolitano (Secretary, U.S. Department of Homeland Security); the Honorable Jim Douglas (Governor, State of Vermont); the Honorable Stewart A. Baker (former Assistant Secretary of Homeland Security); the Honorable Leroy D. Baca (Sheriff, Los Angeles County, California); David Quam (Director of Federal Relations, National Governors Association); and Ari Schwartz (Vice President and Chief Operating Officer, Center for Democracy and Technology).

HNRC Hearing on Tribal Recognition and Restoration Legislation. On July 15, the HNRC held a full Committee hearing on the following legislation aimed at recognizing or restoring four Indian tribes:

H.R. 2678 (McDermott, D-WA), the “Duwamish Tribal Recognition Act”;

H.R. 1358 (Stupak, D-MI), the “Burt Lake Band of Ottawa and Chippewa Indians Reaffirmation Act”;

H.R. 3084 (Baird, D-WA), the “Chinook Nation Restoration Act”; and

H.R. 3120 (Rehberg, R-MT), the “Little Shell Tribe of Chippewa Indians Restoration Act.”

The hearing included competing accounts by tribal leaders as to whether recognition or reaffirmation should be extended to these groups. The following witnesses appeared and provided testimony before the HNRC: Representative Jim McDermott (D-WA) on H.R. 2678; Representative Bart Stupak (D-MI) on H.R. 1358; Representative Brian Baird (D-WA) on H.R. 3084; Representative Denny Rehberg (R-MT) on H.R. 3120; George Skibine (Deputy Assistant Secretary for Policy and Economic Development for Indian Affairs) on H.R. 2678, H.R. 1358, H.R. 3084, and H.R. 3120; the Honorable Cecile Hansen (Chairwoman, Duwamish Tribe) on H.R. 2678; the Honorable Ray Gardner (Chairman, Chinook Nation) on H.R. 3084; the Honorable Curtis P. Chambers (Tribal Chairman, Burt Lake Band of Ottawa and Chippewa Indians) on H.R. 1358; the Honorable John Sinclair, (President, Little Shell Tribe of Chippewa Indians of Montana) on H.R. 3120; the Honorable Fawn Sharp (President, Quinault Indian Nation) on H.R. 3084; and the Honorable John Daniels, Jr. (Vice Chair of the Muckleshoot Tribal Council, Muckleshoot Indian Tribe) on H.R. 2678.

Senate Homeland Security and Governmental Affairs Committee, Subcommittee on Contracting Oversight Hearing on Federal Contracting with Alaska Native Corporations. On July 16, the Senate Homeland Security and Governmental Affairs Committee – Subcommittee on Contracting Oversight held a hearing on federal contracting rules as applied to Alaska Native Corporations (“ANCs”). The following witnesses appeared and provided testimony before the Subcommittee: Shay Assad (Acting Deputy Undersecretary for Acquisition and Technology/Director of Defense Procurement and Acquisition Policy at the Department of Defense); Joseph Jordan (Associate Administrator for Government Contracting and Business Development at the Small Business Administration (“SBA”)); Debra Ritt (Assistant Inspector General for Auditing, SBA’s Office of Inspector General); Sarah Lukin (Executive Director of the Native American Contractors Association); Jacqueline Johnson Pata (Executive Director, NCAI); Mark Lumer (Senior Vice President for Federal Programs at Cirrus Technology, Inc.); and Christina Schneider (CFO of the Purcell Construction Corporation).

House Natural Resources Subcommittee on Water and Power Hearing on White Mountain Apache Tribe Water Rights Quantification Act of 2009. On July 21, the House Subcommittee on Water and Power held a hearing on several bills, including H.R. 1065, the White Mountain Apache Tribe Water Rights Quantification Act of 2009. The following witnesses appeared and provided testimony on H.R. 1065 before the Subcommittee: Michael L. Connor (Commissioner, Bureau of Reclamation, DOI); and the Honorable Ronnie Lupe (Chairman, White Mountain Apache Tribe).

