CAPITOL HILL

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

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

EYE ON CONGRESS

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

Bureau of Indian Affairs

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

Indian Health Service

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

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

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

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

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

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

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

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

COMMITTEE ACTION

Markups

Tribal Land Claim Settlement Bills. On February 13, the HNRC marked up and ordered reported, as amended, the following bills: H.R. 2176 (Stupak, D-MI), a bill to provide for and approve the settlement of certain land claims of the Bay Mills Indian Community; and H.R. 4115 (Dingell, D-MI), a bill to provide for and approve the settlement of certain land claims of the Sault Ste. Marie Tribe of Chippewa Indians.

Hearings

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

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

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

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

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