Senate Energy and Natural Resources Subcommittee on Water and Power Hearing on a bill regarding the Tule River Indian Tribe. On July 23, the Senate Subcommittee on Water and Power held a hearing to examine several bills including S. 789, a bill to require 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 the Tule River Reservation in the State of California to provide a water supply for domestic, municipal, industrial, and agricultural purposes. The following witnesses appeared and provided testimony before the Subcommittee: Michael L. Connor (Commissioner, Bureau of Reclamation, DOI); Tod Kasten (Dry Redwater Regional Water Authority); Ryan Garfield (Tule River Tribe of California); and John F. Sullivan (Associate General Manager, Water Group, Salt River Project).

SCIA Oversight Hearing to Examine the Increase of Gang Activity in Indian Country. On July 30, the SCIA held a hearing on increased gang activity in Indian Country. The following witnesses appeared and provided testimony before the SCIA: the Honorable John Mousseau (Tribal Council, Chairman-Tribal Judicial Council, Oglala Sioux Tribe); the Honorable Brian Nissen (Tribal Council, Confederated Tribes of the Colville Reservation); Sampson Cowboy (Director, Department of Public Safety, Navajo Nation); and Carmen Smith (Chief of Police, Confederated Tribes of Warm Springs).

SCIA Business Meeting and Hearing on S. 1011, the Native Hawaiian Government Recognition Act of 2009. On August 6, the SCIA held a business meeting to consider pending calendar business and to markup proposed legislation. The SCIA ordered the following bills to be favorably reported:

• S.J. Res. 14, a resolution to acknowledge a long history of official depredations and ill-conceived policies by the Federal Government regarding Indian tribes and offer an apology to all Native Peoples on behalf of the United States;

• H.R. 1129, a bill to authorize the Secretary of the Interior to provide an annual grant to facilitate an iron working training program for Native Americans, with an amendment; and

• S. 443, a bill 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, with an amendment in the nature of a substitute.

The SCIA business meeting was immediately followed by a hearing to examine S. 1011, the Native Hawaiian Government Reorganization Act of 2009, which expresses the policy of the United States regarding its relationship with Native Hawaiians and provides a process for the recognition by the United States of a Native Hawaiian government. The following witnesses appeared and provided testimony before the SCIA: the Honorable Sam Hirsch (Deputy Associate Attorney General, U.S. Department of Justice); the Honorable Haunani Apoliona (Chair, Board of Trustees, Office of Hawaiian Affairs); the Honorable Micah A. Kane (Chairman, Hawaiian Homes Commission); Robin Puanani Danner (President and CEO, Council for Native Hawaiian Advancement); Steven J. Glenn (Council for Native Hawaiian Advancement); Stuart M. Benjamin (Douglas B. Maggs Professor of Law, Associate Dean for Research, Duke Law School); and H. Christopher Bartolomucci (Partner, Hogan and Hartson LLP).

Mark-ups

HNRC Hearing on Native Hawaiian and Hoh Tribe Legislation. On July 9, the HNRC held a full Committee markup on, inter alia, the following proposed bills:

• H.R. 2314 (Abercrombie, D-HI): “Native Hawaiian Government Reorganization Act of 2009” to express the policy of the United States regarding its relationship with Native Hawaiians and to provide a process for the recognition by the United States of the Native Hawaiian governing entity; and

• H.R. 1061 (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, and for other purposes. An amendment in the nature of a substitute offered by Chairman Rahall (D-WV) was agreed to by voice vote and the measure was favorably reported to the full House of Representatives, as amended.

Reports

House Judiciary Committee Report on Hate Crimes Bill. On April 27, the House Judiciary Committee filed its report to accompany H.R. 1913 (Conyers, D-MI), a bill to provide federal assistance to states, local jurisdictions, and Indian tribes to prosecute hate crimes, with an amendment (H. Rept. 111-86), and a report to accompany H.Res. 372 (Hastings, D-FL), a resolution for the consideration of H.R. 1913 (H.Rept. 111-91). H.R. 1913 passed the House on April 29 and was then received in the Senate.

HNRC Reports on Various Tribal Recognition Bills. On May 18, the HNRC filed its report to accompany H.R. 31 (McIntyre, D-NC), a bill to provide for the recognition of the Lumbee Tribe of North Carolina, with an amendment (H.Rept. 111-103). Additionally, the HNRC filed its report to accompany H.R. 1385 (Moran, D-VA), 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, with an amendment (H.Rept. 111-104).

Senate Homeland Security and Governmental Affairs Contract Oversight Subcommittee Report on Federal Contracts to ANCs. On June 23, the Senate Contract Oversight Panel released a preliminary report on federal contracts awarded to ANCs. The preliminary report, authored by Sen. Clair McCaskill (D-MO), found that approximately $17 billion, or 70%, of funds received by ANCs, was awarded by the Pentagon for high-dollar defense contracts.

SCIA Report on Indian Arts and Crafts Amendments Act. On July 22, the SCIA issued its report on the Indian Arts and Crafts Amendments Act of 2009 (S. 151), a bill to protect Indian arts and crafts through the improvement of applicable criminal proceedings. The Committee reported the bill without amendment and without a written report.

INDIAN LEGISLATION INTRODUCED 2nd Quarter

Senate

S. 844 (Lautenberg, D-NJ). Eliminating Disparities in Diabetes Prevention Access and Care Act of 2009. A bill to amend the Public Health Service Act to prevent and treat diabetes, to promote and improve the care of individuals with diabetes, and to reduce health disparities relating to diabetes within racial and ethnic minority groups, including African-American, Hispanic American, Asian American, Native Hawaiian and other Pacific Islanders, and American Indian and Alaskan Native communities; STATUS: introduced and referred to the Senate HELP Committee on April 21. See also H.R. 1995.

S. 881 (Murkowski, R-AK). Southeast Alaska Native Land Entitlement Finalization Act. A bill to provide for the settlement of certain claims under the Alaska Native Claims Settlement Act (“ANCSA”); STATUS: introduced and referred to the Senate Committee on Energy and Natural Resources on April 23. See also H.R. 2099.

S. 909 (Reid, D-NV). Matthew Shepard Hate Crimes Prevention Act. A bill to provide federal assistance to states, local jurisdictions, and Indian tribes to prosecute hate crimes; STATUS: introduced and referred to the Senate Judiciary Committee on April 28. Related bill: H.R. 1913.

S. 965 (Bingaman, D-NM). Taos Pueblo Indian Water Rights Settlement Act. A bill to approve the Taos Pueblo Indian Water Rights Settlement Agreement; STATUS: introduced and referred to the SCIA on May 4. See also H.R. 3254.

S. 1011 (Inouye, D-HI). Native Hawaiian Government Reorganization Act. A bill to express the policy of the United States regarding the United States’ relationship with Native Hawaiians and to provide a process for the recognition by the United States of the Native Hawaiian governing entity; STATUS: introduced and referred to the SCIA on May 7; SCIA held a hearing on August 6. Related bills: H.R. 862, H.R. 1711, H.R. 2314, S. 381, and S. 708.

S. 1105 (Bingaman, D-NM). Aamodt Litigation Settlement Act. A bill to authorize the Secretary of the Interior, acting through the Commissioner of Reclamation, to develop water infrastructure in the Rio Grande Basin, and to approve the settlement of the water rights claims of the Pueblos of Nambe, Pojoaque, San Ildefonso, and Tesuque; STATUS: introduced and referred to the SCIA on May 20. See also H.R. 3342.

S. 1143 (Durbin, D-IL). Public Health Workforce Development Act of 2009. A bill to amend the Public Health Service Act to establish various programs for the recruitment and retention of public health workers and to eliminate critical public health workforce shortages in federal, state, local, and tribal public health agencies and health centers; STATUS: introduced and referred to the Senate HELP Committee on May 21.

S. 1178 (Webb, D-VA). 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 SCIA on June 3. Related bill: H.R. 1385.

S. 1201 (Bingaman, D-NM). Helping Fill the Medicare Rx Gap Act of 2009. A bill to amend title XVIII of the Social Security Act to include costs incurred by the IHS, a Federally qualified health center, an AIDS drug assistance program, certain hospitals, or a pharmaceutical manufacturer patient assistance program in providing prescription drugs toward the annual out of pocket threshold under part D of the Medicare program; STATUS: introduced and referred to the Senate Committee on Finance on June 8. See also H.R. 2777.

S. 1261 (Akaka, D-HI). Providing for Additional Security in States’ Identification Act of 2009 (“PASS ID Act”). A bill to repeal title II of the REAL ID Act of 2005 and amend title II of the Homeland Security Act of 2002 to better protect the security, confidentiality, and integrity of personally identifiable information collected by States when issuing driver’s licenses and identification documents; STATUS: introduced and referred to the Senate Homeland Security and Governmental Affairs Committee on June 15; the Senate Homeland Security and Governmental Affairs Committee held a hearing on July 15; the Senate Homeland Security and Governmental Affairs Committee ordered to be favorably reported with an amendment in the nature of a substitute on July 29.

S. 1264 (Udall, D-CO). Pine River Indian Irrigation Project Act of 2009. A bill to require the Secretary of the Interior to assess the irrigation infrastructure of the Pine River Indian Irrigation Project in the State of Colorado and provide grants to, and enter into cooperative agreements with, the Southern Ute Indian Tribe to assess, repair, rehabilitate, or reconstruct existing infrastructure; STATUS: introduced and referred to the SCIA on June 15. See also H.R. 3061.

S. 1327 (Johnson, D-SD). Public and Indian Housing Crime and Drug Elimination Program Reauthorization Act of 2009. A bill to reauthorize the public and Indian housing drug elimination program of the Department of Housing and Urban Development (“HUD”); STATUS: introduced and referred to the Senate Committee on Banking, Housing, and Urban Affairs on June 23.

S. 1335 (Murray, D-WA). WHTI Implementation Monitoring Plan to Assure Continued Travel and Trade Act of 2009. A bill to require reports on the effectiveness and impacts of the implementation of the Western Hemisphere Travel Initiative (“WHTI”); STATUS: introduced and referred to the Senate Committee on Homeland Security and Governmental Affairs on June 24. See also H.R. 2670.

S. 1388 (Cantwell, D-WA). Spokane Tribe of Indians of the Spokane Reservation Grand Coulee Dam Equitable Compensation Settlement Act. A bill to provide for equitable compensation to the Spokane Tribe of Indians of the Spokane Reservation for the use of tribal land for the production of hydropower by the Grand Coulee Dam; STATUS: introduced and referred to the SCIA on June 25. See also H.R. 3097.

S. 1442 (Bingaman, D-NM). Public Lands Service Corps Act of 2009. A bill to amend the Public Lands Corps Act of 1993 to expand the authorization of the Secretaries of Agriculture, Commerce, and the Interior to provide service-learning opportunities on public lands, establish a grant program for Indian Youth Service Corps, help restore the Nation’s natural, cultural, historic, archaeological, recreational, and scenic resources, train a new generation of public land managers and enthusiasts, and promote the value of public service; STATUS: introduced and referred to the Senate Committee on Energy and Natural Resources on July 10. Related bill: H.R. 1612.

S. 1448 (Merkley, D-OR). A bill to amend the Act of August 9, 1955, to authorize the Coquille Indian Tribe, the Confederated Tribes of Siletz Indians, the Confederated Tribes of the Coos, Lower Umpqua, and Siuslaw, the Klamath Tribes, and the Burns Paiute Tribe to obtain 99-year lease authority for trust land; STATUS: introduced and referred to the SCIA on July 14.

S. 1456 (Schumer, D-NY). Land-In-Trust Schools and Local Governments Equitable Compensation Act. A bill to fully compensate local educational agencies and local governments for tax revenues lost when the Federal Government takes land into trust for the benefit of a federally recognized Indian tribe or an individual Indian; STATUS: introduced and referred the Senate Committee on Energy and Natural Resources on July 14. See also H.R. 3208.

S. 1520 (Johnson, D-SD). A bill to grant a Federal charter to the National American Indian Veterans, Incorporated; STATUS: introduced and referred to the Senate Committee on the Judiciary on July 27. See also H.R. 3349.

House

H.R. 1995 (DeGette, D-CO). Eliminating Disparities in Diabetes Prevention Access and Care Act of 2009. A bill to amend the Public Health Service Act to prevent and treat diabetes, to promote and improve the care of individuals with diabetes, and to reduce health disparities relating to diabetes within racial and ethnic minority groups, including the African-American, Hispanic American, Asian American, Native Hawaiian and other Pacific Islanders, and American Indian and Alaskan Native communities; STATUS: introduced and referred to the House Energy and Commerce Committee on April 21. See also S. 844.

H.R. 2018 (Young, R-AK). Unrecognized Southeast Alaska Native Communities Recognition and Compensation Act. A bill to provide for the recognition of certain Native communities and the settlement of certain claims under ANCSA; STATUS: introduced and referred to the HNRC on April 21. Related bill: S. 784.

H.R. 2040 (Larsen, D-WA). A bill to authorize a process by which the Secretary of the Interior shall process acquisitions of certain real property of the Samish Indian Nation into trust; STATUS: introduced and referred to the HNRC on April 22; HNRC held a hearing on June 3.

H.R. 2099 (Young, R-AK). Southeast Alaska Native Land Entitlement Finalization Act. A bill to provide for the settlement of certain claims under ANCSA; STATUS: introduced and referred to the HNRC on April 23. See also S. 881.

H.R. 2314 (Abercrombie, D-HI). Native Hawaiian Government Reorganization Act of 2009. To express the policy of the United States regarding the United States relationship with the Native Hawaiians and to provide a process for the recognition by the United States of the Native Hawaiian governing entity; STATUS: introduced and referred to the HNRC on May 7; HNRC held a hearing on June 11. Related bills: H.R. 862, H.R. 1711, S. 381, S. 708, and S. 1011.

H.R. 2340 (Young, 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 ANCSA; STATUS: introduced and referred to the HNRC on May 7. Related bill: S. 522.

H.R. 2523 (Heinrich, D-NM). Helping Expedite and Advance Responsible Tribal Homeownership Act. A bill to amend the Act titled “An Act to authorize the leasing of restricted Indian lands for public, religious, educational, recreational, residential, business, and other purposes requiring the grant of long-term leases,’’ approved August 9, 1955, to provide for Indian tribes to enter into certain leases without prior express approval from the Secretary of the Interior; STATUS: introduced and referred to the HNRC on May 20.

H.R. 2576 (Baird, D-WA). Chinook Nation Restoration Act. A bill to restore Federal recognition to the Chinook Nation; STATUS: introduced and referred to the HNRC and the House Ways and Means Committee on May 21. See also H.R. 3084.

H.R. 2670 (McIntosh Slaughter, D-NY). WHTI Implementation Monitoring Plan to Assure Continued Travel and Trade Act of 2009. A bill to require reports on the effectiveness and impacts of the implementation of WHTI; STATUS: introduced and referred to the House Committee on Homeland Security and the House Committee on Foreign Affairs on June 2; referred to the House Subcommittee on Border, Maritime, and Global Counterterrorism on June 17. See also S. 1335.

H.R. 2678 (McDermott, D-WA). Duwamish Tribal Recognition Act. A bill to extend Federal recognition to the Duwamish Tribe; STATUS: introduced and referred to the HNRC on June 3; HNRC held a hearing on July 15.

H.R. 2708 (Pallone, D-NJ). Indian Health Care Improvement Act Amendments of 2009. A bill to amend IHCIA to revise and extend that Act; STATUS: introduced and referred to the HNRC, the House Committee on Energy and Commerce, and the House Ways and Means Committee on June 4. The HNRC held a hearing on June 25.

H.R. 2761 (Watson, D-CA). A bill to sever the United States’ government relations with the Cherokee Nation of Oklahoma until such time as the Cherokee Nation of Oklahoma restores full tribal citizenship to the Cherokee Freedmen disenfranchised in the March 3, 2007, Cherokee Nation vote and fulfills all its treaty obligations with the Government of the United States; STATUS: introduced and referred to the HNRC and House Judiciary Committee on June 8.

H.R. 2777 (Holt, D-NJ). Helping Fill the Medicare Rx Gap Act of 2009. A bill to include costs incurred by the IHS, a federally qualified health center, an AIDS drug assistance program, certain hospitals, or a pharmaceutical manufacturer patient assistance program in providing prescription drugs toward the annual out of pocket threshold under part D of title XVIII of the Social Security Act and to provide a safe harbor for assistance provided under a pharmaceutical manufacturer patient assistance program; STATUS: introduced and referred to the House Energy and Commerce Committee and the House Ways and Means Committee on June 9. See also S. 1201.

H.R. 2810 (Matsui, D-CA). Public Health Workforce Investment Act of 2009. A bill to amend the Public Health Service Act to establish various programs for the recruitment and retention of public health workers and to eliminate critical public health workforce shortages in federal, state, local and tribal public health agencies and health centers; STATUS: introduced and referred to the House Energy and Commerce Committee on June 10.

H.R. 3061 (Salazar, D-CO). Pine River Indian Irrigation Project Act of 2009. A bill to require the Secretary of the Interior to assess the irrigation infrastructure of the Pine River Indian Irrigation Project in the State of Colorado and provide grants to, and enter into cooperative agreements with, the Southern Ute Indian Tribe to assess, repair, rehabilitate, or reconstruct existing infrastructure; STATUS: introduced and referred to the HNRC on June 25; referred to the House Subcommittee on Water and Power on July 2. See also S. 1264.

H.R. 3084 (Baird, D-WA). Chinook Nation Restoration Act. A bill to restore Federal recognition to the Chinook Nation; STATUS: introduced and referred to the HNRC on June 26; the HNRC held a hearing on July 15. See also H.R. 2576.

H.R. 3085 (Becerra, D-CA). Tribal Charities Fairness Act of 2009. A bill to amend the Internal Revenue Code of 1986 to provide for the treatment of Indian tribal governments as State governments for purposes of determining the sources of support of charitable organizations; STATUS: introduced and referred to the House Committee on Ways and Means on June 26.

H.R. 3097 (Inslee, D-WA). Spokane Tribe of Indians of the Spokane Reservation Grand Coulee Dam Equitable Compensation Settlement Act. A bill to provide for equitable compensation to the Spokane Tribe of Indians of the Spokane Reservation for the use of tribal land for the production of hydropower by the Grand Coulee Dam; STATUS: introduced and referred to the HNRC on June 26. See also S. 1388.

H.R. 3120 (Rehberg, R-MT). Little Shell Tribe of Chippewa Indians Restoration Act of 2009. A bill to extend the Federal relationship to the Little Shell Tribe of Chippewa Indians of Montana as a distinct federally recognized Indian tribe; STATUS: introduced and referred to the HNRC on July 7; the HNRC held a hearing on July 15.

H.R. 3143 (Rehberg, R-MT). A bill to amend the Fort Peck Reservation Rural Water System Act of 2000, to extend the authorization of appropriations for that Act; STATUS: introduced and referred to the HNRC on July 9; referred to the House Subcommittee on Water and Power on July 13.

H.R. 3208 (Arcuri, D-NY). Land-In-Trust Schools and Local Governments Equitable Compensation Act. A bill to fully compensate local educational agencies and local governments for tax revenues lost when the Federal Government takes land into trust for the benefit of a federally recognized Indian tribe or an individual Indian; STATUS: introduced and referred to the HNRC on July 14. See also S. 1456.

H.R. 3229 (Young, R-AK). A bill to amend the ANCSA to recognize Alexander Creek as a Native village; STATUS: introduced and referred to the HNRC on July 15.

H.R. 3254 (Lujan, D-NM). Taos Pueblo Indian Water Rights Settlement Act. A bill to approve the Taos Pueblo Indian Water Rights Settlement Agreement; STATUS: introduced and referred to the HNRC on July 17; referred to the House Subcommittee on Water and Power on July 22. See also S. 965.

H.R. 3342 (Lujan, D-NM). Aamodt Litigation Settlement Act. A bill to authorize the Secretary of the Interior, acting through the Commissioner of Reclamation, to develop water infrastructure in the Rio Grande Basin, and to approve the settlement of the water rights claims of the Pueblos of Nambe, Pojoaque, San Ildefonso, and Tesuque; STATUS: introduced and referred to the HNRC on July 24; referred to the House Subcommittee on Water and Power on July 27. See also S. 1105.

H.R. 3349 (Herseth Sandlin, D-SD). A bill to grant a Federal charter to the National American Indian Veterans, Incorporated; STATUS: introduced and referred to the Committee on the Judiciary on July 27. See also S. 1520.

House Joint Resolutions

H.J. Res. 46 (Boren, D-OK). A joint resolution to acknowledge a long history of official depredations and ill-conceived policies by the United States Government regarding Indian tribes and offer an apology to all Native Peoples on behalf of the United States; STATUS: introduced and referred to the HNRC on April 30. Related resolution: S.J. Res. 14.

EXECUTIVE BRANCH

Public Laws

P.L. 111-31. On June 22, President Obama signed into law the Family Smoking Prevention and Tobacco Control Act (H.R. 1256)(see EYE ON CONGRESS: Family Smoking Prevention and Tobacco Control Act), to protect the public health by providing the FDA with certain authority to regulate tobacco products.

P.L. 111-33. On June 26, President Obama signed into law a bill to honor the achievements and contributions of Native Americans to the United States, and for other purposes (H.J. Res. 40).

Agency Action

DOI Announces Economic Stimulus Funding for Indian Country. On April 25, DOI Secretary Ken Salazar announced $500 million in Indian Country Economic Recovery projects under the American Recovery and Reinvestment Act of 2009 (“ARRA” or “Stimulus Act”), providing funding for the following programs:

• School Improvement and Repairs - $143.1 million;

• Road Maintenance - $142.5 million;

• School Replacement Construction - $134.6 million;

• Housing Improvement Program - $19 million;

• Construction Workforce On-the-Job Training In Maintenance - $13.3 million;

• Workforce Training - $5.7 million;

• Detention Center Maintenance and Repairs - $7.3 million; and

• Indian Guaranteed Loan Program - $9.5 million.

Program funds were allocated among the 12 BIA Regions, as follows:

• Alaska Region - $6.4 million;

• Eastern Region - $10.4 million;

• Eastern Oklahoma Region - $1.2 million;

• Great Plains Region - $98.2 million;

• Midwest Region - $36.6 million;

• Navajo Region - $163.8 million;

• Northwest Region - $18.3 million;

• Pacific Region - $5.1 million;

• Rocky Mountain Region - $20 million;

• Southern Plains Region - $5.8 million;

• Southwest Region - $24.3 million; and

• Western Region - $66.9 million.

An additional $18.04 million was allocated for guaranteed loans, workforce training programs, and facilities improvement, repair and maintenance projects directly administered by Indian Affairs Central Office personnel, including $3.8 million for the Office of Facilities, Environmental, and Cultural Resources and $14.2 million for the Office of Indian Energy and Economic Development.

Extension of Adam Walsh Act Compliance Deadline. On May 26, Attorney General Eric Holder granted a one-year extension for jurisdictions to implement the Sex Offender Registration and Notification Act, 42 U.S.C. § 16901, et seq. This extends the deadline for tribal and state governments to comply with the Adam Walsh Child Protection and Safety Act, which requires the development of sex offender registry systems, until July 27, 2010.

Kim Teehee Appointed White House Senior Policy Advisor on Native American Affairs. On June 15, Kim Teehee, a member of the Cherokee Nation of Oklahoma, was named by President Obama to serve as the senior policy advisor for Native American affairs at the White House. She will be a member of the White House Domestic Policy Council. President Obama, who promised to create the position during the campaign, announced Ms. Teehee’s selection in a video message to the NCAI during its mid-year convention. Ms. Teehee previously served as a senior advisor to Rep. Dale Kildee (D-MI), the co-chair of the Congressional Native American Caucus.

IRS Guidance on Tribal Economic Development Bonds. On June 23, the IRS issued Notice 2009-51, which provides guidance on the allocation of volume cap among tribal governments interested in issuing “tribal economic development bonds” under the ARRA. The Notice stated that the first round of allocations would be made to those applicants submitting a completed application on or before August 15, 2009. Indian tribal governments interested in receiving a second round allocation of tribal economic development bonds must apply by January 1, 2010. The application requires Indian tribal government applicants to provide specific information about the potential project and bond issuance, such as a reasonably detailed project description, the project location, sources of security and the names and addresses of entities expected to provide financing. The bonds must be issued by December 31, 2010 for the first round of allocations, and December 31, 2011 for the second round of allocations or the allocation will be forfeited.

DOI Consultation Sessions on Carcieri. On June 29, July 1, and July 8, the DOI held tribal consultation sessions in Minneapolis, MN, Sacramento, CA, and Arlington, VA, respectively, to discuss the impact of the Supreme Court decision in Carcieri v. Salazar on the authority of the DOI to accept land in trust for Indians and Indian tribes. DOI staff Larry Echo Hawk (AS–IA), Hilary Tompkins (Solicitor), George Skibine (Principal Deputy Assistant Secretary – Indian Affairs), Jerry Gidner (Director – BIA), Vicki Forrest (Deputy Bureau Director, Trust Services), Darren Pete (BIA Legislative Director, Office of Congressional and Legislative Affairs), and Paula Hart (Moderator) participated in the consultation sessions on behalf of the Department.

DOI AS-IA Echo Hawk Announces Deputy Assistant Secretary – Indian Affairs. On August 4, AS-IA Larry Echo Hawk announced Donald “Del” Laverdure to the position of Deputy Assistant Secretary-Indian Affairs effective July 29. Laverdure is a member of the Crow Tribe of Montana and since 2006 has served as Chief Legal Counsel for the Executive Branch of the Tribe. The announcement adds to the prior appointments by AS-IA Echo Hawk of Wizipan Garriott, a member of the Rosebud Sioux Tribe of South Dakota, as policy adviser; Tracie Stevens, a member of the Tulalip Tribes of Washington, as senior adviser; and Paul Tsosie, a member of the Navajo Nation, as chief of staff.

OTHER

NCAI Establishes Embassy of Tribal Nations in Washington, D.C. On April 28, NCAI announced that it was set to close on an Embassy of Tribal Nations in Washington, D.C., located at 1516 P Street, NW. The Embassy is open to the public and serves as a place where tribal leaders can meet and national representatives of Native people can come together to work on the many issues of importance to Native communities.

NCAI Mid-Year Conference. On June 14-17, NCAI held its mid-year conference in Niagara Falls, NY. In addition to the appointment of Kim Teehee, President Obama announced by video message at the conference that he would be holding a “Tribal Nations Conference” at the White House sometime this fall (specific date to be announced). Also of note at the conference, AS-IA Larry Echo Hawk spoke publicly for the first time in his current position and affirmed his commitment to “fundamental principles” of Indian law and policy. Echo Hawk was informally sworn in on June 1.

NIGA Legislative Summit. On July 21-23, the National Indian Gaming Association (“NIGA”) held its annual legislative summit in Washington, D.C. Several representatives from the Administration and Congress addressed tribal leaders in the three-day summit, including Paula Hart (BIA), and George Skibine (BIA). Kim Teehee, of the White House Domestic Policy Council, will reportedly be taking the lead in shaping the President’s meeting with Tribal Leaders this fall, and the focus of that meeting reportedly will be on a new tribal consultation policy.

U.S. Court of Appeals for the D.C. Circuit Issued Ruling in Cobell v. Salazar. On July 24, the U.S. Court of Appeals for the D.C. Circuit issued a ruling on review of orders of the district court in Cobell v. Salazar. The Court held that the district court’s analysis -- that the DOI was in continuing breach of its duty to account for trust funds -- was generally correct but that the district court erred in freeing the Department from its burden to make an accounting when it ruled that an accounting was impossible and instead ordered monetary relief to members of the plaintiff class. The Court vacated the district court’s orders and remanded for more proceedings. Specifically, the Court directed the district court “to use its equitable power to enforce the best accounting the (DOI) can provide, with the resources it receives, or expects to receive, from Congress.”

NCAI Meeting on IRS Health Benefit Taxation. On July 30, NCAI held a conference call to discuss the IRS taxation of tribal government benefits. This has become an urgent issue since national health care reform has taken center stage and tribal efforts to provide members with supplemental or comprehensive health care have been the subject of IRS audits.